Overview
The first Monday in October is rapidly
approaching. This date marks the beginning of the official term
of the United States Supreme Court. The term typically lasts
until the end of June or until the Justices have handed down
opinions on all cases that they have heard. Even though the
Court is in recess in the months of July, August, and September,
petitions for review can be filed during theses months.
This year’s term will prove interesting to
watch, because the Court is in the process of change. No longer
will the list of nine members include Chief Justice William H.
Rehnquist and Associate Justice Sandra Day O’Connor. As of this
writing the position of Chief Justice, once occupied by the late
William Rehnquist, likely will be filled by John G. Roberts,
Jr., but the vacancy created by Justice O’Connor’s retirement
remains open.
Change in the Court’s membership is not a
rare occurrence. In my fifty years as a student of the law, I
have witnessed several changes take place. Gone from the bench
are such luminaries as Earl Warren, Hugo Black, William O.
Douglas, John Harlan, Potter Stewart, Warren Burger, William
Brennan, Byron White, Thurgood Marshall, Harry Blackmun, and
Lewis Powell.
The Burger Court and the Schools (1969
to 1986). A few years ago, my late research partner H.C.
Hudgins, Jr., and I studied the sixteen-plus years of the
Supreme Court under the leadership of Chief Justice Warren
Burger. Between 1969 (Tinker v Des Moines) and1986 (Bethel
School District v Fraser), the Burger Court decided
more than one hundred cases involving education-related issues.
Suffice it to say, the Burger Court years produced many
important decisions involving public schools. Over the
seventeen-years under Chief Justice Burger’s leadership, the
Court’s membership changed. (Vacca and Hudgins, 1991)
The Rehnquist Court (1986 to 2005).
Membership on the Supreme Court continued to change under Chief
Justice Rehnquist. By 1994, the Rehnquist Court was set and it
remained the same until Chief Justice Rehnquist’s death and
Associate Justice O’Connor’s retirement.
Based on my analysis of the education
decisions during the Rehnquist years, the Justices formed three
distinct groups, as evidenced in their voting patterns. With few
exceptions, Chief Justice Rehnquist and Associate Justices
Scalia and Thomas voted together; Associate Justices O’Connor,
Soutor, and Kennedy voted together; and Associate Justices
Stevens, Ginsburg, and Breyer voted together. In effect, three
courts actually functioned when considering education issues.
The votes generally were 6-3; and, when the vote was 5-4 it was
because Justices O’Connor and Kennedy furnished the swing votes.
The Impact of the Supreme Court on
Public Education. Lesser known than the other two branches
of government, the United States Supreme Court has a profound
impact on the daily operation of this nation’s public schools.
While most people recognize such landmark decisions as Brown
v Board of Education (a unanimous decision of the Warren
Court in1954), what is often not known is that more recent
decisions of the United States Supreme Court during the Burger
and Rehnquist eras (1969 to 2005) have had a major impact on
public school system policy and procedures.
Constitutional Issues and Case
Law Examples
As a general rule, constitutional issues
involving public schools most often spring from the First
Amendment (the religion clauses, speech, and press), the
Fourth Amendment (privacy, search, and seizure), the
Tenth Amendment (conflicts of state versus federal
authority), and the Fourteenth Amendment (the due process
and equal protection clauses). What follow are examples of
important Supreme Court decisions involving public schools.
These decisions were selected from the period beginning in 1969
and ending in 2005. The author’s intent is to demonstrate the
powerful influence and impact of United States Supreme Court on
(1) school system policy formulation, and (2) the implementation
of daily procedures in contemporary schools.
I. Compulsory Attendance, Parent Rights:
Wisconsin v Yoder (1972): In this
decision the Court ruled that the Wisconsin compulsory
attendance statute, as applied to the Old Order Amish, violated
the Free Exercise Clause of the First Amendment. In the Court’s
view, the State of Wisconsin could not successfully argue that
parens patria is more compelling than is the liberty
interest of parents in bringing up children.
Mueller v Allen (1988): By a vote of
5 to 4, the Supreme Court upheld a State of Minnesota law
allowing state income tax deductions for education expenses
(tuition, books, transportation) incurred by parents. The law
allowed tax deductions for all parents, including parents who
paid tuition to private and parochial elementary and secondary
schools. The Court applied a “child benefit” rationale in
reaching its decision.
II. Religion and The Schools:
Lemon v Kurtzman (1971): In this
narrow public school finance case, the high court created a
litmus test to apply in subsequent Establishment Clause cases.
To pass muster under the First Amendment’s Establishment Clause,
the Court must find: (1) a secular legislative purpose, (2) a
primary effect that neither establishes nor inhibits religion,
and (3) an absence of excessive entanglement between church and
state.
Edwards v Aguillard (1987): A
Louisiana statute that required any public school teaching
evolution to also teach creation science was declared
unconstitutional. Focusing on the legislative intent of the
state statute, the Court held that the “balanced treatment” law
violated the separation of church and state (i.e., it was
written to advance religion).
Board of Education v Mergens (1990):
In this case a student-initiated Bible club wanted access to the
school’s official club period. Applying the federal Equal Access
Act (1984) the Court held that a public secondary school that
receives federal money and maintains a limited open forum must
grant the student-initiated religious club’s access request. The
Bible club must be allowed to meet during non-instructional
hours of the school day, with the same status as any other
student-initiated non-curricular club.
Lee v Weisman (1992): Here
the Court ruled that it was unconstitutional for a public middle
school to include a nonsectarian prayer at graduation, a prayer
given by a clergyperson selected by the school principal. To
quote Justice Kennedy,“[t]he government involvement with this
religious activity is so pervasive to a point of creating a
state-sponsored and state-directed religious exercise in a
public school.”
Zobrest v Catalina (1993): Relying
on a ‘child benefit” rationale, the Court allowed the use of
public funds to pay for providing a sign language interpreter
for student with educational disabilities. The Justices
supported the use of public money, even though the student was
enrolled in a Roman Catholic high school.
Board of Education v Newdow (2005):
In this recent decision, the Supreme Court reversed the Ninth
Circuit in a matter involving the recitation by public school
students of the phrase “one nation under God” in the Pledge of
Allegiance. However, the high court did not specifically address
the “one nation under God” issue. Instead, the Court held that
the parent who brought the suit on behalf of his daughter did
not have standing to sue. As of this writing the matter is back
in court in the Ninth Circuit.
Zelman v Simmons-Harris (2002) and
Locke v Davey (2004): Taken together, these decisions
reopened and more clearly focused the debate on school vouchers.
More specifically the debate centers on whether or not public
money in the form of vouchers (expended in private, sectarian
schools) is constitutional under the First and Fourteenth
Amendments.
III. Student Rights and Protections:
Franklin v Gwinnett (1992): In this
decision the Supreme Court held that school officials may be
liable for their deliberate indifference to reported
behavior on the part of employees in situations where students
were sexually, physically, or verbally abused. This decision
also establishes that it is possible for student victims to sue
for money damages under Title 9.
Davis v Monroe (1999): In this
decision the high court made it clear that school officials may
be found liable where student harassment of students by other
students is so severe and pervasive that it “limits a student
victim’s ability to learn.” More specifically, liability for
student-on-student harassment will attach where: (1) school
officials knew (had actual knowledge) about the harassing
behavior, (2) failed to take reasonable steps to remedy the
situation, and (3) showed deliberate indifference to the
matter.
IV. Student Discipline:
Goss v Lopez (1975): In this student
disciplinary (short-term suspension) case the Court held that
because students have a property interest in public
education, and a liberty interest in their reputations,
the Fourteenth Amendment requires that they be afforded basic
procedural due process before being suspended from school.
The Court articulated the basic elements of due process
as (1) oral or written notice of the charges, (2) an explanation
of the evidence [especially where the student denies the
charge], and (3) some form of hearing [i.e., a chance to
be heard].
Ingraham v Wright (1977): A Florida
case, the Court held in Ingraham that the Eighth
Amendment cruel and unusual punishment prohibition does not
apply to corporal punishment in schools. However, students are
not left without remedy. The remedy against excessive corporal
punishment, said the Court, is provided in civil and criminal
law.
New Jersey v T.L.O. (1985): Here the
Supreme Court made it clear that the Fourth Amendment’s
prohibition against unreasonable searches and seizures applies
to students in public schools. Thus, public school students have
privacy expectations that must be protected. However, these
expectations must be balanced with the legal prerogative of
school officials to search students where: (1) reasonable
suspicion exists to believe that a violation of school policy
and/or the law exists, and (2) the search remains reasonable in
scope.
Honig v Doe (1988): In the Court’s
opinion, the “stay put” provision of IDEA prohibits school
officials from unilaterally excluding students with disabilities
from school for more than 10-days, where the student’s
misbehavior grows out of (i.e., is a manifestation of)
his or her disability.
Vernonia v Acton (1995) and Board
of Education v Earls (2002): Taken together, these two
decisions uphold random drug testing of public school students.
In essence the Court said, “ The privacy interests of students
are limited in a public school environment.”
Owasso I.S.D. v Falvo (2002) and
Gonzaga University v Doe (2002): These decisions did not
directly address the privacy rights of students. However, taken
together they did establish that the Family Educational Rights
and Privacy Act (FERPA) does not give private citizens a
“private right to sue” under FERPA.
V. Student Expression:
Tinker v Des Moines (1969): Since
public school students are “persons under the constitution” and
the First and Fourteenth Amendments are applicable to the
states, said the Court, it is unconstitutional to suspend
students for engaging in symbolic expression of opinion unless
it can be shown that material and substantial disruption
occurred because of their exercise of expression. The “material
and substantial disruption” test became a basic standard to
apply in all subsequent student expression cases.
Board of Education v Fraser (1986)
and Hazelwood v Kuhlmeier (1988): In these post-Tinker
decisions the Court opined that the determination of the
manner of speech in a classroom or in an assembly appropriately
rests with school officials and not students. There is a
distinction between “symbolic speech (as protected in Tinker),”
and “speech sponsored by the school and disseminated under its
auspices” (Fraser and Kuhlmeier). However, public
school officials must base their actions on “reasonable
pedagogical concerns.”
VI. Finance and Special Education:
San Antonio I.S.D. v Rodriguez (1973):
The Supreme Court reversed a lower court decision that had
declared the State of Texas school finance system
unconstitutional. The Supreme Court concluded that the Texas
finance system: (1) did not operate to the particular
disadvantage of any suspect class; (2) wealth discrimination, if
it exists at all, does not provide an adequate basis for the
Court to invoke strict scrutiny; and (3) education is not among
the rights specifically included in the United States
Constitution. The “importance” of education is not enough to
regard it as a fundamental right under the Equal Protection
Clause.
Hendrick Hudson School District v Rowley
(1982): In deciding this case the Court interpreted the
“appropriate education” language in the IDEA. Students covered
by IDEA must be provided with access to a “meaningful
educational program,” a “basic floor opportunity” designed to
result in some “benefit” to the student. The intent of the law
is not to provide “the best educational program,” one designed
to ensure maximum development of a student’s full potential.
VII. Employment:
Board of Regents v Roth (1972) and
Perry v Sindermann (1972): These two cases added an
important dimension to teacher job security and gave meaning to
the phrase “property interest in employment.” Taken together
these decisions balanced school board (employer) prerogatives
with teacher (employee) rights. Because of these decisions even
non-tenured faculty can reap the benefits of due process
protections where a valid contract exists.
Mt. Healthy v Doyle (1981): In
Mt. Healthy, the Court established a standard that has
greatly conditioned local school board and administrative
authority in school personnel matters, especially a dismissal
decision. Created by Chief Justice Rehnquist the standard poses
the following three questions: (1) Is there present in this
situation some element or exercise [by the employee] of
constitutionally or statutorily protected conduct? (2) Did this
element or exercise play a “substantial or motivating part” in
the personnel decision (to non-renew, dismiss, suspend,
transfer, etc.)? (3) Absent the element or exercise would the
employer have reached the same decision regarding this employee?
Cleveland Board of Education v
Loudermill (1985): In this decision the Court held that a
pre-termination hearing must be granted to an employee who
possesses a property interest (more than a mere unilateral
expectation) in his/her employment.
Implications for Policy
The purpose of this commentary is to
demonstrate the influence and impact of United States Supreme
Court decisions on policy and practice in public school systems.
Given the intent of this commentary, it would be redundant to
suggest the potential policy implications of the cases reviewed
above. Suffice it to say, public school officials and
administrators have dealt with the implications of these
decisions for the past three-plus decades. But, what of the
future?
Two items are worth pondering. First, what
will be the impact of the new United States Supreme Court under
the leadership of John G Roberts, Jr.? Second, who will replace
Justice Sandra Day O’Connor? Whatever are the answers to these
two questions, in my view the direction taken by both the Burger
and Rehnquist Courts over the past thirty-five years (as
demonstrated in the cases reviewed above) will continue. More
specifically, my guess is that the Roberts Court will build on
the legacies of the Burger and Rehnquist Courts and continue in
a positive, albeit moderate, path through the maze of education
related issues coming before it. In essence the Roberts Court
will continue to balance the rights of parents and students with
the legal and compelling authority of state and local school
officials, administrators, and teachers to control the daily
operation of schools, including the curriculum.
Recourses Cited
Bethel School District v Fraser, 475 U.S.
675 (1986)
Board of Education v Earls, 122 S.Ct. 2559
(2002)
Board of Education v Newdow, 542 U.S. 1
(2005)
Board of Education v Mergens , 496 U.S. 226
(1990)
Board of Regents v Roth, 408 U.S. 564
(1972)
Brown v Board of Education, 347 U.S. 483
(1954)
Cleveland Board of Education v Loudermill,
1055 S.Ct. 1487 (1985)
Davis v Monroe, 119 S.Ct. 1661 (1999)
Edwards v Aguillard, 482 U.S. 578 (1987)
Franklin v Gwinnett County Public Schools,
112 S.Ct. 1028 (1992)
Gonzaga University v Doe, 112 S.Ct.2268
(2002)
Goss v Lopez, 419 U.S. 565 (1975)
Hazelwood v Kuhlmeier, 108 S.Ct. 562 (1988)
Hendrick Hudson Central School District v
Rowley, 458 U.S. 176 (1982)
Honig v Doe, 108 S.Ct. 592 (1988)
Ingraham v Wright, 430 U.S. 651 (1977)
Lee v Weisman, 112 S.Ct. 2648 (1992)
Lemon v Kurtzmann, 403 U.S. 602 (1971)
Lock v Davey, 540 U.S. 712 (2004)
Mt. Healthy v Doyle, 429 U.S. 274 (1977)
Mueller v Allen, 463 U.S. 388 (1983)
New Jersey v T.L.O., 469 U.S. 325 (1985)
Owasso I.S.D.v Falvo, 122 S.Ct.934 (2002)
Perry v Sindermann, 408 U.S. 593 (1972)
San Antonio I.S.D. v Rodriguez, 411 U.S. 1
(1973)
Tinker v Des Moines, 393 U.S. 503 (1969)
Vacca, R.S. and Hudgins, H.C. Jr., THE
LEGACY OF THE BURGER COURT AND THE SCHOOLS: 1969-1986 (NOLPE,
1991)
Vernonia v Acton, 155 S.Ct. 2386 (1995)
Wisconsin v Yoder, 406 U.S. 205 (1972)
Zelman v Simmons-Harris, 122 S.Ct. 2460
(2002)
Zobrest v Catalina Foothills, 509 U.S. 1
(1993)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
