Supreme Court Educational Decisions and Educational Law Trends

1
Supreme Court Educational Decisions and
Educational Law Trends

• Preston Green
• Associate Professor of Education and Law
• College of Education
• The Dickinson School of Law
• The Pennsylvania State University

2
Overview

• Race-Conscious Assignment Plans
• No Child Left Behind
• Special Education
• Employment
• Free Speech

3
Parents Involved in Community Schools v. Seattle
School District Seattle Plan

• First Tiebreaker -- Students with Siblings in
  Oversubscribed School
• Second Tiebreaker Schools Racial Demographics
  and Race of Applicant
• Third Tiebreaker -- Geographic Proximity of
  School to Students Residence

4
Parents Involved Jefferson County Plan

• Based on Vacancies and Districts Racial
  Guidelines Designed to Ensure Racial Balance
• If Assignment Would Result in Racial Imbalance of
  School, Student Denied Enrollment in School
• System Had Been Under Decree Until 2000

5
Parents Involved Supreme Court Holding

• 5-4 Opinion Chief Justice Roberts, Justices
  Alito, Kennedy, Scalia and Thomas
• Justice Kennedy, concurrence
• Justice Stevens, dissenting opinions
• Justice Breyer dissent, joined by Justices
  Ginsburg, Souter and Stevens.

6
Parents Involved Majority Opinion

• Strict Scrutiny Applicable
• Remedying Effects of Past Discrimination
• Enhancing Diversity at University Level
• No Compelling Interests
• Neither Plan Designed to Eliminate Effects of
  Past Discrimination
• Diversity Rationale Did Not Apply to K-12
  education
• Not Narrowly Tailored
• Minimal Effect/Limited Impact on Student
  Assignments
• No Serious Consideration of Race-Neutral
  Alternatives

7
Plurality Opinion

• Other Compelling Interests
• Decreasing Racial Concentration in Schools
  (Seattle)
• Assuring Best Schools for Its Non-White Students
  (Seattle)
• Educating Students in Racially-Integrated
  Environment (Jefferson County)
• Benefits of Racial Diverse Environment
• Rejected because of Disputed Nature of Evidence
• Not Narrowly Tailored Failure to Link Plans to
  Any Pedagogic Concept

8
Justice Kennedys Concurrence

• Both Plans Had Compelling Interests
• Diversity
• Equal Educational Opportunity
• Plans Failed Narrow Tailoring
• Broad and Imprecise Not a Clear Understanding
  of How Plan Works
• Individualized Typing by Race
• Minimal Effect/Impact Principle

9
Kennedys Concurrence What May Work

• School boards may pursue the goal of
  bringing together students of diverse backgrounds
  and races through other means, including
  strategic site selection of new schools drawing
  attendance zones with general recognition of the
  demographics of neighborhoods allocating
  resources for special programs recruiting
  students and faculty in a targeted fashion and
  tracking enrollments, performance, and other
  statistics by race. These mechanisms are race
  conscious but do not lead to different treatment
  based on a classification that tells each student
  he or she is to be defined by race, so it is
  unlikely any of them would demand strict scrutiny
  to be found permissible.

10
Parents Involved Breyers Dissent

• Strict Scrutiny
• Compelling Interest in Racial Integration of
  School Districts
• Remedial
• Educational
• Democratic
• Narrow Tailoring
• Broad Ranges, Instead of Quotas
• Diminishing Use of Race
• Lack of Reasonable Alternative

11
Parents Involved Implications

• Oluwole Green
• The key to surviving constitutional scrutiny of
  a race-conscious measure might be in school
  districts ensuring that their measures comply
  with the various principles important to the
  Parents Involved plurality, the dissenting
  Justices and Justice Kennedy, the pivotal vote
• Richard Kahlenberg Socio-Economic Integration

12
No Child Left Behind Pontiac v. Spellings

• No Child Left Behind Requirements
• States Must Establish Statewide Assessment System
• All Students Must Attain Proficiency in Reading
  and Math by 2014
• Schools Must AYP toward Proficiency Goals
• Scores Must Be Disaggregated on Basis of Race,
  Special Education, English Proficiency
• Technical Assistance and Sanctions for Failure to
  Meet AYP

13
NCLB Unfunded Mandate Provision and Spending
Clause

• Unfunded Mandate Provision
• nothing in this Act shall be construed to . .
  . mandate a State or any subdivision thereof to
  spend any funds or incur any costs not paid for
  under this Act, 20 U.S.C. 7907(a).
• Difference between Actual Expenditure and
  Authorization 30 billion.
• Spending Clause Question Does Spending Clause
  Require Compliance, If States Have to Make the
  Difference?
• US DOE Provision Designed to Prevent Abuse by
  Rogue Officials
• State Officials Reasonable to Believe that
  States Are Not Required to Make Up Difference

14
Pontiac v. Spellings Sixth Circuit

• Relief Sought by Plaintiffs
• Declaratory Judgment No Need to Use State and
  Local Dollars to Supplement Insufficient Federal
  Dollars
• Federal Dollars Could Not Be Withheld for Failure
  to Implement Where Federal Dollars Insufficient
• Sixth Circuits Conclusion Reasonable for
  Administrators to Conclude That They Did Not Have
  Provide Supplementary Funding.
• Implications
• Only One Circuit
• Nevertheless, Victory for States

15
Special Education Arlington Central School
District v. Murphy

• Issue Whether District Must Pay Prevailing
  Parents Consulting Fees, in Addition to
  Attorneys Fees (Spending Clause Issue)
• Supreme Court Holding IDEA Does Not Mandate
  Payment for Consulting Fees
• Statute Provides No Warning for Educators about
  Expert Fees
• Implications Challenges to Other Federal
  Statutes

16
Special Education Winkelman v. Parma City School
District

• Issue Whether Non-Lawyer Parent of Child with
  Disability Can Proceed Pro Se in Federal Court
  under IDEA
• Supreme Court Conclusion IDEA Statutory Scheme
  Creates Rights for Parents to Represent Children
• Implications
• New Slant on Parental Rights
• Unanswered Question What If Interest of Child
  Differ from Parents?

17
Special Education Board of Education of City of
New York v. Tom F.

• Issue Whether Taxpayers Pay Private School
  Tuition When District Never Served Student
• Second Circuit Student Should Not Have to
  Undergo Denial of FAPE first.
• Supreme Court 4-4 decision (Kennedy not
  participating)

18
Employment Ceballos v. Garcetti

• Issue Whether Employee Speech is Protected by
  First Amendment Where Employee Is Speaking In
  Status As Employee
• Pickering v. Board of Education
• Matter of Public Concern
• Employee Interest in Speech Vs. Government
  Interest in Efficiency
• Connick v. Meyers
• No Protection if Speaking as Private Citizen, or
  Matter of Personal Interest

19
Employment Ceballos

• Holding Employee, Not Protected by First
  Amendment similar situation to Connick
• Implications Whistleblowing, Efficiency
  Arguments
• Classroom Application DAngelo v. School Board
  of Polk County, Florida (School District
  Principal Fired for Seeking to Convert Public
  School to Charter School)

20
Morse v. Frederick

• Bong Hits for Jesus
• Supreme Court Free Speech Cases
• Tinker v. Des Moines Material and Substantial
  Disruption
• Bethel School District No. 403 v. Fraser
  Offensive Speech, Inconsistent with Educational
  Admission
• Hazelwood School District v. Kuhlmeirer School
  sponsored speech
• Justice Roberts Finding Similar to Bethel and
  Hazelwood.