Supreme Court Educational Decisions and Educational Law Trends

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

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

Parents Involved in Community Schools v. Seattle School District: Seattle Plan n First Tiebreaker -- Students with Siblings in Oversubscribed School Second Tiebreaker –School’s Racial Demographics and Race of Applicant Third Tiebreaker -- Geographic Proximity of School to Student’s Residence

Parents Involved: Jefferson County Plan n Based on Vacancies and District’s 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

Parents Involved: Supreme Court Holding n n 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.

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

Plurality Opinion n Other Compelling Interests n n n 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

Justice Kennedy’s Concurrence n Both Plans Had Compelling Interests Diversity n Equal Educational Opportunity n n Plans Failed Narrow Tailoring “Broad and Imprecise”; Not a Clear Understanding of How Plan Works n Individualized Typing by Race n Minimal Effect/Impact Principle n

Kennedy’s 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. ”

Parents Involved: Breyer’s Dissent n Strict Scrutiny n Compelling Interest in Racial Integration of School Districts Remedial n Educational n Democratic n n Narrow Tailoring Broad Ranges, Instead of Quotas n Diminishing Use of Race n Lack of Reasonable Alternative n

Parents Involved: Implications n Oluwole & Green: n n “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

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

NCLB: Unfunded Mandate Provision and Spending Clause n Unfunded Mandate Provision: n n n “[n]othing 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? n n US DOE – Provision Designed to Prevent Abuse by “Rogue Officials” State Officials – Reasonable to Believe that States Are Not Required to Make Up Difference

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

Special Education: Arlington Central School District v. Murphy n n Issue: Whether District Must Pay Prevailing Parents’ Consulting Fees, in Addition to Attorney’s Fees (Spending Clause Issue) Supreme Court Holding: IDEA Does Not Mandate Payment for Consulting Fees n n Statute Provides No Warning for Educators about Expert Fees Implications: Challenges to Other Federal Statutes

Special Education: Winkelman v. Parma City School District n n n 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 n n New Slant on Parental Rights Unanswered Question: What If Interest of Child Differ from Parents?

Special Education: Board of Education of City of New York v. Tom F. n n n 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)

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

Employment: Ceballos n n n Holding: Employee, Not Protected by First Amendment – similar situation to Connick Implications – Whistleblowing, Efficiency Arguments Classroom Application: D’Angelo v. School Board of Polk County, Florida (School District Principal Fired for Seeking to Convert Public School to Charter School)

Morse v. Frederick n n “Bong Hits for Jesus” Supreme Court Free Speech Cases n Tinker v. Des Moines – Material and Substantial Disruption n 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.