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Supreme Court Educational Decisions and Educational Law Trends Preston Green Associate Professor of Education and Law College of Education The Dickinson.

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Presentation on theme: "Supreme Court Educational Decisions and Educational Law Trends Preston Green Associate Professor of Education and Law College of Education The Dickinson."— Presentation transcript:

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

3 Parents Involved in Community Schools v. Seattle School District: Seattle Plan First Tiebreaker -- Students with Siblings in Oversubscribed School First Tiebreaker -- Students with Siblings in Oversubscribed School Second Tiebreaker –Schools Racial Demographics and Race of Applicant Second Tiebreaker –Schools Racial Demographics and Race of Applicant Third Tiebreaker -- Geographic Proximity of School to Students Residence 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 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 If Assignment Would Result in Racial Imbalance of School, Student Denied Enrollment in School System Had Been Under Decree Until 2000 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 5-4 Opinion: Chief Justice Roberts, Justices Alito, Kennedy, Scalia and Thomas Justice Kennedy, concurrence Justice Kennedy, concurrence Justice Stevens, dissenting opinions Justice Stevens, dissenting opinions Justice Breyer dissent, joined by Justices Ginsburg, Souter and Stevens. Justice Breyer dissent, joined by Justices Ginsburg, Souter and Stevens.

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

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

8 Justice Kennedys Concurrence Both Plans Had Compelling Interests Both Plans Had Compelling Interests Diversity Diversity Equal Educational Opportunity Equal Educational Opportunity Plans Failed Narrow Tailoring Plans Failed Narrow Tailoring Broad and Imprecise; Not a Clear Understanding of How Plan Works Broad and Imprecise; Not a Clear Understanding of How Plan Works Individualized Typing by Race Individualized Typing by Race Minimal Effect/Impact Principle 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. 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 Strict Scrutiny Compelling Interest in Racial Integration of School Districts Compelling Interest in Racial Integration of School Districts Remedial Remedial Educational Educational Democratic Democratic Narrow Tailoring Narrow Tailoring Broad Ranges, Instead of Quotas Broad Ranges, Instead of Quotas Diminishing Use of Race Diminishing Use of Race Lack of Reasonable Alternative Lack of Reasonable Alternative

11 Parents Involved: Implications Oluwole & Green: 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 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 Richard Kahlenberg: Socio-Economic Integration

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

13 NCLB: Unfunded Mandate Provision and Spending Clause Unfunded Mandate Provision: Unfunded Mandate Provision: [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).[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. Difference between Actual Expenditure and Authorization: $ 30 billion. Spending Clause Question: Does Spending Clause Require Compliance, If States Have to Make the Difference? 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 US DOE – Provision Designed to Prevent Abuse by Rogue Officials State Officials – Reasonable to Believe that States Are Not Required to Make Up Difference State Officials – Reasonable to Believe that States Are Not Required to Make Up Difference

14 Pontiac v. Spellings: Sixth Circuit Relief Sought by Plaintiffs Relief Sought by Plaintiffs Declaratory Judgment – No Need to Use State and Local Dollars to Supplement Insufficient Federal Dollars 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 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. Sixth Circuits Conclusion: Reasonable for Administrators to Conclude That They Did Not Have Provide Supplementary Funding. Implications Implications Only One Circuit Only One Circuit Nevertheless, Victory for States 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) 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 Supreme Court Holding: IDEA Does Not Mandate Payment for Consulting Fees Statute Provides No Warning for Educators about Expert Fees Statute Provides No Warning for Educators about Expert Fees Implications: Challenges to Other Federal Statutes 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 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 Supreme Court Conclusion: IDEA Statutory Scheme Creates Rights for Parents to Represent Children Implications Implications New Slant on Parental Rights New Slant on Parental Rights Unanswered Question: What If Interest of Child Differ from Parents? 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 Issue: Whether Taxpayers Pay Private School Tuition When District Never Served Student Second Circuit: Student Should Not Have to Undergo Denial of FAPE first. Second Circuit: Student Should Not Have to Undergo Denial of FAPE first. Supreme Court: 4-4 decision (Kennedy not participating) 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 Issue: Whether Employee Speech is Protected by First Amendment Where Employee Is Speaking In Status As Employee Pickering v. Board of Education Pickering v. Board of Education Matter of Public Concern Matter of Public Concern Employee Interest in Speech Vs. Government Interest in Efficiency Employee Interest in Speech Vs. Government Interest in Efficiency Connick v. Meyers Connick v. Meyers No Protection if Speaking as Private Citizen, or Matter of Personal Interest 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 Holding: Employee, Not Protected by First Amendment – similar situation to Connick Implications – Whistleblowing, Efficiency Arguments 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) 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 Bong Hits for Jesus Supreme Court Free Speech Cases Supreme Court Free Speech Cases Tinker v. Des Moines – Material and Substantial Disruption Tinker v. Des Moines – Material and Substantial Disruption Bethel School District No. 403 v. Fraser – Offensive Speech, Inconsistent with Educational Admission Bethel School District No. 403 v. Fraser – Offensive Speech, Inconsistent with Educational Admission Hazelwood School District v. Kuhlmeirer – School sponsored speech Hazelwood School District v. Kuhlmeirer – School sponsored speech Justice Roberts Finding: Similar to Bethel and Hazelwood. Justice Roberts Finding: Similar to Bethel and Hazelwood.


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