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
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Race-Conscious Assignment Plans
No Child Left Behind
Special Education
Employment
Free Speech
Parents Involved in Community Schools v.
Seattle School District: Seattle Plan
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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
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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
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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
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Strict Scrutiny Applicable
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No Compelling Interests
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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
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Minimal Effect/Limited Impact on Student
Assignments
No Serious Consideration of Race-Neutral Alternatives
Plurality Opinion
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Other Compelling Interests
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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
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Both Plans Had Compelling Interests
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Diversity
Equal Educational Opportunity
Plans Failed Narrow Tailoring
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“Broad and Imprecise”; Not a Clear
Understanding of How Plan Works
Individualized Typing by Race
Minimal Effect/Impact Principle
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
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Strict Scrutiny
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Compelling Interest in Racial Integration of
School Districts
Remedial
 Educational
 Democratic
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Narrow Tailoring
Broad Ranges, Instead of Quotas
 Diminishing Use of Race
 Lack of Reasonable Alternative
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Parents Involved: Implications
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Oluwole & Green:
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“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
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No Child Left Behind – Requirements
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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
NCLB: Unfunded Mandate
Provision and Spending Clause
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Unfunded Mandate Provision:
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“[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?
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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
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Relief Sought by Plaintiffs
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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 Circuit’s Conclusion: Reasonable for
Administrators to Conclude That They Did Not
Have Provide Supplementary Funding.
Implications
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Only One Circuit
Nevertheless, Victory for States
Special Education: Arlington
Central School District v. Murphy
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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
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Statute Provides No Warning for Educators about
Expert Fees
Implications: Challenges to Other Federal
Statutes
Special Education: Winkelman v.
Parma City School District
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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
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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.
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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
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Issue: Whether Employee Speech is Protected
by First Amendment Where Employee Is
Speaking In Status As Employee
Pickering v. Board of Education
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Matter of Public Concern
Employee Interest in Speech Vs. Government Interest
in Efficiency
Connick v. Meyers
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No Protection if Speaking as Private Citizen, or Matter
of Personal Interest
Employment: Ceballos
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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
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“Bong Hits for Jesus”
Supreme Court Free Speech Cases
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Tinker v. Des Moines – Material and Substantial
Disruption
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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.