The U.S. Supreme Court:
Nine Justices Dressed in Black and How Their
Opinions May Impact Your School District
American Association of School Administrators
July 12, 2011
Maree Sneed
Partner
Maree.sneed@hoganlovells.com
Hogan Lovells U.S. LLP
555 13th St. NW
Washington, DC 20002
(202) 637-6416
www.hoganlovells.com
Chris Lott
Associate
Christopher.lott @hoganlovells.com
Hogan Lovells U.S. LLP
555 13th St. NW
Washington, DC 20002
(202) 637-6416
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Overview
1. Overview of the Supreme Court
2. Recent Supreme Court Decisions Affecting School
Districts
3. Cases on the Supreme Court's Radar in the October
2011 Term and Beyond
4. Developments since the Supreme Court’s Decision in
PICS
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True or False #1
In assigning students to school,
it is never permissible to
consider race or ethnicity.
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True or False #2
It is clearly established that the police need a warrant when
interviewing a student on school grounds.
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True or False #3
As in the fable – where the cat
got burned when the monkey
convinced the cat to do the
dirty work and pull the
chestnuts out of the burning
fire – a school district can be
held liable in a discrimination
lawsuit when a supervisor’s
bias causes another school
official to take an adverse
employment action based on
that bias.
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True or False #4
School officials can only be held liable for their intentional
violations of the IDEA, not for negligent conduct.
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1. Overview of the Supreme Court
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1. Overview of the Supreme Court
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1. Overview of the Supreme Court
Chief Justice John Roberts joined the Court in 2005. He
was appointed to the Court by President George W. Bush.
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1. Overview of the Supreme Court
Justice Kennedy joined the Court
in 1988. He was appointed to the
Court by President Ronald Reagan.
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Justice Scalia joined the Court in
1986. He was appointed to the
Court by President Ronald Reagan.
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1. Overview of the Supreme Court
Justice Thomas joined the Court in
1991. He was appointed to the
Court by President George Bush.
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Justice Alito joined the Court in
2006. He was appointed to the
Court by President George W. Bush.
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1. Overview of the Supreme Court
Justice Ginsburg joined the Court
in 1993. She was appointed to
the Court by President Clinton.
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Justice Breyer joined the Court in
1994. He was appointed to the
Court by President Clinton.
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1. Overview of the Supreme Court
Justice Sotomayor joined the
Court in 2009. She was appointed
to the Court by President Obama.
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Justice Kagan joined the Court in
2010. She was appointed to the
Court by President Obama.
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2. Recent Supreme Court Decisions Affecting
School Districts
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2. Recent Supreme Court Decisions
A. Arizona Christian Sch. Tuition Org. v. Winn and Garriott v. Winn
B. Camreta v. Greene
C. Staub v. Proctor Hospital
D. Christian Legal Society v. Hastings
E.
Borough of Duryea v. Guarnieri
F.
J.D.B v. North Carolina
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2. Recent Supreme Court Decisions
A. Arizona Christian Sch. Tuition Org. v.
Winn and Garriott v. Winn
–
Issue: The substantive question was whether a
program in Arizona that gave taxpayers a tax
credit for making donations to religiously
affiliated school-tuition organizations (STO)
violated the Establishment Clause of the First
Amendment?
–
Issue: There was also a “threshold” legal
question: Whether taxpayers challenging the law
had standing to challenge the program in federal
court?
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2. Recent Supreme Court Decisions
The challenged Arizona program:
– In 1998, more than 90% of the tax credit funds were directed
toward religiously affiliated STOs.
– In 2003 and 2004, 82% and 79% of scholarships were awarded by
STOs that restricted scholarships to religious schools.
– Most scholarships are awarded to students already enrolled in
private, religious schools.
– At the same time, funding for public education in Arizona has been
relatively low, and a budget crisis forced the State to make
additional severe cuts.
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2. Recent Supreme Court Decisions
• The District Court upheld Arizona’s program on the grounds
that:
– The program’s purpose was religiously neutral.
– The program provides “genuine and independent” choice.
– Any religious effect of the program is a result of the choices
of taxpayers and parents and cannot be attributed to the
government.
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2. Recent Supreme Court Decisions
• The Ninth Circuit Court of Appeals reversed the district court’s
decision. That court found:
– Plaintiffs’ allegations that the purpose of the program is to
provide choice may be a sham.
– The program is not a “genuine and independent” choice
program because parents have no true choice under the
program.
– The effect of the program is to benefit religious schools.
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2. Recent Supreme Court Decisions
• Hogan Lovells prepared a friend of the court brief for the
Supreme Court on behalf of the National School Board
Association (NSBA), the American Association of School
Administrators, the National Education Association, and
several other groups. The brief argued, among other
things, that:
– The tuition tax credit program violated the Establishment
Clause.
– The tuition tax credit program had negative effects on public
education in Arizona.
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2. Recent Supreme Court Decisions
Supreme Court’s decision:
– Case dismissed because the plaintiffs did not have “standing”
to challenge the program.
– Holding: Taxpayers only have standing to challenge a
government spending program under the Establishment Clause
when there is a direct appropriation of funds, as opposed to a
tax credit.
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2. Recent Supreme Court Decisions
“And that result—the effective demise of
taxpayer standing—will diminish the
Establishment Clause’s force and meaning.
Sometimes, no one other than taxpayers has
suffered the injury necessary to challenge
government sponsorship of religion. Today’s
holding therefore will prevent federal courts
from determining whether some subsidies to
sectarian organizations comport with our
Constitution’s guarantee of religious neutrality.
Because I believe these challenges warrant
consideration on the merits, I respectfully
dissent from the Court’s decision.”
-Justice Kagan
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2. Recent Supreme Court Decisions
Takeaway
• Will more states create tax benefit programs that aid
private schools?
• Who will be able to challenge these laws?
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2. Recent Supreme Court Decisions
B. Camreta v. Greene and Alford v. Green
Issue: Does the Constitution require police and
child protection workers to obtain a warrant
before interviewing children about claims of
sexual assault at school?
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2. Recent Supreme Court Decisions
• The case involved a dispute about a warrantless interview on
school grounds.
– In 2003, a child protection investigator and a sheriff’s deputy came to a
school to interview a 9-year-old about whether her father had sexually
abused her.
– A school guidance counselor removed the student from her classroom
and brought her to another room in the school where the investigator
and deputy waited.
– The police did not have a warrant to interview the child.
– Allegedly, the questioning lasted two hours; the student at first denied
the abuse, but then changed her story when she feared the bus would
leave without her.
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2. Recent Supreme Court Decisions
• The student and the student’s mother sued under the 4th
Amendment’s search and seizure clause.
• The claim was that the Child Protective Services (CPS) investigator,
the deputy, the school district, and the school guidance counselor,
seized the child without a warrant in violation of the 4th
Amendment.
• The school district and school counselor were dismissed from the
case due to a procedural error.
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2. Recent Supreme Court Decisions
• The 9th Circuit held that a warrant should have been
obtained prior to interviewing the girl.
• But, it granted the defendants qualified immunity
because no clearly established law had warned them of
the illegality.
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2. Recent Supreme Court Decisions
• The Supreme Court dismissed the 4th Amendment Claim
as moot because the student had moved to Florida.
• It also held that, even though the investigator and police
had technically “won” their case at the 9th Circuit on
qualified immunity grounds, they could still appeal the
4th Amendment claim.
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2. Recent Supreme Court Decisions
• Takeaway:
– The 9th Circuit’s decision could have had a number of negative
consequences for school districts that are avoided by the
Supreme Court’s decision to vacate the opinion. For example:
• Districts feared that school officials could be liable for “seizing a
student” by allowing access to a student on school property.
• Districts feared they would be stuck between “rock-and-a-hard-place”
because many state statutes require reporting of suspected abuse.
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2. Recent Supreme Court Decisions
C. Staub v. Proctor Hospital
Issue: May an employer be held liable for
employment discrimination when the final
decision-maker is free from bias, but when
the bias-motivated actions of a supervisor
contributed to the decision?
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2. Recent Supreme Court Decisions
• The case involved the “Cat’s Paw” theory of liability
– Named for a 17th Century fable about a monkey who
persuaded a cat to pull chestnuts out of a fire so the
cat’s paw gets burned and the monkey gets the
chestnuts.
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2. Recent Supreme Court Decisions
• The case involved a dispute about alleged military bias
– A technician at Proctor hospital was fired after many disputes with
supervisors over absences caused by Army Reserve Duty.
– The hospital’s human resource director conducted an independent
investigation, informed by input from the supervisors, and ultimately
terminated the technician.
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2. Recent Supreme Court Decisions
• The technician sued, alleging a violation of a federal law
prohibiting discrimination against members of the military.
• The technician’s primary argument was that the supervisors’
were biased against the military, and this bias influenced the
human resource direct (i.e. a cat’s paw theory of liability).
• The hospital argued that even assuming cat’s paw liability is
valid, an employer should not be held responsible when the
ultimate decision-maker conducts an independent investigation
and concludes that the supervisor’s actions were not
motivated by bias.
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2. Recent Supreme Court Decisions
• The district court sided with the technician, finding
that the cat’s paw theory was valid.
– A jury verdict was returned in favor of the technician.
• The Seventh Circuit reversed, holding that the cat’s
paw theory of liability was not valid.
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2. Recent Supreme Court Decisions
• The Supreme Court held that the cat’s paw theory is valid if:
• (1) a supervisor of the worker took a bias-motivated step.
• (2) the supervisor acted with the intent to cause an adverse employment
action for the worker.
• (3) the supervisor’s action was a proximate cause for the adverse
employment action.
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2. Recent Supreme Court Decisions
• Takeaway:
– The NSBA had argued in an amicus brief that school districts are
especially vulnerable to the cat’s paw theory of liability.
• E.g. Central office school administrators must rely on school-based
administrators; school boards rely on school administrators
– Note, however, that a school district will not be liable if the
biased-motivated step is too remote or a “purely contingent”
cause of the adverse action (i.e., not the proximate cause).
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2. Recent Supreme Court Decisions
D. Christian Legal Society v. Hastings
Issue: Does a school violate a student group’s rights
to free speech and association when it refuses to
grant official recognition to the group under the
school’s nondiscrimination policy?
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2. Recent Supreme Court Decisions
• Hastings College of Law grants official recognition to a student
group only when the group agrees to an “all-comers”
nondiscrimination policy.
– Benefits of official recognition include money, use of school
grounds, and more.
• Christian Legal Society bylaws require members to sign a
“Statement of Faith” – including the belief that sexual activity may
occur only in the context of marriage between a man and a
woman.
– No one who engages in homosexual activity may be a member.
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2. Recent Supreme Court Decisions
• Hastings denied the Christian Legal Society official
recognition under the nondiscrimination policy, but still
allowed the Society to use the law school’s facilities.
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2. Recent Supreme Court Decisions
• The Supreme Court (5-4) upheld the law school’s
nondiscrimination policy:
– The court concluded the law school was a “limited public
forum” and the policy was reasonable and viewpoint neutral.
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2. Recent Supreme Court Decisions
• Key factors in the decision
– Deference to Hasting’s educational judgment and that policy
meshed with its inclusive educational mission and program.
– All-comers policy was generally applicable, i.e., no choosing
between belief systems.
– CLS had other alternatives to engage in free speech and
association.
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2. Recent Supreme Court Decisions
• Takeaway
– The case supports the application of nondiscrimination policies
that apply to all groups on the same basis, but this is a very
fact-specific area and the type of forum is often determinative.
– For example, a classic “limited public forum” is created when
schools open their doors to community groups after hours;
arguably, a nondiscrimination policy for groups that only access
the facilities afterhours is less relevant to a school’s mission.
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2. Recent Supreme Court Decisions
E. Duryea, Pa. v. Guarnieri
Issue: If a government employee complains
to the government about a matter of purely
personal (i.e. not public) concern, does the
employee subsequently have a right to file a
retaliation claim under the First
Amendment?
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2. Recent Supreme Court Decisions
• Police chief in Duryea was fired by the Borough Council.
• Police chief filed a grievance and was reinstated with backpay.
• Upon return, the Council placed a number of restrictions on the
police chief in carrying out his duties.
• Police chief filed a lawsuit, claiming that the restrictions were
retaliation in violation of his First Amendment right to petition the
government.
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2. Recent Supreme Court Decisions
• Both the district court and the Third Circuit held that the police
chief could bring a retaliation lawsuit under the First Amendment.
• Both courts rejected the Council’s argument that the police
chief’s grievance was a private dispute between him and the
Council. The Council asserted that the First Amendment was only
implicated if the speech underlying the police chief’s grievance
was a matter of public concern.
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2. Recent Supreme Court Decisions
• The Supreme Court (8-1) overturned the lower courts.
• The holding was that public employees may only bring a
retaliation claim under the First Amendment if the
speech is related to a matter of public concern.
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2. Recent Supreme Court Decisions
• Key factors in the decision
– The Court reasoned that allowing a petition clause claim
against the government for private employment disputes could
seriously undermine the mission and effectiveness of
government bodies, such as school districts.
– The Court also reasoned that public employees already have a
number of legislative anti-retaliation protections.
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2. Recent Supreme Court Decisions
• Takeaway
• Under the Third Circuit’s decision, school employees would
have received constitutional protection for private
employment disputes.
• School employees already have “ample protections” against
retaliation.
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2. Recent Supreme Court Decisions
F. J.D.B v. North Carolina
Issue: Should the age of a child be considered
in determining whether he is in police custody
for the purpose of informing a Miranda
custody analysis?
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2. Recent Supreme Court Decisions
• Police stopped a 13-year-old boy when they saw him
near the site of a home break-in.
• When the child was seen at school with a digital camera
matching the description of one stolen at the break-in,
detectives went to the school to interrogate the child.
• The child was interrogated by police for some time
before being given a Miranda warning (i.e. “You have the
right to remain silent…”).
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2. Recent Supreme Court Decisions
• The child’s attorney argued that the fact the child was
young and in school was relevant in evaluating whether
the child was in “custody.”
– Police officers need only give a Miranda warning to those in
“custody.”
• The North Carolina Supreme Court held that a child’s
age was irrelevant in making the objective determination
of whether he was in police custody, and found that the
student was not in police “custody” while at school.
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2. Recent Supreme Court Decisions
• The Supreme Court (5-4) overturned the North Carolina
Supreme Court, finding that the child’s age was relevant
in determining whether he was in police custody.
– The court held that because the age of the child would affect
his reasonable belief regarding his freedom to leave the
interrogation, it should be considered part of the objective
determination of whether the child was in police custody.
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2. Recent Supreme Court Decisions
• Takeaway
– School administrators should be aware that lower courts will
now consider a student’s age in determining whether he or she
should have received a Miranda warning before being
interrogated at school by a police officer.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
A. Compton Unified School District v. Addison
B. Sherman v. Koch
C. Knox v. Service Employees International Union, Local 1000
D. Layshock v. Hermitage School District and J.S. v. Blue Mountain
School District
E.
Cases that the Supreme Court has declined to review:
•
Connecticut v. Duncan
•
Doe v. Silsbee Independent School District
•
Evans-Marshall v. Board of Education
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
A. Compton Unified School District v. Addison (petition
for cert pending)
Issue: Can parents of disabled children bring due
process hearings under the IDEA’s child-find
provision against school officials that were simply
negligent, or must there be some intentional
conduct on the part of the school officials?
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
• The case involves IDEA’s child-find provision.
• In her sophomore year, a student’s mental health counselor
recommended that the school evaluate the student for special
education services. The District made the judgment not to
evaluate her at that time.
• In the student’s junior year of high school, at her mother’s
request, the student was evaluated and identified as a disabled
student.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
• The parent initiated a due process hearing claiming that the
district had failed to identify the student under IDEA’s child-find
provision.
• The school district claimed, among other things, that it could not
be held liable under the child-find provision because it did not
take any intentional action to deny the student a free appropriate
public education.
• The administrative hearing officer determined that the district
knew or should have known of the disability and that it could be
liable under the child-find provision.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
• The district court and the Ninth Circuit affirmed the
hearing officer’s decision.
– The Ninth Circuit reasoned that the claim was “cognizable”
because, under the IDEA, petitioners may “present a complaint
with respect to any matter relating to the identification,
evaluation, or educational placement of the child.”
– A judge on the Ninth Circuit dissented, arguing that the IDEA’s
child-find provision only gives parents/students the right to
appeal intentional violations of the child-find provision.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
• The petition for review was filed with the Supreme Court in
January 2011.
• In April, the Supreme Court asked the Obama Administration to
offer its views on the merits of the case.
• The school district warns in its brief to the Court that, if the
decision is left to stand, “Claims for educational malpractice – not
cognizable in the context of nondisabled students – will now exist
for disabled students.”
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
B. Sherman v. Koch (petition for cert pending)
Issue: Does an Illinois law that allows teachers to
observe a moment of silence at the beginning of a
school day violate the Establishment Clause of the
First Amendment?
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
•
An Illinois law requires a “moment of silence” at the beginning
of the school day.
•
The law also permits students to conduct prayer during this time
as long as it is voluntary and consistent with the First
Amendment.
•
A parent of a student at Buffalo Grove High School challenged
the law as violating the Establishment Clause of the First
Amendment.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
• A federal district court held that the moment of silence law
violated the Establishment Clause and was unconstitutionally
vague.
• The Seventh Circuit Court of Appeals reversed, holding that the
law, among other things, had the secular purpose of “calming”
students at the beginning of the day.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
• The petition for Supreme Court review was filed in March 2011.
• Moment of silence laws have been upheld in some jurisdictions
but not others.
– Federal appellate courts have upheld moment of silence laws in
Georgia, Virginia, and Texas.
– The Third Circuit struck down New Jersey’s moment of silence
law because it did not have a secular purpose.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
C.
Knox v. Service Employees International Union,
Local 1000 (cert granted, June 27, 2011)
Did a union violate nonmembers’ First Amendment
rights by adopting a temporary, mid-term fee
increase without sending a notice explaining the
basis of the fee?
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
• A union representing California government
employees issued a notice to union and non-union
members in the summer about a fee increase for the
following year.
• Later in the year it approved a temporary dues
increase in order to create a “Political Fight Back
Fund” to combat anti-union measures on the
California Ballot. At this time, it did not issue a
second notice of a fee increase.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
• A group of nonmember employees sued the union, claiming
that the lack of a notice violated their First, Fifth and
Fourteenth amendment rights.
– Although unions can require non-union members to pay part of the
union’s costs, the Supreme Court, in case called Hudson, recognized
that collecting fees from non-members may violate their First
Amendment right not to support certain causes advocated by the unions.
– Hudson held that if a union (a) gives adequate notice of fees to
nonunion members, (b) allows an opportunity to object to the fees, and
(c) permits the nonmember to refuse to pay for “non chargeable”
expenses, which include expenditures on political campaigns and
ideological issues, the First Amendment rights of the non-members have
not been violated.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
• The Ninth Circuit Court of Appeals held that the second
notice was not required. It reasoned that:
– Unions are not constitutionally required to impose a fee
structure that accurately predicts its spending for the upcoming
year. Because the union based the fee structure on the previous
year’s expenditures, there will necessarily be some
inaccuracies due to fluctuations in expenditures.
– As long any payments made by nonmembers that exceed the
chargeable expenditures are accounted for in the fee schedule
of the next year, the payment of temporary fee increases
without notice does not violate Hudson.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
D. Layshock and Blue Mountain
– Issue: Can school districts suspend students for
off-campus speech on social media sites?
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
– In both cases, students received school suspensions after
creating MySpace pages mocking their principals on off-campus
computers.
– Both MySpace pages used school pictures of the principal, but
were not created or accessed with school computers.
– The MySpace profiles did not create a substantial and material
disruption at school.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
– Blue Mountain: The Blue Mountain panel held that the district
could punish the student for off-campus speech that was lewd
and vulgar under Bethel School District v. Fraser.
– Layshock: The Layshock panel held that the district could not
punish the student for off-campus speech that was lewd and
vulgar, and that the district otherwise could not punish the
student for the speech under Tinker v. Des Moines because
there was no substantial and material disruption at school.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
– The full Third Circuit decided to review the cases en
banc to resolve the split.
– The en banc courts both held that the district could
not regulate off-campus speech simply because it was
lewd and vulgar.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
– The courts also found that there was no substantial and
material disruption at school in either of these cases.
– The courts left open the question of whether and how
Tinker should apply to off-campus speech that causes a
material and substantial disruption at school.
– It is unclear whether the Supreme Court will take up the
issue of how districts can regulate off-campus speech at
this time.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
E. The Supreme Court also decided not to review – and
thus let stand – three other important decisions
•
Connecticut v. Duncan. The State of Connecticut had claimed
that, in violation of NCLB, ED did not adequately fund
additional testing requirements imposed in 2005 for students
with limited English proficiency and disabilities. The lower
courts did not reach the merits of Connecticut’s argument,
dismissing the case because Connecticut had not taken all of
the appropriate administrative steps prior to bringing suit.
–
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A similar 2008 case in the Sixth Circuit, School District of Pontiac v. ED, held,
in effect, that a number of school districts could not challenge NCLB as an
“unfunded mandate”.
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3. Cases on the Supreme Court's Radar in the
October 2011 Term and Beyond
•
Doe v. Silsbee Independent School District. Both lower courts had
dismissed the claim of a cheerleader who was removed from the team
after silently protesting a member of the basketball team who had
sexually assaulted her. The lower courts rejected the cheerleader’s
claims that she had a First Amendment right to protest.
•
Evans-Marshall v. Board of Education. A teacher claimed that her
termination for using controversial books and movies in her classroom
violated her First Amendment right to free speech. The Sixth Circuit
held that a teacher’s choice of books and movies to present in the
classroom constitutes speech for the purposes of the First Amendment,
and that the speech was “directed toward an issue of public concern”
because it was designed to educate students. Therefore, the court held
that the teacher had alleged enough facts to allow her First
Amendment claim to go to trial.
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4. Developments since the Supreme Court’s
Decision in PICS
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4. Post-PICS Developments
Brief Review of PICS
– The Seattle Plan - Open choice plan where each student
could choose to attend any of the ten high schools in the
city, if there is room available. The District had a multistep application process with several tiebreakers, one of
which was race.
– The Louisville Plan - Each student assigned to a “resides
area” based upon their residence. Student choice
promoted (magnet schools, optional programs, magnet
career academies) and transfers allowed to achieve
enrollments between 15% and 50% minority.
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4. Post-PICS Developments
• Chief Justice Roberts applied strict
scrutiny, which required the school
districts to show a compelling interest
and that their plans were narrowly
tailored to serve those interests.
• Court found that neither plan was
narrowly tailored.
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4. Post-PICS Developments
Justice Kennedy’s Concurrence
• Found that the school districts had
compelling interests in avoiding racial
isolation and providing the educational
benefits of racial and ethnic diversity.
• Agreed two plans before the Court were
not narrowly tailored.
• Suggested some uses of race might not
trigger strict scrutiny.
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4. Post-PICS Developments
• Justice Kennedy provided examples
of uses of race that might not trigger
strict scrutiny:
– Race-conscious school-siting decisions.
– Drawing attendance boundaries with an
awareness of racial and ethnic
demographics.
– Allocating special programs and
resources to promote diversity.
– Targeted recruitment of students
and/or faculty.
– Tracking data by race and ethnicity.
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4. Post-PICS Developments
• Since PICS was decided, four cases have analyzed Justice
Kennedy’s opinion.
–
Each of these four opinions have recognized that school
districts have latitude to consider race and ethnicity in student
assignment.
• Two other cases have considered PICS in other contexts.
• A decision out of the 5th Circuit applied a related Supreme
Court case – Grutter v. Bollinger.
• Developments in school districts across the country.
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4. Post-PICS Developments
A. Mark Twain Middle School, Brooklyn, NY
• In August 2008, the district court terminated the
desegregation order in Hart v. Community School
Board, which had required race-based criteria for
admission to a Brooklyn middle school.
• A parent of a child denied admission to the school
tried to intervene in the case to argue that the
desegregation order was unconstitutional under PICS.
• The court confirmed that PICS does not disturb wellsettled precedent that federal courts may order raceconscious measures to remedy deliberate
segregation.
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4. Post-PICS Developments
• The Hart court interpreted Justice Kennedy’s
opinion as the controlling opinion. It said:
– “The deciding opinion of Justice Kennedy . . . allows
for the use of race as one admission factor among
many others.”
– “The same considerations that permit race as one
factor among many that may be considered in college
and graduate schools under Grutter and Bakke should
be applied to grade schools where characteristics for
future success or failure are imprinted on students.”
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4. Post-PICS Developments
B. Alamance Burlington School System, NC
•
U.S. v. Alamance-Burlington Board of Educ. (2009) was a case
involving a request for unitary status, which the court granted.
•
In dicta, the district court said that:
–
Racial diversity is a compelling interest that the district “should”
continue to pursue, as per Justice Kennedy’s opinion from PICS.
–
The district “should” take other measures, such as consideration of
“socioeconomic factors and achievement levels,” to address racial
diversity.
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4. Post-PICS Developments
C. Madison, Wisconsin
• N.N. v. Madison Metropolitan School District (2009)
involved the issue of whether the school district could
be required to pay money damages for enforcing a state
policy that required the district to deny inter-district
transfers if it would create racial imbalance.
• District court opinion addressed PICS and found that:
– “Justice Kennedy emphasized that race may be an
appropriate part of a diversity plan when race is
considered ‘as one factor among many.’”
• District court found that the school district could not be
liable for money damages because the district was
“doing nothing more than implementing a state law
directive.”
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4. Post-PICS Developments
D. Lower Merion, PA
•
In redrawing attendance boundaries, the Lower
Merion School District considered a number of
factors, including the impact of the boundaries on
students from different racial and ethnic groups.
•
Plaintiffs challenged the consideration of race as
impermissible under PICS.
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4. Post-PICS Developments
• The district court applied strict scrutiny
because it found that race was a
“motivating factor” in the district’s
decision.
• The district court held that the district’s
use of race in redrawing its attendance
boundaries satisfied strict scrutiny.
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4. Post-PICS Developments
• Plaintiffs appealed the case to the Third
Circuit Court of Appeals, and the appeal
was argued in April 2011.
• The United States and the NAACP Legal
Defense Fund (LDF) filed friend of the
court briefs in support of the district.
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4. Post-PICS Developments
The United States filed a friend of the court brief arguing:
1. “Lower Merion’s school assignment plan must be analyzed under
Parents Involved (or PICS).”
2. “Parents Involved did not hold that “strict scrutiny applies whenever a
school district considers the racial impact of a school assignment plan.”
3. “Rather, as Justice Kennedy, who provided the critical vote to the
majority holding, recognized in his opinion concurring in part and
concurring in the judgment, a race-conscious school assignment plan is
not likely to demand strict scrutiny if it does not use individual racial
classifications to provide students the educational benefits of racially
diverse schools.”
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4. Post-PICS Developments
On the merits of the case, the United States argued:
4. “School officials considered race incidentally and in a nonindividualized way in an effort to promote diversity and reduce
racial isolation at HHS.”
5. “ Accordingly, strict scrutiny does not apply, and the Plan
satisfies constitutional standards.”
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4. Post-PICS Developments
LDF filed a friend of the court brief arguing:
1. Justice Kennedy’s opinion is the controlling opinion
from Parents Involved.
2. The district court erred in “its assumption that strict
scrutiny was automatically triggered by the School
District’s ‘mere consideration’ of neighborhood racial
demographics.”
3. “[C]onsideration of neighborhood racial demographics
at the aggregate level when drawing school attendance
zones” is “presumptively valid.”
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4. Post-PICS Developments
E. Los Angeles, CA
•
Case involved a challenge to Los Angeles
Unified School District’s 1981 desegregation
plan that used race as one factor.
•
The court held that PICS did not apply to the
judicially-approved desegregation plan.
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4. Post-PICS Developments
F. Lynn, Massachusetts
• Plan was upheld by district court and First
Circuit.
• Pre PICS, the Supreme Court denied certiorari.
• Plaintiffs in Comfort v. Lynn School Committee
(1st Cir. 2005), filed to re-open case following
Supreme Court decision.
• In March 2008, the district court denied that
motion.
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4. Post-PICS Developments
G. Fisher v. University of Texas
• Involved a challenge to the University of Texas
(“UT”) at Austin’s 2008 admission policy.
• Fifth Circuit’s opinion was the first by a federal
appellate court to address Grutter v. Bollinger
in the context of university of admissions.
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4. Post-PICS Developments
•
UT’s policy had three key parts
1. Top 10% Law
• The law “mandated that Texas high school
seniors in the top ten percent of their class
be automatically admitted to any Texas
state university.”
• The law accounted for 81% of the students
admitted to UT in 2008.
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4. Post-PICS Developments
2. Other applicants
•
www.hoganlovells.com
Applicants not admitted under the Top 10% Law compete for
admission based on scores on an Academic Index (“AI”) and a
Personal Achievement Index (“PAI”).
–
AI is based on class rank, test scores, and the rigor of high school
course curricula.
–
PAI is based on a review of admission essays and a whole-file
review that considers numerous factors including race.
97
4. Post-PICS Developments
3. Applicants not assigned to first-choice program/school.
• UT limits the number of Top 10% Law applicants admitted into certain
programs or schools.
• Affected applicants’ files are reviewed, assigned AIs and PAIs, and
students are placed in programs based on the scores.
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4. Post-PICS Developments
• Plaintiffs/appellants were students denied admission to
the UT-Austin Fall 2008 entering class claiming violation
of 14th Amendment and Title VI.
• The district court granted summary judgment, ruling
that UT’s admission policy stated a compelling interest
in seeking diversity and was narrowly tailored.
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4. Post-PICS Developments
• Plaintiffs appealed to the Fifth Circuit.
• The case applied a number of the principles
from the Supreme Court’s decision in
Grutter v. Bollinger and expanded on a
number of key aspects of Grutter.
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4. Post-PICS Developments
•
For example, Fisher expanded on the “compelling interest”
prong from Grutter:
–
Grutter held that universities and colleges have “a compelling interest
in attaining a diverse student body.”
–
Fifth Circuit: identified “at least three distinct educational objectives
served by the diversity.”
1. “Increased Perspectives.”
2. “Professionalism.”
3. “Civic Engagement.”
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4. Post-PICS Developments
• For example, Fisher expanded on “race-neutral alternatives” from
Grutter:
– Grutter held that narrow tailoring “require[s] serious, good faith
consideration of workable race-neutral alternatives that will achieve
the diversity the university seeks.”
– The Fifth Circuit held that:
•
The Top 10% Law “appears to succeed in its central purpose of increasing
minority enrollment” university wide, but not in classrooms and programs.
•
UT was not prohibited from employing race-conscious policies to address a lack
of diversity at the programmatic and classroom level.
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4. Post-PICS Developments
Implications of Fisher
– Federal appellate decision applicable
only in Texas and Louisiana.
– Facts involved university admissions
policy.
– Fisher has been appealed to an en banc
Fifth Circuit, which has yet to decide
whether to hear the case.
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4. Post-PICS Developments
H.
Coalition to Defend Affirmative Action v. Regents of
the University of Michigan
• Involved a challenge to a voter-initiated amendment to the
Michigan Constitution, which prohibited public colleges and
universities from giving preferential treatment to women
and minorities in admissions decisions.
• The District Court granted summary judgment to the
defendants, finding that the amendment did not violate the
Equal Protection Clause of the U.S. Constitution.
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4. Post-PICS Developments
• On appeal, the Sixth Circuit reversed the District Court
and granted summary judgment to the plaintiffs.
• The court held that the amendment would violate the
Equal Protection Clause if:
– The amendment had a “racial focus” by targeting a program
designed to benefit minorities; and
– The amendment reallocated political power in a way that
makes it more difficult for minorities to achieve their political
goals.
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4. Post-PICS Developments
• The Court of Appeals found that the amendment had a “racial
focus” because the affected affirmative action programs were
designed to help minorities.
• The court also held that the amendment reordered the political
process by making it more difficult to address minority interests
through the political process.
– Any person interested in developing more racially inclusive admissions
policies would have to campaign for an amendment to the Michigan
Constitution, which would be difficult and expensive.
– Others interested in making adjustments to admissions policies not affected
by the amendment would only have to lobby the admissions committees,
the Board of Directors, or the Regents in order to accomplish their goals.
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4. Post-PICS Developments
• Implications of Coalition to Defend Government Action
– The court made clear that the “mere repeal” of an affirmative
action policy does not lead to an Equal Protection issue.
– However, creating higher burdens on the implementation of
programs designed to help minorities may violate the Equal
Protection Clause.
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4. Post-PICS Developments
Developments in school districts across the country.
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4. Post-PICS Developments
• Wake County Public School System, North Carolina
• Ector County Independent School District, Texas
• Jefferson County Public Schools, Kentucky
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4. Post-PICS Developments
Wake County Public School System, North Carolina
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4. Post-PICS Developments
Washington Post, Jan. 12, 2011
“Republican school board in N.C.
backed by tea party abolishes
integration policy.”
http://www.washingtonpost.com/wp-dyn/content/article/2011/01/11/AR2011011107063.html
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4. Post-PICS Developments
“And as the board moves toward a system in
which students attend neighborhood schools,
some members are embracing the provocative
idea that concentrating poor children, who are
usually minorities, in a few schools could have
merits - logic that critics are blasting as a 21stcentury case for segregation.”
Washington Post, January 12, 2011
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4. Post-PICS Developments
• In a January 13, 2011 letter to the
Washington Post, U.S. Secretary of
Education Arne Duncan responded
to the Washington Post article.
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4. Post-PICS Developments
“America's strength has always been a
function of its diversity, so it is troubling
to see North Carolina's Wake County
School Board taking steps to reverse a
long-standing policy to promote racial
diversity in its schools. The board's
action has led to a complaint that has
prompted an investigation by our Office
for Civil Rights, but it should also prompt
a conversation among educators,
parents and students across America
about our core values.”
Washington Post, Letters to the Editor (Jan. 13, 2011)
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4. Post-PICS Developments
“In an increasingly diverse society
like ours, racial isolation is not a
positive outcome for children of any
color or background. School is
where children learn to appreciate,
respect and collaborate with people
different from themselves. I
respectfully urge school boards
across America to fully consider the
consequences before taking such
action. This is no time to go
backward.”
Washington Post, Letters to the Editor (Jan. 13, 2011)
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4. Post-PICS Developments
Wake County School Board Member Jon Tedesco’s response to
Secretary Duncan’s letter:
– "I'm disappointed because I'm so highly supportive of
[Secretary Duncan]," Tedesco said. "I'm disappointed that he
didn't reach out to us before making comments based on a
skewed media report."
•http://blogs.newsobserver.com/wakeed/fallout-over-arne-duncans-criticsm-of-wake-county-schools?page=1#ixzz1CvymGzyX
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4. Post-PICS Developments
• Wake has been considering its next steps
– New Superintendent Jon Tatta created a task
force to consider student assignment options.
– The Raleigh Chamber of Commerce and Wake
Education Partnership hired Dr. Michael Alves
to develop and recommend an assignment
model that factors in student achievement
along with stability, family choice and
proximity.
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4. Post-PICS Developments
“Wake reveals student assignment
proposals, seeks comments.”
http://www.newsobserver.com/2011/05/23/1219695/wake-reveals-student-assignment.html
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4. Post-PICS Developments
• “In the ‘green plan,’ the current system of assigning
students to a specific school based on address would
remain in place. But instead of busing students for
socioeconomic diversity, as the old assignment policy did,
some children from lower-performing neighborhoods
would be bused to more distant - but higher achieving —
schools based on academic reasons.”
http://www.newsobserver.com/2011/05/23/1219695/wake-reveals-student-assignment.html#ixzz1OE4YjGe3
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4. Post-PICS Developments
• “Under the proposed ‘blue plan,’ families would no
longer be assigned to a specific school. They’d choose
from a list of four to six elementary schools, based on
what’s closest to their home. To promote diversity, at
least one choice would be an academically highachieving school that may not be close to where the
student lives.”
http://www.newsobserver.com/2011/05/23/1219695/wake-reveals-student-assignment.html#ixzz1OE4gj9ts
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4. Post-PICS Developments
“Superintendent Tony Tata told the board [of education] on
Tuesday [June 21] he intends to present a plan to them
between September and October so they can vote on it.
He says it will combine the best of both the green and blue
plans that were unveiled earlier.
If the board OK’s the plan, school selection for families would
begin in December for the 2012-13 school year.”
http://www2.nbc17.com/news/2011/jun/21/wake-schools-moving-forward-new-student-assignment-ar-1141881/
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4. Post-PICS Developments
July 8: “State NAACP leaders are warning that they
might take further action against the Wake County
school system because of concerns about a new
student assignment plan.”
http://www.newsobserver.com/2011/07/08/1328945/tata-barber-meet-naacp-ponders.html#ixzz1RtyQvQOd
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4. Post-PICS Developments
Ector County, TX
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4. Post-PICS Developments
“[Ector County] School board
in Texas approves definition
of diversity that goes beyond
race and ethnicity.”
http://legalclips.nsba.org/?p=6139
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4. Post-PICS Developments
• “In recent weeks, [Superintendent]
Sanchez has been working with the U.S.
Department of Education’s Office for
Civil Rights (OCR) in Washington,
D.C. At the same time, OCR sent three
attorneys and a deputy assistant
education secretary to Ector County to
assist with crafting the plan.”
http://legalclips.nsba.org/?p=6139
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4. Post-PICS Developments
Ector’s definition of diversity:
• “Diversity in Ector County ISD is a reflection of the
complexity of humanity. Ector County ISD defines
diversity broadly by including giftedness, socioeconomics,
primary language, special learning needs and race in
recognition of humanity’s complexity.”
http://www.ectorcountyisd.org/ecisd/lib/ecisd/ECISD_Student_Assignment_Plan_Approved_4.27.11.doc
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4. Post-PICS Developments
• The Ector plan includes a number of “diversity factors.”
–
–
–
–
Economically Disadvantaged as defined by the Federal Government.
Limited English Proficient as defined by the Texas Education Agency.
Special Education as defined by the IDEA.
Gifted and Talented as defined by the Texas Education Agency State Plan for
Giftedness.
– White as defined by the Texas Education Agency.
– Hispanic as defined by the Texas Education Agency.
– Underrepresented Groups: African-American; Asian Pacific Islander;
American-Indian/Alaskan Native.
http://www.ectorcountyisd.org/ecisd/lib/ecisd/ECISD_Student_Assignment_Plan_Approved_4.27.11.doc
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4. Post-PICS Developments
• For each diversity factor, Ector has adopted diversity targets
“needed to secure Ector County ISD’s definition of diversity and
avoid racial isolation or isolation on the premise of a unique nonrace-based characteristic or economic circumstance.”
– “To promote diversity and avoid isolation, including racial isolation, by
achieving critical mass, the district will set lower and upper bounds for each
factor. The lower bound will delineate the target number of students
necessary for each factor to actualize the educational benefits of diversity.
In regard to the racial factors, the upper bound will prevent racial isolation.
The upper bound will also delineate the number of students in each factor,
which once exceeded, will detract from the attainment of critical mass in
other factors. Specifically, these upper bounds are necessary to ensure that
concentrations of students of one race at some schools do not prevent
achieving critical mass for other races at that school or the same race at
other schools. The rest of this document will use the term “critical mass” to
refer to the level of representation of groups needed to obtain the
educational benefits of achieving diversity and avoiding isolation.”
http://www.ectorcountyisd.org/ecisd/lib/ecisd/ECISD_Student_Assignment_Plan_Approved_4.27.11.doc
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4. Post-PICS Developments
Louisville, KY
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4. Post-PICS Developments
Washington Post, September 20, 2010
“Three years after landmark court
decision, Louisville still struggles with
school desegregation.”
http://www.washingtonpost.com/wp-dyn/content/article/2010/09/19/AR2010091904973.html
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4. Post-PICS Developments
“Louisville, along with a number of other like-minded
systems across the country, is betting that using
socioeconomic factors, not just race, will help maintain
diverse schools and meet the Supreme Court's
requirements.”
http://www.washingtonpost.com/wp-dyn/content/article/2010/09/19/AR2010091904973.html
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4. Post-PICS Developments
“The final product, which integrates
schools based on socioeconomic
factors rather than on race alone, has
proven to be more complex and costly
than the previous system. Long bus
rides and complaints from a vocal
minority of parents have threatened
popular support of the plan. The
school board has delayed full
implementation. The legislature is
contemplating whether to guarantee
parents a spot in their neighborhood
schools.”
http://www.washingtonpost.com/wp-dyn/content/article/2010/09/19/AR2010091904973.html
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4. Post-PICS Developments
USA Today, September 30, 2010:
“In Louisville, a new turn in school
integration.”
http://www.usatoday.com/news/education/2010-09-30-1Alouisville30_CV_N.htm
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True or False #1
In assigning students to school,
it is never permissible to
consider race or ethnicity.
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True or False #2
It is clearly established that the police need a warrant when
interviewing a student on school grounds.
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True or False #3
As in the fable – where the cat
got burned when the monkey
convinced the cat to do the
dirty work and pull the
chestnuts out of the burning
fire – a school district can be
held liable in a discrimination
lawsuit when a supervisor’s
bias causes another school
official to take an adverse
employment action based on
that bias.
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136
True or False #4
School officials can only be held liable for their intentional
violations of the IDEA, not for negligent conduct.
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Maree Sneed
Partner
Maree.sneed@hoganlovells.com
Hogan Lovells U.S. LLP
555 13th St. NW
Washington, DC 20002
(202) 637-6416
www.hoganlovells.com
Chris Lott
Associate
Christopher.lott @hoganlovells.com
Hogan Lovells U.S. LLP
555 13th St. NW
Washington, DC 20002
(202) 637-6416
138