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Spotlight on New Justice as Court Opens Term

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Washington--The U.S. Supreme Court opens its 1988-89 term this week facing a host of issues that have divided it in the past and with a new associate justice who may cast the crucial swing vote on those matters.

The newest member of the Court, Anthony M. Kennedy, replaced Lewis F. Powell Jr., who frequently staked out a middle ground between the panel's conservative and liberal blocs. But Justice Kennedy's ideological influence is as yet uncertain, because he joined the Court last February after nearly all of the most controversial cases before it had been argued.

Justice Kennedy will get an opportunity to carve out his role in several cases with implications for education that the Court has already agreed to hear. Those cases involve issues such as the breadth of federal civil-rights laws, affirmative action, and drug-testing requirements for employees.

He will also have a say in deciding which of the several school-related cases now on file with the Court will be accepted for review or allowed to stand. In an annual opening-day ritual, the Court this week will delete hundreds of cases from its docket.

Issues raised by those suits include states' responsibility to pay for school desegregation, the legality of the Environmental Protection Agency's rules for the removal of asbestos from schools, and the payment of fees to "lay advocates" in special-education disputes.

The following are summaries of several major school-related cases that the Court has already agreed to review:

Civil rights. On Oct. 12, the Justices will hear a second round of arguments in Patterson v. McLean Credit Union (Case No. 87-107), a case that could result in the reversal of a 1976 ruling that allows minorities to sue private schools that deny them admission on the basis of their race.

In its decision 12 years ago in Runyon v. McCrary, the Court held 7 to 2 that two Virginia private schools violated black families' rights under Section 1981 of Title 42 of the U.S. Code by refusing to enroll their children. The Reconstruction-era civil-rights law states that all persons have the same right "to make and enforce contracts ... as is enjoyed by white citizens."

The Patterson case, which was argued before the Court last February, originally questioned whether Section 1981 protected minority workers against racial harassment on the job. The Justices returned the case to their docket in May and directed the lawyers to file new briefs addressing a more fundamental issue--namely, whether they erred when they ruled in Runyon that the Congress intended Section 1981 to apply to private as well as governmental acts of racial discrimination.

In a brief filed with the Court this summer, the naacp Legal Defense and Educational Fund Inc., which represents the black credit-union worker who filed the job-bias suit, argues that Section 1981 has "as its central purpose the guarantee of the right to contract free of racial discrimination by private persons."

The brief notes that the civil-rights law has "played a pivotal role in the national effort to eliminate" racial discrimination in private-school admissions.

"The application of Section 1981 to private schools is essential not only to guarantee equal access to the educational opportunities provided by such schools, but also to prevent private segregation academies from undermining the desegregation process in public schools," it argues.

Lawyers for the credit union, however, have countered that Section 1981's legislative history makes it plain that the law was "specifically intended" to apply only to governmental acts of discrimination.

"No cause of action was provided [by the Congress] for private acts of discrimination," they write in their brief. "If a federal cause of action is to be established, it is for Congress and not the Court to do so."

The lawyers also argue that Title VII of the Civil Rights Act of 1964, which prohibits racial discrimination in employment, and similar state laws would continue to protect workers even if the Runyon decision is overturned. In education and other areas outside of employment, they continue, "other [state] constitutions and statutes grant appropriate redress for discriminatory acts."

Drug testing. The Court has agreed to hear arguments in two cases that question whether government agencies' drug-testing policies violate employees' Fourth Amendment right to be free from unreasonable searches and seizures.

In the first case, National Treasury Employees Union v. Von Raab (No. 86-1879), a federal appellate court upheld the constitutionality of the U.S. Customs Service's requirement that employees seeking promotions to "key" positions submit urine samples to be tested for illegal drug use.

In contrast, the appeals court that heard the second case, Burnley v. Railway Labor Executives' Association (No. 87-1555), struck down a U.S. Transportation Department rule requiring railroad workers involved in accidents to submit to urine or blood testing.

The Justices also have been asked to review the constitutionality of the District of Columbia's drug-testing policy for school-transportation workers.

In that case, McKenzie v. Jones (No. 87-1706), a federal appeals court held last year that the school district could test its bus drivers and aides, but could use only a test that can positively determine impairment while on the job.

Lawyers for the workers who challenged the policy claimed the decision as a victory, noting that no such test exists.

Child abuse. The Justices have agreed to review lower-court rulings that a Wisconsin child-protection agency cannot be held liable for damages under the 14th Amendment and a related civil-rights law for failing to intervene when a child is known to be in danger of serious physical abuse by a parent.

The Court's decision in the case, DeShaney v. Winnebago County Department of Social Services (No. 87-154), could have implications for teachers and school administrators who fail to report suspected cases of abuse to the police or child-welfare agencies.

The DeShaney case was filed by a divorced mother on behalf of her 9-year-old son, who was beaten so severely by his father that he was permanently brain-damaged and will be institutionalized for life.

In papers filed with the Court, the mother claims that the social-service agency was aware that the boy was being physically abused but failed to take steps to protect him. The agency's negligence, she argues, deprived her son of "liberty" under the 14th Amendment's due-process clause. The mother is seeking to collect damages from the department under Section 1983 of the Civil Rights Act of 1971.

Affirmative action. In an important new test of affirmative action, the Court has agreed to review a suit involving a plan in Birmingham, Ala., to promote more black firefighters.

At issue in the three cases, Martin v. Wilks, Personnel Office of Jefferson County v. Wilks, and Arrington v. Wilks (Nos. 87-1614, 87-1639, and 87-1668), which have been consolidated for argument, is whether a court-approved agreement between public officials and minority groups may be challenged by white employees who claim that the plan will victimize them.

Last December, a federal appellate court ruled that a lower court must allow a group of white firefighters to challenge the plan. "The policy of encouraging voluntary affirmative-action plans," it said, "must yield to the policy against requiring third parties to submit to bargains in which their interests were either ignored or sacrificed."

Taxation. On Oct. 12, the Court will hear arguments in Goldberg v. Sweet (No. 87-826), a case that has significant financial implications for Illinois public schools.

The suit involves the constitutionality of the state's 5 percent tax on all interstate telephone calls. State courts have upheld the tax, rejecting arguments by two taxpayers and gte-Sprint that it violates the commerce clause of the U.S. Constitution.

Revenues from the tax, which were estimated at $142 million as of July 1987 and have continued to accumulate at a rate of about $10 million a month, are earmarked for public education. In September 1987, the state supreme court allowed Gov. James R. Thompson to release the disputed funds to school districts.

If the state loses the case, it will have to return the money to its taxpayers.

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