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New Term Likely To Leave Mark on Affirmative Action

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Washington

The U.S. Supreme Court term starting this week could leave a significant imprint on affirmative action and related school policies.

In addition to weighing in on a Piscataway, N.J., schools case involving a race-based teacher layoff, the court will consider this fall whether to review California's Proposition 209, the ballot measure that bars affirmative action in public education, employment, and contracting.

In Coalition for Economic Equity v. Wilson (Case No. 97-369), civil rights groups are asking the justices to strike down the measure, which bars the state and local governments from granting preferential treatment based on race, sex, color, ethnicity, or national origin.

California Superintendent of Public Instruction Delaine Eastin has filed a brief urging the high court to take the case, saying Proposition 209 has cast doubt on the legality of voluntary desegregation and programs aimed at helping minorities and girls. "The issue of whether a state can eliminate all public education programs targeting racial minorities, including programs designed to eliminate the effects of segregation, is one of exceptional importance," Ms. Eastin wrote.

So far, the high court has granted review to only a handful of cases of interest to educators for the term that began Oct. 6. Besides the Piscataway case, the justices just last week agreed to hear an appeal from Texas on whether the state must get federal approval under the Voting Rights Act of 1965 before assigning teams to oversee troubled school districts. Educators are also following other cases that could result in significant rulings on employment and local government law. ("Court Accepts Voting-Rights Case Involving School Takeover Law," in This Week's News.)

Harassment, Immunity

In Oncale v. Sundowner Offshore Services Inc.(No. 96-568), the court will examine whether Title VII of the Civil Rights Act of 1964, the main federal employment-discrimination law, covers instances of alleged sex discrimination between workers of the same sex. The case involves alleged physical and verbal harassment of an oil-rig worker by his male colleagues.

Besides school districts' interest in Title VII developments, the dispute's outcome could have an impact on the growing number of cases involving student sexual harassment of other students. That is because the Department of Education takes the position that the body of law developed under Title VII sets the framework for student-harassment lawsuits filed under Title IX of the Education Amendments of 1972, which bars discrimination based on sex in schools receiving federal funds.

Gwendolyn H. Gregory, the deputy general counsel of the National School Boards Association in Alexandria, Va., noted that the Education Department's office for civil rights contends that same-sex harassment in schools is a potential violation under Title IX. "That turns all kinds of harassment into a Title IX violation," said Ms. Gregory, whose group disagrees with the OCR's interpretation.

The OCR does not argue that Title IX prohibits discrimination based on sexual orientation. In Oncale, the high court will review a federal appeals court ruling that categorically rejected the idea of same-sex harassment under Title VII.

The NSBA is also following a case from Massachusetts that will determine whether local officeholders are entitled to absolute immunity from federal civil rights lawsuits for their legislative actions. Bogan v. Scott-Harris (No. 96-1569) involves a lawsuit against the Fall River, Mass., City Council over a budget vote that eliminated an administrator's job. A federal appeals court said individual local legislators cannot be sued in federal court over acts that are considered legislative, such as the adoption of a budget.

Ms. Gregory said that when school board members vote on school policies, "that is in the nature of a legislative act."

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