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Published in Print: September 26, 2001, as Court's New Term May Include Cleveland Voucher Case

Court's New Term May Include Cleveland Voucher Case

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While the White House and Congress have become immersed in terrorism-related issues, the central agenda of one branch of the federal government has not been altered by the events of Sept. 11: the U.S. Supreme Court.

Kenneth W. Starr, formerly the Whitewater independent counsel and now in private appellate practice, discusses the U.S. Supreme Court's coming term at a National Press Club briefing Sept. 18.
—Allison Shelley/Education Week

The justices return to the bench next week with a docket that includes several cases of interest to educators, including a closely watched case calling on the high court to interpret the federal law guaranteeing families that students' education records will remain private.

Even before the formal Oct. 1 opening of the court's new term, the justices were scheduled to meet privately this week to consider the nearly 2,000 appeals that had piled up over their summer recess. Among the cases on that list is an appeal of a ruling that struck down the Cleveland voucher program because of its inclusion of religious schools. Many legal observers were expecting the court to decide as soon as this week to add that case to the docket for the 2001-02 term.

The Bush administration in June filed a brief urging the Supreme Court to grant review of the case and to uphold the constitutionality of the publicly financed tuition vouchers.

"The fact that the voice of the United States has been raised at this point enhances" the likelihood that the court will accept the voucher case, said Kenneth W. Starr, who helped the state of Ohio write its petition asking the high court to review the program's constitutionality. Mr. Starr, a former U.S. solicitor general best known as the independent counsel who investigated President Clinton, now specializes in appellate cases as a lawyer in private practice.

On Schedule

Just as at most other federal buildings here, security at the Supreme Court tightened in the wake of the World Trade Center and the Pentagon attacks. But no delay in the scheduled start of the court term is expected.

However, Solicitor General Theodore B. Olson, who oversees the presentation of the Bush administration's legal arguments to the justices, lost his wife in one of the attacks. Barbara Olson was a passenger on the hijacked jet that crashed into the Pentagon. Mr. Olson, who successfully argued on behalf of President Bush in last year's Florida election case in the Supreme Court, plans to stay in the job.

Mr. Olson recently submitted the administration's position in the one school-related case on the court's docket so far. In Owasso Independent School District v. Falvo (Case No. 00-1073), the court must decide whether a federal law prohibits the practice of letting students grade one another's classwork.

In a brief filed late last month, Mr. Olson argues that the Family Educational Rights and Privacy Act, a 1974 federal law also known as FERPA or the Buckley Amendment, does not prohibit such practices.

"Education records," as the term is used in FERPA, refers to materials that are preserved by an educational agency, the brief argues, and does not include "student work that is created, used, or kept in the classroom and is not made part of a student's institutional record."

The appeal stems from a lawsuit filed against the 6,700-student Owasso, Okla., school district by a mother, Kristja J. Falvo, who complained about the schools' practice of having students grade classmates' work and call out the marks. Last year, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled unanimously that the grading practices violated the privacy law.

The ruling aroused concern among teachers' unions and other education groups, which believe that a number of common classroom practices could bring legal trouble if the 10th Circuit's interpretation stands. The Supreme Court granted the Owasso district's appeal and will likely hear arguments in the case early next year.

Protecting Children

Several other cases accepted by the court involve issues of interest to educators: protecting children from inappropriate material on the Internet, affirmative action in government grants, and the definition of a disability under the Americans with Disabilities Act.

In Ashcroft v. American Civil Liberties Union (No. 00-1293), the court will consider a 1998 act of Congress designed to protect children from pornography on the Internet.

The Child Online Protection Act, which Congress enacted after its first major attempt to regulate the Internet was struck down by the high court in 1997, makes it illegal for commercial sites on the World Wide Web to provide children under 17 with sexually explicit material that exceeds "contemporary community standards."

Challenged by the ACLU and other groups, the law has not been enforced. The U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, blocked the law last year and ruled that the community-standards test was inappropriate for Web communications.

The Bush administration, citing the wide availability of pornography on the Web and its potential harm to minors, has urged the high court to uphold the law.

"In the privacy of their homes or those of friends, unsupervised minors can, with the click of a mouse, visit one pornographic site after another," says a brief filed in July by Solicitor General Olson.

The 1998 statute should not be confused with a 2000 law called the Children's Internet Protection Act. The more recent law requires schools and other recipients of federal technology funds to adopt Internet-safety policies that include the installation of filtering software to block out obscenity and child pornography.

On another front, the appeal in Adarand Constructors Inc. v. Mineta (No. 00-730) grows out of a lengthy court battle over provisions in federal highway programs to aid minority and disadvantaged contractors. The high court, in the 1989 case of City of Richmond v. J.A. Croson Co. made it more difficult for states and local governments to take race and ethnicity into consideration in their contracting programs.

The court's eventual ruling is likely to provide important clues about where it stands on race-conscious government action, which in turn could have an impact on the several cases now moving through the courts that involve the consideration of race in college-admissions decisions.

In two cases with potential implications for school districts as employers, the court will decide if a worker with a repetitive-stress injury qualifies as disabled under the ADA, and will determine whether an employer's desire to accommodate an employee with disabilities can supersede an employee- seniority system. Those cases are Toyota Motor Manufacturing, Kentucky v. Williams (No. 00-1089) and US Airways Inc. v. Barnett (No. 00-1250).

Besides the Cleveland voucher case, several appeals pending at the court involve other important education issues. Among the matters raised in the appeals are desegregation, drug testing of students participating in extracurricular activities, and Virginia's minute-of-silence law.

Mr. Starr observed last week that many Supreme Court terms have begun with a relatively light docket, only to have a blockbuster case such as last year's Bush v. Gore come along during the term.

"What starts out as a quiet term frequently erupts," he said.

Vol. 21, Issue 4, Pages 25-26

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