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Published in Print: October 2, 2002, as Following Busy Term, No Education Disputes Yet on Court's Docket

Following Busy Term, No Education Disputes Yet on Court's Docket

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After a blockbuster 2001-02 U.S. Supreme Court term involving such hot-button issues as private school vouchers, drug testing in extracurricular activities, and student privacy, the new court term that begins next week has nary an education case on the docket.

For More Info
Copies of "From Desegregation to Diversity: A School District's Self Assessment Guide on Race, Student Assignment, and the Law," can be ordered for $16 from the National School Boards Association.

But that could change in a hurry. This week, the justices were to meet privately to decide which, if any, of the more than 2,000 appeals that piled up over the summer were worthy of being added to their schedule for full review. At this point last year, the court had accepted only one of the four major education cases it ended up deciding last term but it was widely and correctly assumed that another—the landmark vouchers case—would soon make the list.

Among the pending appeals from over the summer are at least a dozen education cases. They involve such issues as the right of teachers to speak about public issues in their classrooms and the legal remedies available to school custodians who are forced to work with asbestos-laden floor tiles.

And sometime later this fall, the high court is likely to decide whether to grant review of a high-profile affirmative action case from the University of Michigan. Any Supreme Court decision on the consideration of race in school admissions would reverberate throughout the nation's colleges and precollegiate schools. Many legal experts expect the justices to hear Grutter v. Bollinger (Case No. 02-241), which involves the University of Michigan's law school.

In May, the full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 5-4 to uphold the law school's consideration of race in the admissions process, a factor officials say they include to promote racial diversity in enrollment.

The majority said the Supreme Court's fractured 1978 ruling in Regents of the University of California v. Bakke, which upheld the consideration of race as one factor among many in admissions decisions, was still the law of the land on affirmative action. The 6th Circuit court has not yet issued its ruling on a separate appeal regarding undergraduate admissions at the University of Michigan.

Barbara Grutter, the white student who was denied admission to the university's law school, has asked the Supreme Court to strike down race- conscious admissions as a violation of the 14th Amendment's equal-protection clause.

"At the most fundamental level the question [this case] raises is whether our nation's principles of equal protection and nondiscrimination mean the same thing for all races," argues her appeal, which is backed by the Center for Individual Rights, a legal-advocacy group in Washington.

The Supreme Court has given the university a mid-October deadline for responding to the appeal. The Bush administration is likely to weigh in on Ms. Grutter's side.

A Chilly Reception

David Cole, a professor at Georgetown University Law Center here, said that while many legal experts expect affirmative action to get a chilly reception from the high court's conservative majority, he "optimistically" thinks the law school's policy could be upheld.

"The justices come from, and value their relationships with, these elite institutions that favor affirmative action," he said.

Alexander E. Dreier, a lawyer with the Washington firm of Hogan & Hartson, said that if the justices accept the University of Michigan case for review, school districts should pay attention.

"The legal issue the Grutter case would tee up for the Supreme Court is whether the goal of diversity can satisfy the very tough 'strict scrutiny' standard," he said at a Sept. 24 school law forum sponsored by the National School Boards Association. "If the court decides to hear this case, it will also have important implications for primary and secondary schools."

Many districts use race-conscious policies for assigning students to magnet schools and other educational programs, and such policies have been under attack in the courts. The NSBA last week released a handbook for K-12 schools on the use of race in student assignments, called "From Desegregation to Diversity."

Vol. 22, Issue 5, Page 26

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