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Published in Print: November 19, 2003, as Justices Decline Case on Employee's School Choice

Justices Decline Case on Employee's School Choice

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A Texas superintendent came away empty-handed last week when the U.S. Supreme Court declined to review a federal appeals court decision holding that he should have known better than to tell a teacher to enroll her children in public school if she wanted to be considered for promotion to an administrative post.

When Karen Jo Barrow expressed interest five years ago in a promotion to an assistant principal's job at the public middle school in Greenville, Texas, the superintendent told her that she would need to enroll her sons in district schools to be considered, according to court papers.

Ms. Barrow decided to keep her sons in the private Christian school they attended, and she sued the 5,200-student district and then-Superintendent Herman Smith, alleging violations of her constitutional right to direct the education of her children.

A U.S. District Court judge granted summary judgment to Mr. Smith, ruling that he had immunity from the suit. But a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, disagreed in a unanimous ruling in June. ("Court Nixes Public School Rule for Administrators' Children," Law Update, June 11, 2003.)

School officials can penalize public school employees for sending their children to private schools only if those enrollment choices "substantially and materially interfere with the school district's operations and effectiveness," the appeals court held. No such harm was shown by Mr. Smith, the court found.

"Smith may be correct that the public tends to be more attuned to the personal educational decisions of the school district's administrative employees than of its other employees," the 5th Circuit court said. Nonetheless, it held, "no reasonable official could conclude that the application of the school district's public school patronage policy to Barrow was constitutional."

Case Not Over

The Supreme Court's decision on Nov. 10 not to take up the former superintendent's appeal in Smith v. Barrow (Case No. 03-499) did not spell an end to the case, because the district court ruling turned on the question of Mr. Smith's immunity and not on the merits of Ms. Barrow's claims.

Ms. Barrow said in an interview last week that the parties were scheduled to meet in Dallas next month with the federal district judge handling the case.

"If we can't settle, then it will go to trial," she said.

In their Supreme Court appeal, lawyers for Mr. Smith argued that legal precedents left school administrators without clear guidance on the legality of requiring school employees to enroll their children in public schools. That is especially the case for those in administrative posts, they argued, noting that relevant rulings in the 5th Circuit had centered on other kinds of workers, including teachers, a cafeteria manager, and a secretary.

"While Ms. Barrow has a right to send her child to the school of her choice, she does not have a right to demand administrative-level public employment in the school system she rejects for her own children," the brief for Mr. Smith argued.

Ms. Barrow said her children's education should be kept separate from questions about her job.

"I'm the one who does the job, so how can he even enter them into the picture?" she asked, referring to Mr. Smith.

Both parties have moved on professionally, with Ms. Barrow becoming an assistant principal at Greenville High School in 2001 after Mr. Smith departed to become the superintendent of the Bryan, Texas, public schools.

Through an aide, Mr. Smith referred questions to his lawyers, who could not be reached.

Age-Bias Case Argued

Meanwhile, the Supreme Court heard oral arguments last week in General Dynamics Land Systems Inc. v. Cline (No. 02-1080), a employment case that some education groups are watching. The case involves the Age Discrimination in Employment Act, a federal law that prohibits workplace discrimination against workers who are at least 40 years old.

A group of workers brought suit alleging violations of the law after the defense contractor eliminated retiree health benefits for employees who were under 50 at the time. The plaintiffs were all over 40 but under 50, so they claimed that the benefit change illegally discriminated against them on the basis of their age. They lost in a federal district court but won in the U.S. Court of Appeals for the 6th Circuit, in Cincinnati.

The company contends that Congress intended the law to protect older workers who receive less favorable treatment than that of their younger colleagues, and not the other way around.

The National Education Association has filed a friend-of-the-court brief in the case, arguing that if the workers' federal appeals victory stands, benefits packages routinely offered by school districts to older workers could be jeopardized.

Vol. 23, Issue 12, Pages 23,25

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