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Justice O’Connor Played Pivotal Role in Education Cases

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Justice Sandra Day O’Connor, whose retirement from the U.S. Supreme Court was announced July 1, has exerted a strong influence in numerous decisions affecting public education over the past 24 years.

Justice O’Connor, 75, the first woman on the nation’s highest court, has been the swing vote who completed the majorities on major decisions on private school vouchers, religion in the public schools, affirmative action in college admissions, and sex discrimination in education.

Though viewed variously as a moderate or a conservative, she was renowned for crafting subtle legal opinions that broadened the middle ground on divisive issues.

"It’s a tremendous loss for the nation—it may be the end of moderation on the court," said Charles C. Haynes, a senior scholar at the Arlington, Va., office of the Nashville, Tenn.-based First Amendment Center, a nonprofit organization that advocates protection of First Amendment rights. "She was, in my view, a thoughtful, wise, and careful voice of moderation."

Mr. Haynes noted that though the associate justice was criticized over the years for "parsing each case and not offering enough of a broad vision, I think her broad vision was how are we going to live and work together across our differences," he said. "She helped us to do that by taking these issues case by case."

Julie Underwood, the general counsel of the National School Boards Association, agreed, and noted that a proof of her influence is that, by her count over the past six years, Justice O’Connor was part of more Supreme Court majorities than any other justice.

Clint Bolick, the president and general counsel of the Alliance for School Choice, a Phoenix-based organization that pushes for school voucher programs nationally, said he agreed with the assessment of Justice O’Connor as a "consensus builder." But he said she was also principled with regard to federalism and liberty. "Generally, she sided with the state sovereignty over federal power, and with the individual over government power of any type," Mr. Bolick said.

Among the key cases related to education in which Justice O’Connor was the swing vote:

Zelman v. Simmons-Harris. Justice O’Connor provided the swing vote in the 2002 decision that upheld the inclusion of religious schools for the state of Ohio’s private school voucher program for Cleveland children. "The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are religious, or most recipients choose to use the aid at a religious school," she wrote in the majority opinion.

Jackson v. Birmingham Board of Education. In March 2005, she wrote the majority opinion in a 5-4 ruling that a high school girls’ basketball coach could sue his school district for allegedly retaliating against him after he complained that his female athletes were treated unfairly compared with the boys’ basketball team.

Grutter v. Bollinger and Gratz v. Bollinger. In a pair of cases dealing with the University of Michigan’s consideration of race in admissions to its law school and undergraduate program, decided in July 2003, Justice O’Connor wrote the majority opinion in Grutter and joined the majority in Gratz, which together upheld the consideration of race in higher education admissions as long as the process involves individualized review of applicants.

Davis v. Monroe County Board of Education and Gebser v. Lago Vista Independent School District. Justice O’Connor was the author of the majority opinions in two 5-4 decisions, one in 1999, the other in 1998, on how schools should handle sexual harassment of students under Title IX of the Education Amendments of 1972. In Gebser, her opinion laid out for school districts general guidance on how to avoid liability for sex harassment of students by teachers under the federal statute that prohibits sex discrimination in schools that receive federal funds. The court’s more conservative members joined her in that opinion. The next year, in Davis, she voted with the court’s more liberal members and wrote a decision that said districts could be held liable for student-on-student harassment.

Justice O’Connor was not in the majority in all cases, of course. In 1995, in Vernonia School District v. Acton, she wrote a harsh dissent, arguing that drug testing of students violates the Fourth Amendment guarantee against unreasonable searches. "It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis," she wrote, referring to growing concerns about drug abuse.

In a brief resignation letter to President Bush, Justice O’Connor said she would step down as soon as her replacement was confirmed.

The announcement immediately electrified the public debate over the future of the court, which has centered on speculation that Chief Justice William H. Rehnquist, 80, who is battling thyroid cancer, may retire this summer. Advocacy groups on the right and the left have long prepared to battle over the next court appointment.

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