Justice Robert H. Jackson famously warned in 1948 that the U.S. Supreme Court should not become “a super board of education for every school district in the nation.”
Those words came in his concurrence in McCollum v. Board of Education of School District No. 71, a decision striking down release time for religious instruction in public school classrooms. Justice Jackson, who died just months after the 1954 ruling in Brown v. Board of Education of Topeka, did not live to see decades of deepening—and in some quarters welcomed—high court involvement in questions of desegregation, school prayer, student and teacher speech, discipline, student searches, sexual harassment, and special education.
But more recently, something unexpected has been happening—or not happening—at the court, which opens its 2014-15 term next week. Over the past five years, the justices have not taken up a single case directly involving a school district or local school officials, either as the party bringing an appeal to the court or as the respondent.
The court’s June 2009 ruling in Safford Unified School District v. Redding was the last such case. It held that a search by school personnel of a student’s undergarments for prescription painkillers violated the Fourth Amendment.
Although the court continues to decide nonschool cases that hold some significance for K-12 education, one would have to go back before the court’s landmark decision in Brown to find a comparable five- year period in which the justices heard no school cases.
From the 1954-55 term—the one just after the first Brown case, overturning school segregation—through the 2008-09 term, the high court averaged about two public school cases per term, and about 11 per five-year block, with the exception of the most recent drought.
Those figures are based on Education Week’s own analysis and focus on cases involving school districts or local public school officials. The analysis excludes cases involving higher education, those exclusively involving private schools, and those about state aid to religious schools. It also excludes cases in other areas of the law, including some during the past five years, that hold significance for schools, such as the public-employee-speech case Garcetti v. Ceballos, decided in 2006.
“It’s remarkable,” Perry A. Zirkel, a professor of educational leadership at Lehigh University in Bethlehem, Pa., and a longtime observer of the Supreme Court’s handling of school cases, said of the absence of such cases. “I think the court has realized its own limits” in the area of education law, he said.
The recent drought may be an anomaly, but there is evidence to suggest that the justices have, indeed, perceived limits to the court’s capability to serve as the nation’s school board.
From Schoolhouse to Courthouse
Shortly after the court decided the Safford case on strip-searches in schools, Chief Justice John G. Roberts Jr. was asked at a judicial conference about that decision, and another from two years earlier, Morse v. Frederick. In the Morse case, the justices had upheld the discipline of a student for unfurling a “Bong Hits 4 Jesus” banner at a school event.
The questioner asked what guidance school administrators were expected to take from the decisions, which he perceived as conflicting.
This chart covers cases with a K-12 school district or local school district as parties, by term and five-year periods, beginning with the term after Brown v. Board of Education of Topeka was decided.
Source: Education Week
Chief Justice Roberts used the question to make the point that in education and “across the board,” local administrators should look first to get policy guidance from their local governmental bodies, such as school boards.
“If you’re going to get all your guidance of that type from the Supreme Court, you’re going to have a lot of difficulties,” the chief justice said. “It’s only when bodies [that] have the on-the-ground responsibility for laying down the rules haven’t done so that the courts have to get involved.”
And education is no different from other areas of the law, he said.
“You can’t expect to get a whole list of regulations from the Supreme Court,” Chief Justice Roberts continued. “That would be bad, because we wouldn’t do a good job at it.”
Such views are not limited to the court’s conservative members.
In a concurrence in the 2007 Morse decision, Justice Stephen G. Breyer, a member of the liberal bloc, expressed a similar desire for the high court and courts in general to avoid refereeing every school dispute.
“The more detailed the [Supreme] Court’s supervision becomes, the more likely its law will engender further disputes among teachers and students,” Justice Breyer wrote. “Consequently, larger numbers of those disputes will likely make their way from the schoolhouse to the courthouse. Yet no one wishes to substitute courts for school boards, or to turn the judge’s chambers into the principal’s office.”
Whether those two justices’ views played any role in the dearth of school cases the high court has accepted during the past five years is known only to the court’s members.
Since its 2008-09 term, the court has declined to take up appeals involving such matters as corporal punishment, special education, bullying, school vaccinations, and student speech.
Surprising Refusals
In 2012, for example, court observers were surprised when the justices refused to take up either of two well-litigated cases on student speech over the Internet, leaving school administrators and free-speech advocates clamoring for more legal guidance.
In addition, the court has continued to disappoint religious conservatives by refusing to take up cases about student religious speech.
Francisco M. Negrón Jr., the general counsel of the National School Boards Association, in Alexandria, Va., has filed several friend-of-the-court briefs over the past five years urging the justices to provide more guidance to schools in areas such as special education, lewd student speech, and Internet speech.
The court “still has this hesitancy to speak to the way technology functions in schools,” he said.
James E. Ryan, the dean of the Harvard Graduate School of Education and an expert in education law, said there were several likely explanations for the recent decline of school cases at the Supreme Court.
“One is that major education reform is no longer court-centered, with the exception of school finance litigation, which is all in the state courts,” he said. “You don’t see a lot of structural-reform litigation being filed in the federal courts anymore.”
Second, there has been a dearth of new education laws that grant individuals a “right of action,” meaning a right to sue to enforce them. The No Child Left Behind Act, the latest version of the Elementary and Secondary Education Act, placed many requirements on states, districts, and schools, but did not give individuals the right to enforce its provisions, Mr. Ryan noted.
“Finally, for the individual rights of students and teachers, the Supreme Court has gone a fairly long way towards laying down the basic ground rules, and lower courts are left to apply them,” he said.
Other Factors
Another factor is that the court today decides only about 75 cases per term in total, down from an average of 150 in the early 1980s.
In a single term 30 years ago, the justices ruled on such major education issues as sending public school Title I teachers into religious schools (Aguilar v. Felton), the property interests of public school employees (Cleveland Board of Education v. Loudermill), the standard for student searches by school administrators (New Jersey v. T.L.O.), and special education (Burlington School Committee v. Massachusetts Department of Education), among five other, less major school cases.
Such an active term for school cases seems unthinkable today. But the dry spell is bound to end sometime, even as soon as this week. The justices are returning from their summer hiatus and, before the term’s Oct. 6 official opening, will deal with the hundreds of appeals that have piled up over the summer.
Among the appeals seeking their attention are at least three or four involving school districts.
