As Justice Stevens Retires, His Education Legacy Reviewed

By Mark Walsh — April 09, 2010 6 min read
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[UPDATED 3:25 P.M.]

U.S. Supreme Court Justice John Paul Stevens today announced his intent to retire at the end of the term after more than 34 years on the court, a tenure that has included participation in his share of education-related cases.

Justice Stevens, who turns 90 on April 20, was nominated by President Gerald R. Ford in 1975 to succeed Justice William O. Douglas.

As an antitrust lawyer and federal appeals court judge before joining the high court, Stevens was perhaps not especially inclined towards a special interest in education cases, at least in his early years on the court. But over 34 years, Stevens has voted for strong separation of church and state in education, for student rights, and in favor of desegregation and other race-based remedies in the schools.

Though Stevens wrote the majority opinion in a few landmark education cases, he was more often an author of concurring or dissenting opinions. Here is a selection of the justice’s writing.

Student Searches
Just last term, in Safford Unified School District v. Redding, in which the court held a strip search at school of a 13-year-old to be unconstitutional, Stevens wrote a separate opinion to stress his view that it was a matter “in which clearly established law meets clearly outrageous conduct.” He went on to write: “I have long believed that it does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.”

Stevens voted with the dissenters in two cases in which the court upheld drug testing of students in extracurricular sports and other activities. In a landmark 1985 case, New Jersey v. T.L.O., Stevens dissented from the court’s decision upholding the search of a high school student’s purse that turned up marijuana.

“The schoolroom is the first opportunity most citizens have to experience the power of government,” Stevens wrote in his dissent. “Through it passes every citizen and public official, from schoolteachers to policemen and prison guards. The values they learn there, they take with them in life. One of our most cherished ideals is the one contained in the Fourth Amendment: that the government may not intrude on the personal privacy of its citizens without a warrant or compelling circumstance.”

Student Speech
In 2007, Stevens wrote the main dissent from the court’s decision to uphold the discipline of a student who had displayed a sign with the message “Bong Hits 4 Jesus” at a school event. In his dissent in Morse v. Frederick, Stevens recalled the debates over the wisdom of Prohibition, and said the student’s sign, which was treated as promoting drug use, was a minority viewpoint deserving of First Amendment protection. “Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views,” Stevens wrote.

In a rare case in which he parted with his liberal colleagues on a student rights issue, Stevens voted with the majority in Hazelwood School District v. Kuhlmeier, in which the court upheld school administrators did not violate the First Amendment rights of students in ordering deletions and other changes to a student newspaper.

In a 1986 case, however, Stevens wrote a dissent from the majority’s decision upholding the discipline of a student who had delivered a lewd speech to a student assembly. Stevens said in Bethel School District v. Fraser that while the speech might have been offensive, the student deserved more fair notice of what was prohibited and what discipline he might face. The student “should not be disciplined for speaking frankly in a school assembly if he had no reason to anticipate punitive consequences,” Stevens wrote.

Race and Education
The court’s 2007 decision sharply limiting the voluntary use of race by school districts in assigning students to schools was the subject of one of Justice Stevens’ frequent secondary dissents. While Justice Stephen G. Breyer wrote a lengthy and impassioned dissent from the majority’s decision in Parents Involved in Community Schools v. Seattle School District, Stevens added his own six-page dissent, which said there was “a cruel irony” in the majority’s reliance on the 1954 Brown v. Board of Education decision. Stevens concluded with these words: “It is my firm conviction that no member of the Court that I joined in 1975 would have agreed with today’s decision.”

In a 1986 case, Stevens dissented from the court’s decision to strike down a school district layoff policy that gave preferential protection to members of certain minority groups as a violation of the 14th Amendment’s equal-protection clause.

“In the context of public education, it is quite obvious that a school board may reasonably conclude that an integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty,” Stevens wrote in Wygant v. Jackson Board of Education. “It is one thing for a white child to be taught by a white teacher that color, like beauty, is only ‘skin deep'; it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process.”

Church and State
In 2002, Justice Stevens joined the dissenters in a 5-4 decision that upheld the Cleveland private school voucher program in a challenge that it violated the First Amendment’s prohibition against government establishment of religion. The majority decision in Zelman v. Simmons-Harris was “profoundly misguided,” Stevens said in another of his brief secondary dissents. “Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.”

In a 2000 church-state case, Justice Stevens wrote the opinion for the majority striking down a Texas school district’s policy of permitting student-led, student-initiated prayers before football games.

“These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events,” Stevens wrote in Santa Fe Independent School District v. Doe. “An objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval.”

Special Education
In a 1999 case, Cedar Rapids Community School District v. Garret F., Justice Stevens wrote the opinion for a majority that interpreted federal special education law as requiring a school district to provide individual nursing help required by a student with severe medical disabilities to attend school.

The school district and school groups had warned the court that such a broad interpretation of the Individuals with Disabilities Education Act would have severe financial consequences for schools. But in ruling for a student who had required a ventilator since a motorcycle accident had severed his spinal column, Stevens and the majority said the nursing care was a “related service” required by the IDEA.

Describing the boy, Garret Frey, as a “friendly, creative, and intelligent young man,” Stevens wrote, “This case is about whether meaningful access to the public schools will be assured, not the level of education that a school must finance once access is attained. It is undisputed that the services at issue must be provided if Garret is to remain in school.”

A version of this news article first appeared in The School Law Blog.