With reports that Justice David H. Souter intends to retire from the U.S. Supreme Court after 19 years, it is time to take a quick look at his legacy on education issues.
Souter has been a reliable liberal vote--in dissent from the court’s conservative majority--on such major recent cases as voluntary school racial diversity and student free speech, as well as on issues such as school desegregation and protecting students from sexual harassment. But Souter has done his most prolific opinion writing on cases involving government aid to religion or religion in the public schools.
Here are some highlights:
Lee v. Weisman: In this 1992 decision, Souter joined the 5-4 majority that ruled clergy-led graduation prayers at a middle school to be a violation of the First Amendment’s prohibition against government establishment of religion. In his lengthy concurrence, Souter wrote this:
Religious students cannot complain that omitting prayers from their graduation ceremony would, in any realistic sense, "burden" their spiritual callings. To be sure, many of them invest this rite of passage with spiritual significance, but they may express their religious feelings about it before and after the ceremony. They may even organize a privately sponsored baccalaureate if they desire the company of like-minded students. Because they accordingly have no need for the machinery of the State to affirm their beliefs, the government's sponsorship of prayer at the graduation ceremony is most reasonably understood as an official endorsement of religion and, in this instance, of theistic religion.
Board of Education of Kiryas Joel Village School District v. Grumet: In this 1994 ruling, Justice Souter wrote the opinion for a majority that struck down a New York State law establishing a special school district to serve children with disabilities in a community of Hasidic Jews. Souter wrote:
In this case, we are clearly constrained to conclude that the statute before us fails the test of neutrality. It delegates a power this Court has said "ranks at the very apex of the function of a State," Wisconsin v. Yoder, 406 U.S. 205, 213 (1972), to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism. It therefore crosses the line from permissible accommodation to impermissible establishment.
Zelman v. Simmons-Harris: In this 2002 decision, Justice Souter wrote a bitter dissent from the majority’s decision to uphold an Ohio program that created a pilot voucher program for Cleveland in which parents of that city’s schoolchildren could choose to send them to private religious schools at public expense. Souter wrote:
If the divisiveness permitted by today's majority is to be avoided in the short term, it will be avoided only by action of the political branches at the state and national levels. Legislatures not driven to desperation by the problems of public education may be able to see the threat in vouchers negotiable in sectarian schools. Perhaps even cities with problems like Cleveland's will perceive the danger, now that they know a federal court will not save them from it. ... True, the majority has not approved vouchers for religious schools alone, or aid earmarked for religious instruction. But no scheme so clumsy will ever get before us, and in the cases that we may see, like these, the Establishment Clause is largely silenced. I do not have the option to leave it silent, and I hope that a future Court will reconsider today's dramatic departure from basic Establishment Clause principle.
These aren’t Souter’s only education opinions. And he may not have written his last one. The court heard arguments in three school cases during its final argument session of the term this month, and will issue opinions in those cases by the end of June. We may hear from Justice Souter at least one more time.
A version of this news article first appeared in The School Law Blog.