Key Education Appeals Await Attention of Eight-Member U.S. Supreme Court

By Mark Walsh — February 24, 2016 4 min read
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The U.S. Supreme Court is getting back to business this week after the unexpected death of Justice Antonin Scalia. On Friday, the eight justices will meet in private conference to consider whether to take up appeals in several high-profile education cases (among many other appeals), with an announcement on the cases’ fate possible as early as Monday.

In one case, the high court is being asked whether public schools may discipline students for off-campus speech, an issue that has been percolating in the lower courts for several years now. The Mississippi student in the case, who was disciplined for a violent rap song that alludes to shooting teachers, has drawn support from professional rappers who tell the court that the lyrics of their art form are not always meant to be taken seriously.

In another case, the justices are being asked to decide whether Colorado’s state constitutional provision barring aid to religion, which the state’s highest court relied on in striking down a school district’s private school voucher program, was born of such religious bigotry as to violate the U.S. Constitution’s guarantee of free exercise of religion.

In a third, the high court is being asked to hear the appeal of a Tennessee school district whose decision to outsource its alternative education program to a private Christian school was struck down by two lower federal courts as a violation of the First Amendment’s prohibition against government establishment of religion.

(More on each case below.)

A grant in any one of these case would be a huge deal for education. While the odds are stacked against any appeal being granted to start with, these cases are at the very least considered “cert-worthy"—meaning under normal circumstances they might have a decent chance for winning a grant of a writ of certiorari.

But Justice Scalia’s death on Feb. 13 changed the calculus for the court’s docket. With an eight-member court a possibility for as long as a year, the justices may be reluctant to take on certain divisive issues if they think the outcome would be a 4-4 tie. (In such instances, the Supreme Court affirms the lower court ruling without setting a precedent.)

Here is a bit more on each of the cases mentioned above.

Student Speech

In Bell v. Itawamba County School Board (Case No. 15-666), a Mississippi high school student is appealing a ruling by a full federal appeals court that his off-campus rap recordings that allude to shooting two teachers are not protected by the First Amendment.

Student Taylor Bell’s rap song and video, posted on Facebook and YouTube, make reference to a character attacking two teachers with guns. Bell’s lyrics included a character boasting to one of the teachers, “I’m going to get you with my rueger [sic],” a misspelled reference to a type of gun. Another line said, “going to get a pistol down your mouth.”

The U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled 13-3 that school officials reasonably concluded that one rap video made by student Taylor Bell in 2011 was directed at the school community and threatened two teachers.

In his appeal to the Supreme Court, Bell has drawn support from several professional rap artists, who argued in a friend-of-the-court brief that hip hop and “gangsta rap” are often misunderstood.

“The decision by the court of appeals punishes a student for his art—and perpetuates unfair and inaccurate stereotypes—by mischaracterizing often-used rap music phrases as ‘threats,’” says the brief signed by multiple artists and professors, including one known as Killer Mike. (The brief makes plain that this is a stage name and the artist “has never actually killed anyone.”)

Blaine Amendments

In Doyle v. Taxpayers for Public Education (No. 15-556) and related appeals, the Douglas County, Colo., school district and other parties are appealing a June 2015 decision by the state’s highest court that struck down a local voucher program because it aided religious schools in violation of the state constitution.

The appeals ask the U.S. Supreme Court to consider whether language in Colorado’s constitution barring government aid to religion was born of 19th Century anti-Catholic bigotry and violates the U.S. Constitution.

The language against government aid to religion in Colorado’s constitution, and those of about three dozen other states, are referred to as “Blaine amendments.” They are named for a 19th-century congressman, James G. Blaine, who led an unsuccessful effort to amend the U.S. Constitution to prohibit public funding of “sectarian” schools at a time when Roman Catholics were pressing for government funding for parochial schools.

Outsourcing of Education

In Kucera v. Jefferson County Board of School Commissioners (No. 15-553), the justices are being asked to examine a Tennessee school district’s use of a private Christian school as its alternative education provider for students with disciplinary problems.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held last year that the public school students were served in a day program that offered secular instruction and only minimal exposure to religion, and thus the arrangement did not violate the establishment clause.

The case involves the Jefferson County, Tenn., district, which in 2003 eliminated its own alternative school because of budget concerns and contracted with the Kingswood School in Bean Station, Tenn., for such services through 2010. (The arrangement ended that year, but that apparently did not present a mootness issue for the lawsuit, which was brought by two teachers who lost their jobs when the district’s own alternative school was closed.)

* * * *

These three cases were originally set to be considered at the justices’ Feb. 19 private conference, but that conference was postponed because it was the day that a memorial observance was held for Scalia in the Supreme Court’s Great Hall. They will now be considered at this Friday’s conference.

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