Retired Justice John Paul Stevens, a Voice for Student Rights, Dies at 99

By Mark Walsh — July 17, 2019 8 min read
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Retired U.S. Supreme Court Justice John Paul Stevens, who in dozens of education cases in his more than 34 years on the court was a voice for student rights, racial equality, and a high wall of separation between church and state, died Tuesday at age 99.

Stevens suffered a stroke on Monday and died with family members at his side in Fort Lauderdale, Fla., the court’s public information office announced.

Stevens “brought to our bench an inimitable blend of kindness, humility, wisdom, and independence,” Chief Justice John G. Roberts Jr. said in a statement. “His unrelenting commitment to justice has left us a better nation.”

Stevens was nominated by President Gerald R. Ford in 1975 to succeed Justice William O. Douglas, and he retired in 2010 under President Barack Obama and was succeeded by Justice Elena Kagan.

In education cases, Stevens was the author of just a handful of majority opinions over his long tenure. He was often more quotable in dissent.

In 2007, Stevens wrote the main dissent from the court’s decision, in Morse v. Frederick, to uphold the discipline of a student who had displayed a sign with the message “Bong Hits 4 Jesus” at a school event. Stevens said the student’s sign, which school administrators and the court majority viewed 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 1986 case, 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 behavior was prohibited and what discipline he might face.

The student, Matthew N. Fraser, “was an outstanding young man with a fine academic record,” Stevens wrote in his dissent, “he was probably in a better position to determine whether an audience composed of 600 of his contemporaries would be offended by the use of ... a sexual metaphor than is a group of judges who are at least two generations and 3,000 miles away from the scene of the crime.”

Stevens joined the dissents in two cases, in 1995 and 2002, in which the court upheld drug testing of students in extracurricular sports and other activities. And 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 that case. “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.”

One anomaly with respect to Stevens and student rights came in the 1998 decision in Hazelwood School District v. Kuhlmeier, in which the court ruled 5-3 that educators usually do not violate the First Amendment when they exercise control over student speech in school-sponsored expressive activities. The court sided with Missouri administrators who had removed articles about teenage pregnancy, divorce, and other sensitive topics from the Hazelwood East High School student newspaper before publication.

Stevens was the crucial fifth vote forming the majority, and he joined the opinion for the court by Justice Byron R. White. Stevens never elaborated on why he voted for school administrators, but notes from the justices’ private discussions of the case suggest that Stevens considered the Hazelwood students to not be in full control of the newspaper and not independent journalists.

‘Complete Neutrality Toward Religion’

Stevens was a stalwart vote in favor of strict separation of church and state, and he wrote two important majority decisions in that area involving education. In 1985, in Wallace v. Jaffree, the court struck down an Alabama law that authorized a period of silence in public schools for “meditation or voluntary prayer.”

“The addition of ‘or voluntary prayer’ indicates that the state intended to characterize prayer as a favored practice,” Justice Stevens wrote for the majority. “Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.”

In a 2000 case, Santa Fe Independent School District v. Doe, Justice Stevens wrote the majority opinion 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 for the court. “An objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval.”

At the confirmation hearings of the two most recent nominees to the court, Neil M. Gorsuch and Brett M. Kavanaugh, Sen. John Cornyn, Republican of Texas, was sharply critical of the Santa Fe decision nearly two decades after Stevens had written the opinion. (Gorsuch responded cautiously to Cornyn’s critique, but Kavanaugh, who had written a friend-of-the-court brief in the case in favor of upholding the prayers, implicitly accepted the senator’s criticisms. “Religious speech is entitled to a place in the public square and not to be discriminated against,” Kavanaugh said at his hearing.)

In 2002, Justice Stevens was in dissent when the court ruled 5-4 to uphold the state of Ohio’s private school voucher program for Cleveland against a challenge that the program violated the First Amendment’s prohibition against government establishment of religion. The majority decision in Zelman v. Simmons-Harris was “profoundly misguided,” Stevens wrote. “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.”

‘A Cruel Irony’ on Use of Race

Justice Stevens’ views on affirmative action and race in education evolved over time. One of the biggest cases he encountered early in his tenure was Regents of the University of California v. Bakke, which involved a challenge to minority preferences by a white applicant who had been denied admission to the medical school at the University of California, Davis.

Justice Stevens concurred in the outcome of the 1978 case, in which the court ordered the white applicant admitted, but he wrote an opinion expressing the belief that the case did not need to address the larger constitutional question of whether race could ever be used in admissions.

By 1986, Justice Stevens was in dissent from the court’s decision in Wygant v. Jackson Board of Education, which invalidated 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 his dissent.

Stevens was also in dissent in the court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District, which sharply limited the voluntary use of race by school districts in assigning students to schools.

Stevens wrote that there was “a cruel irony” in the majority’s reliance on the court’s 1954 decision in Brown v. Board of Education of Topeka, which held that racially separate educational facilities were inherently unequal. Referring to Roberts, the author of the majority decision, Stevens said, “The chief justice rewrites the history of one of this court’s most important decisions.”

Stevens concluded his dissent 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.”

Stevens was in dissent when the court, in District of Columbia v. Heller in 2008, ruled that there was an individual right to bear arms. Last year, after the mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla., the retired justice came out in favor of repealing the Second Amendment.

“Rarely in my lifetime have I seen the type of civic engagement schoolchildren and their supporters demonstrated in Washington and other major cities throughout the country this past Saturday,” Stevens wrote in an op-ed in The New York Times on March 27, 2018, days after the March for Our Lives organized by the Parkland survivors. “These demonstrations demand our respect. They reveal the broad public support for legislation to minimize the risk of mass killings of schoolchildren and others in our society.”

Stevens is survived by two daughters, nine grandchildren, and 13 great-grandchildren. His first and second wives, as well as his son and another daughter, preceded him in death. Funeral arrangements were pending.

Photo: Retired Supreme Court Justice John Paul Stevens testifies about money spent on U.S. elections in a 2014 appearance before the Senate Rules Committee on Capitol Hill in Washington.--AP Photo

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