Roberts on the Supreme Court’s Role in School Law

By Mark Walsh — June 28, 2009 2 min read
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Chief Justice John G. Roberts Jr. says that if the U.S. Supreme Court were to try to establish comprehensive rules and regulations for the public schools, it probably “wouldn’t do a very good job of it.”

Roberts was asked at a judicial conference Saturday about what message two recent Supreme Court decisions sent to school administrators. The questioner cited Morse v. Frederick, a 2007 ruling which upheld the right of school administrators to punish a student for displaying a “Bong Hits 4 Jesus” banner at a school event, and last week’s decision in Safford Unified School District v. Redding, which held that a strip-search of a student by school officials looking for ibuprofen violated the Fourth Amendment.

“If you were a school administrator, how do you go forward?” the questioner asked the chief justice at the annual conference of the U.S. Court of Appeals for the 4th Circuit in White Sulphur Springs, W.Va. “What guidance do school administrators get from those cases?”

Roberts responded with “a central point, and it’s true across the board: If you’re going to get all your guidance on issues of that type from the Supreme Court, you’re going to have a lot of difficulties.”

“Just take the strip search example,” Roberts added. “In many communities, there are policies, and they don’t care what’s going on, you don’t strip search the children. That’s where a school administrator gets their guidance. It’s only when bodies that have on the ground responsibility for laying out the rules haven’t done so that the courts have to get involved.”

The chief justice said the trend holds in other areas of the law, such as anti-trust, patent law, and employment discrimination.

“At every stage, there are other bodies that lay down rules,” Roberts said. “You can’t expect to get a whole list of regulations from the Supreme Court. That would be bad, because we wouldn’t do a good job at it.”

The chief justice stressed to the questioner that the “flip side” of the recent strip-search decision was that the court held that the school officials involved were entitled to qualified immunity because “they didn’t have very clear guidance and that was largely our fault, in the sense of trying to put down our rules.”

“So we laid down a rule on what they can and can’t do,” Roberts said, “but we said they [w]ouldn’t have to fork over damages from their own personal funds if they guessed wrong.”

The Associated Press reports on Roberts’ talk here. The full 30-minute question-and-answer session led by Fourth Circuit Judge J. Harvie Wilkinson is available on C-SPAN’s Web site here. The schools question comes about 18 minutes, 40 seconds into the session.

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