Souter’s Views Unclear on School-Related Rulings

By Julie A. Miller — September 26, 1990 7 min read

Washington--In three days of testimony before the Senate Judiciary Committee on his nomination to the U.S. Supreme Court, David H. Souter offered some clues as to his philosophy on the separation of church and state, civil rights, and the role of the federal judiciary.

But neither the federal appellate judge’s comments nor his record shed much light on how he would rule on major education issues if his nomination is confirmed, as is widely expected.

“There’s just not enough evidence to make predictions,” said Gwendolyn Gregory, associate general counsel for the National School Boards Association.

During the hearings, Judge Souter generally lived up to his advance billing as a cautious jurist who seeks to apply the law rather than to further an established agenda.

However, while both the liberal People for the American Way and the conservative Coalitions for America issued reports concluding that as a jurist he has typically deferred to legislatures and government officials--such as school boards--but has looked askance at government or judicial acts to expand citizens’ rights, the judge’s testimony painted a somewhat different picture.

For example, Mr. Souter repeatedly told senators that courts have a strong responsibility to protect individuals’ right to equal protection under the 14th Amendment, and even to step in when Congressional inaction creates a “vacuum,” citing as his main example the High Court’s 1954 decision in Brown v. Board of Education outlawing racial segregation in public schools.

He took an intermediate position in the debate over whether the Constitution should be interpreted according to the framers’ “original intent,” or in light of modern conditions. He said judges should look for the “principles” underlying the document, again using the Brown ruling as his example.

“You cannot ignore evidence of tangible effects, and it was there,” Mr. Souter said. “In 1954, [the Court] saw something they did not see in 1896.”

He repeatedly voiced support for efforts to end race and sex discrimination, and tried to refute his critics’ contention that he opposes affirmative action. For example, he said he agreed with the Court’s decision last June upholding the Congress’s authority to favor minority groups in the awarding of broadcast licenses.

Groups Divided

Nevertheless, civil-rights groups are split on the nomination, with some opposing Mr. Souter and others taking no position.

The opponents cite Mr. Souter’s tenure as attorney general of New Hampshire, during which he defended a literacy test for potential voters and the state’s refusal to submit data on the racial composition of its workforce to the federal government. They also claim that in a 1976 speech he criticized affirmative action as “affirmative discrimination.”

The opponents also argue that in asking the Supreme Court to clarify a relatively new, higher standard for reviewing sex-discrimination claims, Mr. Souter had shown a lack of sensitivity to women’s rights. He was asking the Court to uphold a statutory-rape law that covered only female victims.

“He’s said, ‘I’m for affirmative action,’ but everything in his career has opposed it,” said the civil-rights lawyer Joseph Rauh during testimony before the Senate panel. “How can a man who sees no discrimination find discrimination?”

Mr. Rauh referred to Mr. Souter’s statement to the committee that he defended New Hampshire’s refusal to provide the federal government with data on the racial makeup of its workforce partly because he believed there was no racial discrimination in New Hampshire.

The judge told the panel that he was representing the state government as a lawyer in that case and the dispute over the literacy test, and was obliged to defend the governor’s views as long as there was a legal basis to do so. Mr. Souter specifically agreed that the literacy test was unconstitutional.

He also said he strongly believes sex discrimination must be eliminated, and that state actions alleged to be discriminatory must be judged under a standard of strict scrutiny.

As to the alleged “affirmative discrimination” quote, Mr. Souter said he hoped he had been misquoted.

“I was talking about benefits distributed according to a racial formula with no remedial purpose,” he said, and not “appropriate distributive remedies.”

Mr. Souter also specifically rejected the view held by many Reagan Administration officials and some Justices that remedies in discrimination cases should be limited to particular victims of bias, rather than be extended to entire classes of people.

Views on Religion

The judge also sought to reassure the senators about his views on the separation of church and state, assuring them that he considered unconstitutional a New Hampshire statute allowing school districts to “authorize the recitation of the traditional Lord’s Prayer,” despite his public offers as attorney general to help defend it.

He said a Jewish friend had taught him how damaging the “appalling” practice of “exclusionary” school-sanctioned prayer is for children who do not subscribe to majority beliefs.

Mr. Souter also said a gubernatorial proclamation he defended that exhorted residents to “reverently observe Good Friday” and called for flags to be flown at half-mast was clearly unconstitutional.

But, in response to a question at the hearing, the judge declined to strongly endorse the view that an impermeable “wall” should exist between government and religion.

Rob Boston, a spokesman for Americans United for the Separation of Church and State, said that was “disappointing,” but that Mr. Souter’s explanations of his actions as attorney general were comforting.

“I heard some things I liked and some things I didn’t like, but I still don’t have enough information,” Mr. Boston said.

He said it was particularly hard to draw conclusions from the nominee’s statement that he had “some problems” with the three-pronged test the courts currently use in deciding whether a government action represents “establishment of religion” as prohibited by the First Amendment.

Under the test, expounded in the 1971 case Lemon v. Kurtzman, a state action must have a secular purpose, must not have the primary effect of advancing religion, and must not result in excessive government entanglement with religion.

While saying he was “loath to talk about scrapping” the test “without knowing what comes next,” Mr. Souter noted that it could conflict with the prevailing test for government action that limits the free exercise of religion. Under Supreme Court precedents, such state action must have a “compelling” purpose.

For example, he said, the 1972 case Wisconsin v. Yoder, in which the High Court ruled that the government could not force Amish children to attend school past age 16, might have been decided differently had it been brought as an “establishment clause” rather than a “free exercise” case.

Had the relevant state law exempted the Amish and been challenged as furthering their religion, Mr. Souter asserted, it might have been held unconstitutional under Lemon.

“That’s the dilemma we’re faced with,” commented Ms. Gregory of the NSBA “No matter what we do, we get sued.”

She agreed that it was difficult to draw conclusions about how Mr. Souter might seek to modify the Lemon test.

“And all this tells me nothing about where he stands on aid to private schools,” she added.

The Judiciary Committee is tentatively set to vote on the nomination this week, and is expected to recommend approval. The panel’s Democratic members signaled the likely outcome at the hearings, with some liberal senators stating outright that they had found no reason to vote against it.

In fact, the hearings have produced such ambiguous evidence that they have clearly worried some conservatives looking forward to a justice who would reliably cement a new conservative majority on the Supreme Court.

In addition to his statements on Constitutional interpretation and civil rights, Mr. Souter said he believed a fundamental right to privacy could be found in the Constitution, and defended his vote as a hospital trustee to allow doctors to perform abortions there--though he refused to state a direct opinion on the pivotal issue of abortion rights.

Representatives from women’s and abortion-rights groups oppose the nomination because they fear the judge does not support abortion rights, while Howard Phillips, president of the Conservative Caucus, opposes it because he fears the hospital vote indicates that the judge does not oppose abortion.

A version of this article appeared in the September 26, 1990 edition of Education Week as Souter’s Views Unclear on School-Related Rulings