Supreme Court Denies Appeals on School Banners, NCAA Eligibility Rules

By Mark Walsh — October 03, 2016 3 min read
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The U.S. Supreme Court on Monday declined to take up cases involving a First Amendment claim about a school’s removal of banners by a business sponsor and refused to step into a high-stakes battle over college athletic eligibility rules.

The high court formally opened its new term on Oct. 3, although it did not hear any cases because of the Jewish holiday of Rosh Hashanah. Five justices took the bench for a brief housekeeping session, while the court’s three Jewish members—Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan—were absent.

As I wrote in a story in Education Week‘s current issue, the court’s new term could be the most significant for K-12 education in years, with cases on special education, aid to religious schools, and potentially on transgender rights in schools. But on Monday, it was a day for the court to issue an orders list that turned down many of the hundreds of appeals that had piled up over the summer.

Those denials included an appeal from a former porn star who battled with a Florida school district over the removal of banners promoting his math tutoring business.

The Palm Beach County school district initially welcomed educator David Mech’s banner for the “Happy/Fun Math Tutor” program as part of its business partnership program. But when the district learned that Mech is a former porn performer who still ran a porn-production business that shared a mailing address with his tutoring business, it removed his banners and told him the situation was inconsistent with the district’s educational mission.

Mech sued on First Amendment grounds, but lost in a federal district court and in the U.S. Court of Appeals for the 11th Circuit, in Atlanta. In his appeal to the Supreme Court, Mech argued that his case presented an important issue in the area of government speech and that the school district’s imprimatur on his banners allowed it to unconstitutionally remove them.

The school district said in response that it could control Mech’s banner because there were numerous aspects to the business partnership program that would lead observers to believe the district endorsed the messages involved.

The justices declined without comment to hear the appeal in Mech v. School Board of Palm Beach County (Case no. 15-1412).

Meanwhile, the Supreme Court declined to step into a major antitrust case involving the National Collegiate Athletic Association.

Both sides had asked the justices to review a 2015 decision by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that the NCAA’s rules limiting football players and men’s basketball players to receiving scholarships of tuition, fees, room and board, and books violates federal antitrust law. But the appeals court also threw out a lower court’s order requiring the NCAA to permit colleges to pay such student-athletes up to $5,000 in deferred compensation.

The rulings came in a class action filed by basketball player Edward C. O’Bannon Jr., who challenged the uncompensated use of his likeness in an NCAA basketball-themed videogame.

The justices declined without comment to take up the cross-appeals in O’Bannon v. NCAA (No. 15-1167) and NCAA v. O’Bannon (No. 15-1388).

Finally, the justices did not act in an appeal involving a New Mexico program that lends textbooks to private schools, including religious schools. The state’s supreme court had held that a provision of the New Mexico constitution that bars public support for “any sectarian, denominational or private school, college or university” meant that religious schools could not participate in the state textbook program.

The appeal of the private schools in New Mexico Association of Nonpublic Schools v. Moses (No. 15-1409) is likely being held by the justices for a similar case they have agreed to hear sometime this term, Trinity Lutheran Church of Columbia v. Pauley (No. 15-577), which involves the exclusion of a church preschool from a Missouri program to use recycled tires to make safer playgrounds.

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

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