U.S. Supreme Court Declines Review of Education Case on Use of Salary History

By Mark Walsh — July 02, 2020 5 min read
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The U.S. Supreme Court on Thursday declined to take up a case about gender-based pay disparities in education, refusing to review a lower-court ruling that invalidated a California county education agency’s policy of considering new employees’ pay history in setting their salaries.

The court issued a brief order without comment or recorded dissent declining review in Yovino v. Rizo (Case No. 19-1176). Separately, the justices ordered a lower court to reexamine a case about state bus transportation for private school students in light of this week’s decision that a state may not exclude religious schools when it subsidizes private education.

The equal-pay case has been on the justices’ radar for a couple of years. The U.S. Court of Appeals for the 9th Circuit, in San Francisco, first ruled in 2018 to revive a female mathematics consultant’s challenge under the Equal Pay Act of 1963 to the policy of the Fresno County superintendent of education taking pay history into account.

But the controlling opinion in that decision was written by a 9th Circuit judge, Stephen R. Reinhardt, who had died days before the opinion’s release. The Supreme Court last year ordered that decision thrown out, holding that Reinhardt’s vote and opinion in the case could not be counted.

The 9th Circuit heard new arguments in the case last year, with a new judge added to the court’s 11-judge “en banc” panel, and once again held that an employer does not have a valid defense against alleged sex discrimination under the Equal Pay Act if it bases a worker’s starting salary entirely on her prior pay.

The case was brought by Aileen Rizo, a former middle school and high school mathematics teacher who was hired in 2009 by the Fresno County Office of Education for the position of math consultant.

Rizo had been earning $52,000 as a math teacher in Arizona before accepting the Fresno County math consultant’s job at a salary of $62,133, court papers say. She later learned that several male colleagues, and one female colleague, were being paid more based on their own salary histories.

The county education office defended its system by arguing that the Equal Pay Act permits male and female pay differentials for equal work under a handful of exceptions, a differential based on “any other factor other than sex.”

But the 9th Circuit, in its decision last year, ruled 6-5 that “because prior pay may carry with it the effects of sex-based pay discrimination, and because sex-based pay discrimination was the precise target of the EPA, an employer may not rely on prior pay to meet its burden of showing that sex played no part in its pay decision.”

The Fresno County superintendent, Jim Yovino, appealed to the Supreme Court, arguing that several federal appeals courts have issued differing rulings on whether prior pay may be a factor other than sex under the equal-pay statute.

Several business groups, including the U.S. Chamber of Commerce, filed friend-of-the-court briefs in support of the Fresno superintendent, with the chamber saying the question was “of extraordinary significance.”

“Employers large and small, in every region of the United States, have historically used prior salary as a metric to assess a range of matters, including the caliber and experience of applicants, the viability and competitiveness of their own compensation packages, and, ultimately, the fairness of the wages they pay to employees,” the chamber’s brief said.

Lawyers for Rizo told the court that the circuit split is not as deep as the superintendent argues and that in 2016 California barred employers from using an applicant’s salary history to set her new pay. That made this case a poor vehicle for the Supreme Court to decide the issue on a national basis, Rizo’s brief said.

Private School Transportation Case

Meanwhile, the justices sent back for a fresh look a case it had been holding for its June 30 decision in Espinoza v. Montana Department of Revenue, which held that the application of a Montanastate constitutional provision barring aid to religious schools violated the First Amendment free exercise of religion rights of religious schools and parents who were barred from receiving scholarship aid under a state tax credit program.

The justices granted review in St. Augustine School v. Taylor (No. 18-1151), vacated the federal appeals court decision below, and sent the case back for reconsideration in light of Espinoza.

In the case, a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, held in 2018 that a school district and Wisconsin officials did not discriminate against the independent Roman Catholic school in Hartford, Wis., when they denied a request to provide transportation to the school’s pupils.

Under Wisconsin law, the state will provide bus transportation only to one private school affiliated with the same religious denomination within a particular attendance area. The Friess Lake School District was already providing transportation to students attending a Catholic school operated by the Archdiocese of Milwaukee.

A 2-1 panel of the 7th Circuit court held that the Wisconsin Supreme Court has interpreted the state statute as imposing a neutral and generally applicable limitation on transportation funding, so there was no religious discrimination.

“Thus, [the statute] bars two self-identified Catholic schools from receiving transit subsidies, but it also bars funding two Montessori schools, two International Baccalaureate schools, or two French International schools,” the 7th Circuit said. “The reason why St. Augustine cannot demand services within its desired attendance zone is not because it is a Catholic school; it is because—by its own choice—it professes to be affiliated with a group that already has a school in that zone.”

The school and several parents appealed that ruling to the Supreme Court. The court’s order requires the 7th Circuit to take a new look at the case based on the principles announced in the Espinoza decision, though it does not dictate any particular outcome by the lower court.

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