What Ruth Bader Ginsburg Meant to Education

By Mark Walsh — September 18, 2020 11 min read
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Justice Ruth Bader Ginsburg, a pioneer in the women’s rights movement and the second woman appointed to the U.S. Supreme Court, died Friday at age 87 due to complications of pancreatic cancer. On education issues arising during her 27 years on the court, Ginsburg was a stalwart vote for sex equity in schools, expansive desegregation remedies, strict separation of church and state, and, in a memorable dissent, against broader drug testing of students.

“A prime part of the history of our Constitution ... is the story of the extension of constitutional rights and protections to people once ignored or excluded,” Ginsburg wrote for the court in United States v. Virginia, the 1996 case that struck down the state’s exclusion of women from the Virginia Military Institute, perhaps her most important opinion in an education case and a sentiment that also reflected her votes in cases involving students of color, LGBTQ Americans, and students in special education.

“There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the ‘more perfect Union,’” Ginsburg wrote in the Virginia case, quoting from the preamble to the U.S. Constitution.

Ginsburg was surrounded by her family at her home in Washington when she died, the court announced. She had been treated for several forms of cancer and other ailments in recent years. Her death prompted glowing tributes but also immediate speculation about the Trump administration’s prospects for filling her seat less than two months before the presidential election.

“Our nation has lost a jurist of historic stature,” Chief Justice John G. Roberts Jr. said in a statement. “We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tireless and resolute champion of justice.”

Nina Totenberg, the longtime Supreme Court correspondent for NPR and a personal friend of Ginsburg, reported that the justice dictated a note to her granddaughter Clara Spera in recent days that said: “My most fervent wish is that I will not be replaced until a new president is installed.”

Liked Shop Better Than Sewing

Ginsburg was born March 15, 1933, in Brooklyn, N.Y., as Joan Ruth Bader, the daughter of Celia and Nathan Bader. Her father ran small shops, including a fur shop, and her mother worked in the garment industry. At her neighborhood elementary school, P.S. 238, there were several Joans in Ginsburg’s kindergarten class, so her mother suggested to the teacher that she be referred to as Ruth.

In 8th grade, she was uncomfortable in home economics class, where the graduation dress she was assigned to create was “a mess,” she once recalled.

“I remember envying the boys long before I even knew the word ‘feminism,’ because I liked shop better than cooking or sewing,” she said in My Own Words, a collection of her writings and speeches published in 2016.

Also as an 8th grader, Ginsburg wrote an editorial as editor of the school newspaper about four “great documents"—the Ten Commandments, Magna Carta, the Declaration of Independence, and the United Nations Charter. The essay was of a far more serious tone than the typical offerings.

“My mother was very strong about my doing well in school and living up to my potential,” Ginsburg told an interviewer in 2004.

Ginsburg’s mother died of cancer in 1950, one day before Ginsburg’s graduation from James Madison High School in Brooklyn.

Ginsburg attended Cornell University, where she met her husband, Martin D. Ginsburg, in 1954. Ginsburg entered Harvard Law School, where the dean once asked her and eight other female members of the class to justify why they were taking the place of a man.

When Martin Ginsburg graduated from Harvard Law, where he was a year ahead of his wife, he took a job in New York City, and Ginsburg went with him, finishing her law school education at Columbia University.

Ginsburg could not get a job with a law firm and became a law professor, first at Rutgers University and later at Columbia. In 1971, she helped launch the Women’s Rights Project of the American Civil Liberties Union, where Ginsburg led the legal fight for gender equity, sometimes by picking cases in which men had suffered reverse discrimination in benefits or other matters. She argued six cases before the Supreme Court, winning five of them.

In 1980, President Jimmy Carter nominated Ginsburg to the U.S. Court of Appeals for the District of Columbia Circuit, where she served for six years with the conservative judge Antonin Scalia before he took a seat on the high court. It was the beginning of their deep friendship despite their ideological differences.

In 1993, President Bill Clinton nominated Ginsburg to succeed Justice Byron R. White. She was confirmed by the U.S. Senate 96-3.

Ginsburg wrote her first opinion in an education case toward the end of her second term. In Missouri v. Jenkins, Ginsburg joined the principal dissent in a 5-4 decision that overturned a sweeping desegregation plan for the Kansas City, Mo., school district. She wrote a short, separate dissent that expressed disappointment that the majority thought seven years of remedial programs for the district was too long when race discrimination in what would become Missouri had begun in 1724 and the Code Noir of King Louis XV of France and only grew with state laws requiring separate schools for Black students and resistance to the court’s landmark Brown v. Board of Education of Topeka decision of 1954.

“Today, the court declares illegitimate the goal of attracting nonminority students to the Kansas City, Missouri, School District, and thus stops the District Court’s efforts to integrate a school district that was, in the 1984/1985 school year, sorely in need and 68.3% black,” Ginsburg wrote. “Given the deep, inglorious history of segregation in Missouri, to curtail desegregation at this time and in this manner is an action at once too swift and too soon.”

Ginsburg was among the dissenters in the 2007 decision in Parents Involved in Community Schools v. Seattle School District, which sharply curtailed the ways school districts could voluntarily consider race in assigning students to schools. She voted for allowing race to be considered in college admissions in landmark cases involving the University of Michigan law school in 2003 and the University of Texas at Austin in 2016.

Supporting a Broad View of Title IX

On gender equity, Ginsburg’s opinion in the 1996 VMI case was one she worked on carefully and she was grateful when Scalia gave her a draft of his solo dissent before circulating it to the full court. Scalia was only vote after the justices’ private conference in favor of upholding a male-only VMI. The dissent was a “zinger,” Ginsburg said at a memorial after Scalia died in 2016. Scalia took her draft majority opinion to task for, among other things, referring to the flagship public university in Virginia as “the University of Virginia at Charlottesville.”

“There is no University of Virginia at Charlottesville,” Scalia had written in a footnote in his draft dissent. “There is only the University of Virginia.”

Ginsburg made that change and others, and “my final draft was more persuasive thanks to Justice Scalia’s searing criticism,” she said at his memorial.

When she delivered a summary of her opinion in United States v. Virginia (with Scalia remaining in dissent), Ginsburg noted a 1982 gender equity precedent that had been written by Justice Sandra Day O’Connor. She paused and looked across the bench in a brief tribute to O’Connor, who would end up serving most of 13 terms with Ginsburg.

In 2017, Ginsburg appeared at VMI to celebrate the decision and was greeted warmly by the cadets, who by then were 11 percent women.

“Wait and see,” Ginsburg said she had told her critics after the decision. “You will be proud of the women who become graduates of VMI.”

On several K-12 decisions involving sex discrimination in schools, Ginsburg voted with dissenters in 1998 when the court set a high bar for victims of teacher-student sexual harassment to be able to recover damages from school districts. The next year, she joined the majority that found that Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools, applied to lawsuits against school districts for failing to stop student-on-student sexual harassment (though it also set a high bar for recovery against districts).

In 2005, Ginsburg joined the majority that found that Title IX allowed claims for retaliation by someone who had complained about sex discrimination, in that case a high school basketball coach who had complained about unequal treatment of the girls’ team.

‘Colliding Tubas’

Ginsburg consistently voted for a strong separation of church and state. In 2019, she wrote a dissent when the court allowed a large cross erected in 1925 to honor World War I veterans to remain undisturbed on public land in Bladensburg, Md.

“By maintaining the Peace Cross on a public highway, [a state] commission elevates Christianity over other faiths, and religion over nonreligion,” Ginsburg wrote in American Legion v. American Humanist Association. “When a public school history teacher discusses the Protestant Reformation, the setting makes clear that the teacher’s purpose is to educate, not to proselytize. The Peace Cross, however, is not of that genre.”

Ginsburg also voted in favor of expanding LGBTQ rights, in cases on same-sex marriage and employment rights for gay and transgender workers that held important implications for the nation’s schools.

One of Ginsburg’s more colorful dissents came in a case about student drug testing. In 2002, in Board of Education of Independent School District No. 92 v. Earls, the court ruled 5-4 to uphold an Oklahoma district’s program of random drug testing of participants in competitive interscholastic activities, such as band, cheerleading, and Future Farmers of America.

The scope of the program went beyond the testing of student athletes that the court had upheld in a 1995 case, Vernonia School District v. Acton. Ginsburg had joined the majority in upholding the testing of athletes, but the Oklahoma district’s program went too far for her.

“The particular testing program upheld today is not reasonable, it is capricious, even perverse: [The district’s] policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects,” Ginsburg wrote.

She noted that the inherent risks of interscholastic athletics helped justify drug testing in that area, but she was dubious of the Tecumseh, Okla., district’s arguments about potential dangers posed by drug use among participants in band, FFA, and Future Homemakers of America. The district had stressed that band members must perform precise routines in close proximity to each other, that FFA members controlled large animals, and FHA worked with cutlery and other sharp instruments.

“Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree,” Ginsburg said.

In another case involving student searches, Ginsburg played a significant but somewhat unusual role in 2009 when the court weighed whether the strip search of a 13-year-old middle school student by a school administrator looking for an over-the-counter painkiller violated the Fourth Amendment.

At oral argument, some male justices came across as minimizing the humiliation suffered by the student, Savanna Redding. Justice Stephen G. Breyer said he had a hard time understanding Redding’s claim that her rights had been violated.

“I’m trying to work out why is this a major thing to, say, strip down to your underclothes, which children do when they change for gym,” Breyer said during the argument. “How bad is this?”

Ginsburg gave a retort during the argument, that school administrators had asked the student “to shake (her) bra out, to shake, shake, stretch the top of (her) pants.”

Several days after the argument, Ginsburg gave an interview to Joan Biskupic, then with USA Today, in which she said some of her colleagues just did not understand how the strip search would have affected Redding.

“They have never been a 13-year-old girl,” Ginsburg said. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

She added, “Maybe a 13-year-old boy in a locker room doesn’t have that same feeling about his body. But a girl who’s just at the age where she is developing, whether she has developed a lot ... or ... has not developed at all (might be) embarrassed about that.”

The court ended up voting 8-1, in Safford Unified School District v. Redding, that the strip search violated the Fourth Amendment.

The decision in that 2009 case came near the end of a nearly three-and-a-half year period when Ginsburg was the only woman on the court. (O’Connor had retired in early 2006.) Ginsburg did not like being the only female on the bench, and she took immense satisfaction when Justice Sonia Sotomayor joined the court later in 2009 and Justice Elena Kagan was confirmed in 2010.

The presence of three female justices would “change the public perception of where women are in the justice system,” Ginsburg told The Washington Post. “When the schoolchildren file in and out of the court and they look up and they see three women, then that will seem natural and proper—just how it is.”

Ginsburg’s husband died in 2010. The justice is survived by her two children, Jane Ginsburg and James Ginsburg, and four grandchildren. The Supreme Court said Ginsburg will have a private interment ceremony at Arlington National Cemetery.

Photo: In this Feb. 4, 2015, file photo, U.S. Supreme Court Justice Ruth Bader Ginsburg speaks at Georgetown University Law Center in Washington. The Supreme Court says Ginsburg has died of metastatic pancreatic cancer at age 87. (AP Photo/Manuel Balce Ceneta, File)

A version of this news article first appeared in The School Law Blog.
A version of this article appeared in the September 30, 2020 edition of Education Week