Wrangling Over Bork Casts Shadow On Start of High Court’s 1987 Term

By Tom Mirga — October 07, 1987 6 min read

Washington--The U.S. Supreme Court opens its 1987-88 term this week facing a host of education-related cases and the possibility of having to consider them one Justice short of its normal complement.

The continuing battle in the Senate over Judge Robert H. Bork’s nomination to the Court means that only eight Justices will be seated on the bench when the new session begins on Oct. 5.

That raises the likelihood of 4-to-4 split decisions in the most controversial cases, which would leave lower-court rulings intact without setting new precedents.

Such an outcome is conceivable, for example, in two closely watched school cases that will be heard early in the term.

On Oct. 7, the Justices were to hear arguments in a suit that questions the constitutionality of a New Jersey law requiring a daily moment of silence in public schools. And on Oct. 13, the Court for the first time will consider a case raising the issue of6high-school journalists’ rights under the First Amendment.

The Senate Judiciary Committee had been scheduled to vote on Judge Bork’s nomination on Oct. 1, but delayed final action until this week in order to hear more witnesses.

In a related development, the Senate majority leader, Robert C. Byrd of West Virginia, urged his colleagues on the committee last week to consider sending the nomination to the full chamber without making a recommendation. Such a move would spare him and other uncommitted panel members from having to take a public stand on the matter prior to floor debate.

If that tactic is used, and if Senate opponents of the appellate-court judge mount a successful filibuster, the nomination could be killed without a single senator having to cast a vote for or against it.

Issues on the Court’s 1987-88 docket include:

Church-state relations. In this week’s oral argument, the Justices reconsider the constitutionality of state laws authorizing moments of silence at the start of the day in public schools.

In June 1985, the Court voted 6 to 3 to strike down an Alabama law that allowed public schools to begin their daily sessions with a moment of silence for voluntary prayer or meditation. The majority held that the legislature’s inclusion of the word “prayer” in the law represented an unconstitutional attempt to advance religion in schools.

24 Other Laws

Elsewhere in the majority opinion, the Court noted that some 24 other state laws that “merely [protect] every student’s right to engage in voluntary prayer during an appropriate moment of silence” might stand up under the First Amendment.

In Karcher v. May (Case No. 85-1551), the Court is being asked to validate one such law passed by the New Jersey legislature in 1982 over Gov. Thomas H. Kean’s veto. The law, which does not mention prayer, requires schools to open with one minute of silence “to be used solely at the discretion of the individual student ... for quiet and private contemplation or introspection.”

A federal district court, ruling that the legislature’s intent was to return prayer to schools, declared the law unconstitutional in October 1983. A federal appeals court concurred in a decision handed down in December 1985.

The Court could decide not to rule on the case on procedural grounds. State Assemblyman Alan J. Karcher entered the case in its earlier phases to defend the law in his capacity as Speaker of the General Assembly. Mr. Karcher has since lost his leadership post, and thus may have lost his legal standing to represent the legislature.

Two parents and a public-school teacher from New Jersey have asked the Court for permission to intervene in the case in order to defend the statute.

The Court has also been asked to review a pair of cases challenging the right of states to enforce fair-labor and anti-discrimination laws against church-affiliated schools.

The first case, Christ the King Regional High School v. Culvert (No. 86-2058), stems from a decision by officials at the New York City Roman Catholic school to fire striking teachers in 1981. The school officials argue that the First Amendment’s free-exercise clause and the National Labor Relations Act shield it from an investigation by the state’s labor-relations board. Lower federal courts have ruled in favor of the fired teachers and the state board.

The second case, Archdiocesan School Office v. Connecticut Commission on Human Rights and Opportunities (No. 87-126), was initiated by a Methodist teacher who was denied employment in a New Haven Catholic school. As in the New York City case, the archdiocese argues that the First Amendment shields it from a state investigation of the complaint. A state trial court held for the church, but the state supreme court reversed that ruling.

Students’ First Amendment rights. The Court will hear arguments later this month in Hazelwood School District v. Kuhlmeier (No. 86-836), a case stemming from the censorship of a student newspaper in a St. Louis-area high school in 1983.

The suit centers on a pair of articles on teen-age pregnancy and the effects of divorce on students. The school’s principal has testified that he prevented the school newspaper from printing the articles to protect the privacy of students and parents, to avoid the appearance that the school endorsed the sexual mores of the pregnant teen-agers, and to protect younger students from “inappropriate” material.

In May 1985, a federal district judge ruled that because the paper was produced as part of the school’s journalism curriculum, it was not entitled to the same degree of First Amendment protection as a commercial newspaper. A federal appellate court overturned that ruling in July 1986.

Special education. On Nov. 9,el15lthe Justices will hear arguments in a suit that questions whether school boards must keep violent and disruptive handicapped students in their current placements pending the completion of hearings on their behavior.

The suit, Honig v. Doe (No. 86-728), involves attempts by San Francisco school officials to expel two handicapped male students. One was involved in a fight with another student and broke a window; the other had been involved in “a number of incidents of misbehavior,” including making sexual advances toward a female student.

A federal district judge ruled in 1984 that when a handicapped student’s misbehavior is a manifestation of his disability, he has a right under the federal special-education statute, P.L. 94-142, to remain in his current classroom pending the completion of all administrative hearings. A federal appeals court upheld that ruling in July of last year.

Teen-age pregnancy. The Court on Nov. 3 will consider the constitutionality of an Illinois law that requires unmarried minors4seeking abortions to notify both parents at least 24 hours in advance unless they can persuade a state judge that they are mature enough to make their own decisions or that it would be in their best interests to “bypass” the parental-notification requirement.

The case, Hartigan v. Zbaraz (No. 85-673), has implications for laws in 20 states that restrict teen-agers’ access to abortions. A federal appeals court upheld the parts of the Illinois statute regarding parental or judicial approval, but struck down the mandatory 24-hour waiting period.

The Reagan Administration has also asked the Court to review a federal district judge’s ruling last April barring the Department of Health and Human Services from awarding grants to religious organizations for demonstration programs designed to discourage teen-age pregnancy.

The judge ruled that the provision of federal funds to church groups under the Adolescent Family Life Act violated the First Amendment’s prohibition against government establishment of religion. The case is Bowen v. Kendrick (No. 87-253).

A version of this article appeared in the October 07, 1987 edition of Education Week as Wrangling Over Bork Casts Shadow On Start of High Court’s 1987 Term