Court Opens Term With Several Major School Cases on Docket

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WASHINGTON--The U.S. Supreme Court reconvenes next week with its docket for the 1991-92 term containing potentially significant education cases in three areas: desegregation, separation of church and state, and sexual discrimination.

The High Court opens the term on Oct. 7 amid agreement by legal analysts that it is on a solidly conservative course under the stewardship of Chief Justice William H. Rehnquist. The rightward direction of the Court could gain further momentum if Clarence Thomas, President Bush's nominee to replace retiring Associate Justice Thurgood Marshall, is confirmed by the U.S. Senate.

The Senate Judiciary Committee was expected to vote favorably by late last week or early this week on the nomination of Judge Thomas, who now serves on the U.S. Court of Appeals for the District of Columbia Circuit. Although it appears likely that the nominee will win confirmation in the full Senate, it is uncertain whether a vote will be scheduled before the opening of the Supreme Court term. (See Education Week, Sept. 25, 1991.)

The most closely watched education case of the new term is Lee v. Weisman (Case No. 90-1014), which involves the constitutionality of ceremonial prayer at public-school events such as graduations.

The case has drawn attention in part because it could provide the Justices with a vehicle for reconsidering a 20-year-old precedent on church-state separation that deeply affects education in the United States.

The Providence, R.I., school committee has appealed lower-court rulings that the practice of offering prayers at junior- and senior-highschool promotion and graduation ceremonies violates the First Amendment's prohibition of a government establishment of religion.

Graduation prayer has been a troublesome issue for many local school officials in recent years. Administrators are hoping to get a definitive ruling on the matter from the High Court.

New Look at 1971 Ruling?

But the Court may also use the Lee case to reconsider the legal test employed to determine whether government action violates the Establishment Clause of the First Amendment.

That three-pronged test, enunciated by the Supreme Court in its 1971 decision in Lemon v. Kurtzman, states that a challenged government practice regarding religion must have a secular purpose, must have a primary effect that neither advances nor inhibits religion, and must not foster excessive entanglement with religion.

The Justice Department's friend-of-the-court brief in the Lee case, which backs the Providence school committee, urges the Court to scrap the so-called Lemon test and allow for greater "civic acknowledgments of religion in public life."

Five current Justices have expressed some degree of dissatisfaction with the test in recent years. The prospect that the Court could reconsider the Lemon precedent has prompted a flood of briefs in the graduation-prayer case from dozens of advocacy groups on both sides of church-state issues.

The U.S. Catholic Conference and numerous other churches and conservative religious groups have generally called for more accommodation of religion in public life.

Groups such as the National Education Association, the National PTA, the American Jewish Congress, and Americans United for Separation of Church and State, meanwhile, have filed or joined briefs that call for keeping the Lemon test intact and for finding graduation prayers unconstitutional.

The National School Boards Association, while taking no position on graduation prayer, is also urging the Court to keep the 1971 test.

Meanwhile, the Morongo (Calif.) Unified School District last month asked the Court to review a California Supreme Court decision that found school prayer unconstitutional. (See Education Week, May 15, 1991.)

The High Court has already scheduled oral arguments for the Lee case for Nov. 6, so it appears unlikely that the two prayer cases would be consolidated.

DeKalb Case Opens Term

The timing of Judge Thomas's probable confirmation is important because the Court will hear oral arguments in a major desegregation case on the first day of the term.

One year after it heard arguments in a similar suit from Oklahoma City, the Court will consider Freeman v. Pitts (No. 89-1290), a case from DeKalb County, Ga., a suburban Atlanta school district that is the state's largest.

The DeKalb district, which now has a 57 percent black enrollment among its 80,000 students, appealed a 1989 federal appellate ruling that said that even after more than two decades of desegregation efforts, the district had not eliminated the vestiges of official segregation.

The U.S. Court of Appeals for the 11th Circuit said that in order for the district to be declared unitary, or free from such vestiges, and thus be removed from federal-court supervision, it must simultaneously maintain racial equality for at least three years in six areas of school operations: student assignments, faculty, staff, transportation, facilities, and extracurricular activities.

Those six factors were set out by the Supreme Court in its 1968 ruling in Green v. County School Board of New Kent County, Va.

Another central element of the Freeman case is the role of housing patterns. In 1986, when the DeKalb district first sought to be freed from court supervision, more than half of its black students attended schools that were at least 90 percent black. The district argues that this is due to demographic changes in which many blacks moved into the southern half of DeKalb County.

The Justice Department has backed the DeKalb school board in the case, arguing in court papers that once a school system achieves integration in one of the so-called Green factors, such as student assignment, a federal court may require no further action.

The black schoolchildren and parents who are the respondents in the case contend that the DeKalb system is still segregated as a result of past official actions, not because of demographic patterns alone.

Many legal experts view the High Court's decision last term in Board of Education of Oklahoma City v. Dowell as leaving issues regarding unitary status unclear. In that case, the Justices ruled 5 to 3 that a school district may be freed from court supervision once it eliminates the vestiges of desegregation "to the extent practicable." (See Education Week, Jan. 23 and 30, 1991 .)

The Court has two other major desegregation cases pending review.

One case, Board of Education v. Brown (No. 89-1681), is an appeal from the Topeka, Kan., school district that the Justices have failed to act on for more than a year. Like the DeKalb County case, this continuation of the historic case that led to school desegregation involves the question of whether a school system may be freed from court supervision when many one-race schools remain.

The other case pending review is Boston Teachers Union Local 66 v. Morgan (No. 90-1801), an appeal of a ruling in that city's long-running desegregation case. The union is challenging a federal judge's authority to require the Boston system to stick to a faculty and staff goal of 25 percent black and 10 percent other minority employment when the goal conflicts with seniority rights under a collective-bargaining agreement.

College Desegregation

The Supreme Court this term will also examine desegregation in state colleges and universities, thus delving into a legal area that is largely unmapped despite more than three decades of related decisions affecting elementary and secondary schools.

In U.S. v. Mabus and Ayers v. Mabus (Nos. 90-1205 and 90-6588), a consolidated pair of cases involving the Mississippi system of higher education, the Court will consider how far formerly segregated state-university systems must go to racially integrate institutions that have been either historically white or historically black. Several other Southern states that are involved in lawsuits over the desegregation of their higher-education systems are watching the case closely.

The Mississippi case concerns the state's legacy of official segregation in its public colleges and universities, which dates from the mid-19th century until 1962, when James Meredith became the first black to enroll in the University of Mississippi.

Both the Justice Department and a group of black plaintiffs that sued state officials in 1975 have appealed a ruling by the U.S. Court of Appeals for the Fifth Circuit that the state had satisfied its constitutional obligations by discontinuing past discriminatory practices and by implementing race-neutral policies at state institutions.

One issue in the case is the use of the admissions test of the American College Testing program, which state officials adopted in 1962 as an admission standard for its historically white institutions because "it was an effective tool for excluding blacks," according to the brief filed by the Justice Department. The state continues to use the A.C.T. "in a manner that underestimates the academic potential of black students" by requiring a higher minimum cutoff score at historically white institutions than at historically black institutions, according to the brief.

On another issue in the Mississippi case, the Justice Department has sparked controversy by taking the position that historically black colleges should not be provided with increased funds as a remedy for past discrimination. The private plaintiffs take the opposite view.

Title IX Dispute

In Franklin v. Gwinnett County School District (No. 90-918), the Court will examine whether Title IX of the Education Amendments of 1972, which bars sex discrimination in education programs, allows for compensatory damages.

School-law experts believe the decision in the case will affect not only Title IX but also Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination in federally funded programs, as well as Section 504 of the Rehabilitation Act of 1973, which guards the rights of the handicapped.

The case involves a high-school student, Christine Franklin, in the Gwinnett County, Ga., school system, who claims she was sexually harassed by a male teacher with whom she had sexual relations in 1987.

The U.S. Education Department's office for civil rights investigated the student's claims and found violations, but it accepted the school district's claims that it was correcting the situation. The teacher allegedly involved with the student resigned.

Ms. Franklin's suit seeking compensatory damages under Title IX was dismissed by a federal district court in a ruling later upheld by the U.S. Court of Appeals for the 11th Circuit.

A number of legal-advocacy and interest groups for women's and handicapped issues, along with the National Education Association, have joined in briefs filed on Ms. Franklin's side.

Vol. 11, Issue 05, Page 25

Published in Print: October 2, 1991, as Court Opens Term With Several Major School Cases on Docket
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