Law & Courts

Court Nominee Breyer Called ‘Consensus Builder’

By Mark Walsh — May 25, 1994 3 min read
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President Clinton last week called his choice for the U.S. Supreme Court, Judge Stephen G. Breyer, a gifted “consensus builder” who will serve in the tradition that led to the unanimous 1954 desegregation decision in Brown v. Board of Education.

The President nominated Judge Breyer, who is the chief judge of the U.S. Court of Appeals for the First Circuit in Boston, on May 13 to replace retiring Associate Justice Harry A. Blackmun.

Citing the unanimity of the Brown decision, Mr. Clinton predicted at a May 16 ceremony that Judge Breyer “will be a Justice who seeks to insure that the Court speaks in a clear voice, as unified a voice as it is possible to speak in furthering the goals of liberty and equality under the law.”

Judge Breyer, 55, spoke during the ceremony of the influence of his teachers at Lowell High School in San Francisco; of his father, a career administrator of that city’s school district; and of his mother, “who taught us by example that the education of her children meant so very much more than material comforts.”

In a speech earlier this year to the Massachusetts Commission on the Common Core of Learning, Judge Breyer discussed the importance of teaching civics, American history, and the basics of the legal system to high school students.

“As an appellate judge, I set for myself a goal of trying to write my opinions so that a high school student, if willing to take a little time, would understand that, in the circumstances, the law as revealed in that opinion makes sense,” he said.

Leeway for Administrators

As a member of the First Circuit Court since 1980, Judge Breyer has ruled on relatively few education cases. But he appears to have strong views about giving school officials the leeway to do their jobs.

For example, in a dissent to a 1992 decision in favor of a learning-disabled Tufts University medical-school student who sought an alternative to multiple-choice tests, Judge Breyer sided with the university because its expert said such tests were necessary.

The judge wrote that he opposed taking “a basic educational decision away from those who may know the most about it” and placing it in the hands of lawyers.

In a 1982 case, Judge Breyer wrote an opinion upholding a New Hampshire district’s decision to suspend bus service for all students on one route for a five-day period when unruly students got out of hand. Parents sued, saying their children were being deprived of a benefit without due process of law.

“We have serious doubts about whether the pupils or their parents have asserted a property interest sufficiently weighty for the due-process clause to apply,” Judge Breyer wrote. “The maximum harm is the inconvenience ... of a car pool, a long walk, or some other private transportation arrangement for five days.”

Judge Breyer has written two significant rulings in school cases involving the First Amendment’s clauses on establishment of religion and free exercise of religion.

Rulings on Religious Issues

In a 1989 case from Massachusetts, Judge Breyer rejected a Christian academy’s contention that it should not have to be approved by the local school board. The school suggested that it voluntarily submit student test scores as an alternative to inspection by local officials.

“It is difficult to see how a purely voluntary system for monitoring nonpublic education can serve the state’s interest in assuring educational quality,” he wrote.

In a 1983 case from Rhode Island, Judge Breyer backed efforts of the state to develop a plan to provide bus transportation to religious-school students, even if it meant spending more to transport them beyond the lines of the public school district in which they resided.

“The First Amendment, after all, is impartial,” the judge wrote. “It plays no favorites between public and parochial school students, and that impartiality implies that it not penalize parochial school students on the basis of public school district lines.”

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A version of this article appeared in the May 25, 1994 edition of Education Week as Court Nominee Breyer Called ‘Consensus Builder’


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