Law & Courts

Education and the Supreme Court: What to Watch for in the New Term

By Mark Walsh — September 29, 2020 4 min read

The new U.S. Supreme Court term that opens Oct. 5 has fewer cases of interest to educators than the blockbuster 2019-20 term, which included decisions easing state aid to religious schools, eliminating employment protections for parochial school teachers, extending deportation relief for undocumented immigrants, and protecting LGBTQ workers from discrimination.

The new term has just a handful of cases for educators to watch so far, but things could change swiftly. And with the Sept. 18 death of Justice Ruth Bader Ginsburg, a new justice will bring fresh perspectives, whenever she (or he) is confirmed.

“Last term was by far the most consequential term in recent memory,” said Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown University Law Center. “At first glance, this [new] term will be a reversion to the mean, with far fewer blockbusters and far fewer surprising results.”

Still, there already are cases scheduled for hearing on the intersection between religious freedom rights and anti-discrimination laws and a new attack on the Affordable Care Act, President Barack Obama’s signature health law that has long attracted support from the teachers’ unions.

The court could well add other education-related cases. The justices are weighing whether to take up cases that raise issues following up on the court’s 2018 decision in Janus v. American Federation of State, County, and Municipal Employees Council 31, which overruled a 1977 precedent that had authorized public-employee unions to collect service fees from those who decline to join the union.

In Janus, the court said collective bargaining in education was a matter of public concern, and nonmembers could not be compelled under the First Amendment to help fund views with which they disagreed. Across the country, union objectors, backed by groups that pressed the Janus case, have been seeking refunds of fees collected over many years before the 2018 shift in the law.

Lower courts have rejected those claims, and there are now at least three pending appeals asking the justices to consider the issue. Those are Janus v. AFCSME (Case No. 19-1104), Mooney v. Illinois Education Association (No. 19-1126), and Danielson v. Inslee (No. 19 -1130).

Meanwhile, the court is also being asked to take up an issue that may be even more of a threat to the strength of public-employee unions. In Reisman v. Associated Faculties of the University of Maine (No. 19-847), the question is whether exclusive representation systems—in which, for example, state laws authorize only one union to represent teachers in a given district—raise the same First Amendment issues as the compelled collective-bargaining fees that the court rejected in Janus.

On the Docket

In addition to those union-related cases that could be granted review, here are some cases already on the docket for educators to watch in the 2020-21 court term:

Religious freedom vs. non-discrimination—In Fulton v. City of Philadelphia (No. 19-123), Catholic Social Services, an agency of the Roman Catholic Archdiocese of Philadelphia, is challenging its exclusion from the city’s foster-care system.

In 2018, the city learned that the Catholic agency was not endorsing same-sex couples to become foster parents. The city argues that the refusal violates contractual provisions barring discrimination on the basis of sexual orientation. The social-services agency says it is following Catholic teaching on same-sex marriage, and the city’s exclusion is a matter of religious hostility that violates its First Amendment speech and free-exercise-of-religion rights.

A federal appeals court ruled that the city was applying a neutral and generally applicable policy and thus upheld it under the Supreme Court’s 1990 decision in Employment Division, Department of Human Resources of Oregon v. Smith. In that case, the high court cast aside a long-prevalent “strict scrutiny” test for evaluating government action that infringed the free exercise of religion guaranteed under the First Amendment.

In granting the Catholic organization’s appeal, the Supreme Court asked the parties to weigh in on whether Smith should be overruled. If the court went that far, the result would have implications for disputes over religious practices involving both public and private schools. And the way the court resolves how to handle the balance between religious rights and non-discrimination policies is potentially important in education, especially after last term’s landmark ruling in Bostock v. Clayton County, Ga., that federal employment law protects LGBTQ workers.

Paul D. Clement, a former U.S. solicitor general who argues frequently before the court, said at a George-town Law forum that the case raises significant issues, but also provides the justices “some potential off-ramps” because of factual and procedural complications. The case will be argued Nov. 4.

The Affordable Care Act—In California v. Texas (No. 19 -840), the justices will again take up the controversial health law. The latest appeal stems from a lawsuit filed by Texas and 17 other states challenging the constitutionality of the law after Congress in 2017 eliminated the penalty for not complying with the law’s individual mandate.

What does this mean for education? Because the law affects every corner of the health-insurance system, there have been some trickle-down effects on schools. The American Federation of Teachers and the National Education Association have joined a friend-of-the-court brief arguing that the ACA has eliminated discriminatory health-insurance practices that, in particular, hurt working women and their families.

The case will be argued Nov. 10.

A version of this article appeared in the September 30, 2020 edition of Education Week as Education and the Supreme Court: What to Watch for in the New Term


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