Law & Courts

For One Supreme Court Justice, a Personal Connection to School Law

By Mark Walsh — April 10, 2018 9 min read
Supreme Court Associate Justice Stephen Breyer testifies before a House Committee on Appropriations Subcommittee on Financial Services hearing to review the FY 2016 budget request of the Supreme Court of the United States, on Capitol Hill in Washington, March 23, 2015. Breyer is retiring, giving President Joe Biden an opening he has pledged to fill by naming the first Black woman to the high court, two sources told The Associated Press Wednesday, Jan. 26, 2022.
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Whenever U.S. Supreme Court Justice Stephen G. Breyer is asked about his father, he typically slips the Omega watch from his left forearm and shows off the inscription.

“Irving G. Breyer—Legal Advisor—SFUSD—1933-1973—From Your Friends.”

The elder Breyer was legal counsel to the San Francisco Unified School District for those 40 years, serving from the depths of the Great Depression until the era when the city’s school system grappled with desegregation.

U.S. Supreme Court Associate Justice Stephen G. Breyer still wears the watch his father, Irving G. Breyer, received in honor of his four decades of service as legal counsel to the San Francisco school district.

“He loved the job,” Justice Breyer said in a rare interview that offered insight into his family history and into a little-known, but influential, facet of local school administration. “He started in the city attorney’s office. He went over [to the school board] for [what was supposed to be] three weeks. He stayed for 40 years.”

Last year, this Education Week reporter was in San Francisco and came across a public notice in the newspaper of an upcoming school board meeting in the “Irving G. Breyer Board Meeting Room.” The city’s school board had renamed the room in honor of the longtime legal counsel shortly after Irving Breyer’s death from cancer in 1979 at age 70.

The meeting-room reference was a reminder of an indelible influence on Justice Breyer, who will turn 80 in August and reach his 25th anniversary on the Supreme Court next year. So the justice was asked by Education Week if he would be willing to reflect on his father’s career in education law and his inspiration to his sons to pursue the law. (Charles R. Breyer, the justice’s only sibling, is a 76-year-old federal district judge in San Francisco, now on senior, or semiretired, status.)

‘Where Is City Hall?’

The interview took place in late March, with a hearty blaze roaring in the fireplace in the justice’s chambers as Washington’s winter refused to yield to spring.

Irving Breyer loved San Francisco politics, the justice said. “He would have friends who lived down the peninsula or across the Bay, and I could never understand why they did,” Breyer said. “Why didn’t they live in the city? The city was where things happened.”

His father used to say, “If you’re going to be the legal adviser to the school board, ... the first thing you have to know is the answer to a geography question,” the justice said. “And people would say, ‘What do you mean, a geography question? What question?’ He said, ‘Where is City Hall?’ ”

The San Francisco district enrolled about 106,000 students in 1933, compared with 80,000 when Irving Breyer retired in 1973 and 60,000 today. It is independent of but closely tied to the contiguous city government. Irving Breyer no doubt knew where City Hall was. His father, Samuel T. Breyer, was a member of the city’s board of supervisors in the early 1930s. (It is part of San Francisco’s storied lore, however, that Samuel Breyer had to give up his seat when he was convicted in 1934 of grand theft in the arrangement of a bank loan.)

Justice Breyer says his father was lucky to have a job during the Depression, and he repeated advice from his father that he often mentions in public appearances: “Stay on the payroll.”

In 1936, after Irving Breyer had served as legal adviser to the school system for some three years, a question arose about whether the position was part of the civil-service system. Irving Breyer took the civil-service test and “placed first in the list of eligibles for the position of law clerk with the school department,” the San Francisco Chronicle reported at the time.

Irving Breyer was prominent enough in the city that on Aug. 16, 1938, the Chronicle ran a short item reporting the birth the previous day of “a 6-pound-12-and-a-half-ounce son” to “Mrs. Irving Breyer.” Irving Breyer quipped to the paper that the birth of his first son, Stephen, was well-timed. “This shows I’m doing right by my job,” the new father said. “School starts today, you know.”

Mrs. Irving Breyer was the former Anne A. Roberts, who hailed from St. Paul, Minn. Their son Charles, who was born in 1941, said in a telephone interview that his and Stephen’s mother was active in the League of Women Voters and for a group that promoted the United Nations.

“She took a more global and liberal view of politics and what government could do” than their father, Charles Breyer said.

Much of the Breyer boys’ upbringing has been well-documented. They attended public schools, including the prestigious Lowell High School. Anne Breyer, who died in 1971, was concerned about Stephen’s bookishness and made sure that her sons joined the Boy Scouts and that Stephen spent a summer abroad, in France.

A circa 1958 family photo of the Breyer family shows, from right, Stephen G. Breyer; his father, Irving G. Breyer; his mother, Anne A. Breyer; and his brother, Charles R. Breyer.

Justice Breyer speaks frequently of studying government in school and going to Sacramento to observe the state legislature in action. In debate, his Lowell High team competed against the nearby St. Ignatius College Prep School team that included Edmund G. “Jerry” Brown Jr., who would go on to become California governor in two very different eras. (Brown, a few months older than Stephen Breyer, leaves that office for good in early 2019.)

Charles Breyer said that when he and his brother reached high school age, their father would discuss some of the school district’s work at the dinner table.

“That’s when we became aware of the enormous pressures he was under,” Charles Breyer said. “He had a single client. ... The client was a seven-member school board, each with their own agendas and ambitions.”

A Range of Thorny Issues

In his 40 years as legal counsel, Irving Breyer helped steer the system through the mundane and the unusual. Some of his actions reflect the work of a government lawyer seeking to guide his client on thorny issues, some that were reflective of their era.

In 1955, the San Francisco Chronicle reported that Irving Breyer “took issue here yesterday with [California] Attorney General Edmund G. Brown’s opinion banning prayers from public school classrooms. If a prayer is nonsectarian and nondenominational, there is no legal reason why it cannot be spoken or sung in the classroom, Irving G. Breyer advised the Board of Education.”

The elder Brown, known as Pat, was the father of Jerry Brown, and would himself become California governor from 1959 to 1967. And public school prayers would not be prohibited by the U.S. Supreme Court until the early 1960s.

In 1956, Irving Breyer defended the school board when it sought to dismiss an instructor at the City College of San Francisco (which was under the board’s auspices) for refusing to testify before the U.S. House Un-American Activities Committee about whether he had been a member of the Communist Party.

The school board’s position was that the California education code at that time required a loyalty oath (which the instructor had signed) and that anyone who refused to answer legislative questions about matters such as Communist Party membership was subject to dismissal for insubordination. The California Supreme Court ruled that the instructor had to be accorded greater due process to determine his reasons for refusing to answer the House committee’s questions.

In the 1960s, Irving Breyer helped advise the San Francisco system and others around the state, through the California School Boards Association, in an era when teachers asserted and won their right to bargain collectively with their employers.

And beginning in the 1960s and extending into the early 1970s, the legal counsel faced his biggest challenge—the desegregation of the San Francisco schools.

Throughout the 1960s, civil rights groups pressed the school system to address widespread de facto segregation of black students. San Francisco school administrators, and sometimes special commissions, conducted studies and proposed various remedies. But it took a lawsuit and a 1971 order from a federal district judge to begin the desegregation of the city’s elementary schools and a separate case for its secondary schools. Desegregation efforts and their ensuing controversies continued in San Francisco well after Irving Breyer retired from the school system in 1973.

‘You Work It Out’

Stephen Breyer was established on the East Coast by that time, teaching at Harvard Law School and working at various times for the U.S. Department of Justice, for the Senate Watergate Committee, and as a senior staff member for the Senate Judiciary Committee under the leadership of Sen. Edward M. Kennedy, the Massachusetts Democrat. He was nominated by President Jimmy Carter to the U.S. Court of Appeals for the First Circuit, in Boston, and served there until he joined the Supreme Court in 1994.

Breyer said he doesn’t have a great recollection of the specific controversies his father faced on the job.

“But I can tell you his character was to try to work things out,” Breyer said. “When I worked with Senator Kennedy, he kept saying, ‘Work it out. Work it out.’ And that was familiar to me because that was generally my father’s attitude toward most of the problems. You do your best. You work it out.”

Charles Breyer, who was a longtime assistant district attorney in San Francisco and worked in private practice before being nominated by President Bill Clinton to become a federal district judge in 1997, said his father was very much a pragmatist. “My brother is accused of being a pragmatist on the court. That comes from our upbringing,” he said.

Justice Breyer was reminded, during the interview in his chambers, of some of the votes he has cast and opinions he has written in cases involving school districts. While the justice has ruled both for and against school boards and administrators during his long tenure, the proposition was put forth that he has perhaps felt the influence of his father, the veteran school district lawyer.

In particular, Justice Breyer was reminded of his concurring opinion in a 2007 case in which the court upheld the discipline of a student who had displayed a banner with the phrase “BONG HiTS 4 JESUS” at a school event.

Breyer concurred in the judgment in part and dissented in part, saying he would have only upheld qualified immunity for the principal and school board, who were the targets of the student’s suit over the discipline, and not ruled on the question of First Amendment protection for the banner.

On a broader point, he expressed worry in the opinion that the more detailed the Supreme Court’s supervision of school discipline becomes, the more such disputes will “make their way from the schoolhouse to the courthouse.”

“Yet no one wishes to substitute courts for school boards, or to turn the judge’s chambers into the principal’s office,” the justice wrote.

In the interview, Breyer did not suggest his father’s position led him directly to sympathize with school administrators. But he also did not discount the more subtle effect his father and his career in education law may have had on him.

“Of course people are influenced by their families, by where they went to school,” Breyer said. “There’s no way you escape your own background.”

“So, if you say, ‘What influence?’ I don’t know,” he continued. “It’s just a question of outlook. I’m sure what I got from him, which is very important and which misleads people sometimes, is to listen to what the other person says. Listen to it. And then having listened to it, you take it into account. That’s absolutely Senator Kennedy, and it’s also, I think, my father. It can mislead people because they think you agree with them. You don’t necessarily agree with them, but you do want to find out what they think.”

Librarian Holly Peele contributed to this report.
A version of this article appeared in the April 11, 2018 edition of Education Week as A High Court Justice’s School Law Heritage

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