A wide-ranging array of cases of interest to educators, including significant ones about religious-school choice and school boards’ authority to censure their own “rogue” members, are on the U.S. Supreme Court’s docket as it opens its new term Oct 4.
Meanwhile, the justices are taking a hard look at a major affirmative action case involving Harvard University’s use of race in admissions as they await input from the Biden administration on whether to take up that case.
The justices are hanging up the phone after a year-and-a-half of oral arguments over teleconference necessitated by the COVID-19 pandemic. They will return to their bench in person for the first time since early March 2020. The courtroom will remain closed to the public, and only the justices, the lawyers arguing cases, essential court personnel, and a handful of reporters will be present.
But the court, at least for now, will maintain an experiment in greater access that started with the telephone arguments—live audio of the proceedings, which means students, teachers, and anyone else can listen to what is going on in the courtroom.
Here are the cases that educators and students may be most interested in following.
The school choice case from Maine is considered one of the big cases of the term, along with cases on abortion and gun rights.
In Carson v. Makin (Case No. 20-1088), the justices will review the state of Maine’s exclusion of schools that provide religious instruction from its program of paying private school tuition for students in communities without high schools.
The Maine case is a follow up to the Supreme Court’s 2020 decision in Espinoza v. Montana Department of Revenue, which held that a Montana state constitutional provision barring aid to religious schools discriminated against those schools and families seeking to benefit from a state tax credit for scholarship donations.
Writing for the 5-4 majority, Chief Justice John G. Roberts Jr. said that Montana excluded religious schools based on religious “status,” and thus he distinguished the Montana law from state programs that exclude a benefit over the “use” of government aid for religious education.
Maine’s “tuitioning” program excludes “sectarian” schools, or ones that promote a faith or belief system, although some private schools with nominal religious aspects such as daily chapel have been approved for participation.
The exclusion was challenged by two sets of parents who argue that their First Amendment free exercise of religion rights are violated by not being able to use the tuition aid at the religious schools they desire for their children.
The U.S. Court of Appeals for the 1st Circuit, in Boston, upheld the Maine program last year, ruling that its distinctive character and limited scope and the fact that its exclusion of certain schools was based on would-be religious use of the state funds distinguished the case from Espinoza.
While only Maine and Vermont have this quirky form of state “tuitioning” aid for towns without public schools, legal observers say the Supreme Court’s decision could still be significant.
“This is an important case for a broader range of school choice-type programs because if Maine were to succeed here in distinguishing this case from the previous ones like Espinoza , that would set a road map for other states to exclude religious schools from choice programs,” said Thomas C. Berg, a professor and religious liberty scholar at the University of St. Thomas School of Law in St. Paul, Minn., who joined a friend-of-the-court brief in support of the parents.
The case is set for argument on Dec. 8.
School board censure
In Houston Community College System v. Wilson (No. 20-804), the justices will consider whether a school board’s censure of one of its members over his speech violates the First Amendment. The issue may have greater salience at a time whenschool board meetings have become hotbeds of conflict and strife over issues such as pandemic protocols and teaching about race.
The Houston case stems from a community college board’s 2018 reprimand of David B. Wilson, an elected member of the board who had filed multiple lawsuits against the college he was helping to supervise. The board accused Wilson of leaking confidential information, making an anti-LGBTQ rant, and orchestrating robocalls to the constituents of some of his fellow board members. Wilson’s actions led the community college’s accrediting agency to express concern that the board was violating a core accreditation requirement by failing to act as a collective entity.
The board’s vote of public censure made Wilson ineligible for board officer positions, barred him from being reimbursed for travel, and restricted his access to discretionary funds. Wilson filed a First Amendment claim, and he argues that the board unconstitutionally disciplined him over speech he made outside of his “legislative” role.
A federal district judge ruled for the district, but a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, reversed and reinstated Wilson’s claim for damages last year. The Supreme Court took up the appeal of the board, which argues that censures by legislative bodies have a long history and do not affect the censured member’s ability to continue to speak out.
The community college board attracted the support of the Texas Association of School Boards and the National School Boards Association, which jointly filed a friend-of-the-court brief that highlights the need for boards to censure “rogue” members who do things such as disclose confidential information or interfere with the superintendent.
“It is often the case that school boards are not able to remove members without considerable judicial process, leaving censures or reprimands as the only tool at an elected board’s disposal to publicly address a rogue board member’s continued improper conduct,” the brief says.
The case is set for argument on Nov. 2.
The scope of federal civil rights laws in education
The court is taking up two cases involving federal anti-discrimination laws that may have implications for school districts.
In Cummings v. Premier Rehab Keller PLLC (No. 20-219), the question is whether a party suing a recipient of federal aid under laws such as the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Rehabilitation Act of 1973 may seek compensatory damages for emotional distress.
The case before the court involves a person with vision and hearing impairments who sued a federally funded physical therapy provider for alleged bias in a dispute over the provision of a sign-language interpreter.
The plaintiff’s suit included a claim for compensatory damages for emotional distress. Two lower courts ruled that such emotional distress damages are not available under Title VI of the Civil Rights Act, which bars discrimination based on race and other factors in federally funded programs, or under the Rehabilitation Act.
A friend-of-the-court brief in support of the plaintiff by the NAACP Legal Defense and Educational Fund cites several cases in which K-12 students have won damages for emotional distress under Title VI. One case involved a student who said he was retaliated against for complaining about the exclusion of minority students from a gifted and talented program and was awarded $50,000 in emotional distress damages.
“Courts have been particularly cognizant of the emotional harm suffered by students who experience racial discrimination in educational settings,” the NAACP LDF brief says.
The Cummings case is set for argument on Nov. 30.
Meanwhile, in CVS Pharmacy Inc. v. Doe (No. 20-1374), the court will consider whether Section 504 of the Rehabilitation Act, which bars disability bias in federally funded schools and other programs, provides for claims of so-called disparate-impact discrimination. These involve policies that have an unintentional effect of harming a protected group, such as racial minorities or students with disabilities.
The Rehabilitation Act is just one of several federal laws covering disability discrimination in public schools, and is in some ways broader than the Individuals with Disabilities Education Act, which addresses students identified as in need of special education.
The CVS case, which involves HIV-positive patients alleging disability discrimination in the administration of their pharmacy benefits, has attracted a friend-of-the-court brief signed by the National School Boards Association.
“States and localities receive over $74 billion per year in [federal] education funding,” says the brief. “Any alleged violation of the Rehabilitation Act places [such] critical sources of funding at risk.”
The brief also argues that interpreting the Rehabilitation Act to include disparate-impact claims would give “enterprising plaintiffs’ lawyers” the opportunity to use a threat of loss of federal funding as a bargaining chip against school districts and other local governments over disability practices or policies.
The CVS case will be argued on Dec. 7.
Education cases waiting in the wings
The court has been looking over the major affirmative action case involving Harvard University’s race-conscious admissions policies since last winter, and its request for President Joe Biden’s administration to weigh in before the justices decide whether to grant review was widely considered as a way to push one major issue down the road a bit.
The Biden administration has not yet filed its views in Students for Fair Admissions v. President and Fellows of Harvard College (No. 20-1199), though there is not much doubt among legal observers that it will argue that court rulings below upholding Harvard’s plan are correct. Any major ruling on affirmative action in higher education would likely affect race-conscious policies in K-12 schools.
Many observers expect the justices to take up the case regardless of what the Biden administration recommends, though it is unclear whether the case would be heard during the term about to start or get pushed over to the 2022-23 term.
Meanwhile, the last term was a big one for student speech, and this one could be big for the speech rights of public school educators. Joseph A. Kennedy, the Washington state high school football coach who effectively lost his job over his efforts to pray on the field after games, has asked the Supreme Court to take up his case.
When a preliminary appeal in Kennedy’s case reached the Supreme Court in 2019, the court denied review but four justices signed on to a statement that said a lower court’s understanding of the free speech rights of public school teachers was “troubling and may justify review in the future.” It takes only four votes to grant review in a case.
The pending petition is Kennedy v. Bremerton School District (No. 21-418).
A version of this article appeared in the September 29, 2021 edition of Education Week as Cases That Matter for Schools in New Supreme Court Term