Law & Courts

In New Term, Supreme Court Set to Tackle Case on School Board Members’ Social Media Use

These are the cases educators will want to watch during the court’s new term.
By Mark Walsh — September 28, 2023 11 min read
The Supreme Court is seen in Washington on Sept. 25, 2023. The new term of the high court begins Oct. 2, 2023.
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The last term was a momentous one for education in the U.S. Supreme Court.

The justices ended the use of race in college admissions as it had been practiced for half a century, in a decision whose implications are still being sorted out in K-12 education.

The court also made it easier for students with disabilities to sue school districts over alleged discrimination. And it struck down President Joe Biden’s $400 billion student loan relief plan, in a decision whose reasoning may restrict federal education policymakers on other issues.

The new high court term that begins Oct. 2 includes several cases of interest to educators—about social media use by school board members and other public officials, about whether federal employment-discrimination law applies to job transfers resulting in no significant disadvantage to the employee (such as a pay cut), and about when courts should give deference to federal agencies on their interpretations of federal statutes.

But it’s the “maybe” pile of cases—those that might later be added to the docket—that is most intriguing and could create another landmark year for education law.

Following up on the court’s affirmative action decision last June in Students for Fair Admissions v. President and Fellows of Harvard College, advocates have asked the justices to take up a case that implicates racial diversity in selective K-12 schools. The court is receiving briefs in the closely watched case involving Thomas Jefferson High School for Science and Technology in Alexandria, Va. A group advocating for Asian American students is appealing a decision that upheld the Fairfax County school district’s revised admissions policy for the acclaimed magnet school, which was facially race-neutral but adopted with a goal of boosting racial diversity among the enrollment.

“This surely will be an issue of nationwide importance going forward,” said Wen Fa, a lawyer formerly with the Pacific Legal Foundation, which represents the parents group in Coalition for TJ v. Fairfax County School Board.

The court might also get the chance to fully take up transgender issues in K-12 education. Cases concerning restroom and athletics policies affecting transgender students have been moving through the lower courts and are getting close to the high court.

“The landscape of trans rights litigation … is evolving very rapidly, in part because we’re seeing a continued legislative attack at the state level on transgender individuals, particularly trans youth,” said Chase Strangio, the deputy director for transgender justice at the American Civil Liberties Union’s LGBTQ and HIV Project.

The Supreme Court enters the social media age, sort of

Here are three issues on the court’s docket that will be felt in education:

Social media: Many school board members use their personal social media sites to convey their status as elected officials and to disseminate information about school district matters. Some end up blocking a few parents or other followers for mass postings or other annoying conduct.

The question for the Supreme Court in O’Connor-Ratliff v. Garnier is whether public officials engage in “state action” subject to the First Amendment when they block someone from their social media sites that highlight their office and policy matters.

In that case, the court accepted appeals from two California school board members (one no longer serving) of a federal appeals court ruling that the board members had created a public forum because “they clothed their pages in the authority of their offices and used their pages to communicate about their official duties” and thus violated the First Amendment rights of the blocked users.

The school board members, Michelle O’Connor-Ratcliff and T.J. Zane of the Poway Unified School District, maintained personal sites on Facebook and X (formerly known as Twitter) that identified them as board members that they used to post news about board meetings, a superintendent search, and student musical performances. Both board members blocked the same two parents (a married couple) for posting repetitious comments. The parents sued the board members under the First Amendment, arguing that the blocking violated their rights to free speech and to petition the government.

In a Supreme Court brief, the board members say that “rather than facilitating more speech by the public, the decision below will lead to self-censorship by citizens who are also officials.”

The high court will hear separate arguments in a related case, Lindke v. Freed, involving a city manager in Michigan who blocked a resident from his personal Facebook page for criticizing the city’s handling of COVID-19.

Both arguments are set for Oct. 31. The court will also take up this term cases involving laws in Florida and Texas aimed at keeping large social media sites from blocking conservative viewpoints.

“This is shaping up as a consequential term for speech on social media platforms,” said Evelyn Danforth-Scott of the American Civil Liberties Union, which filed friend-of-the-court briefs supporting the blocked constituents.

Job transfers: School districts are large employers, with the need to transfer teachers and others to different schools or other new posts, sometimes against the employees’ wishes. Under federal job discrimination law, there are conflicting rulings about whether discriminatory transfers are prohibited if they don’t result in a significant change in job conditions, such as pay.

The Supreme Court is taking up a case involving a police department, but the ruling will affect schools, too.

Muldrow v. City of St. Louis involves a female sergeant who was transferred out of the intelligence unit and back to a local police precinct, where she did not suffer a pay decrease but had to wear a uniform again and conduct routine street patrols. The sergeant, Jatonya Muldrow, sued for sex discrimination under Title VII of the Civil Rights Act of 1964, arguing that her transfer was the result of sex bias by the new intelligence unit leader.

She lost in both a federal district court and the U.S. Court of Appeals for the 8th Circuit, in St. Louis. The appellate court held that “transfer that does not involve a demotion in form or substance cannot rise to the level of a materially adverse employment action” under Title VII.

The briefs in the case are filled with citations to lower-court cases based on job transfers in education, and they come down on both sides. Some courts have ruled that a teacher’s transfer to a school farther away from her home and a high school security guard’s transfer to a middle school were not adverse job actions covered by Title VII.

However, a different court ruled that an art teacher’s transfer from a junior high to an elementary school did interfere with a condition of employment. Courts have split on whether a school principal’s shift to a job in the central office was a mere lateral transfer (as one court ruled) or loss of prestige and position (as another court ruled).

Many of these rulings were preliminary on the question of whether the transfer was adverse, before courts took up the question of whether they were motivated by the alleged discriminatory purpose.

The case has not yet been scheduled for argument.

Federal agencies: What could a case about federal observers on commercial fishing vessels possibly mean for education policy?

In Loper Bright Enterprises v. Raimondo, the court will take up the challenge to a federal regulation requiring the fishing industry to pay for the observers, who are authorized by statute and join vessels to prevent overfishing. But the court has indicated it will use the case to reconsider a 1984 decision that requires courts to give deference to federal agencies’ interpretations of statutes when those laws are “silent or ambiguous.”

That precedent is Chevron U.S.A. Inc. v. National Resources Defense Council, and it is the source of the “Chevron test,” which has been criticized for years by conservatives as helping vest greater power in federal departments and agencies, including the U.S. Department of Education.

Loper Bright is an administrative case that “is also a fish case,” said Roman Martinez, a Washington lawyer and frequent Supreme Court advocate not involved in the case. “The facts don’t matter all that much.”

U.S. Solicitor General Elizabeth B. Prelogar, representing the federal agency involved, argues in a brief that “overruling Chevron would be a convulsive shock to the legal system.”

“All three branches of government, regulated parties, and the public have arranged their affairs for decades with Chevron as the backdrop against which Congress legislates, agencies issue rules and orders, and courts resolve disputes about those agency actions,” she said.

Prelogar’s brief notes that the last time the Supreme Court applied Chevron to an Education Department interpretation of the law was in 2007, in the case of Zuni Public School District v. Department of Education.

In that complicated case, the high court deferred under Chevron to the department’s interpretation of how federal aid to districts with a heavy federal presence should be calculated under the Impact Aid Act.

Sarah M. Konsky, a clinical professor of law at the University of Chicago and the director of its Supreme Court clinic, noted that the Supreme Court itself has not cited Chevron in several years and that litigants focus on other arguments before raising Chevron-deference claims.

When the Supreme Court struck down President Biden’s student-loan relief program earlier this year as an administrative overreach in interpreting the Higher Education Act, it did not even cite Chevron or apply its test.

“There are good arguments to be made that Chevron currently isn’t doing a lot of work in a lot of cases,” Konsky said.

Still, some conservatives view the case through a lens focused on the Education Department’s forthcoming final regulations on schools and transgender students under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally funded educational programs.

A friend-of-the-court brief in Loper Bright written by the Alliance Defending Freedom, the Scottsdale, Ariz.-based legal organization that has fought against transgender rights in several arenas, argues that the department’s Title IX rule would interpret “sex” under the statute to mean “gender identity,” with implications for school sports and restrooms.

“When the department’s final rule issues, the agency will likely inevitably [invoke] Chevron deference,” says the brief. “No court should be forced by Chevron to defer to the department’s claim that Title IX means the opposite of what it says. The statute deals with discrimination on the basis of sex, not gender identity, and Title IX’s direct reference to a male-female binary excludes any gender identity interpretation.”

No argument date has been set yet for Loper Bright.

Selective magnet admissions and transgender issues are in the wings

With regard to the education cases that might be added to the new term’s docket, there is a pending appeal at the high court from the challengers to the admissions policy at Thomas Jefferson High School in Virginia.

The Pacific Legal Foundation, in its brief representing the Coalition for TJ challengers, notes that there are similar cases challenging magnet school admissions policies in Boston, New York City, and Montgomery County, Md., that the challengers contend seek to racially balance the student enrollment to the detriment of Asian American students in violation of the 14th Amendment’s equal-protection clause.

“Coming as it does on the heels of last term’s decision curtailing racial discrimination in higher education admissions, this is one of several ongoing challenges to competitive K-12 admissions criteria that seek to accomplish a racial objective ‘indirectly’ because it ‘cannot be done directly,’” says the appeal, pointedly quoting from the majority opinion in the Students for Fair Admissions v. Harvard decision.

The Fairfax County district has an Oct. 23 deadline to file its brief, after which the court could decide whether it is ready to dive back into affirmative action-related issues so soon after its landmark decision at the higher education level.

Meanwhile, transgender cases may reach the court this term (outside of their mention in the Chevron deference case). Federal appeals courts are now split on whether schools must allow transgender students to use restrooms aligned with their gender identity under Title IX and the equal-protection clause.

In January, the full U.S. Court of Appeals for the 11th Circuit, in Atlanta, upheld a Florida school district’s policy of separating restrooms by “biological sex,” holding that they were authorized to do so under Title IX. Lawyers representing transgender student Drew Adams from Lambda Legal opted not to appeal that to the Supreme Court.

In August, a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled the opposite way and for transgender students in a consolidated appeal involving two Indiana school districts.

Those districts, in Martinsville and Vigo County, Ind., did not seek review by the full 7th Circuit but could yet come to the Supreme Court.

The 7th Circuit judge who wrote the panel decision in favor of the transgender students suggested more direction from the high court in this area would be welcome.

“Litigation over transgender rights is occurring all over the country, and we assume that at some point the Supreme Court will step in with more guidance than it has furnished so far,” Judge Diane P. Wood wrote.

A version of this article appeared in the October 11, 2023 edition of Education Week as In New Term, Supreme Court Set to Tackle Case On School Board Members’ Social Media Use


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