Law & Courts

Justice Kennedy Retiring From High Court, Had Deep Imprint in Education Arena

Supreme Court jurist sets retirement date
By Mark Walsh — June 27, 2018 11 min read
U.S. Supreme Court Justice Anthony M. Kennedy, in a 2017 official portrait session at the Supreme Court Building in Washington.

Justice Anthony M. Kennedy, a highly influential moderate-conservative at the center of the U.S. Supreme Court for three decades who wrote major opinions on race, religion, and other areas of public education, announced his retirement on Wednesday, just hours after the court closed out its 2017-18 term.

“It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court,” Kennedy said in a statement released by the court. Kennedy has written a letter to President Donald Trump indicating that he will retire effective July 31.

Kennedy, who turns 82 on July 23, was the author of the court’s landmark 1992 opinion prohibiting clergy-led prayers at public school graduation ceremonies, but only after a dramatic personal reversal that came to light years later. On race, he voted with the court’s conservatives early on to limit desegregation remedies and against affirmative action in college admissions. But he wrote an important concurrence tempering the court’s 2007 decision that limited the ways K-12 schools could consider race in assigning students to schools. And last year he joined the court’s liberals in upholding the race-conscious admissions program at the University of Texas at Austin.

Kennedy was President Ronald Reagan’s third nominee for the seat vacated in 1987 by Justice Lewis F. Powell Jr., who had himself been at the center of the court on many issues, including race in education. (Reagan’s first choice, Judge Robert Bork, was defeated in the Senate 42-58; his second, Judge Douglas Ginsburg, withdrew amid revelations of marijuana use with his law students.)

Kennedy is a native of Sacramento, Calif., who in 1963 married Mary Davis, a teacher and librarian in the Sacramento public schools. Kennedy attended C.K. McClatchy High School in Sacramento, Stanford University, and Harvard University law school. He was appointed in 1975 by President Gerald R. Ford to the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

He took his seat on the Supreme Court mid-term, in February 1988, just after the court had decided a landmark student speech case, Hazelwood School District v. Kuhlmeier.

Concerns About Coercion

Relatively early in his tenure, Kennedy joined an 8-1 majority in a 1990 decision holding that a public high school, under the federal Equal Access Act, had to permit a student Christian club because it had allowed other non-curriculum-related student clubs.

Kennedy wrote a concurrence in Board of Education of the Westside Community Schools v. Mergens in which he expressed concerns about public schools coercing students to participate in religious activity. Courts must show “sensitivity to the special circumstances that exist in a secondary school where the line between voluntary and coerced participation may be difficult to draw,” he wrote.

The justices of the U.S. Supreme Court gather for an official group portrait to include new Justice Neil M. Gorsuch, top row, far right, on June 1, 2017, at the Supreme Court Building in Washington. Seated, front row, from left are, Justice Ruth Bader Ginsburg, Justice Anthony M. Kennedy, Chief Justice of the United States John G. Roberts Jr., Justice Clarence Thomas, and Justice Stephen G. Breyer. Back row, standing, from left are, Justice Elena Kagan, Justice Samuel A. Alito Jr., Justice Sonia Sotomayor, and Justice Neil M. Gorsuch.

Two years later, those concerns about coercion were critical as Kennedy wrote one of his most significant education opinions when he joined the court’s liberals in striking down clergy-led prayers at graduation as a violation of the First Amendment’s prohibition against government establishment of religion.

“There are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools,” Kennedy wrote in Lee v. Weisman. “The Constitution forbids the state to exact religious conformity from a student as the price of attending her own high-school graduation.”

Justice Antonin Scalia wrote a withering dissent in the 1992 case that said the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves” and that Kennedy’s “invented” coercion test was an “instrument of destruction” and “bulldozer of … social engineering.”

It was revealed 12 years later, when the papers of the late Justice Harry A. Blackmun were made public, that Kennedy had initially voted at the justices’ private conference in favor of upholding the clergy-led prayers. He was assigned to write the opinion for the court’s 5-4 majority in favor of the school district. But he struggled to draft the opinion, leading to a change of heart—and his vote.

“After writing to reverse in the high school graduation-prayer case, my draft looked quite wrong,” Kennedy wrote in a private memo to Blackmun on March 30, 1992. “So I have written [the decision] to rule in favor of the objecting student, both at middle school and high school exercises.”

With Kennedy’s switch, Blackmun became the senior justice in the majority, and he allowed Kennedy to keep the opinion assignment. One of Blackmun’s law clerks later wrote to her boss that “getting Justice Kennedy’s vote and winning this case is the greatest victory of the year.”

Complicated on Race

During that same 1991-92 term, Kennedy wrote his first major opinion on race in education.

In Freeman v. Pitts, the court held that federal judges may relinquish control of desegregation plans in stages, such as by ending supervision of student assignments while maintaining oversight of faculty allocation or other factors. That portion was unanimous by the eight participating justices. (Justice Clarence Thomas had joined the court too late in the fall of 1991 to participate in the case.)

“Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system,” Kennedy wrote for the court.

Five justices went on in that case to hold that school systems once segregated by law need not remedy racial imbalances caused by demographic shifts and other factors not under their control.

“Racial balance is not to be achieved for its own sake,” Kennedy wrote for that majority. “Residential housing choices, and their attendant effects on the racial composition of schools, present an ever-changing pattern, one difficult to address through judicial remedies.”

Kennedy’s views on race and education would go on to be one of the signature areas of his jurisprudence.

In 2007, when the court sharply limited the use of race in assigning students to K-12 schools in districts that were no longer, or never had been, under court supervision, Kennedy joined the judgment that invalidated voluntary race-conscious assignment plans in the Seattle and Jefferson County, Ky., school districts. But he wrote a significant concurrence that made clear he would not go as far as Chief Justice John G. Roberts Jr.’s plurality opinion.

“A district may consider it a compelling interest to achieve a diverse student population,” Kennedy said in his concurrence in Parents Involved in Community Schools v. Seattle School District. “Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered.”

In 2003, when the court upheld the admissions program of the University of Michigan law school that considered race as part of a holistic review, Kennedy expressed support for student diversity but voted with the dissenters because he did not believe the plan had been analyzed under the most exacting level of judicial review, known as strict scrutiny.

“It is regrettable the court’s important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities is accompanied by a suspension of the strict scrutiny which was the predicate of allowing race to be considered in the first place,” Kennedy wrote in a separate dissent in Grutter v. Bollinger.

Ten years later, when another university’s race-conscious admissions program was under review, Kennedy wrote the opinion for a lopsided 8-1 majority, in Fisher v. University of Texas at Austin (Fisher I), that returned the case to a federal appeals court because Kennedy believed the lower court had not properly applied strict scrutiny.

So it was surprising to many in 2016 when the Fisher case returned to the Supreme Court, after the Texas program had again been upheld by the lower court, and Kennedy wrote the 5-3 decision upholding the plan.

“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,’” Kennedy wrote in Fisher II, quoting a landmark 1950 decision on desegregation in higher education, Sweatt v. Painter. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

Happy Faces and Gold Stars

Kennedy was so often in the majority on the court’s major issues that one has to search for a major dissent of his in an education case.

In 1999, the court ruled 5-4 in Davis v. Monroe County Board of Education that school districts may be sued under Title IX of the Education Amendments of 1972 in cases involving student-on-student, or peer, sexual harassment. Justice Sandra Day O’Connor had joined with the court’s liberal bloc and wrote the majority opinion.

Kennedy wrote the dissent for the court’s conservatives that the decision “imposes on schools potentially crushing financial liability for student conduct that is not prohibited in clear terms by Title IX,” the federal law that bars discrimination based on sex in federally funded schools.

“The only certainty flowing from the majority’s decision is that scarce resources will be diverted from educating our children and that many school districts, desperate to avoid Title IX peer harassment suits, will adopt whatever federal code of student conduct and discipline the Department of Education sees fit to impose upon them,” Kennedy wrote. “The nation’s schoolchildren will learn their first lessons about federalism in classrooms where the federal government is the ever-present regulator.”

Kennedy was much more often in the majority, as he was in the court’s first decision to interpret the Family and Educational Rights and Privacy Act.

In Owasso Independent School District v. Falvo, in 2002, Kennedy wrote the opinion for the court holding that FERPA did not bar the practice of students exchanging papers and quizzes so they could grade each other’s work.

“At argument, counsel for [a parent] seemed to agree that if a teacher in any of the thousands of covered classrooms in the nation puts a happy face, a gold star, or a disapproving remark on a classroom assignment, federal law does not allow other students to see it,” Kennedy wrote. “We doubt Congress meant to intervene in this drastic fashion with traditional state functions.”

One of Kennedy’s signature areas of the law involved expanding gay rights. In 1996, he wrote the opinion for the court in Romer v. Evans striking down a Colorado ballot measure that barred the state government, cities, and school districts from enforcing laws or policies protecting homosexuals from discrimination.

“It is not within our constitutional tradition to enact laws of this sort,” Kennedy wrote.

Kennedy also wrote important majority decisions on gay rights in 2003, rejecting homosexual sodomy laws in Lawrence v. Texas; in 2013, striking down the federal Defense of Marriage Act in United States v. Windsor; and in 2015, declaring a federal constitutional right to same-sex marriage in Obergefell v. Hodges.

These decisions have been felt in numerous ways in the nation’s schools, and the Obergefell case, which was a collection of multiple cases, included one litigant who was a public school educator.

In February, during oral arguments in Janus v. American Federation of State, County, and Municipal Employees Council 31, about public-employee unions, Kennedy was downright hostile to the unions, suggesting they were partners with states “in advocating for a greater size workforce, against privatization, against merit promotion, for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, [and] for increasing taxes.”

On June 27, on the last day of the court’s term, Kennedy joined the 5-4 majority in Janus, which overruled an earlier decision and held that public-employee unions, including teachers’ unions, may not collect agency fees for collective bargaining from those workers who decline to join the union.

Kennedy’s wife, Mary, and what appeared to be several of his grandchildren, were in the courtroom for the final day of this year’s term. Later, the justice personally delivered his retirement letter to the president at the White House, the court’s public information office said.

Civics Education Advocate

One possible activity for Kennedy in retirement is civic education, in which he has long been interested. As far back as the period shortly after the Sept. 11, 2001, terrorist attacks on the United States, Kennedy developed a curriculum to promote democratic values.

Four years ago, Kennedy released a lengthy list of works recommended for young people called “Understanding Freedom’s Heritage: How to Keep and Defend Liberty.” Besides works by Plato, Cicero, Shakespeare, the Founding Fathers, Abraham Lincoln, Mark Twain, Ronald Reagan, and others, Kennedy’s list has what the short introduction calls “idiosyncratic choices.” These include Lou Gehrig’s farewell to baseball, Don McLean’s song “American Pie,” and specified scenes from such films as “To Kill a Mockingbird,” “A Few Good Men,” and “Legally Blonde.” (Kennedy once remarked that he was struck that law students overseas had told him they were inspired to pursue law school by the lighthearted film.)

Also in 2013, at the federal courthouse in Kennedy’s hometown of Sacramento, the Justice Anthony M. Kennedy Library and Learning Center opened to serve as the home for various civics and educational programs.

Kennedy was supposed to lead a discussion of civics education in the summer of 2017 at the annual conference of the U.S. Court of Appeals for the 9th Circuit, in San Francisco. But Kennedy had to miss the meeting because his wife had broken her hip while they were in Europe. Then-new Justice Neil M. Gorsuch, who had served Kennedy as a law clerk, filled in for Kennedy at the civics session.

A version of this article appeared in the July 18, 2018 edition of Education Week as Kennedy’s K-12 Legacy a Deep One

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