Law & Courts

Justice Stephen G. Breyer, Who Sympathized With School Administrators, Set to Retire

By Mark Walsh — January 26, 2022 15 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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U.S. Supreme Court Justice Stephen G. Breyer, the son of a career school board attorney who became a stalwart vote for racial and gender equality, LGBTQ rights, and a high wall of church-state separation, but who has sometimes sympathized with school administrators over students, will retire after 28 years on the high court.

Breyer, 83, hand-delivered his retirement letter to Biden on Thursday, one day after word leaked of his plans. The president and the justice made an appearance in the Roosevelt Room of the White House.

Breyer’s legacy “includes his stature as a beacon of wisdom on our Constitution and what it means,” Biden said. “And through it all, Justice Breyer has worked tirelessly to give faith to the notion that the law exists to help the people.”

Breyer spoke of his frequent chats with high school students, and said it was young people who must carry on the American experiment with democracy.

“It’s that next generation, and the one after that—my grandchildren and their children,” Breyer said. “They’ll determine whether the experiment still works.”

The retirement gives President Joe Biden his first opportunity to name someone to the court, and he has vowed to appoint a Black woman.

Breyer’s replacement would not change the fundamental ideological split on the court, which is currently six conservatives and three liberals. The first big education case a new justice would likely face involves affirmative action in college admissions, with the court just this week deciding to consider race-conscious admission programs at Harvard University and the University of North Carolina.

Breyer has been a member of the court’s liberal bloc, which totaled four and later became three during his tenure but won many victories by picking up the vote of such moderate former justices as Sandra Day O’Connor or Anthony M. Kennedy.

But of the court’s more liberal members, Breyer was closest to the center of the ideological spectrum on the full court. That was reflected in a number of cases in which he joined the court’s conservatives in ruling for school districts, such as on two decisions upholding the drug testing of students in sports or extracurricular activities and on the discipline of a student in a 2007 speech case.

Breyer periodically gave voice to the concerns of school authorities.

“Students will test the limits of acceptable behavior in myriad ways better known to schoolteachers than to judges,” Breyer wrote in a concurrence in Morse v. Frederick, the 2007 decision in which the court upheld the discipline of a student who had displayed a large banner outside high school that said, “Bong Hits 4 Jesus.”

“School officials need a degree of flexible authority to respond to disciplinary challenges,” Breyer said in that opinion. He expressed a concern about student discipline matters making 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.”

That outlook reflected the influence of Breyer’s father, Irving G. Breyer, who was the legal counsel to the San Francisco Unified School District from 1933 to 1973.

In a 2018 interview in his chambers with Education Week, the justice related how his father would sometimes bring home the pressures of his job, which involved providing legal advice to administrators as well as a seven-member board of education, each with their own agendas.

Justice Breyer agreed that his father’s service as the school system’s legal adviser may have had a subtle effect on his own approach to education cases.

“There’s no way you escape your own background,” Breyer said in the interview.

But Breyer also wrote the majority opinion in an 8-1 decision in the 2021 student speech case, Mahanoy Area School District v. B.L. that a school district violated the First Amendment rights of a high school student when it punished her for a vulgar message on social media that was posted off-campus.

An early case on guns and schools

Breyer grew up in San Francisco, where he and his brother, Charles R. Breyer, attended Lowell High School, one of the most prestigious public schools in the city.

Both Breyers followed their father into the law, Stephen as professor, government attorney, appellate judge, and Supreme Court justice while Charles became a local prosecutor and federal trial judge.

Stephen Breyer attended Stanford University, then Oxford University on a Marshall Scholarship, and Harvard Law School. He was a law clerk to U.S. Supreme Court Justice Arthur J. Goldberg. Breyer taught administrative law at Harvard Law School, worked 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 considered Kennedy a mentor.

In late 1980, outgoing President Jimmy Carter nominated Breyer to the U.S. Court of Appeals for the First Circuit, in Boston. In 1994, President Bill Clinton tapped Breyer to succeed the retiring Justice Harry A. Blackmun. Breyer had been on Clinton’s short list the year before, when the president chose Ruth Bader Ginsburg for a different opening.

In his first term, Breyer wrote his first significant opinion in an education-related case. It was a dissent from a decision of the court that Congress lacked authority under the U.S. Constitution’s commerce clause to make it a crime to possess a gun in a school zone.

In United States v. Lopez, in 1995, the majority overturned the conviction under the Gun-Free School Zones Act of 1990 of a 12th grader who had carried a gun into his San Antonio high school. The 5-4 majority said the statute had nothing to do with commerce or economic enterprise.

Breyer said in his dissent that Congress rationally could have found that violent crime in school zones, through its effect on the quality of education, significantly affected interstate commerce.

“For one thing, reports, hearings, and other readily available literature make clear that the problem of guns in and around schools is widespread and extremely serious,” Breyer wrote, “Congress could therefore have found a substantial educational problem—teachers unable to teach, students unable to learn—and concluded that guns near schools contribute substantially to the size and scope of that problem.”

Lessons from Topeka and Little Rock desegregation cases

Race in education was another topic Breyer confronted in his first term on the bench, and it would end up being a signature issue for him.

Breyer joined the dissent when the court ruled 5-4 in the 1995 case Missouri v. Jenkins that a federal district judge had exceeded his remedial powers by requiring a desegregation plan designed to attract white suburban students into the Kansas City, Mo., district through expensive capital and educational improvements. The court further held that substandard achievement by the district’s Black students on national tests was not, by itself, a proper basis for requiring the state of Missouri to continue to pay for costly desegregation programs in the city’s schools.

On May 17, 2004, the 50th anniversary of the Supreme Court’s historic desegregation decision in Brown v. Board of Education of Topeka, Breyer represented the court at a ceremony in Topeka marking the occasion and celebrating the opening of a museum at the former Monroe School, the all-Black elementary school where Linda Brown had attended.

With the Brown decision’s recognition that “education is perhaps the most important function of state and local governments,” Breyer said, the ruling set “the nation on a path towards a goal of quality education for all children, a goal not yet achieved.”

Also at the Topeka event, Breyer raised a favorite topic of his, the Little Rock school crisis of 1957, when Arkansas Gov. Orval Faubus used state resources to block the integration of Central High School and President Dwight D. Eisenhower sent in the 101st Airborne Division of the U.S. Army to escort nine Black students into the school in September of that year. (The Supreme Court would later uphold integration orders in the case, in its 1958 decision in Cooper v. Aaron.)

Breyer has returned to the Little Rock episode in book chapters, speeches, and conversations with high school students at the court.

“The [Supreme] Court succeeded in enforcing its [Brown] decisions, as did the lower courts their orders, but only with key support from the president,” Breyer wrote in his 2010 book, Making Our Democracy Work: A Judge’s View. “The Little Rock cases eventually helped to produce victory for the cause of racial integration, a victory that helped secure the rule of law in America.”

In 2007, Breyer wrote a lengthy dissent in a case about race in the public schools, one he has mentioned whenever he was asked which of his opinions he most proud of.

In Parents Involved in Community Schools v. Seattle School District, the high court considered voluntary desegregation plans adopted by the school districts in Seattle and Jefferson County, Ky., which includes Louisville. The plans were designed to increase racial diversity in the assignment of students to public schools, but they came in one district that had never been under court supervision for desegregation (Seattle) and another in which such supervision had ended (Jefferson County).

The court ruled 5-4 to invalidate the race-conscious assignment plans, with a plurality suggesting that schools should not ever classify or assign students by race. A concurring opinion by Justice Kennedy concluded that K-12 schools could sometimes take race into account, but that the plans before the court were not narrowly tailored to further the compelling interest of racial diversity. (Many lower courts have considered Kennedy’s opinion to be the controlling one in this case.)

Breyer wrote the main dissent, at 68 pages, plus appendices.

“The consequences of the approach the court takes today are serious,” he wrote. “Yesterday, school boards had available to them a full range of means to combat segregated schools. Today, they do not.”

Breyer read at length from his dissent from the bench, concluding: “The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the court and the nation will come to regret.”

Instead of the customary “I dissent” or “I respectfully dissent,” Breyer concluded with “I must dissent.”

Two votes for schools on student drug testing

In a case decided in his first year on the Supreme Court, Breyer joined a 6-3 majority that upheld an Oregon school district’s policy of subjecting athletes to random drug testing. Breyer joined in the court’s opinion in Vernonia School District v. Acton that such testing was not an unreasonable search under the Fourth Amendment.

Seven years later, the court confronted another school district drug testing policy, this one expanded beyond athletes to cover a larger group of participants in competitive extracurricular activities such as marching band, cheerleading, and Future Farmers of America.

In Board of Education of Independent School District No. 92 v. Earls, in 2002, the court ruled 5-4 to uphold the policy. (Justice Ruth Bader Ginsburg, who had voted to uphold the Oregon district’s policy with some reservations, was the only vote to switch, and she wrote a colorful dissent.)

Breyer joined the majority and wrote a concurrence that said “the drug problem in our nation’s schools is serious in terms of size, the kinds of drugs being used, and the consequences of that use both for our children and the rest of us.”

“Public school systems must find effective ways to deal with this problem,” Breyer continued. “Today’s public expects its schools not simply to teach the fundamentals, but to shoulder the burden of feeding students breakfast and lunch, offering before- and after-school child-care services, and providing medical and psychological services, all in a school environment that is safe and encourages learning.”

In another Fourth Amendment case, Breyer joined with the majority in 2009 in holding that a search of a middle school student for contraband prescription pills, including requiring the 13-year-old girl to remove her shirt and pull out her bra and shake it, was unreasonable.

It was Breyer’s line of questioning during oral arguments in Safford Unified School District v. Redding that attracted some criticism and may have eventually, if unintentionally, swayed the outcome.

“I’m trying to work out why is this a major thing to say strip down to your underclothes, which children do when they change for gym, they do fairly frequently,” Breyer said. “In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day—we changed for gym, OK?”

Just days after the argument, that comment and others by Breyer and some of his male colleagues drew a rare public rebuke from Ginsburg, who was the only female member on the court at that time. She thought the male justices had failed to understand the seriousness of student Savanna Redding’s experience.

“They have never been a 13-year-old girl,” Ginsburg told veteran Supreme Court reporter Joan Biskupic in an interview. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

While some observers thought after the oral arguments that the student was likely to lose, the court voted 8-1 that the strip-search by school officials violated the Fourth Amendment, with Breyer in the majority.

Breyer has been a consistent vote in support of broadly interpreting Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally funded education programs, to cover peer sexual harassment and retaliation against an individual such as a basketball coach who complained about discrimination in a program.

Breyer also tended to side with parents and students in special education cases interpreting the Individuals with Disabilities Education Act. And he voted for LGBTQ equality in cases involving government discrimination and same-sex marriage that were felt in the schools in various ways.

In the area of religion and public education or government aid to religious schools, Breyer generally favored a high wall of separation between church and state.

In a 2002 case, Zelman v. Simmons-Harris, the court ruled 5-4 to uphold an Ohio program that provided vouchers to low-income students in the Cleveland school system to attend private schools, including religious schools.

Breyer wrote a dissent in which he said the voucher program was “well-intentioned” but would lead to religiously based social conflict.

School vouchers went beyond the kind of government aid to religious schools that the court had upheld by then, such as the provision of bus transportation, computers, and secular textbooks, Breyer said.

“They differ in kind because they direct financing to a core function of the church: the teaching of religious truths to young children,” he wrote.

In 2020, Breyer struck a similar theme with his dissent when the court ruled 5-4, in Espinoza v. Montana Department of Revenue, that a Montana state constitutional provision barring aid to religion discriminated against religious schools and families seeking to benefit from a tax credit for donations for scholarships.

“If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom,” Breyer said.

Advice to students on resilience and civic participation

During the COVID-19 pandemic, Breyer was the first justice to appear on Zoom with a group of high school students. He urged students in a 2020 session to read The Plague, the 1947 novel by French author Albert Camus about an epidemic that ravages the French Algerian city of Oran.

Breyer said the book offered a lesson in resilience and that when it came to the coronavirus ravaging the United States, and the world, he said, “We’ll get over it.”

In a lengthy April 2021 speech over Zoom to Harvard Law School, which some observers perceived as a kind of a career valedictory by the justice, Breyer emphasized the need for students to learn how their government works and become active participants in it.

“When I hear students decry the divisions within our country as too deep,” Breyer said, “I ask them to remember the constitutional need for participation, for argument, for deliberation, for efforts to convince others, for voting, all of which typically involve cooperation and compromise.”

That theme appeared in Breyer’s opinion for the court in last year’s Mahanoy Area School District v. B.L. student speech case.

The majority held that a Pennsylvania district had gone too far under the First Amendment when it suspended student Brandi Levy from cheerleading for one year after she had posted a vulgar message on Snapchat expressing frustration about the cheer team and about school in general.

The question for the court was whether school’s authority to regulate student speech extended to off-campus expression, especially on social media.

Breyer’s opinion declined to set any sweeping rule for off-campus speech in the internet age, though it suggested schools could discipline threats and severe bullying that originated outside school.

Breyer said schools themselves have an interest in protecting a student’s unpopular expression, especially when it originates off campus.

“America’s public schools are the nurseries of democracy,” Breyer said, adding that schools play a role in promoting the free exchange of ideas that inform policy and must include protection of unpopular ideas.

“Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.’”

A version of this article appeared in the February 09, 2022 edition of Education Week as Justice Stephen G. Breyer, Who Sympathized With School Administrators, Set to Retire

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