The private papers of the late Justice John Paul Stevens, opened to the public this month by the Library of Congress, offer fresh insights into how the U.S. Supreme Court resolved major education cases on high school football game prayers, desegregation, student drug testing, and sexual harassment in schools.
The papers lack some of the genuine revelations other justices’ files have offered, but they still provide sometimes absorbing details of the justices’ behind-the-velvet curtain work on cases from Stevens’ 35-year tenure on the court.
In 2000, the court was debating a case about student prayers at high school football games, a topic that resonates today as the current court gives more deference to the First Amendment right of free exercise of religion.
In Santa Fe Independent School District v. Doe, Stevens circulated a draft opinion for a tentative 6-3 majority that would strike down the Texas school district’s policy of allowing students to vote on whether to have prayers at football games and which student would deliver them. The district had for several years allowed prayers at graduation ceremonies and high school football games, under shifting policies, and the prayers had overwhelmingly been overtly Christian.
One of Stevens’ colleagues in the tentative majority, Justice Ruth Bader Ginsburg, sent him a memo suggesting minor changes.
“I agree with the substance of your draft but think some tightening and clarification would be helpful to readers,” Ginsburg wrote in the May 19, 2000, memo. Among other suggestions, Ginsburg urged Stevens to drop “Footnote 19” from his draft.
In that footnote, Stevens sought to make a light-hearted point countering the school district’s argument that it was seeking to “solemnize” high school football games with student-led prayers.
“Solemnity was the proper mood during Northwestern University’s 1944 football season,” Stevens wrote, noting the 1-7-1 season record for the long-hapless Big Ten team. “But in 1948 the fans’ prayers were answered when the team qualified to play in the Rose Bowl. The crowd was anything but solemn” as Northwestern celebrated a bowl victory, the footnote said.
Ginsburg told Stevens in her memo that “as a graduate of an institution whose football team boasts a record-setting 44-game losing streak (Columbia), I can empathize with the observations made in footnote 19. Nevertheless, I think the aside is more distracting than elucidating.” (The two justices were referencing institutions where they had attended law school. For their undergraduate degrees, Stevens went to the University of Chicago while Ginsburg attended Cornell University.)
When Stevens did not remove Footnote 19 in the next Santa Fe draft opinion he circulated, Ginsburg sent him another memo, renewing her objection to it in stronger terms.
“I do not wish to suggest that all of our writings must be dour, but the issue in this case is a serious one, and millions of people will have strong emotional reactions hostile to our decision,” Ginsburg wrote in a May 23 memo. “Readers could reasonably take the footnote to indicate that we had a cavalier attitude toward a cultural issue that is both sensitive and divisive.”
The second request did the trick. On May 24, Stevens wrote back to Ginsburg and said, “You are dead right that we should not make light of the strong feelings that our holding will engender. Footnote 19 will therefore be deposited in the ashcan.”
There was more behind-the-scenes drama in that case (see below), but the 6-3 majority against the school district policy held together.
A major desegregation ruling almost didn’t happen, papers show
Stevens was appointed to the court by Republican President Gerald R. Ford in 1975, and he retired in 2010. He became identified as a stalwart member of the court’s liberal wing, even though he insisted that the court grew more conservative around his moderate views. Stevens died in 2019 at age 99.
In 2020, the Library of Congress opened a portion of his papers, covering 1975 to 1984, but that was in the middle of the COVID-19 pandemic and attracted little public notice.
Most case memos are circulated to every member of the court, so any release of a justice’s papers holds the potential to reveal things not just involving that justice but also conversations between and among other colleagues as well. That means the papers of other justices who served with Stevens cover some of the same ground from those early years of Stevens’ tenure, especially the comprehensive papers of Justice Harry A. Blackmun, who joined the court in 1970 and retired in 1994.
The new trove of Stevens papers covers 1984 through the end of the 2004-05 term. The Library of Congress will not release the last batch, covering the fall of 2005 through 2010, until 2030.
One set of papers shows how a major ruling on desegregation in 1995 almost didn’t happen.
In Missouri v. Jenkins, the court ruled 5-4 that a federal district judge exceeded his authority when he imposed a massive desegregation program on the Kansas City, Mo., school district that included salary increases for instructional personnel and the funding of more than $200 million in “quality education programs” to help attract white suburban students.
The decision was the court’s last major ruling on court-ordered desegregation remedies. But Stevens’ papers reveal that the court considered dismissing the Kansas City case after it had granted review, which would have left the massive remedial plan in place in Kansas City and perhaps led to other large-scale desegregation plans elsewhere.
In a Jan. 19, 1995, memo to Chief Justice William H. Rehnquist, Justice David H. Souter said that he and Justice Clarence Thomas “have talked about this case several times since the vote at last week’s conference. [Thomas] is now prepared to DIG the case if there are sufficient votes to do so from among those who originally voted” for review. DIG stands for “dismiss as improvidently granted,” the language the court uses when it concludes that it doesn’t want to fully decide a case after it granted review.
Thomas had been one of the five justices who had voted to grant review. The others were Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, and Anthony M. Kennedy. Those justices would make up the majority that eventually ruled to strike down the Kansas City desegregation orders after Thomas evidently changed his mind about a DIG.
Two months later, in March 1995, Rehnquist wrote a memo to his colleagues pushing back against a renewed effort, from Justice Stephen G. Breyer, to dismiss the case or send it back to the federal district judge for further proceedings without a Supreme Court merits decision.
“Steve should circulate his views in favor of a dismissal, and if he picks up a majority for them we will follow the course he suggests,” Rehnquist wrote on March 28.
The court did not dismiss the case, and the Rehnquist majority prevailed, with Stevens, Souter, Ginsburg, and Breyer dissenting. Thomas went on to file a provocative concurrence detailing his views that desegregation had largely failed and “there is no reason to think that Black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment.”
‘Two out of three ain’t bad,’ says one justice about adopting a colleague’s proposed changes
Also in 1995, the court upheld a school district’s program of random drug testing of students participating in interscholastic athletics. The vote was 6-3 in Vernonia School District v. Acton.
Scalia circulated a draft majority opinion concluding that the Oregon district’s testing program did not violate the Fourth Amendment’s prohibition against unreasonable searches. On May 30, Ginsburg sent him a memo with three suggestions for tweaking his language. One dealt with a prescription-drug disclosure requirement in the district’s testing policy.
“I would prefer to be more tentative” about the requirement because “young women taking birth control pills … might be discomforted by having this information disclosed to [a] coach or other school personnel,” Ginsburg wrote.
Secondly, she was troubled by Scalia’s use of the word “obnoxious” to describe troublemaking students whom teachers might subject to drug testing, based on individualized suspicion instead of random selection, even when it was unlikely that a given student was using illegal drugs.
“Wouldn’t ‘unruly’ be a better description of the endangered student than ‘obnoxious’?” Ginsburg wrote. “Other substitutes: ‘inattentive’ or preferred by some parents of such children, ‘lively’.” (Ginsburg spoke often of being called to school to deal with the misbehavior of her own “lively” son.)
Ginsburg’s third point was to ask Scalia to add language suggesting the court’s approval of the Oregon district’s program was limited to drug testing of students who voluntarily participate in athletics.
On June 5, Scalia wrote back to her to say he was accepting her first two points, including changing “obnoxious” to “troublesome.”
“I would prefer not to make the last change you suggested,” Scalia said. “I am not willing … affirmatively to caution against extending the holding to non-sports.”
Scalia added, “I hope you will be able to join, given the changes I have made. Two out of three ain’t bad.”
A day later, Ginsburg wrote back to Scalia that his changes “are just right and much appreciated.” She joined the opinion and noted she would “either suppress my athletics-only point” or write a short concurrence.
She did add a concurring opinion on that point. And in 2002, in Board of Education of Independent School District No. 92 v. Earls, when the court upheld drug testing of a larger pool of extracurricular students besides athletes, such as marching band and Future Farmers of America participants, Ginsburg wrote a memorable dissent.
Some anxiety as O’Connor awaits a 5th vote in a major Title IX case on sexual harassment in the classroom
In 1999, in Davis v. Monroe County Board of Education, the court considered whether a school district could be liable for student-to-student sexual harassment under Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded educational programs.
One year earlier, in Gebser v. Lago Vista Independent School District, the court had ruled 5-4 that a district could not be held responsible for teacher-student harassment unless a school official who had the authority to take corrective measures was on notice of the harassment and had been “deliberately indifferent” to it. O’Connor wrote for a majority made up of the court’s most conservative justices in that decision.
In the Davis case, Stevens’ papers show an unusual lineup after the case was argued.
O’Connor joined three of the court’s more liberal members in favor of ruling that schools could, as a general matter, be held liable for student-on-student harassment. But the usually liberal Souter initially voted with the court’s conservatives to form a tentative majority to rule for the school district that Title IX did not cover such peer harassment.
“I thought that harassment of one student by one other, with nothing more, should not result in liability,” Souter explained in a Jan. 21, 1999, memo to his colleagues. “My idea was that to reach the level of liability, the school district’s deliberate indifference must be to student-student harassment so pervasive as to infect [an entire educational] program.”
But, as Souter further explained in the memo, he had changed his view, at least moderately, as a fresh look at evidence in the case from Georgia suggested to him that a group of 5th grade girls had been prevented by their teacher from going to the principal to complain about a student harasser in their classroom.
“At this preliminary stage of the litigation, I think this is probably enough to keep the plaintiffs in court under my view of program infection as necessary for liability,” he said. “I therefore change my vote from a tentative affirmance to a tentative reversal.”
Stevens, as the senior justice in this new majority, assigned the opinion to O’Connor. After considerable back and forth, she got Souter’s vote, as well as that of Stevens and Ginsburg. But she was having some trouble getting Breyer to join her opinion.
“As yet I do not have a 5th vote,” she wrote to Stevens on May 18. Finally, after he had the chance to review a draft dissent circulated by Kennedy, Breyer made up his mind.
“Tony has written an excellent dissent,” he wrote to O’Connor, “but I remain convinced that you have carefully narrowed liability to a few extreme instances. I therefore join your opinion.”
The decisions in Gebser and Davis have remained important legal anchors for Title IX sexual harassment cases for a quarter century.
Texas football prayer case stirred passions then and is still debated
The Santa Fe case on football game prayers is another example of a case that might have turned out differently than it did, Stevens’ papers show.
When the Texas school district appealed a lower court ruling rejecting its election policy for prayers to the Supreme Court, it was the court’s four most conservative justices who voted to grant review: Rehnquist, O’Connor, Scalia, and Thomas. The other five justices voted to deny, but it takes only four votes to accept a case.
It’s possible that Rehnquist, Scalia, and Thomas were confident that on the merits they could keep O’Connor and pick up the vote of her fellow “swing” voter, Kennedy, to uphold the district’s prayer policy.
But after the case was argued, O’Connor and Kennedy joined the tentative majority along with Stevens, Souter, Ginsburg, and Breyer to rule that the policy violated the First Amendment’s prohibition against government establishment of religion.
Stevens’ handwritten notes from a private discussion among the justices show that O’Connor argued that a “reasonable person [would] view [the prayers] as an endorsement” of religion by the district. Kennedy suggested that a football game “is a school function + speaker is an ‘official.’”
The 6-3 majority never seriously wavered, but Stevens had to contend with various requests from his lineup of justices.
On June 9, O’Connor asked Stevens to add language saying that “nothing in the Constitution as interpreted by this court prohibits public school students from voluntarily praying at any time before, during, or after the schoolday. But the religious liberty protected by the Constitution is abridged where, as here, the state affirmatively endorses the particular religious practice of prayer.”
Stevens quickly agreed to add that passage, with minor style changes.
Meanwhile, Breyer wrote to Stevens on June 13 to express his concern that “we not cast doubt on the constitutionality of (1) opening prayer in Congress, or (2) teaching about religion.” Breyer proposed some language about the latter, which prompted a flurry of memos that same day.
Where Breyer suggested adding language that the Constitution does not “prohibit secular teaching about religion,” Ginsburg proposed adding, “so long as that teaching does not, in practice, amount to religious coercion or the privileging of one religion over others.”
That prompted an immediate objection from Kennedy.
“I cannot accept Ruth’s suggested edit,” he wrote. “The language she proposes takes us into a very difficult and sensitive issue not before us in the case.” He added that he was fine with Breyer’s shorter wording.
On June 14, Stevens wrote back to Breyer, and copied the others, to say that the idea of discussing secular teaching about religion in his majority opinion “has engendered some controversy” and may do “more harm than good.”
“I have decided to omit the point entirely,” Stevens said.
In the end, Stevens kept his six-justice majority intact, with no concurrences. Rehnquist wrote the dissent for Scalia and Thomas. The decision continues to be debated, and came up frequently last year when the court decided, in Kennedy v. Bremerton School District, that a football coach’s purportedly private prayers at midfield after games did not offend the Constitution. Some legal commentators believe the current court would be inclined to overrule Santa Fe if the chance arises.
Stevens kept some of the letters he received from the public after the Santa Fe opinion was released.
“I am really ashamed that we cannot even let our children pray—even if they initiate it—because someone may be offended,” a Georgia woman wrote to Stevens. “I will pray for you, even if it becomes illegal for me to do so.”
Another Georgia resident wrote, “You better wake up, you as we all do need power against Satan.”
Stevens also received a letter of appreciation from a Baltimore lawyer, who said she “grew up with stories about how my parents, both students in the 1930’s and 40’s in the Baltimore public schools, were required, against their wishes, to participate in ‘voluntary’ prayers every morning after the Pledge of Allegiance.”
The lawyer continued, “It is a measure of the tenacity of those who wish to trample on the First Amendment that the school prayer issue continues to be re-litigated again and again, in every generation.”