Law & Courts

O’Connor Played Key Role in School Cases

By Andrew Trotter — July 12, 2005 5 min read

Retiring Justice Sandra Day O’Connor of the U.S. Supreme Court will leave a legacy of influence in decisions affecting public education over the past 24 years.

The first woman on the nation’s highest court, Justice O’Connor, 75, cast the pivotal votes that completed the high court’s majorities on major decisions on private school vouchers, religion in the public schools, affirmative action in college admissions, and sex discrimination in education. The court released her July 1 letter to President Bush in which she informed him that she plans to step down upon the confirmation of a successor.

U.S. Supreme Court Justice Sandra Day O'Connor, shown in 2004, is retiring after a 24-year tenure with many influential opinions for education.

Though viewed variously as a moderate or a conservative, Justice O’Connor has been renowned for crafting subtle legal opinions that broadened the middle ground on divisive issues.

“It’s a tremendous loss for the nation—it may be the end of moderation on the court,” said Charles C. Haynes, a senior scholar at the Arlington, Va., office of the Nashville, Tenn.-based First Amendment Center, a nonprofit organization that advocates protection of the constitutional rights under that amendment. “She was, in my view, a thoughtful, wise, and careful voice of moderation.”

Mr. Haynes said that although the justice was criticized over the years for “parsing each case and not offering enough of a broad vision, I think her broad vision was how are we going to live and work together across our differences.”

“She helped us to do that by taking these issues case by case,” he said.

Julie Underwood, the general counsel of the National School Boards Association, in Alexandria, Va., said that proof of both her centrism and influence is that, by Ms. Underwood’s count over the past six years, Justice O’Connor was part of more Supreme Court majorities than any other justice.

Clint Bolick, the president and general counsel of the Alliance for School Choice, a Phoenix-based organization that pushes for school voucher programs nationally, said that Justice O’Connor was a “consensus builder” who nonetheless took principled positions on federalism and liberty.

“Generally, she sided with the state sovereignty over federal power and with the individual over government power of any type,” Mr. Bolick said.

‘One Nation’

Justice O’Connor often relied on the facts of a case to steer other justices toward the court’s philosophical midstream, and she also laid out issues in practical ways for educators.

An example is the court’s 1990 decision in Board of Education of the Westside Community Schools v. Mergens, in which an 8-1 majority concluded that the 1984 federal Equal Access Act, which was intended to open public high schools to student prayer groups, did not violate the First Amendment’s prohibition against a government establishment of religion.

In a plurality opinion in Mergens, Justice O’Connor wrote: “There is a crucial difference between government speech endorsing religion, which the establishment clause forbids, and private speech endorsing religion, which the free-speech and free-exercise clauses protect.”

Her distinction between government speech about religion, which cannot be an endorsement, and protected private or student speech is “very helpful … for anyone in public education,” said Mr. Haynes.

“That framing of how the First Amendment ought to work in public schools,” he said, “really gives guidance on many issues that administrators and teachers struggle with.”

On many other important education cases, Justice O’Connor was indeed the swing vote for a narrow majority.

In Zelman v. Simmons-Harris, she was the fifth vote in the 2002 decision that upheld the inclusion of religious schools in the state of Ohio’s school voucher program for Cleveland children. Her concurring opinion cast the court’s upholding of the voucher program as not “a dramatic break from the past.”

In Grutter v. Bollinger and Gratz v. Bollinger, a pair of cases dealing with the University of Michigan’s consideration of race in its undergraduate and law school admissions, decided in July 2003, Justice O’Connor wrote the majority opinion in Grutter and joined the majority in Gratz. Together, the rulings upheld the consideration of race in higher education admissions as long as the process involves individualized review of applicants. Again, Justice O’Connor was the pivotal vote in the 5-4 decisions as she endorsed the diversity rationale for affirmative action.

“Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized,” she wrote in Grutter.

Justice O’Connor has been influential—and again the fifth vote—in several cases in recent years addressing Title IX of the Education Amendments of 1972, which prohibits sex discrimination in schools that receive federal funds.

In March, she wrote the majority opinion in Jackson v. Birmingham Board of Education, a 5-4 ruling that a high school girls’ basketball coach could sue his district for alleged retaliation after he complained about inequitable treatment of his female athletes.

Sex-Harassment Cases

And she wrote the majority opinions in two 5-4 decisions in the late 1990s on how schools should handle sexual harassment of students under Title IX.

In 1998, in Gebser v. Lago Vista Independent School District, her opinion laid out for districts guidance on how to avoid liability for sexual harassment of students by teachers. The court’s more conservative members joined her in that opinion. The next year, in Davis v. Monroe County Board of Education, she voted with the court’s more liberal members and wrote an opinion that said districts could be held liable for student-on-student harassment.

Justice O’Connor was not always in the majority, of course. In 1995, in Vernonia School District v. Acton, she dissented in a 6-3 ruling that upheld drug testing of student-athletes.

“It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis,” she wrote, referring to growing concerns about drug abuse.

Since Justice O’Connor’s announcement, advocates of many stripes have been gearing up for what is expected to be an epic political battle over her successor that needs only President Bush’s choice of a nominee, which could come as soon as this week, to enter full swing.


School & District Management Live Event Education Week Leadership Symposium
Education Week's Premier Leadership Event for K12 School & District Leaders.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Law & Courts Webinar
The Future of Criminal Justice Reform: A Sphere Education Initiative Conversation
America’s criminal justice system is in crisis and calls for reform are dominating the national debate. Join Cato’s Sphere Education Initiative and Education Week for a webinar on criminal justice and policing featuring the nation’s
Content provided by Cato Institute
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Student Well-Being Webinar
Equity, Care and Connection: New SEL Tools and Practices to Support Students and Adults
As school districts plan to welcome students back into buildings for the upcoming school year, this is the perfect time to take a hard look at both our practices and our systems to build a
Content provided by Panorama Education

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Appeals Court Weighs Idaho Law Barring Transgender Female Students From Girls' Sports
The three-judge federal court panel reviews a lower-court ruling that blocked the controversial statute and said it was likely unconstitutional.
4 min read
Image of a gavel.
Marilyn Nieves/E+
Law & Courts Federal Appeals Court Backs Socioeconomic-Based Admissions Plan for Boston 'Exam Schools'
The court denies an injunction to block the plan for next year and says considering family income in admissions is likely constitutional.
3 min read
Image shows lady justice standing before an open law book and gavel.
iStock/Getty Images Plus
Law & Courts U.S. Supreme Court Wary About Extending School Authority Over Student Internet Speech
In arguments, the justices looked for a narrow way to decide a case about the discipline of a cheerleader over a profane Snapchat message.
7 min read
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington on April 23, 2021.
Members of the U.S. Supreme Court pose for a group photo at the court on April 23. The justices heard arguments Wednesday in a major case on student speech.
Erin Schaff/The New York Times via AP
Law & Courts Supreme Court to Weigh When School Board Censure of a Member Violates the First Amendment
The justices will decide an issue that has become more salient as a few board members rant inappropriately on social media.
5 min read
Image of the Supreme Court.