In dealing with education issues these days, U.S. Supreme Court decisions are dominated neither by quest for catechism nor fear of cataclysm. Rather, the Justices typically,produce split decisions that battle over and sometimes blend fine points of constitutional principle with concerns about pragmatic realities. In spite of their obvious lack of unanimity over substantive conclusions, the Justices consistently demonstrate both a special supportiveness toward educational policies based on professional judgments and a receptiveness to empirical data that support or challenge the asserted objectives of particular policies.
On the whole, these tendencies bode well for educators because they mandate professional creativity and initiative by school officials and teachers, rather than subservience to cadres of lawyers who know little of the nuances of students’ needs and capacities.
A broad spectrum of the Court’s decisions in the 1981-1982 term evinces this support for professional educators. Youngberg v. Romeo is a prime example. In deciding that a profoundly retarded person was entitled to “minimally adequate training” under the due process clause of the 14th Amendment, the Court stressed that balancing individual liberties against relevant state interests was a complex task that “cannot be left to the unguided discretion of a judge or jury.” Who, then, shall make the requisite determination? Professionals.
“We emphasize that courts must show deference to the judgment exercised by a qualified professional,” said Associate Justice Lewis F. Powell. What would “deference” mean in practice? Presumptive validity. It’s not only interesting but important legally that the Associate Justice accorded a “presumptive correctness” to the decisions of professional personnel by virtue of their “demonstrated competence through education, training, or experience.”
Additional support for the significance of professional judgments was present in the plurality’s decision in Board of Education of Island Trees Union Free School District v. Pico, which authorized the challenging of a school board’s removal of certain books from its school libraries. The Court did not condemn book banning per se, but rather accorded great weight to the challengers’ allegation that the board ignored the advice of literary experts, librarians, and teachers within and outside the particular school system.
In Hendrick Hudson Central School District v. Rowley, the Court alluded to professional judgments as an underpinning for its decision that a deaf student did not require a sign-language interpreter. Associate Justice William H. Rehnquist noted that the administrators had made their decision only after considering expert professional opinions and consulting the district’s committee on the handicapped, which had previously taken testimony from the student’s parents, teachers, and others familiar with her situation and record.
The Justices’ current ode to professional expertise has broad implications for the community of educators. The professional who panders to the politically powerful, unfortunately, may be shielded from speedy accountability under this approach; but the professional who exercises responsibly and courageously her or his educational training and experience should be the true beneficiary of the Court’s standards.
Two cases, Washington v. Seattle School District 1 and Mississippi University for Women v. Hogan, serve as especially good examples of the receptiveness of the Justices to empirical data. In the first, the Court had to rule on the constitutionality of a statewide voter initiative that, in effect, banned busing for racial integration. Although no mention of race was made in the text of the voter initiative, the Court concluded from its analysis of the empirical record that “there is little doubt that the Initiative was effectively drawn for racial purposes.” The Justices ruled that the initiative thereby violated the equal protection clause of the 14th Amendment.
In the second case, the Court’s receptiveness to empirical data was even more explicitly invoked as a criterion for its decision, which, in a 5-to-4 vote, struck down a state-supported university’s policy that barred males from enrolling for credit in its school of nursing. Associate Justice Sandra Day O’Connor drew heavily on such data to find “unpersuasive” Mississippi’s attempt to justify the single-sex admissions policy of the nursing school. Writing for the majority, she insisted that a “searching analysis must be made” to determine the validity of efforts to justify classifications favoring one sex. The data here showed that denying males the right to receive nursing-school credit not only did not redress previous disproportionate treatment, but perpetuated traditional, discriminatory sexual burdens in nursing education.
Invocation of empirical evidence played an important role, too, in the Court’s decision in Widmar v. Vincent. Here, it invalidated a denial to a registered religious group of permission to use facilities at the University of Missouri for religious discussions and observances. Associate Justice Powell maintained that “in the absence of empirical evidence that a religious group will dominate” the open forum of the university, the advancement of religion would not be the forum’s primary effect. Under such circumstances, school facilities could not be denied the religious group.
In prohibiting the State of Texas from denying education to children of illegal aliens in Plyler v. Doe, the Court stressed empirical factors that give education a “fundamental role” in American society. Social and fiscal factors were weighed in deciding that such a denial would have inestimably destructive costs. The Court’s majority emphasized that judges “cannot ignore the significant social costs borne by our nation when select groups are denied the means to absorb the values and skills upon which our social order rests.”
Associate Justice William J. Brennan Jr. observed that, far from imposing any burdens on the state’s economy, illegal aliens “underutilize public services while contributing their labor to the local economy and tax money to the state fisc.” Whatever savings might be achieved by denying these children an education “are wholly insubstantial in light of the costs involved to these children, the state, and the nation.”
By according deference to decisions based on professional judgments and inviting and utilizing empirical data to substantiate or reject officials’ rationales for their decisions, the Court may be criticized by some for failing to provide judicial leadership. But these complex norms that accord judicial recognition and incentive to educators’ bona fide skills and concerns are more likely to enhance the equities and efficacies of education than judicially imposed ideologies.
