Law & Courts

Scalia’s Death Muddies Fate of Education Cases

By Mark Walsh — February 19, 2016 10 min read
U.S. Supreme Court Justice Antonin Scalia’s courtroom chair is draped in black to mark his death. The vacancy has set off a political battle, and left the outcome of several cases in the balance.
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The unexpected death of U.S. Supreme Court Associate Justice Antonin Scalia eventually could lead to a shift in how the court handles cases on race in education, church and state separation, and the authority of school administrators.

But in the short term, the 79-year-old justice’s passing throws several of the current term’s cases of interest to educators into uncertainty.

Chief among them is Friedrichs v. California Teachers Association (Case No. 14-915), a case about the constitutionality of the agency fees that public-employee unions charge those who refuse to join for their share of collective bargaining costs.

Justice Scalia In His Own Words

The late U.S. Supreme Court Associate Justice Antonin Scalia wielded a sharp pen—and, at times, a sharp tongue—in making the case for his conservative and originalist view of constitutional law and in dissenting from rulings that deviated from what he believed was the proper outcome. A number of those pointed remarks came in connection to education cases and in speeches that touched on K-12 issues. Also of note are Scalia’s votes in cases involving a range of education issues.

For a collection of some of Scalia’s memorable quotes, jump to the bottom of this story.

Other pending cases in which the outcome could be affected by the justice’s death involve affirmative action in higher education, the scope of the principle of “one person, one vote” in state and local elections, and President Barack Obama’s deferred-action immigration policy, which is being watched by educators.

‘All the Marbles’

Justice Scalia was discovered dead on Feb. 13 in his room at a ranch resort in West Texas, and authorities have said he died of natural causes.

On the major education cases of his era, Scalia consistently voted against the use of race in higher education and K-12 schools. He backed a low wall of separation between church and state in cases involving prayer in public schools and government aid to religious schools. And he generally sided with school administrators over students and their rights.

Obama says he will nominate a successor and that he expects the U.S. Senate to fulfill its constitutional duty to advise and consent. With the Senate under Republican control, however, GOP leaders as well as the candidates seeking the party’s presidential nomination have called for allowing the next president to make the choice for a vacancy that could tip the balance of the court.

“With Justice Scalia’s vacancy, the court could shift decidedly to the left,” Carrie Severino, the chief counsel and policy director of the Judicial Crisis Network, a Washington group that supports the appointment of conservatives, said in a call with reporters last week.

“This vacancy is incredibly important,” said Severino, a former law clerk to Justice Clarence Thomas. “This is for all the marbles.”

An Eight-Member Court

With the question of a successor to Justice Scalia dangling in the political winds, there is much speculation about what will happen to some of this term’s key cases.

Last week, the group representing non-union California teachers in the Friedrichs case, who are challenging a nearly 40-year-old high court precedent authorizing public-union agency fees, called on the high court to order reargument when a new justice joins the court.

“This is a fundamental issue of individual rights that needs to be settled,” said Terence J. Pell, the president of the Center for Individual Rights, a Washington public-interest legal group. “We think we have a strong argument for the court to wait to decide this case with a full panel of nine justices.”

The request was animated by the perception, based on oral arguments in January and other factors, that the court’s conservatives—Justice Scalia included—were on the verge of ruling for the non-union teachers and scuttling the 1977 precedent in Abood v. Detroit Board of Education.

But Scalia’s death leaves only eight justices to decide any outstanding cases this term. Most legal analysts believe it is strongly likely that the court would now be deadlocked 4-4 on the Friedrichs case.

In an argued case, when the Supreme Court deadlocks for any reason—because one justice is ill or recused, for example—the court typically issues a ruling that affirms the decision of the court below, but sets no national precedent. In Friedrichs, the U.S. Court of Appeals for the 9th Circuit’s ruling had upheld the California Teachers Assocation’s right to collect agency fees.

“It’s not unusual to have an eight-member court,” said Erwin Chemerinsky, the dean of the law school at the University of California, Irvine.

The wrinkle is that when there has been a vacancy, the court has sometimes ordered cases held forreargument with the inclusion of the new justice. That last happened in 2006, when Associate Justice Samuel A. Alito Jr. joined the court to replace Associate Justice Sandra Day O’Connor.

O’Connor had announced her retirement in July 2005, but Chief Justice William H. Rehnquist died in September of that year and was succeeded by now-Chief Justice John G. Roberts Jr. O’Connor extended her service until her successor—Alito—took his seat in January 2006. But three cases in which O’Connor had heard arguments, and that presumably resulted in an initial 5-4 vote in the justices’ private conference, were set for reargument once Alito joined the court.

Chemerinsky believes the high court has wide discretion to decide whether to order reargument in cases that are tied, or affirm the lower court’s decision without setting a precedent. A third option, he said, is for the justices to see whether they could hammer out a compromise decision on narrow grounds.

“The rules are very murky on this,” he said.

But other legal experts have suggested that, based on history, tied cases would more likely be re-argued than summarily affirmed.

The question comes into sharp focus with the Friedrichs case. A summary affirmance in the case of a 4-4 tie would leave standing the appeals court’s decision in favor of teachers’ unions, but it would not become a national precedent.

That prospect has given unions a sense of relief—again, based on the perception that they were slated for a defeat.

Pell argued that the unions should want reargument as much as the non-union challengers, since “there is a cloud hanging over their operations in 23 states” that authorize agency fees.

But the unions may not see it that way. The national unions declined to comment.

And based on the intense debate last week over whether Republicans would even consider a Supreme Court nominee put forth by President Obama, it is far from clear when the court will be restored to full strength.

Other Hot Cases

Meanwhile, Scalia’s death will affect some other cases being watched by educators this term.

• Affirmative Action: In Fisher v. University of Texas at Austin (Case No. 14-981), the court is weighing the university’s race-conscious admissions program. Justice Elena Kagan is not participating in that case; Scalia’s death leaves only seven justices participating. Because the court’s conservatives, including Justice Anthony M. Kennedy, have been skeptical of the university’s plan, one seemingly likely outcome is for the court to rule 4-3 to strike the admissions program down or send it back for even more scrutiny by lower courts.

• One Person, One Vote: In Evenwel v. Abbott (No. 14-940), the court is weighing whether its voting-rights jurisprudence requires states and local governments, including school boards, to count the total population or some form of the voting-age population when drawing electoral lines. The case could have consequences for elected school boards and for how well children are represented by state lawmakers. This case could result in a 4-4 deadlock with Scalia’s absence, analysts say.

• Immigration: In United States v. Texas (No. 15-674), the court is weighing the validity of the Obama administration’s policy offering deportation relief for undocumented immigrant parents of children who are U.S. citizens. The case could also affect a related policy affecting undocumented children, and is connected to a larger debate over immigration policies that affect students, educators, and schools. The court had indicated it would be set for argument in April.


The late U.S. Supreme Court Associate Justice Antonin Scalia wielded a sharp pen—and, at times, a sharp tongue—in making the case for his conservative and originalist view of constitutional law and in dissenting from rulings that deviated from what he believed was the proper outcome. A number of those pointed remarks came in connection to education cases and in speeches that touched on K-12 issues. Also of note are Scalia’s votes in cases involving a range of education issues.

Church and State

In Lee v. Weisman, a 5-4 decision in 1992 that ruled clergy-led prayers at a public middle school graduation ceremony violated the First Amendment’s prohibition against government establishment of religion, Scalia wrote the dissent.

Justice Antonin Scalia

“In holding that the establishment clause prohibits invocations and benedictions at public school graduation ceremonies, the court—with nary a mention that it is doing so—lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.”

In a 1993 case, Lamb’s Chapel v. Center Moriches Union Free School District, the court held that the school district violated the rights of a religious group by denying it after-hours use of school classrooms to show a religious-film series to members of the community. Scalia concurred in the outcome, but criticized the majority’s reliance on a much-maligned test for analyzing whether government action violated the establishment clause, the so-called Lemon test from the 1971 decision Lemon v. Kurtzman.

“As to the court’s invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our establishment clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.”

Also of note: Scalia joined the dissent when the court held in a 2000 decision, Santa Fe Independent School District v. Doe, that student-led, student-initiated prayers at a public high school’s football games violated the establishment clause. And in the landmark 2002 case of Zelman v. Simmons-Harris, Scalia joined a majority that upheld Ohio’s program of private school vouchers in Cleveland that permitted voucher recipients to choose religious schools.


Scalia believed affirmative action violated the equal-protection clause, writing a short dissent in the 2003 decision in Grutter v. Bollinger, which upheld the consideration of race in admissions to the University of Michigan Law School.

[The law school’s] “mystical ‘critical mass’ justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.”

In December, when the court heard arguments in the Fisher v. University of Texas at Austin case involving race-based admissions, Scalia drew criticism when he tried to enunciate the “mismatch theory” about racial preferences in admissions, in which some scholars have suggested that certain minority group members fare poorly when they are admitted to selective colleges under affirmative action programs.

“There are those who contend that it does not benefit African-Americans to—to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school—a slower-track school where they do well. ... I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”

In 1996, Scalia was the lone voice in dissent when the court, in United States v. Virginia, voted 7-1 to strike down the exclusion of women by the state-run Virginia Military Institute. (Justice Clarence Thomas did not participate in the case.)

“Today the court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half. ... As to facts: It explicitly rejects the finding that there exist ‘gender-based developmental differences’ supporting Virginia’s restriction of the ‘adversative’ method to only a men’s institution, and the finding that the all-male composition of the Virginia Military Institute is essential to that institution’s character.”

On gay rights, Scalia was the court’s most outspoken critic of a movement which he nevertheless seemed to regard as inevitable. Writing in dissent in Lawrence v. Texas, the 2003 decision in which the court struck down state homosexual sodomy laws, Scalia wrote that the court had taken sides “in the culture war.”

“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Also of note: Scalia voted for greatly reducing the circumstances under which districts could voluntarily take race into account, in the landmark 2007 decision in Parents Involved in Community Schools v. Seattle School District.

Student and Parental Rights

In 1995, Scalia wrote the opinion for the court in Vernonia School District v. Acton, which upheld against a Fourth Amendment challenge a school district’s policy of subjecting all student-athletes to random drug testing.

“It seems to us self-evident that a drug problem largely fueled by the ‘role model’ effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs.”

Scalia took a more expansive view of children’s rights in Brown v. Entertainment Merchants Association, in which he wrote the opinion for the court striking down a California law that restricted the sale or rental of violent video games to minors.

“California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors. ... California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed.”

Scalia last fall told an audience at Georgetown University Law Center that there is no U.S. constitutional right of parents to direct the education and upbringing of their children.

“The notion that everything you care a lot about has to be in the Constitution is a very dangerous notion. Because it begins with stuff we all agree upon. ‘Oh, sure, we ought to be able to educate our children the way we want.’ ... Nobody could disagree with that. But then, once the court is making these decisions, it is going to make decisions a lot of people disagree with.”

Also of note: Scalia voted with the court’s majority upholding the right of school administrators to exert control over school newspapers, in the 1988 decision in Hazelwood School District v. Kuhlmeier; and to allow them to punish a student for displaying a banner containing a pro-drug message in the 2007 ruling in Morse v. Frederick.

A version of this article appeared in the February 24, 2016 edition of Education Week as Scalia’s Death Muddies Fate Of Key Cases


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