Law & Courts

The 8 Most Consequential Developments in Education Law in 2022

By Mark Walsh — December 22, 2022 6 min read
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This past year saw some major education decisions from the U.S. Supreme Court—as well important rulings from lower federal courts in areas such as Title IX, transgender rights, and the idea of a fundamental right to education.

Here are some of the most consequential cases and other developments in 2022.

The praying coach case

This has the potential to be the most impactful education decision of the Supreme Court this year, though the scope of that impact is still playing out. The court ruled 6-3 in Kennedy v. Bremerton School District that high school football coach Joseph A. Kennedy’s post-game prayers at midfield were protected by the First Amendment’s free speech and free exercise of religion clauses.

The court said the U.S. Constitution neither requires nor permits school districts to suppress such religious expression by employees. Kennedy did not immediately return to his part-time coaching job with the Bremerton, Wash., district this past fall, though he has announced his intention to return beginning this spring. There were no widespread reports of other public school coaches leading prayers this past fall, but many legal experts expect that districts will face issues as employees assert their right of religious expression.

Opening up state aid to religious schools

The justices decided 6-3 in Carson v. Makin that Maine’s exclusion of religious schools from a state tuition program for towns without public high schools violated the First Amendment’s guarantee of free exercise of religion. The dissenters expressed fears that the ruling could lead to state aid for religious-themed charter schools. And recently, the attorney general of Oklahoma issued an advisory opinion that a provision of the state’s charter school law requiring such schools to be nonsectarian and not sponsored by religious organizations would likely violate the First Amendment under Carson and other recent U.S. Supreme Court decisions.

The decision to overturn ‘Roe v. Wade’

The Supreme Court’s decision to overrule 50 years of precedent upholding abortion rights is not an overwhelmingly obvious matter of interest to schools. But abortion rights have practical effects on school districts as large employers and on female teachers and students as people who may have to deal with an unwanted or life-threatening pregnancy.

And the court’s 5-4 decision in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade, the 1973 ruling that established a federal right to abortion, was so momentous that it prompted a debate about what other longstanding precedents might face reconsideration by the conservative-dominated high court. That discussion includes education decisions on the rights of undocumented immigrants to a free public education and the ability of schools and colleges to consider race in college admissions. .

From Stephen G. Breyer to Ketanji Brown Jackson

Though not a case, this development will affect education law for years to come. In January, Justice Stephen G. Breyer, who in 28 years on the court supported racial and gender equality in schools but who sometimes sympathized with school administrators, announced his intention to retire at the end of the term in June. President Biden’s choice to succeed him was Ketanji Brown Jackson, whose parents were educators and who had clerked for Breyer. Jackson has already made an early mark at the court with sharp and poignant questions from the bench on the use of race in education.

The case of the charter school that required girls to wear skirts

A federal appeals court ruled in June that a North Carolina charter school organized around traditional values and “chivalry” violated the 14th Amendment’s equal-protection clause with its requirement that girls wear skirts.

The 101-page decision by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., included discussions of chivalry and other values of the Middle Ages, gender stereotypes in education, the lawfulness of student dress codes, and the legal status of charter schools.

In fact, Charter Day School in Leland, N.C., has appealed the ruling to the Supreme Court, with a focus on the question of whether the policies of a private entity that contracts to operate a charter school are “state action” subject to the Constitution. The high court will likely decide sometime in the new year whether to take up the case.

End of the line for a groundbreaking lawsuit over civics education

In January 2022, a federal appeals court hailed a group of Rhode Island students who challenged civics education in the state as inadequate, even as the court ruled the students could not prevail.

“The students have called attention to critical issues of declining civic engagement and inadequate preparation for participation in civic life at a time when many are concerned about the future of American democracy,” the unanimous three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, wrote in A.C. v. McKee. But there was no fundamental right to an adequate civics education under the U.S. Constitution, the court held.

The 14 student plaintiffs, in a proposed class action that would have represented all public school students in the state, later took steps toward an appeal to the Supreme Court. But they dropped the effort when the Rhode Island state education department last June agreed to establish a civics education task force and take other steps to improve teaching of the subject.

Schools seek clarity under Title IX

There was considerable attention this year focused on Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools and colleges.

In May, a federal appeals court revived two Title IX sexual harassment cases alleging that the Nashville school district failed to respond adequately to incidents involving students and sexually explicit videos circulated on social media. A divided panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, said the school district might be responsible for failing to respond in the two cases and that there had been a pattern of sexual harassment cases in the district.

In November, meanwhile, the Supreme Court declined to take up cases raising questions about the scope of responsibility for schools and colleges in cases of alleged sex harassment. That came as the Biden administration weighs comments submitted on its proposed Title IX regulations dealing sexual assaults and harassment.

The bottom line for now is that schools are seeking more guidance in this area of the law.

Transgender participation in girls’ athletics

On another Title IX issue, a federal appeals court this month effectively upheld a policy of Connecticut’s high school sports governing body that allows transgender girls to participate in sports consistent with their gender identity.

A panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, held in Soule v. Connecticut Association of Schools that several cisgender female track athletes could not erase state championship results in which they were defeated by two transgender runners.

The cisgender girls argue that their rights were violated under Title IX, but the appeals court held that the Connecticut Interscholastic Athletics Association could not have been on notice that its transgender-inclusive policy violated Title IX and that, more likely based on other courts’ rulings, such a policy is consistent with or perhaps even required by the federal statute. This decision seems likely to be appealed to the Supreme Court.

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