Law & Courts

What Sandra Day O’Connor Did to Shape School Law and Civics Education

By Mark Walsh — December 01, 2023 10 min read
Justice Sandra Day O'Connor listens as Justice Ruth Bader Ginsburg pays tribute to O'Connor's advocacy work on behalf of civic education, impact on female judges and justice for women and girls worldwide at the Seneca Women Global Leadership Forum at the National Museum of Women in the Arts, on April 15, 2015 in Washington.
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Sandra Day O’Connor, who in 1981 became the first woman appointed to the U.S. Supreme Court and who wrote opinions on important education issues such as affirmative action, private school vouchers, and sex discrimination before devoting herself in retirement to improving civics education, died Friday at age 93.

O’Connor, a self-described “Arizona cowgirl” who grew up on a sprawling ranch, died in Phoenix of complications related to advanced dementia, probably Alzheimer’s, as well as a respiratory illness, the court announced. O’Connor had revealed her dementia diagnosis in 2018 and said she was stepping away from public life, including as leader of iCivics, the organization she founded in 2009 to improve civics education for the nation’s students.

“I can no longer help lead this cause, due to my physical condition,” O’Connor said in a 2018 letter to the public. “It is time for new leaders to make civic learning and civic engagement a reality for all.”

Chief Justice John G. Roberts Jr. issued a statement that said, “A daughter of the American Southwest, Sandra Day O’Connor blazed an historic trail as our nation’s first female justice. She met that challenge with undaunted determination, indisputable ability, and engaging candor. We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education.”

I will make it my primary focus now to work on civics education in America. We have some work to do.

Sandra Day O’Connor’s major influence on Title IX cases

President Ronald Reagan had vowed to appoint a woman to the court when he ran for the White House in 1980. In 1981, he got the chance when Justice Potter Stewart retired.

O’Connor, then 51, was a midlevel state appellate judge in Arizona, where she had earlier served as the Republican majority leader of the state senate.

“She is truly a person for all seasons, possessing those unique qualities of temperament, fairness, intellectual capacity, and devotion to the public good which have characterized the 101 brethren who have preceded her,” Reagan said.

O’Connor remained in Arizona, where she held a brief press conference and largely deflected questions about becoming the first woman on the court. Despite some wariness among conservatives who thought she might not be sufficiently opposed to abortion rights, she was confirmed by the U.S Senate 99-0.

At the tradition-bound court, some traditions had to go. The court dropped the honorific “Mr. Justice,” changing it to “Justice.” Still, in the early 1990s, after O’Connor had been on the court more than 10 years, an advocate once opened a line of argument by saying, “Gentlemen, ...” After a few moments, O’Connor leaned forward to ask him, “Counselor, are you addressing your arguments to me as well?” The lawyer apologetically said yes.

One of her first important education opinions came at the end of her first term, in 1982, when she wrote the majority opinion for the court in Mississippi University for Women v. Hogan, which struck down the state university’s policy of excluding otherwise qualified male students from its nursing school.

It was the first of several important decisions she wrote on sex discrimination in education, including three important opinions she wrote interpreting Title IX of the Education Amendments of 1972, which bars sex bias in federally funded educational programs.

In 1998, in Gebser v. Lago Vista Independent School District, O’Connor wrote the opinion for a 5-4 court that set a fairly high bar for victims of teacher-student sexual harassment to be able to recover damages from a school district under Title IX. The court said that a plaintiff could not prevail unless a school district official who at a minimum had the authority to institute corrective measures on the district’s behalf had actual notice of—and was deliberately indifferent to—the teacher’s misconduct.

In the next term, in Davis v. Monroe County Board of Education, O’Connor opened up a new line of potential torts under Title IX. She joined the court’s more liberal members and wrote an opinion that said districts could be held liable for student-on-student sexual harassment. The plaintiff had to satisfy the same high standard from Gebser as to the school district’s knowledge of the harassment, O’Connor wrote, and the peer harassment had to be of a serious nature.

“In the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it,” O’Connor wrote. “Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.”

And in 2005, in her last education opinion (and one of her last opinions before retiring in early 2006), O’Connor wrote the majority opinion for the court in Jackson v. Birmingham Board of Education, which upheld the right of someone to sue for retaliation over making Title IX complaints, such as the male high school basketball coach in the case who had complained about sex discrimination in his school’s athletics program.

“A reasonable school board would realize that institutions covered by Title IX cannot cover up violations of that law by means of discriminatory retaliation,” O’Connor wrote.

O’Connor was often the fifth vote on major education decisions

O’Connor was at the center of the court’s ideological fulcrum for years, and she provided the fifth vote on other major education decisions.

In 2002, in Zelman v. Simmons-Harris, the court held 5-4 that Ohio’s program of private school vouchers for low-income children in the Cleveland school system, which allowed public funding to flow to private religious schools, did not violate the First Amendment’s prohibition on government establishment of religion.

In a concurrence that delved into fine points of education policy and funding, O’Connor said: “In my view the more significant finding in these cases is that Cleveland parents who use vouchers to send their children to religious private schools do so as a result of true private choice.”

In 2003, in Grutter v. Bollinger, O’Connor wrote the opinion for a 5-4 court that upheld the race-conscious admissions plan at the University of Michigan law school, which considered race as part of its holistic review of each applicant.

“Affirmative action’s benefits are not theoretical, but real,” O’Connor wrote. “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 also wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

It’s not known whether O’Connor was aware of the Supreme Court’s ruling in June that effectively ended racial preferences in higher education admissions. Although Roberts’s opinion for the court in Students for Fair Admissions v. President and Fellows of Harvard College did not say that it was overruling Grutter, which had enshrined the court’s acceptance of educational diversity as a permissible rationale for racial preferences, some of his concurring colleagues suggested as much.

“The court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled,” Justice Neil M. Gorsuch wrote in his concurrence.

Justin Driver, a Yale University law professor who clerked for O’Connor just after she retired, and a leading scholar of education law, called Grutter her most significant opinion.

“She understood that racial diversity on the nation’s leading campuses was important to the vitality of not only higher education, but also our multiracial democracy,” Driver said via email on Friday, adding that her opinion in that case “refuses to view constitutional law as some sort of abstract intellectual feast, and instead appreciates how law concretely shapes the lives of everyday Americans.”

Though often in the majority during her 25-year tenure, she could also write a sharp dissent.

In Vernonia School District v. Acton, the court ruled 6-3 to uphold an Oregon school district’s policy of random drug testing for student athletes, holding that the district’s interest in addressing a perceived drug problem was sufficient to justify random searches under the Fourth Amendment.

“Intrusive, blanket searches of school children, most of whom are innocent, for evidence of serious wrongdoing are not part of any traditional school function of which I am aware,” O’Connor wrote in her dissent.

“It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis,” she added. “Having reviewed the record here, I cannot avoid the conclusion that the district’s suspicionless policy of testing all student-athletes sweeps too broadly, and too imprecisely, to be reasonable under the Fourth Amendment.”

Sandra Day O’Connor championed civics education

In 2005, O’Connor announced her retirement from the court, and President George W. Bush nominated Roberts for her seat. But in September of that year, Chief Justice William H. Rehnquist died after a long battle with throat cancer. Bush switched Roberts’s nomination to the chief justice’s seat and began a new search to replace O’Connor.

She agreed to remain on the court until a successor was confirmed, which occurred in January 2006 with the Senate’s approval of Samuel A. Alito Jr.

In retirement, O’Connor cared for her husband, John O’Connor, who had Alzheimer’s and died in 2009. She served on lower federal appellate court panels and spoke out against public election of state judges. But she soon found the issue she would remain passionate about the rest of her active years.

“I will make it my primary focus now to work on civics education in America,” O’Connor told the National School Boards Association in 2008. “We have some work to do.”

She founded iCivics, a nonprofit that promotes learning about government through lesson plans and online games such as “We the Jury” and “Do I Have a Right?”

In a 2009 interview with Education Week, O’Connor said she became interested in civics education while still on the high court.

“As a member of the U.S. Supreme Court, I was very much aware of criticisms of judges by some members of Congress and state legislators—expression by some people that judges were just secular, activist humanists who were trying to impose their will on the people,” she said.

Louise Dubé, the executive director of iCivics, said in an interview after O’Connor’s death on Friday that “what strikes me when I look at the entirety of her legacy is that her commitment to civics took over her entire life after 2006.”

O’Connor had “never opened a computer” before her iCivics team began working with top game designers and other experts to develop the popular educational games, Dubé said. And she wasn’t very adept at playing the games herself when Dubé joined the organization in 2014.

“We traveled around the country and she used her time to educate the larger public on this issue,” Dubé said. That included talking to state legislators, education groups, and even appearing on Jon Stewart’s Comedy Central show.

“This is one of the largest contributions that Sandra Day O’Connor made to our society,” Dubé said.

iCivics now has a staff of 67 people, 20 games, and hundreds of lesson plans on civics for downloading by teachers. Justice Sonia Sotomayor joined the organization’s board when O’Connor stepped back from public life and remains an active participant, Dubé said.

Sotomayor, in a statement on O’Connor’s death, said the late justice “was a brilliant champion of women’s rights, and promoted civic education in a way that transformed how children learn about our shared responsibility as citizens.”

Funeral arrangements have not been announced.

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