Special Education

An Educator’s Guide to the Supreme Court’s 2017-18 Term

By Mark Walsh — September 29, 2017 7 min read
BRIC ARCHIVE

After a 2016-17 term with major decisions affecting special education, private schools, and government aid to religion, the new U.S. Supreme Court term that opened Oct. 2 was looking like it would start off pretty slow for education issues.

But that changed dramatically late last week when the justices agreed to again take up the issue of public-employee union fees to their docket. The court could finally be ready to overrule a 40-year-old precedent that allows teachers’ unions to charge fees for collective bargaining from those who don’t wish to join the union.

And more big education issues could yet join the court’s docket this term, including cases on prayer at school board meetings, and transgender student rights.

Meanwhile, the court’s docket of accepted cases includes major ones about religious objections to same-sex marriage, voting rights, and—potentially still—presidential power over immigration, all of which could be of interest to educators.

“There is only one prediction that is safe about the upcoming term, and that is it will be momentous,” Justice Ruth Bader Ginsburg said on Sept. 20 in an appearance at Georgetown University Law Center.

(That was before the court pulled a pair of cases from the docket until further notice after President Donald Trump issued a revised version of that so-called travel ban Sept. 24. The dispute may yet re-emerge as an issue before the high court.)

Accepted Cases

Public-Employee Union Fees

The justices have agreed to plunge back into the issue that divided an eight-member court in 2016: whether public-employee unions, including the National Education Association and the American Federation of Teachers, may continue to charge fees to non-members for collective bargaining.

In that 2016 case, Friedrichs v. California Teachers Association, the justices deadlocked 4-4 in a case in which nonunion teachers asked it to overrule Abood v. Detroit Board of Education, the 1977 Supreme Court case that authorized public employee unions to charge service fees to employees in the bargaining unit who refuse to join.

Cake, Same-Sex Marriage, Religion, and Speech

One of the court’s most-anticipated cases is Masterpiece Cakeshop v. Colorado Civil Rights Commission (No. 16-111). The case has implications for education in the sense that it deals with the clash between religious objections to gay rights and the reach of state civil rights protections.

This case involves a Colorado baker, Jack Phillips, who declined to create a wedding cake for a same-sex couple. Phillips, who describes himself as a cake artist, asserts a First Amendment free speech right to not be compelled to create a cake when he has deeply held religious convictions against same-sex marriage.

He cites West Virginia State Board of Education v. Barnette, the 1943 Supreme Court decision holding that students could not be compelled to recite the Pledge of Allegiance in school.

The state of Colorado, and the American Civil Liberties Union lawyers representing the same-sex couple, Charlie Craig and David Mullins, will argue that the state’s civil rights laws, which protect against discrimination based on sexual orientation, bar Phillips’s conduct in refusing to serve customers based on their status.

They cite a different education-related Supreme Court precedent, Rumsfeld v. Forum for Academic and Institutional Rights, a 2006 decision in which the high court held that a federal statute requiring colleges to treat military recruiters the same as non-military ones was not compelling a group of law schools to speak in a way that conflicted with their objections to the then federal policy barring gays and lesbians to openly serve in the military.

The case is expected to be argued in late November or early December.

Voting Rights, Gerrymandering

In Gill v. Whitford (No. 16-1161), the court will tackle the question of whether it can set a standard for when partisan gerrymandering—the politically motivated drawing of voting districts for federal, state, and local offices including school boards—violates the U.S. Constitution. Although few school boards are elected by political party, the case could have a major impact on state legislatures and thus on education as a state legislative issue.

Trump’s Travel Ban

The dispute involving the restriction on travel to those from some Muslim countries has been of interest particularly in higher education, with the challenges to the so-called travel ban stressing that scholars and students from those countries would be affected. Also, it raises questions about whether the president’s statements about Muslims violate the First Amendment’s prohibition against government establishment of religion.

“Bias-based harassment and discrimination against children who are Muslim or perceived to be Muslim has significant negative consequences,” says a friend-of-the-court brief filed against the administration by the National Education Association.

Pending Appeals

The justices could decide to add these education cases to their docket for this term.

School Board Prayers

In 2014, the Supreme Court upheld a New York state town’s practice of opening its municipal meetings with prayers. Justice Anthony M. Kennedy wrote for the court in Town of Greece v. Galloway that the town does not violate the First Amendment’s prohibition of government establishment of religion by having a prayer “that comports with our tradition and does not coerce participation by nonadherents.”

The big question since that decision has been whether school boards that open their meetings with prayers are just like more general municipal bodies like town councils and county boards, or whether their involvement as part of the educational process, with students frequently present at such meetings, make school boards similar to schools, implicating a separate line of church-state decisions.

The appeal in American Humanist Association v. Birdville Independent School District (No. 17-178) gives the justices the opportunity to clarify that question.

The U.S. Court of Appeals for the 5th Circuit, in New Orleans, upheld a Texas school district’s policy of permitting students to lead prayers before board meetings.

In their appeal, a former student from the district and the American Humanist Association say the federal appeals courts are split on whether school board prayers should be viewed the same as prayers in state legislatures and more general bodies such as town councils.

“This case presents a recurring question of exceptional constitutional importance, affecting millions of students nationwide, that is ripe for this court’s review,” says the appeal.

The Birdville district has until Oct. 16 to file a response to the appeal.

Transgender Student Rights

Last term, the justices agreed to hear the appeal of a Virginia school district in a case involving a transgender high school student’s lawsuit seeking to use the school restroom that corresponded to his gender identity. But the court sent it back to the lower courts after the Trump administration withdrew informal U.S. Department of Education guidance telling schools to respect the rights of transgender students.

Now a Wisconsin school district is asking the high court to settle the issue of whether a policy requiring transgender students to use facilities corresponding to their biological gender violates Title IX of the Education Amendments of 1972.

The U.S. Court of Appeals for the 7th Circuit, in Chicago, upheld an injunction requiring the Kenosha school district to allow a transgender high school student named Ashton Whitaker to use the boys restroom.

The appeals court said the district’s policy likely violated the student’s rights under Title IX of the Education Amendments of 1972 and the 14th Amendment’s equal-protection clause. The ruling was not dependent on the Education Department’s informal policy letters, as the Virginia case had been.

In its appeal in Kenosha Unified School District v. Whitaker (No. 17-301), the district says its case presents “a clean vehicle” for the court to clarify whether “requiring boys and girls to use school bathrooms that correspond with their biological sex, rather than their gender identity, is sex-based discrimination under Title IX and whether this classification is entitled to heightened scrutiny in an equal-protection analysis.”

Lawyers for Whitaker, who graduated from high school last spring but is seeking damages that would seem to keep his lawsuit alive, have until Oct. 27 to file a response to the school district’s appeal.

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A version of this article appeared in the October 04, 2017 edition of Education Week as Watch List: High Court, 2017-18 Term

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