To the extent that education cases can be cast in conservative or liberal terms, Justice David H. Souter’s record on such cases in his 19 years on the U.S. Supreme Court can be characterized as reliably liberal.
The justice informed President Barack Obama this month that he will retire at the end of the term. He voted in dissent in 2007 against a court majority that made it much more difficult for school districts to consider race in assigning students to schools. And that same year, he joined a dissent against a decision upholding the discipline of a student displaying a “Bong Hits 4 Jesus” banner at an Alaska high school.
Justice Souter, who was appointed by President George H.W. Bush in 1990 to succeed Justice William J. Brennan Jr., has been most prolific as an advocate for strict separation of church and state in cases involving government aid to religion or religion in the public schools.
In the court’s 1992 decision in Lee v. Weisman, he joined the 5-4 majority that ruled clergy-led graduation prayers at a middle school to be a violation of the First Amendment’s prohibition against a government establishment of religion. Justice Souter wrote that “the government’s sponsorship of prayer at the graduation ceremony is most reasonably understood as an official endorsement of religion.”
Two years later, in Board of Education of Kiryas Joel Village School District v. Grumet, Justice Souter wrote the opinion in a 6-3 decision that struck down a New York state law establishing a special school district to serve children with disabilities in a community of Hasidic Jews. The law was a form of “religious favoritism,” the justice said.
In the court’s landmark 2002 decision in Zelman v. Simmons-Harris, Justice Souter wrote a bitter dissent from the court’s 5-4 decision to uphold an Ohio voucher program that allowed Cleveland parents to send their children to private schools, including religious schools, at public expense. Justice Souter called such programs “a danger” and wrote, “I hope that a future [Supreme] Court will reconsider today’s dramatic departure from basic establishment clause principle.”
He may not have written his last opinion in an education case. The court heard arguments in three school cases last month, and it will issue opinions by the end of June.
A version of this article appeared in the May 13, 2009 edition of Education Week