Category Archives: education

Kadrmas v. Dickinson Public Schools

487 U. S. 450

June 24, 1988

In North Dakota, rural school districts were urged to “reorganize” or consolidate. A law passed by the legislature allowed non-reorganized school districts to charge a fee for school bus transportation. The Kadrmas family, who lived near poverty level, objected to paying the bus fee in their non-reorganized school district. They argued that it violated the Equal Protection clause because reorganized school districts did not require a fee, and that it violated a more general right to education.

The Supreme Court disagreed in a 5-4 vote. O’Connor began by brushing aside a truly asinine and meritless standing challenge. Turning to the merits, she said that there was no Constitutional right to public schooling, and that laws which cast a greater burden on the poor were not inherently unconstitutional. The law served a rational purpose of helping public schools cover transportation costs, and that was enough. Although the Court had previously ruled that certain judicial proceedings be provided free of charge, O’Connor distinguished those by saying that no other remedy existed. In contrast, there were other means of getting to school apart from buses, and indeed, Sarita Kadrmas had never missed a day of school. The Equal Protection challenge was turned back because the state had a valid reason for distinguishing between reorganized and non-reorganized districts – namely, encouraging the non-reorganized ones to reorganize.

Stevens, joined by Blackmun, asserted that encouraging reorganization was not a good enough reason to allow for the charging of bus fees. He would find an Equal Protection violation. Marshall, joined by Brennan, huffed about how insensitive the Court was being to poor people. Because of the paramount social importance of education, Marshall felt that law which imposed heavy burdens on poor pupils needed to be struck down. He also felt that the majority was not following the principles of the 1982 Plyler v. Doe ruling, which required states to accept illegal immigrants into the school system.


Regents of Univ. of Cal. v. Public Employment Relations Bd.

485 U. S. 589

April 20, 1988

An employee union wanted to use the University of California’s postage-free internal mail system. The union claimed that a California law gave them this right, but the University responded that federal law against postage-free delivery trumped this. There were some statutory exceptions to the federal law against private mail delivery, such as the ‘letters-of-the-carrier’ and the ‘private-hands’ ones. The postal service itself said that these exceptions did not apply, but the union pressed forth its challenge undaunted.

The Court ruled 6-2 that the University should not carry the union mail (Kennedy did not participate). O’Connor first looked at the ‘letters-of-the-carrier’ exception, which said that entirely internal mail was exempt from the US postal service. Because the union was not in fact a part of the University, the mail was not entirely internal and the exception did not apply. Then there was the ‘private-hands’ exception, which said that mail could be delivered outside the postal service if there was no compensation for it. O’Connor said that non-monetary compensation such as business quid-pro-quos qualified as ‘compensation’ for this exception. Because carrying union letters could be seen as a way of currying the goodwill of the employee union, this exception did not apply either.

White, concurring in judgment, did not think the precise reach of the statutory exceptions was as clear as O’Connor thought, but was willing to give the harmonious interpretations of postal service Chevron deference. Stevens, joined by Marshall, dissented, and argued that the ‘private-hands’ exception applied. Looking through legislative history, and some earlier court cases, he concluded that the majority’s expansion of the term ‘compensation’ to include non-monetary goodwill could not be justified. Thus, the University was required to follow California law and carry union mail.

This is one of those preemption cases where the parties are caught between two crappy laws. The postal service’s ruthless attempt at monopoly is pretty silly, but California’s demand that universities deliver union mail free of charge is even worse. In any event, White had the most legally persuasive opinion. This was a simple Chevron case that the majority and dissent both made much harder than it needed to be.

Honig v. Doe

484 U. S. 305

January 20, 1988

The Education of the Handicapped Act (EHA) required that disabled students receive competent eduction, and mandated that in a dispute over a student’s placement, he could never be removed from his current school without parental consent. The San Francisco public schools tried to expel, without parental consent, two disabled students because they were physically dangerous to their classmates. The main question was whether dangerousness was an exception to the general rule about removal.

With Brennan writing, the Court held 6-2 that it was not. It first addressed the issue of mootness. One student was 24, and thus too old to take advantage of the EHA any longer. The other student no longer lived in San Francisco, but Brennan said that the same thing could happen to him in another school district, so the case was one ‘capable of repetition, yet evading review.’ On the merits, Brennan saw no reason to deviate from the literal language of the EHA. Furthermore, he showed that Congress emphatically knew about the problem of dangerousness, so the absence of such an exception was not an oversight. On a final minor question of whether courts could order a state to take remedial action when local school districts failed to do so, the Court was tied.

Rehnquist wrote his first ever concurrence as Chief Justice, and in it he lamented how annoying mootness arguments were. He thought the Court had Article III jurisdiction to hear all moot cases, and thought it was especially important to do so when the case was live for the District and Appeals courts. Scalia, joined by O’Connor, dissented solely on mootness grounds. Because there was no evidence that the suing student would try to go to public school again, and because there was no reason to believe that another public school would also attempt to expel him, Scalia did not think the case was really ‘capable of repetion.’ And after doing his traditional digging through musty old 19th century rulings, he proclaimed that mootness was a genuine Article III bar against jurisdiction.

As ought to be apparent by now, I really hate justiciability doctrines like mootness. What I hate even more is the Court’s interminable schizophrenia on the ‘advisory’ vs. ‘cases and controversies’ debate. It’s brutally obvious that the Court decides to hear cases based on what important doctrinal questions it wants to address. In this sense, the Court is already a de facto advisory body. At the same time, it’s still a de jure cases-and-controversies body, and so it still adheres to all the dopey justiciability rules. Instead of this ‘worst of both worlds’ mixture, I would prefer the Court picking just one approach, and going all the way with it. Either become a full blown advisory court, and don’t even pretend to wait for the cases, or become a truly non-advisory court, and concentrate earnestly on reversing all lower court rulings which are in error, no matter how trivial they are doctrinally.

Hazelwood School Dist. v. Kuhlmeier

484 U. S. 260

January 13, 1988

A high school published, at its own expense, a newspaper written by students in a journalism class. In one 1983 issue, the principal ordered the removal before publication of articles about student pregnancy and divorce, citing several compelling concerns over anonymity, journalistic ethics, and the mature subject matter. The students claimed that this violated their First Amendment rights from the Tinker case. If this were a Hollywood movie, the dewy-eyed, idealistic kids would have taken that mean ol’ killjoy of a principal all the way to the Supreme Court and won.

Thankfully, it was not a Hollywood movie, and the Supreme Court smacked the snotty little kids down. White wrote for the Court, which ruled 5-3 that the principal had acted reasonably. Because the newspaper was published by the school, and part of the school’s education mission, school administrator’s had a right to oversee its content, and ensure that it met proper standards for distribution to the student body. The school had not intended to create a forum for unsupervised free speech, and the speech exercised in the paper was not private as in Tinker. White concluded by showing that the principal’s censoring had been eminently reasonable (it had even been commended by the editor of a real newspaper).

Brennan, joined by Marshall and Blackmun, quite evidently wanted the Hollywood ending. He moaned that Tinker hadn’t said anything about the effect of school sponsorship, and so it shouldn’t matter. He ominously intimated that the principal was a prude who was hellbent on brutally squashing anything that promoted sexual promiscuity. And he threw in a hearty helping of Monday morning quarterbacking about alternative options the school could have taken when faced with the troubling articles. Hazelwood was predictably greeted by an avalanche of sententious tut-tutting from the press, who also wanted the Hollywood ending badly. Lost in most commentary on the decision was the fact that the principal was totally on point in all his objections.

Edwards v. Aguillard

482 U. S. 578

June 19, 1987

In 1981, Louisiana passed a law requiring creation science to be taught whenever evolution was taught in public school science classes. The state legislature said that this law’s purpose was preserving academic freedom. Immediately, a federal court enjoined the act’s enforcement, on the theory that it had no valid secular purpose, and thus violated the establishment clause’s Lemon test.

The Court ruled 7-2 that Louisiana’s law was unconstitutional. Brennan wrote the majority opinion, which stressed the particular importance of keeping religion out of public schools. Turning to the act’s alleged purpose of academic freedom, he declared it a sham. By forcing educators to either avoid teaching evolution or teach it alongside creation science, the act notably constricted rather than expanded academic freedom. Brennan then reviewed some statement’s of the law’s sponsor and leading proponents, and surmised that the law was really intended to bring God into school, and to discredit evolution on the basis of Christian opposition. To conclude, he defended the lower court’s decision to issue summary judgment without a trial, claiming that the law’s unconstitutionality was plain and undeniable.

Powell, joined by O’Connor, concurred, and gave some additional snippets from legislative history which illustrated the plainly religious motivations and doctrines at the heart of ‘creation science.’ Then, in a feeble attempt to play good cop, he added a few paragraphs about how schools could still teach about religion in certain appropriate contexts. White concurred in judgment. Two lower courts with Louisianans as judges had found a religious purpose, and White did not feel it was the Supreme Court’s place to second guess their interpretation. And then there was the Scalia dissent, which was joined by Rehnquist.

Scalia’s dissent is a dazzling tour de force which cannot be done full justice in only a few sentences. He first reviewed Lemon precedents to show that a pro-religious motivation does not automatically make a law unconstitutional. Next, he reviewed the legislative history in excruciating detail, and proved that Louisiana legislators could conceivably have believed that the law’s purpose was totally secular. Parsing the record further, Scalia explained that the “academic freedom” justification simply meant that students ought to be able to hear the pros and cons of evolution, and be given the ability to make up their own minds on the issue. Finally, Scalia lambasted the Lemon test’s purpose inquiry, arguing that discerning a law’s objective purpose was impossible. He demonstrated that no reliable or principled method existed to ascertain the actual purposes in the heads of state legislators.

This last section is an absolute joy to read. I wish I could quote more of it, but here’s one of the best bits: “If a state senate approves a bill by vote of 26 to 25, and only one of the 26 intended solely to advance religion, is the law unconstitutional? What if 13 of the 26 had that intent? What if 3 of the 26 had the impermissible intent, but 3 of the 25 voting against the bill were motivated by religious hostility or were simply attempting to “balance” the votes of their impermissibly motivated colleagues? Or is it possible that the intent of the bill’s sponsor is alone enough to invalidate it – on a theory, perhaps, that even though everyone else’s intent was pure, what they produced was the fruit of a forbidden tree?”

Edwards v. Aguillard is probably the most well remembered case from 1987; justly so too, for what a national education system teaches children about the origins of mankind is of foundational and paramount importance. Scalia was correct that the majority acted prematurely in finding a religious purpose. Nonetheless, despite Scalia’s valiant legalistic defense, I must admit as a realistic matter that the law almost certainly was religious at heart. Simply stated, Louisiana wanted God in schools. America’s legal ruling class wanted Him out.

As great theologians throughout history have pointed out, the concept of ‘neutrality’ is largely a mirage. To quote Christ, “he who is not with Me is against Me; and he who does not gather with Me scatters.” When schools teach non-theistic evolution as the origin of mankind, they are not neutral toward Christianity – they oppose it. Abraham Kuyper, a Dutch Prime Minister from the early 1900s, was one of the first politicians to figure this out. He knew that public schools were not religiously neutral, but inherently anti-theistic, and accordingly advocated for government funding of religious schools in the interest of fairness.

Justice Hugo Black actually grasped much of this logic back in 1968, when he dissented from the Court’s decision that states could not ban the teaching of evolution. He wrote “If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an “anti-religious” doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible’s story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines?”

One great irony of the case is that the Louisiana legislature was not actually honoring God. God merits preeminence, but Louisiana was only willing to give Him equal time. The law was like ancient Israel declaring that they would equally celebrate both God and Ba’al. The American culture of pluralism is so strong that not even the devout Baptists and Catholics of Louisiana dared to recognize God’s dominion. So long as the establishment clause exists, Christians will never be able to completely live out their faith. As Kuyper explained, God is sovereign over absolutely everything – politics included. A faithful Christian cannot leave behind their allegiance to God in the voting booth, or in the statehouse. A faithful Christian cannot simply turn off his or her faith while deciding what laws to pass. But as Justice Brennan makes clear, this is precisely what the establishment clause directs Christians to do.