To the majority on the U.S. Supreme Court in a 1986 case, a high school student who had delivered a sexual-innuendo-filled speech to a school assembly was a “confused boy” guilty of “offensive” and “insulting” behavior. The court upheld a three-day suspension and his removal from the list of potential commencement speakers.
But to Justice John Paul Stevens—who announced this month that he would retire in June, after more than 34 years on the high court—student Matthew N. Fraser “was an outstanding young man with a fine academic record,” as the justice put it in his dissent in Bethel v. Fraser.
“The fact that he was chosen by the student body to speak at the school’s commencement exercises demonstrates that he was respected by his peers,” Justice Stevens wrote, and it “indicates that he was probably in a better position to determine whether an audience composed of 600 of his contemporaries would be offended by the use of … a sexual metaphor than is a group of judges who are at least two generations and 3,000 miles away from the scene of the crime.”
That dissent “captured [Justice Stevens] in important ways,” Pamela Harris, the executive director of the Supreme Court Institute and Georgetown University Law Center and a former law clerk to Justice Stevens, said of her former boss. “He has remarkable empathy—an ability to see how people, particularly young people, might make mistakes. He has a very generous view of human nature.”
The retirement of Justice Stevens, who was nominated by President Gerald R. Ford in 1975 to succeed Justice William O. Douglas, will give President Barack Obama the opportunity to nominate a second justice to the high court. The White House is at work on a list of potential replacements that reportedly includes as many as 10 candidates, and members of Congress have pledged to have a new justice confirmed by the time the court’s 2010-11 term convenes in October.
Few, But Influential
In his more than three decades on the high court, Justice Stevens has been the author of relatively few majority opinions in K-12 education cases.
In more than 34 years on the U.S. Supreme Court, Justice John Paul Stevens has written in numerous cases involving K-12 education, sometimes in the majority, often in dissent.
CHURCH AND STATE | Majority opinion in a 2000 case striking down a Texas school district’s policy of permitting student-led, student-initiated prayers before football games:
“School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”
– Santa Fe Independent School District v. Doe
SPECIAL EDUCATION | Majority opinion in a 1999 case in which the court required that a school district provide individual nursing help needed for a student with severe medical disabilities to attend school:
“This case is about whether meaningful access to the public schools will be assured, not the level of education that a school must finance once access is attained.”
– Cedar Rapids Community School District v. Garret F.
RACE AND EDUCATION | Dissent from a 2007 decision sharply limiting when school districts could voluntarily take race into account when assigning students to schools:
“There is a cruel irony in the Chief Justice’s reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: ‘Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.’ … The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.”
– Parents Involved in Community 69ý v. Seattle School District No. 1
STUDENT SPEECH | Dissent from a 2007 decision upholding the discipline of a student who had displayed a sign with the message “Bong Hits 4 Jesus” at a school event:
“In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school’s decision to punish [the student] for expressing a view with which it disagreed.”
– Morse v. Frederick
GENDER EQUITY: Dissent from a 1998 decision limiting when school districts could be held liable for teacher sexual harassment of students:
“As a matter of policy, the Court ranks protection of the school district’s purse above the protection of immature high school students. … Because those students are members of the class for whose special benefit Congress enacted Title IX, that policy choice is not faithful to the intent of the policymaking branch of our Government.”
- Gebser v. Lago Vista Independent School District
Sources: U.S. Supreme Court, Education Week
In one such case in 1999, he wrote the opinion for a majority that interpreted federal special education law as requiring a school district to provide individual nursing help needed by a student with severe medical disabilities to attend school.
The district and school groups had warned the court that such a broad interpretation of the Individuals with Disabilities Education Act would have severe financial consequences for schools. But in ruling for the student, who had required a ventilator since a motorcycle accident severed his spinal column, Justice Stevens and the majority said the nursing care was a “related service” required by the idea.
“This case is about whether meaningful access to the public schools will be assured, not the level of education that a school must finance once access is attained,” Justice Stevens wrote in Cedar Rapids Community School District v. Garret F. “It is undisputed that the services at issue must be provided if Garret is to remain in school.”
Justice Stevens has been a stalwart vote in favor of strict separation of church and state, and he wrote two important majority decisions in that area involving education. In 1985, in Wallace v. Jaffree, the court struck down an Alabama law that authorized a period of silence in public schools for “meditation or voluntary prayer.”
“The addition of ‘or voluntary prayer’ indicates that the state intended to characterize prayer as a favored practice,” Justice Stevens wrote for the majority. “Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.”
In a 2000 case, Santa Fe Independent School District v. Doe, Justice Stevens wrote the majority opinion striking down a Texas school district’s policy of permitting student-led, student-initiated prayers before football games.
Quite often, Justice Stevens took up his pen in dissent, even if only to add a few words when he was not the author of the main dissenting opinion. In 2002, he was one of four dissenters when a five-justice majority upheld the Cleveland private-school-voucher program.
“Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy,” the justice wrote in a short, secondary dissent in Zelman v. Simmons-Harris.
Race in Schooling
• “Supreme Court Limits Strip-Searches of 69ý” (June 25, 2009)
Arizona officials violated a student’s Fourth Amendment rights, but can’t be sued in this case, the high court ruled.
• “Ruling in ‘Bong Hits’ Case Seen as Leaving Protection For 69ý’ Free Speech” (July 18, 2007)
Nuances in the justices’ opinions leave significant protection for more serious political and social expression by students.
• “Districts Face Uncertainty in Maintaining Racially Diverse 69ý” (June 28, 2007)
The recent Supreme Court decision limiting race-based school assignments means districts must consider whether to try alternative means to keep schools integrated.
• “Justices to Hear Student Free-Speech Case” (Dec. 13, 2006)
A case on student freedom of speech that the U.S. Supreme Court has agreed to decide in its current term is potentially far-reaching, not least because it is the court’s first foray into this area of school law in the Internet era.
• “Supreme Court Upholds Cleveland Voucher Program” (June 27, 2002)
Cleveland’s state-enacted school voucher program does not violate the U.S. Constitution, the U.S. Supreme Court has ruled in a 5-4 decision. Includes: “A Long Road to the Court.”
• “Supreme Court Strikes Down Student-Led Prayer” (June 21, 2000)
The U.S. Supreme Court has ruled that student-led prayers at high school football games violate the U.S. Constitution.
• “Educators Say Ruling Could Drain Budgets” (March 10, 1999)
Some school administrators fear a dramatic increase in special education costs in the wake of a U.S. Supreme Court ruling last week that districts must pay for individual nursing help needed by students with severe medical disabilities to attend school.
• “Court Rejects District Plan To Lay Off Only White Teachers” (June 1, 1988)
A school district may not lay off only white teachers to preserve the affirmative-action gains of a desegregation plan, a federal appeals court has ruled.
• “Court Upholds Censorship of Student Press” (Jan. 20, 1988)
The U.S. Supreme Court ruled last week that school administrators have sweeping authority to regulate student speech in school-sponsored publications and activities.
• “Court Upholds ‘Reasonable’ Searches of 69ý” (Jan. 23, 1985)
Balancing the privacy rights of students against the need of public-school officials to maintain discipline requires “some easing” of the Fourth Amendment, the U.S. Supreme Court ruled in a 6-to-3 decision last week.
Justice Stevens’ views on affirmative action and race in education evolved over time. One of the biggest cases he encountered early in his tenure was Regents of the University of California v. Bakke, which involved a challenge to minority preferences by a white applicant who had been denied admission to the medical school at the University of California, Davis.
Justice Stevens concurred in the outcome of the 1978 case, in which the court ordered the white applicant admitted, but he wrote an opinion expressing the belief that the case did not need to address the larger constitutional question of whether race could ever be used in admissions.
By 1986, Justice Stevens was dissenting from the court’s decision in Wygant v. Jackson Board of Education that struck down a school district layoff policy that gave preferential protection to members of certain minority groups as a violation of the 14th Amendment’s equal-protection clause.
The court’s 2007 decision sharply limiting the voluntary use of race by school districts in assigning students to schools was also the subject of one of Justice Stevens’ secondary dissents. While Justice Stephen G. Breyer wrote a lengthy and impassioned dissent from the majority’s decision in Parents Involved in Community 69ý v. Seattle School District, Justice Stevens added his own six-page opinion.
He said there was “a cruel irony” in the conservative majority’s citations of the 1954 Brown v. Board of Education decision outlawing racial segregation in schools. Justice Stevens concluded with these words: “It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today’s decision.”
“He ended up being one of the strongest advocates for integration on the court,” said Maree Sneed, a Washington lawyer who helped represent the Seattle school district in the case.
Boosting Gender Equity
Justice Stevens was the author of an influential opinion in the area of gender equity, although it took many years for the decision to have a larger impact.
In a 1979 case, Cannon v. University of Chicago, the justice wrote the opinion for the court upholding a private right to sue under Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded education programs. The right from that case was later expanded by the court to include suits for money damages as well as for so-called equitable relief, such as injunctions. From there, advocates pressed suits for sexual harassment of students by teachers and by fellow students.
And Justice Stevens often sided with students over school authorities, not only in speech and special education, but also in the areas of searches of students for contraband or for drug testing.
In a 1985 case, New Jersey v. T.L.O., Justice Stevens dissented from the court’s decision upholding a search by school officials of a high school student’s purse, which turned up marijuana.
“The schoolroom is the first opportunity most citizens have to experience the power of government,” he wrote. “Through it passes every citizen and public official, from schoolteachers to policemen and prison guards. The values they learn there, they take with them in life. One of our most cherished ideals is the one contained in the Fourth Amendment: that the government may not intrude on the personal privacy of its citizens without a warrant or compelling circumstance.”
