June 2009 Archives

The U.S. Supreme Court has returned a student strip-search case to a lower court for reconsideration in light of the justices' recent decision on such searches.

In one of its final housekeeping actions on Monday, the last day of its term, the court ordered a fresh look at a case in which 11 nursing students at an Ohio vocational high school sued after they were strip-searched by school officials looking for missing cash and credit cards from some students' purses.

A federal district court denied qualified immunity to the school officials. On an intermediate appeal of that decision, a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year that the strip-searches were unreasonable in scope and thus violated the Fourth Amendment.

The appeals court went on to hold that because the 6th Circuit had ruled in a 2005 case that strip-searches of students in a gym class by teachers looking for missing money were unreasonable, school officials in the circuit had "fair warning" that such strip-searches were unlawful. The court upheld the denial of qualified immunity for officials who carried out the strip searches of the nursing students at the Vern Riffe Career Technology Center.

The school district appealed, and the Supreme Court held on to the appeal, Pike County Joint Vocational School District v. Knisley (Case No. 08-1125), while it considered the case of a strip-search of an Arizona student by school officials looking for prescription ibuprofen.

In Safford Unified School District v. Redding, the justices ruled 8-1 on June 25 that the strip-search of student Savanna Redding violated the Fourth Amendment. The majority said such searches were justified only when school officials had "specific suspicions" that a student was hiding contraband in his or her underwear or other "intimate parts."

The court ruled 7-2, however, that the officials involved in the search of Redding deserved qualified immunity because the case law on strip-searches was unclear.

As often happens when the justices are holding similar cases while the court decides a particular issue, they then send those cases back to the lower courts for a fresh review in light of the new Supreme Court decision.

That is what is happening here. The high court vacated the 6th Circuit court's ruling in the Pike County vocational case, and asked it to reconsider in light of the Safford decision.

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What are the lessons for schools and school employees in the U.S. Supreme Court's decision today in favor of white and Hispanic firefighters in New Haven, Conn.?

After an oral argument session in the case that raised all sorts of education-related parallels, today's decision in Ricci v. DeStefano (Case No. 07-1428) is quite fact-specific about firefighter employment and promotional practices in New Haven.

But there are general principles to be drawn from the case. Justice Anthony M. Kennedy's opinion for a five-justice majority helps clarify the interplay between two key provisions of Title VII of the Civil Rights Act of 1964--the one prohibiting basic disparate treatment (for example, race discrimination), and the one barring so-called disparate-impact discrimination.

"We hold ... that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action," Justice Kennedy said.

The case stems from New Haven's refusal to certify the employment tests of white and Hispanic applicants for promotion in its fire department because back applicants performed poorly on the exams.

At oral argument in April, there was much discussion of the city being in a damned-if-they-do, damned-of-they-don't position. If the city didn't certify the results, it faced a lawsuit from the disappointed white and Hispanic candidates who qualified for promotion. If it did certify the tests, it faced a suit alleging a racially discriminatory disparate impact by the black candidates.

But Justice Kennedy essentially said today that New Haven was damned if it did (engage in racially disparate treatment of the white and Hispanic candidates), but not damned if it didn't.

"Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions," Justice Kennedy said, in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

"If, after it certifies the test results, the city faces a disparate-impact suit, then in light of our holding today it should be clear that the city would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability," Kennedy said.

Justice Ruth Bader Ginsburg, writing in dissent, said the majority failed to properly account for the court's landmark 1971 decision in Griggs v. Duke Power Co. In that case, the court held that the power company's requirements for a high school diploma and test requirements for employment had a racially disparate impact on black applicants. The court said such requirements could not be used unless the employer could show the requirements were related to the job duties.

Justice Ginsburg even cited a 1981 federal appeals court ruling in a school case that she said helped define this "business necessity" defense. In Williams v. Colorado Springs School District, the U.S. Court of Appeals for the 10th Circuit, in Denver, revived a disparate-impact claim by a group of black teachers who alleged they were disproportionately assigned to black-majority schools.

"If an employer reasonably concludes that an exam fails to identify the most qualified individuals and needlessly shuts out a segment of the applicant pool, Title VII surely does not compel the employer to hire or promote based on the test, however unreliable it may be," Justice Ginsburg said.

Her dissent was joined by Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer.

As I noted back in April, school districts have been embroiled in disparate-impact claims involving employment testing, although tests for prospective educators tend to come at the entry point, not at the promotional stage, as is common in police and fire departments.

Tom Hutton, a senior staff lawyer with the National School Boards Association, in Alexandria, Va., said in an interview today that the ruling helps settle the tension between Title VII's disparate-treatment and disparate-impact provisions. But he said there were only limited scenarios in which school districts have been in the same position as New Haven, trying to justify race-based employment actions.

"In the biggest possible picture, you could say that if we are going to be relying more on tests to establish teacher credentials, then this decision could have some relevance," Hutton said.

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The U.S. Supreme Court today declined to hear the appeal of a Christian student group that unsuccessfully sought club status at a high school in Washington state.

The action came on a busy last day of the term for the justices, who also declined to accept an appeal in a special education case and issued an important race-discrimination ruling in the case involving the promotions of firefighters in the New Haven, Conn., fire department.

Education Week's Erik Robelen blogged here earlier today about the decision in Ricci v. DeStefano, and I'll have more to say about its implications for school districts a little later today.

As for the Christian club case, the justices were asked to decide whether a group called Truth had a right under the federal Equal Access Act to be recognized at Kentridge High School in the Kent school district in Washington.

The school's student body governing council refused the club's application, citing concerns about its name and the fact that the club would require officers and voting members to sign a statement of Christian faith, which would be a violation of the school district's non-discrimination policy.

Two lower courts ruled for the school district, with a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, holding in a decision last year that the district did not violate the club's rights under the EAA or the First Amendment.

In their appeal to the Supreme Court, lawyers for the Truth club said the case raised important questions about whether the Equal Access Act protects the right of student religious groups to the freedom of "expressive association."

The club found support in friend-of-the-court briefs filed by such groups as Campus Crusade for Christ and the Fellowship of Christian Athletes, which argued that non-discrimination policies can interfere with the core ideologies of student religious groups.

The Kent school district opposed Supreme Court review, but it filed a "conditional" appeal which urged the justices to consider whether the district could be held liable when the district itself did not make the decision to bar the club. But the district also argued that the court should take up that issue only if it accepted the Christian club's appeal.

The justices declined without comment to hear both appeals, Truth v. Kent School District (Case No. 08-1130) and Kent School District v. Truth (No. 08-1268).

In the special education case, the justices declined to hear the appeal of Ohio parents about whether courts may look beyond the "four corners" of a child's individualized education program to determine whether a school district is providing a free, appropriate public education under federal law.

In a decision last October, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled for the Parma City, Ohio, school district in a case brought by Jeffrey and Sandee Winkelman on behalf of their son.

The Winkelmans notably won a Supreme Court decision in an earlier stage of their case. In 2007, in Winkelman v. Parma City School District, the justices ruled that the Individuals with Disabilities Education Act gives parents independent, enforceable rights to pursue legal action on behalf of their children in special education.

The justices declined without comment to hear the parents' appeal--Winkelman v. Parma City School District (No. 08-1089)--of the ultimate outcome of their case.

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By guest blogger Erik Robelen

The U.S. Supreme Court today ruled in a high-profile case on the race-conscious actions of government, finding by a vote of 5-4 that the city of New Haven, Conn., erred in refusing to recognize the results of a promotions exam for firefighters out of fear that it would violate the civil rights protections of minorities. The action reverses a lower court decision involving, and supported by, Judge Sonia Sotomayor, President Barack Obama's nominee to replace Justice David H. Souter, who is stepping down from the high court.

The ruling has potential implications for decisions on the promotion and hiring of employees by public school districts, though no school groups filed friend-of-the court briefs.

Justice Anthony M. Kennedy wrote the opinion for the majority, and was joined by Justices John G. Roberts Jr., Samuel Alito, Clarence Thomas, and Antonin Scalia.

In the case, Ricci v. DeStefano (Case No. 07-1428), 17 white and one Hispanic firefighter who scored well on a promotional exam claimed that the city of New Haven discriminated against them. Because no black or Hispanic firefighters scored high enough on the exam to win promotion to a lieutenant position, and no black test-takers scored high enough to make the list for captain, the city decided not to certify the results, saying in part that it did so to avoid violating discrimination protections for minorities.

A federal district judge held that the city’s action was justified. That decision was ultimately affirmed by a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit that included Judge Sotomayor, who has come under fire from some conservatives for ruling against the firefighters in this case.

As Mark Walsh noted in a recent blog entry, during the April 22 oral arguments the justices made repeated references to a 2007 schools case in Parents Involved in Community Schools v. Seattle School District. In that decision, the court struck down voluntary integration plans in two school districts and sharply curtailed the way schools could use race in assigning students to schools.

Stay tuned for a more detailed analysis later today by Mark Walsh.

UPDATE: Read an Associated Press article about the decision here on edweek.org.

(The Sept. 2007 photo shows New Haven firefighter Frank Ricci, the lead plaintiff in the case, during testing of firefighting equipment. CREDIT: Keith Muratori/Fire Engineering/AP)

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Chief Justice John G. Roberts Jr. says that if the U.S. Supreme Court were to try to establish comprehensive rules and regulations for the public schools, it probably "wouldn't do a very good job of it."

Roberts was asked at a judicial conference Saturday about what message two recent Supreme Court decisions sent to school administrators. The questioner cited Morse v. Frederick, a 2007 ruling which upheld the right of school administrators to punish a student for displaying a "Bong Hits 4 Jesus" banner at a school event, and last week's decision in Safford Unified School District v. Redding, which held that a strip-search of a student by school officials looking for ibuprofen violated the Fourth Amendment.

"If you were a school administrator, how do you go forward?" the questioner asked the chief justice at the annual conference of the U.S. Court of Appeals for the 4th Circuit in White Sulphur Springs, W.Va. "What guidance do school administrators get from those cases?”

Roberts responded with "a central point, and it's true across the board: If you're going to get all your guidance on issues of that type from the Supreme Court, you’re going to have a lot of difficulties."

"Just take the strip search example," Roberts added. "In many communities, there are policies, and they don’t care what’s going on, you don’t strip search the children. That’s where a school administrator gets their guidance. It’s only when bodies that have on the ground responsibility for laying out the rules haven’t done so that the courts have to get involved."

The chief justice said the trend holds in other areas of the law, such as anti-trust, patent law, and employment discrimination.

"At every stage, there are other bodies that lay down rules," Roberts said. "You can’t expect to get a whole list of regulations from the Supreme Court. That would be bad, because we wouldn’t do a good job at it."

The chief justice stressed to the questioner that the "flip side" of the recent strip-search decision was that the court held that the school officials involved were entitled to qualified immunity because "they didn’t have very clear guidance and that was largely our fault, in the sense of trying to put down our rules."

"So we laid down a rule on what they can and can’t do," Roberts said, "but we said they [w]ouldn’t have to fork over damages from their own personal funds if they guessed wrong."

The Associated Press reports on Roberts' talk here. The full 30-minute question-and-answer session led by Fourth Circuit Judge J. Harvie Wilkinson is available on C-SPAN's Web site here. The schools question comes about 18 minutes, 40 seconds into the session.

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A 5-4 ruling by the U.S. Supreme Court today will require lower courts to re-examine whether Arizona must provide more funding for its English-language learner programs.

The Arizona case is highly complex and quirky, with various state officials pitted against each other. (See my blog posts here and here.) In many respects, it is unlikely any other state will ever reach the position Arizona is in.

But that doesn't mean the Supreme Court's decision in Horne v. Flores doesn't hold important implications for other states and for educators across the nation. It does.

Writing for the majority today, Justice Samuel A. Alito Jr. said the lower courts must reconsider orders requiring more funding for English-language learner programs, both in the Nogales school district where the lawsuit originated and statewide after the remedy was expanded.

A federal district judge in Arizona had ruled in 2000 that the state had violated the "appropriate action" language of the federal Equal Educational Opportunities Act of 1974 by failing to provide adequate funding for its ELL instructional methods. Under the federal civil rights law, each state must "take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs."

U.S. District Judge Raner C. Collins of Tucson ruled in 2007 that a 2006 law passed by the state legislature that increased per-pupil ELL funding and made other changes to the state's program did not go far enough. The state law increased a per-pupil extra amount for English-language learners to $444 from $365, and authorized school districts to seek additional funding for such students. But the law effectively supplanted certain federal funds, and it cut off the majority of state ELL money for any student who remained classified as an English-language learner for more than two years.

That led Judge Collins to conclude that the state's ELL funding system remained irrational and in violation of the EEOA. In upholding the judge's ruling last year, the U.S. Court of Appeals for the 9th Circuit court said in an opinion that "despite considerable efforts, and some improvements in outcomes, Arizona, as a state, does not appear to have turned the corner on ELL education performance."

Today, Justice Alito said, "Both of the lower courts focused excessively on the narrow question of the adequacy of the state’s incremental funding for ELL instruction instead of fairly considering the broader question whether, as a result of important changes during the intervening years, the state was fulfilling its obligation under the EEOA by other means."

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Justice Stephen G. Breyer read part of his lengthy dissent from the bench, saying that the majority reached a result that "neither the record nor the law adequately supports. In doing so, it it risks denying schoolchildren the English-learning instruction necessary to overcome language barriers that impede their equal participation."

His dissent was joined by Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg.

Education Week's Mary Ann Zehr has this story about the decision.

My focus here will be on some of the national implications. For starters, this case is the first before the justices to implicate the No Child Left Behind Act of 2001.

One argument made by state officials who brought the appeal to the Supreme Court--State Superintendent of Instruction Tom Horne and the leaders of the Arizona legislature--was that by the federal Department of Education approving the state's Title III plan for English-language learners under the NCLB law, the state was also in compliance with the Equal Educational Opportunities Act.

Justice Alito said the high court majority agreed with the 9th Circuit that compliance with NCLB "will not necessarily constitute 'appropriate action' under the EEOA."

But the state's compliance could be "probative" to the lower courts, Alito said. The 2001 federal law prompted the state to make significant structural changes to its ELL program, and the federal law provided increased funding both for education generally and for ELL programming.

Stepping into another area with national implications, Justice Alito said that NCLB marked a "shift in federal education policy."

"Reflecting a growing consensus in education research that increased funding alone does not improve student achievement, NCLB expressly refrains from dictating funding levels," Alito said. "Instead, it focuses on the demonstrated progress of students through accountability reforms."

Alito referenced various studies, many of which were submitted in a dual of friend-of-the-court briefs on the issue of school finance, that purportedly back his view that there is now a consensus against "increased funding alone."

This point prompted a retort from Justice Breyer, who cited studies that "cast doubt upon the results" of the finance studies cited by Alito.

"Regardless, the relation of a funding plan to improved performance is not an issue for this court to decide through footnote references to the writings of one side of a complex expert debate," Justice Breyer wrote.

Finally, both sides also weighed in to some degree about the efficacy of different approaches to teach English to non-native speakers.

Justice Alito cited the Nogales district's adoption of "structured English immersion" programs as an alternative approach to traditional bilingual education.

"Research on ELL instruction indicates there is docu-mented, academic support for the view that SEI is significantly more effective than bilingual education," Alito said, and thus the lower courts should give greater consideration to the whether the district's experience was a "changed circumstance" that warranted relief from court orders.

Justice Breyer responded that the testimony in the district court "about the extent to which Nogales had adopted the new teaching system was unclear and conflicting. And, most importantly,there was evidence that the optimistic improvement in the number of students completing the English-learning program was considerably overstated."

"Three decades ago, Congress put this statutory provision [the EEOA] in place to ensure that our nation’s school systems will help non-English-speaking schoolchildren overcome the language barriers that might hinder their participation in our country’s schools, workplaces, and the institutions of everyday politics and government," Justice Breyer said. "I fear that the court’s decision will increase the difficulty of overcoming barriers that threaten to divide us."

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The U.S. Supreme Court had a surprising degree of unanimity today in ruling that the strip-search of a middle school student by school officials looking for drugs was unconstitutional.

"Here, the content of the suspicion failed to match the degree of intrusion," Justice David H. Souter wrote for the majority in Safford Unified School District v. Redding. It was Souter's final opinion in an education case, and perhaps his last opinion overall, before he steps down from the court in a few days.

All other members of the court but Justice Clarence Thomas joined Justice Souter's opinion on the central issue of whether the strip-search violated the Fourth Amendment's prohibition against unreasonable searches. That was somewhat of a surprise given the tenor of the April 21 oral arguments in the case, when the court's conservatives appeared sympathetic to the school district and even moderate/liberal Justice Stephen G. Breyer seemed dismissive of the student's privacy concerns.

In his dissent, Justice Thomas called the decision "regrettable," and said the majority "has surrendered control of the American public school system to public school students ... by second-guessing swift disciplinary decisions made by school officials." (He was in part quoting Justice Hugo Black's dissent in the 1969 student free speech case Tinker v. Des Moines Independent Community School District.)

The justices examined a ruling last year by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that the search of an 8th grader by school authorities looking for prescription-strength ibuprofen pills violated the student's rights under the Fourth Amendment.

A en banc panel of the 9th Circuit court ruled 8-3 that officials at an Arizona middle school "acted contrary to all reason and common sense as they trampled over" the privacy interests of Savana Redding. By a separate vote of 6-5, the panel held that the assistant principal who ordered the strip-search was not entitled to qualified immunity from personal liability in the student's lawsuit.

Today, the Supreme Court ruled 7-2 that the assistant principal and two other officials were entitled to qualified immunity because of a lack of clarity in lower-court rulings about whether strip-searches violated the Constitution. Justices John Paul Stevens and Ruth Bader Ginsburg, who joined Justice Souter's opinion on the main question of the legality of the search, each issued opinions saying they would have denied qualified immunity to the school officials.

The young woman at the center of the case was a 13-year-old student in 2003 when an assistant principal, relying on a student tip that Redding may have prescription-strength ibuprofen pills that she was distributing to other students, searched her backpack. When that turned up no pills, the assistant principal asked two female staff members to conduct a search of Redding's undergarments. Redding says in court papers she had to shake her bra and panties to reveal whether she had hidden contraband in them. No pills were found in the search.

The key Supreme Court precedent on physical searches of students in public schools is New Jersey v. T.L.O. In that 1985 decision, the court upheld the search of a student’s purse for contraband and found that school searches are justified by a “reasonable suspicion” that laws or school rules were violated. Under the ruling, schools must show that a search was reasonable both at its inception and in its scope.

The Safford Unified School District had argued that the 9th Circuit court misapplied T.L.O., and that the strip-search of Savana Redding was justified at its inception because school officials had "reasonable grounds for suspecting that she was violating" the districts policies against drug possession.

The lawyers for Savana Redding had argued that the student "ended up naked and humiliated in front of her school officials," for a search that was prompted by a questionable tip and which turned up no drugs.

Justice Souter and the majority today essentially agreed with Savana that school officials had no reason to believe that dangerous quanities of the drugs were being hidden in the girl's clothing.

"In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear," Souter wrote. "We think that the combination of these deficiencies was fatal to finding the search reasonable."

While today's decision is a defeat for school districts, which argued for greater leeway in searching students, it seems unlikely it will really turn over the operation of the schools to the students, as Justice Thomas suggested.

Justice Souter pointed out that the practice of strip-searching students has been viewed as so potentially harmful and fraught with liabilities that some communities, including the New York City school system, have barred school personnel from carrying them out under any circumstances.

And Souter said the majority meant "to cast no ill reflection on the assistant principal," who was motivated by a desire to eliminate drugs and protect students.

The Supreme Court did remand the case to the 9th Circuit to consider whether the Safford school district has any liability in the case.

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From guest bloggers Erik W. Robelen and Mary Ann Zehr

The U.S. Supreme Court this morning ruled that public school officials violated the Fourth Amendment rights of a 13-year-old girl when she was strip-searched at school, but said the official who ordered the search was entitled to "qualified immunity" from liability.

In a separate case being closely watched in education circles, the court also ruled in favor of Arizona Superintendent of Public Instruction Tom Horne, who had challenged a U.S. District Court decision that Arizona must provide adequate funding for English-language learners in the state.

"[T]he content of the suspicion failed to match the degree of intrusion," wrote Justice David H. Souter in an opinion joined by five other justices.

The case has attracted national media attention, as well as friend-of-the-court briefs from national education groups, civil-liberties advocates, and the Obama administration.

At issue in Safford Unified School District v. Redding (Case No. 08-479) is the search of 8th grader Savana Redding by school personnel at an Arizona middle school. The 2003 action came amid suspicion that the honors student possessed prescription-strength ibuprofen tablets, a violation of the school’s anti-drug policy. No such pills were found on Ms. Redding, who stripped down to her undergarments, which she pulled away from her body so that two female personnel, including the school nurse, could inspect her.

In the Horne v. Flores et. al case, the Supreme Court decided 5-4 that the lower courts didn’t fairly consider “changed circumstances” that had taken place since parents in the Nogales, Ariz., school district filed the original lawsuit in federal court in 1982, implementation of the No Child Left Behind Act being one of them. The court remanded the case to the lower courts. Justice Samuel A. Alito Jr. wrote the majority opinion.

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For an Education Week story by me and Erik W. Robelen on today's Supreme Court decision in Forest Grove School District v. T.A. , click here.

The justices will next convene on Thursday, June 25, to issue decisions on Flores and Sanford.

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The U.S. Supreme Court ruled today that the main federal special education law authorizes reimbursement for private school tuition under the proper circumstances, even when a child has never previously received special education services in a public school.

The court's 6-3 decision came in Forest Grove School District v. T.A. (Case No. 08-305).

I'll have more on that decision shortly here on the blog. In a decision in another case of interest to school districts, the justices raised questions about the constitutionality of a key provision of the Voting Rights Act of 1965 but stopped short of invalidating it.

The issue in Northwest Austin Municipal Utility District No. 1 v. Holder (No. 08-322) involves Section 5 of the voting-rights law, which requires states and local governments in the South and certain other areas of the country to get federal preclearance of any changes in voting procedure.

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The U.S. Supreme Court today made it more difficult for workers to win age-discrimination claims, in a case being watched by at least one major education group.

The court on Thursday did not decide any of the three major education cases pending before it. (See my post here.) The next decisions will come on Monday, and with a total of 10 cases remaining, the court's term could still come to a conclusion by late next week.

Splitting 5-4 in a case of an insurance supervisor alleging age bias in his demotion by his employer, the justices refused to adopt a complex burden-shifting procedure for proving bias under the federal Age Discrimination in Employment Act.

The majority in Gross v. FBL Financial Services Inc. (Case No. 08-441) said that a plaintiff bringing a disparate-treatment claim under the ADEA must generally prove that age was the central motivating factor for an adverse employment action. It said the statute did not permit the kind of burden-shifting exercise the court has approved for the main federal job-discrimination law--Title VII of the Civil Rights Act of 1964.

Under Title VII, the burden of proof in a discrimination suit sometimes shifts to the employer to show it would have taken the same action regardless of race, sex, or other protected classification.

"We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action," Justice Clarence Thomas wrote for a majority that included Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Samuel A. Alito Jr.

"The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision," Justice Thomas added.

In a dissent joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, Justice John Paul Stevens said the majority reached out to distinguish the ADEA and Title VII "in an unabashed display of judicial lawmaking."

"The court’s endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law," Justice Stevens said.

The National School Boards Association, in this friend-of-the-court brief filed in the side of the employer in the case, had urged the court not to adopt the burden-shifting mechanism for the age-discrimination law, and it got what it wanted.

The NSBA said placing the burden of proof on employers such as school districts in certain age-bias cases would "render schools more vulnerable to unfounded discrimination claims challenging decisions not motivated by discrimination that statistically favor workers under 40."

The ADEA's protections kick for workers at age 40.

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A teacher convicted of having sex with a 16-year-old student should have been allowed to raise the defense that the relationship was consensual, the Georgia Supreme Court has ruled.

The state's highest court ruled 5-2 Monday in Chase v. The State that teacher Melissa Lee Chase was wrongly convicted because a state law barring those who supervise students in school from sexual relationships with them did not preclude the consent defense.

Chase was a 28-year-old teacher at Harlem High School in Harlem, Ga., in 2006 when she had a romantic relationship with a 16-year-old female student, including at least one sexual encounter, according to court papers.

The age of consent for sex in Georgia is 16, although school personnel are subject to the state law, revised in 2006, that bars them from sex with those under their supervision. The 16-year-old was in Chase's class, but their romantic relationship began later. The girl testified that she had initiated and "pushed" the relationship with the teacher.

The state supreme court majority said the Georgia legislature did not explicitly bar a consent defense for school personnel, because it did include such a prohibition in another section of the law dealing with sexual-assault victims in police custody or those are institutionalized.

"If consent is no defense to a charge of sexual assault of a person enrolled in school, then the age of the teacher and the student have no effect on whether a crime has been committed," said the majority opinion by Chief Justice Leah Ward Sears (she of one-time buzz for the U.S. Supreme Court opening). "Consequently, a 30-year-old law school professor who engaged in a fully consensual sexual encounter with a 50-year-old law school student embarking on a second career would be guilty of a felony and subject to punishment of 10-30 years in prison. That result ... would be truly absurd and unjust."

Writing in dissent, Justice George H. Carley said "a statute enacted in pertinent part to protect students from exploitation by teachers is now almost useless due to the judicial imposition of a defense of consent, even though consent in these circumstances is commonly obtained by the very exploitation which the statute was designed to prevent."

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The U.S. Supreme Court today entered what are likely to be the final two weeks of its 2008-09 term without issuing any rulings in three important education cases pending before the justices.

The court will sit again this Thursday, June 18, and its work will extend into at least next week, with the end of the term possible by the end of that week. (The court doesn't announce its final day until a day or two beforehand.)

The education community is awaiting rulings in Horne v. Flores, about the adequacy of Arizona's spending on English-language learners (my key blog items here and here); Safford Unified School District v. Redding, about the constitutionality of a strip-search of a middle school student by school officials looking for drugs (blog posts here and here); and Forest Grove School District v. T.A., about when school districts must reimburse parents for the private school tuition of a child with a disability (posts here and here).

Meanwhile, the court granted review today of a case involving student loans and bankruptcy.

The justices agreed to hear the appeal of a lender whose student loans totaling $13,250 to an Arizona man were discharged by a bankruptcy court, even though federal law says student loans cannot be written off in bankruptcy except in cases of "undue hardship" proven in an adversary proceeding.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled last year that the lender had received notice of the debtor's plan to discharge some of his student loan obligations in a Chapter 13 bankruptcy proceeding and did not object to it.

The appeal is United Student Aid Funds v. Espinosa (Case No. 08-1134).

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The California Supreme Court this week declined to hear a challenge to a race-conscious student assignment plan adopted by the Berkeley Unified School District.

The state's highest court on June 10 denied without dissent an appeal of a lower-court decision upholding the Berkeley plan. The San Francisco Chronicle reports that the court's action makes the ruling by a three-judge panel of the California Court of Appeal binding throughout the state.

I blogged here about the March 17 ruling by the state appellate court in American Civil Rights Foundation v. Berkeley Unified School District.

Berkeley's plan involves dividing up the district into planning areas that receive different "diversity" ratings, based on average household income, education level of adults, and the proportion of minority group members residing in the area.

Every student from a given planning area receives the same diversity score, regardless of the individual's race or background. The diversity scores can come into play when assigning students to schools as the district seeks to achieve certain diversity goals.

The plan was challenged under Proposition 209, the 1996 California ballot initiative that amended the state constitution to prohibit the state and local governments from granting racial preferences "to any individual or group."

The appellate court had ruled that the Berkeley plan does not grant preferences based on an individual's race, and thus does not violate the state constitutional provision.

The NAACP Legal Defense and Educational Fund, which helped defend the plan, has this news release about the California Supreme Court's action.

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Education Week's Erik Robelen has this insightful analysis of Supreme Court nominee Sonia Sotomayor's record on education cases. Erik's discussion includes the following cases:

Gant v. Wallingford Board of Education, a 1999 decision about alleged racial discrimination in the transfer of an African-American student.

Frank G. v. Board of Education of Hyde Park, about whether students must first have received public education to be eligible for private school tuition reimbursements under federal special education law.

Doninger v. Niehoff, about the First Amendment concerns surrounding a student's Internet criticisms of her school principal. And

N.G. ex. rel. S.C. v. Connecticut, about strip-searches of adolescent girls at a juvenile detention center.

I thought I would discuss a few other education cases from the U.S. Court of Appeals for the 2nd Circuit in which Judge Sotomayor participated or wrote the opinion.

Garcia v. Yonkers School District
In one of Judge Sotomayor's most recent education decisions, she was part of a three-judge panel of the Second Circuit that ruled in April that students who challenged their five-day suspensions for walking out of school to join a budget protest were not prevailing parties, even though a federal district judge had sympathized with them and suggested he would grant the orders and injunction they sought.

The students had brought a First Amendment challenge to their discipline for the school walkout, and the district judge had said their rights were likely violated. But he never followed through by issuing a temporary restraining order, apparently in part because the situation had been defused.

When the students' lawyers sought payment of attorneys' fees as prevailing parties, the 2nd Circuit panel, joined by Judge Sotomayor, said the judge's statements showed "ambivalence" and that the school district might have been able to prevail if the case had continued and it were able to show that harsh punishment was the norm for school walkouts.

Port Washington Teachers' Association v. Board of Education of the Port Washington Union Free School District
In this case, Judge Sotomayor was part of a panel that unanimously turned aside a challenge by the teachers' union and other parties to a school superintendent's policy memorandum informing district staff members that they should inform pregnant students' parents of the pregnancies.

The union and a district social worker argued that the memo violated the privacy rights of students and could require social workers to violated laws requiring them to maintain the confidentiality of privileged communications with students.

The 2nd Circuit panel said the plaintiffs lacked standing to bring the suit because they didn't suffer actual injuries under the policy memorandum, and that they didn't face sanctions for failing to follow the policy because the district maintained that staff members would not be disciplined for failing to observe the policy.

Connecticut v. Hartford Board of Education
This opinion, written by Sotomayor, shows the judge's tendency to write comprehensively, and drily, on the issues before her.

The three-judge panel ruled unanimously that Connecticut's Office of Protection and Advocacy for Persons with Disabilities had the authority under federal law to access a school for students with serious emotional disabilities after complaints of abuse and neglect, such as by the inappropriate use of restraints and seclusion of students.

The Hartford school district refused the state office access to the facility and the detailed directory information it sought about students and parents. The district argued that federal special education law and the Family Educational Rights and Privacy Act barred the access.

A federal district court granted the state office the access it sought. On appeal, the 2nd Circuit court invited the U.S. departments of Education and Health and Human Services to file a brief giving their views on whether the Individuals with Disabilities Education Act or FERPA barred the information and access to the school sought by Connecticut. The two departments said there was no such barrier under the federal laws.

In a 27-page opinion, Judge Sotomayor exhaustively discussed the various federal laws at issue and agreed that the Connecticut office of protection and advocacy should have the access it sought.

"Although OPA presumably did not receive a specific complaint about each student, it submitted evidence that it had complaints about the operation of particular policies that led to inappropriate restraint and seclusion and that those policies operated school-wide," the judge said. "Given that these allegations are system-wide, OPA could have reason to believe that all students at the school had been, were being, or were at risk of being neglected or abused."

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The state teachers' retirement fund and two other state funds in Indiana have asked the U.S. Supreme Court to halt the sale of automaker Chrysler to the Italian company Fiat.

The teachers' fund, along with a retirement fund representing police officers and the Indiana Major Moves Construction Fund, have objected to the bankruptcy plan and sale of Chrysler as lenders and unsecured creditors of the company. They say the sale is illegal under federal bankruptcy law and the U.S. Department of the Treasury improperly offered the automaker government "bailout" funds.

The funds filed an emergency application with Justice Ruth Bader Ginsburg late Saturday, asking for a stay of two lower-court rulings allowing the sale to go forward. Justice Ginsburg or the entire Supreme Court could act as soon as Monday on the request.

The independent Web site SCOTUSblog has several postings about the case, including court papers filed on Sunday by Chrysler and the United Auto Workers union (the lead unsecured creditor) defending the sale.

I've written here about other cases where teachers' retirement funds have been activist shareholders or watchdogs for corporate fraud.

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A vice principal and a school district were not liable in the death of a middle school student who committed suicide the day he was sternly reprimanded for leaving school to protest anti-immigration policies, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously that vice principal Gene Bennett and the Ontario-Montclair school district in California could not be held legally responsible in the 2006 death of 14-year-old Antony Soltero.

Soltero, an 8th-grader at De Anza Middle School, joined two or three other students from the school in walking out of school to join protests set for nearby schools of then-pending federal legislation that would have made it harder to assist undocumented immigrants.

The other protests had largely fizzled, and the De Anza students went home. Two days later, principal Bennett met with the students and sternly warned them about the legal consequences of truancy--that they faced fines, a trip to juvenile hall, and the loss of year-end school privileges such as a trip to Disneyland.

Soltero, who was on juvenile probation for bringing a knife to school, was found at home with a self-inflicted gunshot wound and died later that evening. He left a suicide note critical of Bennett.

Soltero's family sued the vice principal and the district on various federal and state grounds, including violations of the boy's civil rights and intentional infliction of emotional distress.

A federal district court granted summary judgment, and in its June 1 opinion in Corales v. Bennett, the 9th Circuit court affirmed. It issued a lengthy opinion that examines in detail such issues as the First Amendment free speech rights surrounding student walkouts, the validity of school truancy laws, and the propriety of stern school discipline.

The vice principal's lecture to the students who walked out, "while perhaps unduly harsh, was not extreme and outrageous," the court said.

"Under these circumstances, a decision by this court that exposes an administrator to liability for sternly warning students of the consequences of their continued actions would severely handicap his or her ability to set children back on the correct path," the decision said. "This is especially true during the critical middle school years."

The court also held that the discipline did not amount to retaliation for First Amendment expression (in the form of the walkout) because the vice principal was applying the school's basic rule against truancy.

And the court held that the vice principal's harsh lecture was not the "proximate cause" of the 8th-grader's death.

"Anthony attended classes after his meeting with Bennett, spoke with [a fellow student] and his mother, and wrote a detailed suicide note before committing suicide," the court said. "Thus, the record seems to show he had the opportunity to appreciate the nature of his actions."

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A Personal Note: I haven't been able to blog over the last two weeks because of a death in my family. In particular, I have not been able to discuss Supreme Court nominee Sonia Sotomayor's record on education cases. I plan to do so in the coming days. In the meantime, there was this interesting federal appeals court ruling today:

Parent's Bible Reading: A federal appeals court today held that a school district was on solid ground in refusing to let a parent read Bible passages to her son's kindergarten class as part of a show-and-tell program.

A panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled 2-1 in favor of the Marple Newton school district in Pennsylvania in a suit brought by Donna Kay Busch.

Busch sought to read passages from the Book of Psalms when she was invited to her son Wesley's kindergarten class as part of an "All About Me" program. But the school principal told her that reading from the Bible to the kindergartners would be "against the law ... of separation of church and state."

Busch noted that her son had encountered books about Christmas, Easter, and Hanukkah at the school, and another parent had made presentations about Hanukkah and Passover to the kindergartners.

Busch sued the district and officials under the free speech and establishment-of-religion clauses of the U.S. Constitution and the Pennsylvania state constitution. A federal district court ruled for the school defendants, and in its June 1 decision in Busch v. Marple Newton School District, the appeals court affirmed. The majority opinion by Chief Judge Anthony J. Scirica said:

It may be reasonably argued that a mother’s reading of the Bible to a kindergarten class, especially sublime verses from the Book of Psalms, should be permitted. In this sense and for many, the conduct is benign and the message inspiring. But a reading from the Bible or other religious text is more than a message and unquestionably conveys a strong sense of spiritual and moral authority. In this case, the audience is involuntary and very young. Parents of public school kindergarten students may reasonably expect their children will not become captive audiences to an adult’s reading of religious texts.

U.S. Circuit Judge Thomas M. Hardiman dissented on the mother's free speech claim, saying the school district practiced viewpoint discrimination.

"Donna Busch’s attempt to read Psalm 118 to her son’s class fell within the
specified subject matter—i.e., something of interest to her son and important to his family—and the sole reason for excluding her speech was its religious character," Judge Hardiman wrote.

The judge also cited an opinion by Supreme Court Justice Samuel A. Alito Jr. when he was a member of the 3rd Circuit court. In a dissent in a 2000 case known as C.H. v. Oliva, Alito said the full 3rd Circuit should have considered a family's suit challenging how a public school handled a child's poster depicting Jesus.

"I would hold that public school students have the right to express religious views in class discussion or assigned work,” provided it falls within the scope of the assignment, then-Judge Alito wrote at the time.

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