May 2010 Archives

The U.S. Supreme Court today agreed to weigh the constitutionality of a 13-year-old Arizona program offering tax credits for donations made to organizations that provide scholarships for children to attend private schools.

A federal appeals court ruled last year that Arizona's tax credit program impermissibly advances religion in violation of the First Amendment's prohibition against any government establishment of religion. It found that the majority of those scholarships go to students attending religious schools, and that some of the "school tuition organizations," or STOs, restrict their scholarships to that purpose.

"We conclude that the plaintiffs' complaint ... sufficiently alleges that Arizona's tax-credit funded scholarship program lacks religious neutrality and true private choice in making scholarships available to parents," a three-judge panel of the U.S, Court of Appeals for the 9th Circuit, in San Francisco, said in its April 2009 opinion.

The court said the program could be distinguished from the Ohio private school voucher program, which was upheld by the U.S. Supreme Court in 2002 in Zelman v. Simmons-Harris.

The full 9th Circuit court declined to rehear the Arizona case, although eight members of the court dissented last October. U.S. Circuit Judge Diarmuid F. O'Scannlain said in dissent, "The panel's holding casts a pall over comparable educational tax-credit-schemes in states across the nation."

The state of Arizona and two groups that provide scholarships under the program appealed to the U.S. Supreme Court, which granted two of the three petitions for review—Arizona Christian School Tuition Organization v. Winn (Case No. 09-987) and Garriott v. Winn (No. 09-991). (The court left the third appeal aside for now.)

The appeal from the state points out that the program was enacted in 1997 and has been upheld under the federal constitution by the Arizona Supreme Court. Taxpayers can receive a dollar-for-dollar credit of up to $500 (or $1,000 for married couples) for donations to school tuition organizations. The school tuition organizations must spend at least 90 percent of their annual revenues on scholarships or tuition grants. The organizations may not limit their grants to a single school, but they may limit them to religious schools, as several of the groups do.

The appeal by the Arizona Christian School Tuition Organization argues that under the tax-credit program, "the private choices of taxpayers, the STOs, and parents direct tuition funds to students. The taxpayer chooses to donate or not, and if he donates, to which STO. The privately formed, non-profit STOs raise money to award scholarships to schools of their choice."

Eight states filed a friend-of-court brief on the side of Arizona urging the justices to take the case, arguing that the 9th Circuit panel's ruling raises doubts about tuition tax credits elsewhere.

A brief filed on behalf of the taxpayers who challenged the tax credits argues that the Arizona program uniquely relies on religious organizations to award most of the scholarships, and it permits those organizations to require parents to enroll their children in religious schools.

"The Arizona program is neither based on financial or academic need nor neutral with respect to religion," said the taxpayers' brief. "Instead, it awards most of its scholarships to the children of middle-class and wealthy parents on the basis of religion."

Posted by Mark Walsh at 12:37 PM | Permalink | Leave a comment | Recommend

The U.S. Supreme Court today ruled that a sentence of life in prison without parole for a juvenile offender in a non-homicide case violates the Eighth Amendment's prohibition against cruel and unusual punishment.

The court ruled 6-3 in favor of Terrance Jamar Graham, a Florida man, now 23, who was sentenced to life without parole for a series of robberies he committed at ages 16 and 17, although only five justices backed the broader Eighth Amendment ruling.

"Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope," Justice Anthony M. Kennedy wrote in the majority opinion in Graham v. Florida (Case No. 08-7412). "A young person who knows that he or she has no chance to leave prison before life's end has little incentive to become a responsible individual."

The decision continues the logic of a 2005 ruling, in Roper v. Simmons, that prohibited the death penalty for offenders who committed their crimes before age 18. In Roper, the court ruled 5 to 4, with Justice Kennedy writing for the majority, that both a national consensus and research on the adolescent brain make it "misguided to equate the failings of a minor with those of an adult."

Justice Kennedy said today in Graham that "no recent data provide reason to reconsider the court'sobservations in Roper about the nature of juveniles. ... Developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. ... Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of irretrievably depraved character than are the actions of adults."

Kennedy also noted that it is the policy of some prisons to "withhold counseling, education, and rehabilitation programs for those who are ineligible for parole consideration," which he said in the case of juvenile offenders in that category leads to the "perverse consequence" that the offender's lack of maturity is reinforced by his prison term.

Similar points were made in a friend-of-the-court brief filed on Graham's side by a group of educators.

Kennedy's opinion was signed by Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor. Chief Justice John G. Roberts Jr. concurred in the outcome, but said he would not adopt the broad, categorical rule of the majority.

Justice Clarence Thomas, in a dissent joined by Justices Antonin Scalia and Samuel A. Alito Jr., said the majority "insists that the standards of American society have evolved such that the Constitution now requires" the prohibition it adopted today.

"The news of this evolution will, I think, come as a surprise to the American people," Justice Thomas said. "Congress, the District of Columbia, and 37 States allow judges and juries to consider this sentencing practice in juvenile nonhomicide cases, and those judges and juries have decided to use it in the very worst cases they have encountered."

The court today unanimously dismissed the appeal in a companion case that had raised the same issue, Sullivan v. Florida (No. 09-7621). The court gave no reason for the dismissal, but it was evident during oral arguments last November that the case of Joe Harris Sullivan, who was sentenced to life without parole at age 13 for the rape and beating of a 72-year-old woman, presented some procedural difficulties. It is possible that Sullivan will benefit from the ruling in Graham's case.

Posted by Mark Walsh at 12:03 PM | Permalink | Leave a comment | Recommend

As teacher layoffs become more of an issue nationwide, a ruling last week by a California Superior Court judge adds a legal wrinkle for school districts.

The judge issued an injunction barring the Los Angeles Unified School District from additional layoffs of teachers at three low-performing middle schools that were disproportionately affected by a 2009 round of job cuts.

The layoffs "have had and will have a disparate negative impact on plaintiffs' schools," Judge William F. Highberger said in his May 13 opinion in Reed v. State of California. "The disparities matter because the evidence shows there is a distinct relationship between high teacher turnover and the quality of educational opportunities afforded: High teacher turnover devastates educational opportunity."

The class action filed on behalf of students at the three schools--Samuel Gompers, Edwin Markham, and John H. Liechty--is based on a provision of the California Constitution that guarantees all public school students a fundamental right of "basic equality of educational opportunity."

Judge Highberger said he realized his injunction against layoffs at the three schools may force the school district to lay off other teachers, perhaps even trumping teacher seniority lists. "The legislature clearly qualifies teachers' interests in seniority-based layoffs to accommodate constitutional equal protection interests," the judge said.

The Los Angeles Times reports on the injunction here.

Posted by Mark Walsh at 10:38 AM | Permalink | Leave a comment | Recommend

U.S. Supreme Court nominee Elena Kagan has written that the one case that Justice Thurgood Marshall "cared about most" during the term she clerked for him was Kadrmas v. Dickinson Public Schools.

In that 1988 case, the question was whether a North Dakota school district violated the Constitution's equal-protection guarantee by refusing to waive a bus fee for a child from an indigent family who lived 16 miles from school.

In their internal discussions over the case, Kagan told Justice Marshall that she thought it would be difficult for the court to rule for the family. "After all, I said, indigency was not a suspect class; education was not a fundamental right," Kagan wrote in a 1993 tribute to Marshall in the Texas Law Review. The district should be upheld because it had a rational basis for charging all students the transportation fee, she told the justice.

To this, Justice Marshall responded that she was a "knucklehead," an appellation he sometimes used with his clerks.

"To Justice Marshall, the notion that government would act to deprive poor children of an education -of an opportunity to improve their status and better their lives--was anathema," Kagan wrote.

Five justices on the court voted to uphold the school district, with Justice Sandra Day O'Connor eventually writing a majority opinion that aligned with Kagan's initial view of the case. Marshall assigned Kagan to write a draft dissent. But he returned several drafts to her because they failed to express the justice's views "in a properly pungent tone," as she put it in the tribute.

In his final, published dissent in Kadrmas, Justice Marshall said the majority showed "a callous indifference to the realities of life for the poor."

"For the poor, education is often the only route by which to become full participants in our society, In allowing a State to burden the access of poor persons to an education, the Court denies equal opportunity and discourages hope. I do not believe the Equal Protection Clause countenances such a result. I therefore dissent," Marshall wrote in the dissent, joined by Justice William J. Brennan Jr. (Justices John Paul Stevens and Harry A. Blackmun dissented separately.).

Kagan, in the Texas Law Review tribute, concluded that in Justice Marshall's view, "constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government--to safeguard the interests of people who had no other champion."

(Hat Tip to Charlie Savage in today's New York Times, whose story on Kagan's year clerking for Marshall leads with the anecdote from the Kadrmas case.)

Posted by Mark Walsh at 6:15 PM | Permalink | Leave a comment | Recommend

UPDATED 10:30 A.M.

President Barack Obama introduced Elena Kagan this morning as his nominee for the U.S. Supreme Court, lauding her as someone who understands that "behind the law there are stories" of individuals.

Kagan, the U.S. solicitor general since last year, is a former dean of the Harvard Law School who has championed nondiscrimination in education and improving access to college. If confirmed by the U.S. Senate, she would be the first nonjudge to join the high court since Lewis F. Powell Jr. and William H. Rehnquist became associate justices in 1972.

President Obama called Kagan a "superb" solicitor general and someone who chose to devote her life to public service rather than corporate law firms. Noting that Kagan's parents were deceased, the president said, "I"m sure they would be proud of their daughter--a great lawyer, a great teacher."

Kagan noted that her mother was "the kind of teacher students remember for the rest of their lives." The New York Times reports today that her mother, Gloria, taught 5th and 6th grade at Hunter College Elementary School. She died two years ago. Kagan's two brothers are also teachers. Marc teaches social studies at the Bronx High School of Science, while Irving teaches the same subject at Hunter College High. Both were present at the White House for today's announcement.

Kagan does not have the kind of record of dealing with education law issues that many federal appeals court judges typically do. In particular, two judges on President Obama's short list--Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit, in Chicago, and Sidney R. Thomas, of the U.S. Court of Appeals for the 9th Circuit, in San Francisco--have decided a number of hot-button school law issues. (Not so much for the fourth member of the short list--Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.)

Kagan, 50, would succeed Justice John Paul Stevens, who is retiring at age 90 at the end of the current term. A native of New York City, she attended Hunter College High School, a selective public high school for girls, before graduating from Princeton University in 1981 and Harvard Law School in 1986. She also received a degree from Oxford University in England.

Kagan clerked for Justice Thurgood Marshall on the high court during the 1987-88 term, one in which the most significant education case was Hazelwood School District v. Kuhlmeier. In that case, the court held that school administrators did not violate the First Amendment rights of student journalists when they ordered articles withheld from a high school newspaper. Justice Marshall joined a vigorous dissent written by Justice William J. Brennan Jr.

Kagan joined the University of Chicago law faculty in 1991. In 1995, she joined President Bill Clinton's administration, initially as an associate White House counsel, and in 1997 she became deputy director of the White House Domestic Policy Council. "In the DPC, I played a role in the formulation, advocacy, and implementation of law and policy in areas ranging from education to crime to public health," Kagan said last year in her Senate Judiciary Committee questionnaire for her nomination as solicitor general.

In 1999, Kagan joined the faculty of Harvard Law School, and she became dean in 2003. She is credited with reducing longtime feuds among faculty members and recruiting conservative professors to broaden the school's ideological perspectives.

In a letter to the Judiciary Committee last year, John Payton, the president and director-counsel of the NAACP Legal Defense and Educational Fund, noted that Kagan decided upon becoming Harvard law dean to also take the title of Charles Hamilton Houston professor of law. Houston was a dean of the historically black Howard University's law school in Washington from 1929 to 1935 and was a mentor to Thurgood Marshall in the fight to end segregation in education.

Kagan's decision to take the chair named for Houston had "enormous symbolic value but also, more significantly, reflects the real content of her character," Payton said in his letter. "She combines intellectual depth with curiosity and dynamism."

Kagan has attracted attention for her handling of recruiting by the U.S. military at Harvard Law School. The federal "don't ask, don't tell" law that permits homosexuals to serve in the military only if they keep their sexual orientation private was challenged by a group of law schools and law faculty members. Harvard Law was not part of the group, but Kagan joined other Harvard Law faculty members in signing a friend-of-the-court brief in the Supreme Court opposing the policy.

Earlier, in keeping with a federal law known as the Solomon Amendment, the federal government threatened to withhold all funding from Harvard University when the law school briefly prohibited military recruiters. Kagan rescinded the prohibition, writing to students: "I have said before how much I regret making this exception to our antidiscrimination policy. I believe the military's discriminatory employment policy is deeply wrong--both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have."

In 2006, the Supreme Court ruled 8-0 in Rumsfeld v. Forum for Academic and Institutional Rights that the Solomon Amendment did not place an unconstitutional condition on the receipt of federal funds and did not violate the law schools' freedom of expressive association.

A couple of other items on Kagan's resume bear mentioning with respect to education. When she was nominated to be solicitor general last year, Kagan was a member of the board of directors of the Advantage Testing Foundation, the public service arm of a New York City-based tutoring and test-preparation organization founded by a Princeton alumnus, Arun Alagappan.

In 2007-09, Kagan was one of 30 members of the New York State Higher Education Commission, which studied and made recommendations about the state's public colleges and universities.

Check back with The School Law Blog and edweek.org for more on the Supreme Court selection later today.

Posted by Mark Walsh at 9:46 AM | Permalink | Leave a comment | Recommend

High school commencement season is fast approaching, and that is leading to legal disputes over public education and religion.

In Indiana, a federal district judge last week issued a preliminary injunction barring officials of the Greenwood school district from permitting student-led prayers at graduation exercises. The district has allowed senior class members to vote on whether to have a nondenominational prayer led by a student at commencement.

The policy was challenged by Eric Workman, the valedictorian at Greenwood High School, as a violation of the First Amendment's prohibition on a government establishment of religion.

U.S. District Judge Sarah Evans Barker said in her April 30 opinion in Workman v. Greenwood Community School Corporation that the suit likely has merit because the Greenwood district's policy falls within the limitations on graduation prayer articulated by the U.S. Supreme Court in Lee v. Weisman and Santa Fe Independent School District v. Doe.

"The policy in place at Greenwood purposefully encourages the delivery of a majority-sanctioned prayer at a regularly scheduled, school-sponsored function conducted on school property," Judge Barker said. "That policy therefore violates the Constitution as an establishment of religion."

The Indianapolis Star reported here that the Greenwood school district did not plan to appeal the ruling in advance of the May 28 graduation ceremony at Greenwood High.

Separately, a lawsuit was filed this week challenging a Connecticut school district's plans to hold commencement exercises for its high schools at a church. The suit was filed on behalf of five anonymous students and parents by Americans United for Separation of Church and State, the American Civil Liberties Union, and the ACLU of Connecticut.

The suit against the Enfield, Conn., school district contends that holding public school graduation exercises at a church violates the Establishment Clause. The district plans to hold graduation for its two high schools at First Cathedral, a Baptist church in Bloomfield, Conn., the suit says.

"High-school graduations are once-in-a-lifetime, deeply significant events for graduates and their families, including the plaintiffs. In light of the religious messages and symbols displayed throughout graduation ceremonies held at the Cathedral, these public-school
events convey the strong impression not of secular high-school commencements, but rather of sectarian religious events," says the suit, which seeks an injunction barring the school district from holding the graduation ceremonies at the church.

The Hartford Courant has a report here, including a picture of the church.

Posted by Mark Walsh at 9:48 PM | Permalink | Leave a comment | Recommend

The highest court in Massachusetts has sided with a Cambodian refugee teacher in a dispute with her school district over whether she had sufficient fluency in English.

Phanna Kem Robishaw, who fled the deadly Khmer Rouge regime in Cambodia in the 1970's, begain teaching in the Lowell, Mass., school district in 1992. She taught first grade at a school where about half the enrollment was Cambodian.

In 2002, Massachusetts voters adopted a ballot inititiative aimed at eliminating bilingual education programs and requiring that schools show that teachers were fluent in English. Robishaw ran into problems when, before the law took effect, a new principal at her school expressed concerns about the teacher's English fluency and later gave her an unsatisfactoriy performance rating. Robishaw was dismissed in 2005, with the superintendent saying she was insufficiently fluent in English.

Robishaw sought review by an arbitrator, who ruled that the school district's reasons for dismissing the teacher were invalid. The arbitrator further held that retaining Robishaw was in students' best interest because of the her life story as a survivor of the Khmer Rouge and as a role model, according to court papers.

The school district took the matter to court, and a trial judge ruled that the arbitrator exceeded his authority. The judge based his ruling in part on listening to the test audiotape of Robishaw and concluding that "i find her ability to speak comprehensible English almost completely non-existent."

But in a May 4 decision in School Committee of Lowell v. Robishaw, the Massachusetts Supreme Judicial Court ordered that the arbitrator's ruling be restored. (No direct link is available, but the opinion can be found from the court's opinion page.)

The state high court ruled unanimously that the arbitrator properly based his decision on the fact that the teacher's scores on two tests of English fluency were not valid indicators because Robishaw was on medical leave for post-traumatic stress disorder at the time she took the tests. And the court said the trial judge should not have undertaken his own, indepedent review of the evidence that was before the arbitrator.

Posted by Mark Walsh at 9:46 AM | Permalink | Leave a comment | Recommend