June 2010 Archives

Questions relating to education have been few and far between at Elena Kagan's confirmation hearing on her nomination to the Supreme Court. Today, though, two Democratic senators broached the topic of the U.S. Constitution's religion clauses.

Since so much education litigation occurs under the First Amendment's prohibition of government establishment of religion, let's examine this issue as raised by Sen. Dianne Feinstein, D-Calif., and Sen. Benjamin L. Cardin, D-Md.

Feinstein raised a question about a 2007 Supreme Court ruling, Hein v. Freedom From Religion Foundation, that made it harder for taxpayers to challenge alleged violations of the establishment clause. She then asked Kagan to describe her views on the establishment clause and the First Amendment's free-exercise-of-religion clause.

Kagan began by describing the Supreme Court's various and often conflicting tests for analyzing whether a law or government program violates the establishment clause. Despite the various tests, most lower courts still adhere to the court's three-pronged test from the 1971 case of Lemon v. Kurtzman.

"I think the reason there are so many tests is that establishment clause cases arise in a large variety of contexts," Kagan said. "It's very hard to say which [test] is appropriate [in any given case]. It's a more contextual inquiry."

Kagan appeared animated and enthusiastic about the topic, which was a fresh one for the hearing after countless questions about her alleged political activism, or her handling of military recruiters at Harvard Law School,

"What both [religion] clauses are designed to do is say you have full rights as an American citizen, no matter what your religion is," Kagan said. "And to ensure that religion never acts as a function to put people at a disadvantage with respect to any of their rights."

Sen. Cardin picked up on the religion clauses on Wednesday afternoon.

"What special protections should students have under the establishment clause?" Cardin asked, citing the Supreme Court's 1992 decision in Lee v. Weisman, which held a school district's decision to have a rabbi deliver a prayer at a middle school graduation ceremony to be a constitutional violation.

Justice Anthony M. Kennedy relied on a coercion test in Lee, Kagan noted, and the court has applied such a test in other cases involving alleged establishment clause violations in programs involving children.

"Certainly the coercion test is used most often when it comes to children," she said, "I think that Lee v. Weisman reflects that. But it is a contentious area of the law. That case is a good example of the way people can look at the same kind of action and some see coercion and some not."

Neither Feinstein nor Cardin pressed very deeply into the religion area, so that's all we get from Kagan on it for now.

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Except for fireworks on the military-recruiters-at-Harvard issue, the first day of questioning in the confirmation hearings for U.S. Supreme Court nominee Elena Kagan did not seem to be addressing education issues much.

Until the 10th and final hour of the marathon session, that is. That's when Sen. Benjamin L. Cardin, D-Md., had several questions for Kagan based on education cases.

Cardin began by citing the dissent of Justice Thurgood Marshall in the 1988 Supreme Court case of Kadrmas v. Dickenson Public Schools. Kagan was a law clerk to Marshall that court term and has written that Kadrmas was the case from that term that Marshall "cared most about."

The case concerned 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. Kagan had told Marshall in a memo that it would be hard to rule for the school district, given that indigency was not a suspect legal class and education was not a fundamental federal constitutional right. As Kagan recalled in a tribute to her mentor, Marshall's response was that Kagan was a "knucklehead" for thinking such thoughts.

"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 in a 1993 article in the Texas Law Review. Marshall's dissent in Kadrmas said the majority showed "a callous indifference to the realities of life for the poor" by refusing to require the district to waive the bus fee.

Cardin cited that Marshall dissent on Tuesday and asked Kagan how she believes the framers of the Constitution intended it to protect people from the abuses of government.

"Well, I think the Constitution is kind of a genius document," Kagan said, noting that certain provisions are specific while others are general "to ensure the principles the framers' held so dear would continue to apply throughout the ages."

Cardin moved on to a case that he said "chipped away" at the high court's landmark ruling in Brown v. Board of Education outlawing racial segregation in the schools. He quoted from the dissent of Justice Stephen G. Breyer in Parents Involved in Community Schools v. Seattle School District, a 2007 case in which the majority curtailed the ways schools could voluntarily take race into account in assigning students to schools.

Stating that the majority had threatened the promise of Brown, Breyer said Parents Involved "is a decision that the court and the nation will come to regret."

Cardin turned to Kagan with a softer-worded question: Would she agree that a decision like Brown remains relevant today?

"Senator, I hope and I know that the principles of Brown v. Board are still relevant today," Kagan replied."The idea of equality under law is a fundamental American constitutional value."

That's hardly a shocking statement. But in a hearing in which some Republicans have come close to attacking Thurgood Marshall as an activist justice, Kagan (and her allies on the committee) stand forcefully behind the legacy of the first African-American member of the court.

Earlier in the day, Kagan spoke about Justice Marshall in response to a question from Sen. Jon Kyl, R-Ariz., who in his opening statement on Monday had said that Marshall's judicial philosophy "is not what I would consider to be mainstream."

Kagan defended Marshall while making clear that it was she who would join the bench if confirmed.

"I love Justice Marshall," Kagan told Sen. Kyl. "He did an enormous amount for me. But if you confirm me to this position, you will get Justice Kagan. You won't get Justice Marshall, and that's an important thing."

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U.S. Supreme Court nominee Elena Kagan sparred sharply at her confirmation hearing this morning with the ranking Republican on the Senate Judiciary Committee over her handling of military recruiters while she was dean of Harvard Law School.

Sen. Jeff Sessions, R-Ala., pressed Kagan on whether she was hostile to recruiters in applying Harvard's non-discrimination policy.

"I'm just a little taken aback by the tone of your remarks because it is unconnected with reality," Sen. Sessions said near the end of his 30-minute question period, which he spent almost entirely on the recruiting issue. "I know you acted without legal authority to deny access to military recruiters."

Kagan responded, "I respect, indeed, I revere the military. My father was veteran. ... I always tried to make sure I conveyed my honor to the military. In the short period the recruiters had that access through the veterans organization, recruiting actually went up. But I also felt the need to protect the students meant to be protected by [Harvard's non-discrimination policy], the gay and lesbian students who might want to join the military," Kagan said.

Kagan stressed this morning that she opposed as "moral injustice" the military's "don't ask, don't tell" policy barring open service by homosexuals. When she became dean of Harvard Law School, she believed the school was in compliance with a federal law known as the Solomon Amendment—which requires higher education institutions to give military recruiters access under threat of loss of federal funds—by allowing the law school's military veterans student organization to sponsor military recruiters, rather than having the school's career office sponsor them. That changed after the military complained, and recruiters gained access to the career office until a federal appeals court, ruling in a case not involving Harvard, struck down the Solomon Amendment in 2004.

Sen. Sessions pressed Kagan on whether the Department of Defense had to pressure Harvard's president and general counsel after Kagan, in response to the appeals court ruling, again made military recruiters work through the student veterans group. In 2006, the Supreme Court ruled 9-0 in Rumsfeld v. FAIR that the Solomon Amendment was constitutional. (SCOTUSBlog has this backgrounder on the issue.)

"You did what DOD wanted [only] after they went to the university counsel and the president [of Harvard] and said [Harvard was] going to lose some $300 million in aid, isn't that a fact?" Sessions said.

Kagan said the DOD's request went through "a discussion," and ultimately Harvard agreed to reinstate military recruiters' access to the law school's career office.

"In fact, you were punishing the military," Sessions said. "I don't deny that you value the military but I do believe that the actions you took helped create a climate that was hostile to the military" at Harvard Law School, Sessions said.

Kagan stood by her handling of the issue. "Senator, the military, during my tenure, had full access" to the law school's students, she said.

Earlier, Judiciary Committee Chairman Patrick Leahy had raised the issue in a more friendly way, suggesting that military recruitment actually went up while Kagan was dean at Harvard Law.

"There's been this implication that recruiters didn't have access," Sen. Leahy, D-Vt., said.

"Sen. Leahy, military recruiters had access to Harvard Law School every single day I was there," Kagan said. "I'm confident the military had access to our students, and our students had access to the military. And I think that is incredibly important. The military should have the best and the brightest."

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U.S. Supreme Court nominee Elena Kagan said this morning that she and her brothers were surprised at her mother's funeral a couple of years ago when hundreds of people they didn't know showed up.

"My brothers and I expected a small funeral" for their mother, Gloria, Kagan said at the beginning of the second day of her confirmation hearings before the Senate Judiciary Committee. "Instead, just tons and tons of people showed up, and we couldn't figure out who they were. They were people who had my mother as a 6th grade teacher decades ago."

Gloria Kagan taught for more than 20 years at Hunter College Elementary School in New York City. She retired in 1991 and died in 2008.

"She was really demanding," Elena Kagan said of her mother today, in response to a question from Sen. Patrick Leahy, D-Vt., about the influence of her parents. "She was a really tough teacher. You didn't slide by in Mrs. Kagan's class. She got the most out of people."

"Part of my life is my father, and part of my life is my mother," Kagan said. Her father, Irving, a tenants' rights lawyer in New York, died in 1994.

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UPDATED: In a case that attracted wide interest from college groups, K-12 education associations, and religious rights advocates, the U.S. Supreme Court said today that a law school can deny recognition to a Christian student group that refuses membership to gays.

In Christian Legal Society v. Martinez (Case No. 08-1371), the Supreme Court weighed whether public schools and universities may deny full recognition and benefits to student religious groups that require members to subscribe to their beliefs.

The case involved a dispute between the University of California's Hastings College of Law in San Francisco and the law school's chapter of the Springfield, Va.-based society of Christian lawyers and law students.

"Compliance with Hastings' all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum," Justice Ruth Bader Ginsburg wrote for the majority. "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy. The First Amendment shields CLS against state prohibition of the organization's expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity."

Ginsburg's opinion was joined by Justices John Paul Stevens, Anthony M. Kennedy, Stephen G. Breyer, and Sonia Sotomayor.

Justice Samuel A. Alito Jr., in a dissent joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas, said the decision means that there is "no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning."

"I do not think it is an exaggeration to say that today's decision is serious setback for freedom of expression in this country," Justice Alito added.

While today's opinion focused on a conflict in a higher education setting, there have been cases raising the issue at the high school level.

In one case, Truth v. Kent, a federal appeals court upheld a Washington state school district's decision to deny recognition to a student Christian club that limited officer positions and voting membership. The court said the school's application of its non-discrimination policy to the club did not violate the club's First Amendment free-speech rights.

The Hastings dispute arose after the law school refused to recognize the Christian Legal Society chapter because the group refused to adhere to the school's non-discrimination policy. Specifically, the group refuses to refrain from discrimination on the basis of religion or sexual orientation, the law school says in court papers.

The CLS chapter said in court papers that it only has voting members, and such members must affirm the national organization's "statement of faith," which involves "a shared devotion to Jesus Christ." The statement says that "unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent' with the group's beliefs.

The law school's denial of recognition to the CLS chapter meant it did not have access to meeting space, to communications channels such as announcements in law school newsletters and e-mail to students, and the opportunity to apply for funding from student activity fees.

The chapter sued the law school in federal court, alleging violations of its rights of free speech, expressive association, free exercise of religion, and equal protection of the law.

A friend-of-the-court brief filed by the National School Boards Association, the National Association of Secondary School Principals, and others school groups sided with Hastings College of Law and called on the court to uphold the application of nondiscrimination policies to student religious groups.

"Forcing public schools to exempt certain student groups from an all-comers nondiscrimination policy would risk the perception" that the school was endorsing the conduct or viewpoint of a religious group, the K-12 groups' brief said.

Francisco M. Negron Jr., the general counsel of the NSBA, said in an e-mail that his group was "pleased that the court preserved the ability of schools to ensure students are treated fairly through non-discrimination policies. These policies aid the school mission, and the court's decision is a common sense recognition of the the 'fairness' intent behind them."

The Alliance Defense Fund, a Scottsdale, Ariz.-based group that helped defend the CLS chapter and has defended student religious groups at the K-12 level, said the decision could have a limited impact because few schools have policies exactly the same as that of Hastings.

But "long-term, the decision puts other student groups across the country at risk, and we will continue to fight for their constitutional rights," Gregory S. Baylor, the ADF's senior legal counsel, said in a statement. "The Hastings policy actually requires CLS to allow atheists to lead its Bible studies and the College Democrats to accept the election of Republican officers in order for the groups to be recognized on campus. We agree with Justice Alito in his dissent that the court should have rejected this as absurd."

Religious Materials Case

Separately today, the court denied an appeal involving a Texas school district's policy limiting when students may distribute written materials to their classmates.

The Plano Independent School District's 2005 policy permits distribution of materials only during the 30 minutes before and after school, three annual parties, recess, and only passively at designated tables during school hours. Also, middle and high school students may distribute materials in cafeterias and hallways during noninstructional times, but elementary students may not.

Several Plano families say the policy was adopted in response to controversy over efforts by some students to distribute religious materials, including pencils inscribed with "Jesus is the reason for the season" and candy canes with cards describing the treats' Christian origin.

Parents say their children were barred from distributing the materials over three years, including under rules that preceded the 2005 policy. The parents sued over the alleged restrictions from the earlier years as well as over the 2005 policy, saying it violated their children's free-speech rights in school.

A federal district court largely upheld the 2005 policy. In a Dec. 1 ruling, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, unanimously upheld the policy as well.

The appeals court found that the 2005 rules were valid, content-neutral restrictions on the time, place, and manner of student speech.

"The regulations are aimed at providing a focused learning environment for its students," the court said, adding that it accepted a narrowing interpretation by the district court that the rules were aimed at mass distribution of materials by students to their classmates, not a student's passing of a single note or book to another.

In their appeal in Morgan v. Plano Independent School District (Case No. 09-1131), lawyers with the Plano-based Liberty Legal Institute, which represents the parents, argued that the 5th Circuit's decision "threatens to wipe out any meaningful limits on school officials' ability to restrict student speech, and greatly
increases the risk that school officials will employ student speech codes as a means of suppressing disfavored views on issues of religion, politics, and other matters of public opinion."

Several right-leaning groups filed friend-of-the-court briefs urging the high court to take up the case, including the American Center for Law and Justice and the Claremont Institute.

The Plano school district urged the justices not to take up the case, saying the rules were content-neutral "time, place, and manner" regulations of speech permitted under First Amendment case law.

The justices declined the parents' appeal without comment.

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In 1997, as President Bill Clinton's administration was pursuing an initiative on voluntary national testing, a White House education aide suggested the possibility of a high school test to follow proposed 4th and 8th grade tests.

Elena Kagan, who was deputy director of the White House Domestic Policy Council at the time, reviewed the memo from the aide, Michael Cohen, which was intended for the president's eyes.

"Do we really want to raise the prospect of a high school test?" Kagan wrote in an e-mail to Cohen on June 13, 1997. "I think with only six states in hand on our initial goal, people would ridicule such a call. ... In short, I am afraid this will make us look semi-oblivious."

Cohen revised the memo along the lines suggested by Kagan, deleting the suggestion for a high school test. "I think the President would love a high school test, and I think it's a good idea," Cohen wrote back to Kagan. "However, I've always thought we had to have 4th and 8th grade testing pretty well along before we take on the 12th grade."

The voluntary test idea eventually fizzled amid opposition in Congress. The e-mail from Kagan, now President Barack Obama's nominee to succeed Justice John Paul Stevens on the U.S. Supreme Court, shows the political instincts she exhibited during her two years in the domestic policy job. (She also worked two years in the White House counsel's office during the Clinton presidency.)

The Clinton Presidential Library in Little Rock, Ark., on June 18 released its final batch of Kagan records, including thousands of e-mails composed by her. (My blog items on the library's two previous document releases are here and here.)

The e-mails show that Kagan was more of a traffic cop on domestic-policy proposals than a prolific writer advancing her own views. And she could be sharp-elbowed and acerbic.

In August 1997, some White House aides proposed that President Clinton use an upcoming event on World Literacy Day to highlight some evidently bland data on literacy rates. The proposal set Kagan off.

"We are in a fight for our lives on the testing initiative, with Congress likely to vote in early September to prohibit the use of federal funds for the test," Kagan wrote in an e-mail to several White House staff members. "We cannot waste Sept. 8 on a sweetness-and-light literacy event."

In 1998, Kagan responded to an e-mail discussion among White House staff members about a proposed presidential executive order on children, such as "on Indian children, Asian children, other minority children," as one staff member put it.

"I confess to feeling somewhat baffled by this—an executive order on children saying what?" Kagan asked in a July 29, 1998, e-mail. "I have to say that I'd oppose an executive order on 'children's lives.' We have many different initiatives that focus on children—we have education policies, child care policies, health policies, etc. We shouldn't trivialize our work in this area by issuing an executive order telling everybody to [do] everything they can for every child."

In 1997, Kagan offered White House speechwriters some advice for an upcoming address by President Clinton to the National Association for the Advancement of Colored People.

"In the transition to education, I would take explicit note of the NAACP's proud history of fighting for educational opportunity and equality," Kagan wrote in a July 15, 1997, e-mail. "That's why it makes so much sense to talk about education to this group."

Kagan's critique continued. "I thought the education section wandered a bit," she said, offering several suggestions. A few hours later, she sent the speechwriters another e-mail, titled "one last thing."

"We probably should mention here that [civil rights pioneer] Rosa Parks is trying to start a charter school in Detroit," Kagan wrote.

The last release of Kagan papers from the Clinton Library also sheds some light on a document from the first batch that drew attention. As noted by The New York Times in this story about the Kagan documents, Christopher Edley Jr., who was then a Harvard law professor and consultant to the Clinton administration, seemed to be upset with Kagan in 1998 over a proposed policy to end social promotions of pupils.

"I've heard rumblings about impending rollout of the 'no social promotions' education policy within the next few days," Edley wrote in a Jan. 22, 1998, e-mail to several White House officials. "I have had no success contacting Elena to learn details or give feedback on this policy. I have tried email, voice mail, hallway greeting, and conversation with her secretary. I don't feel that I have standing to call yet again and be a pest."

Edley expressed concerns about ending social promotions, saying that researchers had shown that students who fall two years behind their age cohort in grade school had a high school dropout rate of as much as 98 percent. Edley even suggested he might need to resign over the policy, a tension highlighted in the Times article.

But the final batch of documents reveals two e-mails that shed further light on the episode. The first was a "clarification" sent by Edley to the same group as his first e-mail, with Kagan sent an electronic carbon copy.

"I don't mean to be critical of Elena," Edley wrote. "I know she's got many more important things to do than yack with an interloping schmoozer. Life is complicated."

Kagan sent a response to that message to the White House aides to whom Edley had sent his e-mails, and she seemed to take Edley's messages in stride.

"I'll call him," Kagan wrote. "He's right that I owe him a call."

Kagan's confirmation hearing before the Senate Judiciary Committee is scheduled to begin June 28.

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In a case that was watched by public education groups, the U.S. Supreme Court today upheld a California city's search of a police officer's government-provided pager that revealed sexually explicit text messages

But the court stopped short of issuing a broad ruling about the rights of public employees to be free of intrusive government searches of their communications devices and records.

"The court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer," Justice Anthony M. Kennedy wrote for a unanimous court in City of Ontario, Calif. v. Quon (Case No. 08-1332). "Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. ... At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve."

The court upheld the city of Ontario's search of text-message transcripts it obtained for the pager issued to SWAT officer Jeff Quon. The city initiated the search to determine whether Quon was exceeding his monthly allotment of text messages with personal messages or, perhaps, whether officers needed more capacity for work-related messages.

The transcripts turned up many non-work-related text messages to and from Quon, and many that were sexually explicit. Quon was disciplined, and he sued the city, alleging a violation of his Fourth Amendment right to be free from unreasonable government searches.

A federal district court ruled for the city, but the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that Quon had a reasonable expectation of privacy in his text messages and that the city's search was unreasonable.

In his opinion for the court today, Justice Kennedy said Quon may, indeed, have a reasonable expectation of privacy in the messages on his government-issued pager. But even if he did, the city's search was reasonable at its inception and "reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon's overages were the result of work-related messaging or personal use."

In a friend-of-the-court brief filed on the side of Ontario, the National School Boards Association, the California School Boards Association, and the National Association of Secondary School Principals had urged the high court to rule broadly that public employees do not have reasonable expectations of privacy in their electronic communications on government technology.

"At issue is a school district's ability to fulfill its obligation to ensure the safety of its pupils by searching the electronic communication of its employees," the brief said. For example, districts need to be able to search electronic communications for evidence of improper relationships between teachers and students, the brief said.

Justice Kennedy indicated that the courts, including the Supreme Court, will have to confront other cases involving public employees' expectations of privacy in their electronic communications.

"Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification," Kennedy wrote. "That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own."

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A federal appeals court has rejected a Connecticut school district's request for an expedited appeal in a lawsuit over the district's efforts to hold high school graduation ceremonies at a large Christian church.

The action Monday by the U.S. Court of Appeals for the 2nd Circuit, in New York City, appears to have put the graduation controversy to rest for this year (though apparently not for good). The lawyer for the Enfield, Conn., district told the Hartford Courant on Tuesday that it would drop the matter because the district's two high schools have to proceed with alternative graduation plans.

A federal district judge ruled May 31 that the district's plans likely violate the First Amendment's prohibition against a government establishment of religion because of the size and number of Christian symbols that ceremony attendees would encounter and because of the school board's actions in pressing to use the First Cathedral Church in Bloomfield, Conn. I wrote about that decision here.

The Enfield school board initially responded to the judge's ruling by voting to hold graduation ceremonies on the grounds of its two high schools. But on June 10, the board voted to ask the 2nd Circuit for an expedited appeal.

The appeals court rejected the motion on Monday. [The court's action does not appear to be available on its Web site.] The American Civil Liberties Union of Connecticut, which backed the legal challenge to the proposed church graduation ceremonies, has this update about the case. And though the district dropped further efforts to press the appeal for this year, it has indicated it plans to continue defending against the lawsuit in the hopes of holding graduation ceremonies at the church in the future.

The graduation ceremonies for Enfield High School and Enrico Fermi High School are scheduled to take place at the schools next week.

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U.S. Supreme Court nominee Elena Kagan aided an effort to provide federal guidance to clarify that there was "substantial room" for employees to discuss religion in the workplace, according to documents in the second batch of her papers released Friday by the Clinton Presidential Library.

An October 18, 1996, memo from Kagan when she was a deputy White House counsel suggests her support for efforts to develop a presidential executive order clarifying the extent to which the law permitted religious expression in the federal workplace.

"The order recognizes constraints on such expression, imposed by the government's interests in workplace efficiency and the Establishment Clause's prohibition on endorsement of religion," Kagan wrote in the memo to various staff members of President Bill Clinton. "But the order tries to show (much as the guidelines on religion in the public schools tried to show) that within these constraints, there is substantial room for discussion of religious matters."

Kagan has been nominated to succeed Justice John Paul Stevens on the U.S. Supreme Court. The memo provides fodder for weighing Kagan's potential approach to disputes over religious expression in public education, both by employees and students.

Kagan's mention of the public school guidelines refers to a 1995 statement about permissible religious expression in public education that was developed by a diverse group of religious and legal groups and was endorsed by then-U.S. Secretary of Education Richard W. Riley.

Some of the same groups--including the Christian Legal Society, Baptist Joint Committee, American Jewish Congress, and People for the American Way--were involved in coming up with the executive order on workplace religious expression. While the federal guidance officially applied only to federal offices, Kagan noted in her memo that "the religious groups hope that it will serve as a kind of model for private employers."

Kagan notes in her memo that while the federal Office of Legal Counsel had approved the order for "form and legality, the Department of Justice as a whole is quite negative about the order."

"DOJ believes the document conveys a tone that is too permissive of employee religious expression," Kagan writes. Her memo indicated that a White House meeting was scheduled to try to hash out the differences. For discussion, Kagan circulated a then-recent decision by a federal appeals court striking down a policy of the California Department of Education restrictiing religious expression in the workplace.

In Tucker v. California Department of Education, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, struck down department policies barring religious advocacy and posting of religious materials by employees.

President Clinton did not issue the executive order until 1997, after Kagan had moved on from the White House counsel's office to the job of deputy chief of the domestic policy office.

The first batch of Kagan's papers from the Clinton White House showed how involved she was in a variety of education issues in the dometic policy job, as I discussed in this post. The Clinton Library plans one final release of Kagan papers before the Senate Judiciary Committee's scheduled June 28 start to her confirmation hearings.

Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, said in a statement Friday that he was concerned that all of Kagan's papers will not be produced in time for "a proper review" before the start of the confirmation hearings.

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It's the end of the line for the National Education Association-backed legal challenge to the No Child Left Behind Act.

The U.S. Supreme Court today refused to hear the appeal of the NEA and nine school districts in Michigan, Texas, and Vermont in a suit that challenged the federal education law as an unfunded mandate. The justices issued no comment in declining the appeal in School District of the City of Pontiac v. Duncan (Case No. 09-852).

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, deadlocked 8-8 over the case last October, which resulted in the affirming of a federal district court's 2005 ruling that dismissed the case. But seven of those judges signed on to opinions accepting the NEA's view about the law's "unfunded mandates" language, giving the union hope that the justices might be interested in taking up the case.

In its appeal, the NEA urged the justices to take up the question of whether a provision in NCLB against requiring the states or school districts "to spend any funds or incur any costs not paid for under this act" means that the U.S. secretary of education may not force them to spend their own money to comply with the law's requirements.

"The resolution of this question is of enormous consequence to states and school districts," the appeal said.

In a brief filed in May by U.S. Solicitor General Elena Kagan on behalf of Secretary of Education Arne Duncan, Kagan urged the justices not to hear the union's appeal.

NCLB "expressly refrains from dictating funding levels, and instead grants states and [school districts] unprecedented flexibility to target federal dollars to meet state and local priorities," Kagan said in the brief. "The act moves from a dollars-and-cents approach to education policy to a results-based approach that allows local schools to use substantial additional federal dollars as they see fit in tackling local educational challenges in return for meeting improved benchmarks."

Kagan, who has been nominated to succeed retiring Supreme Court Justice John Paul Stevens, has stepped aside from the solicitor general's post.

The NEA and its fellow plaintiffs challenged the NCLB law during President George W. Bush's administration. NCLB is the current version of the Elementary and Secondary Education Act, which is overdue for reauthorization in Congress.

[Note: I am the co-author of a forthcoming book about the National Education Association and its longtime general counsel, Robert Chanin, who initiated and was involved with the NCLB lawsuit for several years but retired at the end of last year.]

Posted by Mark Walsh at 12:52 PM | Permalink | Leave a comment | Recommend

U.S. Supreme Court nominee Elena Kagan was immersed in a broad array of K-12 education policy initiatives during her years as a White House aide to President Bill Clinton.

However, the first batch of Kagan's papers released by the Clinton Presidential Library in Little Rock, Ark., reveals little of the nominee's own views on such issues as education funding, testing, social promotion, and school violence. The files released Friday consist mostly of physical files Kagan kept of memos, e-mails, and background documents sent to her, rather than her own e-mails and memos. Those are expected to be released in the coming weeks.

There were a few issues, though, in which Kagan, who served as deputy director of the White House Domestic Policy Council from 1997 to 1999, expressed her own views in handwritten notations on policy memos.

In 1997, for example, the Clinton administration wrestled with an infamously thorny affirmative action case. The Piscataway, N.J., school board was defending its decision to lay off a white teacher over a black colleague with equal seniority and similar qualifications to maintain racial diversity among the faculty of the business education department of the district's lone high school.

In a July 29, 1997, memo, then-U.S. Solicitor General Walter Dellinger explained why he believed the administration should file a brief in the U.S. Supreme Court in support of the white teacher's reverse-discrimination claim "on the narrow ground that the board failed to offer or defend an adequate justification for the particular race-based layoff decision." Dellinger also predicted that the Supreme Court, which had accepted the case for review, would likely rule that Title VII of the Civil Rights Act of 1964 never permits nonremedial affirmative action. "Such a ruling would be a disaster for civil rights in employment," Dellinger wrote.

In the margin of the memo, Kagan penned a note to her boss, White House domestic-policy adviser Bruce Reed, that said, "I think this is exactly the right position—as a legal matter, as a policy matter, and as a political matter."

Before the Supreme Court heard arguments in the case, known as Piscataway Township Board of Education v. Taxman, civil rights groups came up with money to allow the school board to settle the case with the white teacher.

In another Supreme Court case, the administration weighed whether to support the appeal of a lower-court ruling that struck down, as a violation of the First Amendment's prohibition of a government establishment of religion, a provision of the Elementary and Secondary Education Act that authorized school districts to lend computers, software, and library books to private schools, including religious schools.

In the margin of a memo outlining the issues in the case, Kagan wrote: "Bruce, I think the President would wish to file in this case. Agree? Elena." Then, she added a second notation: "(Also, I think he would want the SG [solicitor general] to make the case for overruling—not just distinguishing Meek and Wolman.)

That was a reference to two Supreme Court decisions from the 1970s—Meek v. Pittenger and Wolman v. Walter—that dealt with various forms of government aid to nonpublic schools. Ultimately, the Clinton administration did not appeal the ruling itself, but it supported the aid programs when intervening parties brought the case to the high court. In Mitchell v. Helms, the Supreme Court in 2000 upheld the aid to nonpublic schools, and the majority partially overruled Meek and Wolman.

What is clear from the hundreds of pages of documents is that the White House domestic-policy office was deeply involved in education issues, often coordinating with the Department of Education. Clinton aides viewed education initiatives—whether ambitious, such as an effort to reauthorize the ESEA, or modest, such as a proposal to promote school uniforms—as something that connected with voters, put Republicans on the defensive, and helped cement the president's legacy.

A 1998 memo from Reed, White House education aide Michael Cohen, and two other aides to President Clinton proposed an "education strategy" that covered a raft of ideas, but also suggested emphasizing the ones that had the best chance of passage, such as an expansion of the federal charter schools program and education technology initiatives. The memo also suggested some issues that were worth picking fights with Republicans over, such as class-size reduction and national standards and testing.

In a handwritten note to Cohen, in the margins of the strategy memo, Kagan asked, "Could you put in a set of scheduling requests corresponding to the suggestions in this memo? ASAP of course. Elena."

The White House sometimes got involved in state issues, such as a 1998 ballot initiative in California that limited bilingual education in the state's public schools. The measure was known as Proposition 227, or as the Unz Amendment, for its sponsor, businessman Ron Unz.

"As you know, Bruce and Elena are still hoping we can come up with a consensus position on our Unz recommendations to the President," Cohen said in an April 7, 1998, memo to various White House policy aides. The memo suggests there was wide disagreement on what position Clinton should take on bilingual education, with Reed and Kagan favoring a principle that students with limited English proficiency be required to learn English within three years, while others favored softer or stricter approaches.

The White House debate was largely irrelevant to the ballot initiative, which passed overwhelmingly and generally limits students with limited English skills to no more than a year of special English classes.

In 1998, the administration was working with the New York City public schools on ways in which an all-girls school in East Harlem called the Young Women's Leadership School could be justified under court rulings that made publicly funded single-sex programs for only one gender legally suspect.

Then-New York City Schools Chancellor Rudy Crew was, according to memos in Kagan's files, resistant to federal pressure to open a boys-only program similar to the girls-only leadership school. Another approach being pushed by federal officials was for New York to come up with a remedial justification for the girls-only school.

In a notation on a memo about the "single sex schools case," Kagan wrote to Cohen: "Whether the lawyers like it or not, the all-boys approach will get us into real trouble with our women's groups friends—at a time when we're likely to need them. This is especially so if they know that we've pushed NYC toward this approach. Tell your friends at Education that finding a remedial justification would be much better —and that they shouldn't press the all-boys school too hard. —Elena"

Presumably, Kagan had more to say about education policy in the White House job than just these notes scribbled in the margins. It will be interesting to see what her own e-mails and memos have to say about these issues.

The Senate Judiciary Committee is scheduled to begin hearings June 28 on Kagan's nomination to succeed Justice John Paul Stevens.

Posted by Mark Walsh at 9:21 PM | Permalink | Leave a comment | Recommend

A federal appeals court on Thursday weighed whether students may face school discipline for speech created off campus that parodies school administrators, sometimes in vulgar and offensive terms.

The full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, heard some two hours of arguments in two closely watched cases involving parodies of school principals posted by students on the MySpace social-networking site. Separate three-judge panels of the 3rd Circuit issued rulings on Feb. 4 that had upheld a student's discipline in one case and overturned it in another. That prompted confusion for schools and students, and the full 14-member court agreed to reconsider both cases.

"Can a student demean and say scandalous things about a school district administrator or a principal, and how does that affect the administration of a school district?" Anthony Sanchez, the lawyer for the Hermitage, Pa., school district, said during the arguments. "The Internet has changed the nature of the game."

[I am basing this post on listening to the 3rd Circuit's audio of the two arguments. However, because I was not present in the courtroom, I cannot identify members of the court who asked questions. The arguments can be downloaded from this page.]

Sanchez represents the district that disciplined Justin Layshock, who created a fake MySpace profile of his principal, which played on the principal's purported interest in "big" things, such as smoking a "big blunt," being a "big steroid freak," having stolen a "big keg," and having been drunk a "big number of times."

Layshock was suspended, and he and his parents sued under the free-speech clause of the First Amendment. The 3rd Circuit panel decision in Layshock v. Hermitage School District, which has been set aside amid the full court's reconsideration, said the parody did not disrupt school and thus the student's discipline violated his speech rights.

Witold Walczak, the lawyer representing the student, said during the arguments, "As hurtful as this speech may be, there is a countless line of cases where the Supreme Court has protected speech that is offensive, that's provocative, that involves opprobrious words [and] abusive language."

In the other case, a 3rd Circuit panel had ruled 2-1 in J.S. v. Blue Mountain School District that a middle school student's MySpace parody of her principal, which depicted him as a sex addict and a pedophile, had a substantial likelihood of disrupting school, and thus its creator could be disciplined by school officials. The fake profile said the principal had interests such as "being a tight ass," "spending time with my child (who looks like a gorilla)," and "hitting on students and their parents." That panel decision was also set aside by the full court.

Walczak, the legal director of the American Civil Liberties Union of Pennsylvania, also represented J.S. before the full 3rd Circuit. He said school administrators can have "conversations" with students who create offensive speech off campus, but the Supreme Court's school speech cases do not extend to parodies created off campus.

"No court has upheld punishment of off-campus speech without a finding of substantial and material disruption" of school, Walczak said.

Jonathan Riba, the lawyer representing the Blue Mountain school district, said J.S.'s fake profile "did create an immediate disruption which required an immediate action."

"The district has no interest of becoming the censor of the World Wide Web," Riba said. "However, the district does have an interest in maintaining an environment in which student speech does not invade the rights of others."

The judges threw various hypotheticals at the lawyers, and both sides drew sympathetic comments from the bench.

"The First Amendment allows people to say things that aren't nice," one 3rd Circuit judge said.

Another judge asked, "Is there no way a school administrator can act to protect his or here reputation unless there is a physical trespass on the property?"

The 3rd Circuit court took the two cases under advisement.

Posted by Mark Walsh at 9:27 AM | Permalink | Leave a comment | Recommend

A federal district judge has blocked a Connecticut school district from holding high school graduation ceremonies at a large Christian church.

The Enfield school district's use of First Cathedral Church, a Baptist mega-church in Bloomfield, Conn., would likely violate the First Amendment's prohibition against a government establishment of religion, U.S. District Judge Janet C. Hall of Bridgeport, Conn., said in a May 31 ruling.

"The court concludes that holding 2010 graduations at First Cathedral would require a conformity of the graduating seniors at Enfield and Fermi high schools that is too high an exaction to withstand constitutional scrutiny," Judge Hall said in Does v. Enfield Public Schools.

The judge noted that those attending the graduation ceremonies at First Cathedral would encounter a large cross on the cathedral's roof, another large central cross at the cathedral's main entrance, a stained-glass depiction of worshipers in the cathedral's main entrance, and yet another large cross behind the stage that "undoubtedly constitutes the focal point of the entire sanctuary."

"A reasonable observer attending the 2010 graduations would have no choice but to conclude that the message displayed on the jumbo-screens during the 2009 graduation ceremonies was exactly accurate: 'This is God's house where Jesus Christ is Lord.' That message will continue to be transmitted, and received, even if the jumbo-screens will no longer display it at the 2010 ceremonies," Judge Hall said.

The school district has used the church for commencement exercises for several years, but this year it was challenged by an anonymous group of families in a lawsuit backed by the American Civil Liberties Union. I blogged about the suit here last month.

The judge noted that at least one alternative site considered by the Enfield school board—Symphony Hall in nearby Springfield, Mass.—met most criteria for the commencement exercises and offered rent that was some $5,000 cheaper than First Cathedral for the two high schools' graduation ceremonies, which are scheduled for late June.

Posted by Mark Walsh at 2:44 PM | Permalink | Leave a comment | Recommend