October 2010 Archives

The U.S. Department of Education has issued guidance to schools about when bullying can violate federal civil rights law.

Amid a recent spate of incidents of anti-gay bullying, the guidance reminds schools that while federal laws don't specifically protect students based on religion or sexual orientation, they do protect religious students based on their shared ethnic characteristics and gay, lesbian, and transgender students against sexual or gender-based discrimination.

Education Week's Christina Samuels reports here on the guidance and has comments from Secretary of Education Arne Duncan and Russlyn H. Ali, the assistant secretary for civil rights.

The Education Department issued a "Dear Colleague" letter, a fact sheet, and a press release.

Posted by Mark Walsh at 11:25 PM | Permalink | Leave a comment | Recommend

Teachers have no First Amendment free-speech protection for curricular decisions they make in the classroom, a federal appeals court ruled on Thursday.

"Only the school board has ultimate responsibility for what goes on in the classroom, legitimately giving it a say over what teachers may (or may not) teach in the classroom," the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, said in its opinion.

The decision came in the case of an Ohio teacher whose contract was not renewed in 2002 after community controversy over reading selections she assigned to her high school English classes. These included Siddhartha , by Herman Hesse, and a unit on book censorship in which the teacher allowed students to pick books from a list of frequently challenged works, and some students chose Heather Has Two Mommies, by Leslea Newman.

A group of 500 parents petitioned the school board against the teacher, Shelley Evans-Marshall, calling for "decency and excellence" in the classroom. The teacher also had various run-ins with her principal. Despite positive performance reviews before the controversy, the principal's evaluations afterwards criticized Evans-Marshall's attitude and demeanor and her "use of material that is pushing the limits of community standards." The school board in March 2002 decided not to renew her contract, citing "problems with communications and teamwork."

Evans-Marshall sued the Tipp City, Ohio, school district and various officials in 2003, alleging that her termination violated her First Amendment free-speech rights. In 2005, she won a ruling from the 6th Circuit that allowed her case to survive a motion to dismiss by the defendants. The court said at that time that it appeared that Evans-Marshall's termination was "due to a public outcry engendered by the assignment of protected material that had been approved by the board." (Education Week reported on that decision here.)

The suit proceeded to discovery until the school district defendants sought summary judgment last year. A federal district court granted the defendants' motion on the grounds that Evans-Marshall could not prove a link between the community outcry and the school board's decision not to renew her.

In its Oct. 21 decision in Evans-Marshall v. Board of Education of the Tipp City Exempted Village School District, a 6th Circuit panel ruled unanimously for the school district and other defendants, but on other grounds. (The appeals panel said the teacher had clearly shown that "her teaching choices caused the school board to fire her.")

But while Evans-Marshall's case satisfied two earlier Supreme Court standards on public-employee speech (Pickering and Connick), she could not survive the court's most recent decision in this area: Garcetti v. Ceballos. In Garcetti, decided in 2006, the high court held that public employees do not have First Amendment protection for speech "pursuant to" their official duties.

"In the light cast by Garcetti, it is clear that the First Amendment does not generally insulate Evans-Marshall from employer discipline, even discipline prompted by her curricular and pedagogical choices and even if it otherwise appears (at least on summary judgment) that the school administrators treated her shabbily," said the 6th Circuit opinion by Judge Jeffrey S. Sutton.

"When a teacher teaches, the school system does not regulate that speech as much as it hires that speech," Sutton wrote, borrowing language from a 7th Circuit decision in a similar case. "Expression is a teacher's stock in trade, the commodity she sells to her employer in exchange for a salary. And if it is the school board that hires that speech, it can surely regulate the content of what is or is not expressed, what is expressed in other words on its behalf."

Sutton questioned how a school system could operate if all teachers had First Amendment rights to make their own curricular decisions.

"Evans-Marshall may wish to teach Siddhartha in the first unit of the school year in a certain way, but the chair of the English department may wish to use the limited time in a school year to teach A Tale of Two Cities at that stage of the year," Sutton wrote. "When educators disagree over what should be assigned, as is surely bound to happen if each of them has a First Amendment right to influence the curriculum, whose free-speech rights win? ... Placing the First Amendment's stamp of approval on these kinds of debates not only would demand permanent judicial intervention in the conduct of governmental operations, but it also would transform run-of-the-mine curricular disputes into constitutional stalemates."

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The U.S. Supreme Court today declined to hear the appeal of a New York City teacher who claims he was retaliated against and ultimately fired for his complaints about administrators' alleged failure to discipline students who threw books at him in class.

Lawyers for the teacher, David H. Weintraub, said the case would be a good vehicle for resolving a question regarding the First Amendment free speech rights of teachers. But the court declined without comment to hear the appeal in Weintraub v. Board of Education of New York City (Case No. 10-202). Justice Sonia Sotomayor recused herself from the case for undisclosed reasons.

According to court papers, Weintraub was a new 5th grade teacher at Public School 274 in Brooklyn in 1998 when a student threw a book at him. The teacher sent the student to the assistant principal, who returned the student to class without discipline. The next day, the student threw several more books at Weintraub, and the assistant principal again returned him to class without discipline.

After Weintraub filed a grievance with his teachers' union, his suit says he was subject to a campaign of retaliation from the assistant principal and others and was ultimately terminated. He sued the school district and various officials, claiming, among other things, that his discipline and termination based on his grievance violated his First Amendment right to speak on matters of public concern.

Both a federal district court and a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled that a 2006 Supreme Court decision, in Garcetti v. Ceballos, barred Weintraub's work-related speech from First Amendment protection.

The 2nd Circuit said in its January 2010 decision that ''because Weintraub made his statements 'pursuant to' his official duties as a schoolteacher, he was not speaking as a citizen for First Amendment
purposes."'

Weintraub died while his appeal was pending before the 2nd Circuit, and his suit for damages is being carried on by his estate.

The estate's appeal argues that the federal courts of appeals are divided about whether the high court's Garcetti ruling, which denied First Amendment protection to work-related speech by public employees, applies to speech that is only tangentially related to the employee's official duties, such as with the filing of a union grievance.

The National Education Association filed a friend-of-the-court brief on Weintraub's side, arguing that teacher grievances are often meant to shed light on such matters of public concern as wasteful spending or discriminatory practices.

"Garcetti's reasoning cannot be extended to cases where, in the speech at issue, the employee was not tasked with delivering the government's message, but was conveying his own opinion in circumstances where he was free to do so," the NEA brief says.

The New York City school system argued in a brief opposing high court review that the case would make a poor vehicle for deciding the teacher speech issue because the facts have yet to be tried, and in any event the the teacher's grievance fell squarely in the kind of work-related speech that the Garcetti ruling said was not protected by the First Amendment.

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A federal appeals court has upheld an Illinois law requiring schools to observe a daily period for "silent prayer or for silent reflection on the anticipated activities of the day."

The law has been on the books in various forms since 1969, but in 2007, over the veto of then-Gov. Rod Blagojevich, the Illinois legislature amended it to tell school districts they "shall observe" instead of "may observe" the daily period.

The law was challenged by Robert S. Sherman and his daughter, Dawn I. Sherman, as a violation of the First Amendment's prohibition against government establishment of religion.

A federal district court in Chicago struck down the law last year. But in an Oct. 15 decision, a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, voted 2-1 to uphold the law. The majority said the Illinois statute was unlike the Alabama moment-of-silence law struck down by the U.S. Supreme Court, which held in the 1985 case of Wallace v. Jaffree that Alabama lawmakers had no secular purpose but instead an asserted legislative interest in returning prayer to the public schools.

"Conversely in this case, [Illinois] has offered a secular purpose for Section 1—establishing a period of silence for all school children in Illinois to calm the students and prepare them for a day of learning," U.S. Circuit Judge Daniel A. Manion wrote in the majority opinion in Sherman v. Koch.

Manion noted that since the Wallace decision, four other federal appeals courts have considered moment-of-silence laws. New Jersey's law was struck down, but laws in Georgia, Texas, and Virginia have been upheld.

The Illinois law doesn't specify a length of time for the period of silence, beyond describing it as "brief." It states that the period is "an opportunity for silent prayer or for silent reflection," but also says the period "shall not be conducted as a religious exercise."

The fact that the Illinois law mentions prayer as an option for students during the daily period of silence does not make it invalid under the Establishment Clause, Manion said. Agreeing with a defense of the law by Illinois Superintendent of Public Instruction Christopher Koch, Manion said, "It was important to note that prayer is a permissible option to negate any impression that teachers or students may have that students were not allowed to pray (silently) during the period of silence."

Writing in dissent, Judge Ann Claire Williams said she was troubled by the statute's suggestion that the mandatory silence period is an opportunity for "silent prayer" or for "silent reflection on the anticipated activities of the day."

"Why mention prayer at all?" Williams said. "While I recognize that we assess a legislature's stated purpose with some deference, let's call a spade a spade—statutes like these are about prayer in schools. In my view, the legislature's decision to make the act mandatory represents an effort to introduce religion into Illinois public schools, couched in the 'hollow guise' of a mandated period of silence."

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A federal appeals court has upheld the inclusion of the words "one state under God" in the Texas Pledge of Allegiance, which state law requires public schoolchildren to recite daily unless excused by their parents.

The Texas pledge reads: "Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible." The Texas legislature originally adopted it in 1933, and amended it in 2007 with the reference to God. Lawmakers cited the purposes of mirroring the U.S. Pledge of Allegiance's reference to "one nation under God," and to recognize the nation's Judeo-Christian heritage.

The pledge was challenged by two sets of Texas parents as an establishment of religion in violation of the First Amendment of the U.S. Constitution.

A federal district court treated the suit as a facial challenge to the 2007 statute, and it ruled for the state. In its Oct. 13 decision in Croft v. Perry, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, unanimously affirmed the lower court's ruling.

"Looking at the pledge as a whole, we find little reason to conclude that individuals who encounter the pledge could fairly understand its purpose to be the endorsement of religious belief," the appeals court said. "A reasonable observer would conclude that the pledge remains a patriotic exercise, intended to inculcate fidelity to the state and respect for its history and values, one of which is its religious heritage."

The appeals court noted that the U.S. Supreme Court has yet to rule directly on whether the inclusion of "one nation under God" in the national pledge comports with the Establishment Clause, but the justices have suggested in dicta and concurring opinions in several cases that the pledge is constitutional. And three federal appeals courts have directly upheld the national pledge as amended by Congress in 1954, the 5th Circuit noted.

This decision seems to me to add to the likelihood that the Supreme Court will take up a case involving the pledge in schools in the near future, whether national or the Texas pledge. See recent discussions of the issue here and here. (Do any other states have a state pledge that is recited in schools?)

The 5th Circuit made no mention of whether students may object to reciting the Texas pledge for reasons of their own conscience, as the Supreme Court's 1943 ruling in West Virginia State Board of Education v. Barnette might suggest. True, the Texas law provides for students to be excused from reciting the state pledge on a parent's written request, but that procedure has been challenged elsewhere (under state laws requiring classroom recitations of the national Pledge) as not sufficiently protecting the rights of students.

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The U.S. Supreme Court took up a major case on Tuesday about whether parents can sue in state courts over design defects in child vaccines, or whether a federal vaccine law precludes such claims.

While the case doesn't directly involve autism, the lawsuit is being closely watched by the autism community, where many parents believe that thimerosal-containing vaccines and the vaccine for measles, mumps, and rubella (MMR) are a cause of autism in their children.

That debate has been followed by educators, with most scientific research failing to find such a link. A special court in Washington has found in several test cases that there is no persuasive evidence for a link between childhood vaccines and autism. The decisions by the U.S. Court of Federal Claims in the autism cases are available here.

The issue in the case before the Supreme Court, Bruesewitz v. Wyeth Inc. (Case No. 09-152), is whether a provision of the National Childhood Vaccine Injury Act of 1986 precludes liability for certain claims against vaccine manufacturers even if the vaccine's side effects were avoidable.

Hannah Bruesewitz, now 19, suffered seizures and has had developmental disabilities since having a bad reaction to a diphtheria-tetanus-pertussis (DTP) vaccine known as Tri-Immunol as an infant in 1992.

Lawyers for the family contend that the vaccine, developed in the 1940s, had long been superseded by a more modern design, but that the drug manufacturer declined to change its DTP vaccine's design because it viewed the economic costs as outweighing any potential gain in market share. Wyeth, now part of Pfizer Inc., withdrew Tri-Immunol from the market in 1998.

"We are talking about trying to eliminate some of the most horrifying and horrible incidents of injury to vaccines that we compel children to take," David C. Frederick, the lawyer for the Bruesewitz family, told the justices during oral arguments. "And the whole idea behind Congress's scheme was to balance having vaccine supply available with providing a generous form of compensation to those persons who would be injured."

Frederick was alluding to the 1986 federal vaccine law's establishment of a special federal "vaccine court" and a compensation fund set up for those who suffered injuries. Many parents have been dissatisfied with the federal scheme and have sought to sue drug manufacturers in state courts.

A friend-of-the-court brief filed on the family's side by groups such as Autism One and the National Autism Network argues that "the compensation program is not working as Congress intended."

"Given the compensation system's inadequacy, keeping the courthouse doors
open, as Congress intended, is more important than ever," the brief says.

Kathleen M. Sullivan, the lawyer representing Wyeth, suggested during the arguments that if the court allows state tort lawsuits against vaccine manufacturers, the autism community is prepared to flood the courts.

"There are 5,000 claimants in vaccine court now who claim there is a relationship between the mumps, measles, and rubella vaccine and autism," Sullivan said. "They have lost all six test cases [in the federal vaccine court] and when the individual cases are resolved, that is 5,000 potential claimants in state court[s]."

The justices appeared torn over the case, with some appearing to agree with the family's arguments that Congress did not clearly preempt state tort lawsuits in this area when it passed the 1986 law.

"If Congress had wanted to [make it clear there could be no liability for design defects], they could have said simply that no vaccine manufacturer may be held civilly liable if the vaccine is properly prepared and accompanied by proper directions and adequate warnings," Justice Ruth Bader Ginsburg told Sullivan. "That would have been the simplest statement. Congress didn't make that statement."

But Justice Stephen G. Breyer cited a friend-of-the-court brief on Wyeth's side by the American Academy of Pediatrics and other medical groups, who argued that "by eliminating the threat of most lawsuits, the Vaccine Act has kept manufacturers from abandoning vaccine production."

Justice Breyer told Frederick, the lawyer representing the Bruesewitz family: "What the pediatricians here say is that, if you win, we're turning this over to judges and juries instead of the FDA and other specialized agencies, that the result could well be driving certain vaccines from the market, and basically, a lot of children will die."

Justice Elena Kagan is not participating in the case because she worked on a federal brief while she was U.S. solicitor general. That leaves the potential for a 4-4 tie, which would result in the lower court ruling in favor of Wyeth being automatically affirmed.

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The U.S. Supreme Court today agreed to take up a case involving the questioning of an elementary school student at school by a deputy sheriff and a state child-protective services caseworker about possible sexual abuse at home.

The justices accepted appeals from the two Oregon investigators of a federal appeals court ruling that they violated the student's Fourth Amendment rights to be free of unreasonable search and seizure when they interviewed her at school without a warrant, court order, parental consent, or exigent circumstances.

The case has implications for school searches of students and cooperation between school officials and law-enforcement authorities, although claims against the school district in this case were dismissed at an early stage.

The case involves events in February 2003 when the caseworker and deputy sheriff went to an elementary school (unidentified in court papers) to interview a nine-year-old girl whom they suspected might be a victim of sexual abuse by her father, who had been arrested a week before in the alleged abuse of a seven-year-old boy.

According to court papers, the investigators arrived at the school and explained they were there to interview the student and asked for a private room. A school counselor pulled the student, identified as S.G., from class. The investigators talked to her for some two hours. Later, the caseworker pursued the investigation and the father was indicted on sexual-abuse charges involving S.G., although the charges were later dismissed. (The father did plead guilty to charges stemming from the abuse of the seven-year-old boy.)

The girl's mother sued the caseworker and deputy sheriff over the interview that took place at school, as well as over later state actions in which her children were removed from her custody temporarily. The suit also named the Bend-La Pine school district in Oregon and the school counselor as defendants, but those claims were dismissed by a federal district court and were not challenged on appeal.

The federal district court had also upheld the seizure at school of S.G. by the caseworker and deputy sheriff. holding that it was "objectively reasonable."

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held in a December opinion that the school seizure violated the Fourth Amendment. The court said that the Supreme Court's 1985 decision on student searches by school officials, in New Jersey v. T.L.O., did not apply because the caseworker and deputy sheriff were not school officials.

The involvement of law enforcement officials in the interview raised "traditional" Fourth Amendment concerns, the court said, and the seizure could not be conducted without a warrant, parental consent, a court order, or the special circumstances that sometimes arise in a situation dangerous to officers.

The court went on to hold that the two investigators were entitled to qualified immunity because they could have believed that they were not violating a clearly established right of the student to be free from such a seizure at school.

The caseworker, Bob Camreta, and the deputy sheriff, James Alford, each appealed to the Supreme Court, which consolidated the apppeals and agreed to hear one hour of oral arguments in the case, likely early in 2011.

Twenty-seven states filed a friend-of-the-court brief on the side of the two investigators, urging the court to take up the case. The mother, meanwhile, filed a brief urging the justices not to disturb the 9th Circuit ruling.

The cases are Camreta v. Greene (No. 09-1454) and Alford v. Greene (No. 09-1478).

Posted by Mark Walsh at 11:48 AM | Permalink | Leave a comment | Recommend

Students suspended from school for fighting have no fundamental right to alternative education under the North Carolina constitution, the state's highest court has ruled. However, a school district must articulate a significant reason for denying such alternative schooling, the court held.

The ruling came in a closely watched case involving two students involved in a larger melee in January 2006 at Southside High School in the Beaufort County school district. Viktoria King and Jessica Hardy were suspended over their involvement in the fight and denied permission to attend the district's alternative learning center.

In its Oct. 8 decision in King v. Beaufort County Board of Education, the North Carolina Supreme Court held that even though there is a statutory right to alternative education in the state, there is no fundamental right to such an alternative for students who are violent or disruptive.

"School administrators are not required to provide alternative education to every suspended student, especially those students who forfeit this statutory right through their own misbehavior," said the majority opinion by Justice Mark Martin. "Because the safety and educational interests of all students receiving alternative education must be protected, students who exhibit violent behavior, threaten staff or other students, substantially disrupt the learning process, or otherwise engage in serious misconduct may be denied access."

The court said school districts that do deny access to alternative education must provide an "important or significant reason" for doing so. Because the Beaufort County school district had not provided any reason for denying the two students, the state high court sent the case back for further proceedings.

Two members of the seven member court concurred with sending the case back, but they partially dissented to suggest that access to alternative education was guaranteed as part of the fundamental right to education in the state constitution.

The seventh justice dissented in the other direction, saying that the majority ruling requiring districts to provide a significant reason for denying alternative education authorized the courts to second-guess the disciplinary decisions of school officials.

The Associated Press reports on the ruling here.

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The Florida Supreme Court on Thursday rejected a challenge to a November ballot measure that would relax the state's limits on class sizes.

The state's highest court unanimously turned away a challenge by the Florida Education Association, an affiliate of the National Education Association, to the state ballot summary of the measure. The union argued that the summary does not fully disclose the effects of Amendment 8, which would alter a 2002 state constitutional amendment that established maximum class sizes of 18 students in K-3, 22 students in grades 4-8, and 25 students in high school.

As the Miami Herald explained in a story yesterday, "The proposal would calculate those caps at a schoolwide average, and individual classes could exceed the average by a handful of students. The changes could save the state between $350 million and $1 billion, but the union argues that the ballot summary doesn't mention those savings."

The state supreme court said today that the ballot summary's failure to address the effect on state class size funding does not make it defective.

"Although the dollar amount required to fund the class size requirements will be affected by the change in the formula for class sizes, the constitutional obligation of the state to provide 'sufficient funds' for the revised class size requirements is not being altered," the court said in Florida Education Association v. Florida Department of State. "Under both the current provision and under Amendment 8, Floridians would have the same right to have the state provide 'sufficient funds' for the mandated class sizes."

Even with the measure kept on the ballot, the Herald reported that a September survey showed that only 35 percent of likely voters were supporting it, well below the 60 percent needed to adopt a constitutional amendment.

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A federal appeals court heard arguments Tuesday in a challenge to same-sex classrooms in a Louisiana school district.

The Associated Press reports here on the arguments before a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, on the suit backed by the American Civil Liberties Union against the Vermilion Parish school district.

School officials evidently contend that the single-sex classes last year at Rost Middle School were voluntary. The ACLU contends the classes violate Title IX, the federal law that bars sex discrimination in federally funded schools, as well as the equal-protection clause of the 14th Amendment.

The ACLU has a Web page on the case.

The 5th Circuit puts audio of its oral arguments up at this page, though the audio in Doe v. Vermilion Parish School Board was not up as of Tuesday afternoon.

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On the first day of its new term, the U.S. Supreme Court today declined without comment to hear the appeal of a parent who challenged a New Jersey school district's restrictions on religious music at holiday performances in its schools.

The South Orange-Maplewood School District's policy encourages secular holiday selections such as "Winter Wonderland," "Frosty the Snowman," and "Rudolph the Red-nosed Reindeer."

"Music centered on Peace is also a nice touch," an administrator's memo said.

But religious selections such as "Joy to the World," "Hark, the Herald Angels Sing," and "Silent Night," are not allowed in winter concert performances, an administrator testified during a trial in the case, although such religious music could be taught as part of the music curriculum.

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, held in November 2009 that the district's policy was not hostile to religion in violation of the First Amendment, nor did it violate the rights of student to receive information and ideas.

"Certainly, those of us who were educated in the public schools remember holiday celebrations replete with Christmas carols, and possibly even Chanukah songs, to which no objection had been raised," U.S. Circuit Judge Dolores K. Sloviter said. "Since then, the governing principles have been examined and defined with more particularity. Many decisions about how to best create an inclusive environment in public schools, such as those at issue here, are left to the sound discretion of the school authorities."

The district's policy was challenged by Michael Stratechuk, a father of two students in the district, who contends the policy is hostile to religion and infringes on his children's right to learn about religious music.

In his appeal to the Supreme Court in Stratechuk v. Board of Education, South Orange-Maplewood School District (Case No. 09-1184), the father argued that the case would be a good vehicle for the justices to revisit their Establishment Clause jurisprudence.

"Christmas is a national holiday, and religious music in the public schools is one of the rich traditions of this season," said the brief, prepared on Stratechuk's behalf by the Thomas More Law Center in Ann Arbor, Mich. "The 3rd Circuit's opinion, if left unchecked, will ensure the demise of this tradition."

The school district filed a brief in opposition to the appeal stressing that the 3rd Circuit's ruling did not say that the First Amendment's Establishment Clause did not allow religious music, only that the school district "had the discretion to reduce religious content at concerts."

The justices' refusal without comment to hear the parent's appeal is not a ruling on the merits of the case.

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A long-awaited biography of the late U.S. Supreme Court Justice William J. Brennan Jr., being released Oct. 4, contains some interesting anecdotes about key education cases Brennan was involved in during his 34 years on the court.

Justice Brennan: Liberal Champion (Houghton Mifflin Harcourt) was written by Seth Stern and Stephen Wermiel. Wermiel was The Wall Street Journal's Supreme Court correspondent when Brennan in 1986 agreed to start meeting him for a series of biographical interviews. Wermiel would arrive at Brennan's chambers at 7:30 a.m. on many weekdays to interview the justice or sift through his case files and other records.

Brennan, appointed by President Dwight D. Eisenhower in 1956, retired after the 1989-90 term of the court and died in 1997. Wermiel, who now teaches law at American University in Washington, worked on the biography but apparently let it languish after Brennan's death. Co-author Seth Stern, the Supreme Court reporter for Congressional Quarterly, got involved in 2006, conducting additional interviews and helping Wermiel organize his vast notes and complete the biography.

** It was relatively early in Justice Brennan's tenure when he was tapped in 1958 by Chief Justice Earl Warren to write the court's unanimous, joint opinion in Cooper v. Aaron, which reaffirmed the court's commitment to its decision in Brown v. Board of Education of Topeka and held that the governor and legislature of Arkansas were bound by federal court orders to desegregate the Little Rock schools.

Brennan worked delicately to craft an opinion that would retain the unanimity of the Brown decision. The book recounts that Brennan was on the front porch of his home in Washington's Georgetown section working on his opinion in the case in September 1958 when a neighbor who was a TV journalist came by to strike up a conversation. The journalist, Richard Harkness, had just returned from a reporting swing through the Deep South and remarked to Brennan that the word "integration" had riled many white Southerners, provoking fears of interracial sex and marriage. The word "desegregation" didn't bother them as much, Harkness told the justice.

Brennan took heed of his neighbor's observations, and he used the term "desegregation" in his Cooper opinion.

** After the American public's harsh reaction to the Supreme Court's 1962 decision in Engel v. Vitale, striking down a state-approved prayer for use in public schools, Justice Brennan, as the court's lone Roman Catholic, felt the need to explain his views in the next school prayer case, which came along in 1963 in Abington School District v. Schempp.

Brennan wrote a 70-page concurrence to the Abington decision, which with a companion case struck down compulsory Bible reading in Pennsylvania and Maryland public schools, and he refused to let any other justices sign on to the concurrence, wanting it to be his alone.

"Brennan traced the history of school prayer back to the English colonies in the 17th Century and ... he took pains to try to prove that the Court had firmly grounded its conclusion in both law and tradition," the authors write. "Here, Brennan sought specifically to explain to a Catholic audience what justified his breaking with what he viewed as the Church's position" in support of official public school prayer, the book says.

** In 1982, as the court considered a case from Texas on whether the children of illegal immigrants had a 14th Amendment equal-protection right to receive a public education, Brennan told his clerks that then-Associate Justice William H. Rehnquist referred to the children at the center of the case as "wetbacks" during the justices' private deliberations, the book says. Rehnquist defended the term as one still in wide use in the American West, prompting an angry response from Justice Thurgood Marshall, who told Rehnquist that under that theory Marshall used to be known as a "nigger."

Brennan wrote the opinion for the court in Plyler v. Doe, which upheld the immigrant children's right to a public education. The book says Brennan had to restrain his views about treating educational rights as deserving of heightened constitutional protection to gain the necessary fifth vote of Justice Lewis F. Powell Jr. in the case.

The book has other education episodes, and many anecdotes of interest, including a discussion about why Brennan, a champion of treating sex discrimination with heightened judicial scrutiny, long resisted hiring female law clerks. Eventually, though, he gave in.

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