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Education Appeals Await as U.S. Supreme Court Term Nears Finish

The U.S. Supreme Court term is entering the home stretch, with likely landmark decisions yet to come on the federal health care law and Arizona's immigration crackdown. But the 2011-12 term is not likely to be considered a landmark one for education law.

The court's lone school case dealt with whether a religious school teacher's discrimination case against her church employer was barred by the "ministerial exception." The court ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. Tabor that it was.

There are a handful of other cases yet to be decided with implications for education or the nation's youth. For its next term, the court has already accepted a major case on the consideration of race in higher education admissions, Fisher v. University of Texas at Austin (No. 11-345). And in the next few weeks, the justices could grant review in appeals involving race at the K-12 level and religious speech in public schools. (More on those below.)

The pending decisions are these:

Federal Communications Commission v. Fox Television Stations Inc. (No. 10-1293)
The justices are considering the constitutionality of the FCC's rules aimed at keeping indecency off the broadcast airwaves at a time when children are in the audience. Some analysts have suggested the court may be prepared to reconsider some key precedents for an era when cable channels and the Internet, which don't face the same speech restrictions as broadcasters, are just as pervasive in the lives of children.

Knox v. Service Employees International Union (No. 10-1121)The justices are considering another case in the complex area of the law involving public-employee-union "agency fees"—service fees charged to nonunion members who benefit from collective bargaining. Court precedents require an annual notice to payers justifying that the fee went to authorized expenses. This case, involving a unit of the SEIU that represents California state employees, challenges the lack of a notice for a special assessment the union charged to members and nonmembers to battle two anti-labor ballot initiatives in 2005. The court's decision will affect teachers' unions and could put a crimp in plans by unions to spend more freely on elections in 2012. (I covered the oral arguments here.)

Miller v. Alabama (No. 10-9646)
Jackson v. Hobbs (No. 10-9647)
The court is considering the constitutionality of sentences of life without parole for juveniles age 14 and younger convicted of murder. The court's recent cases on juvenile sentencing have been watched by many in the education and juvenile justice communities because they have turned on modern understandings of adolescent brain development and the notion that juveniles are less culpable than adults for their mistakes. (I covered the arguments here.)

Arizona v. United States (No. 11-182)
The federal challenge to Arizona's controversial law on immigration is being watched by educators in that state and elsewhere. Although the Arizona law does not have a provision similar to the one in Alabama that calls on school officials to check the citizenship status of students, the justices' ruling in this case could either foreclose such measures or give the states further room to maneuver in this area. (I covered the case here and here.)

Also pending before the justices are two important education appeals. One is Morgan v. Swanson (No. 11-804), which asks the high court to take up part of a long-running lawsuit over student religious speech.

The U.S. Court of Appeals for the 5th Circuit, in New Orleans, held in September that elementary school students have First Amendment free-speech rights to discuss religion with their classmates. The court said that based on facts alleged in a long-running suit involving incidents in the Plano, Texas, school district, two school principals likely violated the rights of two students who were barred from distributing items such as religious-themed candy canes and pencils with religious messages to fellow students.

However, a separate majority said the two principals were entitled to qualified immunity from personal liability in the lawsuit because rulings on student religious speech in public schools are far from clear for administrators.

That decision is the basis for an appeal by parents, who are being represented by the busy Supreme Court litigator Paul Clement. Their appeal has also attracted a friend-of-the-court brief signed by several former U.S. attorneys general and secretaries of education.

A decision by the justices on whether to accept the appeal could come as early as Monday, June 11.

The other big appeal pending is Student Doe 1 v. Lower Merion School District (No. 11-1135). That is an appeal of a federal appeals court ruling in December that upheld the Pennsylvania school district's attendance-zone plan that took neighborhood racial demographics into account but did not assign individual students based on race.

Nine African-American students affected by the new attendance zones, and their parents, sued the district, arguing that the plan's consideration of race violated the 14th Amendment's equal-protection clause. Their appeal asks the high court to consider whether the school district's use of race was narrowly tailored to achieve a compelling state interest.

A decision on that appeal could come as soon as Monday, June 18.

The justices have not set a final day for the current term, though it is likely to come during the week of June 25.

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