ERIC EJ918582: ASBO at 100: A Supreme Court Retrospective on Equal Educational Opportunities

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legal legislativeissues
and
ASBO at 100: A Supreme
Court Retrospective on Equal
Educational Opportunities
By Charles J. Russo, J.D., Ed.D.
I
Clearly, the recently reviewed past issues of School International’s first century of existence.
Business Affairsand was especially taken Accordingly, this column, the first of two on
Supreme Court has
by a May 1949 article about the Supreme the Supreme Court and education, inaugu-
Court and education cases that indicated rates ASBO’s centennial year with a retro-
played a crucial role
that between its founding in 1791 and 1949, spective look at key cases that were litigated
in shaping education the Supreme Court addressed a grand total of in K–12 school settings around the issue of
26 cases on education, of which only 17 dealt equal educational opportunities.
over ASBO Interna- with K–12 schools; the remainder were set in It is important at the outset to note that
higher education (Keesecker 1949).
pursuant to the Tenth Amendment, “The
tional’s first century In a prescient statement, the author noted,
powers not delegated to the United States by
“Should Supreme Court decisions relating
the Constitution, nor prohibited by it to the
of existence. to education continue at the recent unprece-
States, are reserved to the States respectively,
dented pace, their future influence upon edu-
or to the people.” That means that educa-
cation is most likely to result in heretofore
tion is a duty of individual states rather than
unexpected changes in education and Federal-
the federal government. However, if state or
State educational relations.”
local school officials interfere with the feder-
The Supreme Court did not consider its
ally protected constitutional rights of stu-
first school case until 1859 in Springfield
dents or teachers, then the Supreme Court
Township v. Quick, wherein it held that
can hear the ensuing cases. In other words,
state officials did not violate the rights of a
as reflected in Brown v. Board of Education
township in Indiana when they allocated
(1954), while states are under no obligation
funds from the state treasury by considering
to create public schools, once they do, the
how much money schools there had avail-
Fourteenth Amendment dictates that they
able under federal law.
must be made available to all—regardless of
Yet, in the years since its monumental
race, let alone other characteristics such a
1954 ruling in Brown v. Board of Education,
gender or disability—on an equal basis. In
which not only prohibited racial segregation
this way, the Court found that school sys-
in schools but is also considered to have given
tems that denied African American children
birth to the field known today as education
equal educational opportunities violated
law, the Court resolved in excess of 100 cases
their Fourteenth Amendment rights.
that directly affected K–12 schools. More-
As next month’s column will demonstrate,
over, the Court has handed down many more
the Supreme Court can intervene in other
cases indirectly affecting various aspects of
cases as long as they concern federal consti-
daily life in public education. Among its myr-
tutional or statutory questions. Other major
iad cases, 33 dealt with issues involving race
areas in which the Court heard cases include
and school desegregation, while almost 40
aid to religiously affiliated nonpublic
examined disputes over the place of religion,
schools, school prayer, and the free speech
whether aid to nonpublic schools or religious
rights of students and educators under the
activities in public schools.
First Amendment; searches and seizures
under the Fourth Amendment; and the rights
Setting the Stage
of students and teachers who are subject to
Clearly, the Supreme Court has played a discipline under the due process clause of the
crucial role in shaping education over ASBO Fourteenth Amendment.
36 JANUARY 2009 | SCHOOL BUSINESS AFFAIRS www.asbointl.org
LEGAL AND LEGISLATIVE ISSUES
In light of the role that the Sup- The Court eventually extended Plessy
reme Court has assumed in shaping to schools in Gong Lum v. Rice “For more than a hundred years
Americ an education, this column re- (1927) in affirming an order forbid- after the founding of the Court—
views key cases dealing with equal ding a student of Chinese origin from to 1900—only four educational
educational opportunities since the attending a school for whites. decisions were rendered. From
line of cases beginning with Brown Second, Brownintroduced an era 1900 to 1920 four such decisions
set the tone for much that has occ ur - of equal educational opportunities occurred. However, from 1920 to
red in its wake. that led to the enactment of such far- date, no less than 18 decisions
After highlighting the Court’s major reaching statutes as Title IX of the relating to education have been
rulings on school desegregation, the Education Amendments of 1972 ren dered by the Court.”
column briefly reviews its only case (which was initially designed to en-
—WARDW. KEESECKER, 1949
on school finance because funding sure gender equity in higher educa-
plays a major role in seeking to pro- tion but later extended to fight sexual
vide equal educational opportunities harassment in schools) and the Indi- position of a student body, faculty,
for children. The final part of the arti- viduals with Disabilities Educat ion staff, transportation, extrac urricular
cle examines the Court’s litigation on Act (which was created to safeguard activities, and facilities.
equal educational opportunities for the educational rights of students Frustrated with the slow pace of de-
females and students with disabilities. with disabilities). segregation, in Alexander v. Holmes
County Board of Education(1969),
As important as Brown was, it the Supreme Court eliminated the
“all deliberate speed” standard. The
was limited to the question of
Court declared that “the obligation
of every school district [is] to termi-
ending segregation.
nate dual school systems at once and
to operate now and hereafter only
I hope these two columns afford As important as Brown was, it unitary schools” (p. 20).
school business officials and other ed- was limited to the question of ending Swann v. Charlotte–Mecklenburg
ucational leaders with a greater sense segregation. A year later, in Brown v. Board of Education (1969) stands
of understanding of, and respect for, Board of Education II(1955), the out for two reasons. First, it was the
the ways in which the Court’s deci- Supreme Court addressed remedies, first case in which the Court exam-
sions shaped, and continue to shape, directing educational officials to end ined the use of busing to achieve
American schooling and society in segregated schooling “with all delib- school desegregation, and second,
general, as well as the life of ASBO erate speed” (p. 301). Faced with the Swannwas the Supreme Court’s last
and its members in particular. realization that “all deliberate speed” unanimous judgment in a major
was not working, a decade after the school desegregation case.
Equal Educational original Brown, in a case from Vir- Milliken v. Bradley (1974) was the
Opportunities ginia, Griffin v. County School Board first major post-Browndefeat for sup-
of Prince Edward County(1964), porters of school desegregation. The
DESEGREGATION the Court held that “the time for Court ruled that a remedy that would
Brown v. Board of Education stands ‘mere del iberate speed’ had run out” have required suburban districts to
out as the Supreme Court’s most im- (p. 234).The Court thus struck assist in desegregating Detroit’s
portant education-related case. Brown down a plan that would have closed schools was unconstitutional absent
is important for two reasons. First, as public schools in a county while proof that the state or surrounding
noted, Brownstruck down racial seg- allowing public support for private boards engaged in acts of discrimina-
regation in schools on the basis that it segregated white schools. tion. Although the Court upheld a fed-
violated the equal protection rights of In Green v. County School Board eral trial court’s proposed remedy that
African American students. In Brown, of New Kent County(1968), the created student assignment and reme-
the Court expressly repudiated the Supreme Court was skeptical of free- dial plans for the Detroit schools while
pernicious concept of “separate but dom-of-choice plans. More impor- directing the state to share equally in
equal” that it introduced in Plessy v. tantly, the Court delineated the six their cost in Milliken v. Bradley II
Ferguson(1896), wherein it upheld a Greenfactors that the judiciary con- (1977), it was clear that the justices
prohibition against allowing an Afri- tinues to apply in considering whe ther lost interest in school desegregation.
can American to sit in public railway school systems have become de segre - After deciding almost 33 cases be-
accommodations reserved for whites. gated. These factors address the com- tween 1954 and 1979, in the interim
www.asbointl.org SCHOOL BUSINESS AFFAIRS | JANUARY 2009 37
LEGAL AND LEGISLATIVE ISSUES
the Supreme Court has resolved only reiterated that under the Tenth Amen- liable since none of its officials with
7 cases, with only 2 in the 1980s, dment education is not a concern of the authority to institute corrective
both in 1982. With proponents of the federal government. In refusing to measures had actual notice of, or was
desegregation having lost the last intervene, the Court declared: “Edu- deliberately indifferent to, the teacher’s
three genuine desegregation cases, ca tion, of course, is not among the misconduct. Unlike Frank lin, the
the Court has gone longer than it has rights afforded explicit protection Court was satisfied that since board
since pre-Brownin addressing this im - under our Federal Constitution. Nor officials behaved appropriately by
portant area. In Board of Educa tion do we find any basis for saying it is promptly and decisively punishing the
of Oklahoma City Public Schools v. implicitly so protected” (p. 35). Fol - teacher, the student and her mot her
Dowell(1991), the Court ruled that lowing Rodriguez, most states have could not proceed with their claim.
since desegregation orders are not faced litigation in their own courts Davis v. Monroe County Board of
meant to operate forever, the judiciary over the adequacy of their funding Education(1999) was filed by the
had to consider whether local boards systems with results about evenly di- parents of a female fifth-grader who
acted in good faith in eliminating the vided between cases upholding the was subjected to a lengthy pattern of
vestiges of past discrimination as far state constitutionality of funding sexual harassment by a male class-
as was practicable. schemes and those calling for changes mate. Although lower federal courts
In Freeman v. Pitts(1992), the to make them more equitable. rejected the claims of the plaintiffs,
Court relied on the Greenfactors in the Supreme Court reversed in setting
deciding that judicial supervision of a GENDER EQUITY the rules under which school boards
desegregation order can be achieved As indicated, Title IX of the Educa- may be liable while returning the case
incrementally. In Missouri v. Jenkins tion Amendments of 1972 was ini- to a lower court for further review.
(1995), the Court found that lower tially designed to ensure gender equ ity After acknowledging that damages
federal courts exceeded their discre- for student athletes in higher educa- are limited “to circumstances wherein
tion in mandating a costly desegrega- tion but was extended to fight sexual the recipient exercises substantial
tion remedy. harassment in schools. In the first control over both the harasser and
the context in which the known har-
It almost goes without saying as sment occurs” (p. 646), the Court
reasoned that school boards, as recip-
that children cannot receive equal
ients of federal financial assistance,
educational opportunities if their “are properly held liable in damages
only when they are deliberately indif-
school boards lack adequate ferent to sexual harassment, of which
they have actual knowledge, that is so
financial resources.
severe, pervasive, and objectively of-
fensive that it can be said to deprive
Finally, although the Court struck two of its three cases on sexual haras- the victims of access to the educa-
down race-conscious admissions re - sment, the Supreme Court addressed tional opportunities or benefits pro-
medies in Parents Involved in Com- misbehavior by teachers. vided by the school” (p. 650).
munity Schools v. Seattle School In Franklin v. Gwinnett County
Di strict Number 1(2007), it cannot Public Schools(1992), the Court STUDENTS WITH DISABILITIES
properly be classified as a desegrega- expanded the parameters of Title IX With 13 cases, the Individuals with
tion case insofar as neither school by applying it for the first time to sex- Disabilities Education Act (IDEA),
system operated pursuant to court- ual harassment in schools in al lowing which provides a free appropriate
ordered desegregation remedies. a student’s claim for damages against public education in the least-restric-
a school board and teacher after he tive environment for students with
SCHOOL FINANCE subjected her to “coercive [sexual] disabilities, has generated more liti-
It almost goes without saying that intercourse”(p. 63). Howe ver, four gation than all other topics involv-
children cannot receive equal educa- years later, in Gebser v. Lago Vista ing students other than religion or
tional opportunities if their school Independent School Dist rict(1998), desegregation.
boards lack adequate financial re- the Court affirmed that a school Only seven years after its initial
sources. Yet, in San Antonio board was not liable under Title IX enactment, the Supreme Court heard
Independent School District v. where a teacher had sexual relations its first, and arguably most important,
Rodriguez(1973), its only case on with one of his students. The Court case involving the IDEA: Board of
school funding, the Supreme Court pointed out that the board was not Education of the Hendrick Hudson
38 JANUARY 2009 | SCHOOL BUSINESS AFFAIRS www.asbointl.org
LEGAL AND LEGISLATIVE ISSUES
Central School District v. Rowley 1984), which concluded that the par-
(1982). In Rowley, the Court inter- ents of children with disabilities could
preted “appropriate” as providing a not recover legal expenses from their
floor of opportunities rather than ser- school boards even if they prevailed,
ving as a vehicle to maximize a child’s Congress amended the IDEA by gran-
potential. In perhaps its second most t ing parents such a right (20 U.S.C.A.
important case, Honig v. Doe (1988), §§ 1415[i][3][B]–[G]), a provision
the Court addressed the rules for dis- that has cost local school boards sig-
ciplining students with disabilities, nificant amounts of monies.
affirming that the IDEA’s stay-put
provisions prohibit educators from Conclusion
unilaterally excluding students with As this column demonstrates, the
disabilities from school for more than Supreme Court’s decisions involving
10 days for dangerous or disruptive equal educational opportunities have
actions that are manifestations of had far-reaching effects on the lives Honig v. Doe, 484 U.S. 305 (1988).
their disabilities. of school business officials, other Individuals with Disabilities Education
Act, 20 U.S.C.A. §§ 1400 et seq.(2004).
Among the cases dealing with ques- edu cational leaders, and everyone
tions that present significant cost ram- else associated with public education. Irving Independent School District v.
Tatro, 468 U.S. 883 (1984).
ifications for school systems, the Court About the only thing that we can be
allowed the on-site delivery of related certain of as ASBO starts its second Keesecker, W. W. 1949. Supreme Court
decisions affecting school administration.
services in public schools (Irving Inde- century is that during the coming
School Business Affairs15 (5): 1–2.
pendent School District v. Tatro1984; years the Court will continue to af-
Milliken v. Bradley, 418 U.S. 717 (1974);
Cedar Rapids Com munity School Dis- fect education in many ways that we
433 U.S. 267 (1977).
trict v. Garret F.1999); permitted par- cannot now anticipate.
Missouri v. Jenkins, 515 U.S. 70 (1995).
ents to seek reimbursement for plac i ng
Parents Involved in Community Schools v.
their children in nonaccredited schools References
Seattle School District Number 1, 127 S.
if boards fail to offer a free appropri-
Alexander v. Holmes County Board of Ct. 2738 (2007).
ate public education (School Com- Education, 396 U.S. 19 (1969).
Plessy v. Ferguson, 163 U.S. 537 (1896).
mitt ee of the Townof Burlington v. Arlington Central School District v.
San Antonio Independent School District
Departm ent of Education, Common- Murphy, 548 U.S.291 (2006).
v. Rodriguez, 411 U.S. 1 (1973).
wealth of Mass a chusetts1985; Flor - Board of Education of the Hendrick
Schaffer ex rel. Schaffer v. Weast, 546 U.S.
ence County SchoolDistrict Four v. Hudson Central School District v. Rowley,
49 (2005).
Carter1993); declared that a student 458 U.S. 176 (1982).
School Committee of the Town of
in a re ligiously affiliated nonpublic Board of Education of Oklahoma City
Burlington v. Department of Education,
school could re ceive the on-site serv- Public Schools v. Dowell, 498 U.S. 237 Commonwealth of Massachusetts, 471
(1991). Brown v. Board of Education, 347
ices of a sign-language interpreter U.S. 359 (1985).
U.S. 483 (1954); 349 U.S. 294 (1955).
(Zobrest v. Catalina Foothills School Smith v. Robinson, 468 U.S. 992 (1984).
Cedar Rapids Community School District
District1993); placed the burden of
v. Garret F., 526 U.S. 66 (1999). Springfield Township v. Quick, 63 U.S. 56
proof on parties challenging the ade- (1859).
Davis v. Monroe County Board of
quacy of individualized education
Education,526 U.S. 629 (1999), on Swann v. Charlotte–Mecklenburg Board of
programs (Schaffer ex rel. Schaffer v. remand, 206 F.3d 1377 (11th Cir. 2000). Education, 396 U.S. 19 (1969).
Weast2005); refused to allow parents Florence County School District Four v. Title IX of the Education Amendments of
to re cover fees for expert witnesses Carter, 510 U.S. 7 (1993). 1972, 20 U.S.C.A. § 1681 (1972).
even if they prevailed in claims against Franklin v. Gwinnett County Public Winkelman v. Parma City School District,
their school boards on the basis that Schools, 503 U.S. 60 (1992), on remand, 127 S. Ct. 1994 (2007).
their request was unauthorized in the 969 F.2d 1022 (11th Cir. 1992). Zobrest v. Catalina Foothills School
IDEA (Arlington Central School Dis- Freeman v. Pitts, 503 U.S. 467 (1992). District, 509 U.S. 1 (1993).
trict v. Murphy2006); and permitted
Gebser v. Lago Vista Independent School
parents to file suit in their own name District, 524 U.S. 274 (1998). Charles J. Russo, J.D., Ed.D., Panzer
in disputes over the education of their Gong Lum v. Rice, 275 U.S. 78 (1927). Chair in Education and adjunct professor
children (Winkelman v. Parma City of law at the University of Dayton in
Green v. County School Board of New
Ohio, is chair of ASBO’s Editorial
School District2007). Kent County, 391 U.S. 430 (1968).
Advisory Committee and vice chair of
Earlier, unhappy with the Supreme
Griffin v. County School Board of Prince ASBO’s Legal Aspects Committee.
Court’s decision in Smith v. Robinson Edward County, 377 U.S. 218 (1964). Email: [email protected].
www.asbointl.org SCHOOL BUSINESS AFFAIRS | JANUARY 2009 39