Education Week - February 24, 2016 - (Page 22)

CONTINUED FROM PAGE 17 on the high court to order reargument when a new justice joins the court. "This is a fundamental issue of individual rights that needs to be settled," said Terence J. Pell, the president of the Center for Individual Rights, a Washington public-interest legal group. "We think we have a strong argument for the court to wait to decide this case with a full panel of nine justices." The request was animated by the perception, based on oral arguments in January and other factors, that the court's conservatives-Justice Scalia included-were on the verge of ruling for the non-union teachers and scuttling the 1977 precedent in Abood v. Detroit Board of Education. But Scalia's death leaves only eight justices to decide any outstanding cases this term. Most legal analysts believe it is strongly likely that the court would now be deadlocked 4-4 on the Friedrichs case. In an argued case, when the Supreme Court deadlocks for any reason-because one justice is ill or recused, for example-the court typically issues a ruling that affirms the decision of the court below, but sets no national precedent. In Friedrichs, the U.S. Court of Appeals for the 9th Circuit's ruling had upheld the California Teachers Assocation's right to collect agency fees. "It's not unusual to have an eightmember court," said Erwin Chemerinsky, the dean of the law school at the University of California, Irvine. The wrinkle is that when there has been a vacancy, the court has sometimes ordered cases held for reargument with the inclusion of the new justice. That last happened in 2006, when Associate Justice Samuel A. Alito Jr. joined the court to replace Associate Justice Sandra Day O'Connor. O'Connor had announced her retirement in July 2005, but Chief Justice William H. Rehnquist died in September of that year and was succeeded by now-Chief Justice John G. Roberts Jr. O'Connor extended her service until her successor-Alito- took his seat in January 2006. But three cases in which O'Connor had heard arguments, and that presumably resulted in an initial 5-4 vote in the justices' private conference, were set for reargument once Alito joined the court. Chemerinsky believes the high court has wide discretion to decide whether to order reargument in cases that are tied, or affirm the lower court's decision without setting a precedent. A third option, he said, is for the justices to see whether they could hammer out a compromise decision on narrow grounds. "The rules are very murky on this," he said. But other legal experts have suggested that, based on history, tied cases would more likely be re-argued than summarily affirmed. The question comes into sharp focus with the Friedrichs case. A summary affirmance in the case of a 4-4 tie would leave standing the appeals court's decision in favor of teachers' unions, but it would not become a national precedent. That prospect has given unions a sense of relief-again, based on the perception that they were slated for a defeat. Pell argued that the unions should want reargument as much as the nonunion challengers, since "there is a cloud hanging over their operations in 23 states" that authorize agency fees. But the unions may not see it that way. The national unions declined to comment. And based on the intense debate last week over whether Republicans would even consider a Supreme Court nominee put forth by President Obama, it is far from clear when the court will be restored to full strength. Other Hot Cases Over 40 programs. Onsite and online. For teachers, principals, and district leaders. UPCOMING PROGRAMS Harvard Institute for Superintendents and District Leaders May 15-18 Certificate in Advanced Education Leadership Next module begins May 8 Find Yours Today 22 | EDUCATION WEEK | February 24, 2016 | Meanwhile, Scalia's death will affect some other cases being watched by educators this term. * Affirmative Action: In Fisher v. University of Texas at Austin (Case No. 14-981), the court is weighing the university's race-conscious admissions program. Justice Elena Kagan is not participating in that case; Scalia's death leaves only seven justices participating. Because the court's conservatives, including Justice Anthony M. Kennedy, have been skeptical of the university's plan, one seemingly likely outcome is for the court to rule 4-3 to strike the admissions program down or send it back for even more scrutiny by lower courts. * One Person, One Vote: In Evenwel v. Abbott (No. 14-940), the court is weighing whether its voting-rights jurisprudence requires states and local governments, including school boards, to count the total population or some form of the voting-age population when drawing electoral lines. The case could have consequences for elected school boards and for how well children are represented by state lawmakers. This case could result in a 4-4 deadlock with Scalia's absence, analysts say. * Immigration: In United States v. Texas (No. 15-674), the court is weighing the validity of the Obama administration's policy offering deportation relief for undocumented immigrant parents of children who are U.S. citizens. The case could also affect a related policy affecting undocumented children, and is connected to a larger debate over immigration policies that affect students, educators, and schools. The court had indicated it would be set for argument in April. J. Scott Applewhite/AP-File High Court Vacancy Roils Outlook on Key Cases The unexpected death of Justice Antonin Scalia comes as several disputes of significance to K-12 educators are still pending before an ideologically divided U.S. Supreme Court.

Table of Contents for the Digital Edition of Education Week - February 24, 2016

Education Week - February 24, 2016
ESSA Spotlights Strategy to Reach Diverse Learners
Will the Common Core Step Up Schools’ Focus on Grammar?
Disparities in Test Accommodations Eyed
News in Brief
Report Roundup
S.D. May Restrict Restroom Use For Transgender Students
Conn. Seminars Tackle ‘Religious Illiteracy’ In Classrooms
Seven Studies Comparing Paper and Computer Test Scores
To Offset Poverty, Ed. Groups Urge ‘Whole-Child’ Approach
Research on Deafness Yields Broader Insights
Analysis: Ill. Pension Woes Destabilizing Teaching
Blogs of the Week
Military Eyes Wider Access for Career-Aptitude Test Under ESSA
Scalia’s Death Muddies Fate of Key Cases
Courts Push Lawmakers to the Wall Over K-12 Funding
Blogs of the Week
5 Key Takeaways on Education From White House Candidates
State of the States
Preschool Suspensions Do More Harm Than Good
Personalization Isn’t About Isolation
TopSchoolJobs Recruitment Marketplace
Why Preschool Matters for Student Success

Education Week - February 24, 2016