Education Week - April 11, 2018 - 21
In the 1960s, Irving Breyer
helped advise the San Francisco
system and others around the
state, through the California School
Boards Association, in an era when
teachers asserted and won their
right to bargain collectively with
And beginning in the 1960s and
extending into the early 1970s, the
legal counsel faced his biggest challenge-the desegregation of the San
Throughout the 1960s, civil rights
groups pressed the school system to
address widespread de facto segregation of black students. San Francisco school administrators, and
sometimes special commissions,
conducted studies and proposed
various remedies. But it took a lawsuit and a 1971 order from a federal
district judge to begin the desegregation of the city's elementary
schools and a separate case for its
secondary schools. Desegregation
nated by President Bill Clinton
to become a federal district judge
in 1997, said his father was very
much a pragmatist. "My brother is
accused of being a pragmatist on
the court. That comes from our upbringing," he said.
Justice Breyer was reminded, during the interview in his chambers,
of some of the votes he has cast and
opinions he has written in cases involving school districts. While the
justice has ruled both for and against
school boards and administrators
during his long tenure, the proposition was put forth that he has perhaps felt the influence of his father,
the veteran school district lawyer.
In particular, Justice Breyer was
reminded of his concurring opinion
in a 2007 case in which the court
upheld the discipline of a student
who had displayed a banner with
the phrase "BONG HiTS 4 JESUS"
at a school event.
Breyer concurred in the judgment
in part and dissented in part, saying he would have only upheld qualified immunity for the principal and
school board, who were the targets
of the student's suit over the discipline, and not ruled on the question
of First Amendment protection for
On a broader point, he expressed
worry in the opinion that the more
detailed the Supreme Court's supervision of school discipline becomes,
the more such disputes will "make
their way from the schoolhouse to
"Yet no one wishes to substitute
courts for school boards, or to turn
the judge's chambers into the principal's office," the justice wrote.
In the interview, Breyer did not
suggest his father's position led him
directly to sympathize with school
administrators. But he also did not
discount the more subtle effect his
father and his career in education
law may have had on him.
"Of course people are inf luenced by their families, by where
they went to school," Breyer said.
"There's no way you escape your
"So, if you say, 'What influence?'
I don't know," he continued. "It's
just a question of outlook. I'm sure
what I got from him, which is very
important and which misleads people sometimes, is to listen to what
the other person says. Listen to it.
And then having listened to it, you
take it into account. That's absolutely Senator Kennedy, and it's
also, I think, my father. It can mislead people because they think you
agree with them. You don't necessarily agree with them, but you do
want to find out what they think."
I'm sure what I got
from him ... is to listen
to what the other
person says. Listen
to it. And then having
listened to it, you take
it into account."
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STEPHEN G. BREYER
U.S. Supreme Court
efforts and their ensuing controversies continued in San Francisco well
after Irving Breyer retired from the
school system in 1973.
'You Work It Out'
Stephen Breyer was established
on the East Coast by that time,
teaching at Harvard Law School
and working at various times for
the U.S. Department of Justice, for
the Senate Watergate Committee,
and as a senior staff member for
the Senate Judiciary Committee
under the leadership of Sen. Edward M. Kennedy, the Massachusetts Democrat. He was nominated
by President Jimmy Carter to the
U.S. Court of Appeals for the First
Circuit, in Boston, and served there
until he joined the Supreme Court
Breyer said he doesn't have a
great recollection of the specific controversies his father faced on the job.
"But I can tell you his character was to try to work things out,"
Breyer said. "When I worked with
Senator Kennedy, he kept saying,
'Work it out. Work it out.' And that
was familiar to me because that
was generally my father's attitude
toward most of the problems. You do
your best. You work it out."
Charles Breyer, who was a longtime assistant district attorney in
San Francisco and worked in private practice before being nomi-
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