Education Week - July 18, 2018 - 20
A Deep One
Supreme Court jurist
sets retirement date
By Mark Walsh
BY MARK WALSH
After a major term for K-12 education the year before, the U.S. Supreme Court-with one blockbuster exception and a
historic retirement-had a more measured term in the 2017-18 that wrapped up this week.
The standout case for educators was Janus v. American Federation of State, County, and Municipal Employees Council 31,
which stripped teacher and other public employee unions of the right to collect agency fees from nonmembers, overturning a
decades-old high court precedent. Aftershocks continue.
That ruling was issued the last day of the term, June 27-the same day that Justice Anthony M. Kennedy, a highly
influential moderate-conservative at the center of the U.S. Supreme Court for three decades, announced his retirement. In
his time on the court, Kennedy wrote major opinions on race, religion, and other areas of public education. And on July 10,
President Donald Trump announced the nomination of Brett M. Kavanaugh, a judge on the U.S. Court of Appeals for the
District of Columbia Circuit, to succeed Kennedy.
Here's a summary of opinions on issues of interest to K-12 educators this term, including union rights, a variety of First
Amendment issues, and cases with implications for school funding and immigration.
Janus v. American Federation of State, County,
and Municipal Employees Council 31: In a
long-anticipated decision, the court ruled 5-4 to
overrule a 41-year-old precedent that allowed
the teachers' unions and other public-employee
labor organizations to collect fees for collective
bargaining from workers who decline to join
the union. The justices also ruled that workers
must affirmatively opt into the union before
fees can be taken out of their paychecks.
Lozman v. City of Riviera Beach, Fla.: Educators were watching the case
of a persistent gadfly speaker at city council meetings, who was arrested
when the presiding council member sought to cut him off during a public
comment period and Lozman refused to leave. The high court reinstated
the man's civil lawsuit on narrow grounds, and did not decide whether
the existence of probable cause on the part of the police in such situations
automatically bars a civil suit for First Amendment retaliation. But the
court did stress that the right to petition the government ranks "high in
the hierarchy of First Amendment values."
Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission: In a case
that was watched by many in education, including teachers' unions and
religious colleges, the court ruled that the civil rights panel had violated
the religious rights of a baker who had refused to create a wedding cake
for a same-sex couple. The decision, however, sidestepped the larger
questions about conflicts between religious rights and government
protections against discrimination based on sexual orientation.
South Dakota v. Wayfair Inc.: In a decision
likely to boost the coffers of states and school
districts, the court allowed states to require
out-of-state retailers to collect sales taxes on
Internet purchases. The justices overruled
two precedents, from 1967 and 1992, that had
required sellers to have a physical presence in
the state before facing tax collection. States,
cities, and school districts were missing out on
as much as $34 billion per year.
Murphy v. National Collegiate Athletic
Association: The court struck down a federal
law aimed at stopping the spread of sports
betting, in a case that was watched in higher
education and among advocates who fear the
effects of gambling on the nation's youth. The
court said the 1992 Professional and Amateur
Sports Protection Act, which barred the states
from authorizing sports wagering, violates a
principle outlined by the high court against
"commandeering," or directing the states to
pass a particular law.
20 | EDUCATION WEEK | July 18, 2018 | www.edweek.org
Minnesota Voters Alliance v. Mansky: The justices struck down
Minnesota's ban on political apparel at polling places in a First
Amendment case with implications for free speech restrictions
in public schools. The court suggested that states could restrict
expressive apparel at polling places, which are less "mundane"
forums than schools. But Minnesota's restrictions on issue-oriented
messages were not reasonable, the court said.
Trump v. Hawaii: Teachers' unions, colleges and universities, and
many higher education groups had weighed in on this case, in
which the court ruled 5-4 to uphold President Donald Trump's
restrictions on travel to the United States from five predominantly
Muslim countries. The advocacy groups had joined briefs arguing
that the policy represents discrimination based on religion and
hampers international study. But the court held that the entry ban
was a valid exercise of the president's broad authority to regulate
immigration and that the government set forth a sufficient nationalsecurity justification to survive the claim that the president's antiMuslim statements led the policy to violate the First Amendment's
prohibition against government establishment of religion.
U.S. Supreme Court and Schools: 2017-18
Justice Anthony M. Kennedy, a highly
influential moderate-conservative at
the center of the U.S. Supreme Court for
three decades who wrote major opinions
on race, religion, and other areas of public education, announced his retirement
on June 27, just hours after the court
closed out its 2017-18 term.
Kennedy wrote a letter to President
Donald Trump-and personally delivered it at the White House-indicating
that he will retire effective July 31.
Kennedy, who turns 82 on July 23,
was the author of the court's landmark
1992 opinion barring clergy-led prayers
at public school graduation ceremonies,
but only after a dramatic personal reversal that came to light years later. On
race, he voted with the court's conservatives early on to limit desegregation
remedies and against affirmative action
in college admissions. But later opinions
refused to completely rule out the consideration of race in schools and colleges.
Kennedy was President Ronald Reagan's third nominee-after the failed
nominations of Judges Robert Bork
and Douglas Ginsburg-for the seat
vacated in 1987 by Justice Lewis F.
Powell Jr., who had himself been at the
center of the court on many issues, including race in education. He joined the
high court mid-term, in February 1988.
Kennedy is a native of Sacramento,
Calif., who in 1963 married Mary
Davis, a teacher and librarian in the
Sacramento public schools. Kennedy attended C.K. McClatchy High School in
Sacramento, Stanford University, and
Harvard University law school.
Concerns About Coercion
Relatively early in his tenure, Kennedy joined an 8-1 majority in a 1990
decision holding that a public high
school, under the federal Equal Access
Act, had to permit a student Christian
club because it had allowed other noncurriculum-related student clubs.
Kennedy wrote a concurrence in
Board of Education of the Westside
Community Schools v. Mergens in
which he expressed concerns about
public schools coercing students to
participate in religious activity.
Two years later, those concerns were
critical as Kennedy joined the court's
liberals in striking down clergy-led
prayers at graduation as a violation
of the First Amendment's prohibition
against government establishment of
"There are heightened concerns with
protecting freedom of conscience from
subtle coercive pressure in the elementary and secondary public schools,"
Kennedy wrote for the majority in Lee
It was revealed 12 years later, when
the papers of the late Justice Harry A.
Blackmun were made public, that Kennedy had initially voted at the justices'