Education Week - February 24, 2016 - 17

GOVERNMENT & POLITICS

Scalia's Death
Muddies Fate
Of Key Cases
Union-fees ruling in limbo
The unexpected death of U.S. Supreme Court
Associate Justice Antonin Scalia eventually could
lead to a shift in how the court handles cases on
race in education, church and state separation, and
the authority of school administrators.
But in the short term, the 79-year-old justice's
passing throws several of the current term's cases
of interest to educators into uncertainty.
Chief among them is Friedrichs v. California
Teachers Association (Case No. 14-915), a case
about the constitutionality of the agency fees that
public-employee unions charge those who refuse to
join for their share of collective bargaining costs.
Other pending cases in which the outcome could
be affected by the justice's death involve affirmative action in higher education, the scope of the
principle of "one person, one vote" in state and local
elections, and President Barack Obama's deferredaction immigration policy, which is being watched
by educators.

'All the Marbles'
Justice Scalia was discovered dead on Feb. 13 in
his room at a ranch resort in West Texas, and authorities have said he died of natural causes.
On the major education cases of his era, Scalia
consistently voted against the use of race in higher
education and K-12 schools. He backed a low wall
of separation between church and state in cases
involving prayer in public schools and government

J. Scott Applewhite/AP

By Mark Walsh

aid to religious schools. And he generally sided
with school administrators over students and their
rights.
Obama says he will nominate a successor and
that he expects the U.S. Senate to fulfill its constitutional duty to advise and consent. With the Senate under Republican control, however, GOP leaders as well as the candidates seeking the party's
presidential nomination have called for allowing
the next president to make the choice for a vacancy
that could tip the balance of the court.
"With Justice Scalia's vacancy, the court could
shift decidedly to the left," Carrie Severino, the
chief counsel and policy director of the Judicial Crisis Network, a Washington group that supports the
appointment of conservatives, said in a call with

reporters last week.
"This vacancy is incredibly important," said
Severino, a former law clerk to Justice Clarence
Thomas. "This is for all the marbles."

U.S. Supreme Court
Justice Antonin Scalia's
courtroom chair is draped
in black to mark his
death. The vacancy has
set off a political battle,
An Eight-Member Court
and left the outcome of
With the question of a successor to Justice Sca- several cases in the
lia dangling in the political winds, there is much balance.
speculation about what will happen to some of this
term's key cases.
SCALIA IN HIS OWN WORDS:
Last week, the group representing non-union For a sampling of Justice
California teachers in the Friedrichs case, who are Scalia's views and votes in
challenging a nearly 40-year-old high court prec- education cases, SEE PAGE 23
edent authorizing public-union agency fees, called
PAGE 22 >

Military Eyes Wider Access for Career-Aptitude Test Under ESSA
More state flexibility
could free up time
By Caralee J. Adams
As the state testing landscape
changes in the wake of the Every
Student Succeeds Act, the U.S. military hopes there may be an opening
to expand its optional aptitude exam
and career-exploration program in
high schools.

INSIDE ESSA

The New Federal K-12 Law

The Armed Services Vocational
Aptitude Battery, known in military
and counselor circles as ASVAB, was
administered in 48 percent of high
schools nationwide last year, with
about 650,000 students taking the
exam, according to Shannon Salyer,
the national program manager for the
ASVAB Career Exploration Program,
which is under the U.S. Department
of Defense.
Participation fluctuates with unemployment, with more students

typically taking the ASVAB when
the jobless rate is high. But the military test was crowded out in some
schools after the No Child Left Behind Act ushered in more standardized testing, although the number
of high schools offering it increased
in the past five years, Salyer said.
"One of the biggest problems we
have when we go into schools is they
say, 'We love this program' or 'We want
to do this program ... but because we
have this state-mandated testing, all
our testing days are taken,' " she said.
"With the rollback of some of that
pressure on the schools, I think we'll
have some return schools and maybe
some new schools that really understand the benefits of the program."
Educators are combing the accountability requirements with the
new version of the main federal K-12
law, which gives states considerable
new flexibility over on-the-ground
education decisions, including the
details of how they go about meeting
its testing requirements.
Recruiters hope if that flexibility
leads to less time spent on required
tests, that could free up space for
ASVAB.
Some decisions to participate in

these Defense Department tests are
made at the state level, but it is generally left up to individual schools.
The tests are a recruiting tool
masked as career exploration, some
critics contend, and the military should
be more transparent about their purpose. The conversation about the program comes at a time when military
leaders-and some GOP presidential
candidates-have suggested women
should be required to register for the
draft alongside men.

Updates on the Way
The military, which has given a
version of the vocational assessment
since 1968, with the career exploration added in 1992, is in the process of rolling out a new computeradapted version that will reduce
the test from three hours to 1½. The
change, along with a modernized
website and the potential for less
time on standardized testing, creates
a "perfect storm" that Salyer said she
hopes will open doors in schools.
The issue isn't on the radar of many
educators yet, said David Hawkins,
the director of policy for the National
Association for College Admission

Counseling, in Arlington, Va. However,
U.S. Army officials are reaching out
to the association, he noted, looking
for more ways to connect with school
counselors and potential recruits.
The military has long had legal access to high school directories. Both
the NCLB law and Section 8025 of
the new law, known as ESSA, say
schools shall provide military recruiters access to the name, address, and
telephone listing of each high school
student, male or female, unless the
parent submits a written request to
the school that the child's information not be released.
Military training also has had a
presence in many high schools since
1916 with the establishment of the
Junior Reserve Officer Training Corps,
or JROTC, programs, which now have
3,750 units and 552,000 cadets.
While college is a good option for
many students, it's not for everyone,
said Salyer. The ASVAB career-exploration program is free and more
than an aptitude test, she said,
including an inventory of the student's interest, detailed training requirements, and a workshop to help
students interpret their test results.
"We want high school students to see

every pathway they can take to their
career-whether college or vo-tech
school or the military," said Salyer.
In Missouri, the assessment is
used as one of many measures of
college and career readiness in the
state's accountability system. Last
year, 416 of Missouri's 520 school
districts participated in ASVAB-
most administering the test during
the day to a junior class-for a total
of about 31,000 assessments. State
education officials say they don't yet
know what impact the new education law will have on that picture.

Multiple Uses
In some states, such as New Jersey, the test is one of the assessments
students can use to meet the state's
high school graduation requirements
if they attain a certain score on the
test. Offering the military exam during the school day in New Jersey is a
local decision, and the state does not
track the volume year to year, according to Michael Yaple, a spokesman for
the state education department.
Hawkins of the college-admission
counselors' group expressed concern
PAGE 23 >

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Education Week - February 24, 2016

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