Education Week - February 24, 2016 - 23

JUSTICE SCALIA IN HIS OWN WORDS
The late U.S. Supreme Court Associate Justice Antonin Scalia wielded a sharp pen-and, at times, a sharp
tongue-in making the case for his conservative and originalist view of constitutional law and in dissenting from
rulings that deviated from what he believed was the proper outcome. A number of those pointed remarks came
in connection to education cases and in speeches that touched on K-12 issues. Also of note are Scalia's votes in
cases involving a range of education issues.

Military Career Testing
May Get an ESSA Boost
CONTINUED FROM PAGE 17

CHURCH AND STATE
In Lee v. Weisman, a 5-4 decision in 1992 that ruled clergy-led prayers at a public middle school graduation ceremony violated the
First Amendment's prohibition against government establishment of religion, Scalia wrote the dissent.

"In holding that the establishment clause prohibits invocations and benedictions at public school graduation
ceremonies, the court-with nary a mention that it is doing so-lays waste a tradition that is as old as public
school graduation ceremonies themselves, and that is a component of an even more longstanding American
tradition of nonsectarian prayer to God at public celebrations generally."
In a 1993 case, Lamb's Chapel v. Center Moriches Union Free School District, the court held that the school district violated the rights
of a religious group by denying it after-hours use of school classrooms to show a religious-film series to members of the community.
Scalia concurred in the outcome, but criticized the majority's reliance on a much-maligned test for analyzing whether government action
violated the establishment clause, the so-called Lemon test from the 1971 decision Lemon v. Kurtzman.

"As to the court's invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly
sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our establishment
clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union
Free School District."
Also of note: Scalia joined the dissent when the court held in a 2000 decision, Santa Fe Independent School District v. Doe, that studentled, student-initiated prayers at a public high school's football games violated the establishment clause. And in the landmark 2002
case of Zelman v. Simmons-Harris, Scalia joined a majority that upheld Ohio's program of private school vouchers in Cleveland that
permitted voucher recipients to choose religious schools.

DISCRIMINATION
Scalia believed affirmative action violated the equal-protection
clause, writing a short dissent in the 2003 decision in Grutter v.
Bollinger, which upheld the consideration of race in admissions
to the University of Michigan Law School.

[The law school's] "mystical 'critical mass'
justification for its discrimination by race challenges
even the most gullible mind. The admissions statistics
show it to be a sham to cover a scheme of racially
proportionate admissions."
In December, when the court heard arguments in the Fisher
v. University of Texas at Austin case involving race-based
admissions, Scalia drew criticism when he tried to enunciate
the "mismatch theory" about racial preferences in admissions,
in which some scholars have suggested that certain minority
group members fare poorly when they are admitted to selective
colleges under affirmative action programs.

"There are those who contend that it does not benefit
African-Americans to-to get them into the University
of Texas where they do not do well, as opposed to
having them go to a less-advanced school-a slowertrack school where they do well. ... I don't think it
stands to reason that it's a good thing for the University
of Texas to admit as many blacks as possible."

In 1996, Scalia was the lone voice in dissent when the court, in
United States v. Virginia, voted 7-1 to strike down the exclusion
of women by the state-run Virginia Military Institute. (Justice
Clarence Thomas did not participate in the case.)

"Today the court shuts down an institution that has
served the people of the Commonwealth of Virginia
with pride and distinction for over a century and a
half. ... As to facts: It explicitly rejects the finding that
there exist 'gender-based developmental differences'
supporting Virginia's restriction of the 'adversative'
method to only a men's institution, and the finding
that the all-male composition of the Virginia Military
Institute is essential to that institution's character."
On gay rights, Scalia was the court's most outspoken critic of a
movement which he nevertheless seemed to regard as inevitable.
Writing in dissent in Lawrence v. Texas, the 2003 decision in
which the court struck down state homosexual sodomy laws,
Scalia wrote that the court had taken sides "in the culture war."

"Many Americans do not want persons who openly
engage in homosexual conduct as partners in
their business, as scoutmasters for their children,
as teachers in their children's schools, or as
boarders in their home. They view this as protecting
themselves and their families from a lifestyle that
they believe to be immoral and destructive."

Also of note: Scalia voted for greatly reducing the circumstances under which districts could voluntarily take race into
account, in the landmark 2007 decision in Parents Involved in Community Schools v. Seattle School District.

STUDENT AND PARENTAL RIGHTS
In 1995, Scalia wrote the opinion for the court in Vernonia School District v. Acton, which upheld against a Fourth Amendment
challenge a school district's policy of subjecting all student-athletes to random drug testing.

"It seems to us self-evident that a drug problem largely fueled by the 'role model' effect of athletes' drug use,
and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs."
Scalia took a more expansive view of children's rights in Brown v. Entertainment Merchants Association, in which he wrote the
opinion for the court striking down a California law that restricted the sale or rental of violent video games to minors.

"California's effort to regulate violent video games is the latest episode in a long series of failed attempts
to censor violent entertainment for minors. ... California's argument would fare better if there were a
longstanding tradition in this country of specially restricting children's access to depictions of violence,
but there is none. Certainly the books we give children to read-or read to them when they are younger-
contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed."
Scalia last fall told an audience at Georgetown University Law Center that there is no U.S. constitutional right of parents to
direct the education and upbringing of their children.

"The notion that everything you care a lot about has to be in the Constitution is a very dangerous notion.
Because it begins with stuff we all agree upon. 'Oh, sure, we ought to be able to educate our children the
way we want.' ... Nobody could disagree with that. But then, once the court is making these decisions, it is
going to make decisions a lot of people disagree with."
Also of note: Scalia voted with the court's majority upholding the right of school administrators to exert control over school
newspapers, in the 1988 decision in Hazelwood School District v. Kuhlmeier; and to allow them to punish a student for
displaying a banner containing a pro-drug message in the 2007 ruling in Morse v. Frederick.

about tests being used for purposes
other than for which they were designed. The Defense Department's
Salyer said the ASVAB was not intended to be used as a measure of
career readiness, and she encourages

INSIDE ESSA

The New Federal K-12 Law

states to do the research necessary if
it is being used as an exit exam.
Pat Elder, the executive director
of the National Coalition to Protect
Student Privacy, said the assessment's primary purpose is to provide
leads for recruiters, and that should
be clear in the outreach. "They will do
anything they can to get into schools
and spin it any way that they want,"
said Elder of the military marketing
of the exam as career exploration.

'Always Voluntary'
The coalition, which lists the administration of the test by state on its
website indicates the test is required
in about 1,000 high schools. Elder
maintains parents aren't always
aware of the test, choices to opt out, or
use of the results.
In schools where the test is given
schoolwide, Salyer said students
may be required to sit for the test,
but they are not forced to complete
it. "It is always voluntary," she said.

STATE of the STATES

Parents or students can opt out of
the exam at any time, and schools
can chose whether to have test results shared with recruiters.
Of the 650,000 tests last year, results from about 400,000 were provided to recruiters as leads, according to Salyer. Hawaii, Maryland,
New Hampshire, and 2,000 districts bar public high schools from
automatically sending student-assessment scores to recruiters.
Even if changes in a state's overall testing regime do free up additional time in the school day, there's
no guarantee it will open a door for
the Defense Department assessment.

Competing for Time
Chris Reeves, a counselor at Beechwood High School in Fort Mitchell,
Ky., said his school has not offered
the ASVAB to students for several
years, despite a "hard push" annually
from area military personnel.
"I feel really bad saying no," said
Reeves. "I've always felt it was a
good test. It's one of those things.
As a school, you are so busy all year,
and class time is highly protected.
We are looking for any way to gain
more class time."
If testing time decreases under
ESSA's newfound flexibility, Reeves
said he anticipates the school will
just be happy to have more time for
instruction.

www.edweek.org/go/sos

Here are summaries of recent annual addresses
by governors around the country.

LOUISIANA
GOV. JOHN BEL EDWARDS (D) * FEB. 12

With Louisiana facing a $940 million deficit this fiscal
year and a shortfall of nearly $2 billion next year, the
freshman governor used his first State of the State speech
to focus on steps to put the state's finances back on track
and outline the consequences of not doing so.
While Edwards did not address K-12 education, he said
last month that without long-term solutions to the deficit,
public schools and higher education faced severe cuts.
Without legislative action, higher education could see
$42 million in cuts, he said in his speech to state
lawmakers. The Taylor Opportunity Program for Students,
or TOPS, a scholarship program for residents who attend
select Louisiana colleges and technical schools, could lose
$28 million, meaning that students already in the program
are in danger of losing their scholarships, and fewer high
school students would receive scholarships going forward.
The Pennington Biomedical Research Center could close
April 1, Edwards said, and Louisiana State University's
main campus in Baton Rouge would run out money for
payroll after April 30. Community and technical colleges
would also be affected, he said. The future of college football
also hangs in the balance.
Edwards proposed a combination of cuts and tax
increases to deal with the shortfall, including adding a
one-penny sales tax to the state's 4 percent sales tax on a
temporary basis.
-

DENISA R. SUPERVILLE

Read online compilation & links to full speeches.
www.edweek.org/go/sos

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Education Week - February 24, 2016

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