Education Week - May 18, 2016 - 23

Heady 1978-79 term
for Merrick Garland
By Mark Walsh
Merrick B. Garland, now a nominee
for the U.S. Supreme Court, was in
the first few weeks of his prestigious
year as a law clerk to Justice William
J. Brennan Jr. in August 1978 when he
found himself immersed-in a humble
way-in a fast-developing drama involving a major education issue of that
era: school desegregation.
The 1978-79 term, during which
Garland served, would end up with
several major rulings in education, not
only in desegregation, but in the areas
of the application of federal labor law
to private religious schools, free-speech
rights for public school teachers, and
state laws barring permanent teacher
certification for non-U.S. citizens.
But anyone looking for clues about
what Garland-President Barack
Obama's pick to succeed the late Antonin Scalia on the high court-was
thinking during that year, or what
advice he gave Brennan, will find the
record frustratingly bare. While some
justices preserve their law clerks'
memos for posterity, Brennan mostly
didn't.
"There's almost nothing that would
have clerk fingerprints on it" in the
justice's papers, said Stephen Wermiel,
a law professor at American University in Washington, and the co-author
of an exhaustive biography of Brennan, a liberal lion who served on the
Supreme Court from 1956 until 1990.
Still, just looking at the cases that a
law clerk encounters during his or her
year serving a justice provides some
sense of perspective.
"A Supreme Court clerkship is a remarkable training ground, especially
for someone who goes on to become a
judge," said Todd C. Peppers, a visiting
professor of law at Washington and
Lee University in Lexington, Va., who
has written widely about the relationships between Supreme Court justices
and their clerks. "I don't see how you
can work for someone like Bill Brennan and not be touched by him."

Desegregation Battle
While most clerk memos have been
removed from Brennan's papers at
the Library of Congress, a close look
by Education Week found a few of Garland's "fingerprints."
In August 1978, the formal start of
the term was more than six weeks
away, and most justices were still at
their summer homes or otherwise on
vacation.
The Columbus, Ohio, school system
sought emergency relief from lower
federal court rulings that the district
had engaged in systemwide violations
of the equal-protection clause of the
14th Amendment. The district was
under an order to begin a desegregation plan by early that September that
called for the reassignment of 42,000
of its 83,000 students, including the
busing of 37,000 students.
The school district sought a stay,
first from Justice Potter Stewart, who
denied the motion, and next from Wil-

liam H. Rehnquist, at that time an
associate justice, who was more sympathetic to the district's arguments.
In 1977, Rehnquist had written the
opinion for the court that had raised
doubts about a systemwide remedial
plan for the Dayton, Ohio, school system and ordered lower courts to reexamine it.
In an Aug. 11, 1978, "in-chamber"
opinion granting the Columbus district's stay request, Rehnquist said he
did not believe the lower courts had
appropriately applied the Supreme
Court's decision in Dayton Board of
Education v. Brinkman (also known
as Dayton I). Rehnquist suggested that
because the high court was in recess,
and the start of the school year was
looming, it would be "impracticable" to
try to circulate the relevant papers to
all members of the court.
"Given the severe burdens that the
school desegregation order will place
on the Columbus school system and
the Columbus community in general,
and the likelihood that four justices of
this court will vote to grant certiorari
in this case, I have decided to grant the
stay," Rehnquist wrote in his stay opinion in Columbus Board of Education
v. Penick.

Raising the Stakes
The stay quickly elevated the stakes
in the case. The desegregation plaintiffs, joined by President Jimmy Carter's administration, asked the high
court to convene a special term before
the school year to consider overturning the stay. Such a special term was
something the court had only rarely
done, such as during the 1957 Little
Rock, Ark., school desegregation crisis.
The justices soon started weighing
in on the request for a special term.
Justice Byron R. White dictated a
memo from Denver, expressing his opposition.
Chief Justice Warren E. Burger returned from a vacation on Aug. 16 and
was scheduled to leave for Western
Europe in a matter of days. In a memo
circulated to his colleagues, he worried
about "a continuing 'ping-pong game' "
involving the multiple-legal maneuvers in the case.
Brennan was still at his summer
home on Nantucket Island in Massachusetts. He was famous for making a
ferry reservation around July 1 each
year for his family and his car, which
put pressure on the court to finish the
term by that date each year.
"I first learned this noon of the filing of the application supported by
the Solicitor General to convene a
special session of the court to review
Bill Rehnquist's stay," Brennan wrote
to his colleagues on Aug. 22. "I also
learned from my chambers that the
Chief, Byron [White], Harry [A. Blackmun] and Lewis [F. Powell Jr.] have
circulated memos that each would
deny the request. There has been no
official word from Potter [Stewart],
Thurgood [Marshall], or John [Paul
Stevens]."
"Since there are five votes to deny, I
see no purpose in my examining the
papers and I will simply pass," Brennan wrote. "I have authorized my
clerk, Merrick Garland, to initial this
memorandum for me."

Attached to the memo,
in Brennan's papers at the
Library of Congress, is a
small note typewritten
by Garland: "Mr. Justice:
Attached is a copy of the
memorandum which was
circulated this afternoon."
He signed it "Merrick" in
his own handwriting.
Charles J. Cooper, a
prominent Washington lawyer who was
a clerk to Rehnquist
that term, said the
August drama over the
Columbus stay "was a
big, big ticket, especially in our chambers."
Though he didn't
work on the matter,
"you couldn't be a law
clerk and not know what was
going on with it," Cooper said.
On Aug. 25, the chief justice
entered an order denying the
request for the special term.
Rehnquist's stay remained in
place and the Columbus district
did not have to begin its desegregation plan that school year. But
the high court did take up full review of the Columbus case during
the term.

Memo Trail
Wermiel said that Brennan relied on
his law clerks in a different way than
most of his colleagues. In most chambers, then as now, the clerks read appeals in the cases seeking high court
review and make recommendations
on whether to grant or deny. They
also prepare "bench memos" for their
bosses before argument in a granted
case, outlining the major issues.
Brennan, by contrast, read most appeals himself, Wermiel said. And during most of his 34 years on the bench,
Brennan did not assign his clerks to
write bench memos, either. But clerks
did play a major role in drafting opinions for Brennan.
The justice's papers reveal such a
role for Garland in one of the education cases of the term.
In National Labor Relations Board
v. Catholic Bishop of Chicago, the
court weighed whether church schools
that employed both religious and lay
teachers came under the authority of
the National Labor Relations Act. And
if they did, the case asked whether the
NLRB's exercise of that jurisdiction
would infringe the First Amendment
religious rights of such schools.
The court eventually ruled 5-4 that
the federal labor law did not give the
NLRB jurisdiction over such church
schools. Brennan, as the most senior
justice in the minority, assigned the
dissent to himself. Garland evidently
ended up with the writing assignment.
In a memo to his boss-one apparently left in Brennan's files by mistake-Garland outlined two options
for the dissent.
One "challenges the [majority's] interpretation of the [NLRA], goes on
to decide the constitutional issue precisely before the court, and then explains which constitutional problems
can and should be left for another day,"
Garland wrote.

Susan Walsh/AP

Combing High-Court Nominee's Clerkship for K-12 Hints

The second option would not
decide the constitutional question.
Garland said he favored the latter approach.
"First, I'm not sure that the constitutional problem is really as easy as
I make it sound in Option I," Garland
wrote. If the NLRB exercised labor authority over religious schools, he wrote,
"there may still be a considerable chill
on the religious authorities' exercise of
their religious beliefs. They may fear
to fire a heretic, or to exclude teachers from decisions of religious policy,
simply because they fear extensive
litigation and insensitivity on the part
of the [labor] board."
Garland also weighed two competing approaches the court takes in
some cases, one to "decide only the
case now before it" and another when
there "will be many occasions upon
which we will want the court to decide
more than just the issue before it."
In the end, Brennan went with a
version of Garland's Option II.
"Under my view that the NLRA includes within its coverage lay teachers
employed by church-operated schools,
the constitutional questions presented
would have to be reached," Brennan
wrote in his published dissent, deftly
adding: "I do not now do so only because the [majority] does not."

'A Heady Experience'
Garland's term came just after the
one during which the Supreme Court
decided the landmark case Regents of
the University of California v. Bakke,
which upheld qualified uses of race in
college admissions.
During Garland's service, one of
Brennan's most-significant majority
opinions of the term came in United
Steelworkers of America v. Weber,
which upheld a race-conscious affirmative action plan in the workplace.
The decision would have an impact for
school district hiring as well.

Merrick B. Garland, President
Barack Obama's nominee to the U.S.
Supreme Court, clerked for Justice
William J. Brennan Jr. during the
1978-79 term, when he was
involved in cases about
desegregation and religious schools.

Other education cases taken up by
the high court during Garland's term
included Givhan v. Western Line Consolidated School District, giving First
Amendment protection to a teacher
who made private complaints to her
supervisor about how her school was
being run.
And in Ambach v. Norwick, the court
upheld a New York state law that
barred permanent teacher certification
for any non-citizen unless that teacher
showed an intention to seek U.S. citizenship.
"It was not a blockbuster term, but
of course, there were more than 150
cases compared to the 70 or so [per
term] these days," said Carter G.
Phillips, a law clerk to Chief Justice
Burger that term and now a top advocate before the high court.
Cooper, the Rehnquist clerk, disagreed slightly, saying he recalls huge
demonstrations outside the court for
the United Steelworkers affirmativeaction case.
"Whether a term is filled with controversial cases, or is relatively mundane, serving as a clerk is a very heady
experience," Cooper said, adding that
he built a friendship with Garland
during their term that remains strong.
On July 2, 1979, the court convened
to issue the final nine opinions of the
term, including its decision on the
merits in the Columbus desegregation
case. The court ruled 6-3 to uphold a
systemwide desegregation remedy for
Columbus. (In a separate decision, it
upheld Dayton's systemwide plan by
a 5-4 vote.)
Rehnquist wrote dissents in both.
Brennan supplied a vote for the majorities in both cases, but didn't write
any opinions.
Brennan was soon on the ferry for
another summer on Nantucket Island. And Merrick Garland's clerkship was over.

EDUCATION WEEK | May 18, 2016 | www.edweek.org | 23


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Education Week - May 18, 2016

Table of Contents for the Digital Edition of Education Week - May 18, 2016

Education Week - May 18, 2016
Chicago Fiscal Crisis Reaches Boiling Point
Feds to Schools: Don’t Restrict Transgender Access
Interdistrict Enrollment Appealing, Tricky
Top Math Competitions Struggle To Diversify Their Talent Pool
Study Cites Types of Schools With Low Graduation Rates
‘Complex Web’ of Obstacles Hinders Success for Boys of Color
New Orleans Schools Poised For Return to Local Board Oversight
DIGITAL DIRECTIONS: 1-to-1 Laptop Initiatives Boost Student Scores, Study Finds
Many GOP K-12 Policy Hands Cool To Idea of Trump Post
States Eye Data Dashboards as Path to Nuanced Accountability
Combing High-Court Nominee’s Clerkship for K-12 Hints
News in Brief
Report Roundup
Blogs of the Week
Blogs of the Week
Letters
TopSchoolJobs Recruitment Marketplace
BLAIR E. LYBBERT: A Radical Solution to the Dropout Problem
CHARLES J. OGLETREE JR. & KIMBERLY JENKINS ROBINSON: Neglecting the Broken Foundation Of K-12 Funding
DAVID SANTULLI: The Malia Effect
JOHN GOMPERTS: Making Sense Of High School Graduation Rates
Education Week - May 18, 2016 - Top Math Competitions Struggle To Diversify Their Talent Pool
Education Week - May 18, 2016 - 2
Education Week - May 18, 2016 - 3
Education Week - May 18, 2016 - News in Brief
Education Week - May 18, 2016 - Report Roundup
Education Week - May 18, 2016 - Study Cites Types of Schools With Low Graduation Rates
Education Week - May 18, 2016 - 7
Education Week - May 18, 2016 - 8
Education Week - May 18, 2016 - ‘Complex Web’ of Obstacles Hinders Success for Boys of Color
Education Week - May 18, 2016 - New Orleans Schools Poised For Return to Local Board Oversight
Education Week - May 18, 2016 - DIGITAL DIRECTIONS: 1-to-1 Laptop Initiatives Boost Student Scores, Study Finds
Education Week - May 18, 2016 - Blogs of the Week
Education Week - May 18, 2016 - 13
Education Week - May 18, 2016 - 14
Education Week - May 18, 2016 - 15
Education Week - May 18, 2016 - 16
Education Week - May 18, 2016 - 17
Education Week - May 18, 2016 - 18
Education Week - May 18, 2016 - 19
Education Week - May 18, 2016 - States Eye Data Dashboards as Path to Nuanced Accountability
Education Week - May 18, 2016 - 21
Education Week - May 18, 2016 - Blogs of the Week
Education Week - May 18, 2016 - Combing High-Court Nominee’s Clerkship for K-12 Hints
Education Week - May 18, 2016 - 24
Education Week - May 18, 2016 - BLAIR E. LYBBERT: A Radical Solution to the Dropout Problem
Education Week - May 18, 2016 - DAVID SANTULLI: The Malia Effect
Education Week - May 18, 2016 - Letters
Education Week - May 18, 2016 - 28
Education Week - May 18, 2016 - TopSchoolJobs Recruitment Marketplace
Education Week - May 18, 2016 - 30
Education Week - May 18, 2016 - 31
Education Week - May 18, 2016 - JOHN GOMPERTS: Making Sense Of High School Graduation Rates
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Education Week - May 18, 2016 - CT2
Education Week - May 18, 2016 - CT3
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