Education Week - September 29, 2021 - 6

Cases That Matter
For Schools in New
Supreme Court Term
By Mark Walsh
A wide-ranging array of cases of interest to
educators, including significant ones about religious-school
choice and school boards' authority
to censure their own " rogue " members, are
on the U.S. Supreme Court's docket as it opens
its new term Oct 4.
Meanwhile, the justices are taking a hard look
at a major affirmative action case involving
Harvard University's use of race in admissions
as they await input from the Biden administration
on whether to take up that case.
The justices are hanging up the phone after
a year-and-a-half of oral arguments over teleconference
necessitated by the COVID-19 pandemic.
They will return to their bench in person
for the first time since early March 2020. The
courtroom will remain closed to the public, and
only the justices, the lawyers arguing cases, essential
court personnel, and a handful of reporters
will be present.
But the court, at least for now, will maintain
an experiment in greater access that started
with the telephone arguments-live audio of
the proceedings, which means students, teachers,
and anyone else can listen to what is going
on in the courtroom.
Here are the cases that educators and students
may be most interested in following.
Religious-school choice
The school choice case from Maine is considered
one of the big cases of the term, along with
cases on abortion and gun rights.
In Carson v. Makin (Case No. 20-1088), the
justices will review the state of Maine's exclusion
of schools that provide religious instruction
from its program of paying private school
tuition for students in communities without
high schools.
The Maine case is a followup to the Supreme
Court's 2020 decision in Espinoza v. Montana
Department of Revenue, which held that a Montana
state constitutional provision barring aid
to religious schools discriminated against those
schools and families seeking to benefit from a
state tax credit for scholarship donations.
Writing for the 5-4 majority, Chief Justice
John G. Roberts Jr. said that Montana excluded
religious schools based on religious " status, "
and thus he distinguished the Montana law
from state programs that exclude a benefit over
the " use " of government aid for religious education.
Maine's
" tuitioning " program excludes " sectarian "
schools, or ones that promote a faith or
belief system, although some private schools
with nominal religious aspects such as daily
chapel have been approved for participation.
The exclusion was challenged by two sets of
parents who argue that their First Amendment
free exercise of religion rights are violated by
not being able to use the tuition aid at the religious
schools they desire for their children.
The U.S. Court of Appeals for the 1st Circuit,
in Boston, upheld the Maine program last year,
ruling that its distinctive character and limited
scope and the fact that its exclusion of certain
schools was based on would-be religious use
of the state funds distinguished the case from
Espinoza.
While only Maine and Vermont have this
quirky form of state " tuitioning " aid for towns
without public schools, legal observers say the
Supreme Court's decision could still be significant.
" This
is an important case for a broader range
of school choice-type programs because if Maine
were to succeed here in distinguishing this case
from the previous ones like Espinoza, that would
set a road map for other states to exclude religious
schools from choice programs, " said Thomas C.
Berg, a professor and religious liberty scholar at
the University of St. Thomas School of Law in
St. Paul, Minn., who joined a friend-of-the-court
brief in support of the parents.
The case is set for argument on Dec. 8.
School board censure
In Houston Community College System v. Wilson
(No. 20-804), the justices will consider
whether a school board's censure of one of
its members over his speech violates the First
Amendment. The issue may have greater salience
at a time when school board meetings
have become hotbeds of conflict and strife over
issues such as pandemic protocols and teaching
about race.
The Houston case stems from a community
college board's 2018 reprimand of David B.
Wilson, an elected member of the board who
had filed multiple lawsuits against the college
he was helping to supervise. The board accused
Wilson of leaking confidential information,
making an anti-LGBTQ rant, and orchestrating
robocalls to the constituents of some of his
fellow board members. Wilson's actions led
the community college's accrediting agency to
express concern that the board was violating a
core accreditation requirement by failing to act
as a collective entity.
The board's vote of public censure made
Wilson ineligible for board officer positions,
barred him from being reimbursed for travel,
and restricted his access to discretionary funds.
Wilson filed a First Amendment claim, and he
argues that the board unconstitutionally disciplined
him over speech he made outside of his
" legislative " role.
A federal district judge ruled for the district,
but a panel of the U.S. Court of Appeals for the
5th Circuit, in New Orleans, reversed and reinstated
Wilson's claim for damages last year.
The Supreme Court took up the appeal of the
board, which argues that censures by legislative
bodies have a long history and do not affect
the censured member's ability to continue to
speak out.
The community college board attracted the
support of the Texas Association of School
Boards and the National School Boards Association,
which jointly filed a friend-of-the-court
brief that highlights the need for boards to censure
" rogue " members who do things such as
disclose confidential information or interfere
with the superintendent.
" It is often the case that school boards are not
able to remove members without considerable
judicial process, leaving censures or reprimands
as the only tool at an elected board's disposal to
publicly address a rogue board member's continued
improper conduct, " the brief says.
The case is set for argument on Nov. 2.
6 | EDUCATION WEEK | September 29, 2021 | www.edweek.org
The scope of federal civil rights
laws in education
The court is taking up two cases involving
federal anti-discrimination laws that may have
implications for school districts.
In Cummings v. Premier Rehab Keller PLLC
(No. 20-219), the question is whether a party
suing a recipient of federal aid under laws such
as the Civil Rights Act of 1964, Title IX of the
Education Amendments of 1972, and the Rehabilitation
Act of 1973 may seek compensatory
damages for emotional distress.
The case before the court involves a person
with vision and hearing impairments who sued
a federally funded physical therapy provider
for alleged bias in a dispute over the provision
of a sign-language interpreter.
The plaintiff's suit included a claim for compensatory
damages for emotional distress.
Two lower courts ruled that such emotional
distress damages are not available under
Title VI of the Civil Rights Act, which bars discrimination
based on race and other factors in
federally funded programs, or under the Rehabilitation
Act.
A friend-of-the-court brief in support of the
plaintiff by the NAACP Legal Defense and
Educational Fund cites several cases in which
K-12 students have won damages for emotional
distress under Title VI. One case involved a
student who said he was retaliated against for
complaining about the exclusion of minority
students from a gifted and talented program
and was awarded $50,000 in emotional distress
damages.
" Courts have been particularly cognizant of
the emotional harm suffered by students who
experience racial discrimination in educational
settings, " the NAACP LDF brief says.
The Cummings case is set for argument on
Nov. 30.
Meanwhile, in CVS Pharmacy Inc. v. Doe
(No. 20-1374), the court will consider whether
Section 504 of the Rehabilitation Act, which
bars disability bias in federally funded schools
and other programs, provides for claims of socalled
disparate-impact discrimination. These
involve policies that have an unintentional
effect of harming a protected group, such as
racial minorities or students with disabilities.
The Rehabilitation Act is just one of several
federal laws covering disability discrimination
in public schools, and is in some ways broader
than the Individuals with Disabilities Education
Act, which addresses students identified
as in need of special education.
The CVS case, which involves HIV-positive
patients alleging disability discrimination in
the administration of their pharmacy benefits,
has attracted a friend-of-the-court brief signed
by the National School Boards Association.
" States and localities receive over $74 billion
per year in [federal] education funding, " says
the brief. " Any alleged violation of the Rehabilitation
Act places [such] critical sources of
funding at risk. "
The brief also argues that interpreting the
Rehabilitation Act to include disparate-impact
claims would give " enterprising plaintiffs' lawyers "
the opportunity to use a threat of loss of
federal funding as a bargaining chip against
school districts and other local governments
over disability practices or policies.
The CVS case will be argued on Dec. 7.
Education cases waiting
in the wings
The court has been looking over the major
affirmative action case involving Harvard University's
race-conscious admissions policies
since last winter, and its request for President
Joe Biden's administration to weigh in before
the justices decide whether to grant review was
widely considered as a way to push one major
issue down the road a bit.
The Biden administration has not yet filed
its views in Students for Fair Admissions v. President
and Fellows of Harvard College (No. 201199),
though there is not much doubt among
legal observers that it will argue that court rulings
below upholding Harvard's plan are correct.
Any major ruling on affirmative action
in higher education would likely affect raceconscious
policies in K-12 schools.
Many observers expect the justices to take
up the case regardless of what the Biden administration
recommends, though it is unclear
whether the case would be heard during the
term about to start or get pushed over to the
2022-23 term.
Meanwhile, the last term was a big one for
student speech, and this one could be big for
the speech rights of public school educators.
Joseph A. Kennedy, the Washington state high
school football coach who effectively lost his
job over his efforts to pray on the field after
games, has asked the Supreme Court to take
up his case.
When a preliminary appeal in Kennedy's
case reached the Supreme Court in 2019, the
court denied review but four justices signed
on to a statement that said a lower court's understanding
of the free speech rights of public
school teachers was " troubling and may justify
review in the future. " It takes only four votes to
grant review in a case.
The pending petition is Kennedy v. Bremerton
School District (No. 21-418).
J. Scott Applewhite/AP
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Education Week - September 29, 2021

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