May 24

The Supreme Court and Education: The Present, the Past, and the Future

This Newsbrief gives our sense of important and timely federal educational news within this process and protest context:

To advance educational excellence and equity, we must prioritize the needs of our most vulnerable students and communities. To accomplish this goal, we need clear processes for the development of policy, and we need to take into account opposition to current and proposed policies and practices — protestas a healthy part of those processes.  

The Issue

The Supreme Court of the United States (SCOTUS) will end its current term in about a month, and is expected to issue a number of landmark rulings before then. Among other cases, SCOTUS is expected to issue a widely anticipated decision in an education-related labor case called Janus v. AFSCME.

The Janus case involves the issue of whether public-sector labor unions can require non-union employees to pay “agency” or “fair share” fees to help to cover the union’s costs. The unions believe these costs are justified when the collective bargaining of a union benefits even non-union workers. Non-union workers believe that the collection of these fees, for actions they do not agree with, undermines their freedom of free speech.

We will provide additional details on the Janus case once it is decided. In the meantime, the Court has already decided an unrelated case with potential ramifications for the educational sector. The decision in this case, Epic Systems Corp. v. Lewis, pertains to cases where private-sector companies require workers to sign employment agreements that contain “arbitration clauses.” SCOTUS ruled earlier this week that when employees have signed such agreements, they may not band together to seek justice for their shared employment concerns, such as those pertaining to wage problems and/or discrimination, and must each go it alone in arbitration.

The looming end of the current SCOTUS term also provides the opportunity to reflect on the impact of two famous unanimous SCOTUS decisions pertaining to civil rights and education: Endrew F. and Brown v. Board of Education.

One-Year Anniversary of Endrew F.

Last year, in a case called Endrew F. v. Douglas County School District, SCOTUS unanimously ruled in favor of a student who was being underserved by his school district. The ruling was 8-0 because at the time there was a vacant seat on the Court. The basic decision in Endrew F. was that schools have to offer students with disabilities an education that enables them to “make progress appropriate in light of the child’s circumstances,” and that offering a “merely more than de minimis” education for these students is insufficient under the requirements of the U.S. Constitution. Since “de minimis” means “so small or insignificant as to be negligible,” this unanimous decision was seen as holding promise for the significant expansion of students’ special education rights.

64th Anniversary of Brown v. Board of Education

Decided in May 1954, the unanimous ruling in this case was that the de jure — meaning, “by law” — racial segregation of the public school system violated the Equal Protection clause of the 14th Amendment of the U.S. Constitution. Brown was the culmination of five separate class-action lawsuits that the National Association for the Advancement of Colored People (NAACP) brought to challenge racial segregation in schools in Kansas, South Carolina, Delaware, Virginia and Washington, D.C.

The decision in Brown was met with a mix of celebration and resistance, and was followed by a somewhat lesser-known case, Brown II, that said that integration should happen with “all deliberate speed,” and that lower courts would be allowed to consider a variety of administrative challenges related to the integration of schools when evaluating the plans of states and districts and schools to comply with Brown.

While supporters and opponents of the Brown decision both found much to dislike in the “all deliberate speed” language, many understood the Court’s failure in Brown II to articulate a firm deadline for full compliance with Brown as opening the door to further resistance to integration.

The Process

What Has Happened in the Courts Since Endrew F.?

The SCOTUS ruling in Endrew F. sent the case back to a lower court, and Endrew F. and his parents are currently in the process of finalizing an agreement with the Douglas County school district. Since the SCOTUS decision, 49 other cases around the country have been decided in a way that used Endrew F. as a basis for the decision. School districts were more likely to prevail than students and parents in these kinds of cases prior to Endrew F., and the trend has continued. Thirty-eight of these 49 cases were rulings for the district, with judges in several cases stating that the districts were already in compliance with the Endrew F. standard. Only two of the 49 cases used EndrewF. as the basis for overturning an earlier decision and ruling newly for the student/parent(s).

This may not, however, be a full accounting of the impact of Endrew F., since there is ample financial incentive for school districts to take cases to court only when they are certain of victory. In most cases, districts are able to reach agreements with parents without the need to spend money on legal representation, and without the risk of having to pay for others’ legal fees and other related costs if the district loses in court. That parents can point to the standard articulated by SCOTUS in Endrew F. is already likely informing many conversations between parents and schools and districts regarding the education of students requiring special education services.

What is the Legacy of Brown?

As perhaps the most significant legal decision in the history of our country, Brown has touched, and continues to influence, many aspects of our civil society. The unanimous decision in Brown is still cause for celebration, even amid recent and credible reports from government sources that de facto — meaning, “in practice, if not in law” — racial isolation is growing in our schools and reports from the private sector that segregation in schools is worsening.

The fight to desegregate our nation’s schools is ongoing, with more than 200 school desegregation cases currently in the courts. The Office for Civil Rights (OCR) within the United States Department of Education (US ED) and the Educational Opportunities Section within the Civil Rights Division of the United States Department of Justice (DOJ) are still actively investigating and resolving cases of racial discrimination in our nation’s schools. It bears remembering that such remedies in law happened neither by accident nor by charity: they are among the progeny of Brown.

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