by Chris Gilbert, Thompson & Horton LLP

So it’s not really a First Amendment post, but I’ve been asked to speak at a couple ABOTA Teacher Law School conferences this summer about the top Supreme Court cases impacting education. It was fun last week during Spring Break trying to decide what cases I think are the most important, so I thought I would share my thoughts.  Different school law attorneys will probably have different thoughts on what cases are the most impactful (I tried to include a special education case, but to me the law itself (IDEA) is more impactful than any of the decisions interpreting it), but here is my list.

So in no particular order:

Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 74 S. Ct. 686 (1954)

• Plaintiffs in Topeka, Kansas challenged legally-mandated race-segregated schools.
• Overturned Plessy v. Ferguson, 163 U.S. 537 (1896), which had legalized school segregation by adopting the “separate but equal” standard.
• “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”  Id. at 495, 74 S. Ct. at 692.
• Why Is This Case Important?  While it is unfortunate how inconsistently this decision was actually complied with, it marked the official end of school segregation, and its legal (and symbolic) significance cannot be overstated.

Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261 (1962)

• Challenge to a New York law that allowed public schools to start the day with a short, nondenominational prayer.
• The Court found that school-sponsored “prayer” in general is an “inherently religious” activity, and therefore not constitutionally permissible.
• The Court felt the prayer violated the first prong of the Lemon test: i.e. it has no secular purpose.
• The Court also noted that the fact that student or adult-led prayer may be voluntary, or may be both nonsectarian and nonproselytizing, does not protect it from violating the Establishment Clause.
• Why Is This Case Important?  Along with School District of Abington Township, Penn. v. Schempp, 374 U.S. 203 (1963) (Bible verses and the Lord’s Prayer), Engel marked the beginning of a much stronger effort by the Court to enforce a separation of church and state in the public schools.

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278 (1973)

• The Court rejected a claim by a Texas school district that the Equal Protection Clause mandated equal funding among school districts, ruling that there is no fundamental right to education guaranteed by the Constitution.
• The plaintiffs argued that education is vitally important to society, but the Court held that that was not the legal issue: “the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause.” Id. at 30, 93 S. Ct. at 1295.
• Followed by Papasan v. Allain, 478 U.S. 265 (1986), which held that while no general right to education exists, the question of “whether a minimally adequate education is a fundamental right” is still an open question.
• Why Is This Case Important?  Because of Rodriguez, many education issues, including school funding, have remained in the state courts, as opposed to being litigated in the federal courts, which many would argue is where education-related issues should be resolved.  Has largely prevented “education malpractice” lawsuits from being brought by individual students, which the recognition of a constitutional right to an education would encourage.

Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982)

• Challenge to a Texas state statute that denied state funding for children who had not been legally admitted to the United States, and to a local school district’s practice of charging such children tuition to make up for the lack of state funding.
• The Court found that any state restriction imposed on the rights afforded to children based on their immigration status must be examined under a rational basis standard to determine whether it furthers a substantial government interest.
• The Court ruled that Texas could not prove that severely disadvantaging the children of illegal aliens by denying them the right to an education was needed to serve a “compelling state interest,” and the law was therefore unconstitutional.
• Why Is This Case Important? Essentially gave constitutional rights to illegal immigrants and their children, both in the public schools and elsewhere.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S. Ct. 733 (1969)

• The Supreme Court’s seminal student free speech case involving students who wore black armbands to protest the Vietnam War.
• Recognized that students maintain at least some free speech rights while at school, holding that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Id. at 506, 89 S. Ct. at 736.
• Court did note that there would be situations in which a school could constitutionally regulate the speech of its students: where the speech would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” – what has come to be known as the Tinker “material and substantial disruption” test.
• Probably the height of the pro-student rights cases (followed by Bethel Sch. Dist. No. 403 v. Fraser, 475 U.S. 675 (1986) and Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), which some would argue reduced the rights granted by Tinker).
• Why Is This Case Important?  Prior lower decisions had suggested that students (minors) might not have constitutional rights in general, and free speech rights specifically, while at school; Tinker put a definitive end to that line of thought and reaffirmed that students do have constitutional rights, albeit what is appropriate for minors in school.

Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975)

• Ohio public high school students, who had been suspended from school for misconduct during a period of student unrest for up to 10 days without a hearing, brought suit arguing that their suspensions violated their right to due process and were thus unconstitutional.
• Court held that students facing temporary suspension from a public school have property and liberty interests that qualify for protection under the Due Process Clause of the Fourteenth Amendment.
• However, due process is only required if there is a “total exclusion from the educational process for more than a trivial period.”  Id. at 576.
• The Court noted that for non-expulsions, the due process requirement is a very low standard and can happen immediately after the incident occurs:  “There need be no delay between the time ‘notice’ is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is.”  Id. at 582.
• Why Is This Case Important?  Although Goss frequently does not provide as much protection for students as some attorneys think it does, nonetheless it established that students are entitled to some type of hearing (or some level of “process”) before being deprived of their education (i.e. for out of school suspensions or expulsions).  Prior to Goss, whether and what process was given to students being disciplined was very haphazard.

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S. Ct. 1989 (1998) / Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 119 S. Ct. 1661 (1999)

• Following Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028 (1992), which held that private citizens could collect damage awards under Title IX when teachers sexually harassed their students, the Court reaffirmed in Gebser and Davis that schools can be held liable for teacher-on-student (Gebser) and student-on-student (Davis) sexual harassment, including sexual assault.
• Both cases, however, stressed that the school district can only be held liable for its own behavior, and that the school district must act with deliberate indifference to known harassment.
• Gebser involved an adult teacher who engaged in sexual intercourse with a freshman student.  The Supreme Court rejected both vicarious liability and constructive knowledge as liability standards, and held that claimants must show “actual knowledge” of the harassment by an “official of the recipient entity with authority to take corrective action to end the discrimination.”  Id. at 290.  The claimant further must show that the official responded with “deliberate indifference.”  Id. at 290-91
• Davis, which was a student-on-student harassment case, also held that a school could only be held liable for actual knowledge of sexual harassment to which it was deliberately indifference.
• For student-on-student harassment, the plaintiff must also show that the  harassment was so severe, pervasive, and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit.
• The Davis Court also stressed that it is not enough for a student to show that he or she was sexually assaulted by another student; rather, he or she must show that the District was in some way responsible for the students’ misconduct:  “If a funding recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference subjects its students to harassment.  That is, the deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it.”  Id. at 644–45.
• Why Is This Case Important?  As a result of Gebser and Davis (and Franklin), schools have devoted significantly more attention and resources to addressing sexual misconduct by teachers and students in the public schools.  Unfortunately, many litigants have not heeded the central lessons of these cases, i.e. that schools are not directly liable for the harassment or assault themselves, but only for their own misconduct in causing or failing to properly address them.

Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731 (1968)

• Teacher was terminated for writing a letter to the local newspaper in which he criticized how the school board had handled recent bond proposals (which had mostly been rejected), and complained that too much money was being spent on athletics and not on education.
• The Court proposed what has become knows as the Pickering balancing test:  “[the] problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568, 88 S.Ct. at 1734.
• Although Pickering is a fairy broad test, the rights of teachers to free speech were curtailed somewhat in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684 (1983), which added/emphasized the “matter of public concern” prong to the employment free speech retaliation test, and then even further by Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951 (2006), which held that statements by public employees made pursuant to their employment have no First Amendment protection.
• Why Is This Case Important?  Like in Tinker with student speech, the Court acknowledged that teachers retain at least some free speech rights, even when they talk about school matters.

Lamb’s Chapel v. Center Moriches Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141 (1993)

• Challenge under the First Amendment by an evangelical church, which was denied permission to meet in the evening on school property to show a well-known film series by Dr. James Dobson on family and child-rearing issues from a Christian perspective.
• School argued that it could not allow its property to be used for religious meetings, since “religion” was not one of the enumerated categories of allowed use under a state statute.
• The Court of Appeals felt that the policy was viewpoint neutral, because it had been applied in the same way to all uses of school property for religious purposes.
• The Supreme Court held that this analysis focused on the wrong category of speech, and made it clear that the proper focus is not on religious speech in a vacuum – i.e. is all religious speech being treated the same – but rather on religious speech as a perspective or viewpoint on the general topic – i.e. a religious perspective on child raising. Lamb’s Chapel extended the logic of Widmar v. Vincent, 454 U.S. 263 (1981) (colleges) and Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226 (1990) (high school student organizations) to the use of school facilities by outside organizations.
• Why Is This Case Important?  After cases like Engel drew a strict line of separation between church and state, cases like Vincent, Mergens and Lamb’s Chapel saw the pendulum swing backwards a little, to emphasize that the mere fact that religions are interacting with the schools is not an automatic violation of the Establishment Clause, and that religious speech or activities should be treated the same as similar non-religious speech.

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022)

• The Court held that the Bremerton School District violated the First Amendment when it disciplined an assistant football coach after he publicly engaged in prayer on the football field immediately after several games. The Court held that Kennedy’s actions were protected by both the Free Exercise and the Free Speech clauses of the Constitution, and that the Establishment Clause did not compel (or even allow) the school district to restrict Kennedy’s actions.
• Kennedy is a strange decision, because the facts that the majority relied on to find that the coach’s First Amendment rights were violated – that the coach paused briefly during “free time” to offer a private, quiet prayer by himself – were radically different than what the court and public record showed had actually happened (that the coach actively gathered together a group of persons, including some who had nothing to do with the team, to engage in public, demonstrative (and religious) speech in an effort to ‘mentor’ the team, during time when he was supposed to be supervising students.)
• Why Is This Case Important?  Putting aside what actually happened on the football field, Kennedy is important because it finally overruled the long-suffering Lemon test.
• In place of Lemon, the Court “has instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings.  The line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers.”
• To support this new test, the Court cited to two recent cases:  Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 134 S. Ct. 1811 (2014) and American Legion v. American Humanist Ass’n, 139 S. Ct. 2067 (2019), both of which relied primarily on historical traditions in upholding prayer at local council meetings (Town of Greece) and a local war memorial in the shape of a 32-foot cross (American Legion).

A Bonus Case!

Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 102 S. Ct. 2799 (1982)

• School district was sued after removing a number of books from the library that were described by the school board as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.”
• A plurality of the Court emphasized that the First Amendment not only protects speech, it protects the rights to receive information and ideas and to disseminate them to others.
• The Court noted the special place of a library — “a place dedicated to quiet, to knowledge, and to beauty” — under the First Amendment and declared that “students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.”  Id. at 866-67
• The Court held that school boards may not “remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, national­ism, religion or other matters of opinion.” Id. at 872.
•  In other words, a book removal decision that is substantially motivated by an intent to suppress particular ideas violates the First Amendment.
• The Supreme Court agreed that books may be removed if they are “pervasively vulgar” or not “educationally suitable” for the students in question. Id. at 871.
• Why Is This Case Important?  Prior lower decisions had suggested that school boards might have significantly greater control over the contents of their libraries, much as they do with their curriculum.  Pico prevents book banning because of ideas, while allowing schools to ensure that libraries remain educationally suitable for students.

So to the extent I can discern any grand trends, it seems that in the 1960’s, 1970’s, and 1980’s, the Court was seeking to established strict bright line rules, to either initially define rights or to “fix“ constitutional violations that had been going on for decades.  In the 1990’s, 2000’s, and 2010’s, the Court seemed to be looking to relax some of those rules, to provide greater flexibility generally, and to recognize a greater possibility for interaction between church and state specifically.