K-12 Implications Seen in Some Cases Before High Court

Arizona’s variation on government vouchers for religious schools and California’s prohibition on the sale of violent video games to minors present the top two cases with implications for education in the U.S. Supreme Court term that formally begins Oct. 4.

And new Justice Elena Kagan, who succeeded Justice John Paul Stevens, brings to the court extensive education policy experience as a senior White House aide to President Bill Clinton in the mid-1990s, including in areas such as affirmative action, single-sex education, and K-12 testing issues.

The question of how Justice Kagan’s experience plays out as the court grapples with education law issues may take a while to be answered. But as the second new member in as many years, and the third woman now serving, along with Justices Ruth Bader Ginsburg and Sonia Sotomayor, Justice Kagan is expected to bring a fresh dynamic to the high court.

“I think it is a very big deal there will be three woman justices,” said Pamela Harris, the executive director of the Supreme Court Institute at the Georgetown University Law Center. Having a third woman on the Supreme Court bench means women “stop being the exception and start being part of the landscape,” added Ms. Harris, who served as a law clerk to Justice Stevens.

Because of her work as U.S. solicitor general under President Barack Obama, Justice Kagan will recuse herself from at least 21 cases during the court"s new term, two of which education experts are watching. But she will participate in the two big education-related cases accepted so far: Arizona Christian School Tuition Organization v. Winn (Case No. 09-987), which deals with a form of state tax credit aiding private schools, and Schwarzenegger v. Entertainment Merchants Association (No. 08-1448), involving the restrictions on video game sales to minors.

Tuition Choices

In the Arizona case, the justices are weighing the constitutionality of a 13-year-old state program offering tax credits for donations made to organizations that provide scholarships for children to attend private schools, including religious schools. (“Supreme Court to Weigh Constitutionality of Arizona’s Tuition Tax-Credit Program,” June 9, 2010.)

The case, scheduled for oral arguments on Nov. 3, involves a ruling by a federal appeals court last year that Arizona’s tax-credit program is likely to impermissibly advance religion in violation of the First Amendment’s prohibition against a government establishment of religion.

In an April 2009 decision, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that a majority of the Arizona scholarships go to students attending religious schools, and that some of the “school tuition organizations,” or STOs, restrict their scholarships to that purpose. The appeals court allowed the challenge to the tax-credit program to go forward.

Under Arizona’s plan, taxpayers can receive a dollar-for-dollar credit of up to $500 (or $1,000 for married couples) on their state income-tax returns for donations to school tuition organizations. The STOs must spend at least 90 percent of their annual revenues on scholarships or tuition grants. The organizations may not limit their grants to a single school, but they may limit them to religious schools, as several of the STOs do.

The Supreme Court in the 1983 Mueller v. Allen case upheld a Minnesota tax deduction for money spent by parents on their own children, even when 97 percent of the tuition funds were going to religious schools. In Zelman v. Simmons-Harris, in 2002, the justices upheld an Ohio program providing vouchers for poor children in Cleveland to attend private schools, including religious schools.

Eight states had urged the high court to take up the Arizona case, saying the 9th Circuit’s ruling threatens state flexibility on tax policy. Five additional states have joined them in backing the Arizona program at the stage now that the justices are going to hear arguments in the case.

Based on the friend-of-the-court brief on behalf of Arizona, at least six other states have some similar tax benefits for donations to support private school tuition. They include four states—Georgia, Iowa, Pennsylvania, and Rhode Island—that the brief describes as allowing STOs to limit their scholarships to religious schools or to secular schools.

Douglas Laycock, a prominent church-state scholar and a co-author of a friend-of-the-court brief filed on Arizona’s side by the U.S. Conference of Catholic Bishops and other groups, says that if the high court upholds the Arizona tax credit, that will be a decision “of not great importance.”

“It’s more modest than [the private school vouchers in] Zelman,” said Mr. Laycock, a professor of law and religious studies at the University of Virginia. “If it is struck down, that’s much bigger news. Then we have a return to the days when there were all sorts of strange and thin distinctions"; in church-state jurisprudence, he said.

There are two potential hurdles to the justices’ consideration of the merits of the case, however.

One is that the court actually granted review of two appeals in the case, including one that raises questions about whether the plaintiffs who challenged the program have “standing,” or the proper legal grounds to be parties in the case. That is a complex area of the law, but of special interest to the justices, especially on the question of who has standing to bring establishment-clause challenges.

The other hurdle involves Arizona’s adoption of a law earlier this year that revised the tax-credit program to require more accountability by school tuition organizations, such as requiring them for the first time to register and be certified by the state revenue department. The law also requires the organizations to report the number of scholarships being awarded to students from low-income families.

Protecting Minors?

In the video-game case, California is defending its 2005 law —not yet enforced— that prohibits the sale or rental of violent video games to minors. Violent games are defined as those that include “killing, maiming, dismembering, or sexually assaulting an image of a human being,"; if the game lacks “serious literary, artistic, political, or scientific value for minors.”

Acknowledging that the measure would not pass strict scrutiny—the highest level of judicial analysis—for laws that impinge on free speech, the state is asking the justices to place violent video games in the same category as sexually explicit materials, requiring only a rational basis for their regulation as they relate to minors.

The state argues that it is helping parents raise their children free of exposure to violent and offensive speech, and it stresses a number of the Supreme Court’s precedents in the area of regulating school speech.

“If public schools may permissibly restrict students’ free-speech rights, then the state of California should be allowed no less authority when they pass legislation designed to do nothing more than reinforce parents’ right to directly control the upbringing of children,” the state’s brief says.

To California state Sen. Leland Y. Yee, a Democrat who sponsored the prohibition, the matter is even simpler.

“When we see someone’s head cut off, there’s a repulsion we feel,” Sen. Yee, a former member of the San Francisco board of education, said in reference to video-game images. “When you see that hundreds of thousands of times, you become desensitized.”

The industry groups for merchants and video-game producers that challenged the law argue in a brief that California’s measure is “the latest in a long history of overreactions to new expressive media.”

The Entertainment Merchants Association and the Entertainment Software Association cite comic books, true-crime novels, movies, rock music, and other forms of media “that have all been accused of harming our youth,” but says such fears have proved unfounded. The groups also argue that upholding the law would create a slippery slope that could allow regulation of young people’s access to other works containing violence.

“The state’s analogy to obscenity fails because depictions of violence, unlike obscenity, have played a long-standing and celebrated role in expression properly consumed by minors, from Greek myths to the Bible to ‘Star Wars’ and Harry Potter,” the groups’ brief says. “A new exception for depictions of violence would threaten access to these materials.”

The case is scheduled for argument on Nov. 2.

Civil Rights, Employment

Education law experts also are keeping an eye on a number of other cases.

One case that may have implications for school districts involves a California teacher and her husband who were wrongfully accused of child abuse and then found they had no way of removing their names from a state child-abuse registry.

The legal issue in County of Los Angeles v. Humphries (No. 09-350) involves whether plaintiffs suing local governmental agencies must show that a constitutional violation was the result of a policy or practice of the agency, even when the plaintiffs are merely seeking a court order to end the violation, as opposed to monetary damages.

In a 1978 decision, in Monell v. New York City Department of Social Services, the Supreme Court held that school districts and other local agencies could be found liable for damages only when an action by one of their employees was tied to an official “policy, custom, or practice.”

The court will hear arguments in the case on Oct. 5.

Meanwhile, one job-discrimination case is being watched closely by the National School Boards Association.

In Staub v. Proctor Hospital (No. 09-400), the court will use the case of a medical technician fired from an Illinois hospital to decide under what circumstances an employer may be liable for the unlawful intent of officials who caused or influenced an adverse job action but did not make the ultimate employment decision.

At issue is the “cat’s paw” theory of liability, in which a biased subordinate dupes the decisionmaker into taking an adverse job action against the subordinate’s target. (The theory’s name is derived from a 17th-century French fable.)

The NSBA stresses in its brief that school boards typically are the formal decisionmakers on many employment actions in their systems but are often removed from the day-to-day operations of schools.

Justice Kagan is recusing herself from both the Staub and County of Los Angeles cases.