www.hoganlovells.com 1 the u.s. supreme court: nine justices dressed in black and how their opinions...

www.hoganlovells.com 1

The U.S. Supreme Court: Nine Justices Dressed in Black and How Their Opinions May Impact Your School District

Maree [email protected] Lovells U.S. LLP555 13th St. NWWashington, DC 20002(202) 637-6416

American Association of School AdministratorsJuly 12, 2011

Chris LottAssociateChristopher.lott @hoganlovells.comHogan Lovells U.S. LLP555 13th St. NWWashington, DC 20002(202) 637-6416


Overview

1. Overview of the Supreme Court

2. Recent Supreme Court Decisions Affecting School Districts

3. Cases on the Supreme Court's Radar in the October 2011 Term and Beyond

4. Developments since the Supreme Court’s Decision in PICS


True or False #1

In assigning students to school, it is never permissible to consider race or ethnicity.


True or False #2

It is clearly established that the police need a warrant when interviewing a student on school grounds.


True or False #3

6

As in the fable – where the cat got burned when the monkey convinced the cat to do the dirty work and pull the chestnuts out of the burning fire – a school district can be held liable in a discrimination lawsuit when a supervisor’s bias causes another school official to take an adverse employment action based on that bias.


True or False #4

School officials can only be held liable for their intentional violations of the IDEA, not for negligent conduct.



Chief Justice John Roberts joined the Court in 2005. He was appointed to the Court by President George W. Bush.



Justice Kennedy joined the Court in 1988. He was appointed to the Court by President Ronald Reagan.

Justice Scalia joined the Court in 1986. He was appointed to the Court by President Ronald Reagan.



Justice Thomas joined the Court in 1991. He was appointed to the Court by President George Bush.

Justice Alito joined the Court in 2006. He was appointed to the Court by President George W. Bush.



Justice Ginsburg joined the Court in 1993. She was appointed to the Court by President Clinton.

Justice Breyer joined the Court in 1994. He was appointed to the Court by President Clinton.



Justice Sotomayor joined the Court in 2009. She was appointed to the Court by President Obama.

Justice Kagan joined the Court in 2010. She was appointed to the Court by President Obama.


2. Recent Supreme Court Decisions Affecting School Districts


2. Recent Supreme Court Decisions

A. Arizona Christian Sch. Tuition Org. v. Winn and Garriott v. Winn

B. Camreta v. Greene

C. Staub v. Proctor Hospital

D. Christian Legal Society v. Hastings

E. Borough of Duryea v. Guarnieri

F. J.D.B v. North Carolina



A. Arizona Christian Sch. Tuition Org. v. Winn and Garriott v. Winn

– Issue: The substantive question was whether a program in Arizona that gave taxpayers a tax credit for making donations to religiously affiliated school-tuition organizations (STO) violated the Establishment Clause of the First Amendment?

– Issue: There was also a “threshold” legal question: Whether taxpayers challenging the law had standing to challenge the program in federal court?


The challenged Arizona program:

– In 1998, more than 90% of the tax credit funds were directed toward religiously affiliated STOs.

– In 2003 and 2004, 82% and 79% of scholarships were awarded by STOs that restricted scholarships to religious schools.

– Most scholarships are awarded to students already enrolled in private, religious schools.

– At the same time, funding for public education in Arizona has been relatively low, and a budget crisis forced the State to make additional severe cuts.



• The District Court upheld Arizona’s program on the grounds that:

– The program’s purpose was religiously neutral.

– The program provides “genuine and independent” choice.

– Any religious effect of the program is a result of the choices of taxpayers and parents and cannot be attributed to the government.



• The Ninth Circuit Court of Appeals reversed the district court’s decision. That court found:

– Plaintiffs’ allegations that the purpose of the program is to provide choice may be a sham.

– The program is not a “genuine and independent” choice program because parents have no true choice under the program.

– The effect of the program is to benefit religious schools.




• Hogan Lovells prepared a friend of the court brief for the Supreme Court on behalf of the National School Board Association (NSBA), the American Association of School Administrators, the National Education Association, and several other groups. The brief argued, among other things, that:

– The tuition tax credit program violated the Establishment Clause.

– The tuition tax credit program had negative effects on public education in Arizona.


Supreme Court’s decision:

– Case dismissed because the plaintiffs did not have “standing” to challenge the program.

– Holding: Taxpayers only have standing to challenge a government spending program under the Establishment Clause when there is a direct appropriation of funds, as opposed to a tax credit.



“And that result—the effective demise of taxpayer standing—will diminish the Establishment Clause’s force and meaning. Sometimes, no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion. Today’s holding therefore will prevent federal courts from determining whether some subsidies to sectarian organizations comport with our Constitution’s guarantee of religious neutrality. Because I believe these challenges warrant consideration on the merits, I respectfully dissent from the Court’s decision.”

-Justice Kagan



Takeaway

• Will more states create tax benefit programs that aid private schools?

• Who will be able to challenge these laws?




B. Camreta v. Greene and Alford v. Green

Issue: Does the Constitution require police and child protection workers to obtain a warrant before interviewing children about claims of sexual assault at school?



• The case involved a dispute about a warrantless interview on school grounds.– In 2003, a child protection investigator and a sheriff’s deputy came to a

school to interview a 9-year-old about whether her father had sexually abused her.

– A school guidance counselor removed the student from her classroom and brought her to another room in the school where the investigator and deputy waited.

– The police did not have a warrant to interview the child.– Allegedly, the questioning lasted two hours; the student at first denied

the abuse, but then changed her story when she feared the bus would leave without her.



• The student and the student’s mother sued under the 4th Amendment’s search and seizure clause.

• The claim was that the Child Protective Services (CPS) investigator, the deputy, the school district, and the school guidance counselor, seized the child without a warrant in violation of the 4th Amendment.

• The school district and school counselor were dismissed from the case due to a procedural error.



• The 9th Circuit held that a warrant should have been obtained prior to interviewing the girl.

• But, it granted the defendants qualified immunity because no clearly established law had warned them of the illegality.



• The Supreme Court dismissed the 4th Amendment Claim as moot because the student had moved to Florida.

• It also held that, even though the investigator and police had technically “won” their case at the 9th Circuit on qualified immunity grounds, they could still appeal the 4th Amendment claim.



• Takeaway:

– The 9th Circuit’s decision could have had a number of negative consequences for school districts that are avoided by the Supreme Court’s decision to vacate the opinion. For example:

• Districts feared that school officials could be liable for “seizing a student” by allowing access to a student on school property.

• Districts feared they would be stuck between “rock-and-a-hard-place” because many state statutes require reporting of suspected abuse.



C. Staub v. Proctor Hospital

Issue: May an employer be held liable for employment discrimination when the final decision-maker is free from bias, but when the bias-motivated actions of a supervisor contributed to the decision?



• The case involved the “Cat’s Paw” theory of liability

– Named for a 17th Century fable about a monkey who persuaded a cat to pull chestnuts out of a fire so the cat’s paw gets burned and the monkey gets the chestnuts.



• The case involved a dispute about alleged military bias

– A technician at Proctor hospital was fired after many disputes with supervisors over absences caused by Army Reserve Duty.

– The hospital’s human resource director conducted an independent investigation, informed by input from the supervisors, and ultimately terminated the technician.



• The technician sued, alleging a violation of a federal law prohibiting discrimination against members of the military.

• The technician’s primary argument was that the supervisors’ were biased against the military, and this bias influenced the human resource direct (i.e. a cat’s paw theory of liability).

• The hospital argued that even assuming cat’s paw liability is valid, an employer should not be held responsible when the ultimate decision-maker conducts an independent investigation and concludes that the supervisor’s actions were not motivated by bias.



• The district court sided with the technician, finding that the cat’s paw theory was valid.

– A jury verdict was returned in favor of the technician.

• The Seventh Circuit reversed, holding that the cat’s paw theory of liability was not valid.



• The Supreme Court held that the cat’s paw theory is valid if:

• (1) a supervisor of the worker took a bias-motivated step.

• (2) the supervisor acted with the intent to cause an adverse employment action for the worker.

• (3) the supervisor’s action was a proximate cause for the adverse employment action.



• Takeaway:

– The NSBA had argued in an amicus brief that school districts are especially vulnerable to the cat’s paw theory of liability.

• E.g. Central office school administrators must rely on school-based administrators; school boards rely on school administrators

– Note, however, that a school district will not be liable if the biased-motivated step is too remote or a “purely contingent” cause of the adverse action (i.e., not the proximate cause).



D. Christian Legal Society v. Hastings

Issue: Does a school violate a student group’s rights to free speech and association when it refuses to grant official recognition to the group under the school’s nondiscrimination policy?



• Hastings College of Law grants official recognition to a student group only when the group agrees to an “all-comers” nondiscrimination policy.– Benefits of official recognition include money, use of school

grounds, and more.

• Christian Legal Society bylaws require members to sign a “Statement of Faith” – including the belief that sexual activity may occur only in the context of marriage between a man and a woman.– No one who engages in homosexual activity may be a member.



• Hastings denied the Christian Legal Society official recognition under the nondiscrimination policy, but still allowed the Society to use the law school’s facilities.



• The Supreme Court (5-4) upheld the law school’s nondiscrimination policy:

– The court concluded the law school was a “limited public forum” and the policy was reasonable and viewpoint neutral.



• Key factors in the decision

– Deference to Hasting’s educational judgment and that policy meshed with its inclusive educational mission and program.

– All-comers policy was generally applicable, i.e., no choosing between belief systems.

– CLS had other alternatives to engage in free speech and association.



• Takeaway

– The case supports the application of nondiscrimination policies that apply to all groups on the same basis, but this is a very fact-specific area and the type of forum is often determinative.

– For example, a classic “limited public forum” is created when schools open their doors to community groups after hours; arguably, a nondiscrimination policy for groups that only access the facilities afterhours is less relevant to a school’s mission.



E. Duryea, Pa. v. Guarnieri

Issue: If a government employee complains to the government about a matter of purely personal (i.e. not public) concern, does the employee subsequently have a right to file a retaliation claim under the First Amendment?



• Police chief in Duryea was fired by the Borough Council.

• Police chief filed a grievance and was reinstated with backpay.

• Upon return, the Council placed a number of restrictions on the police chief in carrying out his duties.

• Police chief filed a lawsuit, claiming that the restrictions were retaliation in violation of his First Amendment right to petition the government.



• Both the district court and the Third Circuit held that the police chief could bring a retaliation lawsuit under the First Amendment.

• Both courts rejected the Council’s argument that the police chief’s grievance was a private dispute between him and the Council. The Council asserted that the First Amendment was only implicated if the speech underlying the police chief’s grievance was a matter of public concern.



• The Supreme Court (8-1) overturned the lower courts.

• The holding was that public employees may only bring a retaliation claim under the First Amendment if the speech is related to a matter of public concern.



• Key factors in the decision– The Court reasoned that allowing a petition clause claim

against the government for private employment disputes could seriously undermine the mission and effectiveness of government bodies, such as school districts.

– The Court also reasoned that public employees already have a number of legislative anti-retaliation protections.



• Takeaway

• Under the Third Circuit’s decision, school employees would have received constitutional protection for private employment disputes.

• School employees already have “ample protections” against retaliation.



F. J.D.B v. North Carolina

Issue: Should the age of a child be considered in determining whether he is in police custody for the purpose of informing a Miranda custody analysis?



• Police stopped a 13-year-old boy when they saw him near the site of a home break-in.

• When the child was seen at school with a digital camera matching the description of one stolen at the break-in, detectives went to the school to interrogate the child.

• The child was interrogated by police for some time before being given a Miranda warning (i.e. “You have the right to remain silent…”).



• The child’s attorney argued that the fact the child was young and in school was relevant in evaluating whether the child was in “custody.”

– Police officers need only give a Miranda warning to those in “custody.”

• The North Carolina Supreme Court held that a child’s age was irrelevant in making the objective determination of whether he was in police custody, and found that the student was not in police “custody” while at school.



• The Supreme Court (5-4) overturned the North Carolina Supreme Court, finding that the child’s age was relevant in determining whether he was in police custody.

– The court held that because the age of the child would affect his reasonable belief regarding his freedom to leave the interrogation, it should be considered part of the objective determination of whether the child was in police custody.



• Takeaway

– School administrators should be aware that lower courts will now consider a student’s age in determining whether he or she should have received a Miranda warning before being interrogated at school by a police officer.



A. Compton Unified School District v. Addison

B. Sherman v. Koch

C. Knox v. Service Employees International Union, Local 1000

D. Layshock v. Hermitage School District and J.S. v. Blue Mountain School District

E. Cases that the Supreme Court has declined to review:• Connecticut v. Duncan

• Doe v. Silsbee Independent School District

• Evans-Marshall v. Board of Education



A. Compton Unified School District v. Addison (petition for cert pending)

Issue: Can parents of disabled children bring due process hearings under the IDEA’s child-find provision against school officials that were simply negligent, or must there be some intentional conduct on the part of the school officials?



• The case involves IDEA’s child-find provision.

• In her sophomore year, a student’s mental health counselor recommended that the school evaluate the student for special education services. The District made the judgment not to evaluate her at that time.

• In the student’s junior year of high school, at her mother’s request, the student was evaluated and identified as a disabled student.



• The parent initiated a due process hearing claiming that the district had failed to identify the student under IDEA’s child-find provision.

• The school district claimed, among other things, that it could not be held liable under the child-find provision because it did not take any intentional action to deny the student a free appropriate public education.

• The administrative hearing officer determined that the district knew or should have known of the disability and that it could be liable under the child-find provision.



• The district court and the Ninth Circuit affirmed the hearing officer’s decision.

– The Ninth Circuit reasoned that the claim was “cognizable” because, under the IDEA, petitioners may “present a complaint with respect to any matter relating to the identification, evaluation, or educational placement of the child.”

– A judge on the Ninth Circuit dissented, arguing that the IDEA’s child-find provision only gives parents/students the right to appeal intentional violations of the child-find provision.



• The petition for review was filed with the Supreme Court in January 2011.

• In April, the Supreme Court asked the Obama Administration to offer its views on the merits of the case.

• The school district warns in its brief to the Court that, if the decision is left to stand, “Claims for educational malpractice – not cognizable in the context of nondisabled students – will now exist for disabled students.”



B. Sherman v. Koch (petition for cert pending)

Issue: Does an Illinois law that allows teachers to observe a moment of silence at the beginning of a school day violate the Establishment Clause of the First Amendment?



• An Illinois law requires a “moment of silence” at the beginning of the school day.

• The law also permits students to conduct prayer during this time as long as it is voluntary and consistent with the First Amendment.

• A parent of a student at Buffalo Grove High School challenged the law as violating the Establishment Clause of the First Amendment.



• A federal district court held that the moment of silence law violated the Establishment Clause and was unconstitutionally vague.

• The Seventh Circuit Court of Appeals reversed, holding that the law, among other things, had the secular purpose of “calming” students at the beginning of the day.



• The petition for Supreme Court review was filed in March 2011.

• Moment of silence laws have been upheld in some jurisdictions but not others.

– Federal appellate courts have upheld moment of silence laws in Georgia, Virginia, and Texas.

– The Third Circuit struck down New Jersey’s moment of silence law because it did not have a secular purpose.



C. Knox v. Service Employees International Union, Local 1000 (cert granted, June 27, 2011)

Did a union violate nonmembers’ First Amendment rights by adopting a temporary, mid-term fee increase without sending a notice explaining the basis of the fee?



• A union representing California government employees issued a notice to union and non-union members in the summer about a fee increase for the following year.

• Later in the year it approved a temporary dues increase in order to create a “Political Fight Back Fund” to combat anti-union measures on the California Ballot. At this time, it did not issue a second notice of a fee increase.



• A group of nonmember employees sued the union, claiming that the lack of a notice violated their First, Fifth and Fourteenth amendment rights.

– Although unions can require non-union members to pay part of the union’s costs, the Supreme Court, in case called Hudson, recognized that collecting fees from non-members may violate their First Amendment right not to support certain causes advocated by the unions.

– Hudson held that if a union (a) gives adequate notice of fees to nonunion members, (b) allows an opportunity to object to the fees, and (c) permits the nonmember to refuse to pay for “non chargeable” expenses, which include expenditures on political campaigns and ideological issues, the First Amendment rights of the non-members have not been violated.



• The Ninth Circuit Court of Appeals held that the second notice was not required. It reasoned that:

– Unions are not constitutionally required to impose a fee structure that accurately predicts its spending for the upcoming year. Because the union based the fee structure on the previous year’s expenditures, there will necessarily be some inaccuracies due to fluctuations in expenditures.

– As long any payments made by nonmembers that exceed the chargeable expenditures are accounted for in the fee schedule of the next year, the payment of temporary fee increases without notice does not violate Hudson.



D. Layshock and Blue Mountain

– Issue: Can school districts suspend students for off-campus speech on social media sites?



– In both cases, students received school suspensions after creating MySpace pages mocking their principals on off-campus computers.

– Both MySpace pages used school pictures of the principal, but were not created or accessed with school computers.

– The MySpace profiles did not create a substantial and material disruption at school.



– Blue Mountain: The Blue Mountain panel held that the district could punish the student for off-campus speech that was lewd and vulgar under Bethel School District v. Fraser.

– Layshock: The Layshock panel held that the district could not punish the student for off-campus speech that was lewd and vulgar, and that the district otherwise could not punish the student for the speech under Tinker v. Des Moines because there was no substantial and material disruption at school.



– The full Third Circuit decided to review the cases en banc to resolve the split.

– The en banc courts both held that the district could not regulate off-campus speech simply because it was lewd and vulgar.



– The courts also found that there was no substantial and material disruption at school in either of these cases.

– The courts left open the question of whether and how Tinker should apply to off-campus speech that causes a material and substantial disruption at school.

– It is unclear whether the Supreme Court will take up the issue of how districts can regulate off-campus speech at this time.



E. The Supreme Court also decided not to review – and thus let stand – three other important decisions

• Connecticut v. Duncan. The State of Connecticut had claimed that, in violation of NCLB, ED did not adequately fund additional testing requirements imposed in 2005 for students with limited English proficiency and disabilities. The lower courts did not reach the merits of Connecticut’s argument, dismissing the case because Connecticut had not taken all of the appropriate administrative steps prior to bringing suit.

– A similar 2008 case in the Sixth Circuit, School District of Pontiac v. ED, held, in effect, that a number of school districts could not challenge NCLB as an “unfunded mandate”.



• Doe v. Silsbee Independent School District. Both lower courts had dismissed the claim of a cheerleader who was removed from the team after silently protesting a member of the basketball team who had sexually assaulted her. The lower courts rejected the cheerleader’s claims that she had a First Amendment right to protest.

• Evans-Marshall v. Board of Education. A teacher claimed that her termination for using controversial books and movies in her classroom violated her First Amendment right to free speech. The Sixth Circuit held that a teacher’s choice of books and movies to present in the classroom constitutes speech for the purposes of the First Amendment, and that the speech was “directed toward an issue of public concern” because it was designed to educate students. Therefore, the court held that the teacher had alleged enough facts to allow her First Amendment claim to go to trial.


4. Developments since the Supreme Court’s Decision in PICS


Brief Review of PICS

– The Seattle Plan - Open choice plan where each student could choose to attend any of the ten high schools in the city, if there is room available. The District had a multi-step application process with several tiebreakers, one of which was race.

– The Louisville Plan - Each student assigned to a “resides area” based upon their residence. Student choice promoted (magnet schools, optional programs, magnet career academies) and transfers allowed to achieve enrollments between 15% and 50% minority.

4. Post-PICS Developments



• Chief Justice Roberts applied strict scrutiny, which required the school districts to show a compelling interest and that their plans were narrowly tailored to serve those interests.

• Court found that neither plan was narrowly tailored.



Justice Kennedy’s Concurrence

• Found that the school districts had compelling interests in avoiding racial isolation and providing the educational benefits of racial and ethnic diversity.

• Agreed two plans before the Court were not narrowly tailored.

• Suggested some uses of race might not trigger strict scrutiny.



• Justice Kennedy provided examples of uses of race that might not trigger strict scrutiny:– Race-conscious school-siting decisions.– Drawing attendance boundaries with an

awareness of racial and ethnic demographics.

– Allocating special programs and resources to promote diversity.

– Targeted recruitment of students and/or faculty.

– Tracking data by race and ethnicity.



• Since PICS was decided, four cases have analyzed Justice Kennedy’s opinion.

– Each of these four opinions have recognized that school districts have latitude to consider race and ethnicity in student assignment.

• Two other cases have considered PICS in other contexts.

• A decision out of the 5th Circuit applied a related Supreme Court case – Grutter v. Bollinger.

• Developments in school districts across the country.


A. Mark Twain Middle School, Brooklyn, NY

• In August 2008, the district court terminated the desegregation order in Hart v. Community School Board, which had required race-based criteria for admission to a Brooklyn middle school.

• A parent of a child denied admission to the school tried to intervene in the case to argue that the desegregation order was unconstitutional under PICS.

• The court confirmed that PICS does not disturb well-settled precedent that federal courts may order race-conscious measures to remedy deliberate segregation.



• The Hart court interpreted Justice Kennedy’s opinion as the controlling opinion. It said:

– “The deciding opinion of Justice Kennedy . . . allows for the use of race as one admission factor among many others.”

– “The same considerations that permit race as one factor among many that may be considered in college and graduate schools under Grutter and Bakke should be applied to grade schools where characteristics for future success or failure are imprinted on students.”




B. Alamance Burlington School System, NC

• U.S. v. Alamance-Burlington Board of Educ. (2009) was a case involving a request for unitary status, which the court granted.

• In dicta, the district court said that:

– Racial diversity is a compelling interest that the district “should” continue to pursue, as per Justice Kennedy’s opinion from PICS.

– The district “should” take other measures, such as consideration of “socioeconomic factors and achievement levels,” to address racial diversity.


C. Madison, Wisconsin• N.N. v. Madison Metropolitan School District (2009)

involved the issue of whether the school district could be required to pay money damages for enforcing a state policy that required the district to deny inter-district transfers if it would create racial imbalance.

• District court opinion addressed PICS and found that:

– “Justice Kennedy emphasized that race may be an appropriate part of a diversity plan when race is considered ‘as one factor among many.’”

• District court found that the school district could not be liable for money damages because the district was “doing nothing more than implementing a state law directive.”




D. Lower Merion, PA

• In redrawing attendance boundaries, the Lower Merion School District considered a number of factors, including the impact of the boundaries on students from different racial and ethnic groups.

• Plaintiffs challenged the consideration of race as impermissible under PICS.



• The district court applied strict scrutiny because it found that race was a “motivating factor” in the district’s decision.

• The district court held that the district’s use of race in redrawing its attendance boundaries satisfied strict scrutiny.



• Plaintiffs appealed the case to the Third Circuit Court of Appeals, and the appeal was argued in April 2011.

• The United States and the NAACP Legal Defense Fund (LDF) filed friend of the court briefs in support of the district.



The United States filed a friend of the court brief arguing:

1. “Lower Merion’s school assignment plan must be analyzed under Parents Involved (or PICS).”

2. “Parents Involved did not hold that “strict scrutiny applies whenever a school district considers the racial impact of a school assignment plan.”

3. “Rather, as Justice Kennedy, who provided the critical vote to the majority holding, recognized in his opinion concurring in part and concurring in the judgment, a race-conscious school assignment plan is not likely to demand strict scrutiny if it does not use individual racial classifications to provide students the educational benefits of racially diverse schools.”



On the merits of the case, the United States argued:

4. “School officials considered race incidentally and in a non-individualized way in an effort to promote diversity and reduce racial isolation at HHS.”

5. “ Accordingly, strict scrutiny does not apply, and the Plan satisfies constitutional standards.”



LDF filed a friend of the court brief arguing:

1. Justice Kennedy’s opinion is the controlling opinion from Parents Involved.

2. The district court erred in “its assumption that strict scrutiny was automatically triggered by the School District’s ‘mere consideration’ of neighborhood racial demographics.”

3. “[C]onsideration of neighborhood racial demographics at the aggregate level when drawing school attendance zones” is “presumptively valid.”



E. Los Angeles, CA

• Case involved a challenge to Los Angeles Unified School District’s 1981 desegregation plan that used race as one factor.

• The court held that PICS did not apply to the judicially-approved desegregation plan.



F. Lynn, Massachusetts

• Plan was upheld by district court and First Circuit.

• Pre PICS, the Supreme Court denied certiorari.

• Plaintiffs in Comfort v. Lynn School Committee (1st Cir. 2005), filed to re-open case following Supreme Court decision.

• In March 2008, the district court denied that motion.



G. Fisher v. University of Texas

• Involved a challenge to the University of Texas (“UT”) at Austin’s 2008 admission policy.

• Fifth Circuit’s opinion was the first by a federal appellate court to address Grutter v. Bollinger in the context of university of admissions.



• UT’s policy had three key parts

1. Top 10% Law

• The law “mandated that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university.”

• The law accounted for 81% of the students admitted to UT in 2008.



2. Other applicants

• Applicants not admitted under the Top 10% Law compete for admission based on scores on an Academic Index (“AI”) and a Personal Achievement Index (“PAI”).

– AI is based on class rank, test scores, and the rigor of high school course curricula.

– PAI is based on a review of admission essays and a whole-file review that considers numerous factors including race.



3. Applicants not assigned to first-choice program/school.

• UT limits the number of Top 10% Law applicants admitted into certain programs or schools.

• Affected applicants’ files are reviewed, assigned AIs and PAIs, and students are placed in programs based on the scores.



• Plaintiffs/appellants were students denied admission to the UT-Austin Fall 2008 entering class claiming violation of 14th Amendment and Title VI.

• The district court granted summary judgment, ruling that UT’s admission policy stated a compelling interest in seeking diversity and was narrowly tailored.



• Plaintiffs appealed to the Fifth Circuit.

• The case applied a number of the principles from the Supreme Court’s decision in Grutter v. Bollinger and expanded on a number of key aspects of Grutter.



• For example, Fisher expanded on the “compelling interest” prong from Grutter:

– Grutter held that universities and colleges have “a compelling interest in attaining a diverse student body.”

– Fifth Circuit: identified “at least three distinct educational objectives served by the diversity.”

1. “Increased Perspectives.”

2. “Professionalism.”

3. “Civic Engagement.”



• For example, Fisher expanded on “race-neutral alternatives” from Grutter:

– Grutter held that narrow tailoring “require[s] serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”

– The Fifth Circuit held that:

• The Top 10% Law “appears to succeed in its central purpose of increasing minority enrollment” university wide, but not in classrooms and programs.

• UT was not prohibited from employing race-conscious policies to address a lack of diversity at the programmatic and classroom level.



Implications of Fisher

– Federal appellate decision applicable only in Texas and Louisiana.

– Facts involved university admissions policy.

– Fisher has been appealed to an en banc Fifth Circuit, which has yet to decide whether to hear the case.



H. Coalition to Defend Affirmative Action v. Regents of the University of Michigan

• Involved a challenge to a voter-initiated amendment to the Michigan Constitution, which prohibited public colleges and universities from giving preferential treatment to women and minorities in admissions decisions.

• The District Court granted summary judgment to the defendants, finding that the amendment did not violate the Equal Protection Clause of the U.S. Constitution.



• On appeal, the Sixth Circuit reversed the District Court and granted summary judgment to the plaintiffs.

• The court held that the amendment would violate the Equal Protection Clause if:– The amendment had a “racial focus” by targeting a program

designed to benefit minorities; and– The amendment reallocated political power in a way that

makes it more difficult for minorities to achieve their political goals.



• The Court of Appeals found that the amendment had a “racial focus” because the affected affirmative action programs were designed to help minorities.

• The court also held that the amendment reordered the political process by making it more difficult to address minority interests through the political process.– Any person interested in developing more racially inclusive admissions

policies would have to campaign for an amendment to the Michigan Constitution, which would be difficult and expensive.

– Others interested in making adjustments to admissions policies not affected by the amendment would only have to lobby the admissions committees, the Board of Directors, or the Regents in order to accomplish their goals.



• Implications of Coalition to Defend Government Action

– The court made clear that the “mere repeal” of an affirmative action policy does not lead to an Equal Protection issue.

– However, creating higher burdens on the implementation of programs designed to help minorities may violate the Equal Protection Clause.



Developments in school districts across the country.



• Wake County Public School System, North Carolina

• Ector County Independent School District, Texas

• Jefferson County Public Schools, Kentucky



Wake County Public School System, North Carolina



Washington Post, Jan. 12, 2011

“Republican school board in N.C. backed by tea party abolishes integration policy.”

http://www.washingtonpost.com/wp-dyn/content/article/2011/01/11/AR2011011107063.html



“And as the board moves toward a system in which students attend neighborhood schools, some members are embracing the provocative idea that concentrating poor children, who are usually minorities, in a few schools could have merits - logic that critics are blasting as a 21st-century case for segregation.”

Washington Post, January 12, 2011



• In a January 13, 2011 letter to the Washington Post, U.S. Secretary of Education Arne Duncan responded to the Washington Post article.



“America's strength has always been a function of its diversity, so it is troubling to see North Carolina's Wake County School Board taking steps to reverse a long-standing policy to promote racial diversity in its schools. The board's action has led to a complaint that has prompted an investigation by our Office for Civil Rights, but it should also prompt a conversation among educators, parents and students across America about our core values.”

Washington Post, Letters to the Editor (Jan. 13, 2011)



“In an increasingly diverse society like ours, racial isolation is not a positive outcome for children of any color or background. School is where children learn to appreciate, respect and collaborate with people different from themselves. I respectfully urge school boards across America to fully consider the consequences before taking such action. This is no time to go backward.”

Washington Post, Letters to the Editor (Jan. 13, 2011)



Wake County School Board Member Jon Tedesco’s response to Secretary Duncan’s letter:

– "I'm disappointed because I'm so highly supportive of [Secretary Duncan]," Tedesco said. "I'm disappointed that he didn't reach out to us before making comments based on a skewed media report."

•http://blogs.newsobserver.com/wakeed/fallout-over-arne-duncans-criticsm-of-wake-county-schools?page=1#ixzz1CvymGzyX



• Wake has been considering its next steps

– New Superintendent Jon Tatta created a task force to consider student assignment options.

– The Raleigh Chamber of Commerce and Wake Education Partnership hired Dr. Michael Alves to develop and recommend an assignment model that factors in student achievement along with stability, family choice and proximity.



“Wake reveals student assignment proposals, seeks comments.”

http://www.newsobserver.com/2011/05/23/1219695/wake-reveals-student-assignment.html


• “In the ‘green plan,’ the current system of assigning students to a specific school based on address would remain in place. But instead of busing students for socioeconomic diversity, as the old assignment policy did, some children from lower-performing neighborhoods would be bused to more distant - but higher achieving — schools based on academic reasons.”

http://www.newsobserver.com/2011/05/23/1219695/wake-reveals-student-assignment.html#ixzz1OE4YjGe3




• “Under the proposed ‘blue plan,’ families would no longer be assigned to a specific school. They’d choose from a list of four to six elementary schools, based on what’s closest to their home. To promote diversity, at least one choice would be an academically high-achieving school that may not be close to where the student lives.”

http://www.newsobserver.com/2011/05/23/1219695/wake-reveals-student-assignment.html#ixzz1OE4gj9ts



“Superintendent Tony Tata told the board [of education] on Tuesday [June 21] he intends to present a plan to them between September and October so they can vote on it.

He says it will combine the best of both the green and blue plans that were unveiled earlier.

If the board OK’s the plan, school selection for families would begin in December for the 2012-13 school year.”

http://www2.nbc17.com/news/2011/jun/21/wake-schools-moving-forward-new-student-assignment-ar-1141881/



July 8: “State NAACP leaders are warning that they might take further action against the Wake County school system because of concerns about a new student assignment plan.”

http://www.newsobserver.com/2011/07/08/1328945/tata-barber-meet-naacp-ponders.html#ixzz1RtyQvQOd


Ector County, TX



“[Ector County] School board in Texas approves definition of diversity that goes beyond race and ethnicity.”


http://legalclips.nsba.org/?p=6139



• “In recent weeks, [Superintendent] Sanchez has been working with the U.S. Department of Education’s Office for Civil Rights (OCR) in Washington, D.C. At the same time, OCR sent three attorneys and a deputy assistant education secretary to Ector County to assist with crafting the plan.”

http://legalclips.nsba.org/?p=6139


Ector’s definition of diversity:

• “Diversity in Ector County ISD is a reflection of the complexity of humanity. Ector County ISD defines diversity broadly by including giftedness, socioeconomics, primary language, special learning needs and race in recognition of humanity’s complexity.”


http://www.ectorcountyisd.org/ecisd/lib/ecisd/ECISD_Student_Assignment_Plan_Approved_4.27.11.doc


• The Ector plan includes a number of “diversity factors.”

– Economically Disadvantaged as defined by the Federal Government.– Limited English Proficient as defined by the Texas Education Agency.– Special Education as defined by the IDEA.– Gifted and Talented as defined by the Texas Education Agency State Plan for

Giftedness.– White as defined by the Texas Education Agency.– Hispanic as defined by the Texas Education Agency.– Underrepresented Groups: African-American; Asian Pacific Islander;

American-Indian/Alaskan Native.




• For each diversity factor, Ector has adopted diversity targets “needed to secure Ector County ISD’s definition of diversity and avoid racial isolation or isolation on the premise of a unique non-race-based characteristic or economic circumstance.”

– “To promote diversity and avoid isolation, including racial isolation, by achieving critical mass, the district will set lower and upper bounds for each factor. The lower bound will delineate the target number of students necessary for each factor to actualize the educational benefits of diversity. In regard to the racial factors, the upper bound will prevent racial isolation. The upper bound will also delineate the number of students in each factor, which once exceeded, will detract from the attainment of critical mass in other factors. Specifically, these upper bounds are necessary to ensure that concentrations of students of one race at some schools do not prevent achieving critical mass for other races at that school or the same race at other schools. The rest of this document will use the term “critical mass” to refer to the level of representation of groups needed to obtain the educational benefits of achieving diversity and avoiding isolation.”





Louisville, KY



Washington Post, September 20, 2010

“Three years after landmark court decision, Louisville still struggles with school desegregation.”




“Louisville, along with a number of other like-minded systems across the country, is betting that using socioeconomic factors, not just race, will help maintain diverse schools and meet the Supreme Court's requirements.”




“The final product, which integrates schools based on socioeconomic factors rather than on race alone, has proven to be more complex and costly than the previous system. Long bus rides and complaints from a vocal minority of parents have threatened popular support of the plan. The school board has delayed full implementation. The legislature is contemplating whether to guarantee parents a spot in their neighborhood schools.”




USA Today, September 30, 2010:

“In Louisville, a new turn in school integration.”

http://www.usatoday.com/news/education/2010-09-30-1Alouisville30_CV_N.htm


True or False #1

In assigning students to school, it is never permissible to consider race or ethnicity.


True or False #2

It is clearly established that the police need a warrant when interviewing a student on school grounds.


True or False #3

136

As in the fable – where the cat got burned when the monkey convinced the cat to do the dirty work and pull the chestnuts out of the burning fire – a school district can be held liable in a discrimination lawsuit when a supervisor’s bias causes another school official to take an adverse employment action based on that bias.


True or False #4

School officials can only be held liable for their intentional violations of the IDEA, not for negligent conduct.


Maree [email protected] Lovells U.S. LLP555 13th St. NWWashington, DC 20002(202) 637-6416

Chris LottAssociateChristopher.lott @hoganlovells.comHogan Lovells U.S. LLP555 13th St. NWWashington, DC 20002(202) 637-6416

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