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T+L: Smarter Connections for 21st Century Learners


Preview of the New Supreme Court Session

During its session that opens on October 3, the Supreme Court will welcome two new justices, including a new chief justice, and tackle several cases related to education. National School Boards Association staff attorneys Naomi Gittins, Tom Hutton, and Lisa Soronen will take your questions and preview pending cases in this online discussion scheduled for September 21 from 12 noon to 1 p.m. ET. Get the inside experts' view on the impact of the two Court vacancies, First Amendment rights of school employees, and the role of parents in establishing individual education plans under the Individuals with Disabilities in Education Act.

NSBA writes:

Welcome to NSBA's online discussion today. We're delighted to welcome our legal experts to answer your questions. To get us started, let's talk about how John Roberts, the soon-to-be Supreme Court chief justice, may impact the Court's education rulings?
An individual from Boston, Mass. asks:

In your opinion, how will John Roberts, the soon-to-be Supreme Court chief justice, impact the Court's education rulings?
Tom Hutton writes:

No one knows for sure, of course. As we've seen over and over, the voting patterns of Supreme Court Justices are hard to predict in advance. Only two of the current Justices, Ginsburg and Breyer, were appointed by Democrats, but that hasn't meant that all Republicans are thrilled with the Court. In their confirmation hearings, nominees tend to be very reticent about specifics. The perspectives of judges change with experience, and the dynamics among nine Justices are hard to predict. In fact, Judge Roberts has indicated that his experience on the bench has given him new appreciation for the differences between the roles of advocate and of arbiter.
Tom Hutton writes:

That said, why we think there are reasons for school boards and other education advocates to be optimistic about a Chief Justice Roberts, apart from his qualifications. He has dealt with school issues more than any other Justice since Louis Powell, a former Virginia school board member (although Justice Breyer also brings some perspective -- his dad was a school attorney). Before ascending to the bench, John Roberts was very generous in sharing his time and expertise with NSBA and its Council of School Attorneys (COSA). He served on moot courts we organize to help school lawyers prepare to argue before the Court, presented at COSA conferences, and gave thoughtful advice to NSBA in its Supreme Court amicus advocacy and to the COSA members who were his colleagues at Hogan and Hartson.
Tom Hutton writes:

Much has been made of Roberts' writings while a federal lawyer, which included controversial views on topics such as desegregation, prayer in schools, and Title IX. Two things are worth bearing in mind. First, an in-house attorney, like one in private practice, is an advocate for his or her client, which is a very different role from that of a judge. Second, it's important to distinguish between the legal questions he addresses and either the political context or the colorful language he uses to liven up his writings.
Tom Hutton writes:

NSBA can relate to this: the position our brief took in the Title IX case during the last term placed us to the right of the Bush administration. But it doesn't follow that school boards don't care about equal opportunities for women or want to be "free to retaliate" against people who raise civil rights concerns. The legal issue had to do with who Congress intended to able to sue, and under what circumstances.
A school board member from Shelbyville, Kentucky asks:

This doesn't have anything to do with education directly, but it is time we look at limitin the term of the supreme court justices. Physical and mental abilities change with age. Not all justices are alert enough to serve and will not step down. For the good of education and society in general, term limits ought to be sought.
Lisa Soronen writes:

Occasionally a commentator expresses your view, which may be shared by many people, though probably not by Justice Stevens, the oldest member of the Supreme Court, age 85 - his acuity and health have not given rise to the kind of speculation that sometimes has come up about some of his younger colleagues.
Lisa Soronen writes:

However, imposing term limits on federal judges and U.S. Supreme Court Justices would not be easy. Article III, Section 1 of the United States Constitution guarantees them positions for life as long as they behave well! (More accurately, the Constitution states, "The Judges, both of the supreme and inferior Courts, shall hold their Officers during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.").
Lisa Soronen writes:

And, of course, amending the Constitution is appropriately difficult: two-thirds of both houses of Congress (or a Convention convened by Congress at the behest of two-thirds of the states) and three-fourths of the States must agree to a change. While things have changed a lot since our Constitution was adopted in the late 1700s (e.g., people live and work longer-think Alan Greenspan), the Founders' rationale for judges with lifetime appointments remains persuasive to most people: such appointments make judges less susceptible to pressure. In fact, in his confirmation hearings, Judge Roberts disavowed a 1983 memo he wrote in favor of judicial term limits. Now he says he may be a little more sensitive to the concerns, such as litigants shaping their litigation strategies around fixed retirement dates that everyone knows years in advance.
A school district administrator from Fairfax County Virginia asks:

How do you think the Supreme Court would rule on the Connecticut NCLB case if it went that far? And what do you think will be the basis of the ruling?
Tom Hutton writes:

You frame your question well with the words "if it went that far." We're a long way off from any of the legal challenges to the No Child Left Behind Act reaching the Supreme Court. That means prognostication at this point is pretty wild guessing.
Tom Hutton writes:

We won't know what would be in the trial record and what evidence would be mustered. In fact, we don%u2019t know which legal issues would be appealed to a Circuit Court, much less what question(s) the Supreme Court would certify, if it even decided to hear such a case (relatively few of the thousands of petitions for review the Court receives each year are successful). The Connecticut suit raises some of the same, but some different, claims from those raised by the NEA in its NCLB suit, which in turn are different from those in another suit by some Illinois school districts and parents. Maine has been flirting with the idea of its own suit, and the longer Congress waits to get around to fixing and funding the act, the greater the incentives for more legal challenges.
Tom Hutton writes:

In very general terms, two key issues in the Connecticut suit are statutory interpretation of NCLB's own "unfunded mandates" language and questions of the feds' exceeding their constitutional power under the Spending Clause and the Tenth Amendment. On both statutory interpretation and federalism, the Court's approach has fluctuated a bit. Case in point: in the Title IX case we mention above, the Court departed somewhat from the directions it had signaled on both issues in its recent rulings.
Tom Hutton writes:

Finally, two or more new Justices will be on the Court by the time an NCLB case arrives, so the uncertainty is greater. Generally speaking, Justice O'Connor was a vote for federalism. A Chief Justice Roberts may be relatively more deferential to Congress.
A school board member from Green Lake, Wisconsin asks:

Does NCLB have a date that it expires or needs reauthorization or is it open-ended?
Tom Hutton writes:

No Child Left Behind is up for reauthorization in 2007, although NSBA has proposed legislation to improve the act now rather than letting another year or two of problems to build up. Details on NSBA's proposal are available on the Advocacy section of NSBA's website, www.nsba.org.
Lisa Soronen writes:

And don't forget that we won't need NCLB after 2014 because every child in America will be at grade level.
A school attorney from wichita falls, texas asks:

What do you think of the pledge of allegiance case?
Tom Hutton writes:

There is more than one case out there: I'm guessing you're referring to the latest chapter in Michael Newdow's saga, which was decided last week. There's another case that is further along - it was decided by the Fourth Circuit this summer. NSBA supported the Elk Grove, California school board's policy that Dr. Newdow challenged last time. Our brief emphasized the curricular context of the Pledge, which we felt made clear that the Pledge policy is a civic, not a religious exercise. We also organized a moot court for Terry Cassidy, the lawyer who defended the school board's policy before the Court. If either of the cases make their way to the Supreme Court again, we expect we'll weigh in again.
An individual from Dumfries VA asks:

I have noticed that some of the legislation being proposed by the Bush administration has become an opportunity for them to sneak in some of the agenda items that have been reluctant to push forward on a national level. Am I being paranoid?
Tom Hutton writes:

You must be referring to the voucher proposal, and on that score you're not being paranoid. Reminds me of a Woody Allen movie. Dan Akroyd's (I think)character says,"You know, there's a term for people like you who think everyone is out to get them." Allen's character replies, "Yeah: perceptive." They pay us to be lawyers, not lobbyists, so that's about as much as we have on that question, except to note that it's a pretty gutsy move, given the politics around the socio-economics of the Hurricane, to propose huge funding for private school tuition.
An individual from Madison, Wisconsin asks:

How do you think the Weast case will be decided?
Naomi Gittins writes:

As you know Weast concerns who has the burden of proof when a parent challenges an initial IEP under the Individuals with Disabilities Act. The Court's answer will depend on how statutory interpretation or public policy considerations sway the Court. Given the Court's current composition and the soon addition of Chief Justice Roberts, the Court is more likely to take a careful look at what Congress actually said and didn't say in the IDEA. From that point of view, the Court may agree with NSBA's argument in its amicus brief that Congress already gave parents plenty of procedural rights to protect their child's right to a free appropriate public education. They didn't include an automatic assignment of burden of proof to school districts. That means you follow general principles and assign it to the challenging party. That said, the school district should win even on public policy grounds. There are no good ones for switching the burden to schools.
A school board member from Green Lake, Wisconsin asks:

Has the parent been given more authority in adjusting IEP when their child does not meet thier goals under IDEA reauthorization? I know of a child that was going to be shifted to a program with limited literacy training because she was unable to learn to read in first grade, but with some advocacy from her mainstream teacher it was not allowed. This is a scary situation for a parent.
Naomi Gittins writes:

Making sure that a child gets the educational services that he or she needs can be a daunting task for parents who are not aware of all their rights under the IDEA. Hopefully schools do a good job of informing parents of those rights. When they do, parents recognize that they are full partners with school personnel in determining what services the child needs. The reauthorized IDEA, like former versions of the law, all envision a very collaborative relationship between parents and schools in developing an educational program for children with disabilities.
NSBA writes:

That wraps up our online discussion today. Thanks very much to our legal experts and our participants. For more information on these and other school law topics, see NSBA's School Law web site at www.nsba.org/schoollaw.