Elena Kagan on Education
Majority opinion: The Court ruled 8-1 that though there might be circumstances in which off-campus speech might fall under the purview of the school, this did not qualify. It did not involve bullying or threatening behavior, nor did it cause any disruptions at the school. Written by Breyer; joined by Roberts, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, & Barrett.
Concurring opinion: Alito, joined by Gorsuch, focused on when a school is acting in loco parentis, agreeing that was not the case here.
Dissenting opinion: Thomas argued that, historically, a school can regulate off-campus speech if it has a tendency to harm the school, faculty, students, or programs.
The Montana supreme court struck down the program, citing the separation of church and state and prompting state officials to deny funds to secular schools as well. The Supreme Court's liberal justices seized on that point in three separate dissents. They said Montana solved the discrimination by ending the program. "Petitioners may still send their children to a religious school," Associate Justice Ruth Bader Ginsburg said. "There simply are no scholarship funds to be had."
Roberts and other conservative justices said the no-aid policy had its roots in constitutional amendments in 37 states, many rooted in 19th-century anti-Catholic sentiment, that blocked religious schools from receiving public funds.
[The Clinton Administration] filed a brief in the Supreme Court in support of the white teacher's reverse-discrimination claim "on the narrow ground that the board failed to offer an adequate justification for the particular race-based layoff decision," and predicted that the Supreme Court would likely rule that the Civil Rights Act never permits nonremedial affirmative action: "Such a ruling would be a disaster for civil rights in employment." In the margin, Kagan penned, "I think this is exactly the right position--as a legal matter, as a policy matter, and as a political matter."
Civil rights groups came up with money to allow the school board to settle the case with the white teacher.
In the margin of a memo outlining the issues in the case, Kagan wrote: "I think the President would wish to file in this case. Agree? Elena." Then, she added a second notation: "(Also, I think he would want the SG [solicitor general] to make the case for overruling--not just distinguishing Meek and Wolman.)
That was a reference to two Supreme Court decisions from the 1970s--Meek v. Pittenger and Wolman v. Walter--that dealt with various forms of government aid to nonpublic schools. Ultimately, the Clinton administration supported the aid programs, and in Mitchell v. Helms, the Supreme Court in 2000 upheld the aid to nonpublic schools, and the majority partially overruled Meek and Wolman.
Kagan wrote: "Whether the lawyers like it or not, the all-boys approach will get us into real trouble with our women's groups friends--at a time when we're likely to need them. This is especially so if they know that we've pushed NYC toward this approach. Tell your friends at Education that finding a remedial justification would be much better--and that they shouldn't press the all-boys school too hard."
Kagan worked on education issues when she served as deputy director of the White House Policy Council under Pres. Clinton.
AZ law allows tax credits for contributions made to school tuition organizations (STOs). The STO then provides scholarships to students attending private schools, including religious schools. AZ taxpayers sued the state, challenging this law on Establishment [of religion] Clause grounds.
|Other Justices on Education:||Elena Kagan on other issues:|
Samuel Alito(since 2006)
Amy Coney Barrett(since 2020)
Stephen Breyer(since 1994)
Neil Gorsuch(since 2017)
Ketanji Brown Jackson(nominated 2022)
Elena Kagan(since 2010)
Brett Kavanaugh(since 2018)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)
Merrick Garland(nominated 2016)
Ruth Bader Ginsburg(1993-2020)
John Paul Stevens(1975-2010)
Sandra Day O'Connor(1981-2006)
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