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Dodd on Education Law in the Roberts Court

By Lawrence Solum

Victoria J. Dodd (Suffolk University Law School) has posted The 2007 Roberts Court Education Law Cases: Reaffirmation or Cut-Back of Student Rights? (Suffolk University Law Review, Vol. 42, p. 61, 2008) on SSRN. Here is the abstract:

The Warren Court created a stronghold of student-based rights in such cases as Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), and Brown v. Bd. of Educ., 347 U.S. 483 (1954). In Tinker, the Court held that absent substantial disruption, student expressive rights should be protected; and in Brown, de jure racially segregated public schools were found to be "inherently unequal." This Article describes and analyzes how two 2007 cases of the new Roberts Court dealing with student speech issues and school desegregation concerns may have strayed from Supreme Court precedent and what these new cases might indicate for future developments in these areas of law.

The first case is Morse v. Frederick, 127 S. Ct. 2618 (2008). The Article analyzes that this decision carved out a new exception for student speech rights: public schools may censor student speech promoting illegal drug use. The fragmented opinion of the Court is analyzed, with Justice Alito writing a moderating concurrence. The second case is Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S. Ct. 2738 (2007). In that plurality ruling, the Court struck down the use of racially-based pupil assignments for public schools in Seattle and Louisville. The precise impact of the ruling remains unclear, but certain members of the Court even question the educational and democratic benefits of racially integrated schools, which were goals of the Brown decision, thus also perhaps casting doubt upon the continuing viability of Bakke/Grutter university affirmative action programs.

The Court has granted certiorari on a student search case, Redding v. Safford Unified School District, 531 F.3d 1071 (9th Cir. 2008), which may shed some light on at least the drug speech issues raised in Morse. The case involves the strip search of a female student for allegedly possessing the over-the-counter drug ibuprofen, in violation of school rules. The decision and reasoning in the case will also give the Court an opportunity to discuss its view of student rights in general, as well as the role of public education, which Brown discussed as "perhaps the most important function of state and local governments."

Full post as published by Legal Theory Blog on March 20, 2009 (boomark / email).