As the curtain rises this week on a new U.S. Supreme Court term and a new chief justice, one of the first items on the docket is a special education case that could affect school districts nationwide.
Observers were awaiting the first clues of any shift in direction on the high court, stemming from the addition of John G. Roberts Jr., the first new member in 11 years and first new chief justice in 19 years. He was confirmed by the Senate on Sept. 29 by a vote of 78-22.
Another potentially momentous change鈥攖he replacement of retiring Justice Sandra Day O鈥機onnor鈥攎ay not be final for weeks or months. President Bush was expected to announce his choice for Justice O鈥機onnor鈥檚 seat soon after Chief Justice Roberts won confirmation. In the meantime, Justice O鈥機onnor was expected to take the bench this week, effectively delaying her retirement.
The court is scheduled to hear arguments Oct. 5 in Schaffer v. Weast (Case No. 04-698). The case will determine whether a parent or a school district has the burden of proof when the parties reach an impasse over a student鈥檚 individualized education program under the federal Individuals with Disabilities Education Act.
The appeal stems from a fairly routine dispute over a student鈥檚 special education plan between a Potomac, Md., family and the 139,000-student Montgomery County, Md., district. The Supreme Court will likely use the case to settle a split among lower federal courts over the burden-of-proof issue. (鈥淏est Evidence,鈥� Sept. 28, 2005)
Workplace Free Speech
So far, the U.S. Supreme Court plans to hear four cases of particular interest to educators during its term that begins this week:
(Case No. 04-698)
The court will decide which side bears the burden of proof 鈥� parents or the school district 鈥� when a student鈥檚 individualized education program is challenged under the individuals with Disabilities Education Act.
(Case No. 04-473)
This case gives the court an opportunity to revisit its decisions on free speech by public employees, including school district employees. The question is whether a government worker has First Amendment protection for on-the-job speech on a matter of public concern, such as whistleblowing about misconduct in his agency.
(Case No. 04-905)
This antitrust case involving purchasing practices in the heavy-vehicle industry has attracted a friend-of-the-court brief from the National Association of State Directors of Pupil Transportation, which worries that a lower-court ruling in the case will discourage school bus manufacturers from offering discount prices in competitive bids.
(Case No. 04-1152)
The court will decide whether the Solomon Amendment, a federal law that requires the withholding of federal funds from colleges that deny military recruiters the same access to campuses and students that they provide to other employers, violates the institutions鈥� First Amendment rights.
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On Oct. 12, the high court will hear arguments in another case with significant implications for school districts. In Garcetti v. Ceballos (No. 04-473), the question is whether employees of a government agency, including school district workers, have First Amendment protection for speech expressed in the course of their duties. The case involves a prosecutor in the Los Angeles County district attorney鈥檚 office who claims he suffered retaliation for blowing the whistle on alleged misconduct by a sheriff鈥檚 deputy.
A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled 3-0 that the employee had a First Amendment free-speech right that outweighed his employer鈥檚 interest in avoiding workplace inefficiency and disruption.
In its appeal, Los Angeles County argues that such on-the-job speech is different from the kind of government-employee speech upheld by the Supreme Court in its 1968 ruling in Pickering v. Board of Education of Township High School District 205. In that case, involving a teacher鈥檚 letter to a newspaper in a controversy over school funding, the court upheld the teacher, based on his role 鈥渁s a citizen.鈥�
Meanwhile, in a case being watched closely in higher education, the Bush administration has appealed a federal appellate court ruling that the Solomon Amendment, a law requiring that federal funds be withheld from colleges and universities that deny military recruiters the same access to campuses and students that they provide to other employers, likely violates the First Amendment.
The case, Rumsfeld v. Forum for Academic and Institutional Rights (No. 04-1152), scheduled for argument on Nov. 29, involves law schools that refuse to assist potential employers that discriminate on the basis of sexual orientation. FAIR, a membership group of law schools, argues that the federal law forces schools that disapprove of the military鈥檚 鈥渄on鈥檛 ask, don鈥檛 tell鈥� policy, which bars homosexuals from serving openly in the military, to assist the military in communicating a message its members oppose.
Public high schools are required to allow military recruiters on campus under a provision of the No Child Left Behind Act, rather than under the Solomon Amendment, but a decision in favor of the law schools could be used to mount a legal challenge to the public school requirement.
Bus Discounts at Risk?
Education groups typically don鈥檛 take a keen interest in federal antitrust law, but one such case on the Supreme Court鈥檚 docket involving the heavy-vehicle industry has attracted the attention of the National Association of State Directors of Pupil Transportation.
In Volvo Trucks North America Inc. v. Reeder-Simco GMC Inc. (No. 04-905), the justices will examine whether it was a violation of antitrust law when a truck manufacturer offered a concession to one vehicle distributor and not to another.
The pupil transportation group, based in The Plains, Va., argues that a high court ruling against Volvo Trucks North America would discourage school bus manufacturers and distributors from offering districts selective discounts on buses in the course of competitive bidding, which 鈥渨ill seriously impair the ability of local and state governments to purchase new school buses.鈥� The case is scheduled to be argued on Oct. 31.
