SUPREME COURT UPDATE LIGHT VERSION-NO MULTIMEDIA BE SURE TO OPEN PRESENTER NOTES FOR FURTHER TEXT MARK WALSH

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1 SUPREME COURT UPDATE LIGHT VERSION-NO MULTIMEDIA BE SURE TO OPEN PRESENTER NOTES FOR FURTHER TEXT MARK WALSH Education Law Association ORLANDO, FLORIDA NOVEMBER 2016

2 CHICAGO CUBS V. CLEVELAND INDIANS Justice Stevens delivering ceremonial first pitch in 2005.

3 CHICAGO CUBS V. CLEVELAND INDIANS Judge Jeffrey S. Sutton of the U.S. Court of Appeals for the 6th Circuit, in November 2015, in Hearring v. Sliwowski, about a school search of a student: The risk that [the student] would be subject to another such search is no more actual and imminent than the Chicago Cubs (or, we fear, the Cleveland Indians) winning the World Series.

4 JUSTICE ANTONIN SCALIA

5 NOMINATION OF MERRICK B. GARLAND

6 NOMINATION OF MERRICK B. GARLAND SUPREME COURT AS COMPOSED FROM (1975 PHOTO)

7 NOMINATION OF MERRICK B. GARLAND Term Education Cases Columbus Board of Education v. Penick Dayton Board of Education v. Brinkman (Dayton II) Dougherty Board of Education v. White Givhan v. Western Lined Consolidated School District Harrah Independent School District v. Martin National Labor Relations Board v. Catholic Bishop of Chicago

8 TERM

9 FRIEDRICHS V. CALIFORNIA TEACHERS ASSOCIATION Rebecca Friedrichs and Michael Carvin

10 FRIEDRICHS V. CALIFORNIA TEACHERS ASSOCIATION With respect to collective bargaining, there's a specialized channel of communication that the government sets up. The government controls who can speak, when the discussion is going to occur, and what topics can be discussed. Solicitor General Donald Verrilli All of that is true. Nobody denies that. But the problem is that it is not the same as a private employer, that what is bargained for is, in all cases, a matter of public interest. And that changes the situation in a way that may require a change of the rule. Justice Scalia It's one thing to provide it for private employers. It's another thing to provide it for the government, where every matter bargained for is a matter of public interest.

11 ZUBIK V. BURWELL Little Sisters of the Poor

12 ZUBIK V. BURWELL

13 EVENWEL V. ABBOTT

14 EVENWEL V. ABBOTT As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. Nonvoters have an important stake in many policy debates children, their parents, even their grandparents, for example, have a stake in a strong public education system Justice Ginsburg By ensuring that each representative is subject to requests and suggestions from the same number of constituents, totalpopulation apportionment promotes equitable and effective representation.

15 HEFFERNAN V. CITY OF PATERSON

16 HEFFERNAN V. CITY OF PATERSON

17 HEFFERNAN V. CITY OF PATERSON In our view, the Act [42 U.S.C. 1983] applies to an employer who punishes an employee because the employer believes the employee has engaged in conduct that the First Amendment protects, even if the employer is factually mistaken about the conduct. Drawing guidance from one of our earlier cases, Waters v. Churchill, we think that what counts is the employer's motive as applied to the facts as the employer reasonably understood them. Justice Breyer

18 HEFFERNAN V. CITY OF PATERSON If the employee has not spoken on a matter of public concern, the employee has no First Amendment cause of action based on his or her employer s reaction to the speech. Justice Thomas

19 MCDONNELL V. UNITED STATES

20 MCDONNELL V. UNITED STATES In Sun-Diamond, the Court, in an unanimous opinion authored by our late colleague Justice Scalia, stated that it was not an official act for the President to host a championship sports team at the White House, the Secretary of Education to visit a high school or the Secretary of Agriculture to deliver a speech to farmers about USDA policy. We recognize that the Secretary of Agriculture always has before him matters that affect farmers, just as the President always has Chief Justice Roberts before him matters that affect college and professional sports, and the Secretary of Education matters that affect high schools. But we concluded that the existence of such pending matters did not mean that any action related to them was an official act. It was possible to avoid what the Court called the absurdity of convicting individuals on corruption charges for engaging in such conduct by adopting a more limited definition of official act and that is what we do. Hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, an official decision or action. More is required.

21 FISHER V. UNIVERSITY OF TEXAS AT AUSTIN (FISHER II) Abigail Fisher with Edward Blum, backer of challenges to affirmative action Gregory Fenves, president of UT-Austin

22 FISHER V. UNIVERSITY OF TEXAS AT AUSTIN Justice Scalia Gregory Garre, representing UT- Austin

23 FISHER V. UNIVERSITY OF TEXAS AT AUSTIN The University of Texas at Austin relies upon a complex system of admissions. That system has undergone significant evolution over the past two decades. Under the policy that operates today and that operated when this lawsuit began the University selects a significant majority of its class through the so-called Top Ten Percent Plan. Justice Kennedy That plan was enacted by the Texas State Legislature and it offers admission to any student who graduates from a Texas high school in the top 10 percent of his or her class. So that leaves only about 25 percent of the places in the incoming freshman class to be filled by the admissions process that's at issue here in this case. And that process is called holistic review.

24 FISHER V. UNIVERSITY OF TEXAS AT AUSTIN This Court now holds that the Court of Appeals was correct to conclude that the university has met its burden. Given the state of the record and the data available to the university in 2008, when petitioner's application was rejected, she was not denied equal treatment. Justice Kennedy The petitioner claims that the university has not articulated its compelling interest with sufficient clarity. She argues that the university has failed to state precisely what level of minority enrollment it seeks. The compelling interest that justifies consideration of race in college admissions, however, is not an interest in enrolling a certain number of minority students. Rather, it is an interest in obtaining the educational benefits that flow from student body diversity. The record here reveals that the university articulated concrete and precise goals with respect to its admissions decisions. These goals mirror the compelling interest that this Court has approved in prior cases.

25 FISHER V. UNIVERSITY OF TEXAS AT AUSTIN In Fisher I we explained quite clearly what the University needed to do to justify its new race-conscious plan. The first step was to define its interest in using racial classifications with clarity. Without that, meaningful judicial review is not possible. But the University has never complied. It has never come close. It has offered a shifting series of vague objections. Justice Alito When it adopted its challenged policy, it said that its goal was to obtain a critical mass of underrepresented minorities. What does that term mean? The University has never said. Is it some absolute number of African-American and Hispanic students? The University says no. Is it the percentage of African-Americans and Hispanics in the population of the state? Again, the University says no.

26 FISHER V. UNIVERSITY OF TEXAS AT AUSTIN Diversity within diversity In Fisher I, we were told that the Top Ten Percent Plan was inadequate because it resulted in the admission of the wrong kind of African-American and Hispanic students, namely, students from disadvantaged backgrounds who attended high schools with few white and Asian students. The race-conscious plan was needed, the University said, to secure the admission of the African-American or Hispanic child of successful professionals in Dallas. In its most recent brief, the University says that it needs to take race into account in order to admit the black student with high grades from Andover. This is a very strange argument for affirmative action. Affirmative action was created to help disadvantaged students. But the University now says it needs to take race into account in order to give preference to students from very privileged backgrounds. And it must be kept in mind that when an applicant from a privileged background is favored, students from less privileged backgrounds are likely to suffer. Admitting an Andover graduate because of his or her race may mean denying admission to the child of poor Asian immigrants who speak little English or a white applicant from an impoverished rural family, none of whose members has ever attended college. This is affirmative action gone berserk. Justice Alito

27 TERM

28 STAR ATHLETICA LLC V. VARSITY BRANDS INC.

29 STAR ATHLETICA LLC V. VARSITY BRANDS INC.

30 STAR ATHLETICA LLC V. VARSITY BRANDS INC.

31 STAR ATHLETICA LLC V. VARSITY BRANDS INC. Every university that you sell these cheerleading uniforms to, do they know that under your copyright, they are stuck with you forever? * * * Why not? If you have a copyright on this design, and they have adopted their school colors, orange and black, and I presume some of these are cheerleading uniforms belonging to certain teams, they buy them and they put their names on them, correct? * * * So why aren t they stuck with you being their only supplier of their school colors for the rest of their existence? Justice Sotomayor

32 FRY V. NAPOLEON COMMUNITY SCHOOLS Ehlena Fry with Wonder and family

33 FRY V. NAPOLEON COMMUNITY SCHOOLS And so, the idea that they could allow money damages for this type of situation without first exhausting the state processes is an end-run around the expert agency statute that Congress set up, in which they wanted to give states and localities the first crack at resolving this instead of allowing parents to abandon the IDEA system and march into federal court, which is exactly what happened here. Neal Katyal, arguing for the Napoleon school district on October 31.

34 ENDREW F. V. DOUGLAS COUNTY SCHOOL DISTRICT RE-1 Question Presented What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act?

35 ENDREW F. V. DOUGLAS COUNTY SCHOOL DISTRICT RE-1 U.S. Court of Appeals for the 10th Circuit Under Rowley, an IEP must be reasonably calculated to guarantee some educational benefit, which it interpreted to be any educational benefit that is more than de minimis. The court acknowledged that several circuits have adopted a higher standard that requires an IEP to result in a meaningful educational benefit.

36 ENDREW F. V. DOUGLAS COUNTY SCHOOL DISTRICT RE-1 Obama Administration brief filed at the invitation of the Court: The 10th Circuit's approach is not consistent with the text, structure, or purpose of the IDEA; it conflicts with important aspects of this court s decision in... Rowley, and it has the effect of depriving children with disabilities of the benefits Congress has granted them by law.

37 TRINITY LUTHERAN CHURCH OF COLUMBIA V. PAULEY

38 TRINITY LUTHERAN CHURCH OF COLUMBIA V. PAULEY Cert Pending Douglas County School District v. Taxpayers for Public Education New Mexico Association of Nonpublic Schools v. Moses James G. Blaine

39 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. Gloucester County School Board in 2014 Gavin Grimm

40 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. From Gloucester County School Board s Transgender Restroom Policy : It shall be the practice of the GCPS to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.

41 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. From the Ferg-Cadima letter: The Department s Title IX regulations permit schools to provide sexsegregated restrooms locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. James Ferg-Cadima

42 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. Obama Administration Amicus Brief in 4th Circuit: For most of its existence, there was no dispute about [the 1975 regulation's] meaning; it was understood simply to mean what it says, i.e., that Title IX recipients can provide separate boys and girls facilities. It is only in recent years, as schools have confronted the reality that some students gender identities do not align with their birth-assigned sex, that schools have begun citing [the regulation] as justification for enacting new policies restricting transgender students to facilities based on their birth or biological sex. It is to those newfound policies that ED's interpretation of the regulation responds. Providing guidance on how its regulations apply in new contexts is precisely the role of a federal agency.

43 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. Secretary of Health, Education, and Welfare Caspar W. Weinberger, in 1973

44 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. Judge Henry Floyd, writing for the 4th Circuit majority in Gloucester County case: G.G. claims that he is entitled to use the boys restroom pursuant to the department s interpretation of its regulations implementing Title IX. We have carefully followed the Supreme Court's guidance in Chevron, Auer, and Christopher and have determined that the interpretation contained in the OCR letter is to be accorded controlling weight.

45 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. Questions Presented by the Petition: 1. Should this Court retain the Auer doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled? 2. If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought? 3. With or without deference to the agency, should the [Education] Department s specific interpretation of Title IX and 34 C.F.R be given effect?

46 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. Questions Granted by the Court: 1. Should this Court retain the Auer doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled? 2. If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought? 3. With or without deference to the agency, should the [Education] Department s specific interpretation of Title IX and 34 C.F.R be given effect?

47 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. Auer v. Robbins 519 U.S. 452 (1997), as characterized by Judge Floyd: Auer requires that an agency s interpretation of its own ambiguous regulation must be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute. Agency interpretations need not be well-settled or long-standing to be entitled to deference. They must, however, reflect the agency s fair and considered judgment on the matter in question.

48 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. Justice Scalia, in a concurrence in Talk America Inc. v. Michigan Bell Telephone Co. (2011): Deferring to an agency s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.

49 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. Justice Scalia, in a concurrence in Decker v. Northwest Environmental Defense Center (2013): For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of deferring to an agency s interpretation of its own regulations.

50 GLOUCESTER COUNTY SCHOOL BOARD V. G.G. Montesquieu, in Spirit of the Laws: When the legislative and executive powers are united in the same person... there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

51 SUPREME COURT UPDATE MARK WALSH Education Law Association ORLANDO, FLORIDA NOVEMBER 2016