News: Rights Watch
School Cases Dominate Docket

Supreme Court to decide key First Amendment issues.

The High Court is poised to decide four important First Amendment cases that impact schools.

Can public colleges and universities force students to help fund student organizations they don’t like?

Can school boards let students pray at high school football games over the public address system?

Can the Boy Scouts expel members and leaders for being gay?

Can public money be used to fund computers, software, library books, and other instructional materials for private and parochial schools?

The Supreme Court will answer these questions before July.

In Board of Regents of the University of Wisconsin v. Southworth, several law students challenged the university’s mandatory student activity fee, charging that it helped fund student groups, including the Progressive Student Network and the Student NOW chapter, they found objectionable. Having to pay the $166 fee each semester, the law students argued, violated their rights to free speech and association.

The university argued that the fee program doesn’t offend the First Amendment because it subsidizes a wide array of student groups, including groups the plaintiffs supported.

The Seventh Circuit Court of Appeals sided with the students. But three dissenting judges warned that the ruling threatens academic freedom and could create a precedent enabling other students to seek tuition reimbursement if they don’t like the views expressed by particular faculty members.

NEA filed a friend-of-the-court brief supporting the university.

In Santa Fe Independent School District v. Doe, the Court will decide whether a small school district in Galveston County, Texas can permit student-led prayers over the public address system to open high school football games.

The Fifth Circuit Court of Appeals held that the practice violates the First Amendment’s requirement of separation of church and state.

The last time the High Court weighed in on the school prayer issue was 1992, when it prohibited clergy-led graduation prayers in Lee v. Weisman.

Since then, the lower courts have disagreed about the constitutionality of student-led prayers.

In Boy Scouts of America v. Dale, the Court will determine whether the Boy Scouts have a First Amendment right to exclude members and leaders because they’re gay.

James Dale was a highly decorated Eagle Scout who later served as assistant scoutmaster in his New Jersey troop. The Boy Scouts expelled him in 1992 after learning that he was gay.

Dale then sued the Boy Scouts, relying on a New Jersey law banning discrimination on the basis of sexual orientation in “places of public accommodation.”

The Boy Scouts claimed that the New Jersey law couldn’t override the Scouts’ First Amendment right to select its own members.

Citing a Supreme Court case upholding a state law ban on sex discrimination in civic clubs, the New Jersey Supreme Court unanimously ruled in Dale’s favor.

School districts are the second largest sponsor of Scout troops, and NEA plans to file a friend-of-the-court brief in support of Dale.

In Mitchell v. Helms, the Court will decide whether a federal aid program that provides religious schools with computers, software, instructional equipment, and library books violates the separation of church and state.

The Court’s ruling may have an impact on the question whether private school vouchers violate the Establish-ment Clause.

With this in mind, the NEA filed a friend-of-the-court brief urging the Court to reaffirm the core First Amendment principle that “public funds cannot be used to support religious activities.”

The computers and instructional materials are themselves nonsectarian, the brief argued, but they nevertheless aid religious schools in advancing their avowed sectarian purposes.

Check this space for an update on these decisions next fall.

—Cynthia M. Chmielewski
NEA Office of General Counsel

A State Right To Discriminate?

Should state employers be exempt from federal laws banning discrimination in the workplace? The U. S. Supreme Court thinks so.

In a landmark 5-4 decision, the High Court ruled last January that state workers—including employees of public colleges and universities—can’t sue their employers for violating the federal law against age discrimination. Apparently, a majority of the Court believes that “states’ rights” includes the right to discriminate against state workers.

The case, Kimel v. Florida Board of Regents, involved 36 higher ed NEA members from Florida who claimed they were denied salary increases because of their age.

The Supreme Court dismissed the lawsuit, ruling that Congress over-stepped its authority when it prohibited age discrimination by state employers. The Court said the 11th Amendment—which shields state entities from suit in federal court—trumps Congress’ power under the Constitution to ban age discrimination.

After Kimel, it’s likely that public employers will be able to claim exemption from suit under a host of other federal civil rights laws as well, including: the Americans with Disabilities Act, the Family and Medical Leave Act, and the Equal Pay Act, which bans sex discrimination in pay.

One caveat: the 11th Amend-ment applies only to “state” employers, such as public colleges and universities. Except for California and Maryland, most courts have ruled that school districts are not entitled to 11th Amendment immunity.

NEA is working with other groups on a bill to make states waive 11th Amendment immunity if they get federal funds.