Education Law Stories (review)

Personal stories of courage often lie at the genesis of cases heard by the U.S. Supreme Court but are often lost in the Court’s opinions and therefore are unknown to many. This description is true in education cases as well. Olivas and Schneider (2008), along with their colleagues, examine a dozen key education cases heard by the Supreme Court over the past half century.

These cases address such issues as “equality of opportunity, affirmative action, race, gender, language and disability discrimination, freedom of expression, loyalty oaths, the constitutionally permissible scope of religion in the public sphere, and the constitutional limits on search and seizure” (p. 1). Higher education institutions serve as the setting for five of the cases presented, but a number of K-12 education cases, such as Brown v. Board of Education (1954) and Hazelwood School District v. Kuhlmeier (1988), have implications for postsecondary education as well. This review focuses on the chapters addressing higher education cases.

Wendy Parker addresses the complicated and difficult landscape of affirmative action in higher education in Chapter 4 on Grutter v. Bollinger (2003) in which the Supreme Court, in a majority opinion by Justice Sandra Day O’Connor, “affirmed that diversity could be a legally legitimate rationale for affirmative action, and validated Michigan’s approach to deciding who is admitted to the law school” (p. 84). Parker briefly shares Barbara Grutter’s personal biography and the role played by the Center for Individual Rights in the lawsuit as well as broader litigation designed to have the Court rule that Justice Lewis F. Powell Jr.’s opinion in Regents of the University of California v. Bakke (1978) was no longer valid.

Using a playful, but effective, baseball metaphor, Parker traces the parallel consideration by the courts of Grutter and Gratz v. Bollinger (2003). One of these cases’ more distinctive aspects was the large number of amici briefs filed on both sides of the issue. Amici supporting the University of Michigan included General Motors and a group of retired military officers. The Bush Department of Justice filed a brief endorsing a compromise position.

Parker carefully examines two key components of the Grutter decision: (a) diversity as a compelling governmental interest, and (b) narrowly tailored consideration of race in admissions. While Gratz and Grutter “brought clarity to what schools can and cannot do in the name of diversity” (p. 103), her concluding comment seems prescient: “The story of affirmative action seems to be one that will never end” (p. 104).

Rosemary Salomone examines the Supreme Court’s ruling in United States v. Virginia (1996) in which the Supreme Court ruled, in an opinion by Justice Ruth Bader Ginsburg, that the 14th Amendment required the admission of women to the Virginia Military Institute, a public institution of higher education. The Citadel, a public university in South Carolina, was the only other institution of higher education immediately affected by this decision. A key difference between this case and those involving affirmative action is that the U.S. Department of Justice under President Bill Clinton brought suit against the Commonwealth of Virginia.

Perhaps the most compelling aspect of Salomone’s chapter is her discussion of VMI and the Citadel’s immediate implementation of coeducation in the wake of the Court’s decision as well as the long-term effects. As Salomone notes, “This deceptively simple case of sex, schooling, and the military merits serious reflection as it continues to evolve against the enduring yet ever-changing debate over sameness and difference” (p. 189).

In considering Southeastern Community College v. Davis (1979), Laura Rothstein explores the Supreme Court’s consideration of disability law in higher education. Frances Davis was denied admission to Southeastern Community College’s registered nursing program in 1973 because she had significant hearing loss. Her attorney brought suit under the newly passed Section 504 of the Rehabilitation Act of 1973. The Supreme Court, in an opinion written by Justice Powell defined the scope of an otherwise qualified person under the Rehabilitation...