Stephen Breyer on Education
Supreme Court Justice (nominated by Pres. Clinton 1994)
Schools are limited in regulating student off-campus speech
Summary by OnTheIssues: When then-14-year-old Brandi Levi did not make her school's varsity cheerleading squad, she posted on Snapchat "F--k school f--k softball f--k cheer f--k everything." As a result, she was suspended from the junior
varsity squad for a year.
Majority opinion: The Court ruled 8-1 that though there might be circumstances in which off-campus speech might fall under the purview of the school, this did not qualify. It did not involve bullying or
threatening behavior, nor did it cause any disruptions at the school. Written by Breyer; joined by Roberts, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, & Barrett.
Concurring opinion: Alito, joined by Gorsuch, focused on when a school is
acting in loco parentis, agreeing that was not the case here.
Dissenting opinion: Thomas argued that, historically, a school can regulate off-campus speech if it has a tendency to harm the school, faculty, students, or programs.
Source: 2020 SCOTUS rulings: Mahanoy Area School District v. B.L.
, Jun 23, 2021
States can fund private schools but not parochial schools
Supreme Court delivered a major victory to parents seeking state aid for their children's religious school education. The court's conservative majority ruled 5-4 that states offering scholarships to students in private schools cannot exclude religious
schools from such programs.
The Montana supreme court struck down the program, citing the separation of church and state and prompting state officials to deny funds to secular schools as well. The Supreme Court's liberal justices seized on that point
in three separate dissents. They said Montana solved the discrimination by ending the program. "Petitioners may still send their children to a religious school," Associate Justice Ruth Bader Ginsburg said. "There simply are no scholarship funds to be
Roberts and other conservative justices said the no-aid policy had its roots in constitutional amendments in 37 states, many rooted in 19th-century anti-Catholic sentiment, that blocked religious schools from receiving public funds.
Source: USA Today: Dissent on Espinosa v. Montana, No. 18-1195
, Jun 30, 2020
Public education needs improvement, and civic lessons
Breyer called on lawyers to advocate for better public education, and to give future U.S. citizens the information and tools they need to create a just future
for themselves. "308 million people in the U.S. are not lawyers," he said. He stressed the need for improved education in how government and law work.
Source: Martha Heil, American Bar Association News Service
, Apr 6, 2011
Inequality in schools is rooted in institution of slavery
In its July 28, 2007, ruling, the U.S. Supreme Court effectively buried Brown by outlawing even voluntary schemes to create racial balance, as practiced by Seattle and Louisville. In his dissent, Justice Breyer likened the inequality in the nation's
schools to "a caste system rooted in the institution of slavery and 50 years of legalized subordination." Forty years after the assassination of Dr. Martin Luther King Jr., we had lost almost all of the progress made in the decades after his death.
Source: Trustbuilding, by Rob Corcoran, p.124
, Mar 4, 2010
Race-based college preference ok only if individualized
Grutter v. Bollinger upheld the University of Michigan Law School's consideration of race and ethnicity in admissions. In her majority opinion, Justice O`Connor said that the law school used a "highly individualized, holistic review of each applicant's
file." Race, she said, was not used in a "mechanical way." Therefore, the university's program was consistent with the requirement of "individualized consideration" set in 1978's Bakke case, O`Connor said. However, the court ruled that the University of
Michigan's undergraduate admissions system, which awarded 20 points to black, Hispanic, and American-Indian applicants, was "non-individualized, mechanical," and thus unconstitutional. [Dissenting opinion held that any race-based balancing is
unconstitutional; two dissenters suggested a 25-year time limit which should now be expired.]
Opinions:Majority: O`Connor, joined by Stevens, Souter, Ginsburg, & Breyer; partial dissent: Scalia & Thomas; dissent: Rehnquist & Kennedy
Source: InfoPlease.com on 2003 SCOTUS docket #02-241
, Jun 23, 2003
Federal aid to parochial schools is OK
He had initially embraced a more hard-line separationist approach to Establishment Clause issues. He has since moved a long way--to a position of embracing Congress's bipartisan effort to provide computers and other learning materials to all schools,
including private parochial schools, No rigid doctrines for Breyer. Leaving behind the unyielding separationism of the Court's most liberal justices (who were quite willing to invalidate Congress's handiwork), Breyer has been willing to accommodate.
Yet he would not embrace the more doctrinally pure approach of Justice Thomas, who wrote the main opinion upholding Congress's program of aid to parochial schools, Rather, Justice Breyer was in agreement with his frequent jurisprudential companion,
Justice O'Connor, in a separate opinion (for the 2 of them only). The upshot is that a seemingly odd couple--Justices O'Connor and Breyer--now are the decisive votes in this sensitive area of First Amendment law.
Source: First Among Equals, by Kenneth Starr, p. 40
, Oct 10, 2002
College affirmative action ok to achieve racial diversity
When the University of Michigan Law School denied admission to Barbara Grutter, a female Michigan resident with a 3.8 GPA, she alleged that the Law School had discriminated against her on the basis of race. The University argued that there was a
compelling state interest to ensure a "critical mass" of students from minority groups, particularly African Americans and Hispanics. The Supreme Court upheld the University's admissions policy.
The Court's ruling held that public universities are now
allowed to use race as a plus factor in determining whether a student should be admitted. Prior to this case, affirmative action had to correct the effects of historic discrimination. (Majority opinion written by O'Connor, joined by Stevens, Souter,
The dissent argued the Law School's "critical mass" admissions policy was an attempt to achieve an unconstitutional type of racial balancing. (Dissent by Rehnquist, joined by Scalia, Kennedy, and Thomas).
Source: Wikipedia on 2003 SCOTUS 5-4 ruling in Grutter v. Bollinger
, Jun 23, 1986
Parochial school vouchers violate church-state separation.
Justice Breyer wrote the dissent on Zelman v. Simmons-Harris on Jun 27, 2002:
The public schools in many of the poorer parts of Cleveland were deemed failures, and the legislature enacted the Pilot Project Scholarship Program to provide tuition vouchers for up to $2,250 a year to attend participating public or private schools. The parents chose where to enroll their children. In the 1999-2000 school year, 82% of the participating private schools had a religious affiliation.
HELD: Delivered by Rehnquist, joined by Scalia, KennedyThe Ohio program does not violate the Establishment Clause, because it passed a 5-part Private Choice Test developed for this case:
Rehnquist wrote that "the incidental advancement of a religious mission is reasonably attributable to the individual aid
recipients not the government, whose role ends with the disbursement of benefits."
- the program must have a valid secular purpose
- aid must go to parents and not to the schools
- a broad class of beneficiaries must be covered
- the program must be neutral with respect to religion, and
- there must be adequate nonreligious options.
CONCURRENCE: Concurrence by O'Connor and ThomasVoucher programs like the one in this case are essential because "failing urban public schools disproportionately affect minority children most in need of educational opportunity." Vouchers give families an opportunity to enroll their children in more effective private schools. Otherwise, "the core purposes of the 14th Amendment" would be frustrated.
DISSENT: Dissent by Souter, joined by Stevens, Ginsburg, Breyer"The voluntary character of parochial education over an education in the public school system is irrelevant to the question whether the government's choice to pay for religious indoctrination is constitutionally permissible." Religious instruction and secular education cannot be separated and this violates the Establishment Clause.
Source: Supreme Court case 02-ZELMAN argued on Feb 20, 2002
Ok to deny scholarships to divinity students.
Justice Breyer joined the Court's decision on Locke v. Davey on Feb 25, 2004:
Voting 7-2, the court upholds the provisions of Washington state's Promise Scholarship program, which offers taxpayer-funded scholarships to low-income college students enrolled in secular studies.
HELD: Delivered by Rehnquist, joined by Stevens, O'Connor, Kennedy, Souter, Ginsburg, BreyerThe justices rule in Locke v. Davey that states are not violating the First Amendment's guarantee of religious freedom if they choose not to subsidize students studying for the ministry. The decision upholds the constitutionality of the scholarship program which excluded students pursuing a "degree in theology."
DISSENT: Dissent by Scalia, joined by Thomas
When the State withholds a benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax. That is precisely what the State of Washington has done here. It has created a generally available public benefit, whose receipt is conditioned only on academic performance, income, and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology.
Source: Supreme Court case 04-LOCKE argued on Dec 2, 2003
Paying taxes sufficient to oppose religious tax credits.
Justice Breyer joined the dissent on ARIZONA CHRISTIAN SCHOOL v. WINN on Apr 4, 2011:
AZ law allows tax credits for contributions made to school tuition organizations (STOs). The STO then provides scholarships to students attending private schools, including religious schools. AZ taxpayers sued the state, challenging this law on Establishment [of religion] Clause grounds.
HELD: Delivered by KENNEDY, joined by ROBERTS, SCALIA, THOMAS & ALITOThe plaintiff taxpayers lack standing to sue, because no case exists that a federal court may decide. The plaintiffs cannot show injury particularized to them, as opposed to any other taxpayer. The taxpayer-plaintiffs cannot prove that the AZ legislature raised their tax burden in order to provide this tax credit. Also, since the credit takes students out of the public schools, there is a cost savings to the State. Nor can the plaintiffs show that, if a court enjoined AZ from providing the tax credit to others, state legislators would use the increased revenue to lower the plaintiffs' tax burdens. To say that Arizonans benefiting from the
tax credit are paying their state taxes to an STO assumes that all income is government property even if it has not come into the tax collector's hands.
CONCURRED: SCALIA concurs; joined by THOMASI concur in the judgment, but would repudiate the Court's anomalous Flast v. Cohen precedent that allowed a taxpayer lawsuit to proceed. It is irreconcilable with the Court's other decisions on cases or controversies suitable for the federal courts under Article III.
DISSENT: KAGAN dissents; joined by GINSBURG, BREYER & SOTOMAYORTax credits can achieve the same result of supporting a religion as do payments from the treasury, and no principled distinction exists between them. Sometimes no one but a taxpayer has requisite standing to challenge government support of religion under the Establishment Clause.
Source: Supreme Court case 11-AZ-WINN argued on Nov 3, 2010
Limited public funding OK for parochial school materials.
Justice Breyer joined the concurrence on MITCHELL v. HELMS on Jun 28, 2000:
Chapter 2 of the Education Consolidation and Improvement Act channels federal funds for educational materials such as library media and computer software, to public and private schools to implement “secular, neutral, and nonideological” programs. About 30% of Chapter 2 funds spent in Jefferson Parish, Louisiana, are allocated for private schools, most of which are religiously affiliated. Respondents filed suit alleging that Chapter 2 violated the First Amendment’s Establishment Clause.
Held:(Thomas, joined by Rehnquist, Scalia, and Kennedy)
Chapter 2, as applied in Jefferson Parish, is not a law respecting an establishment of religion simply because many of the private schools receiving Chapter 2 aid in the parish are religiously affiliated.
Concurrence:(O’Connor, joined by Breyer)
The expansive scope of the plurality’s rule is troubling. First, the plurality’s treatment of neutrality comes close to assigning that factor singular importance
in the future adjudication of Establishment Clause challenges to government school-aid programs. Second, the plurality’s approval of actual diversion of government aid to religious indoctrination is in tension with our precedents and is unnecessary to decide this case. [Within those limits], I concur in the judgment.
Dissent:(Souter, joined by Stevens and Ginsburg)
The First Amendment’s Establishment Clause bars the use of public funds for religious aid. The plurality is candid in pointing out the extent of actual diversion of Chapter 2 aid to religious use in the case before us, and equally candid in saying it does not matter. To the plurality there is nothing wrong with aiding a school’s religious mission; the only question is whether religious teaching obtains its tax support under a formally evenhanded criterion of distribution. The plurality equates a refusal to aid religious schools with hostility to religion. I respectfully dissent.
Source: Supreme Court case 98-1648 argued on Dec 1, 1999
Page last updated: Mar 21, 2022