supremes' greatest hits, The

NEA Today, Jan 2000 by Simpson, Michael D

Until the late 1960s, public school employees had little or no job protection. Women could be fired for getting married, and most teachers were "at will" employees, who could be dismissed at any time for any reason.

But over the last 50 years, the U.S. Supreme Court has dramatically enhanced the employment rights of educators and changed the nature of public education.

Here, as the century turns, is a survey of the High Court's landmark education decisions:

Due Process. In Board of Regents v. Roth (1972), the Court first ruled that school employees with tenure or "continuing contract status" or who are fired for stigmatizing reasons have a right under the 14th Amendment to procedural due process.

This due process includes notice of the charges and a fair hearing before an unbiased party that includes the right to counsel, to present evidence, and to call and cross-examine witnesses.

Freedom of Speech. The Court declared in 1968 that school employees can't be punished for speaking out on matters of public concern. The case, Pickering v. Board of Education, established a basis for later rulings on the right to belong to a union and to associate freely without employer retaliation.

Freedom of Thought and Conscience. The Court has ruled that public schools are special places where freedom of thought and conscience should be protected under the 1st Amendment. Some samples:

"Teachers and students must always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die." Sweezy v. New Hampshire (1957).

"The classroom is peculiarly the ,marketplace of ideas."' Keyshian vs. Board of Regents (1967).

"In our system, state-operated schools may not be enclaves of totalitarianism.... [S]tudents may not be regarded as closed-circuit recipients of only that which the State chooses to communicate." Tinker v. Des Moines Independent School District (1969).

"[L]ocal school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to 'prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."' Board of Education of Island Trees v. Pico (1982).

Privacy and Liberty. In 1923, the Court recognized a constitutional right to "privacy" and "liberty," a right not to have the government-including public employers-intervene in personal decisions on marriage, procreation, and child-rearing.

Applying this principle, the Court has said that citizens have a constitutional right to send their children to private school (Pierce v. Society of Sisters (1925)), to have their children study a foreign language (Meyer v. Nebraska (1923)), to marry interracially (Loving v. Virginia (1967)), to both procreate and use contraceptives (Griswold v. Connecticut (1965)), and to reproductive freedom (Roe v. Wade (1973)). NEA has used these cases to win

lower court rulings that school employees can't be fired for refusing to have an abortion, for divorcing, or for having a child out of wedlock.

School Desegregation. With Brown v. Board of Education (1954), the Court changed the face of public education and explicitly acknowledged the vital role of public schools in the American democratic experiment:

"Today, education is perhaps the most important function of state and local governments. It is the very foundation of good citizenship [and] a principal instrument in awakening the.child to cultural values."

Church/State Separation. School cases are where the Court has mostly strongly upheld separation of church and state.

In Engel v. Vitale (1962), for example, the Court prohibited state-mandated (but not individual) prayer in public schools and, in Stone v. Graham (1980), outlawed posting the Ten Commandments on classroom walls.

In 1973, the Court struck down a New York private school voucher program in PEARL v. Nyquist, a ruling that is now being challenged in several new voucher cases by proponents of antidisestablishmentarianism.

Michael D. Simpson

NEA Office of General Counsel