Law & Courts

Conservatives’ Checklist: U.S. Supreme Court Education Decisions to Overrule

By Mark Walsh — May 11, 2022 3 min read
The Supreme Court in Washington, Dec. 3, 2021. The Supreme Court has turned away a plea from parents to block a new admissions policy at a prestigious high school in northern Virginia that a lower court had found discriminates against Asian American students.
  • Save to favorites
  • Print

The leak of a draft U.S. Supreme Court majority opinion that would overrule the landmark 1973 abortion-rights decision Roe v. Wade has prompted commentators to discuss what other high court cases might be targets for reconsideration. Here are five education issues with precedents that have been targets of conservative justices or politicians in recent years, including one that was overruled just a few years ago after a lengthy effort.

Teachers’ Union Fees (Decision Overturned)

For years, conservatives on the court sought to roll back and overrule a 1977 decision, Abood v. Detroit Board of Education, that had authorized the collection of service fees for collective bargaining from public employees who refuse to join their union. In 2018, in Janus v. American Federation of State, County, and Municipal Employees Council 31, they accomplished their goal, much to the chagrin of the teachers’ unions. Justice Samuel A. Alito Jr., the author of the controversial leaked draft opinion that would overrule Roe, wrote the opinion for the 5-4 court in Janus that said objecting employees could not be compelled under the First Amendment to help fund union speech with which they disagreed.

Free Public Education for Immigrant K-12 Students

The high court’s 1982 decision in Plyler v. Doe, which held that Texas violated the 14th Amendment’s equal-protection clause by withholding funds from school districts for the education of undocumented immigrant children, is getting fresh attention after Texas Gov. Greg Abbott, a Republican, said he wants to “resurrect” a challenge to that decision. The state has complained for years about the costs of educating undocumented students. But some observers believe Abbott, who is seeking re-election this year, is chiefly raising this issue for political reasons.

‘Church and State’ Test

In the 1971 case of Lemon v. Kurtzman, the court struck down state salary supplements for teachers in religious schools and established a three-part test for courts to weigh government action regarding religion. The famous test asks whether the challenged program had a secular purpose, had the primary effect of advancing or inhibiting religion or created an excessive entanglement with religion. The Supreme Court has largely abandoned the Lemon test, but lower federal courts have continued to apply it. Several conservative justices have called for Lemon to be outright overruled, and two education cases pending decision before the court, one on state aid to private schools and the other on a coach’s prayers on the football field, could give the justices the chance to do that.

Considering Race in School Admissions

Conservative justices have also been dreaming for years of overruling decisions that allow for the consideration of race in college admissions to ensure a diverse student body. Those rulings, which include 1978’s Bakke v. Regents of the University of California and 2003’s Grutter v. Bollinger, also hold implications for race-conscious programs in K-12 education. Next term, the high court is taking up affirmative action cases from Harvard University and the University of North Carolina that are poised to give conservative justices the opportunity to prohibit or more-strictly limit the use of race in schools.

Student Free Speech Rights

One justice has consistently called for overruling a landmark 1969 decision on student speech rights. Justice Clarence Thomas—currently the court’s longest-serving member—has said he would overrule the Vietnam War-era Tinker v. Des Moines Independent Community School District precedent because “the First Amendment, as originally understood, does not protect student speech in public schools.” But no other justice has signed on to his views, and just last term, the court ruled 8-1 that a school district violated a student’s rights by punishing her for a vulgar off-campus social media message. The court stopped short of setting a broad rule for the regulation of off-campus speech, but the decision was viewed as injecting new vitality into Tinker. Thomas was the lone dissenter.

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
School & District Management Webinar
Leadership in Education: Building Collaborative Teams and Driving Innovation
Learn strategies to build strong teams, foster innovation, & drive student success.
Content provided by Follett Learning
School & District Management K-12 Essentials Forum Principals, Lead Stronger in the New School Year
Join this free virtual event for a deep dive on the skills and motivation you need to put your best foot forward in the new year.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Privacy & Security Webinar
Navigating Modern Data Protection & Privacy in Education
Explore the modern landscape of data loss prevention in education and learn actionable strategies to protect sensitive data.
Content provided by  Symantec & Carahsoft

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Student Says Snapchat Enabled Teacher's Abuse. Supreme Court Won't Hear His Case
The high court, over a dissent by two justices, decline to review the scope of Section 230 liability protection for social media platforms.
4 min read
The United States Supreme Court is seen in Washington, D.C., on July 1, 2024.
The U.S. Supreme Court is seen in Washington, D.C., on July 1, 2024. The high court declined on July 2 to take up a case about whether Snapchat could be held partially liable for a teacher's sexual abuse of a student.
Aashish Kiphayet/NurPhoto via AP
Law & Courts What the Supreme Court's Chevron Decision Could Mean for Biden's Title IX Rule
The decision overrules a 40-year-old precedent and could impact lawsuits challenging the final Title IX rule.
5 min read
Visitors pose for photographs at the U.S. Supreme Court on June 18, 2024, in Washington.
Visitors pose for photographs at the U.S. Supreme Court on June 18, 2024, in Washington. The high court on June 28 overruled a longtime precedent and held that courts, not federal agencies, have the primary authority to interpret ambiguous federal statutes.
Jose Luis Magana/AP
Law & Courts Religious Charter School Is Unconstitutional, Oklahoma Supreme Court Rules
The state high court says the planned Catholic virtual charter school violates a state provision against aid to 'sectarian' institutions.
4 min read
The Oklahoma Supreme Court is pictured in the state Capitol building in Oklahoma City, May 19, 2014. The Oklahoma Supreme Court ruled Tuesday, June 25, 2024, that the approval of the nation's first state-funded Catholic charter school, St. Isidore of Seville Catholic Virtual Charter School, is unconstitutional.
The Oklahoma Supreme Court is pictured in the state Capitol building in Oklahoma City, May 19, 2014. The high court ruled Tuesday, June 25, 2024, that the approval of the nation's first state-funded Catholic charter school, St. Isidore of Seville Catholic Virtual Charter School, is unconstitutional.
Sue Ogrocki/AP
Law & Courts Supreme Court Case on Transgender Youth Medical Care May Impact Schools
The justices will decide whether a Tennessee law that bars certain treatments for transgender minors violates the equal-protection clause.
5 min read
FILE - The Supreme Court is seen under stormy skies in Washington, June 20, 2019. In the coming days, the Supreme Court will confront a perfect storm mostly of its own making, a trio of decisions stemming directly from the Jan. 6, 2021 attack on the U.S. Capitol. (AP Photo/J. Scott Applewhite, File)
The U.S. Supreme Court has agreed to take up a case about a state law that bars certain medical care for transgender minors, with the legal issues holding potential implications for schools.
J. Scott Applewhite/AP