Highlights of the 2018–2019 Supreme Court term

Three cases with implications for education also reveal deep divisions on the Court.


Like many people and organizations, the U.S. Supreme Court often pushes its hardest work to the end of its calendar; but this is not due to procrastination. When cases are difficult, it takes time to develop thoughtful legal theories and build coalitions around them. This year, consistent with previous years, the Court issued its most significant and split decisions in the last weeks of the term. Three of these are particularly significant to educators. 

American Legion v. American Humanist Association (2019) 

A common question in public education law involves the First Amendment’s religious clauses. In the last 50 years, the Supreme Court has decided numerous such cases, and they are divisive both in communities and on the bench. The most recent case, American Legion v. American Humanist Association, is no exception. The Court agreed 7-2 that a cross placed on public land and maintained by state funds (it was erected in 1918 to honor World War I servicemen) did not violate the Establishment Clause. But it took seven opinions to explain the justices’ diverse reasoning.  

The federal district court had found (relying on the three-part “test” of religious expression suggested by the 1971 decision in Lemon v. Kurtzman) that the cross 1) had a secular purpose, 2) neither advanced nor inhibited religion, and 3) did not have a primary effect of endorsing religion. However, the 4th Circuit Court of 
Appeals reversed the decision, using the same test but finding that the cross did have the primary effect of endorsing religion and excessively entangled government with religion. The Supreme Court reversed that decision, finding that the Lemon test was not useful in this situation because the cross has historic significance that goes beyond the religious symbolism. However, the reasoning here is far from straightforward, which is why seven different opinions were filed, as justices sought to make clear their own thinking.  

Many court watchers believed the case would offer the Court an opportunity to abandon the Lemon test. But the Court chose not to apply Lemon in this case, and even criticized it, without going so far as to overturn it.  

Over the last four decades, the Lemon test has been used frequently to help decide cases involving the use of religious material in public schools. But the courts have never strictly applied it, arguing that its three criteria are difficult to apply and not useful for many situations. Further, some Justices have indicated a desire to overturn it entirely, as Justice Antonin Scalia once did in distinctly colorful language: 

Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys. (Lamb’s Chapel v. Center Moriches Union Free School District, 1993) 

Will Lemon rise another day? Justice Neil Gorsuch wrote that “Lemon was a misadventure. . . . It sought a grand unified theory of the Establishment Clause, but left us only a mess.” As it stands now only three justices (Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan) indicate that Lemon should consistently be used to guide Establishment decisions. (Personally, I think it still provides a good theoretical framework to guide public school officials in analyzing most uses of religious material and content.) 

Kisor v. Wilkie (2019)  

This case involves a ruling by the Department of Veterans Affairs about a disability claim for post-traumatic stress disorder, but it has significance for all government agencies (including the Department of Education), that develop their own rules, regulations, and guidance documents.  

Previous Supreme Court decisions, Auer v. Robbins (1997) and Bowles v. Seminole Rock & Sand Co. (1945), have required courts to defer to agencies’ reasonable interpretations of their own rules and regulations. However, in Kisor v. Wilkie, these precedents came into question. The details of the case weren’t in dispute — all nine Justices agreed that it should be returned to the Circuit Court of Appeals — but the underlying principle of deference was at issue.  

In the end, five Justices (Chief Justice John Roberts and Justices Ginsburg, Stephen Breyer, Sotomayor, and Kagan) voted to uphold Auer and Bowles. As Kagan explained in her majority opinion, the Court requires deference under the assumption that Congress would want the agency, not a court, to play the primary role in resolving ambiguities and interpreting technical regulations.  

For public education, this was a significant decision. The Department of Education has had to interpret a number of ambiguous regulations in areas of national importance (including special education, the treatment of transgender students, and racial disparities in school discipline). Under the Obama administration, for instance, the Department released guidance documents indicating that Title IX, which bans discrimination on the basis of sex, includes a ban on discrimination and harassment on the basis of gender identity and sexual stereotypes — by implication, this meant that schools could not require students to use restrooms that correspond to the gender on their birth certificates. However, by the time a case related to this issue went to the U.S. Supreme Court (Gloucester County School Board v. G.G., 2017), the Trump administration had withdrawn these guidance documents. Thus, the case was sent back to the lower court to reconsider without the now-rescinded guidance.  

The fate of the Gloucester County case shows how deference to agency interpretations opens up opportunities for political appointees to agency leadership to make decisions according to partisan politics and ideology. If new agency leaders disagree with past interpretive guidance, they can rescind or reinterpret it. However, despite this danger, the five justices in the majority in Kisor were persuaded by the argument that the expertise of the agency should continue to prevail.  

Department of Commerce v. State of New York (2019) 

This case involves U.S. Secretary of Commerce Wilbur Ross’ decision to insert a citizenship question into the 2010 U.S. Census. A coalition of states, cities, and counties challenged Ross in federal court, alleging that the citizenship question would likely cause a significant undercount because households with people who are undocumented would likely not respond. The challengers claim the secretary’s decision was arbitrary, capricious, and in violation of various constitutional provisions. 

The Court’s opinions in the case can be distilled into a set of questions and the answers provided by varying coalitions of justices: 

  1.  Does the question violate the Census Clause within the U.S. Constitution? Here, five justices (Roberts, Clarence Thomas, Samuel Alito, Gorsuch, and Brent Kavanaugh) agreed that Congress and the Department of Commerce have the authority to pose a citizenship question in the census. This same coalition also agreed that the decision was neither arbitrary nor capricious and that it did not violate the Census Act because the direct citizenship question provided information not easily obtained otherwise. 
  2.  Is the Secretary’s decision reviewable under the Administrative Procedure Act? Here, a different coalition of six justices (Roberts, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan) agreed that the decision is reviewable by the Court. 
  3.  How should the case be decided? Finally, a different coalition of five (Roberts, Ginsburg, Breyer, Sotomayor, and Kagan) found that the case should be returned to the Commerce Department because the decision to include the question was not consistent with the explanation for that decision. This leaves the debate over the citizenship question unresolved. At this time, it appears that the Trump administration will not be able to add the question, given the insufficient time available to provide another rationale. 

The outcome of the census is important in many ways. For example, it is used to determine electoral representation in the House of Representatives. In education, it forms the basis for allocation of federal funds, including the National School Lunch Program, Title I aid for students, grants under the Individuals with Disabilities Education Act, and the Head Start preschool program. The Council of Great City Schools, in its Amicus Brief, indicated that the predicted undercount of 5.8% of households with undocumented family members would likely result in a reallocation of $151.7 million just through Title I.  

Divisions on the Court 

These cases highlight the deep schisms now running through the Court. There were many cases in which nearly every justice wrote a separate opinion, suggesting that coalition building has become difficult. Finally, Roberts has emerged as the “swing vote” in most 5-4 decisions, meaning that his influence has soared beyond what would be expected even for a chief justice.  

JULIE UNDERWOOD (Julie.Underwood@wisc.edu) is the Susan Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison.

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