The October 2016 term of the United States Supreme Court was historic. Justice Neil Gorsuch was nominated by President Donald Trump to the United States Supreme Court on January 31, 2017.  After Democrats filibustered the confirmation vote of Gorsuch, Republicans invoked the “nuclear option,” allowing a filibuster of a Supreme Court nominee to be broken by a simple majority vote.  In yet another historic moment, Gorsuch became the first Supreme Court justice to serve alongside another justice for whom he once clerked (Justice Anthony Kennedy). 

With respect to education, the 2016-2017 term had several important cases.  The October 2017 term, which recently began, promises to be significant as well.  Petitions for writ of certiorari are pending in several cases involving legal issues in education.

Interested in learning more about recent court decisions and agency actions affecting public education? John Borkowski will be presenting tomorrow, October 20, 2017, at the Council of the Great City Schools 61^st Annual Fall Conference in Cleveland, Ohio.

One of the topics that will be discussed is cases with petitions for writ of certiorari pending – that is, cases the Supreme Court is deciding whether or not it wants to review.  Several of these cases present issues of great importance to public school districts.  For example, in Antelope Valley Union High Sch. Dist. v. M.C., the Supreme Court could provide further guidance on requirements under the Individuals with Disabilities Education Act (IDEA) after last term’s decision in Endrew v. Douglas County School District.

The Supreme Court may also hear a case brought by a transgender student in Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. v. Whitaker. The Seventh Circuit held that the student sufficiently demonstrated that he was likely to suffer irreparable harm in the absence of a preliminary injunction, and, as a matter of first impression, transgender students may bring sex-discrimination claims under Title IX based on a theory of sex-stereotyping. If the Supreme Court hears this case, they will decide whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is sex stereotyping in violation of Title IX and if this triggers heightened scrutiny under an equal protection analysis.  This is an issue that was on the Court’s docket this year, but that it avoided by remanding the case to the Fourth Circuit in light of changes in U.S. Department of Education’s interpretation of Title IX under the new administration of President Donald Trump.

What This Means to You

Although the Supreme Court has not decided whether to review these cases or not, school districts across the country are facing issues about both the Individuals with Disabilities Act and students identifying as transgender.  It is important, now more than ever, for school districts to be familiar with Supreme Court decisions and the effect those decisions may have on day-to-day operations.