Supreme Court Justice (nominated by Pres. Bush Sr. 1991)
Don't limit schools 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.
States funding private schools must fund 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 court stopped short of requiring states to fund religious education, ruling only that programs cannot differentiate between religious and secular private schools. "A state need not subsidize private education.
But once a state decides to do so, it cannot disqualify some private schools solely because they are religious," Roberts wrote.
Roberts and other conservative justices said the no-aid policy had its roots in 19th-century anti-Catholic sentiment, that
blocked religious schools from receiving public funds. Amendments in 37 states were "'born of bigotry' and 'arose at a time of pervasive hostility to the Catholic Church,'" he wrote. "Many of its state counterparts have a similarly 'shameful pedigree.'"
In high school, considered journalism or priesthood
I joined the school paper during my sophomore year, and later attended a journalism seminar at Savannah State College. I was so impressed by the school that for a time I imagined I might go there and become a newspaperman. But having long been one of St.
Benedict's most dependable altar boys, I'd also been thinking vaguely about the possibility of becoming a priest. A few months shy of my 16th birthday, I decided that I wanted to enter St. John Vianney to prepare for the priesthood.
The fact that St.
John Vianney had yet to admit a single black didn't worry Daddy, who was an active member of the local chapter of the NAACP and had routinely put up his property as bond to bail student protesters out of jail. The fall of 1964 Daddy drove me out to St.
John Vianney. I walked into the seminary building, opened the door, and saw a sea of strange white faces. But their interest in me, though it made me uncomfortable, didn't seem hostile, and no one treated me badly or showed any signs of outright bigotry.
Graduated high school with strong discipline & strong grades
Discipline was an invaluable gift. I finally hit my stride, both academically and as a seminarian, and by the time I graduated, my grades were so outstanding that my yearbook photo bore a flattering caption, courtesy of my classmates: "blew that test,
only a 98." I treasured that caption--and their friendship--more than any academic prize. Yet I also knew that good grades wouldn't solve all my problems, a lesson hammered home when a priest took some of us to eat at a nearby Big Boy restaurant.
The waitress & the other customers (all white) stared at me with disgust as I walked through the door. Once I would have been content merely to be served. Now I expected to be treated with respect.
I'd always believed that I could do as well as whites,
but now I KNEW it: my grades were the proof. Yet hope soon succumbed to reality, since I also knew that it would be all but impossible for a black kid like me to get into other schools and I decided to stick to my religious studies.
I was opposed to welfare because I had seen its destructive effects up close in Savannah. Most of the older people among whom I had grown up felt as I did, sharing Daddy's belief that it would be the "ruination" of blacks, undermining their desire to
work & provide for themselves. My own sister was a victim of the system, which had created a sense of entitlement that had trapped her & her children. I opposed busing, preferring to give school vouchers to poor children trapped in dysfunctional schools.
Source: My Grandfather's Son: A Memoir by Clarence Thomas, p.132-133
, Oct 1, 2007
Focus on improving black colleges, not desegregation
When I arrived at the Education Department, Secretary Bell and his staff were in the process of finalizing a number of higher-education desegregation plans. Rather than focusing solely on increasing the percentage of blacks attending the previously
all-white colleges and universities, the department was trying to place more emphasis on upgrading historically black colleges.
It was widely accepted that black children were better off in integrated schools. Why, then, wasn't it enough to upgrade
historically black colleges to the same level of quality as the predominantly white institutions? He replied that integration had nothing to do with education: the point of busing white and black children to each other's schools was to encourage their
parents to move to those neighborhoods. I was aghast. All the black parents I knew tolerated the disruption of busing solely because they wanted better educational opportunities for their children, not so that they could live next door to whites.
Race-based college preference should be done, after 25 years
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
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.
God in schools creates values; but wall of separation needed
SENATOR SIMON: In the church-state, [you said] in Policy Review magazine, “My mother says that when they took God out of the schools, the schools went to hell. She may be right. Religion is certainly a source of positive values,
and we need all the positive values in the schools that we can get.” Since 1971, the Court has followed a three-part Lemon criteria: 1) does it have a secular purpose? 2) is its effect to advance or inhibit religion? 3) does it excessively entangle
government and religion? Do you think they are reasonable criteria?
JUDGE THOMAS: I am aware of the tests enunciated in Lemon v. Kurtzman. I have no personal disagreement with the tests, but I say that recognizing how difficult it has been for the
Court to address [numerous specifics].
I think the wall of separation is an appropriate metaphor. W all would like to keep the government out of our beliefs, and we would want to keep a separation between our religious lives and the government.
Admissions preference is unconstitutional racial balancing
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).
Justice Thomas wrote the concurrence 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, Kennedy
The Ohio program does not violate the Establishment Clause, because it passed a 5-part Private Choice Test developed for this case:
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.
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."
CONCURRENCE: Concurrence by O'Connor and Thomas
Voucher 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
Unconstitutional to deny scholarships to divinity students.
Justice Thomas wrote 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, Breyer
The 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 insufficient to oppose religious or any credits.
Justice Thomas joined the concurrence 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 & ALITO
The 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 THOMAS
I 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 & SOTOMAYOR
Tax 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
Taxpayer funding OK for parochial school materials.
Justice Thomas wrote the Court's decision 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.
(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.
(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.
(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
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