Elena Kagan on Education



Schools are limited 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.

Source: 2020 SCOTUS rulings: Mahanoy Area School District v. B.L. , Jun 23, 2021

States can fund private schools but not 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 Montana supreme court struck down the program, citing the separation of church and state and prompting state officials to deny funds to secular schools as well. The Supreme Court's liberal justices seized on that point in three separate dissents. They said Montana solved the discrimination by ending the program. "Petitioners may still send their children to a religious school," Associate Justice Ruth Bader Ginsburg said. "There simply are no scholarship funds to be had."

Roberts and other conservative justices said the no-aid policy had its roots in constitutional amendments in 37 states, many rooted in 19th-century anti-Catholic sentiment, that blocked religious schools from receiving public funds.

Source: USA Today: Dissent on Espinosa v. Montana, No. 18-1195 , Jun 30, 2020

No reverse discrimination unless justified by other reasons

In 1997, the Clinton administration wrestled with an affirmative action case. The Piscataway NJ school board was defending its decision to lay off a white teacher over a black colleague, with equal seniority and similar qualifications, to maintain racial diversity of the district's lone high school.

[The Clinton Administration] filed a brief in the Supreme Court in support of the white teacher's reverse-discrimination claim "on the narrow ground that the board failed to offer an adequate justification for the particular race-based layoff decision," and predicted that the Supreme Court would likely rule that the Civil Rights Act never permits nonremedial affirmative action: "Such a ruling would be a disaster for civil rights in employment." In the margin, Kagan penned, "I think this is exactly the right position--as a legal matter, as a policy matter, and as a political matter."

Civil rights groups came up with money to allow the school board to settle the case with the white teacher.

Source: Education Week, "Kagan Immersed", on 2010 SCOTUS hearings , Jun 6, 2010

2000: Limited public aid to parochial schools is ok

In a Supreme Court case, the Clinton administration weighed whether to support a lower-court ruling that struck down, as a violation of government establishment of religion, authorizing school districts to lend computers, software, and library books to private schools, including religious schools.

In the margin of a memo outlining the issues in the case, Kagan wrote: "I think the President would wish to file in this case. Agree? Elena." Then, she added a second notation: "(Also, I think he would want the SG [solicitor general] to make the case for overruling--not just distinguishing Meek and Wolman.)

That was a reference to two Supreme Court decisions from the 1970s--Meek v. Pittenger and Wolman v. Walter--that dealt with various forms of government aid to nonpublic schools. Ultimately, the Clinton administration supported the aid programs, and in Mitchell v. Helms, the Supreme Court in 2000 upheld the aid to nonpublic schools, and the majority partially overruled Meek and Wolman.

Source: Education Week, "Kagan Immersed", on 2010 SCOTUS hearings , Jun 6, 2010

1998: Don't justify all-girl school by making all-boy school

In 1998, the administration was working with the New York City public schools on ways in which an all-girls school in East Harlem called the Young Women's Leadership School could be justified under court rulings that made publicly funded single-sex programs for only one gender legally suspect. The NYC Schools Chancellor was resistant to federal pressure to open a boys-only program similar to the girls-only leadership school. Another approach being pushed by federal officials was for New York to come up with a remedial justification for the girls-only school.

Kagan wrote: "Whether the lawyers like it or not, the all-boys approach will get us into real trouble with our women's groups friends--at a time when we're likely to need them. This is especially so if they know that we've pushed NYC toward this approach. Tell your friends at Education that finding a remedial justification would be much better--and that they shouldn't press the all-boys school too hard."

Source: Education Week, "Kagan Immersed", on 2010 SCOTUS hearings , Jun 6, 2010

2009: education services ok in private schools

In her capacity as U.S. Solicitor General, Kagan has been involved in two cases pertaining to K-12 education issues. In the first, Forest Grove School District v. T.A. in 2009, Kagan's office maintained that "students need not have received special education services in a public school before becoming eligible for private school tuition reimbursement under the proper circumstances." The Supreme Court upheld that position.
Source: Assoc. of American Educators, "Kagan on Education Policy" , May 11, 2010

No Child Left Behind law is not an unfunded mandate

An education-related case, School District of the City of Pontiac v. Duncan, involves the National Education Association's (NEA's) challenge to the No Child Left Behind law. The union claims the law is an "unfunded mandate" and, therefore, it is illegal. Kagan's brief refutes that claim. That case is awaiting a decision by the Supreme Court whether they will grant review.

Kagan worked on education issues when she served as deputy director of the White House Policy Council under Pres. Clinton.

Source: Assoc. of American Educators, "Kagan on Education Policy" , May 11, 2010

Paying taxes sufficient to oppose religious tax credits.

Justice Kagan wrote the dissent 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.


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.


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

Other Justices on Education: Elena Kagan on other issues:
Samuel Alito(since 2006)
Amy Coney Barrett(since 2020)
Stephen Breyer(since 1994)
Neil Gorsuch(since 2017)
Ketanji Brown Jackson(nominated 2022)
Elena Kagan(since 2010)
Brett Kavanaugh(since 2018)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Ruth Bader Ginsburg(1993-2020)
Anthony Kennedy(1988-2018)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Mar 21, 2022