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School Legal Issues: Footnotes and Sidelights
By David W. Kirkpatrick (July 19, 2007)
Senior Education Fellow
U.S. Freedom Foundation www.freedomfoundation.us

         While it certainly isn't unique to school issues, too often debates over controversial matters miss significant points or, worse, raise ones that are simply irrelevant or downright wrong. As someone once said his problem wasn't what he didn't know, but what he knew that was wrong.
         Consider, again, the recent U.S. Supreme Court decision regarding race as a consideration in the assignment of students to particular schools in Seattle and Kentucky. As mentioned here recently, aside from the merits or demerits of the decision, there has been much figurative wringing of hands and gnashing of teeth that drastically overstates the case and better reflects the attitude or bias of the commentator than the real situation. An extreme example is the charge that, with its recent decision, a far right (implied racist) court handed a setback to districts across the nation trying to deal with an important problem.
         In fact, fewer than 1,000 of the nation's14,000+ districts were attempting anything the court decision might end. In Seattle, the controversial program had been discontinued back in 2002 after the court suit was introduced. Clearly Seattle officials saw a problem down the road. As noted earlier, despite moaning and groaning elsewhere, Seattle's superintendent said of the effect there of the decision that there would be "none." Although the district was a defendant in the case, one school official said the court's decision was a "victory" for the district because it presented an opportunity to develop more fruitful alternatives.
         A repeated statement by opponents of the court's decision has been that it was a blow to "voluntary" desegregation. Seattle parents didn't see it that way. The footnote is that the "voluntary" aspect depends on your definition. As a district policy it was "voluntary" in that it was not the result of a court order, or some other form of legal coercion. By this standard the once-segregated South was "voluntary" and constitutional.
         But, as in the old South, it wasn't voluntary from the point of view of the students and parents. If it had been, it wouldn't have been necessary for the lawsuit to be filed. In fact, the case arose because a student applied for admission to a particular school in the district. Her application was rejected, not because of a lack of space, that she didn't live in the designated attendance area for the school, or some similar factor. Her wish to attend the school was denied because she was white. While the intent was benign, this was clearly an instance of racial discrimination. Thus her parents went to court and the U.S. Supreme Court's majority decision agreed with them.
         This raises another, more general footnote, about Court decisions. Those who object to particular decisions, such the one in late 2000 that resulted in George W. Bush becoming president, or this most recent school decision, often complain that the Court has no business making such decisions.
         This implies, and it is sometimes stated, that the Court reaches out and asserts its authority arbitrarily.
         Not so. The Court, with the exception of a few specialized cases, has appellate jurisdiction. That is, it only considers cases that are brought to it by some party with an alleged grievance. At that point the Court is thrust into the particular controversy whether it likes it or not.
         Some would say, wait a minute, just because a case is brought to them doesn't mean they have to accept it.
         A valid but misleading point.
         In fact, the Court does not accept for consideration the great majority of the cases brought to its attention. That doesn't mean it avoids being involved in the ultimate decision. Had it never taken the Bush or Seattle/Kentucky cases it still would have been responsible for the outcome because the lower court decision would stand.
         Therefore, whether one supports or opposes a particular Court decision, when the Court accepts a case and upholds the lower court decision, accepts the case and, as with the Seattle/Kentucky issue, reverses the lower court's ruling, or declines consideration of the appealed decision thus upholding it, the Court is unavoidably the final arbiter and its decisions, whatever they may be, determine the outcome.

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         "Who...is to have final say? It was settled in the end...by the Philadelphia Convention, that remains the one absolutely new thing in government invented by the Founding Fathers...The body is the Supreme Court of the United States; and the unique function was that of ‘judicial review.'...the Constitution...set up a President to keep an eye on Congress, and a Congress to keep an eye on the President, and a Supreme Court to keep a eye on both of them..The Court and the Court alone guards the rights of the citizen."  --p. 145, " p. 144, Alistair Cooke, Alistair Cooke's America, NY: Carroll & Graf Publishers, 2002 (1973)

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Copyright 2007 David W. Kirkpatrick
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