Court Announces Rulings
Important to Higher Education
any decision from the US Supreme Court's 1996-97 term can be said to have
grabbed headlines, it would no doubt be the unanimous holding that the
President's office could not shield him from prosecution of a civil action
over his alleged sexually harassing conduct while he was governor of Arkansas.
Clinton v. Jones was one of dozens of rulings the high court rendered
during its recently completed term. Among those decisions, though, were
three that have particular relevance for both students and employees of
public colleges and universities.
Reno v. American Civil Liberties Union was the much-anticipated
holding over the constitutionality of Title V of the Telecommunications
Act of 1996, more popularly known as the Communications Decency Act (CDA).
The CDA purports to prohibit the transmission of obscene or indecent messages,
and the sending or displaying of patently offensive messages in a manner
available, to a person under the age of 18 years. Writing on the Court's
behalf, Justice Stevens conceded the presence of "[s]exually explicit
material on the Internet" that "'extends from the modestly titillating
to the hardest core.'"
Nevertheless, all nine members of the Court found that the CDA violates
free speech guarantees under the first amendment to the US Constitution.
The Court acknowledged a "governmental interest in protecting children
from harmful materials," and its prior decisions--typically in the
context of radio and television broadcasts--upholding state regulation.
However, "the Internet," Justice Stevens observed, "is
not as 'invasive' as radio or television."
level of discourse reaching a mailbox simply cannot be limited to that
which would be suitable for a sandbox ."
Moreover, notwithstanding the interest in protecting kids from porn,"the
Government may not 'reduc[e] the adult population . . . to . . . only
what is fit for children . . . . The level of discourse reaching a mailbox
simply cannot be limited to that which would be suitable for a sandbox.'"
Agostino v. Felton addressed another first amendment constraint--
that against any "law respecting an establishment of religion"--and
highlights the divisions within the Court that characterize many of its
decisions over the separation of church and state.
By a five-to-four vote, the Agostino court ruled that public school
officials could send their teachers to parochial schools to provide Federally
supported remedial education--all without violating the first amendment
prohibition against governmental endorsement of religion.
In upholding this action by state authorities, however,the Supreme Court
overruled a decision that same tribunal had made barely twelve years earlier--with
virtually identical facts, and applying the same legal standard.
While Agostino dealt with a state's public school system, the case
is also significant for public colleges and universities, which are likewise
subject to the first amendment. The Court will no doubt be increasingly
skeptical of many future claims that an institution has violated restrictions
against state-supported religion.
Finally, in Gilbert v. Homar, the Court refused to expand the rights
of public employees in employment disciplinary actions. Homar, a security
officer at a state-supported university in Pennsylvania, had been summarily
suspended from his employment after he was brought up on marijuana-related
criminal charges. While Homar's criminal case was ultimately dismissed,
the university nevertheless demoted him when the suspension concluded.
Homar claimed that the salary the university had refused to pay him during
his suspension was entitled to due process protection and that, at the
very least, the university should have been required to suspend him with
On behalf of the Court, however, Justice Scalia disagreed, and observed
that "the government does not have to give an employee charged with
a felony a paid leave at taxpayer expense."
The Court also rejected Homar's claim that he should have been afforded
a formal hearing prior to his suspension, citing the state's "significant
interest in immediately suspending, when felony charges are filed against
them, employees who occupy positions of great public trust and high public
in the Fall 1997 Edition of In Brief