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Department Publications

Supreme Court Announces Rulings
Important to Higher Education

If 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.

Internet Porn

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."

"The 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.'"

Church and State

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.

Employment Discipline

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 pay.

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 visibility."

Published in the Fall 1997 Edition of In Brief

Questions or comments?
Contact Lee Combs @ 480.731.8878

Maricopa Community Colleges
Office of General Counsel
2411 West 14th Street
Tempe, AZ 85281-6942
480.731.8877 / 480.731.8890 fax

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