Legal Matters: October 2022
In the wake of the U.S. Supreme Court overturning Roe v. Wade (1973), you may be curious about the Court’s new members. How will the introduction of four new justices in the past five years influence long-standing precedent? The Court’s two recent 6–3 church-state decisions (Kennedy v. Bremerton Sch. Dist. and Carson v. Makin) have already had ripple effects in schools. Now that the Court’s majority includes six “conservative” justices, how will this shift impact the education landscape? Future columns will discuss the implications of these recent cases; however, this article features the newest addition to the High Court—Justice Ketanji Brown Jackson. Specifically, what should school leaders know about her background, connections to education, and her education-related decisions?
Most notably, Jackson is the first Black woman on the Supreme Court. As she stated, “It has taken 232 years and 115 prior appointments for a Black woman to be selected to serve on the Supreme Court of the United States, but we’ve made it! We’ve made it—all of us” (Bustillo, 2022).
When nominating Jackson, President Biden explained, “For too long, our government, our courts haven’t looked like America … And I believe it’s time that we have a court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country at the highest level” (Bustillo, 2022).
Justice Jackson was confirmed by the Senate in April 2022, sworn into office in June, and rendered her first vote—where she dissented—in July. The 51-year-old justice replaced 83-year-old Justice Stephen Breyer upon his retirement. Interestingly, one of her three judicial clerkships was with Justice Breyer from 1999–2000. Similar to Breyer, Jackson is considered to be “liberal.” Although she joined the Court after the controversial cases of Kennedy and Carson, it is assumed that Jackson would have aligned with Breyer in both of these decisions.
Justice Jackson is also recognized as the first Supreme Court Justice since Thurgood Marshall to have served as a public defender representing criminal defendants unable to pay lawyer fees. She was a federal public defender and private attorney until 2010. At that time, former President Obama nominated Jackson to the U.S. Sentencing Commission, which articulates sentencing guidelines for federal courts. Then, Obama once again nominated her as a federal district court judge from 2013–2021. When Merrick Garland vacated his seat to become U.S. Attorney General, the Senate confirmed Jackson to the U.S. Court of Appeals for the D.C. Circuit. She has already issued more than 500 judicial opinions, some of which are directly tied to education.
Connections to Education
The nation’s largest labor union, the National Education Association, praised Justice Jackson as being “public school proud” for many reasons, one of which being that she is the daughter of two public school educators (Graham, 2022). When Jackson was born, her father was a history teacher and her mother was a science teacher in Washington, D.C. The family moved to Florida so her dad, Johnny Brown, could attend law school. Her mom, Ellery Brown, became a principal at a public arts magnet high school. Johnny Brown became a lifelong education lawyer representing the fourth-largest school district in the U.S.—Miami-Dade County Public Schools. It was Jackson’s father’s influence that sparked her interest in law (Walsh, 2022a).
Jackson’s parents also impacted her views on racial equity. Both parents attended historically Black colleges, and Jackson noted that they experienced “lawful racial segregation first-hand” when they lived in Miami. She explained, “My parents taught me that, unlike the many barriers that they had to face growing up, my path was clearer, such that if I worked hard and believed in myself, in America I could do anything or be anything I wanted to be” (Walsh, 2022b).
As a teenager, Jackson excelled in speech and debate and was class president at Miami Palmetto Senior High School. She credited her experiences in high school for forming her ambition, resilience, and work ethic (Walsh, 2022a). Specifically, she praised her high school debate coach Fran Berger for taking her to Harvard to compete. Jackson reflected, “Mrs. Berger believed in me, and, in turn, I believed in myself” (Walsh, 2022b).
This formative trip to the university influenced Jackson’s decision to apply to Harvard. And, although her guidance counselor warned her to not set her sights “so high,” Jackson graduated magna cum laude from Harvard University. Then, she matriculated to Harvard Law School where she served as supervising editor of the prestigious Harvard Law Review and graduated cum laude.
Jackson’s nomination, while celebrated by many, also faced its share of criticism. Her role on the Board of Trustees of Georgetown Day School, a private preK–12 school, came under scrutiny during her confirmation hearings. In response to Senator Ted Cruz’s critique that the school embraced critical race theory, Jackson responded that her role as a board member did not include curricular decisions. She also clarified that the school’s social justice mission stems from becoming the first racially integrated school in the District of Columbia in 1945. In addition to serving on this school’s board and Harvard’s Board of Overseers, Jackson has volunteered to help high school students learn about constitutional law through judging mock trials (Walsh, 2022a).
In addition to her personal experiences with both public and private schools, Justice Jackson spent decades in federal courts. Therefore, she is familiar with the many legal controversies that arise in schools.
When it comes to the most litigious area of special education, Jackson ruled on numerous cases analyzing the Individuals with Disabilities Education Act (IDEA). These were routine cases typically centered on whether the districts had provided a free appropriate public education. She ruled in favor of the district in some decisions, and families in others.
Her ruling in the employment discrimination case of Willis v. Gray (2020) has received attention. Jackson permitted a teacher’s claims to proceed where he alleged the district had attempted to reduce the numbers of older, African American teachers. The plaintiff, a 51-year-old Black teacher, claimed administrators had violated federal statutes prohibiting age and racial discrimination when they eliminated his job through a reduction in force after 23 years of teaching.
In her confirmation hearings, Jackson answered many questions about race-based admissions. This is because the Court was already scheduled to rule in 2022–23 on two affirmative action cases involving Harvard and the University of North Carolina. Because the Court agreed to consolidate the cases, Jackson pledged that she would recuse herself due to her affiliation with Harvard. However, in a surprising reversal after Jackson’s confirmation, the Court ordered the cases to once again be separated. Many legal experts predict the Court’s new majority will end affirmative action.
Although it remains to be seen how Justice Jackson will influence future education issues, she clearly appears optimistic about the nation’s unique educational opportunities. In response to Senator Josh Hawley’s confirmation hearing question about whether “America is a force for good in the world,” Jackson replied, “Absolutely … I love our country and the Constitution, and the rights that make us free. My parents were educated in racially segregated schools in Florida, and just one generation later, I am under consideration to join the highest court. My journey could only happen in this country, and that is a testament to America’s hope and promise” (Committee on the Judiciary, p. 198).
Janet R. Decker, JD, PhD, is an associate professor in the School of Education at Indiana University and a co-author of Legal Rights of School Leaders, Teachers, and Students.
Bustillo, X. (2022, June 30). Ketanji Brown Jackson sworn in as first Black woman on the Supreme Court. NPR. npr.org/2022/06/30/1108714345/ketanji-brown-jackson-supreme-court-oath-swearing-in
Committee on the Judiciary. (2022) Written Responses to the Record. judiciary.senate.gov/judge-ketanji-brown-jackson#:~:text=Judge%20Ketanji%20Brown%20Jackson%20Written%20Responses%20to%20Questions%20for%20the%20Record
Graham, E. (2022, March 3). 5 reasons educators are excited about Ketanji Brown Jackson. NEAToday. nea.org/advocating-for-change/new-from-nea/5-reasons-educators-are-excited-about-ketanji-brown-jackson
Walsh, M. (2022a, February 25). Ketanji Brown Jackson, a daughter of educators, is Biden’s nominee for U.S. Supreme Court. Education Week. edweek.org/policy-politics/ketanji-brown-jackson-a-daughter-of-educators-is-bidens-nominee-for-u-s-supreme-court/2022/02
Walsh, M. (2022b, March 22). Ketanji Brown Jackson: 5 things for educators to know about the nominee and her hearing. Education Week. edweek.org/policy-politics/ketanji-brown-jackson-5-things-for-educators-to-know-about-the-nominee-and-her-hearing/2022/03