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The Abortion Decision, Haunted by Brown v. Board of Education

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8 months ago

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WASHINGTON — In the Supreme Court decision that eliminated the constitutional right to abortion, the justices engaged in an extended debate over the meaning and legacy of Brown v. Board of Education, the 1954 decision that said the Constitution does not permit racial segregation in public schools.

The connection between abortion and education may seem elusive. But the justices cited Brown 23 times, using it to make points about precedent, about popular opinion and, most tellingly, about how to interpret the Constitution.

Justice Samuel A. Alito Jr., writing for the five-member majority, invoked Brown as an example of a decision that had properly overruled a precedent. Plessy v. Ferguson, the 1896 decision that said “separate but equal” facilities were constitutional, was plainly and egregiously wrong, he wrote, and so Brown had been right to overturn it.

The same was true, Justice Alito wrote, of Roe v. Wade, the 1973 decision that had guaranteed a constitutional right to abortion, and Planned Parenthood v. Casey, the 1992 decision that had reaffirmed Roe’s core holding.

Chief Justice John G. Roberts Jr., in a concurring opinion that would have stopped short of overruling Roe, failed to see the parallel. “The opinion in Brown,” he wrote, “was unanimous and 11 pages long; this one is neither.”

Indeed, the three dissenting justices wrote in a joint opinion, “a bare majority” of the current court had overruled the two abortion precedents.

“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan wrote.

Justice Alito also cited Brown, which was deeply unpopular in the South, in support of a second point. “We cannot allow our decisions to be affected,” he wrote, “by any extraneous influences such as concern about the public’s reaction to our work.”

But the most intriguing mention of Brown was made almost in passing in the dissent. It said the court that had decided Brown might not have done so had it used “the majority’s method of constitutional construction.”

That method was originalism, which seeks to identify the original meaning of constitutional provisions using the tools of historians.

But Brown has always been problematic for originalists. The weight of the historical evidence is that the people who from 1866 to 1868 proposed and ratified the 14th Amendment, which guaranteed “equal protection of the laws,” did not understand themselves to be doing away with segregated schools.

Yet Brown is generally considered to be a moral triumph and the Supreme Court’s finest hour. A theory of constitutional interpretation that cannot explain Brown is suspect, if not discredited.

Originalists hate talking about Brown. When Justice Antonin Scalia, an enthusiastic originalist, used to be asked about the case, he was prone to say, “Waving the bloody shirt of Brown again, eh?”

Justice Alito’s critique of Roe was certainly steeped in originalism. In ruling that there is no constitutional right to abortion, he focused on the words of the Constitution and “how the states regulated abortion when the 14th Amendment was adopted.”

His approach echoed contemporary criticism of Brown on originalist grounds.

Justice Alito said that “the Constitution makes no mention of abortion.” A 1956 statement by Southern members of Congress who objected to Brown, which came to be known as the Southern Manifesto, made a similar point: “The original Constitution does not mention education. Neither does the 14th Amendment nor any other amendment.”

In the abortion decision, Justice Alito wrote that “by the time of the adoption of the 14th Amendment, three-quarters of the states had made abortion a crime at any stage of pregnancy, and the remaining states would soon follow.”

The Southern Manifesto again echoed the point.

“When the amendment was adopted, in 1868, there were 37 states of the union,” the manifesto said. “Every one of the 26 states that had any substantial racial differences among its people either approved the operation of segregated schools already in existence or subsequently established such schools by action of the same lawmaking body which considered the 14th Amendment.”

The unanimous opinion in Brown did not really quarrel with the idea that it could not be justified using the tools of originalism. “At best,” the opinion said, the historical evidence was “inconclusive.”

Before Justice Scalia died in 2016, he and Justice Breyer, who retired in June, would occasionally appear in public to debate constitutional interpretation. Justice Breyer liked to needle Justice Scalia about Brown.

“Where would you be with school desegregation?” Justice Breyer asked his colleague in 2009, at an appearance at the University of Arizona. “It’s certainly clear that at the time they passed the 14th Amendment, which says people should be treated equally, there was school segregation, and they didn’t think they were ending it.”

Justice Scalia did not give a direct answer. In other settings, he endorsed the decision. “Though Scalia says that he would have voted with the majority in Brown,” Margaret Talbot of The New Yorker wrote in a 2005 profile, “it’s hard to see an originalist justification for it.”

The majority in the recent abortion decision, Dobbs v. Jackson Women’s Health Organization, noted that both Plessy and Roe had survived about a half-century before being overturned.

The three dissenters responded that Plessy might still be on the books if the court in Brown had been committed to originalism.

“If the Brown court had used the majority’s method of constitutional construction,” the dissenters wrote, “it might not ever have overruled Plessy, whether five or 50 or 500 years later.”

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Adnan Syed of ‘Serial,’ Newly Freed, Is Hired by Georgetown University

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3 months ago

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December 23, 2022

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Adnan Syed, who was freed in September after he spent 23 years in prison fighting a murder conviction that was chronicled in the hit podcast “Serial,” has been hired by Georgetown University as an associate for an organization whose work mirrors the efforts that led to his release, the university has announced.

Mr. Syed, the subject of the 2014 podcast and pop-culture sensation that raised questions about whether he had received a fair trial after being convicted of strangling his high school classmate and onetime girlfriend Hae Min Lee in 1999, will work for Georgetown’s Prisons and Justice Initiative.

Mr. Syed, who was 17 at the time of Ms. Lee’s death in Baltimore, has steadfastly maintained his innocence.

The university said that Mr. Syed, now 41, will help support programs at the organization, such as a class in which students reinvestigate wrongful convictions and seek to “bring innocent people home” by creating short documentaries about their findings. The program, founded in 2016, “brings together leading scholars, practitioners, students and those affected by the criminal justice system to tackle the problem of mass incarceration,” according to its website.

Georgetown University, which is in Washington, said that in the year leading up to his release, Mr. Syed was enrolled in the university’s bachelor of liberal arts program at the Maryland prison where he was incarcerated.

“To go from prison to being a Georgetown student and then to actually be on campus on a pathway to work for Georgetown at the Prisons and Justice Initiative, it’s a full circle moment,” Mr. Syed said in a statement. “P.J.I. changed my life. It changed my family’s life. Hopefully I can have the same kind of impact on others.”

He added that he hoped to continue his education at Georgetown and go to law school.

The new job this month culminated what has been a remarkable year for Mr. Syed, whose case has again received widespread public attention after a flurry of recent legal activity.

In September, Mr. Syed was released from prison after a judge overturned his murder conviction. Prosecutors said at the time that an investigation had uncovered various problems related to his case, including the potential involvement of two suspects and key evidence that prosecutors might have failed to provide to Mr. Syed’s lawyers.

In October, prosecutors in Baltimore dropped the charges against Mr. Syed after DNA testing on items that had never been fully examined proved Mr. Syed’s innocence, officials said.

Ms. Lee’s family filed an appeal with the Maryland Court of Special Appeals after prosecutors dropped the charges.

On Nov. 4, the court said in an order that the appeal could be heard in court in February.

Marc Howard, the director of the Prisons and Justice Initiative, said in a statement that Mr. Syed’s “commitment to the program and to his education was clear from the moment he stepped into the classroom.”

He added that Mr. Syed “is one of the most resilient and inspiring people I’ve ever met, and he has so much to offer our team and the other students in P.J.I. programs.”

In a Georgetown University article about the hiring, Mr. Syed said that he was in disbelief when he first saw a flier for the program.

“It became this domino effect to see us be accepted,” he said. “It made it become something real in the eyes of others, that there are opportunities. There can be a sense of hope: a sense of hope that things can get better, a sense of hope that I can work hard and still achieve something, a sense of hope that I can still do something that my family will be proud of.”

His attachment to the school was evident on Sept. 19, when he walked out of prison for the first time since he was a teenager.

Amid a throng of reporters and his supporters, Mr. Syed walked down the courthouse steps in Baltimore, smiling. He gave a wave.

And in his hand, he carried a binder with a Georgetown sticker. His graded papers and tests were inside.

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At Berkeley Law, a Debate Over Zionism, Free Speech and Campus Ideals

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3 months ago

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December 21, 2022

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“Supporting Palestinian liberation does not mean opposition to Jewish people or the Jewish religion,” the group said in a statement to the Berkeley law community. Members of the group did not respond to messages seeking an interview.

After learning about the bylaw, Mr. Chemerinsky met with the university’s Hillel rabbi and spoke with several Jewish students, but, aside from concerns within the law school, the reaction was relatively muted, he said.

That changed, he said, after Kenneth L. Marcus, the civil rights chief of the U.S. Education Department during the Trump administration, wrote about the bylaw in September in The Jewish Journal under the explosive headline “Berkeley Develops Jewish Free Zones.”

Mr. Marcus wrote that the bylaw was “frightening and unexpected, like a bang on the door in the night,” and said that free speech does not protect discriminatory conduct.

The article went viral.

Mr. Chemerinsky said he learned about Mr. Marcus’s article, which he described as “inflammatory and distorted,” while he was in Los Angeles for a conference. Mr. Chemerinsky said he typed out a response to the article, which was appended to it, and then didn’t think much of it. That afternoon, he was deluged by emails. At an alumni event that night, the law school’s perceived hostility to Jews was “all anyone wanted to talk about.”

In an interview, Mr. Marcus, a Berkeley law school alumnus, said that he was contacted by law students there who were concerned about the bylaw. He said he spent weeks trying to support them and wrote his article after Berkeley did not “rectify the problem.”

Not allowing Zionist speakers, he said, was a proxy for prohibiting Jews. The provisions, he said, are “aimed at the Jewish community and those who support the Jewish community,” even while acknowledging that the policy could allow Jewish speakers and bar those who are not Jewish.

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‘Better Defined By Their Strengths’: 5 Ways to Support Students With Learning Differences

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3 months ago

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December 21, 2022

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“People with learning differences are human,” wrote Deanna White, a neurodiversity advocate and parent learning coach in response to a question we posed on LinkedIn. “Unique individuals and wonderful humans that are better defined by their strengths. So stop focusing on the weakness.”

We invited our social media followers across Facebook, LinkedIn, and Twitter to weigh in on the most effective way schools can better support students with learning differences.

Responses ranged from shifting educators’ mindset—like highlighting student strengths—to more far-reaching changes that would require schoolwide or district support.

Focus on students’ strengths

There are many ways of encouraging students to play to their strengths, as educators Winston Sakurai and Phyllis Fagell demonstrated in an August 2022 article by Education Week Assistant Editor Denisa Superville.

They detailed how they shared their own learning struggles as a way to connect with their students. Their personal successes show students, who may be struggling academically or socially, that anything is possible.

Here’s what other educators had to say.

1. Help them understand their learning strengths and challenges and growing them as strong self-advocates.

2. Devoting time and money to developing teachers’ abilities to differentiate.

– Amy S.

By having high expectations and giving them exposure to high-quality materials and experiences, even ones that seem “above them.” They will shock us with their insights every time.

– Angela P. 😒😒🥴

Meet students where they are

In a 2015 primer on the topic, EdWeek Assistant Editor Sarah D. Sparks wrote about how “differentiated instruction”—the process of identifying students’ individual learning strengths, needs, and interests and adapting lessons to match them—became a popular approach to helping diverse students learn together. Respondents largely agreed.

Time to work with every student. If you can meet with a child for a bit of time to help with exactly what she or he needs, it might ignite both learning and understanding.

– Alison K.

So many ways…start with environment, a.k.a. The Third Teacher.

  • Reduce obstacles

  • Increase supports

  • Meet kids where they are

(h/t @drncgarrett)

–Matt R.

Small class sizes, strong positive teacher/student relationships, differentiated instruction, and reflection.

–Yvonne E.

Smaller class sizes

In a 2017 Opinion essay, former teacher Marc Vicenti wrote about “the daily wear and tear on educators when trying to juggle a full teaching load and meaningful relationships with lively young people who all have different needs and experiences.”

“We can either choose to be less effective in our practice or exhaust ourselves—neither of which is beneficial to students or our own well-being,” he wrote.

Smaller class sizes are one way of mitigating the risk of burnout while working to meet each student’s needs.

Small classes, small schools, local control. I am the principal in a pretty small school in a small community and I know every child, and every family and we can build programs to meet our students’ needs. A country run or state run school system can’t do that.

– Ryan G.

Increase funding to actually lower the student-to-teacher ratio. This allows teachers to give more time to the individual.

– Cathleen W.

Fewer standardized tests

Standardized tests have long been criticized for narrowing instruction and for holding all students to the same standard when “students enter school at varying levels and learn and grow at different rates.”

The backlash against standardized testing renewed interest in alternative ways to evaluate students’ learning progress, like “performance assessments—the idea of measuring what students can do, not merely what they know”.

STOP standardized testing.

– Dawn W.

Fewer standardized or timed tests, teaching to mastery, not according to a schedule.

– Autumn

Give students a voice

Sometimes it’s best to go to the source to discern how to best tackle an issue. Giving these students a voice can not only empower them in their learning, but also help educators understand how to have the biggest impact.

Ask them how they learn and what helps. Give them a voice!

– Grisel W.

Yes! Listening to what students need and giving them a voice is something we need to do for all students, but especially those who need more help in the classroom.

– Victoria D.



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