The Honorable Lewis Franklin Powell, Jr. is "the education Justice" of the United States. During his tenure on the U.S. Supreme Court, from 1971 to 1987, Justice Powell authored at least twenty major opinions in education law, in addition to numerous significant concurrences and dissents. Just a sampling of Justice Powell's majority opinions on education could form the bulk of an education law textbook recognizable by any American law student. Among Justice Powell's most memorable education opinions are Healy v. James, (1) San Antonio Independent School District v. Rodriguez, (2) Committee for Public Education and Religious Liberty v. Nyquist, (3) Ingraham v. Wright, (4) Abood v. Detroit Board of Education, (5) Regents of the University of California v. Bakke, (6) Ambach v. Norwick, (7) Southeastern Community College v. Davis, (8) National Labor Relations Board v. Yeshiva University, (9) Widmar v. Vincent, (10) Martinez v. Bynum, (11) and Wygant v. Jackson Board of Education. (12) A complete listing of Justice Powell's opinions relating to education appears in the appendix at the end of this Article.
Even more illustrative of Justice Powell's appellation as "the education Justice" are his deep connections, both public and private, to elementary, secondary, and higher education. These connections inevitably influenced Justice Powell's views on education, much as Justice Harry A. Blackmun's role as general counsel for the Mayo Clinic permeated his majority opinion in Roe v. Wade. (13)
This Article will explore some of Justice Powell's major Supreme Court rulings in education law. It will also consider how these rulings may have related to aspects of Justice Powell's life. In addition, the Article will briefly describe the Supreme Court's current views on education and will attempt to describe how Justice Powell might analyze these issues today. At least one sitting Justice on the Supreme Court, Justice Sandra Day O'Connor, appears to have been influenced by Justice Powell's views. (14) Justice O'Connor occupies a similar ideological position on the Supreme Court as did Justice Powell, who wrote more than 250 majority opinions and whose "knack for being on the winning side never dropped below eighty per cent in any term, and often exceeded ninety per cent." (15)
In the first part of the Article, a brief biography of Justice Powell will be presented, emphasizing his connection to education. The second part of the Article will discuss Justice Powell's views in three extremely important cases: San Antonio Independent School District v. Rodriguez, (16) Ingraham v. Wright, (17) and Committee of Public Education and Religious Liberty v. Nyquist. (18) Woven into the case discussions will be aspects of Justice Powell's biography, as well as the present Supreme Court's thoughts on these issues. The last section of the Article will focus on the Bakke (19) opinion, asking if the Supreme Court can sustain Justice Powell's reasoning in Bakke today.
A BRIEF LOOK AT JUSTICE POWELL'S LIFE, (20) PARTICULARLY IN THE REALM OF EDUCATION
Lewis Franklin Powell, Jr., was born on September 19, 1907, in Suffolk, Virginia. His father was a hardworking and prosperous businessman who never let his offspring take their comfort for granted. Powell's father required him to work during the summer at various blue-collar occupations. (21) Although a bit roughhewn, Justice Powell's father traced his roots to the Jamestown, Virginia settlers of 1607, a fact which invoked references to Justice Powell as a patrician Southern gentleman. (22)
Justice Powell considered his upbringing to have been very traditional. He stated, "I was raised in a very devout Christian family. We would have prayers every morning after breakfast, and every evening we'd kneel to pray and read a few verses from the Bible." (23) Justice Powell as a youth attended McGuire's University School, a private preparatory school. (24) Although it was assumed that Justice Powell would select the University of Virginia as his alma mater, he instead chose Washington and Lee because, according to some observers, he was promised a spot on the school's baseball team. (25)
Justice Powell excelled as a college student. He was elected to Phi Beta Kappa, became president of the student body, and was editor of the student newspaper. (26) These experiences no doubt later affected his views on university speech issues. (27) Justice Powell also attended law school at Washington and Lee, was elected to the Order of the Coif, and finished first in his class, even as he completed the course of study in two years. (28) At his father's suggestion, Justice Powell then studied at the Harvard Law School, finishing his L.L.M. in 1932. (29)
Although exclusively educated in private schools, Justice Powell did much in the interest of public education. He was elected by the City Council to the Richmond School Board, (30) which he chaired from 1952 to 1961. (31) He was also a president of the Virginia State Board of Education, a member of the Virginia State Library Board, (32) and a board member of the Virginia Foundation of Independent Colleges. (33)
The only controversy regarding any aspect of Justice Powell's life concerns his role on the Richmond School Board during the post-Brown v. Board of Education period. Although some authorities portray his integration efforts as exemplary, (34) others point to the segregatory practices of the Richmond school district revealed in the Bradley v. School Board case. (35) The circumstances of the Bradley case were extensively analyzed during Justice Powell's congressional confirmation proceedings, (36) leading Senators Bayh, Hart, Kennedy, and Tunney to file a separate report in which they concluded: "We are convinced that Lewis Powell was bucking the opposition to change, pushing slowly but steadily towards the time when all the schools could be integrated." (37)
In addition to being both president of the American Bar Association and the American College of Trial Lawyers, Justice Powell served on the governing boards of Hollins College, Union Theological Seminary, and Washington and Lee University. (38) It is difficult to conceive of someone who could have had a more intimate knowledge of all facets of American education than the Honorable Lewis Franklin Powell, Jr.
AN ANALYSIS OF THREE OF JUSTICE POWELL'S EDUCATION OPINIONS
San Antonio Independent School District v. Rodriguez
Other than the Bakke decision, perhaps the most famous of Justice Powell's majority opinions in education law is San Antonio Independent School District v. Rodriguez. (39) It is also one of his earliest major opinions, written just two years after his appointment to the Supreme Court in 1973.
The facts of the Rodriguez case involved the public school financing system of Texas. The plaintiffs were a class of minority and low-income school children throughout Texas. They claimed that the Texas system of public school financing, which relied heavily on local property taxes, violated the Equal Protection Clause of the Fourteenth Amendment. Interestingly enough, the plaintiffs had prevailed at the district court level, (40) and the state took a direct appeal to the Supreme Court. (41) In a 5-4 decision, the Supreme Court reversed the lower federal court's decision. (42)
Justice Powell understood the profound implications of the case he was ruling upon. Early in the opinion he referred to "the far-reaching constitutional questions presented." (43) At the end of the case, he cautioned "the constitutional judgment reached by the District Court and approved by our dissenting Brothers today would occasion in Texas and elsewhere an unprecedented upheaval in public education." (44)
Thus from the outset, Justice Powell in Rodriguez was concerned with local stability, the same principles that apparently guided him in his stewardship of the Richmond school board during desegregation. (45) Justice Powell was also aware of the potential financial impact of the case and questioned whether any real improvement in education would result. (46) As a member of both local and state school boards, (47) Powell surely would have known of the difficulties in persuading a state legislature to enlarge state funding for any local activity.
The bulk of the Rodriguez opinion is spent on three main arguments: that wealth is not a suspect class; that education is not a fundamental right; and that federal courts should not interfere with important state policy decisions. Each of these premises seems informed by Justice Powell's experience in the education realm.
Justice Powell first analyzed the Court's precedents concerning classifications of wealth and determined that a recognized equal protection violation occurs only when poverty causes an absolute deprivation (48) of a state benefit. He concluded that the most impoverished families may or may not reside in the districts with the lowest property values. (49) A total denial of public education was something of great concern to Justice Powell. In the absence of such denial, however, Justice Powell could find no equal protection violation in Rodriguez under a suspect class analysis. (50)
Similar concerns led Justice Powell to hold that education is not a fundamental right, and even if it were, that the Texas funding scheme would not infringe upon it. (51) He emphasized that the state of Texas provided children with at least "basic minimal skills," (52) and that Texas had continually sought to "extend," not contract, public education. (53)
As for federalism concerns, Justice Powell stated that "this Court's lack of specialized knowledge and experience" (54) argued against federal court action in such a state matter. Ironically, Justice Powell's own expertise in education led him to believe that states might have a variety of legitimate means to solve the problems of education financing, and that the Supreme Court should not mandate one method.