How Legal Decisions Impact Our Schools with Karen Kalzer
July 26, 2022
How Legal Decisions Impact Our Schools with Karen Kalzer

It might seem like there’s no correlation between recent Supreme Court rulings and what happens in our public schools. But that’s not the case at all, especially if you look at potential translations of decisions down the road.

There’s a new ideology in the Supreme Court, one that has leaders on both sides of the political aisle perking up. On one side, decisions are being handed down that are changing the fabric of our society; on the other side, they’re scrambling to highlight implications and find new ways to protect everyone’s rights.

I admit it’s scary. And though Roe v. Wade seemed to not have any impact on my own micro-school, LEADPrep, or public schools, I know from experience that’s not the case. So I invited Karen Kalzer, an education and nonprofit attorney, onto the podcast to share what she sees happening as a result of these decisions.

We talk about several cases that are setting precedent right now, why we now need to determine whose rights should be recognized, what people need to know about student rights, what the Constitution actually protects, and more.

This was an eye-opening, albeit frustrating, conversation about what’s to come.

About Karen Kalzer:

Karen is a practicing attorney with 25 years of experience representing schools and nonprofits. She is an adjunct professor in Education Law & Policy for Boston College and is passionate about helping schools achieve their vision and mission. Connect with Karen on LinkedIn.

Jump in the Conversation:

[2:07] – How the Supreme Court shifts will impact schools
[3:43] – What is a shadow docket
[5:47] – The message courts send when they don’t take a case
[7:39] – Roe v. wade ripple effects in schools
[10:08] – Decision questioned entire right of due process, implicit liberty, and implied rights under constitution
[13:07] – Connection between the Constitution and private schools
[17:09] – How does the court differentiate between whose rights take precedence
[20:05] – We want every child to thrive – what do we need to keep as school leaders and parents
[22:10] – Turbo Time
[25:00] – What people need to know about student rights
[27:24] – Karen’s Magic Wand
[30:17] – Maureen’s Takeaways

Links & Resources

 

Transcript:

Maureen O’Shaughnessy 0:03
Hello fellow parents and educators. Thank you for joining me at education evolution, where we are disrupting the status quo in today’s learning models. We talk about present day education, what’s broken, who’s fixing it, and how. I’m Dr. Maureen O’Shaughnessy, your host and founder of education evolution, micro school coalition, and co founder of at active, I consult and train with schools and leaders who are fiercely committed to changing the narrative, reimagining the education landscape, and creating learning that serves all children and prepares them to thrive. If you are new, welcome to the podcast. Please subscribe on our website to get it delivered to your inbox weekly. If you’ve been around a while, have you left a review?

Maureen O’Shaughnessy 1:00
Hey, Karen, it is so good to have you on education evolution. Morning. And listeners today I’m chatting with Karen Kalzer. Lawyer at Hillsdale Fetterman. And she is the legal consultant for the independent schools in my Northwest region. Karen is a practicing attorney 25 years experience. She represents schools and nonprofits. She’s also an adjunct professor in education, law and policy for Boston College. And she’s passionate about helping schools achieve their vision and mission. And I know lead PrEP has definitely benefited from your wisdom. So thank you for being our guest.

Karen Kalzer 1:00
Oh, thanks for having me.

Maureen O’Shaughnessy 1:16
Karen, you come to our bi annual heads meetings and update us on laws and their implications for our learners. I am just really aware that what you shared this spring, about some of the changing dynamics has huge impact for our learners. Could you start out by talking about this shift in the makeup of Supreme Court justices?

Karen Kalzer 2:16
Oh, sure. Well, I don’t think it’s a secret that we have a very conservative oriented judiciary at this point at the Supreme Court level, that’s not necessarily true at lower court levels. But on the big decision level, the biggest decision level SCOTUS, there’s there is a very strong, very vocal conservative ideology that has has taken over, and has made it quite clear that they are ready and willing to change law to whatever they think fits within their conception of originalism of the Constitution. And this isn’t a change. I mean, we’re seeing some really big changes that affects society, and will, I think, affect how the laws affect impacting our schools, even our independent schools are going to be interpreted in terms of civil rights, it’s a sea change. And there are more changes not just by virtue of their announced opinions, by but an increased use of sending messages through what’s called the shadow docket, which is also, you know, kind of fun little buzzy words that you might have heard but are important as well.

Maureen O’Shaughnessy 3:36
Do unpacks shadow docket that just sounds intriguing.

Karen Kalzer 3:42
Okay, well, a shadow, what is meant by the shadow docket? refers to what decisions are made and what cases are taken or not taken, accepted for full hearing at the court. Okay. So one really important case that came out of the Ninth Circuit. And, you know, the Supreme Court has a thing for the ninth circuit because we’re pretty liberal out here. And they like to take our cases and chastise us a lot until we’re wrong. But for Okay, so for instance, we have this one case that came out of our Washington State Supreme Court, called Woods versus Union Gospel Mission involves the ministerial exception, which is a dot illegal doctrine, rooted in the First Amendment that allows religious institutions to choose their own leadership and to decide who the leaders are, okay, so that they won’t be interfered with in making those decisions. And Title Seven and the American Disabilities Act. And those kinds of statutes cannot be used by employees who are considered ministers in religious institutions. So once versus golf Union Gospel Mission It involves a young lawyer who is a bisexual, and wanted to work for be hired by Union Gospel Mission. And Union Gospel Mission said, No, you can’t do that. We can’t hire you because that violates our religious beliefs. And you know, there’s other ways that you can contribute, but this isn’t going to happen. And so there was a question as to rather that position, his ministerial list, you know, Mr. Woods, sued Union Gospel Mission that went up to the Supreme Court for it was what we would call pave applied for sure cure, which is to be accepted, certified to the court. Now, normally, the normal practice is that when the court decides they’re not going to take a case, it just shows up on a list. Okay. You know, denied. In this case, the Court issued a lengthy reasoning as to why they were not taking it. And it included within it saying, you know, it’s what we’ve not what we call, right. Okay.

Karen Kalzer 6:11
There are still issues that need to be decided before we can we SCOTUS can take it up. But and here’s where the real shadowy part of the shadow shadow doctor comes up is. But if we were to take it, we’re really, really concerned because this is messed up. And there’s no way that the state could tell or religious institution who’s a minister, and who they can hire and who they cannot hire you to the suit. Is that. So? Does that have a precedential value? Is that opinion, something that can be cited by lawyers and legal arguments as precedent? No. Does it send out a big, fat message? About what the majority of this court is going to think? When it comes to a ministerial exception? Interpretation of religion and employment rights? Yeah, does. It sends out a big fat message? So you might want to think twice? Is this the court? We want to take this question to?

Maureen O’Shaughnessy 7:16
Wow. So. So they’re using their weight unofficially, and sending really big messages?

Karen Kalzer 7:27
They’re sending big messages officially sending big messages that are not binding. Okay. Does that make sense? It does, right.

Maureen O’Shaughnessy 7:36
So let’s hit the biggie right now, in everybody’s mind, Roe v. Wade, and I get that schools aren’t dealing with abortion. So when you came to our heads conference and shared like some of the ripple effects, I hadn’t connected the dots, I’m not a legal minded person. So how do things like Roe v Wade, impact? What’s going on? What do parents and educators need to understand about this direction?

Karen Kalzer 8:05
Right. So it’s not a direct impact on independent schools, right. It’s what you’ve described as the ripple effect. And sometimes those ripples will happen. And those ripples may not happen. But we’re not seeing a lot of good signals right now. If you are a person who believes in a more liberal interpretation of the Constitution and our civil rights and why I say that is this. So the case you’re talking about Dobbs versus Jackson, eviscerated row, and we knew this was coming, but it was still kind of a big gut punch when we actually saw that it was, was published. A couple of interesting and important things about that. So what the court did in eviscerating roe and Casey, which was another decision that had reinforced the right to abortion, it attacked the idea of what we call substantive due process under the 14th Amendment and the right to privacy, okay. The right to abortion, the right to birth control, the right to interracial marriage, is these are not things that are stated in the Constitution. But what Roe v Wade, and, you know, some of these prior decisions on other issues did was recognize that our Constitution has implicit within it. Liberty, interest in rights and civil rights and privacy interests and rights that are protected. The individual’s rights are protected under what we would call substantive due process and the right to privacy. And it was referred to as the penumbra which is sort of like the bright shining stars out of the center right you Not right there, the senator but it’s all embraced within that. And so what this decision did in overturning Roe versus Wade, they just didn’t say this is wrong. It questioned really the entire right, suddenly due process and implicit liberty and implied rights under the constitution.

Karen Kalzer 10:21
So those types of rights could be seen, if they recognize that all as subservient to the actually constitutionally guaranteed rights of religious freedom. Now, there’s two aspects under the First Amendment of the Constitution, to religious freedom. And that’s the Free Exercise Clause. And there’s the Establishment Clause. And so what our constitution specifically says is that Congress is not going to make any laws that interfere with the free exercise of religion, nor establish a religion. Right? Well, it’s really hard to have those two things, right, where do we find the appropriate intersection of that, and that has been a struggle for, you know, since time immemorial, since we’ve had a constitution. And the way we look at that struggle is it’s been called play in the joints. And it’s try and massage this out, how can we have these two ideas, there’s this this really unclear area, and we just we tried to fit it together. And it appears, both from the dogs decision, and from another decision, which was another Ninth Circuit reverted school district that you we look at this in the court is see is envisioning these religious rights as superior to or supreme to anything that would be guaranteed through a substantive due process or a right to privacy type theory. And in fact, Justice Thomas, who’s like we did his entire service career for this boat, but we need to bring all of these cases, all these cases and re examine them, we need to re examine birth control, we need to re examine same sex marriage, we need to re examine criminality of sodomy issues, we need to relook at these under this new lens. Because Religious freedom is part of our originalism, it’s part of the text because they kind of wave their hands and say, Well, who see originalism and some of these other rights are just not, they’re not implicit in ordered liberty. So they are not historically rooted, because they didn’t exist at the time that the Constitution was created. And the Constitution has not been specifically amended to include them. Why are religious rights under the First Amendment?

Karen Kalzer 13:00
So the way that could dribble out to us is if if some of these rights are not enshrined in the Constitution, when we deal with private school, or other, you know, institutions as what’s called a place of public accommodation, right, they are subject to laws as certain losses places of public accommodation, they’re not necessarily directly impacted by the Constitution, because they are private actors. They’re not covered actors, right. The Constitution only constrains the government. It doesn’t constrain private schools, but we have laws that are promulgated. Like Title Seven, Title Seven is the equal opportunity laws, right? Where we cannot discriminate based on as employers. We cannot discriminate based on race, religion, gender, gender preferences, and other protected classes and employment decisions. Okay, so we have Title Seven, Title Seven is not constitutionally mandated. Title Seven is a long, Title Seven is a statute. And there are other statutes that apply to places of public accommodation. So if someone is saying, I’m at a private school, it is a place of public accommodation. Okay. I have guaranteed religious rights that say, I cannot sit in the same classroom with a trans child with a trans student and I don’t know if there is such a religion, I’m just positing this. If if that were to be, I have this religious right and by forcing me to do this, you’re by elating my religious right and you’re discriminating against me, when a court is looking at how to interpret that, know who, whose right is going to take precedence there is, is it going to be the religious right, you know, not to be discriminated against to freely exercise your religion? Or is it going to be the civil rights recognized under statute to be free from discrimination based on gender? Those are the questions I see coming up here. Because we’ve seen a real revolution, I think back in 1968, there was a Supreme Court decision.

Karen Kalzer 15:40
And a case kind of said anything, Newman versus piggy market or something like that. Where we had a restaurant owner who said, you know, it violates my religion, to allow black people to eat in my restaurant, because my religion dictates that I oppose integration on every level, you know, at every opportunity and sort of forced me to integrate violates my religious rights. And at that time, our Supreme Court at that point, time has said, this is the stupidest thing I’ve ever heard. And it’s frivolous at ridiculous. You know, we’re not even gonna give it consideration in today’s court. I don’t know. I don’t know that, that we’d get that result. So it’s very concerning. And especially when we come back into more, what are seen as I don’t think, as a society, we see race relations as more as moral issues, as once we did that there’s a lot of people willing to say, I accept that there. Is integration in terms of some of our other gender related issues, whether it’s between males and females, if it’s recognizing alternative lifestyles, if it’s recognizing kids who are questioning LGBTQ kids? Are their rights going to be considered secondary to guaranteed constitutional rights or free exercise of religion?

Maureen O’Shaughnessy 17:07
Can I just get so confused? Because I know there’s a local Unity Church run by a gay couple. So and that they accept all gender identities, sexual orientations. So there’s that religion, and I know there are some religious right that don’ts and they’re a same sex marriage. I know there are other religions that don’t accept same sex marriage. So even within religion, how would the court say well, oh, that religions rules count. And those don’t. So I mean, if I have kids in my school, and parents from both church communities, how in the world can you ever say whose rights would ever take precedent?

Karen Kalzer 17:50
Well, that’s one of the sticking points. Right. And in fact, there are specifically as to the abortion issue, there are Jewish people who follow the Jewish religion who are saying, you know, look, we don’t believe that life begins at conception. And by outlying abortion, you are interfering with my exercise of my religious right. And my religious beliefs, so how will it equal out? I mean, I think there’s a huge political component in this right now and and who has the power and right now, it feels like the conservative end has the power

Maureen O’Shaughnessy 18:36
Wow, yeah. Cuz if I guess if you’re gonna be technical, if it’s about what religions have been around longer, and Christ was a Jew and Jewish is older than the right wing Christians, it I mean, it just seems like such an impossible argument. You can spin it from so many directions, right going to impact us who has the power is going to mean those without the power, get their religious rights trampled on? It sounds like

Karen Kalzer 19:04
Yeah, yeah. I mean, one of the difficulties in all of the religious mind is the court is not empowered to question the sincerity of belief. And to question if, if what comprises a religious institution is a very difficult question for them. So, oh, by you get some, you know, what might appear to be in that precise legal term squirrely religious, going, that takes place, but they’re all They’re all should have equal standing. And when they have equal standing, how do you decide who’s right? It’s a tough question.

Maureen O’Shaughnessy 19:57
Yeah. So pulling it back. In to educators, and schools that just want to support learners and want to, in my micro school, we want every child to thrive. And it’s not about their skin color, their sexual orientation, their gender identity. It’s about how do we help this human reach potential and be a contributing adult in society? How do we what do we need to keep in our minds as school leaders as parents, wanting the best for our youth? And also not wanting to end up in legal trends? Do you have any words of wisdom for us?

Karen Kalzer 20:41
Sure, I would say at this point, don’t act in fear. Right? Be aware that these forces are out there, be aware that there are going to be potentially difficult decisions. And by that, I mean legal decisions that could impact you. But don’t walk in fear. I mean, if this is your mission, and you’ve described it, just beautifully Marine, then that’s the mission you should follow until you can’t always be aware, always be cautious. Be knowledgeable, be activist if you can, to make sure that your your vision and mission is being brought forward. But don’t walk in fear. Just be aware. And let’s be conscious in our in our choices. But I would not for a second put aside my my mission and purpose and values and treating all kids as having the right to exist, and learn and be their very best person and contributor to society despite a number of forces right now. Trying to send them the opposite message.

Maureen O’Shaughnessy 21:56
I agree to me that is what is sacred honoring each unique child. Yeah. Well, Karen, this is helpful, I appreciate it. And I want to pivot and get to know a little bit about you because I think our listeners know that the human behind these important topics. So I want to ask you some turbo time questions.

Karen Kalzer 22:22
Oh, Lord, okay.

Maureen O’Shaughnessy 22:25
What’s the last book you read?

Karen Kalzer 22:28
Um, it’s a heart so white. My kids and I have our own little book club. My kids are all grown. This was chosen by my son and as the butchery he’s very, uh, he has a we’re all nerds. And he has. He has a very at times esoteric sets of books. You’re not gonna get your average chick flick from my son. It’s an interesting book. It’s written by Hispanic artha. Author, and it deals with family secrets and changing perspectives.

Maureen O’Shaughnessy 23:13
Ooh, I mean, we all need to keep working on isn’t it? Yeah. How about two inspirational folks you’d love to meet?

Karen Kalzer 23:25
Um, I would really like to meet Barack Obama and have a conversation. I think I think there’s a lot of people in my generation who feel that way

Maureen O’Shaughnessy 23:34
I do.

Karen Kalzer 23:37
And, you know, I would love to have it. I have met like a handshake in two sentences with Hillary Clinton, but I would really love to talk with her in detail. And, you know, what I perceived, you know, what she’s experienced what I perceive to be the backlash against women of her age who did what they had to do to fit into a man’s world and now are sort of the have been punished for it, you know, by by younger generation. So I would be really interested in spending some time talking with her. Yes, her ideas, huh?

Maureen O’Shaughnessy 24:17
Yeah. How about a favorite place to travel?

Karen Kalzer 24:21
Well, if he knows me, my favorite place to travel is Paris. i your i just love it. I mean, there’s it’s a city people forget that. Sometimes it’s sometimes it’s treated like you know, oh, Paris. It’s a fantasy now. It’s not a fantasy land. It’s a metropolitan. It’s a city. It’s got problems. It’s got life. It’s got real people. But dang, it’s just a beautiful place and every square image has so many layers of history. I just love it.

Maureen O’Shaughnessy 24:54
Yes. How about the biggest thing you wish folk knew about student rights.

Karen Kalzer 25:03
I think the biggest thing that people don’t really understand is we don’t have a rooted constitutional right to education. And there has been a movement for several years to try and get a right to education recognized. And it’s been praised as like the right to literacy, it’s been the right to participate in our democracy in requires education. Therefore, it’s it’s a constitutional right. But there is no guaranteed right to an education under our Constitution. And if I were interested in that particular subject, I would say now is not the time to try and get it recognized, because I’m not going to happen.

Maureen O’Shaughnessy 25:57
Ouch. Oh, yeah, go about? Oh, my gosh, it just makes me think of privilege and equal access and so many things that we’re grappling with right now. And how tragic or so evolved, but we can’t guarantee that every kid has a right to literacy.

Karen Kalzer 26:16
Yeah. Right. Yeah.

Maureen O’Shaughnessy 26:19
What is something that most people don’t know about you?

Karen Kalzer 26:23
Oh, gosh. I think most people don’t realize how introverted I really am. Because I’m so extroverted. I mean, I love meeting people, you know, once I know people and and I love spending time with them. But I also just need time alone. And I was just my daughter’s my granddaughters and I just went to see the chips in Camden, New Jersey, we my daughter flew out to me and another daughter, and we all went, and after about a day, but I was just like, you guys got to leave for a little while because I didn’t have a lot. Yeah, people don’t realize that. I’m extremely extroverted. But I’m also extremely introverted.

Maureen O’Shaughnessy 27:10
Nice. Yep. Yeah, we humans can be complex can’t wait.

Karen Kalzer 27:15
I know.

Maureen O’Shaughnessy 27:18
I’d like to wrap up our interviews with a magic one moment. And Karen, you have seen so much as you support schools and nonprofits, if you had a magic wand, and could change anything in our constitution or legal system to get back to what we’re saying so that every youth has a right to be themselves and to thrive. Magic Wand, what? What would you wish for?

Karen Kalzer 27:49
So I’d say really, two things I would, you know, would like to see as constitutionally recognized rights. I think if we had passed the Equal Rights Amendment, back in the day of my youngster hood, we would not be having these fights now okay with it, or they would be more strongly supported, both in terms of between male and female, genders, but also because what we’ve come to recognize as what because of sex means, and that means no discrimination based on gender preferences, no discrimination based on sexual preference, no discrimination based on gender or on gender expression. So I think if we had been successful in the 80s, as a country in getting an Equal Rights Amendment into the Constitution, that would have been a great foresight. And other I would like to see in there, that is conversation for bigger day, because it’s, it’s it’s a big conversation with lots of tendrils to it, but some greater recognition of the right to literacy and education in this country, because it is so endemic to participation in our process.

Maureen O’Shaughnessy 29:07
It is how can we participate if we don’t have basic tools? Karen, I am so grateful for you, as a resource to all of our independent schools as somebody that I have on speed dial from my little micro school and just a voice for you know, advocating for learners and nonprofits. Thank you. Thank you for all you do and for being our guest today.

Karen Kalzer 29:32
Oh, yes. Thanks so much marine and, and just to be clear, I represent a lot of religious schools too, and that they do have important rights and I am that’s their mission and value and they have every I’m here to help them as well. Absolutely. But there may be places that shouldn’t be intersecting. So

Maureen O’Shaughnessy 29:51
absolutely. And I’ve been a leader in religious schools and it’s not none of this is black and white. Yeah, yeah. Tough stuff.

Karen Kalzer 29:59
Okay. As you know, I liked it to fan girl and nerd out on all of this

Maureen O’Shaughnessy 30:17
Karen’s combination of legal knowledge and ability to project how current legal decisions can and will impact our schools and learners is a golden resource for our Northwest independent schools. I forget sometimes how far the ninth district where my schools are, goes to push the agenda for liberal human rights. I think we all kind of get used to the norm around us. I can’t imagine being a lawyer and having to understand how constitutional rights for all might be subservient to conflicting religious rights. It’s confusing that a Supreme Court justice such as Clarence Thomas, may want to undo personal rights that have been granted under this religious rights framework. Personal Rights, including interracial marriage, which is his marital status, I don’t know it just boggles the mind. So I like to look at what we can figure out. Karen, suggestions were solid, being aware, being an activist when possible, and not being afraid. I particularly resonate with her recommendation of following our school missions until we can’t.

Maureen O’Shaughnessy 31:45
At lead prep, we want each student to be seen, heard, valued and thriving. When I stay focused on that, I move forward and make a difference. I also stay aligned with my value of not focusing on differences in a negative way. I know that folks with differing perspectives also cared deeply about our youth and schools. And it seems like we can all agree on wanting a right to literacy for each of our children, if not the equal rights granted, to freedom of sexual and gender preferences and gender expression. Although I’m so glad to live in the Northwest, where these equal rights are widely valued. Our country has been blessed to allow more freedom of thought than many I’ve visited or lived in. I mean, I remember working at the American School of Kuwait, and an a and w restaurant opened, I got to go to one of the practice nights before it was open to the public. And then a week later, it shut down. And it was like what, and later when it opened again, I went back in to see what had gone on. And they had shut it down because the signs said root beer. And beer is not allowed in Kuwait. So they had to close and change the wording. So things that we take for granted in the US aren’t taken for granted in other countries. My hope is that we can prioritize serving kids, and not dividing and hating those with differing views. There is lots of work to be done, and our energy is needed to serve and build bridges. We can do this. As always, thank you for being a part of the education evolution.

Maureen O’Shaughnessy 33:49
If you are finding yourself thinking, I need to do this in my school. Let’s talk about it. I consult and also have a book TEDx talk an online course to support starting learner driven schools and programs. My goal is to help schools and individuals find new innovative solutions to reaching every student. Let’s create an action plan together. Visit educationevolution.org/consult to book a call and let’s get started. Education evolution listeners, you are the ones to ensure we create classrooms where each student is seen, heard, valued and thriving. We need you. Let’s go out and reach every student today. I’d be so grateful if you’d head over to your podcast app to give a great rating and review if you found this episode valuable. Don’t wait. Please do it right now before you forget. I really appreciate it. Thank you listeners signing Hi. This is Maureen O’Shaughnessy, your partner in boldly reimagining education.

Transcribed by https://otter.ai

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