I had the privilege of attending a session of the U.S. Supreme Court two days ago. I was there to move the admission of Chicago area employment rights attorney Joette Doran. While waiting for the justices to enter, I visited with attorneys who represent parents of special needs children. They were attending to hear the Court’s argument in Forest Grove School Dist. v. T.A. I quickly learned that one of the biggest barriers for special needs children is that their teachers fear retaliation.
When teachers speak out about what a child really needs to learn, they find school managers well motivated to run them out of their jobs. Special education is expensive, and getting each child the individual program best suited to his or her needs is even more expensive. In almost all cases, teachers will tell the parents what the child needs, and then add, “if you tell anyone that I told you this, I will deny it; I cannot lose my job.” Even though most teachers have union contracts and representation, they find that union leaders are more interested in trying to save limited school dollars for teacher pay and benefits. This is yet another example of why we need a comprehensive national whistleblower protection law that will protect all employees when they speak truth to power.
When the Court came to session, Justice Scalia announced the 5-4 decision in favor of the Federal Communications Commission (FCC) and upholding its fines against Fox Television for fleeting expletives. The case is FCC v. Fox. As Justice Scalia described the facts, without repeating the F word and S word used by Paris Hilton and Nicole Richie, Justice Stevens started cracking up. I wondered if he voted to accept the case just to see his colleague have to describe the 2003 Billboard Music Awards ceremony. Anyway, as Justice Scalia described his reasons for allowing the FCC to change the rules about profanity on television, I heard a Court give freedom to the executive branch to change policy as it sees fit, even if there is no science to support it. “We find no basis … for a requirement that all agency change be subjected to more searching review.” Slip opinion at page 10. An agency, “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Justice Scalia also rejected the networks’ claim that the FCC should have some basis in science to show that there is some harm to children before changing its rule on that basis. “If the Constitution itself demands of agencies no more scientifically certain criteria to comply with the First Amendment, neither does the Administrative Procedure Act to comply with the requirement of reasoned decision-making.” Slip opinion at page 16. These holdings open the door for a new administration to recast federal regulations to fit its own policies. I wonder if Justice Scalia will be as supportive when those regulations impinge on management discretion on issues other than allowing expletives on television.