No Small Matter: Kagan, Stevens, Marshall and a Rural Child Named Kadrmas

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Jul 14, 2010, 03:00 ET

WASHINGTON, July 14 /PRNewswire-USNewswire/ -- The following is an article by Robin Lambert, Policy Analyst for Rural School and Community Trust, www.ruraledu.org:

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Supreme Court nominee Elena Kagan's disagreement with Justice Thurgood Marshall, for whom she clerked in 1988, on an important equal protection case involving educational opportunity has drawn considerable attention. Both Marshall and Justice John Paul Stevens, whom Kagan is slated to replace, dissented in the 5–4 decision. The case and the reasons for their dissent are important contemporary educational opportunity issues.

The case has significant meaning for rural schools and communities because the issue involved school consolidations and the cost of transportation.

Stevens' position is worth noting because he not only concurred with Marshall on the equal protection aspects of the case, but he made additional claims about the rights of poor children and the circumstances in which government — school boards and states in this case — could treat them unequally.

The case was Kadrmas v. Dickinson Public Schools and the Court was deciding whether a rural North Dakota school district could charge a low-income nine-year-old student a fee to ride the bus to school, 16 miles from her home. North Dakota's Supreme Court had upheld the fee as constitutionally permitted.

The core issues in the case were whether poor people constitute a "protected class" and whether education was a "fundamental right." The case would set important precedent because fundamental rights for protected classes are subject to "strict scrutiny," meaning that the government (in this case the state of North Dakota) must show that a measure that discriminates against a protected class serves a "compelling state interest" and is narrowly designed to serve that interest with the least harm to those discriminated against. Whatever the Court decided would have broad implications for poor children across the country.

Marshall, who had argued and won the 1954 Brown v. Board of Education case that declared the segregation of public schools unconstitutional, maintained that the busing fee unduly burdened access to education for the poor and therefore violated the Equal Protection Clause of the Fourth Amendment. In Kadrmas, he asserted that poverty was a protected class, subject to strict scrutiny, as race had been in Brown.