Constitutional Questions, Procedural Answers

Two recent opinions – one from the Fifth Circuit, one from the Southern District of Texas – have addressed constituaional challenges to state education laws, and turned on issues of procedure.

In Roake v. Brumley, the Fifth Circuit, sitting en banc, vacated a preliminary injunction against Louisiana House Bill 71, which requires public schools to display the Ten Commandments in every classroom. The court did not rule on whether the law is constitutional; instead, it held that the challenge was not ripe for judicial decision because the statute confers discretion on local school boards regarding the nature of the displays, and the full context of how the law will be implemented remains unknown. Dissenting opinions would have addressed the merits.

And in GSA Network v. Morath – a district court opinion on an issue that is likely to reach the Fifth Circuit at some point – the court enjoined the Houston, Katy, and Plano Independent School Districts, barring them from enforcing several provisions of Senate Bill 12, a law regulating clubs, curriculum, and policies related to sexual orientation and gender identity in public schools. The court found that the three school districts, though actively implementing SB 12, explicitly declined to defend the law on the merits, filing only brief responses that took “no position” on its constitutionality, creating a waiver under party-presentation principles. And although the Commissioner of the Texas Education Agency did offer a defense, the court dismissed him from the case for lack of standing, finding that the plaintiffs’ injuries were traceable to the school districts themselves—not the Commissioner—because SB 12 vests implementation and enforcement authority in local school boards.