Sandra Day O鈥機onnor, who in 1981 became the first woman appointed to the U.S. Supreme Court and who wrote opinions on important education issues such as affirmative action, private school vouchers, and sex discrimination before devoting herself in retirement to improving civics education, died Friday at age 93.
O鈥機onnor, a self-described 鈥淎rizona cowgirl鈥� who grew up on a sprawling ranch, died in Phoenix of complications related to advanced dementia, probably Alzheimer鈥檚, as well as a respiratory illness, the court announced. O鈥機onnor had revealed her dementia diagnosis in 2018 and said she was stepping away from public life, including as leader of iCivics, the organization she founded in 2009 to improve civics education for the nation鈥檚 students.
鈥淚 can no longer help lead this cause, due to my physical condition,鈥� O鈥機onnor said in a 2018 letter to the public. 鈥淚t is time for new leaders to make civic learning and civic engagement a reality for all.鈥�
Chief Justice John G. Roberts Jr. issued a statement that said, 鈥淎 daughter of the American Southwest, Sandra Day O鈥機onnor blazed an historic trail as our nation鈥檚 first female justice. She met that challenge with undaunted determination, indisputable ability, and engaging candor. We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education.鈥�
I will make it my primary focus now to work on civics education in America. We have some work to do.
Sandra Day O鈥機onnor鈥檚 major influence on Title IX cases
President Ronald Reagan had vowed to appoint a woman to the court when he ran for the White House in 1980. In 1981, he got the chance when Justice Potter Stewart retired.
O鈥機onnor, then 51, was a midlevel state appellate judge in Arizona, where she had earlier served as the Republican majority leader of the state senate.
鈥淪he is truly a person for all seasons, possessing those unique qualities of temperament, fairness, intellectual capacity, and devotion to the public good which have characterized the 101 brethren who have preceded her,鈥� Reagan said.
O鈥機onnor remained in Arizona, where she held a brief press conference and largely deflected questions about becoming the first woman on the court. Despite some wariness among conservatives who thought she might not be sufficiently opposed to abortion rights, she was confirmed by the U.S Senate 99-0.
At the tradition-bound court, some traditions had to go. The court dropped the honorific 鈥淢r. Justice,鈥� changing it to 鈥淛ustice.鈥� Still, in the early 1990s, after O鈥機onnor had been on the court more than 10 years, an advocate once opened a line of argument by saying, 鈥淕entlemen, ...鈥� After a few moments, O鈥機onnor leaned forward to ask him, 鈥淐ounselor, are you addressing your arguments to me as well?鈥� The lawyer apologetically said yes.
One of her first important education opinions came at the end of her first term, in 1982, when she wrote the majority opinion for the court in , which struck down the state university鈥檚 policy of excluding otherwise qualified male students from its nursing school.
It was the first of several important decisions she wrote on sex discrimination in education, including three important opinions she wrote interpreting Title IX of the Education Amendments of 1972, which bars sex bias in federally funded educational programs.
In 1998, in , O鈥機onnor wrote the opinion for a 5-4 court that set a fairly high bar for victims of teacher-student sexual harassment to be able to recover damages from a school district under Title IX. The court said that a plaintiff could not prevail unless a school district official who at a minimum had the authority to institute corrective measures on the district鈥檚 behalf had actual notice of鈥攁nd was deliberately indifferent to鈥攖he teacher鈥檚 misconduct.
In the next term, in , O鈥機onnor opened up a new line of potential torts under Title IX. She joined the court鈥檚 more liberal members and wrote an opinion that said districts could be held liable for student-on-student sexual harassment. The plaintiff had to satisfy the same high standard from Gebser as to the school district鈥檚 knowledge of the harassment, O鈥機onnor wrote, and the peer harassment had to be of a serious nature.
鈥淚n the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it,鈥� O鈥機onnor wrote. 鈥淒amages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.鈥�
And in 2005, in her last education opinion (and one of her last opinions before retiring in early 2006), O鈥機onnor wrote the majority opinion for the court in , which upheld the right of someone to sue for retaliation over making Title IX complaints, such as the male high school basketball coach in the case who had complained about sex discrimination in his school鈥檚 athletics program.
鈥淎 reasonable school board would realize that institutions covered by Title IX cannot cover up violations of that law by means of discriminatory retaliation,鈥� O鈥機onnor wrote.
O鈥機onnor was often the fifth vote on major education decisions
O鈥機onnor was at the center of the court鈥檚 ideological fulcrum for years, and she provided the fifth vote on other major education decisions.
In 2002, in , the court held 5-4 that Ohio鈥檚 program of private school vouchers for low-income children in the Cleveland school system, which allowed public funding to flow to private religious schools, did not violate the First Amendment鈥檚 prohibition on government establishment of religion.
In a concurrence that delved into fine points of education policy and funding, O鈥機onnor said: 鈥淚n my view the more significant finding in these cases is that Cleveland parents who use vouchers to send their children to religious private schools do so as a result of true private choice.鈥�
In 2003, in , O鈥機onnor wrote the opinion for a 5-4 court that upheld the race-conscious admissions plan at the University of Michigan law school, which considered race as part of its holistic review of each applicant.
鈥淎ffirmative action鈥檚 benefits are not theoretical, but real,鈥� O鈥機onnor wrote. 鈥淓ffective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized.鈥�
She also wrote, 鈥淲e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.鈥�
It鈥檚 not known whether O鈥機onnor was aware of the Supreme Court鈥檚 ruling in June that effectively ended racial preferences in higher education admissions. Although Roberts鈥檚 opinion for the court in did not say that it was overruling Grutter, which had enshrined the court鈥檚 acceptance of educational diversity as a permissible rationale for racial preferences, some of his concurring colleagues suggested as much.
鈥淭he court鈥檚 opinion rightly makes clear that Grutter is, for all intents and purposes, overruled,鈥� Justice Neil M. Gorsuch wrote in his concurrence.
Justin Driver, a Yale University law professor who clerked for O鈥機onnor just after she retired, and a leading scholar of education law, called Grutter her most significant opinion.
鈥淪he understood that racial diversity on the nation鈥檚 leading campuses was important to the vitality of not only higher education, but also our multiracial democracy,鈥� Driver said via email on Friday, adding that her opinion in that case 鈥渞efuses to view constitutional law as some sort of abstract intellectual feast, and instead appreciates how law concretely shapes the lives of everyday Americans.鈥�
Though often in the majority during her 25-year tenure, she could also write a sharp dissent.
In , the court ruled 6-3 to uphold an Oregon school district鈥檚 policy of random drug testing for student athletes, holding that the district鈥檚 interest in addressing a perceived drug problem was sufficient to justify random searches under the Fourth Amendment.
鈥淚ntrusive, blanket searches of school children, most of whom are innocent, for evidence of serious wrongdoing are not part of any traditional school function of which I am aware,鈥� O鈥機onnor wrote in her dissent.
鈥淚t cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis,鈥� she added. 鈥淗aving reviewed the record here, I cannot avoid the conclusion that the district鈥檚 suspicionless policy of testing all student-athletes sweeps too broadly, and too imprecisely, to be reasonable under the Fourth Amendment.鈥�
Sandra Day O鈥機onnor championed civics education
In 2005, O鈥機onnor announced her retirement from the court, and President George W. Bush nominated Roberts for her seat. But in September of that year, Chief Justice William H. Rehnquist died after a long battle with throat cancer. Bush switched Roberts鈥檚 nomination to the chief justice鈥檚 seat and began a new search to replace O鈥機onnor.
She agreed to remain on the court until a successor was confirmed, which occurred in January 2006 with the Senate鈥檚 approval of Samuel A. Alito Jr.
In retirement, O鈥機onnor cared for her husband, John O鈥機onnor, who had Alzheimer鈥檚 and died in 2009. She served on lower federal appellate court panels and spoke out against public election of state judges. But she soon found the issue she would remain passionate about the rest of her active years.
鈥淚 will make it my primary focus now to work on civics education in America,鈥� O鈥機onnor told the National School Boards Association in 2008. 鈥淲e have some work to do.鈥�
She founded , a nonprofit that promotes learning about government through lesson plans and online games such as 鈥淲e the Jury鈥� and 鈥淒o I Have a Right?鈥�
In a 2009 interview with 澳门跑狗论坛, O鈥機onnor said she became interested in civics education while still on the high court.
鈥淎s a member of the U.S. Supreme Court, I was very much aware of criticisms of judges by some members of Congress and state legislators鈥攅xpression by some people that judges were just secular, activist humanists who were trying to impose their will on the people,鈥� she said.
Louise Dub茅, the executive director of iCivics, said in an interview after O鈥機onnor鈥檚 death on Friday that 鈥渨hat strikes me when I look at the entirety of her legacy is that her commitment to civics took over her entire life after 2006.鈥�
O鈥機onnor had 鈥渘ever opened a computer鈥� before her iCivics team began working with top game designers and other experts to develop the popular educational games, Dub茅 said. And she wasn鈥檛 very adept at playing the games herself when Dub茅 joined the organization in 2014.
鈥淲e traveled around the country and she used her time to educate the larger public on this issue,鈥� Dub茅 said. That included talking to state legislators, education groups, and even appearing on Jon Stewart鈥檚 Comedy Central show.
鈥淭his is one of the largest contributions that Sandra Day O鈥機onnor made to our society,鈥� Dub茅 said.
iCivics now has a staff of 67 people, 20 games, and hundreds of lesson plans on civics for downloading by teachers. Justice Sonia Sotomayor joined the organization鈥檚 board when O鈥機onnor stepped back from public life and remains an active participant, Dub茅 said.
Sotomayor, in a statement on O鈥機onnor鈥檚 death, said the late justice 鈥渨as a brilliant champion of women鈥檚 rights, and promoted civic education in a way that transformed how children learn about our shared responsibility as citizens.鈥�
Funeral arrangements have not been announced.
