Teachers perform their duties within a network of laws that prohibits them from doing some things while permitting, empowering, or requiring them to do others. Legislatures create local school districts and give school officials the authority to raise taxes and borrow money, to buy property, to construct buildings, to hire and fire teachers, to purchase supplies, to prescribe the curriculum, and to discipline pupils. At the same time, the law limits the exercise of all these powers. The federal Constitution protects the free speech rights of students and teachers; provides procedural protection when they are disciplined; and prohibits policies that wrongfully discriminate on the basis of race, national origin, gender, disability, or religion. The courts provide for the formal resolution of disputes and processes by which students, parents, teachers, and members of the wider community can seek redress for alleged infringements of their rights.
This chapter provides a general survey of education law, introducing the sources of law that affect the operation of schools and the work of educators, the structure of the federal and state court systems, and the role of the courts in making, interpreting, and applying education law. To help readers better understand the material in the chapters that follow, the chapter also explains the elements of a judicial decision and the use of legal citations.
1.1 Sources of Law
Education law includes federal and state constitutional provisions, federal and state statutes and regulations, countless local district and school policies, and an array of common law principles and doctrines. While these sources of law generally complement one another, they occasionally conflict. To further complicate matters, rules of law originate at the federal, state, and local levels. Thus, in a legal sense, public school educators serve many masters.
The Federal Constitution
The U.S. Constitution is the supreme law of the land. It establishes the union of the states; it separates the executive, legislative, and judicial branches of the federal government; it structures the relationship between the federal government and the states; it delegates responsibilities to the federal government while reserving others to the states; and it provides for the protection of individuals from rights violations by government.
The federal Constitution both legitimates and limits the actions of government, thereby protecting the liberties of individual citizens. Because public schools are government agencies, the Constitution regulates the relationships between administrators, teachers, and students within public schools. The Constitution also regulates the relationships between government and private schools, but not the relationships between administrators, teachers, and students within private schools.
Although it mentions neither “education” nor “schools,” the Constitution has been interpreted to empower Congress to use its taxing and spending authority for educational purposes and to adopt certain types of legislation affecting schools that receive federal funds. Apart from this, the federal role in governing schools is extremely limited, largely because the Tenth Amendment stipulates that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Because the power to create and operate schools has neither been delegated to Congress nor denied to the states, the United States does not have a centralized educational governance and policymaking structure. The resulting system of state and local control complicates the study of education law because the rules often vary widely from one state to the next.
The federal Constitution is nonetheless extremely relevant to education law because all state education laws, school district policies, and public school practices must be consistent with its provisions. Many important cases in education law involve statutes, policies, or practices alleged to violate First Amendment guarantees of freedom of speech and freedom of religion, Fourth Amendment protection against unreasonable search and seizure, and Fourteenth Amendment requirements of due process and equal protection.
State Constitutions
In keeping with the Tenth Amendment, the basic power to control education is reserved to the states. However, the federal Constitution does not require the states to exercise this power, and for several decades following the adoption of the federal Constitution, the states did not use their inherent authority. Over the course of the nineteenth century, the people of each state adopted constitutions requiring their legislatures to establish publicly funded school systems. State constitutions often contain vague language requiring legislatures to establish and maintain a system of common schools, describing in general terms the way schools shall be governed and funded, and outlining the purposes of common schooling. For example, Article VIII, Section 1 of the Indiana Constitution states:
Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide by law, for a general and uniform system of Common School, wherein tuition shall be without charge, and equally open to all.
Many state constitutions also create state boards of education, and some grant these agencies independent authority. Most contain provisions mirroring the federal Constitution, prohibiting the establishment of religion and guaranteeing the equal protection of the laws. Indeed, some state constitutions offer greater protection for individual rights than the federal Constitution. While state constitutions and laws may provide more protection than the federal Constitution requires, they may not provide less. Under Article VI, Clause 2 of the U.S. Constitution, known as the Supremacy Clause, state constitutions and state and local laws and policies must not contradict the federal Constitution. Under the Supremacy Clause, any state law that curtails rights established under any federal law is invalid.
Federal and State Statutes
The U.S. Congress and state legislatures execute their powers and duties through the enactment of statutes. Federal statutes must be consistent with the U.S. Constitution, while state statutes must be consistent with both the federal Constitution and the applicable state constitution. To the extent that any state law conflicts with federal law, it is unenforceable or “without effect.”1
Most statutes controlling the operation of public schools are enacted by state legislatures. In every state, the laws governing education are organized by topic and published either as an education code or as a section of the general laws of the state. Although the specifics vary greatly, most state legislatures have enacted statutes that:
- dictate who may and who must be enrolled in schools;
- create and regulate local school districts and local school boards;
- set the qualifications for public school teachers and administrators;
- prescribe curricular content and learning aims for public schools;
- establish minimum requirements for high school graduation;
- create and maintain school funding systems;
- establish guidelines for student discipline and employee discipline;
- fix the selection process, duties, powers, and limitations of local boards of education;
- regulate certain aspects of the program of private schools; and
- delegate educational authority to state agencies and officers.
Federal statutes are particularly influential because, unlike state laws, they apply throughout the United States. The Tenth Amendment prevents Congress from controlling education. Nonetheless, Congress exercises considerable influence by virtue of its power to regulate interstate commerce and its ability to impose conditions on the receipt of federal funds by schools and school districts. In recent decades, Congress has enacted laws of general applicability that prohibit schools and other employers from engaging in certain forms of discrimination and providing specific protection for persons with disabilities. The two most significant federal statutes in terms of their effects on the programs of local public schools are the Individuals with Disabilities Education Act (IDEA) (see Section 7.3) and the No Child Left Behind Act (NCLB) (see Section 3.6).
Federal and State Regulations
Regulations differ from both constitutions and statutes. Most regulations are created by public departments, agencies, or bureaus that in turn are created by statute. Regulations are designed to implement the goals and fill in the details of legislation. If a statute applies to schools, regulations associated with it will apply as well. A regulation is legally binding if it meets three requirements: (1) It must have been adopted in accordance with procedures prescribed in the governing statute; (2) its substance must be consistent with the aims and purposes of the governing statute; and (3) the governing statute itself must be constitutional.
Many of the specifics of education law are found in regulations issued by state departments of education, the U.S. Department of Education, and other federal and state agencies. For example, most of the rules governing the treatment of students with disabilities under the IDEA are contained in regulations created by the Department of Education. States also have extensive sets of regulations that provide further details concerning the treatment of pupils with disabilities.
The Common Law
Constitutions are adopted by the people, statutes are enacted by legislatures, regulations are implemented by government agencies, and the common law is created by courts. In common law cases, courts apply rules created by other courts in previous similar cases. By contrast, in constitutional and statutory cases, courts interpret and apply laws created by other authorities. Each state has its own common law, with minor variations from state to state.
Received from England during the colonial period, U.S. common law originally had both civil and criminal branches. Virtually all common law crimes have since been replaced by statute. For educators, the civil branch of the common law remains extremely important. This branch is divided into contracts and torts. Contract law establishes the conditions under which an exchange of promises creates enforceable obligations (see Section 11.5). Tort law deals with a variety of matters including negligent or intentional behavior causing harm, defamation, and injuries resulting from defects in buildings or land (see Chapter 12).
School Board Policies
Subject to the scope of authority delegated to them by the state legislature, school boards may issue their own rules and regulations. School board policies must be consistent with federal and state constitutional provisions, federal and state statutes, regulations associated with federal and state statutes, and the common law. For example, school boards must co...
