Education Law

J.C. Blokhuis, Jonathan Feldman, Michael Imber, Tyll van Geel

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429514944
• Edition: 6
• Topic: Education
• Subtopic: Education Administration

Education Law, Sixth Edition provides a comprehensive survey of the legal problems and issues confronting school leaders, teachers, and policymakers today. Court cases accompanied by explanation and analysis can help aspiring educators understand the subtlety and richness of the law. Accordingly, each of the 12 thematic chapters begins with an overview, concludes with a summary, and balances an explanation of the important principles of education law with actual court decisions to illuminate those issues most relevant for educational policy and practice.

This updated and expanded Sixth Edition includes:

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• Revision of case law, education policy, and citations to reflect the most recent decisions and developments in the field.

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• Cases and commentary on key topics such as constitutional rights of students in public schools, school discipline, safety, and zero tolerance policies, school choice and parental rights claims, the regulation of charter schools and home-based education, cyberbullying and the regulation of online speech, racial and sexual harassment policies, and collective bargaining, unions, and working conditions.

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• eResources accessible at www.routledge.com/9780367195250 include a Glossary for students, Chapter Outlines and Abstracts for instructors, as well as Tables of Cases.

1 Understanding Education Law

In liberal democratic societies, adults are generally free to conduct their affairs as they choose, provided their actions do not cause harm to others.¹ Law is the foundation for the “ordered liberty” that undergirds our way of life. It structures our interactions with others in every aspect of our personal, professional, and civic lives. It mediates conflicts between our individual preferences and the public good.² The development of each child’s capacity to govern herself in accordance with “ordered liberty” in an American constitutional context has long been counted among the most important aims of public education in this country.³

“[L]aw increasingly permeates all forms of social behavior. In subtle—and at times, not-so-subtle—ways, law governs our entire existence and our every action,” note sociologists.⁴ Educators and school officials perform their duties within a legal landscape that constrains them from doing some things while empowering them to do others. Legislatures create local school districts and give school officials the authority to raise taxes and borrow money, to acquire property, to construct buildings, to hire and fire school employees, to purchase supplies, to prescribe the curriculum, and to discipline students.

At the same time, the law limits the exercise of all these powers in various ways. The Constitution provides limited free speech rights for students and teachers in publicly-funded schools; guarantees them procedural protections 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 taxpayers can seek redress for alleged infringements of their rights.

This chapter provides a general survey of the landscape of education law, introducing the sources of law that affect the operation of public and private schools, the structure of the federal and state court systems, and the role of the courts in making, interpreting, and applying “the complex and voluminous set of laws” that govern the education of children in the United States. To help current and future educators and administrators understand the implications of case law for their own practice and to help current and future educators and administrators engage in legal research, this chapter also outlines the elements of a judicial opinion, the structure of a case brief, and the use of legal citations.

Sources of Law

The landscape of 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.

1 Joel Feinberg, Harm To Others: The Moral Limits Of The Criminal Law (1984).

2 Henry J. Abraham, Freedom And The Court: Civil Rights And Liberties In The United States (1987).

3 Randall R. Curren, Aristotle On The Necessity Of Public Education (2000).

4 S. Vago, A. Nelson, V. Nelson And S.E. Barkan, Law And Society (5th ed. 2018): 3.

The Constitution

The 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 delegates responsibilities to the federal government while reserving others to the states. Most importantly for our purposes, the Constitution outlines rights for individuals vis-à-vis the State. It recognizes and protects individual liberty interests by limiting the scope of government action. Because public schools and school districts are creatures of the State (emanations of government), the Constitution regulates the relationships between public school officials, teachers, and students. Though it applies to state legislation concerning private schools, the Constitution does not regulate the relationships between private school officials, teachers, and students.

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 impose conditions on schools that receive federal funds. Constitutionally, the federal role in governing public schools and school districts is extremely limited, as the Tenth Amendment clearly 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 public school systems has neither been delegated to Congress nor prohibited from the states, the United States does not have a centralized educational governance and policymaking structure.⁵ The resulting system of state and local control complicates education law because rules, policies, and standards can vary from state to state, from district to district, and since the advent of charter schools, from one building (or part of a building) to the next.

The Constitution remains extremely relevant to education law because all state education laws, all school district policies, and all public school practices must be consistent with its provisions. As we shall see in the chapters that follow, important cases in education law typically involve state statutes, district policies, or administrative practices found to violate First Amendment guarantees of freedom of speech and religion, Fourth Amendment protection from unreasonable searches, or Fourteenth Amendment due process and equal protection requirements.

State Constitutions

In keeping with the Tenth Amendment, the basic power to control education is reserved to the states. However, the Constitution does not require the states to exercise this power, and for several decades following its adoption, they did not. Over the course of the Common School Movement in the nineteenth century, the people of each state adopted constitutional provisions requiring their legislatures to establish and maintain public school systems.⁶

Some state constitutions contain vague language requiring legislatures to support public education, broadly construed. For example, Article IX, Section I of the California constitution provides simply that, “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the ­promotion of intellectual, scientific, moral, and agricultural improvement.” Other state constitutions contain provisions requiring the legislature to establish, maintain and support common schools. For example, Article XI, Section 1 of the New York constitution says “The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” Article VIII, Section 201 of the Mississippi constitution indicates that “The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe.”

5 Tyll Van Geel, Authority To Control The School Program (1976).

6 Freeman R. Butts, Public Education In The United States: From Revolution To Reform (1978); Lawrence A. Cremin, American Education: The National Experience, 1783–1876 (1980); Carl F. Kaestle, Pillars Of The Republic: Common Schools And American Society, 1780–1860 (1983).

Some state constitutions describe in general terms how public schools will be governed or operated. For example, Section 183 of the Kentucky constitution says “The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State” [emphasis added]. Article VIII, Section 2 of the Michigan constitution says

The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.

A number of state constitutions describe—often in lofty terms—the aims and purposes of public education. For example, Article VII, Section 1 of the Texas constitution says

A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public ...