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Education Law
University of Dayton School of Law
Russo, Charles J.

Russo-Fall 2010-Education Law Final Exam Outline

I. Education as a State Concern

A. General
1. There is NO CONSTITUTIONAL RIGHT for children to have a public education
2. The State defers educational benefits to its citizens
3. The United States is one of the FEW countries to have a public education system

II. School Governance

A. General
1. There is a LENGHTY history of local control of schools
2. Brown v. Board of Education states that MOST IMPORTANT FUNCTION of LOCAL GOVT. is EDUCATION

B. Emerging Issues
1. School Boards
a. Are creatures of the state
b. Functions like a quasi-governmental system having a judicial, executive, and legislative branch all in one
1. Legislatively
a. The state tells the school boards what they are supposed to do
1. Many school boards don’t have written policies or rules about how to regulate conduct of their students
2. Presumptive Validity: if you do it and get away with it its okay, but just b/c you break the law and don’t get in trouble for it doesn’t mean you shouldn’t do it (goes with the question Should the board make a ruling that teachers are not allowed to give students a ride?)
3. Under Equal Protection: the law sets a minimum standard of what you can do, the board can set the standard higher, but they may not do less– there are however, a lot of areas that board policies just don’t cover, if there is an area they cover then it allows the board to be liable
** Boards are responsible for developing policies, they may ask someone else to draft it, but they debate them and have to vote on them in an open meeting. Once the policy is made they delegate the power to the EXECUTIVE **
2. Executive
a. School Boards (legislative) delegates their voted on policy to the Executive (asterisks above)
b. Are regulations a law?
– They are not the same as statutes, but are presumptively valid (not a law in the typical sense b/c not written by people who are elected to the govt.)
– If someone challenges a statute they have to prove it is unconstitutional, if someone challenges a regulation it has to be arbitrary and capricious (difference depends on what the judge determines)
c. When a board creates a policy about attendance or putting a student in a teacher’s car: the burden of proof is on the person challenging it saying they have to prove it is not right, not that it is not valid
d. When someone breaks a policy: School board has a right to make the decision, there is no conflict of interest b/c the school has the right to do this
e. School boards are ongoing Corp. entities. Issue: is that there are people who are upholding these ruling for things they weren’t around for (when rules being made)
1. School boards have the authority to decide how to carry out their own policies
2. When people challenge board’s actions it is the party who is doing so to demonstrate how the actions are wrong: absent the “smoking gun” this is something that is very difficult
3. Boards don’t do a whole lot w/o having their attorney present
4. School boards operate as arms of the state:
a. Create policy
b. Carry out procedure
c. Quasi-Judicial b/c they go through submissions of evidence and facts in order to determine their decisions
d. Once made, a party can seek redress from the decision made
c. As long as a school board is not acting through fraud or bad faith, the MAJORITY of COURTS will back away from questioning or making decisions for them
d. in REVIEWING a School Board decision the COURT will look at:
1. whether there is SUBSTANTIAL EVIDENCE that the board through a different way
2. REVIEW THE PROCESS that the School Board used in coming to its decision
e. Powers/Functions of the Board
1. Ministerial/Mandatory: things boards absolutely MUST do, cannot delegate the powers
– Hire staff members
– Public meetings
– Levy and Raise taxes
– about 85% of budget is mandatory
– Developing mandatory (broad, instead of the option classes) curriculum
– When and where to build school buildings
– Whether the purchase real property and maintain school property
– Spending decisions
– Adopt by-laws
2. Discretionary: not obligated to do but MAY do (account for the larger part of their actions)
– Busing
– Extra-curricular activities (seem more as mandatory) (are the first things to get slashed when cutting budget)
– Dress code policy
– Search and seizure policy
– Increasing/decreasing size of staff
– Accept various forms of federal aid
– Curriculum modification (have honors classes)
– about 7% of budget is discretionary funds
** School boards operate as a multimillion dollar entity **
f. Act administratively through the superintendent
1. they come and go, for they are NOT TENURED
2. they ADVISE the board but in MOST cases the BOARD WINS
2. School Based Decision Making
a. Definition: giving the local school building and the administrators in it MORE OF A SAY as to WHAT goes into the school itself; making decisions at the BUILDING LEVEL
b. Why have it? Reformers thought that because there are so many problems with public schools, that bringing power to the actual buildings would help administrators and teachers be better prepared (IN THEORY)
c. the teachers and administrators have control Mainly over CURRICULUM ISSUES NOT budgetary concerns
d. a typical set up of school based decision-making:
1. administrator
2. parents
3. teachers
e. Case Sup. Ct.: Boone County v. Bushee– first case to challenge school based decision-making and Sup. Ct. upheld the process
f. research is finally coming back (typically takes a generation) on this process as being slightly negative, but critics of research say it is negative b/c of the decline of the American family
g. 40 states have adopted some form of this process, but in OHIO it is LAREGLY IGNORED
3. Charter Schools (Chapter 3)
A. State boards have created a new responsibility and have offered parents an alternative option for schools (Ch

schools to act as “parents”
– there is a TENSION between parents and schools: for example parents can be prosecuted for not sending their children to school, however they are supposed to do so voluntarily
2. 180 day school calendar has been implemented in recent years requiring all public school students to go to school each year, 180 days
B. Educating all Children?
1. Case Sup. Ct.: Plyler v. Doe: the Sup. Ct. struck down a state statute that did not require that the specific state educate illegal alien children
a. Under the Equal Protection Clause: Texas could not deny a free public school education to school-aged children whose parents are undocumented
– children have no choice for being there, so they should not be punished for their parent’s choices
– Policy Argument: cheaper to pay for these kids to go to school while they are young
– Even if the parents are illegal, they are still paying property taxes, which fund schools
b. Underlying legal basis for courts decision: equal protection, but it’s a unique equal analysis description b/c the test is kind of in the middle– court said the Govt. can’t classify people on race or ethnicity unless it seeks a Govt. interest
1. Once a state sets up schools they have offered to everyone, while they may have some eligibility requirements one of the things they are not allowed to use ethnicity
2. States can however, use residency requirements
2. Case Sup. Ct: Martinez v. Bynum: Sup. Ct. says a student that was born in the US and came back to the US for the sole purpose of going to school cannot receive a free education b/c sister refused to become his legal guardian and it was not his residency
a. Compulsory attendance laws are upheld as long as they are upheld on constitutional premises as long as they are upheld by something protected by the 14th amendment
1. Schools can classify children based on a clearly defined residency requirement that is applied uniformly
-proof of residence: with intent to remain
– with a legal guardian
3. 14th and 5th amendments
a. If what the Govt. is doing is generally related to promoting to the general welfare, and when the court applies the test the state usually wins
b. If the Govt. seeks to take away a federally protected Const. right, courts apply a strict scrutiny test and are unlikely to uphold classifications unless based on compelling justification