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Education Law
University of North Carolina School of Law
Boger, John Charles

Education Law

Big, Quick Overview

A basic description of laws pertaining to education in the United States:

Kids have to go to school, but it can be public or private. Parents can supplement their children’s education, but if a parent’s desire to control his child’s education conflicts with the state, the state is almost always going to win. The government can regulate all education, public and private, to achieve an educated population.

If you’re really religious and you’re faith historically does a good job of educating children, you can take your children out of school.

The state can ensure private schools do a decent job.

The state cannot give the appearance that it is promoting religion in schools. There are some tests for what constitutes “appearance.”

The state cannot indoctrinate students with political ideology, but it can test them on ideology.

Teachers can search students if they have the slightest reason.

Teachers can hit students but if they hit them hard enough they can be sued.

If a student gets kicked out of school for more than a couple weeks, you have to tell him why and hear his side of the story.

School boards set the curriculum and teachers cannot deviate.

Teachers are incredibly important so we can refuse to hire illegal immigrants.

Teachers cannot say anything about the school that would really stir things up at the school, even if it’s true.

Teachers cannot say anything about the school that he knows or should know is false.

If a teacher has been working for the school for a while, the state cannot fire him without telling him why and hearing his side of the story. Every state defines “a while” differently.

Schools must have desegregated students, faculty, administration, facilities, transportation, extracurricular activities, and student academic achievement. If one of these is not desegregated, the court can tell the school what it must do.

Affirmative action is ok, but you can only pick groups that have been discriminated against and you cannot let them in solely because of their race.

If a school that takes federal money intentionally discriminates against students, they can sue the school. If the school effectively but not intentionally discriminates and the Department of Education has a rule against that, then the DOE can withhold funds, but parents cannot sue the school. But, parents can sue the DOE and get them to withhold funds.

A disabled student cannot be totally excluded from school or discriminated against solely because of his disability. Schools have to create individualized educational programs for every disabled student and if the parents don’t like the program they can appeal in court. The program must provide some educational benefit, basic accommodations necessary for the student to learn, and mainstreaming to the extent possible without subjecting other students to danger or disruption.


Sub DP – Direct child’s upbringing
The issue is whether the policy violates the right, established in Pierce, of parents to control the upbringing of their children. The primary counterweight is also established by Pierce,

oder that involve free exercise and an additional right, then apply a Yoder analysis (not Smith). This has huge implication for education law cases, because almost all should be hybrids in this context. Prof: As long as the state’s not singling out a religion for disadvantage, it’s ok. Says all the other cases are hybrid cases.

Sub DP – Direct child’s upbringing (by regulating secular private schools)
The issue is whether the regulation of private schools in this manner exceeds the authority stated in Pierce for the state to reasonably regulate all education, public and private, and unduly infringes on the substantive due process right of parents to control their child’s upbringing, also established by Pierce.

None of the following cases are necessarily authoritative – no SCOTUS precedent in this area; remember though that Pierce compromise allows some reasonable regulation of all schools.
Benton: allows states to regulate “equivalent instruction” through teacher certification and student accountability
Goff: can require standardized testing in private schools; rational basis for state authority to control education (absent a free exercise claim) b/c impossible to run school if every decision can be challenged by strict scrutiny. See also Herndon.