Select Page

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

Dean Boger
Education Law
Spring 2015
I.                  Schooling and the State
a.       Goals and Purposes of Public Education
                                                               i.      Societal
1.       Help individuals become participating citizens
2.       Development of Human Capital
3.       Scientific Progress
4.       Create a common culture so people can interact and create a baseline of knowledge
5.       Instill character
6.       Remain competitive on the global market
                                                             ii.      Individual
1.       Promote individual success
2.       Self actualization/intrinsic value
                                                           iii.      State
1.       Progress
2.       Stability
b.      Schooling and the Family
                                                               i.      Guttman’s “Democratic Education”
Plato “The Family State”
“The State of Families”
Mill “The State of Individuals”
“The Democratic State”
The State—Individual to Determine Virtue (what good life is)—Justice
The Family/Parents are natural authority. Moral freedom.
Assumes parents act in child’s best interest.
Neutral educators. No state doctrine, but not parents either
Balancing. Reason with each other to make choices
Well ordered machine if you can do it
Parents can instill own morals. Natural law
Marketplace of ideas. Maximize freedom. Skeptical of state and family teachings. Examine views for self.
Impose decided values on family and state. Values are decided on by reasoning with each other. Ongoing process of testing and making alternative choices. Teach being open to different ideas. Non repression and nondiscrimination
Can we know virtue? Not everyone agrees. Misguided state. Practical problems of removing children from families
Parents do not always act in their child’s best interest. Does not expose children to different world views. No national identity. Even loving parents have limitations
Children make bad choices. Assumes neutral educators exist. Teaching people skepticism about the state might not be in government’s best interest. State is paying bill, after all. Unexamined assurance that if everyone makes own choices, enough coherence for state to operate
Even the most well intended political order will have blind spots. Complex diffusion of responsibility in our society. So much is already predetermined.
1.       Education Chart
c.       Compulsory Public Education
                                                               i.      Pierce v. Society of Sisters
1.       Facts: Compulsory public education in Oregon. Plaintiffs are Society of Sister who ran series of Catholic Schools. Also military schools. Ages 8-16
2.       Holding: State can compel attendance to some form of school. Regulate pupils, teachers to be of good moral character and patriotic disposition, and certain studies be taught/not taught. Parents can choose type of schooling.
                                                             ii.      Versions of Pierce Compromise
1.       State as presumptive educator but parents can opt out
2.       State is potential but not presumptive and state should support parental choice
3.       Voucher Programs
                                                           iii.      Wisconsin v. Yoder—HYBRID CASES
1.       Facts: Wisconsin mandated school until age 18 but parents could chose what school Amish had problem because they did not want children to attend school after 8th grade
a.       Disliked high school values of competitiveness and self fulfillment
b.       Afraid children will leave community. Religious viewpoint. Go to hell if exposed to high school
c.       Get used to hard work.
d.       State argument: higher responsibility for educating citizens. Developing the citizens. Limits child choice
2.       Rule: Use Strict Scrutiny
a.      Religious Belief
b.      Sincerely held
c.       Substantial Burden
                                                           iv.      Smith
1.       Facts: Peyote as religious belief. No more balancing
2.       Rule: If state has neutral law on its face, not designed w/ intent to discriminate, whatever majority decides prevails
3.       Yoder was a hybrid case. Depends on Free Exercise+Substantive Due Process
4.       Led to passing of federal RFRA
d.       Homeschooling
                                                               i.      Hybrid meeting of parental concern and state interest
1.       Swanson—state can rule that all students attend all classes of public school, even if student was homeschooled for religious reasons and seeking supplemental classes.
                                                             ii.      General
1.       Modest part of overall educational spectrum
a.       1,443,000 public schools in NC
b.       10 percent private schools
c.       48,000 charter schools
d.       98,172 homeschooling
                                                           iii.      Right to Homeschooling
1.       Care and Protection of Charles
a.       Ohio family homeschooled and truancy proceedings initiated
                                                                                                                                       i.      Plaintiff—void for vagueness
1.       Statute would be declared unconstitutional and bar all homeschooling
                                                                                                                                     ii.      Plaintiff—nondelegation
1.       Broad enough
                                                                                                                                   iii.      Court remanded, gave guidance for homeschooling
                                                                                                                                   iv.      Burden of proof is on the parents
                                                           iv.      Oversight of Homeschooling
1.       Combs v. Homer-Center School District
a.       Facts: religious belief that education of their children is religion and God has assigned it to exclusive jurisdiction of family
b.       Two options:
                                                                                                                                       i.      Rational basis under Smith
                                                                                                                                     ii.      Strict scrutiny under Yoder
c.       Not a hybrid case. Fundamental right here is to educate
                                                                                                                                       i.      Court says no Pierce right here because you have the right to nonpublic schooling but not unregulated
                                                           v.      Rule
1.     Smith says that if you have a Free Exercise claim+Pierce claim, you can use heightened scrutiny
2.     Yoder only applies to hybrid claims—those with Free Exercise+some kind of constitutional claim
e.       Nonpublic Education
                                                               i.      Limits of State Regulation
1.       Farrington v. Tokushige
a.       Facts: foreign language schools regulated by statute. Exceptions for Hawaiian and Hebrew. Mostly Japanese is the reason for the statute—ethnic reasons
b.       Problems: At some point, nonpublic schools can be reg

       Holding: Court upheld because it allowed true private choice.
                                                                                                                                       i.      Lemon test—purpose is secular
                                                                                                                                     ii.      No incentive for religion
9.       Aguilar
a.       Facts: Money to school systems serving low income children. Used for remedial education. Title 1 teachers hired, come into schools to help needy students. Also going to Catholic schools.
b.       Holding: 5-4 decision unconstitutional
10.   Agostini
a.       Merges entanglement into primary effect.
b.       Funding went to parochial schools to provide supplemental instruction to disadvantaged children using public school teacher.
                                                                                                                                       i.      Public school employees on private grounds isn’t necessarily a violation of establishment clause.
                                                                                                                                     ii.      Safeguards
11.   Zobrest—Court ruled that deaf student can take state-sponsored interpreter to Catholic school.
a.       Hearing aid, not teacher.
12.   Everson—NJ reimbursement of bus transportation expenses to parents of private school children.
13.   Mitchell v. Helms
a.       Assistance to public and nonpublic schools for library services. Computer software, etc. Not owned by schools but just to use.
                                                                                                                                       i.      Being used to play religious videos.
b.       Holding: Not religious and applied to all schools.
14.   Not allowed
a.       Direct grants for religious schools for general operations
b.       Separate school districts
                                                                                                                                       i.      Kiryas Joel Village—used “Neutrality” Test
f.        Overall Rules
                                                              i.      Constitutional Rights
1.       Right to direct upbringing and education of your children
a.      Subject to reasonable regulation.
                                                                                                                                      i.      Vigorous rational basis review
                                                                                                                                   ii.      After school less regulated than during school.
                                                                                                                                 iii.      Broad enough to allow subjects so long as not dangerous to safety or morals of child.
1.      Parents have right so long as it stems from sincere religious belief of parents