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

I. Philosophical Basis for Schooling
1. Family State (Plato)
o View that the state should be responsible for teaching children.
§ Parens patriae – the state is the father or guardian for minors
o Goal: Creating a harmonious state – where the aspirations of individuals and the collective society work together
o Criticism: Different people have different views on what “good” is
2. State of Families (Locke and Aquinas)
o Places educational authority exclusively in parents, thereby permitting parents to predispose their children thru education to choose a way of life consistent w/ their familial heritage
§ Locke à if the state is committed to the freedom of individuals, then it must cede educational authority to parents whose freedom includes the right to pass their own way of life onto their children
§ Aquinas à Parents have a natural-born right to teach their children
o Criticism: Parents can’t be counted on to equip their children w/ the intellectual skill necessary for rational deliberation
o Prince v. Massachusetts (US 1944) – Court stated that “the family itself is not beyond regulation in the public interest . . . the state as parens patriae may restrict the parents’ control by requiring school attendance, regulation or prohibiting the child’s labor and in many other ways.”
3. State of Individuals (John Stuart Mill)
o A neutral educator should be responsible for teaching – ideal authority is one that maximizes future choice w/o prejudicing children towards any controversial conception of the good life. Gives children their own choice, to be educated in their own way.
o Criticism: It’s alright for a state to have its own values – which might be different from another’s, even if they aren’t the very best values
§ Two limits to this, though:
ú Nondiscrimination – all educable children must be educated; can’t leave anyone out
ú Non-repression – prevents state from using education to restrict rational deliberation of competing conceptions of the good life/society
4. Democratic State of Education
o Responsibility of education should be shared b/w state and parents
o Educational authority must be shared among parents, citizens, and professional educators, even though such sharing doesn’t guarantee that:
§ Power will be wedded to knowledge
§ Parents won’t pass their prejudices onto their children
§ Education will be neutral among competing conceptions of the god life
o Aids children in developing the capacity to understand and to evaluate competing conceptions of the good life and good society
o Purposes of public education: (1) the attainment of knowledge; (2) socialization
o State can’t require attendance solely in public schools.
§ Pierce v. Society of Sisters (US 1925) – Court finds that Oregon law mandating compulsory public school is an unconstitutional (14th Amend.) interference w/ the liberty of parents to direct the upbringing and education of children under their control.
ú Also could find abridgement of 1st Amend. – religion and speech; EP violation to discriminate against Catholic schools
ú “Pierce Compromise” – While the state can make education compulsory, it can’t force parents to send their children to public school. Allows some reasonable regulation of all schools.

II. Parental Control over Schooling – Foreign Languages/Cultures
· Issue: Balancing parens patriae – interest of state in educating its children vs. parent’s right to direct their childrens’ upbringing
· Farrington v. Tokushige (US 1927) – Court struck down HI statute that strictly regulated hours, textbooks, and curriculum of after-school programs that taught in the native language of the students as a violation of DP of 5th Amendment.
o Substantive Due Process: Parents have the right to direct their childrens’ education and upbringing w/o restrictions that are unrelated to any rational state goal, even in after-school programs.
§ Enforcement of the Act would’ve destroy most, if not all of the parents’ choice and deprive parents the fair opportunity to provide children w/ education of their native language, etc.
· Meyer v. Nebraska (US 1923) – Court strikes down NE statute that imposed criminal penalties on public/private schoolteachers who taught in any language except English to children lower than 8th grade as violation of DP of 14th Amend.
o This legislation interferes both with: 1) the language instructor’s right to engage in their profession; and 2) the parent’s right to engage the teacher to instruct their children.
o Also doesn’t serve any reasonable purpose of the state. Teaching students another language – in this case German – isn’t in any way harmful.

III. State Regulation of Non-Public Schooling
· Home-schooling:
o All states now allow parents to home-school their kids.
§ Disputes that we see today are disputes about the scope of regulation and how much we can require of parents who are homeschooling their kids.
§ Homeschooling was prohibited prior to 1980 in many states, and there hasn’t been any overarching right attached to it.
o Could make an argument that it’s constitutionally required to allow homeschool through Pierce, but no direct ruling on it–it’s just through state acquiescence.
o Testing: State requirements that children in home schools be tested to assess their academic progress have been generally upheld by the courts so long as the governing statutes aren’t too vague for reasonable interpretation – b/c it’s a legit state interest
o Parents have no right to pick and choose

(US 1972) – Court held that Amish children could not be compelled to attend high school even though they were w/in the age range of WI’s compulsory attendance statute.
§ Their belief was that higher learning beyond what could be acquired in neighborhood K-8 schools developed values that alienated their children from God.
§ Why allow an exception?
ú B/c Religion is such a basic freedom, state must show that universal compulsory education past grade 8 is a compelling state interest.
ú Here, the state interest in was not enough to justify severe interference w/ the Amish’s religious freedom.
· Amish secondary education had enabled the Amish to function effectively in contemporary society
§ Douglas Dissent: Worried that nobody’s taking the children into account – what if the kids decide later in life that they want to leave and haven’t been properly educated thru 12th grade?

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§ Yoder Test for Free Exercise Claims: Balancing the individual’s religious interests against the public interests of the state –
ú Ps must show:
i. Religious belief – is it a legitimately religious belief?
ii. Sincerity in beliefs
iii. Substantially Burdened – whether state regulation unduly restricts the religious practice
ú Burden then shifts to State to show:
· Compelling governmental interest – AND
o Normally Prince right to educate kids in the state
· Narrowly tailored means – no other way to accomplish interest than what state’s already doing
§ Fellowship Baptist Church v. Benton (8th Cir. 1987) – COA held that state’s interest in ensuring that children are taught by well qualified teachers outweighs religious schools’ objections to teacher certification and reporting requirements.
ú School argues that teacher certification interferes w/ “God’s calling” – this may be a legitimate interest, but at step 1 of Yoder: may not substantially burden their religious beliefs. At step 2, the state’s interest outweighs.
· Narrowly tailored – Certification is necessary to ensure teacher sufficiency before school starts; rather than waiting to find out w/ end-of-year testing
ú NOTE: Appears that the COA is deciding for the group what constitutes a burden on their religion for them