EDUCATION LAW
KEMERER
FALL 2012
August 21
The Legal Structure
1. Sources of Education Law Generally
· Constitutional Law
o Federal & State
· Statutory Law
o Federal & State
· Contract Law
o Individual
o Collective
· Judicial
o Federal & State
The Tenth Amendment
· The 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.
o NOTE: As a result, Federal involvement in schools is mostly indirect.
2. Structure of Schooling in California as a case-in-point
Key California Constitutional Provisions Relating to Education
· Article 9, Section 1
o “A general diffusion of knowledge and intelligence being essential to the preservation of rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural development.”
· Article 9, Section 5
o “The Legislature shall provide a system of common schools…”
· Article 16, Section 8(a)
o “From all state revenues there shall first be set apart the moneys to be applied by the State for support of a public school system and public institutions of higher education.”
· NOTE: Why are these provisions relevant:
o 1) They are highly consequential in the context of school finance.
Fourteenth Amendment
· Section 1
o All persons born or naturalized in the United States, are subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of live, liberty or property without due process of law; nor deny to any person w/in it’s jurisdiction the equal protection of the laws.
· Section 5
o Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Fourteenth Amendment Due Process Clause
· …nor shall any State deprive any person of life, liberty, or property, without due process of law…
· NOTE: Hypo: So if you’re a member of a private Catholic school and you’re expelled for passing out abortion pamphlets, do you have a claim due to the above warning? à NO!!
o No, b/c the private school isn’t part of the STATE.
o Also, you can look at it from a contracts POV. If you sign a contract that says you can’t do that (pass out abortion pamphlets) when you first enrolled in the class, then you also probably bound by contract.
Conflict Between State and Federal Law
· Federal law prevails under Article VI Section 2:
· However, nothing precludes States from going BEYOND federal law to protected or extend rights (e.g., gay rights, free speech, privacy) This is why some state law is more favorable to free speech than what the federal government allows.
· Nothing precludes States form being more restrictive when federal law permits it (e.g., use of race in student assignment)
C. Who Should Control Schooling: The Pierce Compromise
Who Should Have Dominant Control Over K-12 Schooling?
· Arguments for State:
o Constitution gives power to the state. Best way to have standardized system. Best interest of the citizenry. Equal opportunity/fairness across varying economic backgrounds (States in best position to provide this). State is better able to delegate federal funding.
· Arguments for Parents:
o Parents have a natural and traditional intimate relationship w/ their children. They do what is best for their kids. Parents are legally responsible for their minors as well (being parallels to family law). Freedom – parents are paying essentially for the education through taxes.
· Arguments for Students:
o Their school, their choice. Children know best what they want. Promotes attendance and class participation because if you’re in a class you don’t want to be in, then you might not attend. Unbiased objective position…free to pursue what they want.
· When and how should such control be manifested?
Scenario: Who Prevails?
· California requires that the role and contribution of lesbian, bisexual, gay, and transgender persons be include din public school social studies.
o Arguing that this law intrudes on parents rights, parents demand that their 17-year-old son be exempted from this united of instruction
o Son requests that despite his parents’ wishes, he does not want to be excluded, because he is gay.
Pierce v. Society of Sisters
· FACTS: Oregon passes law that makes people go to public schools. Society of Sisters is a Catholic School.
o TWO ARGUMETNS ARE BEING MADE BY SOCIETY OF SISTERS
§ 1) No state shall deprive a person [person in this case are the private schools] (corporations are artificial persons) of property.
§ 2) Deprives parents of right to control their children’s upbringing. Think…”life, LIBERTY (liberty to control child’s education)”
· HOLDING: The law unreasonably interferes w/ the LIBERTY of parents and guardians to direct the upbringing and education of children under their control.
o NOTE: This is just dicta — This is b/c it wasn’t decided on the basis of this…but rather it was decided on the basis of the property right. (See Below)
· NOTE: Some people see this case as a violation of equal protection of the law…why?
o Because private school attendance usually consists of wealthy people. So the argument is I would like to have my children learn in a religious environment, but I don’t have the means to go to those schools, and Pierce doesn’t do anything about it…so instead parents want the money (Vouchers) so that they can avail themselves to the same opportunities that rich families have.
o Another argument is that public schools are doing poorly…but if they can’t afford it or move, they have no choice, so we need to provide them the means to go to a private school, or pay for their transportation to get to a different district.
o These arguments are where the Voucher Programs come from.
Fourteenth Amendment Rights Implicated in Pierce (Essentially, this is the Pierce HOLDING)
· Liberty Right
o Right of parents to choose a private school.
· Property Right
o Right of private schools to operate.
Aug 28 – PARENT RIGHTS AND SCHOOL CHOICE
Parent Constitutional Rights
· Meyer v. Nebraska
o Right to control Child’s upbringing.
· Pierce v. Society of Sisters
o Right to choose a private school.
§ NOTE: Important to note that the decision wasn’t passed on the Parent’s right to choose, BUT INSTEAD, was based on the private school’s property rights. The court also said that the State had the right to reasonably regulate all schools, under the 10th Amendment.
§ NOTE: While private schools have a right to exist by virtue of this case, the it is recognized that the State has the right to regulate them, even in the absence of any public funding.
· West Virginia State Board of Education v. Barnette
o Right to be free from compulsory flag salute.
· Troxel v. Granville
o Parents, not judges, should determine grandparent visitation rights for children.
§ NOTE: Justice Sandra Day O’Connor stated in the opinion that the most fundamental is the parents right in the context of education. – just interesting to point that out according to the professor.
NOTE: Cumulative Update p. 22
· Mendoza v. State of California
o Mayors aren’t in a position to have power over choosing superintendents and overseeing the public school system b/c those individuals are already elected. Say that constitution would have to be changed in order to empower mayors.
How Strong are Parent Constitutional Rights in Schooling
· No Constitutional right to Exemption from compulsory schooling.
· No Constitutional right to home schooling
o But see Jonathan L v. Superior Court (see below)
· No Constitutional right to curricular exemptions (unless based on religion)
· Other than choosing a private school, parent rights are shaped by State Law.
· FROM LECTURE NOTES:
o So how strong are parent Constitutional right sin school?
§ The answer (based on above) is really not that strong.
Jonathan L. v. Superior Court
· U.S. Supreme Court used rational test in Pierce.
· If restriction on parents’ right to home schooling satisfies strict scrutiny by showing a compelling state interest, it will be constitutional.
· Whether child’s safety based on parent child abuse of siblings satisfies compelling state interest to deny home schooling is a matter of trial court to decide
· NOTE: Decision discussed on p. 27 of CSL
o The right of homeschooling is a matter determined by state law (Pierce hasn’t been extended by federal courts to encompass homeschooling…not yet at least).
o Though the legislature has never been explicit, the judges concluded after examining various statutes that homeschooling is a form of private schooling and not the equivalent of tutoring. The State Court construed the liberty right of parents to control their children’s upbringing to be sufficiently strong to require a compelling governmental purpose to restrict homeschooling.
§ A finding by a dependency court that parents are not fit to instruct their children at home fulfills that requirement.
· NOTE: What is the best way for the State to control home schooling?
o 1) Make sure that the parents are properly credentialed.
o 2) That all students that are home schooled must participate in the state testing system – which isn’t the case as of right now.
NOTE: School Choice
· This is important. There’s a lot of interest for several reasons, for example, the school in this district sucks, parents want the child to go to another school, but can’t afford to send them to a private school or to move to a different district etc.
· Also the idea of the market economy. Let the parents choose, it will drive competition.
· There have been various school choices…the one that has been the most explosive as of recent are charter schools. (see below)
California Charter Schools
· Two types: Conversion Charters and Startup Charters (§47605(a)(1) and (2))
o Private schools may not convert to charter schools (§47602(b))
· Detailed charter petition must be prepared (§47605)
· If oversubscribed, random admissions except for certain geographic and low-income preferences (§47605(d)(2), § 47614.5(c) and (f))
o NOTE: Charter schools generally accept any student…EXCEPT for certain geographic and low income preferences…so there’s a tendency to encourage low income students to attend charter schools.
· Oversight responsibilities by charter authorizer (§47604.32)
Wilson v. State Board of Education – Key Constitutional Provisions Referenced
· NOTE: What’s interesting about this case are these constitutional provisions it asserts.
· Article IX § 1
o General diffusion of knowledge (public purpose doctrine)
o NOTE: The idea is that schools must serve a public purpose and public schools falls most in this category.
· Article IX § 5
o Legislature to establish a system of common free schools (uniformity)
o NOTE: this surfaces a lot in litigation.
§ Idea of common learning experience.
· Article IX § 6
o Public schools / state colleges to remain under control of public officials (non-delegation doctrine)
· Article IX § 8
o Public money for public schools
· Article XVI § 5
o No public money “to or in aid of” or “to support or sustain” any religious private schools (no direct or indirect aid to religious entities)
o NOTES:
§ Key words are “in aid of” or “to support or sustain”
§ So think of the WILSON case…we provide voucher to X person to give to a school, and that school uses the money to buy books or pay teachers. Arguably, you can say that you’ve supported the private school. This means that vouchers, in CALIFORNIA, have no chance.
o NOTE: But in the context of CHARTER SCHOOLS, act is NOT a violation of the California Constitution for several KEY REASONS:
§ They are public schools – they serve a public purpose. Public money going to a public purpo
e 1960s to equalize per pupil expenditure across school districts
· Lawsuits initially were based on the equal protection clause of the 14th amendment to the U.S. Constitution.
· NOTE: So they begin their arguments w/ the Equal Protection Clause.
Equal Protection Clause Interpretation
· Generally, governmental action treating persons differently will be upheld if there are rational reasons for doing so (relaxed judicial scrutiny)
· In certain situations, government action must satisfy a compelling purpose test that is narrowly tailored to serve that purpose (strict judicial scrutiny)
o Suspect Classifications (e.g., race)
o Fundamental Rights (e.g., voting)
· NOTES:
o Courts are at times unwilling to question the legislature. The judges make it clear the don’t really like to deal with the Equal Protection Clause, except in certain instances, for example Brown v. Board of Education.
o But the judges begin to look more closely at these cases. So in certain situations, government action must satisfy a compelling purpose test that is narrowly tailored to serve that purpose (strict judicial scrutiny.)
San Antonio Independent School District v. Rodriguez
· Texas established the Minimum Foundation School Program, but there were still obvious disparities.
· Arguments πs made on behalf of the poor people:
o 1) Poverty was a suspect classification. Said that income is a suspect class.
§ The court didn’t buy this argument.
§ The court said it’s not as clear as race. There’s rich people that live in Edgewood and poor people that lived in Alamo. Also, the court said race was more identifiable.
o 2) Education is a fundamental right. Said – Look at Brown v. Board of Education, said that it’s so fundamental you talk about it a lot in that case.
§ Again, court doesn’t agree w/ this.
§ The court says that even if it were conceded that some education is a constitutional prerequisite there’s no evidence that the education in Texas falls short.
· There’s no straight up denial of educational opportunities so to any of the children…we know that all of the students are getting some education.
· So let’s not go so far as to say that they aren’t getting denied any fundamental rights (if that even exists) to education.
· So back to the Rational test à it passes
· What’s the whole thing about local control? Why can’t the states just take over? Why let the local government do it? Why let the local government control of schools continue?
o They say well it should be a democratic matter, not a judicial matter…and if they don’t like what they are living…then move.
o The argument is that if the voters don’t want to spend a lot of money on education, but would rather spend it on parks for example, let them decide that. Let the local districts decide this. It’s all part of the whole democratic process. Don’t let the State dictate or the judiciary dictate how this is all being done.
· Also, there’s a sort of slippery slope argument…b/c there’s going to be a “parade of imaginary horribles” of other social services…Think about Police, people are going to start arguing “how about our district, crime rate here is higher than theirs…needs to be equal yada yada. (p. 6 of case)
· At the very end of the case Justice Powel does back up a little…this is the last time the Supreme Court has gotten involved in education financing. THUS – it’s been left to State courts.
· Dissents:
o Justice White w/ Douglas & Brennan à they say look majority talks about local control of schools…fine, if one area wants to spend more money fine…the majority endorses that, which is fine, BUT there’s a basic problem w/ that in this case…Points out that the State has a cap (another law) that conflicts…so even if some districts wanted to spend money, they have to tax themselves at a rate in which they wouldn’t even be able to because the other State law places a cap…so in essence, they are depriving equal protection.
o Justice Marshall à the most passionate. He says wtf, you came up with all these other rights that weren’t in the constitution, like procreation, right to vote, appeal from a criminal conviction etc….none of these are in the constitution either. Where are you coming up with these?
§ That’s a good point…he’s saying how did the court come up w/ these other things, but still exclude education which is truly fundamental to anything!!
· Why does the court say that education is not a fundamental right?
o They saw a way out…
§ There’s the parade of imaginary horribles.
o But really what their out was was that they didn’t have enough evidence for them to say education was a fundamental right. In this case they’re all getting some education.
o So what essentially that they’re doing is kind of dodging it…they leave the door open…they say there is a fundamental right to SOME EDUCATION, but here, that’s not at issue, the State is providing some basic form of education.
