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Education Law
University of South Carolina School of Law
Black, Derek W.

Education Law and Policy


Spring 2015

Education Law and the Challenge of Inequality

A. Structure and Hierarchy of Public Elementary and Secondary Education

a. Key Actors

i. Local

1. School District

a. Authority from school board (set policies)

2. School Boards

a. State statute creates the district

b. Delegations of state authority

3. Administrators and Teachers

a. Authority from school district

ii. State (has more control than Federal)

1. Authority

a. State constitution (legislature)

b. State law

2. South Carolina Title 59- Education Law (federal dept of Education)

3. Delegate authority to other people such as school districts

4. Courts

5. State legislatures have the most power and then transfer it over to the local school districts

iii. Federal Government

1. No specific authority for federal government to exercise authority over states

a. There are prohibitions

2. Congress gets involved by setting conditions on money for education

a. Derived from its spending power (spending clause)

b. Has section 5 power to enforce the 14th amendment

3. Federal law to education has increased dramatically due to:

a. The judicial recognition that constitutional rights extend to students as well as adults

b. Congress’s use of its spending power to entice states to voluntarily adopt federal education policies

4. Courts- enforce spending clause

a. Authority to enforce the 14th amendment

5. Department of education- monitor the spending clause

B. Challenge of equality

What does it mean to deliver an equal education? Does equal opportunity mean that the state should provide for individuals or provide bland education “one size fits all”?


A. Prohibiting Segregation and the Duty to Desegregate p. 18-34

a. Brown doesn’t overturn Plessy focuses on education

b. Prohibiting Racial Segregation

i. Brown I

1. Facts of the Case-Black children were denied admission to public schools attended by white children under laws requiring or permitting segregation according to the races. The white and black schools approached equality in terms of buildings, curricula, qualifications, and teacher salaries. This case was decided together with Briggs v. Elliott and Davis v. County School Board of Prince Edward County.

2. Question -Does the segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by the 14th Amendment?

3. Conclusion -Decision: 9 votes for Brown, 0 vote(s) against

4. Legal provision: Equal Protection

5. Yes. Despite the equalization of the schools by “objective” factors, intangible issues foster and maintain inequality. Racial segregation in public education has a detrimental effect on minority children because it is interpreted as a sign of inferiority. The long-held doctrine that separate facilities were permissible provided they were equal was rejected. Separate but equal is inherently unequal in the context of public education. The unanimous opinion sounded the death-knell for all forms of state-maintained racial separation.

ii. Social science

1. Creates an sense of inferiority

2. Criticized because there is no causal evidence and also the location

iii. Why does the court cite these dolls?

1. Just needed something to cite

2. Political climate and public opinion at this time was strained

3. Needed to convince America

iv. There has to be unified front on this topic and they shouldn’t allow any room for dissent and another opinion

v. Brown I gives education an importance but doesn’t call it a fundamental right

1. Earlier versions

a. Wanted to decided education as a fundamental right

vi. Does the court overturn Plessy?

1. Does not overturn it outside the scope of public education

vii. What way is the history of school segregation relevant to the question?

1. What if the framers said it was fine?

2. Court says history matters, but we don’t know what they thought

3. Intent is always relevant, but words are ultimately controlling

viii. Plaintiffs are different in this case because they’re asking for court to claim separate cannot be equal

ix. Court does not call education a fundamental right

x. Brown II

1. Facts of the Case -After its decision in Brown I which declared racial discrimination in public education unconstitutional, the Court convened to issue the directives which would help to implement its newly announced Constitutional principle. Given the embedded nature of racial discrimination in public schools and the diverse circumstances under which it had been practiced, the Court requested further argument on the issue of relief.

2. Question – What means should be used to implement the principles announced in Brown I?

3. Conclusion -Legal provision: Equal Protection

4. The Court held that the problems identified in Brown I required varied local solutions. Chief Justice Warren conferred much responsibility on local school authorities and the courts which originally heard school segregation cases. They were to implement the principles which the Supreme Court embraced in its first Brown decision. Warren urged localities to act on the new principles promptly and to move toward full compliance with them “with all deliberate speed.

a. Who gets to go first

i. School

1. With all deliberate speed

a. Open to interpretation

b. No actual standard given

xi. Takeaway: The Court says that education is important but not necessarily a fundamental right. Racial inequality has a negative effect on minority children. Something must be done but the court doesn’t provide a clear procedure for remedying segregation. The court felt this was wrong and needed something to point at so social science was use despite the criticisms. Local control is very important in the fight against segregation.

c. The Affirmative Duty to Desegregate

i. 14 years later, congress has stepped in to help enforce the brown decisions

ii. Green v. County School Board of New Kent County 391 U.S. 430

1. The parents maintained that the board had not taken appropriate steps to desegregate the school because no white child had chosen to go the traditionally all black school and only 15 percent of the black children attended the traditionally all white school. The parents asserted that better options were available that would affirmatively cause integration. The court reversed the decision and held that the board’s freedom-of-choice plan could not be accepted as a sufficient step to effectuate a transition to a unitary system. In the three years that the plan had been in place during the appeals, virtually no integration had occurred. Rather than affirmatively dismantling the old dual system, the plan placed the burden of integration on the parents. The court ordered the board to adopt steps to convert promptly to a system without a segregated school. It was incumbent on the board to establish that any proposed plan promised meaningful and immediate progress toward disestablishing state-imposed segregation.

2. Purpose

a. To convert from a dual system to unitary

b. School district had affirmative duty to take whatever steps might be necessary to convert to a unitary system which racial discrimination would be eliminated root and branch

d. Key takeaway

i. Eliminate racial discrimination

ii. Green factors to test race unitary

1. Student assignment-composition of student body

2. Faculty

3. Staff

4. Transportation

5. Extracurricular activities

6. Facilities

iii. Does the constitution require this type of actions? (mandate integration)

1. Leads to constitutional remedies

2. Fix previous better

3. Constitution does not mandate

4. But rights that are violated mandate this integration

B. Methods to Achieve Desegregation and the Judicial Authority to Compel them

a. Swann v. Charlotte-Mecklenburg Board of Education

i. Brief Fact Summary. School districts undergoing desegregation under Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), and Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II), sought clarification of their duties and the scope of federal district courts’ power under [Brown I/II].

ii. Synopsis of Rule of Law. The scope of District Court authority is broad, but enters only when local school districts have not voluntarily brought themsel

school with a sizable population of both African American and Latino students is not integrated because there are students of different races. Rather, the Court indicated that these schools were still segregated, because both African American and Latino students suffered the same educational inequities as compared to Anglo students in schools with predominantly Anglo student populations. This, in the Court’s opinion, allowed minority students to demonstrate racial segregation more easily.

2. Second, the Court reasoned that if the plaintiffs could prove that school officials intentionally implemented a policy of segregation in a substantial portion of a district, then lower courts could find that the system as a whole was essentially segregated into two racially divided districts. The Court pointed out that in order to succeed, the plaintiffs had to establish intent to engage in racial segregation by providing evidence that school officials used policies that were known to likely cause segregation, such as manipulating neighborhood school policies, including student attendance zones and school site selection criteria. Once the plaintiffs demonstrated that there was segregation in a substantial portion of the district, the Court noted that the burden shifted to the board to prove that its actions regarding other segregated schools in the district were not racially motivated. Again, the Court reduced the burden for minority students to demonstrate that racial segregation was present.

c. Problem: The burden would be on the plaintiffs to prove substantial and intentional desegregation. De facto segregation

C. Limits (p.53-79)

a. Intra-district versus inter-district segregation

i. Milliken v. Bradley 418 U.S. 717

1. Brief Fact Summary. The schools of the city of Detroit, Michigan were racially imbalanced in the eyes of the District Court. The court’s remedy was to redraw lines of neighboring suburban school districts to achieve racial balance within the city’s schools.

2. Synopsis of Rule of Law. The District Courts cannot redraw the lines of integrated school systems to achieve racial balance in a segregated school system absent an interdistrict violation or effect.

3. Facts. Attempts to integrate the Detroit schools had been unsuccessful. The District Court redefined the area in question from the city itself to the outlying school districts in the metropolitan area, a total of 54 school districts, including the Detroit district itself. The proposed redistricting would cause significant administrative and financial problems for the resulting school system.

4. Issue. May District Courts redraw the boundaries of integrated school districts to achieve integration in a segregated district?

5. Held. Not without an interdistrict violation or effect.Chief Justice Warren Burger (J. Burger), writing for the majority, notes that there are many practical difficulties in the proposed plan. It is unclear what the status of currently elected school officials would be in the new “super district;” how taxes would be levied and distributed and who should make curriculum decisions. The scope of the remedy is determined by the nature and scope of the constitutional violation. In the present case, the discriminatory acts of a single district must be a substantial cause of interdistrict segregation. Thus, if district lines were drawn on the basis of race, or if discriminatory acts of one district caused segregation in another, an interdistrict remedy may be in order. However, this is not the case here.