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Education Law
West Virginia University School of Law
Taylor, John E.


History of public schools in America
1. What we think about public school did not start until the middle of the 19th century. It was not until the 20th century that the 12-year education became common.
2. The term, high-school dropout was not common until the 1950s. Public schooling is a relatively recent innovation.
3. What do we really want/expect of education? Does education law help schools function well or not?
a. Part of the issue—Americans expect schools to do several things. What are these things? Eliminating ignorance also depends on the level of schooling you are thinking of. Middle school—possibly socialization, allowing students to interact in a space in which they are learning simple life skills. High school—providing a space for individuals to find their place in the world, and give them the ability to pursue this. Elementary school—conveyance of basic information, regimentation.
b. SOCIALIZATION—learning the minimal kind of conventions to deal with people that are not related to you.
i. Real question—are we a democratic society in which we can collectively deliberate about certain things? The educational process wants reasonable deliberation. Cannot do this without an education process.

Schools do choose sets of values and try to get them to set into the minds of students.
(Abstinence-only sex education, drug-use prohibitions, democratic capitalism in markets, freedom v. constraint, honesty v. not-so-much)

ELIMINATING IGNORANCE—developing skills, appreciating a wider variety of perspectives in the world. These are critical to education in the world.
A lot of this is for the development of the workforce for economic reasons.
How can school systems produce people that will bring industry into the state? By building up the schools better.
There is anxiety about world competition and interstate competition.
Also, is a way of self-actualization and self-fulfillment.

EQUAL OPPORTUNITY—leveling the playing field, giving people an equal opportunity. In America, we hope that we have equal opportunity.
The society allows for degrees of economic inequality to exist in the world that would be indefensibly in others. Our hope is that the public school system is the leveler of opportunity. Everybody has a right to go to public schools and these should all be good enough to give students a fair shot.
We don’t use the tax system to level the playing field, we use our educational system.
You have all the grandiose lawyer language, but there are also head start programs, free or reduced meals, too.
The American system is expected to provide an enormous amount of incredibly important social goods. There are few institutions that are expected to give so much.

Gutmann Article—begins with three approaches painted in stark terms and then the good approach.
1. The Family State—state would establish what was good and what was bad. This is linked to Plato, also linked to Aristotle.
a. Part of the idea is what will ultimately make people happy. They have to find themselves in a social order. Have to see their place in society as harmonious.
b. This is hard for 21st century Americans. There will always be tensions here between individuals and societies. You get the kids quick enough, you can educate them and so they will not see the societal good as terribly different from their own.
c. If someone does not have this upbringing, it is too late. They have missed out, they cannot be corrected.
d. The ideas here are radical, but are motivated by the state’s control and structure people’s lives that seem impossible for us to achieve. This is an extreme conception. The biggest defense for this—that state authority over education is necessary for establishing a harmony between individual virtue and social justice. Unless children associate their own good with the social good, a peaceful and prosperous society will be impossible.
e. There is a moral force of the parental imagery in politics. The purpose of education in the family state is to cultivate that unity by teaching all educable children what the (sole) good life is for them and by inculcating in them a desire to pursue the good life above all inferior ones.
f. But in contemporary society, there are echoes of the education system in which the state has a very strong interest—tolerance, good skills, etc. Difficult to see the state with the kind of authority of the Family State, but there are points on which the state exerts some authority.

2. The State of Families—the parent gets all of the authority here, the family unit (association with Lockean liberalism).
a. Home schooling—continuing their family values. The idea of the state holding all the cards does not fly here.
b. Some feel that the family should have the lion’s share of authority. This can lead to home schooling and private schools.
c. If they cannot afford these, the parent will have to put him in public school and the thought is that the parent should be able to teach him up to the point of approval. This view is done by several people in the United States.
d. The downside—it may seem too much to some that the parents can insulate their children from exposure to ways of life or thinking that conflict with their own. Many other parents, less radical in their rejection of modern society, are committed to teaching their children religious and racial intolerance.
e. Another downside—parents have historically shielded their children from diverse associations, convinced them that all other ways of life are sinful, and implicitly fostered disrespect for people who are different.

3. The State of Individuals
a. The experts, professionals run the show in this type of state. What is the good of this here? If we leave everything with the family, it will not lead to rational deliberation. The state wants slavish, obedient citizens. The educators want liberation. It wants to help kids form their own values. What are the shortcomings of this vision?
b. This neutrality seems to ignore the value of passing on a certain value in the legitimate interest of education. You have to give people a starting point at a community in a time in history. One sort of point for this—the idea of complete neutrality to all children will not really work. Kids will do things sometimes that are no

monopoly of education, either through saying everyone has to go through our schools or by controlling private schools in such a way that they are not private anymore. Pierce works to limit the state’s ability to standardize, and if schools are made to be exactly like public schools, this is too much, no limitation at all.

YUDOF—there is a way to see this as coming out of the First Amendment, as a limitation of the speech of the government. When we talk about a right of parents to direct the upbringing, the parent has a way to get this, the parent may have a right to have it their way.
By and large, the parents may not have the right, really, to do this.
When we think about the First Amendment, the govt. can be a very powerful speaker and it is really loud in public schools. We hope that schools are Gutmann-esque and create options, but they do not always achieve this.

CARTER ARTICLE—provides a lot of background and colorful description of the anti-Catholic sentiment of things that are going on in the time of Pierce.
Carter also tries to re-conceptualize Pierce. His concept is about religious freedom. He points us to what he thinks freedom of religion is.
CARTER—many possible answers to this. To be the kind of society that we want to be, we need different centers of value. It is part of human nature to think that we have all the answers. Maybe, lots of things seem obvious and unquestionable. This may look weird to others, but it could hold up more to a broader society.
The religious freedom allows the survival of different communities of power.

How does Carter describe religion? He describes it as a narrative. Without it, we have no tradition. Religion is trying to perpetuate itself over time. It links the past, present, and future. This must involve creating the conditions to transmit this narrative over time. OR was trying to break this cycle. A lot of Americans would see religion as individually Protestant. This is the image. It is all very experiential.

Farrington v. Tokushige (the Japanese, rather than Catholics)
Here, the HI government was trying to limit the ability operation of Japanese language schools in the territory. HI holds that the regulations are valid, lawful rules for the conduct of private schools necessary for the public welfare. These schools involve lots of property, students, and teachers. These schools get no public aid, and all the students who go to these schools also attend public or private schools.