I. State Regulation of Schools
1. Pierce Compromiseà State can regulate the schools, but the state cannot give itself a monopoly on education, either by forcing everyone to go to public schools or by controlling private schools in such a way that they basically become public schools. If a school is regulated so much that it is almost exactly like public school, this is too much regulation
i. State can regulate private schools
ii. There is a limit to the regulation
iii. Regulation must not turn into replacement
iv. State may not monopolize the education of the youth
v. State is not allowed to give affirmative direction of the intimate and essential details of schools, entrust their control to public officers, and deny owners and patrons reasonable choice and discretion in teachers, curriculum, and textbooks.
2. Rational basis test
i. Is the gov’t regulation reasonably related some a legitimate gov’t objective?
ii. If the objective is to make the private school exactly like the public school, this violates and is not a legit interest for gov’t to pursue.
1. All 50 states allow it. Usually above average.
2. Concern w/ this is socialization and cooperation.
3. Sometimes parents argue regulations violate Pierceànot very successful
4. Might be successful with vagueness issue due process 14th amendment liberty claim for parents. Apply Matthews v. Eldridge test (parent int, state int, risk of erroneous deprevation)
i. Approval must be obtained before removing from school
ii. Parents must get opportunity to explain their plan and present witnesses
iii. Proposal must meet thoroughness and efficiency of public schools
iv. If plan rejected, must give details as to why. Parents can then revise plan to remedy inadequacies.
v. School board has burden of showing that the plan fails in thoroughness and efficiency
vi. This is about academic equivalent, not social equivalent.
5. Factors for approval of Plan
i. Proposed curriculum and hours of instruction of each proposed subject
ii. Length of home school year and hours of instruction for each proposed subject
iii. The competency of the parents to teach the children
1. No requirement to have a college degree
iv. Superintendent must have access to instructional materials used by the homeschoolers
1. cannot use access to dictate what subjects will be taught
v. Superintendent may properly require standardized testing to ensure progress and attainment of minimal standards.
vi. Equivalent instruction doesn’t have to factor in socialization, just academic equivalence
6. What if homeschoolers want to opt into certain public school classes?
i. Sometimes school allows this
1. Probs w/ funding and administrative efficiency
ii. No much to argue in court if they don’t
1. Parents best argument is EP, but this is probably a loser b/c it is rational basis
2. Gov’t just has to show a rational connection between the regulation and a legit gov’t interest
iii. Better off going thru legislature
7. Must got thru approval process
8. Must give equivalent instruction
9. Instructor (parent) must be qualified
10. Might have to allow state monitoring
III. Establishment Clause
1. Requires non-preferential treatment of religion
2. Requires state action. Limits what state can do, so must be sponsored by the state.
3. State can never stop voluntary prayer, b/c this would be violation of free exercise.
4. Teachers cannot lead prayer, not even to unite people (b/c America cares about individuals too)
5. Strategy to get around thisà characterize religious activities in the school as wholly the province of the students
6. Big argument is whether it is private or state sponsored religious activity
7. Use the Lemon Test!!
i. Must have a secular purpose
ii. Must not promote or inhib
nable does the opinion HAVE to come out this way??
1. Can the state really be neutral at all?
vi. What about equal time for everyone? Isn’t that neutral?
13. As long as you can opt out of public school, you chance being exposed to things in public school that you can’t challenge by the Free Exercise Clause.
14. What might cause this to violate Free Exercise Clause
i. Requiring someone to do more than understand religion but to engage in conduct
ii. Can you violate Establishment Clause by being hostile to religion? Yesà what if curriculum is so one sided as to be hostile to religion.
15. It’s not a burden to be exposed to things you don’t like
16. State also cannot compel speech, not even to promote patriotism. Violation of 1st amendment freedom of speech.
17. Lemon Test
i. Law must have secular purpose AND
ii. Law’s principal or primary effect must be one that neither advances nor inhibits religion. AND
iii. Law must not result in excessive entanglement of government with religion.
18. Endorsement Test
i. Whether the gov’t’s purpose is to endorse religion?
ii. Whether the statute actually conveys a message of endorsement.
iii. Establishment clause is violated when the gov’t makes adherence to religion relevant to a person’s standing in community. You should not feel like an outsider for not believing.
iv. Would an objective observer familiar w/ the free exercise clause see a message of endorsement?