Education

Education Massachusetts enacted America's first compulsory education law in 1852. State statutes and constitutional provisions governed most of public elementary and secondary education for the next century. Although the federal government's role in elementary and secondary education has increased over time (e.g., No Child Left Behind Act, 2001), it remains far more pronounced in higher education. Historically, few education disputes resulted in litigation, and state courts generally resolved those that did on relatively narrow grounds. The involvement of the United States Supreme Court in public school litigation was rare, accelerating only in the period after the Supreme Court's landmark decision in Brown v. Board of Education in 1954.

Compulsory Schooling and Socialization

The constitutional framework for modern education cases was established in Pierce v. Society of Sisters (1925), Meyer v. Nebraska (1923), and Farrington v. Tokushige (1927). In Pierce, the Court held that Oregon could not constitutionally require all parents of school‐age children to send their offspring to public schools. Relying on substantive due process and the natural rights of parents to raise their children, the Court, while recognizing the legitimacy of compulsory attendance laws, held that the private school alternative may not be abolished. Pierce has never been repudiated by the Court, though some commentators argue that it would rest today more persuasively on First Amendment grounds. They maintain that a state monopoly over elementary and secondary education would present a danger of indoctrinating youth to particular beliefs, thereby undermining the ability of citizens to formulate and articulate their own points of view. The “Pierce compromise” requires the state allow parents to choose private schools, but it does not require the state to defray the additional costs of such schooling.

Meyer and Farrington shed additional light on Pierce. In those cases, the Court held that the states may not regulate private education in such an intrusive manner as to convert private schools into public schools in all but name. The state must allow private schools reasonable latitude in shaping the curriculum.

The Court has recognized only one limited exception to the proposition that all children may be required to attend public school or a reasonably regulated private school. In Wisconsin v. Yoder (1972), the Court held that a Wisconsin law, requiring all children to attend public or private school until age sixteen, violated the First Amendment's Free Exercise Clause as applied to Amish parents and children (see Religion). The Amish believed that public high schools introduced their children to modern values that were antithetical to their religious beliefs. Balancing this free exercise claim against the state's interest in preparing all children for adult citizenship, nurturing economic self‐sufficiency, and stamping out ignorance, the Court held that minimal education after age fourteen (or the eighth grade) was sufficient to achieve the state's objectives.

Taken together these cases stand for the proposition that there are constitutional limits to the state's role in socializing children in private and public schools. With respect to private schools, the Court has held that the state support of parochial schools violates the Establishment of Religion Clause of the First Amendment unless the funding has a clear secular purpose, the primary effect is not to advance religion, and there is no excessive entanglement between church and state (Lemon v. Kurtzman, 1971; Committee for Public Education & Religious Liberty v. Nyquist, 1973). While parents have the constitutional right to seek to inculcate religion in private schools, state financial support of that inculcation violates the constitutional ban on establishment of religion.

The application of the Establishment Clause to a multitude of state efforts to channel funds to religious schools has been chaotic. For example, in Wolman v. Walter (1977), the Court disapproved of public funding for transportation for field trips and the load of instructional materials although it had previously approved the provision of funds for bus fares and the loaning of textbooks (Everson v. Board of Education, 1947; Board of Education v. Allen, 1968). In Committee for the Public Education and Religious Liberty v. Regan (1980), the Court permitted state subsidies to private religious schools for particular secular programs (testing and taking attendance), while in Mueller v. Allen (1983), then Justice William H. Rehnquist suggested that benefits to parents of children in public and private schools (tax deductions for tuition, transportation, and textbook expenses) did not impermissibly advance religion despite the Nyquist decision. Establishment Clause jurisprudence in the education context gained more clarity when the Court, in Zelman v. Simmons‐Harris (2002), concluded that a publicly funded school voucher programs can include religious schools. The Zelman opinion emphasizes that public funding finding its way into religious schools through a tuition voucher program flows from private, independent decisions of schoolchildren and their parents and, consequently, does not constitute a state endorsement of religion.

In the public sphere, the Court has held that it is unconstitutional for public schools to seek to indoctrinate students to religion, though teachers may teach about religion in its historical and social context. School prayer and some forms of moments of silence are not permissible (Abington School District v. Schempp, 1963; Wallace v. Jaffree, 1985), and a state may not require the teaching of creationism or a balanced curriculum between creationism and evolution (Epperson v. Arkansas, 1968; Edwards v. Aguillard, 1987). In this context, the Establishment Clause acts as a substantive limitation on the messages that public schools may convey to students. Conversely, lower courts have held that curricula and textbooks emphasizing secular values do not constitute an unconstitutional establishment of a religion or a violation of the Free Exercise Clause (Smith v. Board of School Commissioners, 1987; Mozert v. Hawkins County Board of Education, 1987).

Student Rights

Numerous Supreme Court cases, mostly decided under the speech clause of the First Amendment, bear on the constitutional limits on socialization in public schools. The earliest case is West Virginia Board of Education v. Barnette (1943), in which the Court held that students may not be compelled to salute the flag and to affirm beliefs they do not hold. Public school officials have a legitimate interest in educating students to their citizenship responsibilities and the political culture (Ambach v. Norwick, 1979), but Barnette limits the means of accomplishing these objectives.

In 1969 the Court, reacting to the assertion of students' civil rights during the Vietnam era protests, held in Tinker v. Des Moines Independent Community School District that “state‐operated schools may not be enclaves of totalitarianism” (p. 511). Students may engage in expressive activities on campus so long as school authorities cannot reasonably forecast that “substantial disruption” of school activities will result (p. 513). The students' right of expression is limited by the state's legitimate interest in carrying on its educational functions.

The Tinker standard is not applicable to vulgar or offensive speech (Bethel School District v. Fraser, 1986). And while Tinker protects the personal expression of students, it does not protect their speech within curricular activities—for example, the articles they write as staff members of a school newspaper operated as part of the curriculum (Hazelwood School District v. Kuhlmeier, 1988). Tinker also does not apply to the expressive activities of the school itself. For example, a majority of the justices appear to embrace the proposition that library books may be removed for good faith educational reasons, including efforts to eliminate vulgar or obscene books, but school officials may not do so if their purpose is to impose an official orthodoxy or ideology (Board of Education v. Pico, 1982).

Due Process Protections

The Supreme Court has afforded due process protection (e.g., hearings) to suspended or expelled students and held that the Fourth Amendment limits the methods that school officials may use to gather evidence of infractions (Gross v. Lopez, 1975; New Jersey v. T.L.O., 1985). Due process guarantees, however, run only to disciplinary sanctions and not to academic decisions such as grades (Board of Curators v. Horowitz, 1979; Regents of University of Michigan v. Ewing, 1985) (see Due Process, Procedural).

Equality of Opportunity

In Brown v. Board of Education (1954), the Court construed the Equal Protection Clause of the Fourteenth Amendment to forbid the deliberate assignments of students by race to segregated public schools (see Segregation, De Jure; Separate but Equal Doctrine). Once such discrimination has been found there is an obligation to take affirmative steps to eliminate the vestiges of such discrimination and to establish a unitary school system (Green v. County School Board of New Kent County, 1968). Neighborhood assignment of school children, resulting in continued segregation of the races, is impermissible if it is still tainted by prior acts of discrimination (Swann v. Charlotte‐Mecklenburg Board of Education, 1971). Unless there is evidence of interdistrict violations, the desegregation remedy is limited to the specific school district implicated in the wrongs, and metropolitan remedies are not permissible (Milliken v. Bradley, 1974). The typical remedy seeks to achieve racial balance in the schools in the district. The district must comply, in good faith, with the desegregation order for a reasonable period of time before the decree may be dissolved (Oklahoma City Board of Education v. Dowell, 1991).

The Court has construed the Equal Protection Clause as placing a substantial burden of proof on school authorities to demonstrate the necessity of discrimination by sex or gender (Mississippi University for Women v. Hogan, 1982; U.S. v. Virginia, 1996). This constitutional approach is bolstered by Title IX of the Education Amendments Act of 1972, prohibiting many forms of sex discrimination in public schools (Cohen v. Brown, 1996).

In San Antonio Independent School District v. Rodriguez, the Court held that education is not a fundamental interest under the Equal Protection Clause and that discrimination based on the wealth of the school district in which a student attends school is not a suspect classification. It upheld state school financing plans that result in unequal expenditures per student because of the varying local property tax bases of school districts. A denial of all educational opportunity, based on an absolute inability to afford a tuition charge made by a school district, however, is a violation of equal protection (Plyer v. Doe, 1982).

See also Fundamental Rights; Police Power.

Bibliography

Tyell van Geel , The Courts and American Education Law (1987).
Richard Kluger , Simple Justice (1977).
Mark G. Yudof , When Government Speaks (1983).
Mark G. Yudof,, David L. Kirp,, and and Betsy Levin , Educational Policy and the Law, 3rd ed. (1992).

Mark G. Yudof

; revised by

Michael Heise