The body of state and federal constitutional provisions; local, state, and federal statutes; court opinions; and government regulations that provide the legal framework for educational institutions.
The laws that control public education can be divided into two categories: those written exclusively for schools and those pertaining to society in general. Federal statutes regarding the education of children with disabilities are an example of the former, and Title VII (civil rights act of 1964, §§ 701 et seq., as amended, 42 U.S.C.A. §§ 2000e et seq.), a federal statute that covers employment in schools and elsewhere, is an example of the latter. Much of the litigation, legislation, and debate in education law has concerned nine main issues: student speech and expression; searches of students; the separation of church and state; racial segregation; the education of disabled children; employment law; employee sexual harassment and abuse of students; instructional programming; and the financing of public education.
Throughout United States history, government, in one form or another, has expressed an interest in education. Indeed, this interest predates the American Revolution by more than 100 years. In 1647, the General Court of the Colony of Massachusetts Bay passed the Old Deluder Satan Act. Section 2 of that act provided that "when any town increased to one hundred families or households, a grammar school would be established with a master capable of preparing young people for university level study." The Massachusetts Bay Colony was not unique in its concern for education: Other colonies also gave unrestricted aid through land grants and appropriations of money. Both forms of support were adopted later by the continental congress and the congress of the united states.
The first measure enacted by the federal government in support of education came when the Continental Congress passed the Ordinance of 1785, which disposed of lands in the Western Territory and reserved section 16 of each congressional township for the support of schools. Two years later, the same Congress passed the northwest ordinance, which was the first policy statement by Congress with respect to education. Its third article recognizes knowledge as being essential to good government and to the public welfare, and it encourages happiness of mankind, schools, and the means of education.
These early acts by the colonies, and support from the federal Congress, forged a partnership in public education that continues to this day. This partnership has thrived despite the absence of any explicit reference to education in the Constitution. The legal authority for the intrusion of the federal government into education is based on an interpretation given to the general welfare Clause of the Constitution, which reads, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises to pay the Debts and provide for the common Defence and general Welfare of the United States" (art. I, § 8).
The tenth amendment to the Constitution provides the basis in legal theory for making education a function of the states. It reads, "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." Although this amendment does not specifically direct the states to assume the responsibility for providing education, its effect has been no less. Each state constitution provides for the establishment of a statewide school system. Some state constitutions define in detail the structure for organizing and maintaining a system of public education; others merely accept that responsibility and delegate authority for its implementation to the state legislature. The U.S. Supreme Court and the state courts have consistently ruled that education is a function of the states.
Student Speech and the First Amendment
In the mid-twentieth century, the U.S. Supreme Court began to recognize that children do not give up their constitutional rights as a condition of attending public school. The Court acknowledged that the public school is an appropriate setting in which to instill a respect for these rights. Freedom of expression is perhaps the most preciously shielded of individual liberties, and the Court has noted that it must receive "scrupulous protection" in schools "if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes" (West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 ).
The Court also has recognized that schools function as a "marketplace of ideas" and that the "robust exchange of ideas is a special concern of the First Amendment" (Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 ).
Nevertheless, the right to free expression can be restricted. As Justice oliver wendell holmes jr. noted, freedom of speech does not allow an individual to yell "Fire!" in a crowded theater when there is no fire (schenck v. united states, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 ). A determination that specific conduct communicates an idea does not ensure constitutional protection. The judiciary has recognized that defamatory, obscene, and inflammatory expression may fall outside the protections of the first amendment. More-over, the U.S. Supreme Court has acknowledged that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings" (Bethel Sch. Dist. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L.Ed. 2d 549 ). Accordingly, students' rights to free expression may be restricted by policies that are reasonably designed to take into account the special circumstances of the educational environment.
It was not until 1969 that the U.S. Supreme Court specifically addressed the scope of students' freedom of expression in public schools. Its landmark decision in this area, tinker v. des moines independent community school district, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), often is referred to as the magna charta of students' rights. Tinker arose from an incident in which students were suspended for wearing black armbands to protest the vietnam war. Concluding that school authorities had suspended the students for expression that was not accompanied by any disorder or disturbance, the U.S. Supreme Court ruled that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."
For almost two decades, lower courts interpreted the Tinker mandate broadly, applying it to controversies involving a range of expressive activities by students, school-sponsored and otherwise. Although Tinker has not been over-turned, the Court limited the application of its principle in the late 1980s and early 1990s, beginning with the 1986 decision of Bethel School Dist. 403 v. Fraser. In Fraser, the Court upheld disciplinary action taken against a student for using a sexual metaphor in a nominating speech during a student government assembly. The Court recognized that the inculcation of fundamental values of civility is an important objective of public schools and that a
school board has the authority to determine what manner of speech is inappropriate in classes and assemblies.
Two years after Fraser, the Court affirmed the right of a school principal to delete two pages from the school newspaper because of the content of articles on divorce and teenage pregnancy (Hazelwood v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 ). The Court acknowledged school authorities' broad discretion to ensure that expression appearing to bear the school's imprimatur is consistent with educational objectives. Further, the Court expansively interpreted the category of student expression that is subject to censorship as that which occurs in school publications and in all school-sponsored activities. In both Hazelwood and Fraser, the Court indicated that school authorities could determine for themselves the expression that is consistent with their schools' objectives.
Although many questions remain unanswered concerning the application of the First Amendment guarantee of free speech in the unique forum of the public school, the law does seem to be settled in the following areas:
- School officials may discipline students whose speech or expression materially and substantially disrupts the educational environment (Bethel School Dist. 403 v. Fraser).
- School administrators may reasonably regulate the content and distribution of printed material at school (Hazelwood School Dist. v. Kuhlmeier).
- The Equal Access Act (Pub. L. 98-377, Title VIII, Aug. 11, 1984, 98 Stat. 1302 [20 U.S.C.A. §§ 4071 et seq.]) requires a school to permit religious student groups to meet during non-instructional time if the school permits other extracurricular groups to meet in the same or a similar manner (Board of Education v. Mergens, 496 U.S. 226, 110 S. Ct. 2356, 110 L. Ed. 2d 191 ).
- School officials have far more control and flexibility in selecting and rejecting curricular materials than they do in deciding about library books and magazines (Board of Education v. Pico, 457 U.S. 853, 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982), 4 Ed. Law Rep. 1013 ).
- School officials may make judgments on the appropriateness of student speech in school, based on the content of the speech, when that speech is vulgar or otherwise offensive in nature (Bethel School Dist. 403 v. Fraser).
- School officials may reasonably regulate student speech and expression when its exercise either intrudes on the rights of others or is in some way inconsistent with a school's over-all curricular mission (see Fraser).
Searches of Students and Lockers
The fourth amendment to the U.S. Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." This provision is made applicable to the states through the due process clause of the fourteenth amendment.
The Supreme Court has stated that the bill of rights (the first ten amendments to the Constitution) is applicable to children, even in a classroom setting. To paraphrase the Court in Tinker, students do not shed their rights at the schoolhouse gates. Does the Tinker ruling suggest that the Fourth Amendment protection from unreasonable searches extends to public schools? Must a principal obtain a warrant before searching students or their lockers? Are principals to be held to the "probable cause" standard that is generally required by the Fourth Amendment? These are important questions because evidence of wrongdoing that is obtained in an illegal search is generally inadmissible; that is, it must be excluded from consideration—at trial. The issue of admissibility of evidence is especially critical when school officials are searching for drugs, alcohol, or weapons.
The U.S. Supreme Court addressed these questions in 1985, in New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720. The case involved a 14-year-old girl, T.L.O., and a female companion, whom a teacher observed smoking in the girls' restroom in violation of school rules. T.L.O. denied smoking on that occasion and claimed she did not smoke at all. The assistant principal opened T.L.O.'s purse and found a pack of cigarettes. While searching the purse, he also discovered evidence of marijuana possession, use, and sale. He then called the police. T.L.O. subsequently admitted her involvement in selling marijuana to other students, but she sought to have the evidence excluded in criminal court on the ground that the search violated her rights under the New Jersey Constitution and the Fourth Amendment to the U.S. Constitution.
This issue was litigated at three levels in the New Jersey courts and finally decided by the U.S. Supreme Court. The Court held that a warrant was not needed for the assistant principal to search T.L.O. and that the reduced standard of "reasonable suspicion" governs school searches. The Court established a two-pronged test of reasonableness: (1) the search must be justified at its inception; and (2) as conducted, the search must be reasonably related in scope to the circumstances. The Court weighed T.L.O.'s interest in privacy against the school's need to obtain evidence of violations of school rules and of the law. The result tipped the scale in favor of broad school discretion in searching for contraband in students' pockets, purses, and lockers.
State and federal courts have expanded the scope of T.L.O. since it was decided in 1985. The reasonable-suspicion standard has survived student challenges in searches of lockers, desks, and cars in school parking lots.
A 1995 ruling by the U.S. Supreme Court continued the erosion of students' Fourth Amendment rights that began with the T.L.O. decision. In Vernonia School District 471 v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564, the Court rejected a constitutional challenge to a public school district's random urinalysis testing program for students who participate in inter-scholastic athletics. In examining the "nature of the privacy interest" at stake, the Court explained that public-school children generally have diminished privacy interests because they require constant supervision and control. Athletes further have their privacy interests diminished, the Court wrote, because they regularly undergo physical exams and routinely experience conditions of "communal undress" in locker rooms. The district's random testing program was held to be minimally intrusive because it required urine collection under conditions that were virtually identical to those that students confront in public-school restrooms. Finally, the Court found several goals of the school district to be sufficiently compelling to justify random testing: deterring drug use in schoolchildren, maintaining the functioning of the schools, and protecting athletes from drug-related injury. The Court's ruling will enable school systems that follow the procedures approved in Vernonia to test student athletes randomly for drugs. It remains unclear, however, whether school districts may conduct drug testing of students who are not involved in athletics.
Will the scope of Vernonia expand in the years ahead, as has that of T.L.O.? If drug problems continue in schools, courts will likely determine that the Fourth Amendment rights of students may be restricted further. Additional limitations on those rights may include random sampling of all students for evidence of drug use.
Drugs are not the only items that are subject to searches by schools, and searches are not limited to high-school students. In Jenkins v. Talladega City Board of Education, 115 F.3d 821 (11th Cir. 1997), the Eleventh Circuit Court of Appeals held that two eight-year-old girls who were subject to two strip searches could not recover under theories that the teachers who had conducted the searches had violated state and federal law. Both teachers, along with the superintendent of the school district, were protected by qualified immunity, which applies when a state actor's conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known."
The case arose when a schoolteacher in Talladega, Alabama, suspected that two second-grade girls had stolen money from a classmate. The teacher, along with a guidance counselor, subjected the girls to two strip searches in the girls' restroom at the school. Both searches proved fruitless. The parents of the children later brought an action alleging that the teachers had violated the girls' rights under the First and Fourteenth Amendments of the U.S. Constitution, Title IX of the Education Amendments of 1972 (20 U.S.C.A. § 1681), and Alabama law. The U.S. District Court for the Northern District of Alabama granted summary judgment in favor of the defendants, holding that they were immune from the suit as state actors acting within their official capacities.
Although a panel of the Eleventh Circuit reversed part of the district court's decision, the full court affirmed the dismissal of the case. The case law governing these types of searches was T.L.O., but the U.S. Supreme Court's decision, according to the majority in Jenkins, was not defined clearly enough to put defendants on notice that their actions were unconstitutional or contrary to the law. For example, T.L.O. did not clarify whether a search of a younger student was more intrusive than one of an older student; whether a search of a girl was more intrusive than a search of a boy; or what kind of infraction is serious enough to warrant a strip search. Without this information, held the Jenkins majority, the defendants could not have known that their actions were unconstitutional. They were therefore immune from suit.
Separation of Church and State
The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The First Amendment has been incorporated into the Fourteenth Amendment and applies to the states and their subdivisions. The first provision is called the Establishment Clause; the second, the Free Exercise Clause. Thus, the guarantee of religious freedom has a double aspect. The Establishment Clause prohibits laws requiring that anyone accept any belief or creed or the practice of any form of worship. Courts have relied on the Establishment Clause to nullify numerous practices in public schools, such as offering school-prescribed prayers in classrooms and at commencement exercises, posting the Ten Commandments in classrooms, requiring Bible reading, displaying religious symbols, observing moments of silence, studying Scientific Creationism, and distributing Bibles.
The Free Exercise Clause safeguards the freedom to engage in a chosen form of religion. Again, practices in the public schools have produced a host of litigation on this clause of the First Amendment. Parents with strong religious convictions have brought numerous suits alleging that a part of the science, health, or reading curriculum included content that was contrary to the family's religious convictions and values, thus restricting the family's right to engage in its chosen religion.
Likewise, a series of state and federal statutes has been challenged on separation-of-churchand-state grounds. The courts have ruled that the following practices do not violate the First Amendment religion clauses:
- Transportation of students to private, sectarian schools at public expense
- Public purchase of secular textbooks for use in religious schools
- Use of school facilities by religious organizations pursuant to policies that allow nonreligious groups to use such facilities
- Release of students from public schools to attend religious instruction classes
- Provision of a signer at public expense for a deaf student in a religious school
- Permission for student-organized religious clubs to meet on school property during the noninstructional part of the day
Practices that have been prohibited by the courts include these:
- Sending public school teachers into private, sectarian schools to provide remedial instruction
- Providing a publicly funded salary supplement to teachers in religious schools
The U.S. Supreme Court's 1954 ruling in brown v. board of education, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, held unconstitutional the deliberate segregation of schools by law on account of race. Brown overruled the 1896 case of plessy v. ferguson, 163 U.S. 537, 16 S. Ct. 1138, in which the Court had recognized as valid the separation of black and white school children. The principles enunciated in Brown provided the foundation for new federal laws that expand access to education and other public services to previously unserved populations, such as disabled students and adults.
In Brown, four separate cases—from Delaware, Kansas, South Carolina, and Virginia—were consolidated for argument before the U.S. Supreme Court. The Court framed the issue before it as being whether "segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives the children of the minority group of equal educational opportunity." The Court answered in the affirmative, holding that the Fourteenth Amendment's Equal Protection Clause forbids state-imposed segregation of races in public schools, and stating, "In the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."
The Court further stated, "[education] … is a right which must be made available to all on equal terms"—not a privilege that is granted to some and denied others. This statement of public policy opened the public schools to minorities and to other populations who previously had been denied access. For example, advocates for better access to schools for disabled students seized upon this language to press Congress into passing the Education for All Handicapped Children Act (EAHCA) in 1975 (Pub. L. 94-142, Nov. 29, 1975, 89 Stat. 773 [20 U.S.C.A. §§ 1232, 1400 et seq.]).
Numerous lawsuits have alleged violation of Brown since 1954. Although the efforts to desegregate the schools have not been uniformly successful, de jure segregation in public schools—the practice addressed specifically in Brown—does not exist in the United States today. However, the goal of creating an integrated public-school system has not been achieved. Most minority children still attend schools where they are the majority of students, or where their numbers are disproportionately high, as compared to the area population. The location of public housing, middle-class flight from inner-city areas, economic deprivation of minorities, and a host of other variables have frustrated legislative and judicial efforts to fully integrate public schools.
Affirmative Action Programs in Higher Education
One of the most heated debates in higher education has focused on affirmative action programs in higher education. Advocates for these programs cite statistics that minorities have been traditionally underrepresented in colleges and universities. During the 1960s and 1970s, schools began to address these issues by implementing programs that required a certain percentage of enrollment by minorities. The programs were quickly subject to lawsuits by those who had been rejected by the schools, often claiming that the schools had violated their constitutional and statutory rights.
A fiercely-divided U.S. Supreme Court in regents of the university of california v. bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), held that a program at a state-sponsored school that reserved 16 seats out of a class of 100 for certain disadvantaged and minority groups violated the equal protection clause and Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000d (Supp. 2003). The plaintiff in the case was a white applicant who had been denied admission to the medical school at the University of California at Davis. The student's credentials were superior to some of those who had been admitted to the 16 seats reserved for the minority or disadvantaged applicants.
Although a majority of the justices agreed that the program was unlawful, a majority could not agree as to the rationale for its judgment. Justice lewis powell, who wrote the opinion of the Court, found that the use of quotas to admit minorities and disadvantaged students was illegal, but also found that schools could consider race as a factor in their admissions. Other justices disagreed, stating that schools that consider race as a factor violated constitutional guarantees.
Lower courts have struggled for years with affirmative action admissions programs that considered race as a factor. The Court agreed to consider the issue again when it granted certioari in the case of Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002). The Sixth Circuit Court of Appeals case upheld the constitutionality of an admissions program at the University of Michigan School of Law that considered race and ethnicity in its admissions policies. The case had a massive following, fueled by comments by President george w. bush, who voiced his opposition to the program.
The Court affirmed the 6th Circuit's decision in Grutter v. Bollinger, 539 U.S. ___, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003). The opinion, drafted by Justice sandra day o'connor, found that Michigan's law school had a compelling state interest in attaining a diverse student body, and the admissions program was narrowly tailored to achieve this interest. However, in a companion case, Gratz v. Bollinger, 539 U.S. ___, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003), the Court found the University of Michigan's undergraduate admissions program was not narrowly tailored to achieve diversity in its class. Writing for the majority, Chief Justice william rehnquist found that the university's practice of adding arbitrary points to the application of any racial minority, without considering the individual application, violated the equal protection Clause.
Education of Children with Disabilities
Congress passed the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.A. §§ 1400 et seq.)—formerly the EAHCA—in 1975 to address the failure of state education systems to meet the educational needs of children who have disabilities. Congress's enactment of IDEA was, in part, a response to two well-publicized federal court cases: Mills v. Board of Education, 348 F. Supp. 866 (D.D.C. 1972), and Pennsylvania Ass'n of Retarded Children v. Commonwealth of Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972). The courts in both cases found that children with disabilities were denied access to public schools because of their disabilities. For example, school laws in Pennsylvania and in the nation's capital permitted schools to deny entry to children whose IQ was below 70 (100 is classified as average intelligence), until such children reached the age of eight. Once admitted to school, many of these children were expelled because they could not learn how to read.
IDEA defines the types of disabilities covered and limits coverage to children who are educationally disabled. The act provides for matching funds to be available to states that have federally approved plans. To qualify for those funds, a state plan must ensure a free appropriate public education (FAPE) for all qualifying children and must guarantee access to a complex due process procedure for a parent
or guardian who wishes to challenge a child's FAPE.
IDEA differs from most legal provisions for public education in one important aspect: The parent of a disabled child has been elevated to the level of equal partner with school officials in shaping an educational experience for the child, whereas the parent of a child without disabilities is expected by law to be a passive participant in the public education that is provided by the teachers and school officials. This empowerment of parents of children with disabilities has generated countless and endless legal challenges of school officials' decisions and practices. Each case is decided on narrow factual grounds, with little generalizability.
The myriad federal and state laws and regulations that control public employment in general apply with equal force to public-school employment. In addition, all states have statutes that control the school board–employee relationship. These state laws pertain to contracts, tenure, certification, retirement, and other matters of special interest to teachers. Despite the similarities of the issues covered in state statutes, there is very little reciprocity between and among states, thus making generalizations across state lines almost meaningless.
In contrast, federal statutes pertaining to public employment are enforceable throughout the nation. For example, Title VII makes it "an unlawful employment practice" to discriminate against any individual with respect to "compensation, terms, conditions, or privileges of employment" because of race, color, religion, sex, or national origin (42 U.S.C.A. § 2000e-2(a)(1)). In 1986, the Supreme Court decided a case concerning sexual harassment and the interpretation of Title VII. In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49, the defendant, Meritor Savings Bank, argued that the discrimination prohibited by the statute concerned economic loss and not "purely psychological" aspects of the workplace environment. Because the female employee who filed the lawsuit had suffered no economic loss, her employer argued that there were no grounds for a lawsuit under Title VII. The Court disagreed. After ruling that Title VII protection is not limited to economic discrimination, the Court quoted with approval an appeals court opinion: "One can readily envision environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of employees."
The principles enunciated in Meritor were refined by the Supreme Court's 1992 ruling in Harris v. Forklift Systems, 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295. The Court in Harris was asked to set a standard of review in cases alleging the newly discovered "hostile environment" theory of sexual harassment. Justice Sandra Day O'Connor, writing for the majority, explained that simply uttering an "epithet which engenders offensive feelings in an employee" does not sufficiently affect the conditions of employment to implicate Title VII. The Court was equally clear in rejecting the employer's argument that Title VII requires a showing that the harassment "seriously affects the plaintiff's well-being." Rather, O'Connor wrote, the statute is violated when the workplace environment "would reasonably be perceived and is perceived as hostile and abusive." Further, the Court wrote, four circumstances (in addition to psychological harm) should be considered: "[t]he frequency of the conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Continuing, O'Connor wrote that the appropriate standard was that of a "reasonable victim," thus departing from the traditional "reasonable person" standard that is typically applied in cases involving alleged acts of commission or omission that result in an injury or damage to an individual's body, reputation, or property.
Employee Sexual Harassment and Abuse of Students
Two federal statutes, Title IX of the Education Amendments of 1972 (§§ 901–909, as amended, 20 U.S.C.A. §§ 1681–1688) and section 1983 of the Civil Rights Act of 1964 (42 U.S.C.A. § 1983), provide students with potentially powerful tools of redress for and protection against sexual harassment and abuse perpetrated by school employees. Title IX provides, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Section 1983 prohibits the deprivation of federal constitutional and statutory rights "under color of state law."
The most notable ruling on the application of Title IX has been the U.S. Supreme Court's 1992 decision in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208. In that landmark case, the Court held that a female high-school student who had been subjected to sexual abuse by her teacher could receive money damages under Title IX. The Court implicitly accepted as "sexual harassment" the type of behavior that existed in Franklin, which involved coercive sexual activity between a male high-school teacher–coach and a female student. Accordingly, sexual harassment, in all its forms, is sex discrimination prohibited by Title IX. As defined by the Office of Civil Rights, "[s]exual harassment consists of verbal or physical conduct of a sexual nature, imposed on the basis of sex, by an employee or agent … that denies, limits, provides different, or conditions the provision of aid, benefits, or services or treatment protected under Title IX."
Under Section 1983 (42 U.S.C.A. § 1983), the violation of a student's right to bodily security (as against a school district) implicates substantive due process rights under the Fourteenth Amendment. However, in order to demonstrate liability, the plaintiff must show that the school had notice of a pattern of unconstitutional conduct. This standard is difficult to meet. For example, a handful of complaints received by various school officials that a bus driver had kissed or fondled several handicapped children were insufficient to support a Section 1983 claim (Jane Doe A v. Special School Dist. of St. Louis County, 908 F.2d 642, 60 Ed. Law Rep. 20 [8th Cir. 1990]).
Litigation involving claims of sexual abuse by teachers is expanding rapidly. The courts are creating new legal avenues of redress, and students are becoming more willing to confront their abusers. Further, some state courts have waived statutory time limits on the filing of claims in cases involving sexual abuse of minors, permitting lawsuits many years after an alleged abuse.
Contemporary debate on the school curriculum by advocates of a return to the basics, multicultural studies, and a range of educational approaches continues to attract public attention as those advocates press their claims in courts and legislative chambers. With some notable exceptions, courts generally give state legislative and local administrative authorities wide latitude to tailor curriculum to keep abreast of everexpanding concepts of education. In every state, local districts must offer a curriculum that the state prescribes. Because the federal Constitution has delegated the responsibility for public education to the several states, the power of the state legislature over public schools is said to be plenary, limited only by the state constitution and some provisions in the federal Constitution. Accordingly, the local school board selects its curriculum on the basis of the extent of authority delegated by the state. Most state legislatures have chosen to prescribe a small number of course offerings in all public schools in the state, and delegate to local school authorities the balance of authority to control the curriculum. The curricular choices of local school boards might not satisfy some constituents and taxpayers, but displeasure alone will not persuade a court to substitute its judgment for that of a school board. Critics of the local choices pertaining to school curriculum, textbooks, library holdings, and teaching methods generally must take their complaints to their local school board and the state legislature for remedy.
Although the federal government traditionally has not intervened in the local educational process, the debate for the reform of education in the United States has been prevalent. On January 8, 2002, President Bush signed into law the No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (20 U.S.C.A. §§ 6301 et seq.), which promises an effort to reform national educational policy. Like other federal educational legislation, this Act provides funding for a myriad of educational programs. The Act also includes several provisions regarding testing of grade-school students, which is an issue of controversy among educators. Critics claim that standardized testing can cause anxiety among students and that they do not always accurately reflect the students' competencies. Proponents counter that objective testing has long been used to determine the abilities of students and to test the competencies of schools to teach their students effectively.
Financing of Public Education
Public schools in the United States are financed through a system of fiscal federalism—that is, the funds used for their operation have been appropriated on the federal, state, and local levels. Nationally, from the mid-1970s to the
mid-1990s, the combined federal and state support for public education accounted for slightly less than 50 percent of all operating expenses, with the federal treasury providing less than ten percent of the total cost of public education. Therefore, approximately one-half of the money required by school districts has come from local sources, primarily local property taxes. States have constructed myriad property classifications and state-aid distribution formulas in attempts to equalize educational opportunities for students in property-rich and-poor school districts. Further, most states provide special funding for school transportation, for the education of students with disabilities, and for other high-cost services and programs.
As state creations, school boards may only exercise the fiscal powers delegated to them by the state, so they depend heavily on direct state subsidies and legislative authorization to levy school district taxes. The states' options to limit and allocate direct state assistance to different classes of school districts, to fix the sources and limits of school district revenues, and even to transfer school-district funds place the ultimate control of school finance in state legislatures and not in local school boards. Financially stressed school districts and citizen groups have, therefore, resorted to constitutional challenges to overturn state laws that they deem to be unduly restrictive or unfair. These challenges have not fared well under the federal Constitution and have met with mixed success under state constitutions.
The U.S. Supreme Court, in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1993), upheld the use of local property-tax systems to support public schools, against the claim that such systems violate the Fourteenth Amendment equal protection rights of children in impoverished areas. The Court further declared that public education is not a fundamental constitutional interest.
Following Rodriguez, litigation has proceeded in about half of the states, under the equal protection and education clauses of state constitutions. The state constitutional challenges do not have a uniform thrust. The themes of equality (equal protection) and quality (efficient public education) may, depending on the wording and construction of each state's constitution, lead toward different policies and results. Despite adverse court rulings, the school-finance litigation has inspired a trend of legislative reform in many states. The new laws are calculated to balance educational opportunities for all children, regardless of the wealth of their school districts or the income of their parents.
Bilingual education purports to make use of both the English language and a child's native language for educational instruction. It is premised upon the belief that this approach enables children to grasp the tenets of basic mathematics, science, and social studies in their own language, while simultaneously being exposed to English instruction. In theory it works, but in reality, children have reverted to their native language or have resisted communicating in English, much to the growing frustration of educators and the taxpayers who are saddled with the financial burdens brought to them by poor academic performance in the school systems.
After sinking millions of taxpayer dollars into bilingual education, many taxpayers in California decided to express their opinions at the voting booths. The California Department of Finance estimated that for the 1997-98 school year, California had spent 70 percent of its $385 million earmarked for economically disadvantaged children in bilingual programs.
California's Proposition 227 in 1998 mandated the termination of California's bilingual education program. Although passed into law by California voters with a resounding 61-39 percent victory in June 1998, the new law was immediately challenged in a class action suit filed in federal district court by the Mexican-American Legal Defense and Education Fund, the southern christian leadership conference of Los Angeles, and several other parties. But within the first eight weeks of the election, legal challenges in both northern and southern federal district courts were resolved in favor of Proposition 227, and on July 31, 1998, the U.S. Court of Appeals for the Ninth Circuit upheld the Northern District's opinion.
Although the minority of states specially require bilingual education, the majority provide some sort of funding for these programs. Three states, including Arkansas, Delaware, and Nebraska, specifically forbid bilingual education. Because more than three million students in the United States speak little or no English, this issue has remained heated into the new millennium.
The history of education law is characterized by a series of landmark court opinions and legislative acts that, with some exceptions, express the public policy preference for universality in public education. The major exception is the U.S. Supreme Court's 1896 "separate-but-equal" ruling in Plessy v. Ferguson. From the early days of the Old Deluder Satan Act to the present, the trend has been toward inclusion, not exclusion. Examples of significant expansions of this concept of universality are the enactment of compulsory attendance laws in all 50 states in the twentieth century; the Brown decision in 1954; and the 1975 enactment of the EAHCA, now IDEA.
Alexander, Kern, and M. David Alexander. 1992. American Public School Law. 3d ed. St. Paul, Minn.: West.
Imber, Michael, and Tyll van Geel. 2000. Education Law. 2d ed. Mahwah, N.J.: Lawrence Erlbaum Associates.
Kucerik, Erin. 2002. "The No Child Left Behind Act of 2001: Will It Live Up To Its Promise?" Georgetown Journal on Poverty Law & Policy 9 (summer): 479–87.
Russo, Charles J., and Ralph D. Mawdsley, eds. 2002. Education Law. New York: Law Journal Press.
Yudof, Mark G., David L. Kirp, and Betsy Levin. 1992. Educational Policy and the Law. 3d ed. St. Paul, Minn.: West.
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The body of state and federal constitutional provisions; local, state, and federal statutes; court opinions; and government regulations that provide the legal framework for educational institutions.
Winkelman v. Parma City School District
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §1400 et seq., seeks to ensure that children with disabilities have available to them a "free appropriate education," while making sure that the rights of children with disabilities and their parents are protected. IDEA provides an administrative appeal process if children and parents disagree with the individualized education program (IEP) proposed by the school. However, it had been unclear whether parents could pursue a review in a federal district court on their own behalf or as representatives of the child if they were not represented by a lawyer. The U.S. Supreme Court, in Winkelman v. Parma City School District, __U.S.__, 127 S.Ct., ___L.Ed.2d___ 2007 WL 1461151 (2007), resolved this issue, holding that parents have independent, enforceable rights that they may vindicate in federal court without a lawyer. If the ruling had gone the other way, parents who could not afford a lawyer would not be allowed to litigate IDEA issues in court.
Jeff and Sandee Winkelman, the parents of Jacob Winkelman, worked with the Parma City School District in Parma, Ohio, to develop an IEP for their six-year-old son, who has autism spectrum disorder. The school district proposed that Jacob attend a public elementary school but the parents disagreed. They filed an administrative appeal that alleged the district had failed to provide Jacob with a free appropriate education. The hearing officer rejected the appeal and the Winkelmans brought their complaint to a state-level review officer. After this appeal was unsuccessful they filed a complaint in Ohio federal district court on their own behalf and on behalf of Jacob. In their complaint they alleged that Jacob had been denied a free appropriate education as mandated by the IDEA, that his IEP was inadequate, and that the school district had not followed the proper administrative procedures required by the act. While these reviews were proceeding the Winkelmans enrolled Jacob in a private school at their own expense. They asked the court to reverse the administrative decision and reimburse them for the private school tuition.
The Winkelmans did not get the opportunity to argue these issues. The school district asked the court to rule in its favor on the pleadings that they had complied with the IDEA and the court agreed. The parents then filed an appeal, without a lawyer, with the Sixth Circuit Court of Appeals. The appeals court issued an order that dismissed the appeal unless they retained legal counsel. The parents could not proceed with an IDEA appeal by themselves because the right to a free appropriate education belonged only to the child. Therefore, any rights the parents might have flowed out of the child's rights. This meant that the parents were not appearing on their own behalf; a court will not allow a nonlawyer to represent another person, hence the exclusion of the Winkelmans. The Supreme Court agreed to hear the Winkelmans appeal, which they prepared themselves, to resolve a conflict among the circuit courts of appeals on this issue.
The Supreme Court, in a 7-2 decision, overturned the Sixth Circuit ruling. Justice Anthony Kennedy, writing for the majority, agreed that there was no specific language in the IDEA granting parents individual rights. However, he concluded that the "entire statutory scheme" demonstrated that parents have independent, enforceable rights that they may bring in federal court. In doing so he rejected the school district's claims that the only redressable rights under the IDEA belonged to the children. Justice Kennedy noted that the word "parents" was mentioned throughout the IDEA. Parents served as members of the IEP team that develops the IEP and parents have the right to lodge an administrative complaint and have an administrative appeal. In addition, parents may be reimbursed for the cost of private school enrollment and for attorney's fees if a court or hearing officer determines a child was denied a free appropriate education. These provisions demonstrated that parents have enforceable rights at the administrative stage. It would be "inconsistent with the statutory scheme to bar them from continuing to assert these rights in federal court."
The school district rejected this broad reading of the IDEA, arguing that those provisions limited parental involvement to the representation of their child's interests. Justice Kennedy found no merit in this narrow reading and believed this position would frustrate the will of Congress to convey rights to parents as well as to children. He also dismissed the position of some appeals courts that parents had limited independents rights, including reimbursement of school expenses and violations of their own procedural rights. He believed "incongruous results would follow" if parents' IDEA rights were limited to certain nonsubstantive matters. This theory would require parents to prove the inadequacy of their child's education before they could win reimbursement, yet it would prevent them from obtaining a ruling that the school district must provide their child with an appropriate education program. In the Court's view the "potential for injustice in this result is apparent." Therefore, the Winkelmans enjoyed rights under the IDEA that allowed them to prosecute their IDEA claims on their own behalf.
Justice Antonin Scalia, in a concurring and dissenting opinion joined by Justice Clarence Thomas, agreed with the district's position that the parents could only sue on their own behalf for reimbursement and violations of their procedural rights. He believed the Winkelmans were entitled to seek reimbursement for their private school costs but they did not have the right to seek a judicial determination that their child's free appropriate education was substantively inadequate.
Zuni Public School District 89 v. Dept. of Education
In Zuni Public School District No. 89 v. Department of Education, No. 05-1508 (2007), the U.S. Supreme Court was asked to rule on the meaning of certain statutory language. The quintessential holding of the majority opinion is that statutory intent trumps gaps in statutory language.
The Federal Impact Aid Program, 20 USC §7701 et seq. (the "Act"), was enacted to financially assist local state school districts that have a "federal presence" within their districts (e.g., military bases, federal public housing, or in this case, Indian reservations). The financial assistance, in the form of a subsidy, is to offset losses in tax revenues suffered from the fact that affected school districts cannot impose school taxes on such federal entities occupying land within their districts. Hence, the program's name literally reflects a form of aid to offset the impact of federal use of local land.
Impact aid funds, sent directly to affected school districts, are intended to supplement the district's general fund for operational expenses, purchases of text books, computers, utilities, salaries, etc. Generally, a state may not reduce its aid to a school district because that district is already receiving federal aid. But under certain provisions of the Act, states may reduce their own aid to schools if the Department of Education certifies that the state "equalizes" expenditures throughout the state. The Act contains express language setting forth a method that the Secretary of Education is to use when determining whether a state's public school funding program has equalized expenditures.
The formula spelled out in the Act instructs the Secretary of Education to compare the local school district with the greatest per-pupil expenditures to the school district with the smallest per-pupil expenditures, to determine whether the former exceeds the latter by more than 25 percent. If not, then the state aid program qualifies as one that equalizes expenditures, and the state may reduce its own local funding to districts receiving federal aid under the Act.
In applying this formula under the Act, the Secretary must "disregard" school districts with per-pupil expenditures above the 95th percentile (in the wealthiest districts) or below the 5th percentile (in the poorest districts). If the remaining districts are within the 25 percent range, the Secretary may deem the state system as "equalized" and the state can take Impact Aid payments into account when calculating state aid to districts.
Accordingly, and relating to the present case, Department of Education officials ranked New Mexico's 89 local school districts by perpupil spending for fiscal year 1998. This resulted in the exclusion of 17 school districts at the top and six districts at the bottom. The remaining 66 districts constituted 90 percent of the state's student population, and because the disparity among these was less than 25 percent, the state's program "equalized expenditures" and the state could offset federal impact aid by reducing funds to individual districts.
Zuni Public School District, located within the Pueblo of Zuni Reservation, and Gallup-McKinley County School District, located on Navajo Reservation lands, are two public school districts within the state of New Mexico. They challenged the reduction of funds to their districts, which amounted to several million dollars. Specifically, they challenged an aspect of the "formula" used for the cutoff point at the 95th and 5th percentile. The challenge addressed interpretation of the statutory language found in the Act.
20 USC §7709(b)(2)(B)(i) (last amended in 1994) provides that the Secretary of Education is to "disregard" school districts "with per-pupil expenditures … above the 95th percentile or below the 5th percentile of such expenditures … in the State." The precise question before the Supreme Court was whether the above language permits the Secretary, in applying this language, to "disregard" school districts by looking to the number of pupils as well as to the size of the district's expenditure per pupil. The Court, in a very tight 5-4 decision with scathing dissent, held that it did.
Zuni's argument challenged the fact that in New Mexico, the Secretary considered student populations in "disregarding" the five percent at the top (the "95th percentile") and the five percent at the bottom (the "5th percentile). This, argued Zuni, was correct under the Secretary's regulation, dated and used since 1976, but not under the statute (last updated in 1994). In the statute, Congress used specific language that mentions only "school districts," not student populations within the districts. In 1996, the Secretary, by regulation, reinstated his equalization formula that provides the latitude to consider both district and population within that district.
Justice Breyer, writing for the narrow majority (in which he was joined by Justices Alito, Ginsburg, Kennedy, and Stevens), upheld the Secretary's formula as "a reasonable method that carries out Congress' intent." The Court took great pains to consider the longstanding history and use of the Secretary's regulatory method, and found no express language in the statute that would defeat it. Therefore, viewed in terms of purpose, the Secretary's method fell within the scope of the statute's plain language.
Justice Scalia's dissent was long and powerful, and he was joined by the Chief Justice as well as Justices Thomas and (as to Part I) Souter. "The plain language of the federal Impact Aid statute clearly and unambiguously forecloses the Secretary of Education's preferred methodology for determining whether a State's school-funding system is equalized," he wrote. "This case is not a scary math problem; it is a straightforward matter of statutory interpretation."