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American Public School Law
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This is an electronic version of the print textbook. Due to electronic rights restrictions, some third party content may be suppressed. Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. The publisher reserves the right to remove content from this title at any time if subsequent rights restrictions require it. For valuable information on pricing, previous editions, changes to current editions, and alternate formats, please visit www.cengage.com/highered to search by ISBN#, author, title, or keyword for materials in your areas of interest.
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American Public School Law EIGHTH EDITION
Kern Alexander Professor University of Illinois, Urbana-Champaign
M. David Alexander Professor Virginia Tech, Blacksburg
Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United States
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American Public School Law, Eighth Edition Kern Alexander and M. David Alexander Publisher: Linda Schreiber-Ganster Acquisitions Editor: Mark Kerr Editorial Assistant: Genevieve Allen Assistant Editor: Rebecca Dashiell Development Editor: Melissa Kelleher Marketing Manager: Kara kindstrom Parsons Marketing Communications Manager: Tami Strang Art Director: Maria Epes Manufacturing Manager: Marcia Locke
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ISBN-13: 978-0-495-91049-7
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contents in brief
Table of Cases Preface
xv
Chapter 13 Defamation and Student Records 683
xxxvii
Chapter 1
The Legal System
Chapter 14 School District Liability 721
1
Chapter 2 Historical and Legal Perspective of Public Schools 27
Chapter 15 Certification, Contracts, and Tenure 761
Chapter 3 Role of the Federal Government 76
Chapter 16 Teacher Rights and Freedoms 808
Chapter 4 Governance of Public Schools 118
Chapter 17 Due Process Rights of Teachers 865
Chapter 5
Church and State 176 Chapter 18 Discrimination in Employment 899
Chapter 6 School Attendance 283
Chapter 19 Collective Bargaining 966
Chapter 7 The Instructional Program 337
Chapter 20 Desegregation of Public Schools 1001
Chapter 8 Student Speech and Expression 406
Chapter 21 Chapter 9 Search and Seizure 460
School Finance
1047
Chapter 22 School Property and Buildings 1090
Chapter 10 Student Rights: Common Law, Constitutional Due Process, and Statutory Protections 496
Appendix A Selected Constitutional Provisions 1112
Chapter 11 Rights of Students with Disabilities 560
Appendix B Information Helpful in Legal Research 1116
Chapter 12
Index
Tort Liability
631
1119
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contents
Table of Cases Preface
xv
Chapter 2 Historical and Legal Perspective of Public Schools 27
xxxvii
Chapter 1
The Legal System
America’s First School Laws 28 The Puritan Influence 28 A System of Education 29 Preamble to a Bill for the More General Diffusion of Knowledge (1779) 31 McDuffy v. Secretary of the Executive Office of Education 31 Education and Natural Law 32 The Struggle for Public Schools 33 Defining the Public Schools 34 Education, the Balance-Wheel of Social Machinery, Horace Mann’s Twelfth Report (1848) 35 Education Provisions of State Constitutions 36 Education Provisions as Limitations on Legislatures 37 Rose v. Council for Better Education, Inc. 38 John Ellis “Jeb” Bush v. Holmes 42 Education as a Fundamental Right under State Constitutions 45 Claremont School District v. Governor 47 Judicial Approval of Common Schools 49 Commonwealth v. Hartman 50 Expansion of Public Schools 52 Charter Schools 53 Wilson v. State Board of Education 56 Tuition and Fees in Public Schools 63 Randolph County Board of Education v. Adams 64 Hartzell v. Connell 66
1
The Nature of Public School Law 2 Sources of Law 2 Constitutions 3 Statutes 3 Judicial Decisions (Case Law) 4 Administrative Law 5 Political Neutrality and the Courts 5 Powers and Functions of Courts 7 Applying Principles 7 Interpreting Statutes 8 Determining Constitutionality 8 The Purpose of Law 9 An Invitation to Jurisprudence, Harry W. Jones 9 Stare Decisis 9 Nature and Authority of Judicial Precedents, Henry Campbell Black 10 Rule of Law 10 How to Read a Case 11 Case or Controversy 12 The American Court System 12 State Courts 13 Federal Courts 14 Vertical Judicial Federalism: The Legal Context 16 Process of Going to Court 17 Beginning the Action 18 Pleading 19 Discovery 19 Disposition without Trial 19 Trial 20 Judgment and Remedy 20 Appeal 21 Finding the Law 21 Citations 21 Sources of Legal Material 23
Chapter 3 Role of the Federal Government 76 The Land Ordinances 77 Indirect Federal Role 78 Sources of the Federal Role
80
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viii
Contents
Structural Provisions in the Constitution 81 Tenth Amendment and State Sovereignty 82 General Welfare and Education 83 Arlington Central School District Board of Education v. Murphy 88 Commerce Clause and Education 90 United States v. Lopez 92 Supremacy Clause 94 Shepheard v. Godwin 96 Obligation of Contracts 98 Eleventh Amendment Immunity 99 Rights Provisions in the Constitution 101 Bill of Rights and Absorption by the Fourteenth Amendment 102 First Amendment 104 Fourth Amendment 104 Fifth Amendment 104 Eighth Amendment 105 Ninth Amendment 105 Fourteenth Amendment 106 Fundamental Rights and Education 107 Liberty Rights 107 Dignity Rights 107 San Antonio Independent School District v. Rodriguez 109 Education as a Unique Governmental Function 113
Chapter 4 Governance of Public Schools 118 Public Reason and the State 119 Education as a State Function 119 Limits of State Control 122 State ex rel. Clark v. Haworth 122 State and Local Educational Agencies 125 McGilvra v. Seattle School District No. 1 126 Johnson v. Burmaster 127 Local Control 130 Owens v. Colorado Congress of Parents, Teachers and Students 131 Functions of Education Agencies 133 Delegation of Legislative Powers 133 In the Petition to Transfer Territory from High School District No. 6, Lame Deer, Rosebud County, Montana, to High School District No. 1, Hardin, Big Horn County v. Lame Deer High School District 135 Administrative or Executive Functions 138 Quasi-Judicial Functions 139 Hortonville Joint School District No. 1 v. Hortonville Education Association 140 Judicial Review of School Board Actions 142 Sioux City Community School District v. Iowa Department of Education 144 Authority of Interscholastic Organizations 146
Grabow v. Montana High School Association 148 School Officers 150 Smith v. Dorsey 151 School Elections 154 Hadley v. Junior College District of Metropolitan Kansas City, Mo. 155 School Board Meetings 158 Aldridge v. School District of North Platte 158 Open Meetings and Public Records Laws 161 Open Meetings 162 Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Bernasconi 163 Public Records 165 Zager v. Chester Community Charter School 166 Hovet v. Hebron Public School District 168
Chapter 5
Church and State
176
Background 177 Wall of Separation 178 Colonial Establishments 179 The Three Choices 180 Separation Implemented 180 An Act for Establishing Religious Freedom, Thomas Jefferson 181 Memorial and Remonstrance Against Religious Assessments, James Madison 182 Church Opposition to Schools of the Republic 183 The Public School and Religion 185 Public Taxation to Support Religious Schools 187 Everson v. Board of Education 187 Board of Education of Central School District No. 1 v. Allen 190 The Establishment Clause and the Lemon Test 192 The Lemon Test 193 Lemon v. Kurtzman 193 The Wall Begins to Crumble 197 Mueller v. Allen 199 The Marginalizing of Lemon 201 The New Establishment Clause Jurisprudence 202 Agostini v. Felton 204 Mitchell v. Helms 207 Religion and the Reconstruction Era: Grant and Blaine 211 The Founders’ Intent Regarding Separation 214 New Theories of Church and State 216 Separation 216 Nonpreferential Subsidization 217 Subsidization and Collaboration 218 Vouchers 218 Zelman v. Simmons-Harris 220 Independent Vitality of State Constitutions 223
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Contents Chittenden Town School District v. Department of Education 227 Dickman v. School District No. 62 C 231 Supreme Court’s Secularization of Public Schools: A Bifurcated Standard 233 Released Time for Religious Instruction 233 Illinois ex rel. McCollum v. Board of Education of School District No. 71, Champaign County, Illinois 234 Zorach v. Clauson 236 Volitional Exercises 237 Religious Exercises 238 Silent Meditation 238 Student-Initiated Religious Speech 238 Prayer at Graduation and Extracurricular Activities 239 School District of Abington Township v. Schempp and Murray v. Curlett 240 Stone v. Graham 243 Wallace v. Jaffree 246 Lee v. Weisman 249 Santa Fe Independent School District v. Doe 251 Equal Access Act 258 Board of Education of the Westside Community Schools v. Mergens 258 Facilities 265 Good News Club v. Milford Central School 266 Flag Salute 269 West Virginia State Board of Education v. Barnette 270
Chapter 6
School Attendance
283
State Prerogative 284 Compulsory School Attendance 284 Parens Patriae 286 Prince v. Massachusetts 288 Instruction in Private Schools 292 Equivalent Instruction 292 Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary 293 Residence and Domicile 295 Immigration and Assimilation 296 Plyler v. Doe 297 Martinez v. Bynum 301 Homeless Children 303 The Amish Exception 305 Wisconsin v. Yoder 306 Homeschooling 310 Swanson v. Guthrie Independent School District I-L 315 Murphy v. State of Arkansas 318 Jones v. West Virginia State Board of Education 321 Other Reasons for Nonattendance 323
Excessive Absences 323 Travel 324 Illness 324 Marriage 324 Vaccination 325 Workman v. Mingo County Schools
ix
327
Chapter 7 The Instructional Program 337 Marketplace of Ideas 338 Judicial Deference to School Officials 338 Limitation on State Power 340 State ex rel. Andrews v. Webber 340 Sandlin v. Johnson 342 Meyer v. Nebraska 343 Immediato v. Rye Neck School District 345 Boring v. Buncombe County Board of Education 350 Curriculum and the Pall of Orthodoxy 352 Board of Education, Island Trees Union Free School District No. 26 v. Pico 354 Counts v. Cedarville School District 358 Virgil v. School Board of Columbia County, Florida 362 Mozert v. Hawkins County Board of Education 365 Brown v. Woodland Joint Unified School District 369 Health Education 372 Leebaert v. Harrington 373 Parker v. Hurley 375 Evolution versus Creationism 379 Epperson v. State of Arkansas 382 Edwards v. Aguillard 384 Student Testing and Promotion 387 Due Process and Testing 387 Equal Protection and Testing 388 Debra P. v. Turlington 389 Grading and Academic Requirements 393 Withholding Diploma 393 Grade Reduction 394 Grade Standards for Extracurricular Activities 394 Campbell v. Board of Education of Town of New Milford 394 Bilingual Education Programs 398 Lau v. Nichols 399
Chapter 8 Student Speech and Expression 406 Freedom of Speech and Expression 407 Unprotected Speech 408 Clear and Present Danger 409 Material and Substantial Disruption 409
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x
Contents
Tinker v. Des Moines Independent School District 409 Obscenity and Uncivil Discourse 412 Bethel School District No. 403 v. Fraser 414 Morse v. Frederick 417 Scott v. School Board of Alachua County 421 Threats of Violence 424 Fighting Words or Hate Speech 424 True Threats 424 Doe v. Pulaski County Special School District 425 Forum Analysis Applied to Schools 430 Time, Place, and Manner 432 Lamb’s Chapel v. Center Moriches Union Free School District 432 Student Publications and Kuhlmeier 434 Forum Analysis and Student Newspapers 436 Categories of Publications 436 School-Sponsored Publications 437 Non-School Publications 437 Religious Publications 437 Hazelwood School District v. Kuhlmeier 438 The Internet and Free Speech 442 Wisniewski v. Board of Education of the Weedsport Central School District 444 Student Personal Appearance 448 Hair Length 448 School Uniforms 449 Canady v. Bossier Parish School Board 450
Chapter 9
Search and Seizure
460
Exclusionary Rule 461 Public School Searches 461 Reasonable Suspicion 462 T. L. O. and Reasonableness 462 Strip Searches 464 Special Needs and Suspicionless Searches 465 Canine Searches 466 Metal Detector Searches 467 Liability for Illegal Searches 468 New Jersey v. T. L. O. 469 Safford Unified School District v. Redding 474 Vernonia School District 47J v. Acton 477 Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls 480 Doe v. Little Rock School District 485 State of Iowa v. Jones 488
Chapter 10 Student Rights: Common Law, Constitutional Due Process, and Statutory Protections 496 Common Law and the Student Reasonableness 498 In Loco Parentis 499
497
Wiemerslage v. Maine Township High School District 207 499 Constitutional Due Process 501 Substantive Due Process 501 More-Specific-Provision Rule 504 Conscience Shocking 504 Extension of Substantive Due Process 505 Dunn v. Fairfield Community High School District No. 225 505 Corporal Punishment and Substantive Due Process 508 Student Discipline at Common Law 508 The Eighth Amendment 510 Liberty Interests 510 Ingraham v. Wright 513 Procedural Due Process 516 Dixon v. Alabama State Board of Education 518 Goss v. Lopez 520 Zero Tolerance 526 South Gibson School Board v. Sollman 528 Sexual Harassment of Students 531 Deliberate Indifference 532 Franklin v. Gwinnett County Public Schools 533 Gebser v. Lago Vista Independent School District 535 Davis v. Monroe County Board of Education 539 Sauls v. Pierce County School District 543 Child Abuse 549 Reporting 550 Penalty for Failure to Report 550 Arkansas Department of Human Services v. Caldwell 551
Chapter 11 Rights of Students with Disabilities 560 A History of Neglect 561 The Turning Point 562 The Mills Case 563 Mills v. Board of Education of District of Columbia 563 Education for All Handicapped Children Act (EAHCA) 567 Amendments to the Eahca 568 Individuals with Disabilities Education Act (IDEA) 568 The 1997 Amendments to the Idea 568 The 2004 Amendments to the IDEA 569 Interpretation of the Idea 572 Free Appropriate Public Education 572 Extended School Year 573 Regression–Recoupment Dilemma 575 Procedural Safeguards 575 Individualized Education Programs 576 Board of Education of Hendrick Hudson Central School District v. Rowley 577 Schaffer v. Weast 580
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Contents Attention Deficit Hyperactivity Disorder 585 Alvin Independent School District v. A. D. 586 Least-Restrictive Environment 589 Inclusion 591 Beth v. Van Clay 592 Placement in Private Schools 596 The Burlington Test 596 Florence County School District Four v. Carter 598 Children with Disabilities in Sectarian Schools 601 Foley v. Special School District of St. Louis County 602 Related Services 604 Irving Independent School District v. Tatro 605 Cedar Rapids Community School District v. Garret F. 607 Discipline and the “Stay-Put” Provision 609 The “Stay-Put” Provision 610 Honig v. Doe 610 Compensatory Education 615 Attorney’s and Expert’s Fees 615 Arlington Central School District v. Murphy 616 Rehabilitation Act of 1973, Section 504 618 Difference Between Section 504 and the Idea 619 Section 504 and Aids 620 The Idea and Aids 620 Martinez v. School Board of Hillsborough County 621
Chapter 12
Tort Liability
631
Definition of a Tort 632 Intentional Interference 633 Assault 634 Battery 634 Infliction of Emotional Distress 635 False Imprisonment 635 Spears v. Jefferson Parish School Board 636 Strict Liability 638 Negligence 639 Standard of Conduct 639 The Reasonable Person 639 Elements of Negligence 640 Duty 640 Standard of Care 641 Proximate or Legal Cause 642 Injury or Actual Loss 643 Medeiros v. Sitrin 643 Jerkins v. Anderson 648 Brownell v. Los Angeles Unified School District 652 The Tort of Bullying 655 Bully Liability 656 Parental Liability 657 School District Liability 657 Wallmuth v. Rapides Parish School Board 659 Defenses for Negligence 662
Contributory Negligence 662 Comparative Negligence 663 Assumption of Risk 663 Immunity 664 Funston v. School Town of Munster 664 Hutchison v. Toews 666 Aaris v. Las Virgenes Unified School District Hammond v. Board of Education of Carroll County 670 Exculpatory Releases 672 Wagenblast v. Odessa School District No. 105-157-166J 673 Educational Malpractice 676
xi
668
Chapter 13 Defamation and Student Records 683 Defamation Defined 684 Defamation in Public Schools 685 Defamation Per Se and Per Quod 685 Privilege 686 Malice 688 Good Faith 688 Truth 689 Tatum v. Orleans Parish School Board 689 Hett v. Ploetz 691 Desselle v. Guillory 693 Public Officials and Figures 695 Milkovich v. Lorain Journal Co. 698 Johnson v. Robbinsdale Independent School District No. 281 702 Student Records 707 Family Educational Rights and Privacy Act 708 Private Damages 710 Parental Rights 710 Posting of Grades 711 Student-Graded Work 711 Owasso Independent School District v. Falvo 711
Chapter 14 School District Liability 721 Sovereign Immunity 722 Richardson v. Rankin County School District 723 State-Agent Immunity 725 Lentz v. Morris 726 Abrogation of Immunity 727 Discretionary Functions 728 Mosley v. Portland School District No. 1J 729 Ette ex rel. Ette v. Linn-Mar Community School District 730 Insurance Waiver of Immunity 734 Dugger v. Sprouse 734 Proprietary Functions 735
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xii
Contents
Licensees and Invitees 736 Tanari v. School Directors of District No. 502 736 Nuisance 738 Hendricks v. Southfield Public Schools 739 Attractive Nuisance 739 Collomy v. School Administrative District No. 55 740 Section 1983, Civil Rights Act Liability 743 “Persons” Under the Act 743 School Board Liability Under Section 1983 744 Official Negligence Under Section 1983 744 Individual Liability Under Section 1983 745 Constitutional Torts: Deliberate Indifference and State-Created Danger 745 Wood v. Strickland 747 Lee v. Pine Bluff School District 751 Eleventh Amendment Immunity and Local School Districts 753
Chapter 15 Certification, Contracts, and Tenure 761 Teacher Certification 762 Background 762 Requirements 763 Ambach v. Norwick 764 Wardwell v. Board of Education of the City School District of the City of Cincinnati 766 Richardson v. North Carolina Department of Public Instruction Licensure Section 767 In re Appeal of Timothy Morrill (New Hampshire State Board of Education) 770 Teacher Contracts 772 The Standard Contract 772 Feldhusen v. Beach Public School District No. 3 773 Tenure 775 Grounds for Termination of Tenured Teachers 775 Scheer v. Independent School District No. I-26 of Ottawa County 776 Incompetency 778 Collins v. Faith School District No. 46-2 779 Insubordination 782 Gaylord v. Board of Education, Unified District No. 218, Morton County 783 In re Termination of James E. Johnson 784 Immorality 786 Immoral Conduct 786 Toney v. Fairbanks North Star Borough School District 787 Board of Education of Hopkins County v. Wood 791 Elvin v. City of Waterville 793 Cause or Good Cause 795 Board of Directors of Lawton-Bronson v. Davies 796 Reduction in Force 799
Zoll v. Eastern Allamakee Community School District 799 Constitutional Protection of Contracts 801 State v. Project Principle, Inc. 803
Chapter 16 Teacher Rights and Freedoms 808 The Source of Rights 809 Academic Freedom 810 First Amendment: Primary Repository 810 Speech Rights of Public Employees 811 Pickering and the Balancing of Interests 812 Pickering v. Board of Education 813 Speech and the Connick Rule 816 Connick v. Myers 817 Garcetti and the Pursuant to Duty Test 823 Garcetti v. Ceballos 825 Weintraub v. Board of Education of the City District of the City of New York 828 Williams v. Dallas Independent School District 829 Lee v. York County School Division 831 Mayer v. Monroe County Community School Corporation 835 Mt. Healthy and Motivating Factors 836 Mt. Healthy City School District Board of Education v. Doyle 837 Givhan: Expressing Public Concerns in Private 840 Givhan v. Western Line Consolidated School District 840 Stroman v. Colleton County School District 841 Privacy 844 Teacher Workplace Searches 844 Mental and Physical Examinations of Teachers 845 Daury v. Smith 846 Drug Testing of Teachers 848 Knox County Education Association v. Knox County Board of Education 851 Freedom of Religion 856 Title VII 856 Promoting Religion 857 Religious Garb 857 Privilege Against Self-Incrimination 858
Chapter 17 Due Process Rights of Teachers 865 Four Aspects of Due Process 866 Substantive Due Process 866 Liberty Interests 867 Property Interests 868 Board of Regents v. Roth 870
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Contents Perry v. Sindermann 873 Harrah Independent School District v. Martin 876 Procedural Due Process 879 Hearing 880 Impartiality 881 Cleveland Board of Education v. Loudermill 881 Crump v. Board of Education of Hickory Administrative School Unit 885 The Vagueness Test 889 Loyalty Oaths 890 The Irrationality and Presumption Test 892 Resident Status 892 Pregnancy 893 Cleveland Board of Education v. LaFleur 893
Chapter 18 Discrimination in Employment 899 Constitutional and Statutory Protections 900 Federal Civil Rights Statutes 900 Enforcement of Employment Rights 901 Equal Protection Clause 902 Equal Protection of Gender 903 Three Equal Protection Tests 903 Title VI 905 Title VII 906 United States v. South Carolina 907 Hazelwood School District v. United States 911 Association of Mexican-American Educators v. State of California 914 Diversity and Affirmative Action 919 Wygant v. Jackson Board of Education 922 Sex Discrimination 925 Title VII 925 Title IX 926 Jackson v. Birmingham Board of Education 927 North Haven Board of Education v. Bell 930 Pregnancy 932 Employment Benefits Discrimination 932 Sexual Harassment 933 Quid Pro Quo 933 Hostile Environment 933 Retaliation 934 Clark County School District v. Breeden 935 Trautvetter v. Quick 938 Religious Discrimination 941 Ansonia Board of Education v. Philbrook 942 Cowan v. Strafford R-VI School District 944 Equal Pay Act 946 Age Discrimination 948 Discrimination Against Persons with Disabilities 950 School Board of Nassau County v. Arline 952
xiii
Chalk v. United States District Court Central District of California and Orange County Superintendent of Schools 955 Family and Medical Leave Act of 1993 957
Chapter 19 Bargaining
Collective 966
Background of Labor Relations 967 Private Versus Public Sector Bargaining 967 The Right of Public Employees to Bargain Collectively 968 Norwalk Teachers Association v. Board of Education of City of Norwalk 970 Anderson Federation of Teachers, Local 519 v. School City of Anderson 973 Board of Education v. New Jersey Education Association 974 City of Biddeford v. Biddeford Teachers Association 977 Scope of Bargaining 979 Kenai Peninsula Borough School District v. Kenai Peninsula Education Association 980 Pawtucket School Committee v. Pawtucket Teachers Alliance 981 Collective and Individual Rights 984 Bargaining Rights 984 Agency-Shop and Constitutional Rights of Individuals 985 Nonmember Union Fees 985 Davenport v. Washington Education Association 988 Ysursa v. Pocatello Education Association 991 City of Madison v. Wisconsin Employment Relations Commission 994
Chapter 20 Desegregation of Public Schools 1001 The American Dilemma 1002 Separate but Equal 1003 Plessy and Sanctioning Separation 1004 Separate-but-Equal Challenged 1005 Brown: Separation Inherently Unequal 1006 Brown v. Board of Education of Topeka 1007 Interpreting Brown 1009 Green v. County School Board of New Kent County 1011 Alexander v. Holmes County Board of Education 1013 Quotas and Busing 1013 Swann and the Four Student Assignment Issues 1014 Swann v. Charlotte-Mecklenburg Board of Education 1014 De Facto Segregation 1017
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xiv
Contents
Keyes v. School District No. 1, Denver 1017 Interdistrict Desegregation 1019 Milliken v. Bradley 1021 Unitariness 1023 Board of Education of Oklahoma City Public Schools, Independent School District No. 89 v. Dowell 1025 Freeman v. Pitts 1028 Remedial and Compensatory Remedies 1032 Diversity 1033 Narrow Tailoring 1035 Parents Involved in Community Schools v. Seattle School District No. 1, et al. and Meredith v. Jefferson County Board of Education, et al. 1036
Chapter 21
School Finance
1047
Taxation for Education 1048 Florida Department of Education v. Glasser 1049 Marion and McPherson Railway Co. v. Alexander 1049 Taxation and Equal Protection 1052 School Finance Equity Litigation 1053 Equal Protection Clause and School Finance 1053 Rodriguez and Its Aftermath 1054 Litigation Under State Constitutions 1055 Fundamentality and State Constitutions 1057 Edgewood Independent School District v. Kirby 1062 DeRolph v. State 1067 Bonner ex rel. Bonner v. Daniels, Governor, State of Indiana 1072 Committee for Educational Rights v. Edgar 1075 Budgeting and Accounting for School Funds 1078 San Benito Independent School District v. Farmers’ State Bank 1078
Petition of Auditors of Hatfield Township School District 1081 Public School Indebtedness 1083 Hewitt v. Board of Education 1083
Chapter 22 School Property and Buildings 1090 City of Baker School Board v. East Baton Rouge Parish School Board 1091 City of Bloomfield v. Davis County Community School District 1092 Edmonds School District No. 15 v. City of Mountlake Terrace 1093 School Buildings 1095 School Site Selection 1096 Mullins v. Board of Education of Etowah County 1096 Eminent Domain 1098 In re School District of Pittsburgh 1099 Dare County Board of Education v. Sakaria 1100 Adverse Possession 1103 Lovejoy v. School District No. 46, Sedgwick County 1104 Reversion of School Property 1105 Williams v. McKenzie 1106 Appendix A Selected Constitutional Provisions 1112 Appendix B Information Helpful in Legal Research 1116 Index
1119
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table of cases
The principal cases are in bold type. Cases cited or discussed in the text are roman type. References are to pages.
Albemarle Paper Co. v. Moody, 913, 915 Alden v. Maine, 95, 115, 116 Aldridge v. School District of North Platte, 158–161 Alexander v. Bartlett, 334 Alexander v. Holmes County Board of Education, 1013, 1024, 1042, 1046 Allen v. Town of Sterling, 999 Alliance for Children, Inc. v. City of Detroit Public Schools, 116 Alva v. Sequoia Union High School District, 160 Alvin Independent School District v. A. D., 586–589 Alvin Independent School District v. Cooper, 142 Ambach v. Norwick, 764–766 Ambroiggio v. Board of Education, 71 Ambus v. Ganite Board of Education, 965 American Civil Liberties Union of Kentucky v. Grayson County, Kentucky, 246 American Federation of Teachers-West Virginia, AFL-CIO v. Kanawha County Board of Education, 863, 864 American Power and Light Co. v. Securities and Exchange Commission, 116 Americans United Inc. v. Independent School District No. 622, 280 Anderson Federation of Teachers, Local 519 v. School City of Anderson, 973–974, 999 Anderson v. Anoka Hennepin Independent School District, 733 Anderson v. Banks, 388, 405 Anderson v. Brand, 803 Anderson v. City of Bessemer City, 1028 Andreucci v. Foresteire, 706 Andrews v. Independent School District No. 57, 790 Ankers v. District School Board of Pasco County, 654 Ansonia Board of Education v. Philbrook, 857, 864 Ansonia Board of Education v. Philbrook, 857, 864, 942–944
A A. E. v. Westport Board of Education, 584 A. G. v. Sayreville Board of Education, 558 A. H. Andrews Co. v. Delight Special School District, 174 A. J. M. v. State, 493 A. K. v. Alexandria City School Board, 584 A. W. v. Northwest R-1 School District, 629 Aaris v. Las Virgenes Unified School District, 668–670 Abdel-Hafiz v. ABC, Inc., 702 Abeel v. Clark, 336 Abington Township v. Schempp, 281 Abood v. Detroit Board of Education, 985, 988, 1000 Abraham v. Baldwin, 693 ACLU of Kentucky v. McCreary County, 281 ACLU v. McCreary Co., Kentucky, 246 Adams v. Campbell County School District, 862 Adams v. Richardson, 905, 963 Adams v. Roark, 682 Adams v. State of Oregon, 628 Adams v. State Professional Practices Council, 790 Adams v. Tanner, 345 Adarand Constructors, Inc. v. Pena, 902, 963, 1046 Addington v. Texas, 897 Adkins v. Children’s Hospital, 556 Aetna Life Insurance Co. v. Haworth, 25 AFSCME v. Woodward, 969, 999, 1000 Age v. Bullitt County Schools, 629 Agostini v. Felton, 202, 204–207, 221, 224, 227, 278, 279, 281, 603 Aguilar v. Felton, 198, 202, 204, 278, 279 Aguilera v. Board of Education of the Hatch Valley Schools, 801 Akins v. County of Sonoma, 655 Alabama v. Pugh, 760 Alamo Heights Independent School District v. State Board of Education, 628, 630
xv Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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Ansorge v. City of Green Bay, 862 Antkowiak v. Ambach, 609 Appelhaus v. McFall, 682 Aratari v. Leetonia Exempt Village School District, 682 Arcadia Unified School District v. State Dept. of Education, 75 Arias v. Las Virgenes Unified School District, 682 Arizona Governing Committee v. Norris, 964 Arizona State Board for Charter Schools v. U.S. Department of Education, 62, 74 Arkansas Department of Human Services v. Caldwell, 551–553 Arlington Central School District Board of Education v. Murphy, 88–90 Arlington Central School District v. Murphy, 115, 616–618 Arons v. New Jersey State Board of Education, 630 Ash v. Board of Education, 977, 1000 Ashuelot National Bank v. School District No. 7, 1084 Ashwander v. Tennessee Valley Authority, 25 Associated Enters, Inc. v. Toltec Watershed Improvement District, 174 Associated Schools of Independent District No. 63 v. School District No. 83 of Renville County, 173 Association of Community Organizations for Reform Now v. New York City Department of Education, 90 Association of Mexican-American Educators v. State of California, 914–919 Atascadero State Hospital v. Scanlon, 115, 116 Atkins v. City of Charlotte, 999, 1000 Atlantic Coast Line Railroad Co. v. City of Goldsboro, 807 Attorney General v. East Jackson Public Schools, 71 Attorney General v. Lowrey, 173 Attorney General v. School Committee of Essex, 281 Attorney General v. School Committee of Northampton, 161 Aubrey v. School District of Philadelphia, 682 Auran v. Mentor School District No. 1, 862 Austin Independent School District v. Robert M., 629 Avery v. Homewood City Board of Education, 795
B B.C. v. Plumas Unified School District, 495 B.W.A. v. Farmington R-7 School District, 423 Babb v. Independent School District No. I-5 of Rogers County, 801 Backie v. Cromwell Consolidated School District No. 13, 862 Bacus v. Lake County, 136 Baggett v. Bullitt, 891, 898 Bahr v. Boise Cascade Corp., 701 Bailey v. Truby, 174 Baker v. Adams, 281 Baker v. Carr, 154, 1088 Baker v. Owen, 557 Bakken v. Schroeder, 157 Ball v. James, 174 Ballard v. Independent School District No. 4 of Bryan County, 789 Balog v. McKeesport Area School District, 807 Baltimore City Board of School Commissioners v. City Neighbors Charter School, 75 Bank of Columbia v. Okely, 557
Barcheski v. Board of Education of Grand Rapids Public Schools, 807 Barnard v. Inhabitants of Shelburne, 405 Barner v. Spearfish School District No. 40-2, 798 Barnes v. Costle, 964 Barnett v. Collection Service Co., 681 Barnett v. Durant Community School, 999 Barnett v. Fairfax County School Board, 596 Barr v. Bernhard, 682 Barrett v. Omaha National Bank, 937 Bartels v. Iowa, 404, 557 Barton v. Independent School District No. I99, 801 Barton v. Rogers, 719 Basarich v. Rodeghero, 705 Baskett v. Crossfield, 719 Basmajian v. Board of Education, 682 Bates v. Little Rock, 557 Battle v. Pennsylvania, 574, 628 Batty v. Board of Education, 70 Bauch v. City of New York, 1000 Bauer v. Board of Education, Unified School District No. 452, 769 Baxter v. Palmigiano, 524 Baynard v. Malone, 548 Bayport–Blue Point School District v. State Division of Human Rights, 955 Beard v. Whitmore Lake School District, 469, 495 Beaufort County Board of Education v. Lighthouse Charter School Committee, 62, 74, 75 Beck v. Board of Education, 71 Beck v. James, 955 Beeching v. Levee, 707 Beehler v. Daniels, 759 Bego v. Gordon, 724 Beilan v. Board of Education, 105, 117, 859, 864 Belcourt v. Fort Totten Public School District, 782 Belier v. Wilson, 131 Bell v. Burson, 884 Bell v. Hood, 534 Bell v. Marseilles Elementary School, 495 Bell v. New Jersey and Pennsylvania, 89 Bell v. School City of Gary, 1046 Bellnier v. Lund, 494 Bell’s Gap Railroad Co. v. Pennsylvania, 1088 Beloit Education Ass’n v. Wisconsin Employment Relations Commission, 982, 983 Belotti v. Baird, 450 Belton v. Gebhart, 1045 Benedetto v. Travelers Insurance Co., 682 Benevolent and Protective Order of Elks, 705 Benitez v. New York City Board of Education, 672 Bennett v. City of Slidell, 759 Bennett v. Kentucky Dept. of Ed., 90 Bennett v. New Jersey, 90 Berea College v. Kentucky, 1004, 1045 Berg v. Glen Cove City School District, 331 Berghorn v. Reorganized School District No. 8, 281 Berkelman v. San Francisco Unified School District, 401 Berlanger v. Nashua, New Hampshire, School District, 715 Bernstein v. Lopez, 885 Betenbaugh v. Needville Independent School District, 453
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Table of Cases Beth v. Van Clay, 592–596 Bethel Park School District v. Krall, 794, 807 Bethel School District No. 403 v. Fraser, 413, 414–417, 425, 439, 442, 444, 451-452, 499, 556 Beussink v. Woodland R-IV School District, 443 Bishop v. Wood, 898 Bissell v. Davison, 336 Blaine v. Moffat County School District Region No. 1, 790 Blair v. Walker, 719 Bland v. Candioto, 682 Blatchford v. Native Village of Noata, 116 Blue v. Beach, 336 Blunt v. Marion County School Board, 806 Board of County Commissioners of Shelby County, Tennessee v. Burson, 174 Board of County Commissioners v. Idaho Health Facilities Authority, 280 Board of Curators of the University of Missouri v. Horowitz, 339, 387, 404–405, 518, 558 Board of Directors of Davenport Community School District v. Quad City Times, 170 Board of Directors of Lawton-Bronson v. Davies, 796–799 Board of Directors of Sioux City v. Mroz, 806 Board of Ed. of Hendrick Hudson Central School District, Westchester County v. Rowley, 115, 617 Board of Educ. of Louisville v. Society of Alumni of Louisville Male High School, 173 Board of Education of Aberdeen-Huntington Local School District v. State Board of Education, 173 Board of Education of Bath County v. Goodpaster, 137 Board of Education of Blount County v. Phillips, 1098 Board of Education of Borough of West Paterson v. Brophy, 1111 Board of Education of Central School District No. 1 v. Allen, 74, 187, 190–192, 198, 278, 281 Board of Education of Chicago v. Upham, 173 Board of Education of City of Asbury Park v. Asbury Park Education Ass’n, 976 Board of Education of City of Los Angeles v. Swan, 798 Board of Education of City of Minneapolis v. Public School Employees Union (1951), 974 Board of Education of City of New York v. Allen, 174 Board of Education of Golf School District No. 67 v. Regional Board of School Trustees, 335 Board of Education of Hendrick Hudson Central School District v. Rowley, 572 Board of Education of Hendrick Hudson Central School District v. Rowley, 572, 577–580, 606, 628–629 Board of Education of Hopkins County v. Wood, 791–793 Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 104, 117, 465–466, 480–485, 495 Board of Education of Jefferson County School District R-1 v. Wilder, 898 Board of Education of Kiryas Joel Village School District v. Grumet, 202, 278, 279 Board of Education of LaGrange School District No. 105 v. Illinois, 601, 604 Board of Education of Minot v. Park District of Minot, 1103
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Board of Education of Montgomery County v. Montgomery County, 1080 Board of Education of Mountain Lakes v. Maas, 326, 330, 336 Board of Education of North Bergen Township v. North Bergen Federation of Teachers, 984 Board of Education of Oak Park v. Illinois State Board of Education, 614 Board of Education of Oklahoma City Public Schools, Independent School District No. 89 v. Dowell, 1019, 1046 Board of Education of Ottawa Township High School District 140 v. Spellings, 116, 628 Board of Education of Roslyn Union Free School District v. Nyquist, 142 Board of Education of School District No. 1, Denver v. Booth, 61 Board of Education of Stamford v. Board of Finance, 972 Board of Education of the School District of Philadelphia v. Kushner, 806 Board of Education of the School District of Philadelphia v. Philadelphia Federation of Teachers AFL-CIO, 807 Board of Education of the Westside Community Schools v. Mergens, 258–265, 281 Board of Education of Town of Ellington v. Town of Ellington, 1081 Board of Education of Town of Stamford v. Board of Finance of Town of Stamford, 1081 Board of Education of Township High School District No. 211, Cook County, Illinois v. Corral, 614 Board of Education of Westside Community Schools v. Mergens, 279, 281 Board of Education v. Allen, 195, 201, 247 Board of Education v. Antone, 233 Board of Education v. Bakalis, 280 Board of Education v. Barnette, 247 Board of Education v. Calderon, 792 Board of Education v. County Board of School Trustees, 174 Board of Education v. Diamond, 628 Board of Education v. Dick, 70 Board of Education v. New Jersey Education Association, 974–977 Board of Education v. New Paltz United Teachers, 999 Board of Education v. Round Valley Teachers Ass’n, 976 Board of Education v. Sinclair, 71 Board of Education v. Stoddard, 173 Board of Education, Island Trees Union Free School District No. 26 v. Pico, 353, 354–357, 358, 404, 556, 862 Board of Regents of the University of Wisconsin System v. Southworth, 245 Board of Regents v. Roth, 21, 106, 117, 387, 405, 557, 838, 866–867, 870–873, 874, 897 Board of School Commissioners of the City of Indianapolis v. Walpole, 806 Board of Trustees v. Freedom of Information Commission, 175 Board of Trustees v. Judge, 790 Board of Trustees v. McMurtry, 336 Bobilin v. Board of Education, 350 Boddie v. Connecticut, 557
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Bohning v. Ohio, 404 Bolling v. Sharp, 117, 879, 902, 963, 1009, 1045 Bomhoff v. White, 897 Bond v. Public Schools of Ann Arbor School District, 71, 75 Bond v. Public Schools, 71 Bonds v. Milwaukee County, 863 Boneau v. Swift and Co., 759 Bonnell v. Lorenzo, 863 Bonner ex rel. Bonner v. Daniels, Governor, State of Indiana, 1072–1074 Bonvento v. Board of Public Instruction of Palm Beach County, 25 Boon v. Boon, 1109 Borden v. Louisiana State Board of Education, 192 Boring v. Buncombe County Board of Education, 350–352 Boring v. Buncombe County, 816, 863 Boucher v. School Board of the School District of Greenfield, 447 Boulder Valley School District RE-2 v. Colorado State Board of Education, 61, 75 Bounds v. Smith, 557 Bowen v. Kendrick, 279 Bowerman v. O’Connor, 280 Bowles v. Willingham, 174 Bown v. Gwinnett County School District, 248 Boy Scouts of America v. Dale, 989 Boyer-town Area School District v. Department of Education, 62 Boykins v. Fairfield Board of Education, 524 Boynton v. Casey, 524 Bradley v. Richmond School Board, 1046 Bragdon v. Abbott, 619, 630, 957 Bragg v. Swanson, 423 Brammer-Hoelter v. Twin Peaks Charter Academy, 837, 864 Brandenburg v. Ohio, 430 Brands v. Sheldon Community School, 508 Branit v. Finkel, 863 Brannum v. Overton County School Board, 491 Breen v. Runkel, 281 Brentwood Academy v. Tennessee Secondary Schools Athletic Ass’n 148 Brewer v. Austin Independent School District, 525, 526, 759 Brewer v. Ray, 71 Briggs v. Board of Directors, 796 Briggs v. Elliott, 1045 Brigham v. State, 1088 Brine v. City of Cambridge, 173 Brinson v. Jackson, 71 Brisson v. Minneapolis Baseball and Athletic Association, 682 Bristol, Virginia School Board v. Quarles, 174 Britton v. Koep, 706 Britton v. South Bend Community School Corp., 924, 963 Broadrick v. Oklahoma, 898 Brock v. Roadway Express, Inc., 884 Brockbill v. Ron Brown Charter School, 62 Bromley v. Michigan Education Ass’n—National Education Ass’n, 993
Brown v. Board of Education of Topeka, 105, 117, 118, 219, 280, 285, 319, 562, 627, 765, 902, 923, 1002, 1003, 1006, 1007–1009, 1011, 1014, 1018, 1021, 1045 Brown v. Hot, Sexy and Safer Productions, Inc., 345, 750 Brown v. Woodland Joint Unified School District, 369–372 Brownell v. Los Angeles Unified School District, 652–659 Bryan v. Yellowstone County Elementary School District No. 2, 164 Bryant v. Whisenant, 71 Bunger v. Iowa High Sch. Athletic Ass’n 149, 174 Burch v. Barker, 437, 442 Burke County Board of Education v. Denton, 629 Burlington County Faculty Ass’n v. Burlington County College, 982 Burlington ex rel. Board of School Commissioners v. Mayor of Burlington, 1111 Burlington Industries Inc. v. Ellerth, 913, 935, 938, 964 Burlington Northern Land & Santa Fe Railway Co. v. White, 934, 965 Burnet v. Coronado Oil and Gas Co., 25 Burnham v. West, 495 Burruss v. Wilkerson, 1054, 1088 Bush v. City of Norwalk, 759 Bush v. Gore, 6 Bush v. Smith, 655 Byars v. City of Waterbury, 450 Byer v. Rural High School District No. 4 of Brown County, 1085 Byram Township Board of Education v. Byram Township Education Ass’n, 999, 1000 Byrd v. Livingston Independent School District, 301 Byrne v. Board of Education, School of West Allis–West Milwaukee, 957 Byrne v. Public Funds for Public Schools, 278
C C. B. v. Bobo, 553 C. N. v. Ridgewood Board of Education, 716, 717 Cadieux v. Board of Education of the City School District for the City of Schenectady, 682 Calder v. Bull, 556 Cales v. Howell Public Schools, 495 Calhoun v. Gaines, 884 California Federal Savings and Loan Ass’n. v. Guerra, 963 California Teachers Assn. v. Board of Trustees, 58 California v. Bakke, 1038 Campaign for Fiscal Equity, Inc. v. State of New York, 1089 Campbell v. Aldrich, 173 Campbell v. Board of Education of Town of New Milford, 394–398, 404 Campbell v. St. Tammany Parish School Board, 269, 361, 362 Canady v. Bossier Parish School Board, 450–454 Cannon v. University of Chicago, 533, 534, 536 Cantwell v. Connecticut, 102, 117, 278, 326, 336, 862 Capacchione v. Charlotte-Mecklenburg Schools, 1024, 1046 Capistrano Unified School District v. Wartenberg, 629 Carbondale Area School District v. Fell Charter School, 75
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Table of Cases Cardiff v. Bismarck Public, 71 Carey v. Piphus, 743, 759, 886 Carlile v. South Routt School District RE-3J, 964 Carlisle Area School District v. Scott, 630 Carlson v. School District No. 6 of Maricopa County, 778 Carpio v. Tucson High School District, 71 Carrington v. Rash, 557 Carson v. Cook, 492 Carson v. State, 1111, 1095 Carter by Carter v. U.S. Steel Corp., 759 Cary v. Board of Education of Adams-Arapahoe School District 28-J, 994 Castaneda v. Pickard (Castaneda I), 398, 405 Castaneda v. Pickard (Castaneda II), 405 Castaneda v. Pickard (Castaneda III), 400 Cathe A. v. Doddridge County Board of Education, 558 Cavarretta v. Department of Children and Family Services, 553 Cedar Rapids Community School Dist. v. City of Cedar Rapids, 1093 Cedar Rapids Community School District v. Garret F., 607–609 Cefalu v. East Baton Rouge Parish School Board, 603 Center for Law and Education v. Department of Education, 90 Centranchis v. Parish of Jefferson, 759 Chalk v. United States District Court Central District of California and Orange County Superintendent of Schools, 955–957 Chalupnik v. Savall, 1051 Chambersburg Area School District v. Commonwealth, 1000 Chamlee v. Henry County Board of Education, 734 Chandler v. Jones, 281 Chandler v. McMinnville School Dist., 425, 452 Chandler v. Miller, 849, 850, 863, 864 Chandler v. South Bend Community School Corp., 71 Chaplinsky v. New Hampshire, 424, 426 Chapman v. Furlough, 719 Chapman v. Gorman, 153 Charles Gabus Ford, Inc. v. Iowa State Highway Commission, 759 Chee-Craw Teachers Ass’n v. Unified School District No. 247, 999, 1000 Chicago Board of Education v. Payne, 793 Chicago Teachers Union, Local No. 1 v. Hudson, 986, 1000 Chief of Police v. Town of Dracut, 999 Child Welfare Society of Flint v. Kennedy School District, 173 Childress v. Madison County, 676, 682 Chittenden Town School District v. Department of Education, 227–231 Churchill v. S.A.D. No. 49 Teachers Ass’n, 994 Cincinnati School Dist. Bd. of Edn. v. Walter, 1068 Cipriano v. City of Houma, 157 Cipu v. North Haven Board of Education, 778 Circillo v. Milwaukee, 681 Cirillo v. City of Milwaukee, 682 Citizens Mutual Building Ass’n v. Edwards, 807 Citizens United v. Federal Election Commission, 6, 25 City Board of Education of Athens v. Williams, 1051
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City of Baker School Board v. East Baton Rouge Parish School Board, 1091 City of Biddeford v. Biddeford Teachers Association, 977–979 City of Bloomfield v. Davis County Community School District, 1092–1093 City of Boerne v. Flores, 115, 116 City of Dallas v. Mosely, 142 City of Houston v. McCarthy, 1052 City of Los Angeles, Department of Water and Power v. Manhart, 964 City of Madison v. Wisconsin Employment Relations Commission, 994–996 City of New Haven v. Town of Torrington, 864 City of New York v. DeLury, 999 City of Ontario, California v. Quon, 863 City of Philadelphia v. Duda, 681 City of Richmond v. J. A. Croson Co., 902, 963, 1034, 1046 Claremont School District v. Governor, 1088 Clark County School District v. Breeden, 935–937 Clark v. Dallas Independent School District, 442 Clarke v. Redeker, 335 Clements v. Board of Trustees of Sheridan County School District No. 2, 524, 557 Cleveland Board of Education v. LaFleur, 893–895, 898 Cleveland Board of Education v. Loudermill, 518, 558, 881–885, 897, 898 Clinton Municipal Separate School District v. Byrd, 515 Coates v. City of Cincinnati, 898 Cochran v. Louisiana State Board of Education, 187, 188, 191, 278, 386 Cockrel v. Shelby County School District, 817, 863 Coffin v. Coffin, 719 Coffman v. State, 494 Coffman v. Tracker, 964 Cohen v. California, 863 Cohen v. State, 124 Cole v. Oroville Union High School District, 256 Cole v. Richardson, 892, 898 Colegrove v. Green, 154 Coleman v. Shoemaker, 1109 Coles v. Cleveland Board of Education, 255 Collins v. Faith School District No. 46-2, 779–782 Collins v. Iowa Liquor Control Commission, 782 Collins v. Janey, 160 Collomy v. School Administrative District No. 55, 740–742 Colon v. Marzec, 759 Colonial School Board v. Colonial Affiliate, 982 Columbus Board of Education v. Penick, 1046 Colvin ex rel. Colvin v. Lowndes County, 558 Committee for Educational Rights v. Edgar, 1075–1079 Committee for Public Education and Religious Liberty v. Nyquist, 198, 202, 278 Commonwealth v. Bey, 335 Commonwealth v. County Board of Arlington County, 999 Commonwealth v. Fahey, 174 Commonwealth v. Hall, 336 Commonwealth v. Hartman, 50–52, 74 Commonwealth v. Herr, 257, 864 Commonwealth v. Neilsen, 494
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Commonwealth v. Smith, 495 Commonwealth, Department of Highways v. City of Winchester, 1103 Comprehensive Community Solutions v. Rockford School District, 62 Connally v. General Construction Co., 898 Connell v. Higginbotham, 891, 898 Conner v. Fort Gordon Bus Co., 964 Connett v. Freemont County School District No. 6, 681 Connick v. Myers, 817–823, 843, 863, 985 Connor v. Schnuck Markets, Inc., 964 Conover v. Board of Education, 161, 174 Constantine v. Rectors and Visitors of George Mason University, 116 Cook v. Griffin, 190 Cooper v. Aaron, 1045 Cooper v. McJunkin, 681 Cooper v. United States Ski Association, 676 Corales v. Bennett, 557 Corbett v. Regional Center for the East Bay, Inc., 630 Cordrey v. Euckert, 575, 628 Cormier v. Sinegal, 682 Corning Glass Works v. Brennan, 964 Cornwell v. State Board of Education, 404 Correa v. Vance, 630 Cottrell v. National Collegiate Athletic Association, 702 Council of Organizations and Others for Education About Parochiaid, Inc. v. Governor, 56, 74 Counts v. Cedarville School District, 358–362 County of Alleghany v. ACLU, 257, 281 County of McLean v. Humphrey, 334 County of Sacramento v. Lewis, 504, 506, 557 County School Board of Prince Edward County v. Griffin, 280, 334, 336 Covert v. Bensalem Township School District, 807, 889 Cowan v. Strafford R-VI School District, 944–946 Crager v. Board of Education of Knott County, Kentucky, 863 Craig v. Boren, 963 Craig v. County of Los Angeles, 916 Craig v. New Hanover County Board of Education, 734 Cram v. Lamson and Sessions Co., 964 Cramp v. Board of Public Instruction, 891, 898 Crane by Crane v. Indiana High School Athletic Ass’n, 174 Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 930 Crawford v. Pittman, 574, 628 Crawfordsville v. Hays, 862 Crisp County School System v. Brown, 727 Crisp v. Thomas, 758 Croft v. Governor of Texas, 246 Crowell v. School District No. 7, 758 Crump v. Board of Education of Hickory Administrative School Unit, 806, 885–889 Cruzan v. Director, Missouri Department of Health, 112 Cumming v. Board of Education of Richmond County, 1004, 1007, 1045 Cunico v. Pueblo School District No. 60, 963 Cunningham v. Beavers, 511, 557 Curcio v. Collingswood Board of Education, 965 Cureton v. Philadelphia School District, 725, 681
Curtis Publishing Co. v. Butts, 697, 700, 720 Cypress-Fairbanks Independent School District v. Michael F., 601, 628
D D. B. v. Lafon, 423 D. S. W. v. Fairbanks North Star Borough School District, 682 D.C., a Minor, v. R.R., a Minor, 682 D.F. v. Board of Education of Syosset Central School District, 429 Daddow v. Carlsbad Municipal School District, 754, 760 Dailey v. Los Angeles Unified School District, 654, 655 Daily v. Board of Education of Morrill County School District No. 62, 557 Dalehite v. United States, 758 Dallas Morning News Co. v. Board of Trustees of Dallas Independent School District, 175 Danenhoffer v. State, 681 Daniel R. R. v. State Board of Education, 629 Daniel S. v. Board of Education of York Community High School, 709, 720 Daniels v. Quinn, 839 Daniels v. Williams, 759 Danos v. Foret, 668 Dare County Board of Education v. Sakaria, 1100–1103 Dartmouth College v. Woodward, 74, 99 Dartmouth v. Woodward, 25 Daury v. Smith, 846–848, 863 Davenport v. Washington Education Association, 987, 988–991, 992, 999, 1000 Davidson v. Board of Governors, 965 Davidson v. Middlefort Clinic, Inc., 964 Davis v. Alaska, 525 Davis v. County School Board of Prince Edward County; Brown v. Board of Education of Topeka, 1011 Davis v. County School Board, 1045 Davis v. Harrison Community Schools Board of Education, 778 Davis v. Hillsdale Community School District, 558 Davis v. Monroe County Board of Education, 86, 117, 532, 539–543, 546, 558 Davis v. Scherer, 745 Davis v. Scherer, 759 Davis v. State, 330 Dawkins v. Billingsley, 719 Day v. South Park Independent School District, 1000 De Bolt v. McBrien, 719 De Jonge v. Oregon, 117, 862 Deal v. Cincinnati Board of Education, 1046 Deal v. Hamilton County Department of Education, 628 Dean v. Weakley County Board of Education, 638 Dearborn Fire Fighters Union Local No. 412 v. City of Dearborn, 999 Debra P. v. Turlington, 388, 389–393, 405 DeJesus v. Penberthy, 524 Delgado v. Freeport Public School District, 335 Delta Special School District No. 5 v. McGehee Special School District No. 17, 303, 335 DeMichele v. Greenburgh Central High School District No. 7, 889
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Table of Cases Dennis v. United States, 103, 117 Denver Board of Education v. Booth, 173 DeRolph v. State, 1057, 1067–1071, 1088 DeShaney v. Winnebago County Dept. of Social Servs., 752 Desselle v. Guillory, 693 Detroit Edison Co. v. East China Township School District No. 3, 174 Devries v. Fairfax County School Board, 629 Dickens by Dickens v. Johnson County Board of Education, 526 Dickman v. School District No. 62 C, 231–233, 281 Diefenderfer v. Budd, 161 Dilger v. School District 24 CJ, 235 Dillon v. Pulaski County Special School District, 526 District of Columbia v. Royal, 647 District v. Ault, 795 Dixon v. Alabama State Board of Education, 503, 516, 518–520, 557, 558, 880, 897 Dodge City NEA v. Unified School District No. 443, 999 Dodge v. Board of Education of City of Chicago, 116, 802, 803, 807 Doe A. v. Green, 558 Doe v. Belleville Public School District No. 118, 630 Doe v. Claiborne County, 759 Doe v. Defendant I., 629 Doe v. DeKalb County School District, 957 Doe v. Dolton Elementary School District No. 148, 630 Doe v. Duncanville Independent School District, 281 Doe v. Indian River School District, 255 Doe v. Knox County Board of Education, 965 Doe v. Little Rock School District, 485–488 Doe v. Maher, 628 Doe v. Manheimer, 655 Doe v. Pulaski County Special School District, 424, 425–430 Doe v. Renfrow, 466, 468, 495 Doe v. Smith, 573, 628 Doe v. Todd County School District, 614 Dohanic v. Department of Education, 807 Dominy v. Mays, 793 Doninger v. Niehoff, 443 Donohue v. Copiague Union Free School District, 677, 682 Douglas v. California, 557 Dowell v. School District, 71 Doyle v. Bowdoin College, 676, 682 Dresner v. Regional Board of School Trustees of Kane County, 335 Driving School Assoc. v. San Mateo Union High School District, 71 Dryden v. Marcellus Community Schools, 160 Due v. Florida Agricultural and Mechanical University, 516, 558 Duffield v. School District of Williamsport, 336 Dugger v. Sprouse, 734–735 Duke v. Grady Municipal Schools, 754, 760 Dunajewski v. Bellmore-Merrick Central High School District, 693 Duncan v. Coffee County, Tennessee, 174 Duncan v. Rzonca, 682 Dunn v. Blumstein, 766
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Dunn v. Fairfield Community High School District No. 225, 505–508 Dupont v. Mills, 1084 Dupree v. School Committee of Boston, 807 Dusckiewicz v. Carter, 682 Dwayne Kibbe v. Elida School District, 782
E Eagleton ex rel. Reorganized School District R-I of Miller County v. Van Landuyt, 142 East Canton Education Ass’n. v. McIntosh, 707 Easthampton v. County Commissioners of Hampshire, 1103 Eastman v. Williams, 681 Edelman v. Jordan, 115, 760 Edgewood Independent School District v. Kirby, 173, 1048, 1062–1067, 1088, 1089 Edmonds School District No. 15 v. City of Mountlake Terrace, 1093–1095 Edmundson v. Independent School District, 1085 Edwards v. Aguillard, 117, 281, 381, 384–387, 404 EEOC v. Townley Engineering Co., 864 Eggers v. Bullitt County School District, 630 Eisenberg v. Montgomery County Public Schools, 1046 Eisenstadt v. Baird, 112 Ekalaka Unified Board of Trustees v. Ekalaka Teachers Association, NEA, 983 Elkins v. United States, 461, 494 Ellerbee v. Mills, 707 Ellis v. Brotherhood of Railway, Airline, and S.S. Clerks, 1000 Elrod v. Burns, 1000 Elvin v. City of Waterville, 793–795 Employees v. Department of Public Health and Welfare, 116 Engel v. Vitale, 237, 281 Enquist v. Oregon, 903 Enterprise City Board of Education v. C.P. ex rel. J.P., 558 Environmental Charter High School v. Centinela Valley Union High School District, 75 Epperson v. Arkansas, 356, 386 Epperson v. State of Arkansas, 382–384, 404 Equal Employment Opportunity Commission v. Hickman Mills Consolidated School District No. 1, 965 Equal Employment Opportunity Commission v. Liberal R-II School District, 965 Equal Employment Opportunity Commission v. Madison Community Unit School District No. 12, 964 Equal Employment Opportunity Commission v. Tree of Life Christian Schools, 965 Erickson v. Board of Education, 630 Escatel v. Atherton, 558 Ette ex rel. Ette v. Linn-Mar Community School District, 681, 730–734 Evans v. Welch, 1104 Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, 750 Everson v. Board of Education, 102, 187–190, 191, 217, 232, 233, 235, 277, 279, 280 Ex parte Trottman v. Russell County Board of Education, 758 ex rel. Beattie v. Board of Education, 627
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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ex rel. Burpee v. Burton, 556, 681 ex rel. Chambers v. School District No. 10, 281 ex rel. Douglas v. Calvary Academy, 335 ex rel. Douglas v. Faith Baptist Church, 335 ex rel. Hubbard v. Buffalo Independent School District, 336 ex rel. Labaugh v. Board of Education of District No. 2, 336 ex rel. McCollum v. Board of Education of School District No. 71, 281 ex rel. Oberti v. Board of Education of Clementon School District, 629 ex rel. Public School District No. 6 v. Taylor, 864 ex rel. Robinson v. Keefe, 174 ex rel. Vollmar v. Stanley, 280 ex rel. Warren v. Nusbaum (III), 280
F Fairfax Covenant Church v. Fairfax County School Board, 269 Faragher v. Boca Raton, 936 Faragher v. City of Boca Raton, 934, 938, 964 Farina v. Board of Education of City of New York, 336 Fazzolari v. Portland School District No. 1J, 647 FCC v. Pacifica, 447 Febres v. The Camden Board of Education, 965 Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 676 Felder v. Johnson, 71 Feldhusen v. Beach Public School District No. 3, 773–775 Fellowship Baptist Church v. Benton, 335 Fennell v. Pauley, 1052 Fenton v. Stear, 526 Ferguson v. Thomas, 897 Ferrara v. Mills, 822 Ferrari v. American Home Products Corp, 331 Ferrell v. Dallas Independent School District, 449 Ferris v. Board of Education of Detroit, 759 Ferris v. Special School District No. 1, 876 Fertich v. Michener, 681 Fielder v. Board of Education, 524 Firefighter’s Institute for Racial Equality ex rel. Anderson v. City of St. Louis, 914 Fisher v. Clackamas County School, 281 Fiske v. Kansas, 862 Fitzgerald v. Barnstable School District, 548 Fitzgerald v. Camdenton R – III School District, 584 Fitzgerald v. Fairfax County School Board, 614 Fitzpatrick v. Bitzer, 116 Flast v. Cohen, 25 Fleischfresser v. Directors of School District 200, 372 Florence County School District Four v. Carter, 570, 597, 598–601, 628, 629 Florida Department of Education v. Glasser, 1049, 1088 Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 116 Flory v. Smith, 74 Floyd County Board of Education v. Slone, 769 Fogg v. Board of Education of Union School Dist. of Littleton, 74
Foley v. Special School District of St. Louis County, 602–604, 629 Folkers v. Lincoln County School District, 983 Ford v. Ford, 287, 334 Foreman v. Chester-Upland School Dist., 75 Forest Grove School District v. T.A., 598, 626, 627, 629 Forstrom v. Byrne, 336 Fort Zumwalt School District v. Clynes, 573, 601, 628 Foster v. Tupelo Public School District, 524 Fowler v. Clayton School District, 335 Fowler v. Unified School District No. 259, 603 Francine Delany New School for Children, Inc. v. Asheville City Board of Education, 63 Frank G. v. Board of Education of Hyde Park, 597, 629 Frank v. Orleans Parish School Board, 681 Franklin Central Gay/Straight Alliance v. Franklin Township Community School Corp., 264 Franklin Township Board of Education v. Quakertown Education Ass’n, 976 Franklin v. Gwinnett County Public Schools, 532, 533–535, 536, 558, 927, 957, 964 Franklin v. Lodge 1108, Frasca v. Andrews, 709, 720 Frazer v. St. Tammany Parish School Board, 680 Frazier v. State, 153 Fredrickson v. Denver Public School District No. 1 798 Freedom from Religion Foundation v. Hanover School Dist., 272 Freeman v. Pitts, 1024, 1028–1032, 1039, 1046 Freiler v. Tangipahoa Parish Public Schools, 386 Fremont RE-1 School District v. Jacobs, 174 Fresh Start Academy v. Toledo Board of Education, 90 Frontiero v. Richardson, 904, 963 Frost v. Hawkins County Board of Education, 368 Fuller v. Decatur Public School Board of Education, 558 Fullilove v. Klutznick, 921, 922, 963 Funston v. School Town of Munster, 664–666
G Gabrielli v. Knickerbocker, 282 Garcetti v. Ceballos, 823, 825–827, 828, 862, 863 Garcia v. Board of Education, 706 Garcia v. Miera, 512, 557, 558, 759 Garcia v. San Antonio Metropolitan Transit Authority, 91, 116 Gardner v. State, 681 Gargiul v. Tompkins, 863 Garrity v. New Jersey, 864 Gary Teachers Union, Local 4, American Federation of Teachers v. School City of Gary, 792 Gaspar v. Bruton, 387, 405 Gaylord v. Board of Education, Unified District No. 218, Morton County, 783–784 Gebser v. Lago Vista Independent School District, 532, 535–538, 545, 558, 964 Geick v. Kay, 719 Gentle v. Pine Valley Apartments, 759 Georgia Association of Retarded Citizens v. McDaniel, 628 Georgia Ass’n of Retarded Citizens v. McDaniel, 628, 629 Georgia State Conference Branches of NAACP v. Georgia, 1046
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Gerhardt v. Heid, 864 Gertz v. Robert Welch, Inc., 697, 699, 700, 705, 706, 720 Gfell v. Rickelman, 454 Giacona v. Tapley, 759 Giambrone v. Douglas, 758 Gibbons v. Ogden, 90, 92, 116 Gibbons v. Ogden, 90 Gillan v. Board of Regents, 862 Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622, 806 Ginsberg v. New York, 447, 556 Gitlow v. New York, 117, 862 Givhan v. Western Line Consolidated School District, 826, 840–841, 863 Goetz v. Ansell, 272 Gohn v. Akron School, 71 Goldberg v. Kelly, 872, 897 Goldman v. Moore, 160 Goldsmith v. Board of Education, 862 Gong Lum v. Rice, 1004, 1008, 1045 Gonzaga University v. Doe, 710, 716, 720 Gonzales v. Carhart, 211 Good News Club v. Milford Central School, 266–269 Good v. Howard, 1098 Goodman v. City of LeClaire, 732 Goodman v. School District No. 1, 173 Goodwin v. Kennedy, 707 Gordon v. Board of Education of City of Los Angeles, 236 Gosnell v. Hogan, 164 Goss v. Lopez, 106, 117, 503, 504, 518, 520–526, 557, 558 Grabow v. Montana High School Association, 148–150, 174 Grace Bible Fellowship v. Maine School Administration #5, 281 Graham v. Connor, 504, 557 Grainger County v. State, 1088 Granfield v. Regional Board of School Trustees of Bureau County, 335 Granger v. Cascade Country School District, 70, 71 Gratz v. Bollinger, 921, 963, 1034, 1038, 1046 Gray v. Sanders, 174 Gray v. Union County Intermediate Education District, 897 Grayned v. City of Rockford, 432, 889, 898, 994 Great Northern Life Insurance Co. v. Read, 116 Green v. Clarendon County School District Three, 965 Green v. County School Board of New Kent County, 1011–1013, 1019, 1024, 1046 Green v. Jones, 161, 174 Green v. Mansour, 116 Greenland School District v. Amy N., 629 Griffin v. County School Board of Prince Edward County, 280, 334, 336, 1012, 1045 Griffin v. Illinois, 1088 Griffin v. Prince Edward County Schools, 1010 Griggs v. Duke Power Co., 906, 910, 915, 963 Griswold v. Connecticut, 112, 117, 502, 557, 844, 863, 969 Grit v. Wolman, 278 Groh v. Ramirez, 494 Grosz v. City of Miami Beach, 335 Grove City College v. Bell, 535, 558, 618, 630 Grove v. Mead School District No. 354, 370
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Gruenke v. Seip, 681 Grutter v. Bollinger, 921, 963, 1038, 1046 Guadalupe Organization, Inc. v. Tempe Elementary School District No. 3, 405 Guardians Association of New York City Police Department v. Civil Service Commission of City of New York, 914 Guilford School Township v. Roberts, 862 Gunnip v. Lautenklos, 160 Gurmankin v. Costanzo, 965 Gurney v. Ferguson, 233 Guzick v. Drebus, 409, 449
H H. H. v. Moffett, 557 Hackett v. Brooksville Graded School District, 281 Hackworth v. Board of Education for the City of Atlanta, 175 Hadley v. Junior College District of Metropolitan Kansas City, Mo., 155–158, 174 Hadley v. Rush Henrietta Central School District, 331 Hale v. Mann, 958, 965 Hall v. Tawney, 511, 557 Hall v. Vance County Board of Education, 628 Hallett v. Post Printing & Publishing Co., 173 Halstead v. Rozmiarek, 173 Hamer v. Board of Education, 71, 75 Hamilton v. Regents, 305, 335 Hammond v. Board of Education of Carroll County, 670–673 Hanes v. Board of Education of City of Bridgeport, 807 Haney v. County Board of Education, 1046 Hannibal and St. J. Railroad Co. v. Husen, 173 Hans v. Louisiana, 116 Hansen v. Vermillion School District No. 13-1, 801 Harding v. Wiley, 1051 Harfst v. Hoegen, 281 Harlow v. Fitzgerald, 759 Harper v. Edgewood Board of Education, 454 Harper v. Virginia State Board of Elections, 557 Harrah Independent School District v. Martin, 806, 876–879 Harris v. County of Forsyth, 516, 681 Harris v. Forklift Systems, Inc., 934, 936, 964 Harris v. Mechanicville Central School District, 806 Harris v. Nordquist, 164 Harris v. Victoria Independent School District, 823 Harrison v. Sobol, 335 Harry A. v. Duncan, 759 Hartpence v. Youth Forestry Camp, 782 Hartzell v. Connell, 66–71, 75 Harwood v. Johnson, 681 Hassan v. Lubbock Independent School District, 516, 681 Hawkins v. Sarasota County School Board, 543 Hazelwood School District v. Kuhlmeier, 351, 354, 363, 404, 413, 417, 435, 436, 437, 438–442, 451, 452 Hazelwood School District v. United States, 911–914, 924 Hazen Paper Co. v. Biggins, 949, 965 Hazen v. Strong, 336 Hebel v. School District R-1, Jefferson County, 1085 Hedges v. Musco, 485
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Hedges v. Swan Lake and Salmon Prairie School District No. 73, 758 Hedrich v. Board of Regents of University of Wisconsin System, 963 Heffington v. Jackson, 334 Helena Elementary School District No. 1 v. State, 173, 1089 Helvering v. Davis, 84, 115 Hemry ex rel. Hemry v. School Board of Colorado Springs, 442 Hendricks v. Southfield Public Schools, 739 Henson v. Dunde, 933, 964 Herald v. Board of Education, 1108 Herdahl v. Pontotoc County School District, 256 Hering v. State Board of Education, 282 Hess v. Dewey, 1088 Hess v. Indiana, 430 Hess v. Mullaney, 1088 Hesse v. Board of Education of Township High School District No. 211, Cook County, Illinois, 840 Hett v. Ploetz, 691–693 Hewitt v. Board of Education, 1083–1085 Hickman v. Valley Local School District, 1000 Hill v. Bickers, 336 Hill v. Independent School District No. 25, 789 Hill v. Stone, 174 Hinds County School Dist. v. R.B., 515 Hines v. Davidowitz, 98 Hirabayashi v. United States, 1046 Hirman v. Rogers, 704, 706 Hobbs v. County of Moore, 25 Hobson v. Bailey, 558 Hobson v. Hansen, 405 Hoff v. Pure Oil Co., 720 Hoffman v. Board of Education of City of New York, 682 Hoffman v. Jannarone, 863 Hogenson v. Williams, 557 Hohe v. San Diego Unified School District, 676 Hoke County Board of Education v. State of North Carolina, 1089 Hole v. San Diego Unified School District, 682 Holland v. District of Columbia, 629 Holler v. Lowery, 654 Holler v. Rock Hill School District, 70 Holloman v. Harland, 272 Holmes v. Board of Trustees of School District Nos. 4, 801 Holmes v. Jennison, 116 Holt Civic Club v. City of Tuscaloosa, 174 Home Building and Loan Ass’n v. Blaisdell, 116 Home Telegraph and Telephone Co. v. Los Angeles, 759 Honig v. Doe, 572, 610–615, 628, 629, 630 Hooks v. Clark County School District, 336 Hoover v. Jordan, 719 Hopwood v. Texas, 963 Horne v. Flores, 399, 400 Horton v. Goose Creek Independent School District, 467, 495 Horton v. Jefferson City–DuBois Area Vocational Technical School, 807 Horton v. Meskill, 397, 1088 Hortonville Joint School District No. 1 v. Hortonville Education Association, 140–142, 174, 887, 898
Hovet v. Hebron Public School District, 168–170 Howard County Board of Education v. Cheyne, 738 Howard v. Colonial School District, 557 Howard v. West Baton Rouge Parish School Board, 790 Howell Education Association MEA/NEA v. Howell Board of Education, 170 Hoyem v. Manhattan Beach City School District, 681 Hudson v. Bloomfield Hills Public School, 595 Hughes v. Bizzell, 693 Hughes v. Outlaw, 70 Hunt v. Sycamore Community School District Board of Education, 745, 760 Hunt v. University of Minnesota, 704 Hunter v. Board of Education of Montgomery County, 682 Hunterdon Central High School Board of Education v. Hunterdon Central High School Teachers’ Ass’n., 864 Hurtado v. California, 556, 557 Hutchinson v. Proxmire, 720 Hutchison v. Toews, 666–668 Hutton v. State, 557 Hysong v. School District of Gallitzin Borough, 864
I Illinois ex rel. McCollum v. Board of Education of School District No. 71, Champaign County, Illinois, 234–236 Imbler v. Pachtman, 750 Immediato v. Rye Neck School District, 345–350 In re School District of Pittsburgh, 1099–1100 In the Petition to Transfer Territory from High School District No. 6, Lame Deer, Rosebud County, Montana, to High School District No. 1, Hardin, Big Horn County v. Lame Deer High School District, 135–138 Indiana ex rel. Anderson v. Brand, 116, 802, 807 Ingraham v. Wright, 105, 117, 510, 513–516, 556, 557 Inhabitants of Warren v. Inhabitants of Thomaston, 302, 335 International Brotherhood of Teamsters v. Shapiro, 972 International Brotherhood of Teamsters v. United States, 911 Irvin v. Gregory, 75 Irving Independent School District v. Tatro, 604, 605–607, 608, 629 Isley v. School District No. 2 of Maricopa County, 1080 Isquith v. Levitt, 404
J J. D. v. Commonwealth, 525 J.M. v. Webster County Board of Education, 558 J.P. v. West Clark Community Schools, 720 Jackson Education Ass’n. v. Board of Education, 922 Jackson v. Benson, 231, 280 Jackson v. Birmingham Board of Education, 927–930, 964 Jackson v. Franklin County School Board, 630 Jackson v. Waco Independent School District, 70 Jacksonville Branch, NAACP v. Duval County School Board, 1028 Jacob v. School Board of Lee County, 398 Jacobson v. Commonwealth of Massachusetts, 325, 329, 336
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Jager v. Douglas County School District, 281 Jarrett v. Goodall, 173 Jasperson v. Anoka-Hennepin Ind. School District, No. 11, 682 Jee v. New York Post Co., Inc., 706 Jefferson County School District No. 509-J v. FDAB, 790 Jefferson School Township v. Jefferson Township School Building Co, 1085 Jensen v. Reeves, 720 Jerideau v. Huntington Union Free School District, 666 Jerkins v. Anderson, 648–652 Jersey v. T.L.O., 463 Jewett v. School District No. 25 in Fremont County, 1089 Jibson v. Michigan Education Ass’n, 993 Johanson v. Board of Education of Lincoln County School District No. 1, 884 John Ellis “Jeb” Bush v. Holmes, 42–45 John T. v. Marion Independent School District, 630 Johnson v. Board of Junior College No. 508, 705 Johnson v. Burmaster, 127–130 Johnson v. Charles City Community Schools Board of Education, 310 Johnson v. City of Boston, 647 Johnson v. Glick, 558 Johnson v. Independent School District No. 4 of Bixby, 575, 628 Johnson v. Prince William County School Board, 310 Johnson v. Robbinsdale Independent School District No. 281, 702–707 Johnson v. Sampson, 680 Johnson v. School District of Millard, 682 Johnson v. Southwestern Newspaper Corp., 707 Johnson v. St. Paul City Railway Co., 681 Johnson v. Transportation Agency, Santa Clara County, 963 Johnston v. Corinthian Television Corp., 705 Joint Anti-Fascist Refugee Committee v. McGrath, 558, 898 Jokinen v. Allen, 174 Jones v. Board of Education of Laurel County, 778 Jones v. Clear Creek Independent School District, 239, 281 Jones v. Kansas City, 759 Jones v. Latexo Independent School District, 467, 495 Jones v. Opelika, 270, 282 Jones v. School District, 17 Jones v. West Virginia State Board of Education, 321–323 Jones v. Wyoming, 331 Joseph v. New York City Board of Education, 924 Junior-Spence v. Keenan, 707 Jurva v. Attorney General of State of Michigan, 984, 999
K K.R. v. Anderson Community School Corp., 629 Kadrmas v. Dickinson Public Schools, 113, 117 Kansas Board of Regents v. Pittsburgh State University Chapter of Kansas–National Education Ass’n, 982 Kansas City Star Co. v. Fulson, 175 Kapiloff v. Dunn, 706 Karnstein v. Pewaukee School Board, 398 Kathryn Nurre (student) v. Carol Whitehead (Superintendent of Schools), 255 Katzman v. Cumberland Valley School District, 405 KDM v. Reedsport School District, 602, 629
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Keeper v. State, 124 Kees v. Smith, 1085, 1089 Kelley v. Bonney, 705 Kelley v. City of Tulsa, 790 Kelly v. Dickson County School District, 404 Kelo v. City of New London, Conn., 1111 Kenai Peninsula Borough School District v. Kenai Peninsula Education Association, 980–981, 1000 Kendrick v. Jefferson County Board of Education, 965 Kennedy v. County Board of Education, 71, 75 Kent v. School, 161 Keough v. Tate County Board of Education, 526 Kerin v. Board of Education, Lamar School District, 798 Kevin G. ex rel. Robert G. v. Cranston School Committee, 595 Keyes v. School District No. 1, Denver, 1017–1019, 1046 Keyes v. School District No. 1, Denver, 1046 Keyishian v. Board of Regents, 383, 404, 810, 814, 819, 862 Khowry v. Saik, 682 Kibbe v. City of Springfield, 759 Kiddie Korner Day Schools, Inc. v. Charlotte–McKlenbury Bd. of Education, 70 Kilpatrick v. Wright, 807 Kimel v. Florida Board of Regents, 101, 116, 948, 958, 965 King v. Kartanson, 647 King v. Lake, 719 King v. Saddleback Junior College District, 448 Kinsella v. Board of Education, 806 Kinsey v. Salado Independent School District, 822 Kirkland v. Greene County Board of Education, 512, 558 Kirkland v. Northside Independent School District, 816, 863 Kissinger v. School District No. 49 of Clay County, 1081 Kitsap County Transportation Co. v. Harvey, 681 Kitzmiller v. Dover Area School District, 381, 404 Klein Independent School District v. Mattox, 170 Knapp v. Whitaker, 863 Knisley v. Pike County Joint Vocational School District, 469, 495 Knodrad v. Bismarck Park District, 673, 682 Knowlton v. Baumhover, 225, 242, 278, 280, 281 Knox County Board of Education v. Fultz, 174 Knox County Education Association v. Knox County Board of Education, 851–856, 863 Knox v. O’Brien, 334, 335 Kobza v. Kutac, 734 Koehn v. Board of Education of City of Newton, 759 Kolcum v. Board of Education, 999 Kolender v. Lawson, 898 Korunka v. Department of Children and Family Services, 553 Kosydar v. Wolman, 278 Kotterman v. Killian, 201 Kramer v. Union Free School District No. 15, 113, 157, 174 Kristin Nat., Inc. v. Board of Education of City of Marietta, 71 Kryston v. Board of Education, East Ramapo Central School District, 720 Kuehn v. Reston School District No. 403, 495 Kuhlmeier v. Hazelwood School District, 404
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Kuhns v. Brugger, 681 Kusper v. Pontikes, 1000
L L.P.M. v. School Board of Seminole County, 174 Laba v. Board of Education of Newark, 174 Lachman v. Illinois State Board of Education, 595, 629 Lake View School District No. 25 of Phillips County v. Huckabee, 1066, 1088 Lamb v. Danville School Board, 159 Lamb v. Panhandle Community School District No. 2, 525 Lamb’s Chapel v. Center Moriches Union Free School District, 265, 278, 281, 432–434, 447 Lamont Independent School District v. Swanson, 759 Lamphere Schools v. Lamphere Federation of Teachers, 977 Lampkin v. District of Columbia, 335 Lander v. Seaver, 499, 556 Landeros v. Flood, 550, 559 Landgraf v. USI Film Products, 924 Landwehr v. Regents of University of Colorado, 335 Laneheart v. Orleans Parish School Board, 647 Larrison v. John Marshall High School, 682 Larson v. Portage Township School Corporation, 946 Larson v. Valente, 202, 278 Latham v. Board of Education of City of Chicago, 25 Latour v. Riverside Beaver School District, 429 Lau v. Nichols, 398, 399–401, 405 Lauren W. v. DeFlaminis, 601, 604 Lautermilch v. Findlay City Schools, 873 LaVine v. Blaine, 425 Lawrence County v. Lead-Deadwood School District No. 40-1, 98 Lawrence v. Lorain County Community College, 682 Lawrence v. Texas, 863 Lazarus v. Morris, 1103 Leahy v. School Board of Hernando County, 672 Leakey v. Georgia Real Estate Commission, 884 Leandro v. State, 1089, 1060 Ledbetter v. Good-year Tire & Rubber Co., 947, 964 Lee v. Macon County Board of Education, 1046 Lee v. Mitchell, 769 Lee v. Pine Bluff School District, 751–753 Lee v. Weisman, 202, 218, 239, 249–251, 252, 278, 279, 280, 281, Lee v. York County School Division, 831–835 Leebaert v. Harrington, 373–375 Leech v. State, 174 Leeper v. State, 74, 173 Lehmuth v. Long Beach Unified School District, 681 Lehnert v. Ferris Faculty Association, 986, 1000 Lehto v. Board of Education of the Caesar Rodney School District, 794 Lemelle v. State ex rel. Board of Secondary and Elementary Education, 682 Lemon v. Kurtzman, 193–197, 199, 206, 226, 244, 247, 259, 280, 281, 434, 857, 864, 942, 964 Lentz v. Morris, 726–727 Leoles v. Landers, 282 LePage v. Wyoming, 331 Leslie v. Oxford Area School District, 797 Lewis v. Harrison School District No. 1, 822
Lewis v. Spagnolo, 1078 Lewis v. Spaulding, 236 Lewis v. St. Bernard Parish School Board, 681 Libby, McNeill, and Libby v. Longshoremen Local 142, 999 Liles v. Smith, 1105, 1111 Lindahl v. Independent School District No. 306, 157 Linhart v. Lawson, 758 Linwood v. Board of Education, 524 Livingston v. Davis, 1092 Livoisi v. Hicksville Union-Free School District, 682 Locke v. Davey, 211, 218, 224, 280, 282, 987, 1000 Lockett v. Board of Education of Muscogee County School District, 1028 Londonderry School District v. State of New Hampshire, 1061, 1089 Long v. Eastfield College, 964 Longwood Center School District v. Springs Union Free School District, 335 Los Angeles City and County Employees Union v. Los Angeles City Board of Education, 999 Lott v. Strang, 681 Louisville Trust Co. v. Nutting, 759 Louisville, New Orleans and Texas Railway Co. v. Mississippi, 1045 Louviere v. Mobil County Board of Education, 758 Lovejoy v. School District No. 46, Sedgwick County, 1104–1105 Loving v. Virginia, 112, 557 Lowery v. Euverard, 508 Lujan v. Colorado State Board of Education, 173 Luper v. Black Dispatch Publishing Co., 705 Luques v. Luques, 334 Luthens v. Bair, 201 Lyerley v. Manila School District 15, 174 Lynch v. Donnelly, 202, 257, 278, 280, 281, 847 Lysicki v. Montour School District, 1105
M M. C. ex rel. J. C. v. Central Regional School, 584, 615, 630, Maack v. School District of Lincoln, 331 MacQueen v. City Commission of City of Port Huron, 173 Maddox v. City of New York, 672 Maddox v. State, 174 Mahoney v. Adirondack, 702 Main v. Claremont Unified School District, 174 Major v. Cayce, 70 Major v. Nederland Independent School District, 301 Malone v. Carrico, 719 Maltz v. Board of Education of New York City, 682 Mancusi v. DeForte, 863 Manigault v. Springs, 807 Mapp v. Ohio, 460, 461, 494 Marbury v. Madison, 534 Marbury v. Madison, 1, 5, 8, 12, 25 Marchioni v. Board of Education of the City of Chicago, 719 Marcy v. Oshkosh, 70 Marion and McPherson Railway Co. v. Alexander, 25, 1049–1052 Marrs v. Matthews, 803 Marsh v. Chambers, 201, 217, 278, 280
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Marshall v. Alabama High School Athletic Ass’n, 174 Marshall v. Cortland Enlarged City School District, 647 Marshall v. Jerrico, Inc., 888 Marshall v. School District, 71 Martin v. Hunter’s Lessee, 115 Martinez v. Bynum, 297, 301–303, 304, 335, Martinez v. Cui, 750 Martinez v. School Board of Hillsborough County, 621–623 Massachusetts Board of Retirement v. Murgia, 965 Matawan Regional Teachers Ass’n v. Matawan-Aberdeen Regional School District Board of Education, 160, 161 Mathews v. Board of Education of City of Chicago, 1051 Mathews v. Eldridge, 388, 405, 517, 558, 880, 881, 897, 898 Mathis v. Gordy, 75 Matson v. Kivimski, 759 Matthews v. Quinton, 224, 280 Maurice River Board of Education v. Maurice River Township Teachers Ass’n, 159 Mavis v. Sobol, 591, 629 Maxey v. McDowell County Board of Education, 806 May v. Evansville-Vanderburgh School Corp, 281 Mayer v. Chicago, 557 Mayer v. Monroe County Community School Corporation, 835–837 Mayor v. Miln, 124 McAuliffe v. Mayor of New Bedford, 819, 862 McCarthney v. Griffin-Spalding County Board of Education, 964 McCarthy v. Boozman, 331 McCarthy v. Philadelphia Civil Service Commission, 806 McCemas v. Board of Education of Fayette County, 175 McClelland v. Paris Public Schools, 767 McCloskey v. School District, 769 McCollum v. Board of Education, 236, 404 McCoy v. Thompson, 782 McCreary County, Kentucky v. American Civil Liberties Union, 245 McCulloch v. Maryland, 91, 116, McCullough v. Lohn, 873 McCurry v. Tesch, 335 McCutcheon v. Moran, 705 McDaniel v. Thomas, 1088 McDonald v. Santa Fe Trail Transportation Co., 963 McDonald v. State, 550, 559 McDonnell Douglas Corp. v. Green, 906, 949, 963, 964, 965 McDonnell v. Brozo, 681 McDuffy v. Secretary of the Executive Office of Education, 31–32, 74 McGee v. Board of Education, 672 McGee v. South Pemiscot School District R-V., 840 McGilvra v. Seattle School District No. 1, 126–127, 173 McGowan v. Maryland, 909 McGowen v. Prentice, 690 McGreevy v. Stroup, 750, 822 McInnis v. Ogilvie, 1088 McInnis v. Shapiro, 1053, 1088 McKinney v. O’Conner, 157 McLain v. Phelps, 74 McLaughlin v. Holt Public School Board of Education, 595
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McLaurin v. Oklahoma State Regents for Higher Education, 1008, 1045 McLean v. Arkansas Board of Education, 381, 404, 405 McLeod v. Grant County School District No. 128, 646 McQueen v. Beecher Community Schools, 753, 759 McQueen v. Fayette County School Corp, 692 Medeiros v. Kiyosaki, 404 Medeiros v. Sitrin, 643–648 Meek v. Pittenger, 201 Melvindale–Northern Allen Park Federation of Teachers, Local 1051 v. Melvindale–Northern Allen Park Public Schools, 976 Memorial Hospital v. Maricopa County, 766 Meredith v. Jefferson County Board of Education, 1046 Meritor Savings Bank, FSB v. Vinson, 933, 964 Mersey Trustees v. Gibbs, 758 Messina v. Burden, 726 Metropolitan Government v. Tennessee Department of Education, 630 Metzger v. Osbeck, 512, 557, 558 Meyer v. Board of Education, 681 Meyer v. Naperville Manner, Inc., 676 Meyer v. Nebraska, 74, 106, 117, 289, 290, 295, 311, 335, 340, 343–345, 348, 355, 404, 501, 502, 556, 557, 844, 863, 867, 871, 897 Michael H. v. Gerald D., 112 Michigan Central Railroad Co. v. Hasseneyer, 681 Michigan ex. rel. Kies v. Lowry, 121 Miles v. Denver Public Schools, 822, 862 Milkovich v. Lorain Journal Co., 698–701 Miller v. California, 412 Miller v. Korns, 1068 Miller v. Skumanick, 448 Milliken v. Bradley, 1021–1023, 1026, 1038, 1046, 1088 Mills v. Board of Education of District of Columbia, 563–567, 627, 629 Minersville School District v. Gobitis, 270, 272, 282 Minneapolis Federation of Teachers Local 59, AFLCIO v. Obermeyer, 974 Minnesota State Board for Community Colleges v. Knight, 984 Minton v. St. Bernard Parish School Board, 760 Mississippi Employment Security Commission v. McGlothin, 864 Mississippi University for Women v. Hogan, 904, 963 Mississippi v. Gordy, 71 Missouri ex rel. Gaines v. Canada, 1005, 1045 Missouri v. Fiske, 116 Missouri v. Jenkins (Jenkins I), 117, 1033, 1046 Mitchell v. Board of Trustees of Pickens County School District A, 964 Mitchell v. Forsyth, 759 Mitchell v. Helms, 203, 207–211, 278, 279, 280, 281, 386, MM ex rel. DM v. School District of Greenville County, 628 Mogle v. Sevier County School District, 767 Mohammed v. School District of Philadelphia, 682, 759 Molitor v. Kaneland Community Unit District No. 302, 116, 758 Monell v. Department of Social Services of City of New York, 743, 759, 760 Monroe v. Pape, 421, 557, 743, 759
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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Table of Cases
Monsanto Chemical Co. v. Chemical Workers Local 12, 999 Montauk Bus Co., Inc. v. Utica City School District, 965 Monteiro v. Tempe Union High School District, 365 Montenegro-Riehm Music Co. v. Board of Education of Louisville, 160 Montgomery v. Carr, 153 Montgomery v. Maryland, 965 Montoy v. State of Kansas, 1059, 1066, 1089 Moonan v. Clark Wellpoint Corporation, 759 Mooney v. Holohan, 889 Moore v. Board of Education, 173 Moore v. City of East Cleveland, 112 Moore v. Fennville Public Schools Board of Education, 165 Moore v. Greensburg High School, 759 Moore v. Monroe, 242 Moore v. Willis Independent School District, 511, 557 Mora Federation of Teachers, Local 1802 v. Independent School District No. 332, 979 Moran v. School District No. 7, 174 Morning Call v. Board of School Directors, 174 Morris v. Clarksville-Montgomery County Consolidated Board of Education, 799 Morris v. Douglas County School District, 681 Morris v. Morris, 334 Morris v. Vandiver, 71 Morrison v. Mobile County Board of Education, 719 Morrison v. State Board of Education, 334, 789, 798, 807, 863 Morrow v. Los Angeles Unified School District, 691 Morse v. Frederick, 414, 417–421, 456 Mosaica Academy Charter School v. Commonwealth Department of Education, 63 Moseley v. Welch, 173 Moses v. Bayport Bluepoint Union Free School District, 331 Mosier v. Barren County Board of Health, 336 Mosley v. Portland School District No. 1J, 729–730 Moss v. Stockard, 707 Mower v. The Inhabitants of Leicester, 722 Mozert v. Hawkins County Board of Education, 365–369 Mt. Healthy City School District Board of Education v. Doyle, 759, 760, 800, 836, 837–840, 863 Mueller v. Allen, 198, 199–201, 202, 217, 278, 280, 281 Muir v. Alabama Educational Television Commission, 361 Muller ex rel. Muller v. Committee on Special Education of East Islip Free Union School District, 584, 629 Mullins v. Board of Education of Etowah County, 1096–1098 Munson v. Board of Education, 681 Murdock v. Mingus Union High School District, 876 Murphy v. Bajjani, 682 Murphy v. State of Arkansas, 318–320, 335 Murphy v. Steeplechase Amusement Co., 672 Murray v. Chicago Youth Center, 647 Murray v. Curlett, 281 Murray v. Montrose County School Dist., 596 Muskopf v. Corning Hospital District, 758 Muskrat v. United States, 25 Myers v. Loudoun County Public Schools, 272
N N. B. and C. B. v. Hellgate Elementary School District, 629 N.A.A.C.P. v. Alabama ex rel. Patterson, 557, 969, 1000
Nagy v. Evansville-Vanderburgh School Corporation, 71, 1073 Narin v. Lower Merion School District, 965 National Education Ass’n v. South Bend Community School Corp., 976 National Law Center on Homelessness and Poverty v. New York, 335 National League of Cities v. Usery, 91, 116 National Mutual Ins. Co. v. Tidewater Transfer Co., 871 National Treasury Employees Union v. Von Raab, 849, 863 Natke v. North Branch Area School District, 508 NEA v. Unified School District No. 259, 999 Neal v. Fulton County Board of Education, 512, 557, 681 Neal v. Shields, Inc., 759 Near v. Minnesota, 117, 862 Neill v. Cook, 124 Nelson v. Moline School District No. 40, 442 Nevada v. Hall, 115 New Jersey v. 419 New Jersey v. Biancamano, 524 New Jersey v. T. L. O., 117, 419, 469–474, 494, 495, 499, 556, 845, 863 New York Charter Schools Ass’n, Inc. v. DeNapoli, 74 New York Times Co. v. Sullivan, 435, 696, 700, 703, 704, 705, 706, 719, 863 Newburg Area Council, Inc. v. Board of Education, 1046 Newburg Area Council, Inc. v. Gordon, 1046 Newdow v. U.S. Congress, 282 Newsome v. Batavia Local School District, 525, 526 Nicholas B. v. School Committee, 557 Nichols v. United States, 758 Nichols v. University of Southern Mississippi, 879 Nodar v. Galbreath, 705, 720 Norman v. Ogallala Public School District, 654 North Haven Board of Education v. Bell, 926, 930–933, 964 Northvale Board of Education v. Northvale Education Association, 976 Norton v. Board of Education, 70 Norwalk Teachers Association v. Board of Education of City of Norwalk, 970–973 Norwin School District v. Cortazzo, 758 Nottingham v. Akron Board of Education, 681 Noxubee County v. Long, 161 Null v. Board of Education of County of Jackson, 335 Null v. Board of Education of Jackson, 336 Nunez by Nunez v. City of San Diego, 292 Nunez v. Simms, 873 Nylander v. Oregon, 647
O Oakland Unified School District of Alameda County v. Olicker, 782 Odomes v. Nucare, Inc., 964 Ogden v. Saunders, 807 Ohio Ass’n of Public School Employees, AFSCME v. Lakewood City School District Board of Education, 884 Ohio v. Robinette, 494 Ohman v. Board of Education of City of New York, 681 Oleske v. Hilliard City School District Board of Education, 798
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Oregon v. Hass, 25 Oregon v. Smith, 316 Orozco ex rel. Arroyo v. Sobol, 301 Ortbals v. Special School District, 807 Osborne v. Montgomery, 681 Osius v. City of St. Clair Shores, 173 Otten v. Schutt, 692 Ottinger v. Ferrell, 719 Otto v. Pennsylvania State Education Association—NEA, 988, 1000 Owasso Independent School District v. Falvo, 710, 711–717, 720 Owens v. Colorado Congress of Parents, Teachers and Students, 131–133, 173 O’Conner v. Francis, 769 O’Connor v. Hendrick, 864 O’Connor v. Ortega, 863
P P. v. Newington Board of Education, 595 P. v. Riles, 405 P.B. v. Koch, 512, 558 Paine v. Board of Regents of University of Texas System, 524 Palella v. Ulmer, 655 Palmer v. Bennington School District, 707 Palmer v. Board of Education of the City of Chicago, 856, 864 Papason v. Allain, 113, 115, 117, 557 Parate v. Isibor, 862 Parents Involved in Community Schools v. Seattle School District No. 1, et al. and Meredith v. Jefferson County Board of Education, et al., 963, 1036–1041 Parents v. Caruthersville School District, 71 Parham v. J. R., 897 Parker v. Hurley, 375–379 Parratt v. Taylor, 759 ParsippanyTroy Hills Education Assoc. v. Board of Education, 71 Pasadena City Board of Education v. Spangler, 1019 Passantino v. Board of Education of City of New York, 682 Paster v. Tussey, 281 Patterson v. Masem, 964 Paul v. Davis, 752 Pauley v. Kelley, 65 Pauley v. Kelly, 1057, 1088 Paulson v. Minidoka Country School District, 71, 75 Paulton v. Volkmann 164 Pawtucket School Committee v. Pawtucket Teachers Alliance, 981–984 Pederson v. South Williamsport Area School District, 1000 Pelletier v. Maine Principals Association, 336 Pembaur v. Cincinnati, 744, 759 Penn Harris Madison School Corporation v. Howard, 666 Pennhurst State School and Hospital v. Halderman, 86, 88, 115, 116, 617 Pennsylvania Association for Retarded Children v. Pennsylvania, 582 Pennsylvania Ass’n for Retarded Children v. Commonwealth, 627
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Pennsylvania Federation of Teachers v. School District of Philadelphia, 1105 Pennsylvania Interscholastic Athletic Association, Inc. v. Greater Johnstown School District, 303, 335 People ex rel. Community Unit School District No. 1 v. Decatur School District No. 61, 137 People ex rel. Fish v. Sandstrom, 282 People ex rel. Hopf v. Barger, 164 People ex rel. Latimer v. Board of Education of City of Chicago, 235 People ex rel. Lewis v. Graves, 235 People ex rel. McCollum v. Board of Education, 353 People ex rel. Smith, Co. Collector v. Wabash Railway Co., 1051 People ex rel. Taylor v. Camargo Community Consolidated School District No. 158, 1095 People v. Baltimore and Ohio Southwestern Railway Co., 1051 People v. Becker, 174 People v. Berger, 336 People v. Board of Education, 862 People v. Deatherage, 1095 People v. DeJorge, 336 People v. Draper, 173 People v. Dukes, 495 People v. Ekerold, 336 People v. Gorman, 798 People v. Johnson, 798 People v. Maxwell, 807 People v. McIlwain, 336 People v. Overton, 492 People v. Pierson, 334 People v. Pruit, 495 People v. Reinberg, 174 People v. William G., 494 Peres v. Oceanside Union Free School District, 879 Perry Education Association v. Perry Local Educators’ Association, 430, 994 Perry v. School District No. 81, 236 Perry v. Sindermann, 117, 557, 819, 838, 866, 873–876, 897 Peter W. v. San Francisco Unified School District, 682 Peters v. South Kitsap School District No. 402, 778 Peterson v. Baker, 512, 558 Peterson v. Independent School District, No. 811, 558 Petrowski v. Norwich Free Academy, 888 Pettit v. State Board of Education, 807 Phaneuf v. Fraikin, 488 Pheasant Grove City, Utah v. Summum, 245 Philadelphia Newspapers, Inc. v. Hepps, 700 Philbrook v. Ansonia Board of Education, 944 Pickering v. Board of Education, 811, 812, 813–817, 819, 830, 835, 838, 863, 874 Pierce v. Society of Sisters, 53, 74, 112, 117, 191, 287, 290, 293, 305, 307, 335, 502, 557, 844, 863 Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 293–295, 334, 335, 348, 557 Pike Township Educational Foundation, Inc. v. Rubenstein, 775 Pilditch v. Board of Education, 924 Pinsker v. Joint District No. 28J, 864 Pirschel v. Sorrell, 174
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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Table of Cases
Pittman v. Board of Education of Glen Cove, 404 Pittman v. Chicago Board of Education, 804 Planned Parenthood v. Casey, 112 Plessy v. Ferguson, 1001, 1002, 1004, 1007, 1008, 1045 Plyler v. Doe, 113, 115, 117, 174, 297–30, 302, 304, 334, 335 Pocahontas Community School District v. Levene, 807 Poe v. San Antonio Express-News Corp., 705 Polk v. Central Susquehanna Intermediate Unit 16, 575, 628 Pontiac School District v. Department of Education, 976 Pontiac School District v. Secretary of U.S. Department of Education, 116 Porter v. Ascension Parish School Board, 429 Pottgen v. Missouri State High School Activities Ass’n, 585 Potts v. Breen, 336 Pratt v. Independent School District No. 831, 354, 404 Pred v. Board of Public Instruction of Dade County, 897 Press, Inc. v. Verran, 707 Price v. New York City Board of Education, 447 Price v. Young, 398 Price Waterhouse v. Hopkins, 964, 965 Prier v. Horace Mann Insurance Co., 681 Prince v. Massachusetts, 186, 278, 287, 288–292, 309, 311, 329, 334, 335, 336, 502, 557 Printz v. United States, 116 Prohm v. Non-High School District No. 216, 1085 Pruessner v. Benton, 336 Pruett v. City of Rosedale, 723 Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, 116 Purzyski v. Town of Fairfield, 655 Pushkin v. Regents of the University of Colorado, 965
Q Quern v. Jordan, 116 Quimby v. School Dist. No. 21 of Pinal County, 149
R R. v. Roberts, 174 R.A.V. v. St. Paul, 429 R.D.L. v. State, 494 Racine Charter One v. Racine Unified School District, 63 Racine Unified School District v. Thompson, 524 Rado v. Board of Education of the Borough of Naugatuck, 889 Ragsdale v. Wolverine World Wide, Inc., 965 Railroad Co. v. Husen, 124 Ramirez v. Rogers, 719 Randolph County Board of Education v. Adams, 64–66, 71 Rankin v. McPherson, 822 Rankin v. School District No. 9, 759 Rankins v. Louisiana State Board of Elementary and Secondary Education, 392, 393 Rathbun v. State, 1109 Rathjen v. Reorganized School District R-11 of Shelby County, 1111 Ratner v. Loudoun County Public Schools, 527, 558 Rawlings v. Butler, 864 Ray v. School District of Desoto County, 630 Reaves v. Foster, 706
Redman v. Department of Education, 778 Reed v. A.W. Lawrence and Co., 964 Reed v. Reed, 903, 904, 963 Reed v. Rhea County, 759 Regan v. Taxation With Representation of Wash, 992 Regents of the University of California v. Bakke, 862, 963, 1045, 1046 Regents of the University of Michigan v. Ewing, 405, 558 Regents of University of California v. Bakke, 922, 963, 1046 Reid v. Covert, 862 Reno v. American Civil Liberties Union, 442, 447 Reno v. Bossier Parish School Board, 157 Requa v. Kent School District No. 415, 443 Rettig v. Kent City School District, 609 Reynolds v. Pierson, 680 Reynolds v. Sims, 174 Reynolds v. United States, 178, 189, 217, 230, 277, 280 Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Bernasconi, 163–165 Rhodes v. Laurel Highlands School District, 807 Ricci v. DeStefano, 913, 914 Rice v. Commonwealth, 330, 335 Richards v. Raymond, 175 Richardson v. Braham, 556 Richardson v. North Carolina Department of Public Instruction Licensure Section, 767–769 Richardson v. Rankin County School District, 723–725 Richmond Newspapers, Inc. v. Lipscomb, 705 Ricker v. Board of Education of Millard County School District, 25 Riddick ex rel. Riddick v. School Board of City of Norfolk, 1046 Riddick v. School Bd. of City of Norfolk, 1026 Riddick v. School Board of City of Portsmouth, 681 Ridgecrest Charter School v. Sierra Sands Unified School Dist., 63 Ridgewood Board of Education v. N. E., 615, 630 Rivera v. East Otero School District R-1, 442 Rivera v. Houston Independent School District, 753 Rixmann v. Somerset Public Schools, 682 Roberson v. Oliver, 70, 71 Roberts v. City of Boston, 899, 1004, 1045 Roberts v. Van Buren Public Schools, 839 Roberts v. Wilson, 70 Robinson v. Cahill, 74, 1056, 1088 Robinson v. Dunn, 680 Rochin v. California, 889 Rodgers v. Magnet Cove Public Schools, 957 Rodiriecus v. Waukegan School District No. 60, 614, 615 Rodriguez v. San Antonio Independent School District, 1088 Roe v. Wade, 112, 557, 716, 844, 863 Rogers v. Gooding Public Joint School District No. 231, 558 Romer v. Evans, 963 Roncker v. Walter, 590, 629 Rose v. Board of Education, 759 Rose v. Council for Better Education, Inc., 38–42, 173, 1067, 1087, 1088, 1089 Rosenberger v. Rector and Visitors of the University of Virginia, 202, 245, 278 Rosenblatt v. Baer, 697, 719, 720
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Table of Cases Rosenfeld v. Montgomery County Public Schools, 965 Rosenow v. City of Estherville, 759 Ross v. Consumers Power Co., 759 Roth v. United States, 412 Rousselle v. Plaquemines Parish School Board, 405 Rubek v. Barnhart, 744, 759 Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 115 Runyon v. McCrary, 336 Russell v. The Men Dwelling in the County of Devon, 722 Russman v. Board of Education, 603 Russo v. Central School District No. 1, 864 Rutgers Council of American Ass’n of University Professors v. New Jersey Board of Higher Education, 982 Ruth Fisher Elementary School v. Buckeye Union High School District, 70 Ryan v. Sawyer, 71
S S-1 v. Turlington, 610, 630 S. A. v. Indiana, 524 S.G. as Guardian of A.G. v. Sayreville Board of Education, 429 Sacramento City School District v. Rachel H., 629 Saenz v. Roe, 113 Safford Unified School District No. 1 v. Redding, 494, 495 Safford Unified School District v. Redding, 464, 474–477, 494, 495 Sailors v. Board of Education of Kent County, 157 Saint Francis College v. Al-Khazraji, 963 Salazar v. Eastin, 71 Salek v. Passaic Collegiate School, 692 Salem Community School Corp. v. Easterly, 334 Samson v. O’Hara, 759 San Antonio Independent School District v. Rodriguez, 74, 107, 109–113, 115, 117, 280, 557, 963, 1088 San Benito Independent School District v. Farmers’ State Bank, 1078 Sanders v. Board of Education, 782 Sanderson v. St. Louis University, 964 Sandlin v. Johnson, 342–343 Santa Fe Independent School District v. Doe, 239, 251–258, 279, 281 Sauls v. Pierce County School District, 543–548 Savage v. Jones, 98 Sawaya v. Tucson High School District No. 1, 759 Saylor v. Board of Education, 512, 557 Scanlon v. Wedger, 682 Scarano by Scarano v. Town of Ela, 759 Schaffer v. Weast, 571 Schaffer v. Weast, 571, 580–585 Scheer v. Independent School District No. I-26 of Ottawa County, 776–778 Schenck v. United States, 340, 404 Schill v. Wisconsin Rapids School District, 170 Schinck v. Board of Education of Westwood Consolidated School Dist., 174 School Board of Nassau County v. Arline, 618, 630, 951, 965, 952–954 School Board of Osceola County v. UPC of Central Florida, 62
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School Board of Prince William County v. Malone, 630 School Board of the City of Richmond v. Parham, 999 School City of Elwood v. State ex rel. Griffin, 807 School Comm. of Burlington v. Department of Ed. of Mass., 583, 599 School Committee of New Bedford v. Commissioner of Education, 138 School Committee of Town of Burlington v. Department of Education, Massachusetts, 596, 629 School District No. 1, Multnomah County v. Bruck, 173 School District No. 12, Phillips County v. Hughes, 174 School District No. 25 of Woods County v. Hodge, 1088 School District No. 3 of Town of Adams v. Callahan, 174 School District No. 6 in Chase County v. Robb, 1089, 1109 School District No. 8 of Sherman County v. State Board of Education, 137 School District No. 8, Pinal County v. Superior Court of Pinal County, 778, 806 School District No. 89 v. Dowell, 1025–1028 School District of Abington Township v. Schempp and Murray v. Curlett, 240–243, 281, 404 School District of Cambria Township v. Cambria Co. Legion Recreation Ass’n, 1051 School District of City of York v. Lincoln-Edison Charter School, 62 School District of Harrisburg v. Pennsylvania Interscholastic Ass’n, 174 School District of Pittsburgh v. Commonwealth Department of Education, 190 School District of Pontiac v. Spellings, 116 School District of the City of Grand Rapids v. Ball, 198, 202, 278, 279 School District of the City of Pontiac v. Duncan, 116 School District of the City of Pontiac v. Secretary of the United States Department of Education, 115 Schuldt ex rel. Schuldt v. Mankato Independent School District No. 77, 596 Schumacher v. Lisbon School Board, 164 Schutes v. Eberly, 1088 Schware v. Board of Bar Examiners of New Mexico, 885 Schwing v. McClure, 130 Scobey School District v. Radaovich, 801 Scott County Board of Education v. Pepper, 1109 Scott v. Commonwealth, 1089 Scott v. Greenville Pharmacy, 681 Scott v. News-Herald, 706 Scott v. Pacific W. Mountain Resort, 676 Scott v. School Board of Alachua County, 421–424 Scown v. Czarnecki, 74 Seal v. Morgan, 558 Sears v. Ryder Truck Rental, 937 Seattle School Dist. No. 1 v. State, 173 Seminole Tribe of Florida v. Florida, 115, 116, 117, 744, 759 Serna v. Portales Municipal Schools, 401 Serrano v. Priest, 59, 1054, 1088 Sewell v. Brookbank, 705 Shamberg v. State, 494 Shapiro v. Thompson, 557, 766 Sharon v. City of Newton, 673, 676, 682 Sharp v. Lindsey, 885 Shelby S. v. Conroe Independent School District, 584
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Sheldon v. School Committee of Hopedale, 862 Shelmadine v. City of Elkhart, 174 Shelton v. Tucker, 383 Shepheard v. Godwin, 96–98 Sheppard v. State, 336 Sherbourne v. School Board of Suwannee County, 792 Sheridan Road Baptist Church v. Department of Education, 335 Sherman v. Community Consolidated School District 21, 272 Sherman v. Mamaroneck Union Free School, 585 Sherman v. Township High School District 214, 248 Sherr v. North-port-East Northport Union Free School District, 330 Shofstall v. Hollins, 1088 Shohadaee v. Metropolitan Government of Nashville and Davidson County, 913 Shrick v. Thomas, 897 Shrout v. Black Clawson Co., 937 Shuman v. Penn Manor School District, 488 Shumway v. Albany County School District No. 1 Board of Education, 269, 281 Silano v. Sag Harbor Union Free School District Board of Education, 897 Simien v. City of San Antonio, 767 Sims v. Board of Trustees, Holly Springs, 806 Sioux City & Pacific R. Co. v. Stout, 759 Sioux City Community School District v. Iowa Department of Education, 144–146 Sisson v. Schultz, 334 Skinner v. Oklahoma, 112, 557, 894 Skinner v. Railway Labor Executives’ Association, 848, 863 Skoros v. City of New York, 258 Slaney v. Westwood Auto, Inc., 676 Sloan v. Lemon, 278 Slochower v. Board of Higher Education, 858, 864 Slocum v. Holton Board of Education, 405 Slotterback v. Interboro School District, 442 Smith v. Alameda County Social Services Agency, 682 Smith v. Allwright, 157 Smith v. Board of School Commissioners of Mobile County, 368 Smith v. City Board of Education of Birmingham, 1103 Smith v. Dorsey, 151–153 Smith v. East Baton Rouge Parish School Board, 965 Smith v. Half Hollow Hills Central School District, 682 Smith v. Helbraun, 719 Smith v. Miller, 526 Smith v. Ricci, 404 Smith v. Robinson, 607, 615, 630 Smith v. State, 25 Smuck v. Hobson, 405 Sneed v. Greensboro Board of Education, 71 Snyder v. Charlotte Public School District, 237 Snyder v. Massachusetts, 897 Snyder v. Town of Newton, 280 Solow v. General Motors Truck Co., 720 Sony Corp. of America v. Universal City Studios, Inc., 159 Soper v. Hoben, 759 Sorenson v. Perkins & Co., 127 Soroko v. Gosling, 630
Souderton Area School District v. Souderton Charter School Collaborative, 62 South Bend Community School Corp. v. Britton, 963 South Dakota v. Dole, 115, 617 South Dakota v. Elizabeth H. Dole, Secretary, U.S. Department of Transportation, 88 South Gibson School Board v. Sollman, 528–531 Southside Public Schools v. Hill, 822 Spangler v. Pasadena City Board of Education, 1026 Spanierman v. Hughes, 873 Spaulding v. Campbell County Board of Education, 1098 Spears v. Board of Education of Pike County, 964 Spears v. Honda, 225, 280 Spears v. Jefferson Parish School Board, 636–643 Special School District v. Bangs, 70 Speilberg v. Henrico County Public Schools, 629 Speiser v. Randall, 874, 898 Spencer v. Unified School District, No. 501, 558 Spevack v. Klein, 864 Spiewak v. Board of Education, 778 Springer v. Fairfax County School Board, 629 Springfield School District v. Department of Education, 190 Squires v. City of Augusta, 280 St. Amant v. Thompson, 704, 707 St. Louis–San Francisco Railway Co. v. McCurtain County, Oklahoma Excise Board, 1080 Stahl v. Cocalico School Dist., 759 Stanley v. Illinois, 112 Stansberry v. Argenbright, 807 Star Tribune v. Board of Education, 165 Startzel v. Pennsylvania Department of Education, 790 State Board of Dental Examiners v. Savell, 798 State Board of Education v. Drury, 885 State Board of Elementary and Secondary Education v. Ball, 153 State ex rel. Andrews v. Webber, 340–342 State ex rel. Bartmess v. Board of Trustees of School District No. 1, 174 State ex rel. Board of Education for the County of Grant v. Manchin, 65 State ex rel. Board of Education v. Thompson, 1085 State ex rel. Clark v. Haworth, 122–124 State ex rel. Clark v. Henderson, 43 State ex rel. Edmundson v. Board of Education, 160 State ex rel. Holcomb v. Armstrong, 330 State ex rel. Ohio Congress of Parents and Teachers v. State Board of Education, 75 State ex rel. Rogers v. Board of Education of Lewis County, 142 State ex rel. School District No. 56 v. Superior Court, 127 State ex rel. Winsor v. Mayor and Council, 126 State of Iowa v. Jones, 488–493 State of Michigan ex rel. Kies v. Lowry, 173 State of Pennsylvania v. Riley, 98 State Tax Commission v. Board of Education of Jefferson County, 173 State v. Anderson, 336 State v. Benny, 1052 State v. Biancamano, 493 State v. Board of Trustees of School Dist. No. 1, 405 State v. Bowman, 335
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Table of Cases State v. Davis, 282 State v. Defley, 706 State v. Drake, 493 State v. Drew, 326, 336 State v. Edgington, 335 State v. Garber, 335 State v. Hay, 336 State v. Hoyt, 336 State v. Ingram, 680 State v. Kinnear, 174 State v. Lewis, 1071 State v. Lowry, 336 State v. Merlin, 336 State v. Perricone, 334 State v. Peterman, 336 State v. Priest, 336 State v. Project Principle, Inc., 803–804 State v. Randall, 556 State v. Redman, 778 State v. Slattery, 494 State v. Smith, 282 State v. Stein, 494 State v. Turner, 336 State v. Van Lare, 164 State v. Whisner, 335 State v. Whittle, 158 State v. Will, 336 Station v. Travelers Insurance Co., 668 Steirer ex rel. Steirer v. Bethlehem Area School District, 349, 404 Stell v. Savannah-Chatham County Board of Education, 1046 Stephens v. Alabama State Tenure Commission, 806 Stevens v. Central School District No. 1, 682 Stevens v. Tillman, 707 Stiver v. State, 806 Stone v. Belgrade School District No. 44, 913 Stone v. Graham, 238, 243–246, 281 Stone v. Mississippi, 124, 807 Stout v. Grand Prairie Independent School District, 759 Stout v. Jefferson County Board of Education, 1046 Stowers v. Clinton Central School Corporation, 676 Straights and Gays for Equality v. Osseo Area Schools— District No. 279, 265 Strangway v. Allen, 334 Stroman v. Colleton County School District, 841–843 Stuart v. School District No. 1 of Village of Kalamazoo, 74 Stull v. Reber, 326, 336 Sturgis v. County of Allegan, 404 Sturgis v. Washington, 335 Suits v. Glover, 681 Sullivan v. Little Hunting Park, Inc., 928, 964 Sund v. City of Wichita Falls, 359 Sutton v. United Airlines, Inc., 955 Swann v. Charlotte-Mecklenburg Board of Education, 1014–1016, 1040, 1046 Swanson v. Guthrie Independent School District I-L, 315–318, 336 Swany v. San Ramon Valley Unified School District, 405 Sweatt v. Painter, 1008, 1045
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Sweezy v. New Hampshire, 352, 404, 862 Swenson-Davis v. Martel, 695
T T. G. v. Board of Education of Piscataway, 630 T. W. Phillips Gas and Oil Co. v. Lingenfelter, 1111 Tanari v. School Directors of District No. 502, 736–738 Tannahill v. Lockney Independent School District, 484 Tarka v. Cunningham, 715, 720 Tarka v. Franklin, 714 Tasby v. Estes, 524 Tatum v. Orleans Parish School Board, 689–691 Tax Deferred Annuities Corp. v. Cleveland Board of Education, 130 Taxman v. Board of Education of Township of Piscataway, 925, 963 Taylor v. Ledbetter, 759 Taylor v. Vermont Department of Education, 720 Teachers v. Hudson, 988 Tennessee Secondary School Athletic Association v. Brentwood Academy, 174 Tennessee Small School Systems v. McWherter, 1088 Tenney v. Brandhove, 750 The Bronx Household of Faith v. Board of Education of the City of New York, 269 Thompson R2 – J School District v. Luke P., 580 Thompson v. Wake County Board of Education, 806 Timmis v. Bennett, 695 Timothy W. v. Rochester School District, 573, 628 Tinker v. Des Moines Independent Community School District, 337, 356, 360, 404, 407, 409–412, 415, 417, 421, 423, 452, 503, 508, 557 Todd v. Rochester Community Schools, 404 Todd v. Rush County Schools, 484 Tomczik v. State Tenure Commission, 807 Toney v. Fairbanks North Star Borough School District, 787–790 Torcaso v. Watkins, 857, 864 Tot v. United States, 898 Trans World Airlines, Inc. v. Hardison, 857, 864, 941, 964 Trautvetter v. Quick, 21 938–941 Tri-County Educators’ Ass’n v. Tri-County Special Education Co-op No. 607, 983, 999 Trinity United Methodist Parish v. Board of Education of the City School District of the City of Newburgh, 269 Trotta v. Mobil Oil Corp., 938 Troxel v. Granville, 112 Truax v. Corrigan, 117 Truby v. Broadwater, 405 True v. Ladner, 705, 719, 720 Trustees of the Dartmouth College v. Woodward, 807 Trustees v. Brooks, 160 Trustees, Missoula County School District No. 1 v. Anderson, 806 Tucker v. Calloway County Board of Education, 601, 604 Tumey v. Ohio, 888 Turcotte v. Fell, 672 Turic v. Holland Hospitality, Inc., 963 Turner v. Bucher, 682 Turner v. Department of Employment Security, 898 Turner v. Fouche, 174
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Tuttle v. Arlington County School Board, 1046 Tyska By Tyska v. Board of Education of Township High School District 214, 124, 173
U U.S. and LULAC v. Texas, 399 U.S. v. Fuller, 681 U.S. v. Marshall, 494 U.S. v. Uscanga-Ramirez, 494 Ulichny v. Merton Comm. School District, 876 Underwood v. McVeigh, 897 Unified School District No. 1 v. Redding, 750 Unified School District No. 434, Osage County v. Hubbard, 807 United Federation of Postal Clerks v. Blount, 999 United States and LULAC v. Texas, 401 United States v. American Library Association, Inc., 447 United States v. Associated Press, 404 United States v. Board of Education of School District of Philadelphia, 864 United States v. Board of School Commissioners, 1023 United States v. Butler, 84, 115 United States v. Calandra, 494 United States v. Cors, 1103 United States v. Hinton, 494 United States v. Hyson, 494 United States v. Jefferson County Board of Education, 1046 United States v. Lopez, 91, 92–94, 115, 116 United States v. Montoya de Hernandez, 863 United States v. Orleans Parish School Board, 965 United States v. Overton, 1046 United States v. O’Brien, 450 United States v. Paradise, 1046 United States v. Place, 863 United States v. Powell, 898 United States v. Scotland Neck City Board of Education, 1046 United States v. South Carolina, 907–911 United States v. Sprague, 115 United States v. United Mine Workers, 974 United States v. Virginia Military Institute, 904, 963 United Steelworkers v. Warrior and Gulf Nav. Co., 875 United Teachers of New Orleans v. Orleans Parish School Board, 863 University of Alabama v. Garrett, 116 University of the Cumberlands v. Rev. Albert M. Pennybacker, et al, 280 Upshur v. Love, 965 Urban v. Jefferson County School Dist. R-1, 595, 628 Utah School Boards Association v. Utah State Board of Education, 61, 75
V Valentine v. Independent School District of Casey, 405 Vallelly v. Board of Park Commissioners, 1085 Valley National Bank of Phoenix v. Glover, 556 Van Allen v. McCleary, 720 Vance v. Bradley, 965 Vandevender v. Cassell, 71 Vanelli v. Reynolds School District No. 7, 889 Vanvactor v. State, 681
Vaughns v. Board of Education, 1046 Vernonia School District 47J v. Acton, 104, 117, 419, 465, 477–480, 481, 484, 495, 752, 849, 863 Victoria L. v. District School Board of Lee County, 630 Viemeister v. White, 325, 336 Village of Hoffman Estates v. Flipside, 898 Villanueva v. Carere, 62, 74 Vincent v. County Board of Education, 71, 75 Virgil v. School Board of Columbia County, Florida, 362–365, 404 Virginia v. Black, 429, 681 Vitek v. Jones, 882 Vlandis v. Kline, 892, 893, 898 Vogulkin v. State Board of Education, 806 Vukadinovich v. Board of School Trustees of North Newton School Corp., 823
W W. B. v. Matula, 957 Waddel v. Forney, 884, 897 Wagenblast v. Odessa School District No. 105-157-166J, 673–676, 682 Wall v. M. and R. Sheep Co., 1051 Wallace v. Jaffree, 178, 198, 217, 238, 246–249, 277, 278, 280, 281 Wallace v. Shoreham Hotel Corp., 681 Waller v. Georgetown Board of Education, 1089 Waller v. Moore ex rel. Quitman County School District, 153 Wallmuth v. Rapides Parish School Board, 659–664 Walsh v. West Coast Coal Mines, 682 Walter v. West Virginia Board of Education, 281 Walz v. Egg Harbor Township Board of Education, 256 Walz v. Tax Commission, 195, 196 Wangsness v. Watertown School District No. 14-4, 864, 964 Ward v. Flood, 67 Ward v. Scott, 173 Wards Cove Packing Co. v. Atonio, 907, 963 Wardwell v. Board of Education of the City School District of the City of Cincinnati, 766–767, 806 Wardwell v. School Board, 964 Ware v. Morgan Cty. School D. No. RE-3, 784 Ware v. Unified School District No. 492, Butler County, State of Kansas, 822 Warner ex rel. Warner v. Lawrence, 75 Warren Education Ass’n v. Adams, 977 Warren G. v. Cumberland County School District, 601, 604 Warwick School Committee v. Warwick Teachers’ Union, 979 Washington v. Davis, 389, 405, 908, 909, 963, 1046 Waterloo Education Assoc. v. Iowa Public Employment Relations Board, 983 Waters v. Churchill, 811, 862, 863 Watson v. City of Cambridge, 627 Watson v. Fort Worth Bank and Trust, 963 Watson v. North Panola School District, 873 Watts v. United States, 426 Weathers v. West Yuma County School Dist. R-J-1, 877 Webb v. McCullough, 557 Webster v. New Lenox School District No. 122, 836 Weems v. North Franklin School District, 807 Weiman v. Updegraff, 404
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Table of Cases Weinbaum v. City of Las Cruces, New Mexico, 245 Weinberger v. Salfi, 893, 898 Weintraub v. Board of Education, 828–829 Weissman v. Board of Education of Jefferson County School District No. R-1, 798, 807 Weixel v. Board of Education of the City of New York, 630 Welling v. Board of Education, 404 Wellner v. Minnesota State Junior College Board, 897 Wenger v. Canastota Central School District, 630 West Hartford Education Ass’n v. Dayson DeCourcy, 999 West v. Derby Unified School District No. 260, 423, 424 West Virginia Education Association v. Preston County Board of Education, 153 West Virginia State Board of Education v. Barnette, 104, 117, 270–272, 282, 290, 470, 557 Westchester Area School District v. Bruce C., 629 Western Air Lines, Inc. v. Criswell, 949, 965 Wethersfield Board of Education v. Connecticut State Board of Labor Relations, 999 Whalen v. Roe, 716 Wheeler v. Barrera, 115 White v. Ascension Parish School Board, 595 Whiteside v. Kay, 524 Whitney v. California, 407 Widmar v. Vincent, 258, 259, 281, 431, 434, 994, Wiemerslage v. Maine Township High School District, 207, 499–501 Wilbur v. Mahan, 863 Wilhelm v. Board of Education of City of New York, 682 Wilkinsburg v. School District, 1111 Williams ex rel. Williams v. Ellington, 468, 495 Williams v. Board of Trustees of Stanton Common School District, 231 Williams v. Cambridge Board of Education, 523 Williams v. Dallas Independent School District, 829–831 Williams v. Kearbey, 681 Williams v. McKenzie, 1106–1109 Williams v. School District No. 40 of Gila County, 792 Williams v. School District of Springfield R-12, 719 Williams v. Smith, 70 Willoughby v. Lehrbass, 681 Wilson v. Marana Unified School District No 6 of Pima County, 596 Wilson v. Sanford, 71 Wilson v. State Board of Education, 56–63, 74, 75 Winchester Creek Corporation v. New York City School Construction Authority, 1100 Winegar v. Des Moines Independent Community School District, 897 Winkelman v. Parma City School District, 618, 627 Winser v. School District for the City of Pointiac, 543 Winters v. Arizona Board of Education, 807 Wisconsin v. White, 310 Wisconsin v. Yoder, 117, 278, 287, 305 306–310, 334, 335, 336, 348 Wise v. Bossier Parish School Board, 790
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Wise v. Pea Ridge School District, 512, 558 Wisniewski v. Board of Education of the Weedsport Central School District, 443, 444–448 Withrow v. Larkin, 888 Witters v. Washington Department of Services for the Blind, 202, 206, 278, 279 Witters v. Washington Department of Services for the Blind; Zobrest v. Catalina Foothills School District; Agostini v. Felton, 279 Wofford V. Evans, 523 Wolman v. Walter, 190 Wood v. Battle Ground School District, 164 Wood v. Board of Supervisors of Halifax County, 174 Wood v. Omaha School District, 965 Wood v. School District, 161 Wood v. Strickland, 530, 743, 747–750, 759 Woodsmall v. Mt. Diablo Unified School District, 681 Woodson v. School District No. 28, 1111 Workman v. Mingo County Schools, 327–330 Wren v. Harrison, 759 Wright v. City of Jackson, 766 Wright v. Council of the City of Emporia, 1046 Wright v. DeWitt School District No. 1, 330 Wright v. School District, 280 Wygant v. Jackson Board of Education, 920, 922–925, 963 Wynn v. Board of Education of Vestavia Hills, 494
Y Yanero v. Davis, 725, 758 Yanzick v. School District No. 23, 807 Yaris v. Special School District of St. Louis, 628 Ye v. U.S., 759 Yick Wo v. Hopkins, 113 York v. Wahkiakum School District No. 200, 484 Young v. Commonwealth, 897 Young v. Linwood School District No. 17, 1111 Ysursa v. Pocatello Education Association, 988, 991–994, 1000
Z Zablocki v. Redhail, 112 Zager v. Chester Community Charter School, 166–168 Zamora v. Pomeroy, 466, 495 Zanders v. Louisiana State Board of Education, 558 Zellers v. Huff, 864 Zelman v. Simmons-Harris, 219, 220–223, 278, 279, 280, 281 Zivich v. Mentor Soccer Club, Inc., 676 Zobrest v. Catalina Foothills School District, 202, 278, 281, 570, 601, 628, 629 Zoll v. Eastern Allamakee Community School District, 799–801 Zorach v. Clauson, 236–237, 242, 281 Zucht v. King, 330 Zuni Public School District No. 89 v. Department of Education, 98 Zykan v. Warsaw Community School Corp., 379
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P R E FA C E
T
his Eighth Edition of American Public School Law builds on 42 years of earlier editions that have sought to capture the essence of the evergrowing field of public education law. When this book was first published in the late 1960s, most education law emanated from state court precedents based on common law and state statutes, with relatively few cases rendered by the federal courts. Since then, the nature and sources of education law has changed dramatically, with federal court decisions involving both the U.S. Constitution and federal statutes taking center stage in number and substantive relevance. Today, education law decisions rendered by federal courts fill many volumes, and state court decisions have continued to increase, resulting in an exponential rise in precedents. One will notice that this new edition embodies several structural changes that were not in earlier editions, including an extensive discussion in the first chapter of legal research techniques that will enable the instructor and the student to locate relevant law using the latest electronic information sources. In addition to the research methodology suggested in Chapter 1, each succeeding chapter cites basic sources for various legal topics that can be accessed via the Internet. Also, a new section has been added at the end of each chapter, Summation of the Case Law, which gives the student a nutshell synopsis, a recapitulation, of the most important points of law presented in the chapter. The legal precedents presented and discussed herein deal with the multitude of issues occurring
in a country that has developed an extraordinary reliance on public schools as a mechanism for social and economic justice and improvement. The desire to educate the nation’s masses to a high degree of competency has resulted in the emergence of public schools as the common ground of learning for all backgrounds and persuasions. An undertaking of the magnitude of public schools, involving such an amalgam of people, is naturally fertile ground for conflicting differences and perceptions. This book is about those conflicts that could not be resolved through the normal political processes and ultimately required judicial resolution. What the courts have said in enunciating legal precedents is valuable information for all those involved with the public schools. The public school system in America is large, diverse, and, unlike most European systems, federalistic. All fifty states have unique origins, and therefore perspectives that add strength and vitality to the whole. Because of the decentralized nature of our educational structure, it is often difficult to identify any single rule of law that prevails in all states. Even with the broad sweep of constitutional precedents that have developed under the hand of the U.S. Supreme Court, the law governing our schools is often difficult to accurately assess and summarize. Beyond constitutional law, which is more focused because the Supreme Court can give the final word, we have a large mass of law pertaining to contracts, property, torts, general administrative law, and so on, all bearing on the administration of the schools. Also, substantial variation may
xxxvii Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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Preface
be found from state to state, not merely because of the differing statutory bases, but also because of widely varying perspectives and philosophies of education that the judges themselves may have in viewing particular school litigation; and, of course, the social contexts of the cases may have strong influences on the outcome of particular disputes. Therefore, the reader of this book should keep in mind that we, the authors, have had to select cases from among the hundreds of jurisdictions in this country that appear to best exemplify the prevailing view of the courts in the various areas of law. The precedents that we have identified may not neatly fit the numerous situations and conditions that can exist in all the local school districts across the nation. For this reason, the reader is well advised to carefully compare the precedents in the book with the rule of law in her or his own jurisdiction before drawing hard and fast conclusions. This book employs the “case” or “discussion” method for teaching the law. Over the years, this approach to instruction has been largely used in business schools and law schools and has been a very effective instructional methodology for immersing the student in the learning process. This approach to teaching enables the instructor to depart from merely lecturing or “telling” about the law and instead employs a Socratic method to facilitate classroom discussion. Using this technique, the instructor, assisted by the text, encourages classroom dialectic, invoking discussion to discover and expose the reasoning of the law. Here, the instructor can circumscribe the law for the students and then, by reviewing actual cases and engaging the student by questioning, probing, and challenging, bring forth the rules of law. The student is thereby able to relate a rule of law to a particular set of facts that will clarify or distinguish an educational dispute in question. By relating concrete factual situations to the law, students will be better able to recognize similar experiences when they encounter them as practicing teachers or school administrators. For the fledgling educator, the study of real cases may well substitute for actual experience and prevent costly on-the-job repetition. In some instances, a more comprehensive knowledge of both education and the law may prevent having to resort to the courts for redress. The case approach gives
graduate students the opportunity to study the law in a setting where the consequences of misjudgment are not actually visited upon their careers and professions. Learning by discussing and examining the experiences of others is, of course, not new; as early as 1570, Roger Ascham suggests in his dissertation, titled “The Schoolmaster,” that by conveying not only the rule of law but also the experiences of predecessor educators, the case method affords an efficient method for learning valuable lessons. learning teacheth more in one year than experience in twenty; and learning teacheth safely, when experience maketh more miserable than wise. He hasardeth sore that waxeth wise by experience. . . . It is costly wisdom that is brought by experience.
An effort is made herein to present an encompassing book, ranging across civil, criminal, and constitutional laws as they touch the student, teacher, and administrator. Several chapters in the book may be of primary interest to teachers who are directly concerned with such matters as curriculum, tenure, contracts, student rights, and collective bargaining. These aspects of the law are also essential information for the school administrator, though the administrator may also have a vital interest in the law of finance, property, desegregation, and intergovernmental relations. It is with cognizance of the needs of all educators that additional and separate chapters are included on various topics. Because of the profusion of litigation that has emanated from federal statutes in recent years, separate chapters are provided for issues concerning the education of persons with disabilities and employment discrimination. In total, the book represents an attempt to convey a fully comprehensive treatment of the law, regardless of whether it emerges from common law, statute, or constitutional law. This edition evidences the inexorable march of new precedents that continue to form the law of education. The evolution of the law gives new shape to the public schools that emerge from the social forces that prescribe and portend the direction of the law. Contained therein is a discernible pattern of the ebb and flow of student and teacher rights and freedoms that ultimately define the nature and context of the public schools. It would be redundant to discuss here all the text modifications from the earlier editions that
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Preface
reveal these changes, yet a few are particularly noteworthy. This edition reflects an apparent general pattern of a growing reticence of today’s increasingly conservative judiciary to enhance the expansion by earlier courts of rights and freedoms of students and teachers. One will notice a hesitancy on the part of courts to add new meaning to constitutional rights while expending increased energy on the interpretation of the extensive array of federal statutes that affect education policy. Also, as observed in the last edition, there appears to be a discernable tendency for the courts to revert to the logic of common-law precedents for their rationale. From this discussion, one can see the redefinition of students’ constitutional rights as the federal courts in the last decade appeared to grasp for rationale found in earlier common-law concepts to address constitutional law issues. For example, in freedom-of-the-press decisions applicable to student newspapers, the courts appear to have sought stability by relying on earlier common-law precedents. Additional precedents regarding students’ privacy against illegal search and seizure and drug testing, as well as the various applications of substantive and procedural due process, are viewed more conservatively, tending to limit student rights by reverting to older common-law reasoning. This edition also reflects the judicial response to an ever-widening influence of federal statutes in the governance of education. For example, this book devotes extensive attention to the considerations of the rights of children with disabilities as prescribed by Congress to the Individuals with Disabilities Education Act (IDEA) and No Child Left Behind (NCLB). The employment of teachers and its multifaceted ramifications is further addressed in this new edition. In this context, the book deals with the nature of the teacher-school board employment relationship as affected by the ever-widening litigation pursuant to Title VII of the Civil Rights Act. Moreover, the various Supreme Court decisions tending toward a dissection of freedom of speech in schools into public and private contexts has led to a plethora of new litigation, with the result of more narrowly circumscribing teachers’ rights of free speech. Also, this new edition elucidates the reversal of perspective of the Supreme Court on churchstate matters. As observed in the Seventh Edition,
xxxix
recent decisions of the present “conservativeactivist” Supreme Court marks a departure from historic legal precedents that constitutes a major shift toward diminishing the uniquely American “wall of separation” between church and state. The Court’s enfeebling of the Establishment Clause of the First Amendment prescribes a new doctrine that allows for expanded use of public tax dollars for parochial schools and the public funding of the so-called faith-based initiatives of churches. Further, this edition reveals that the courts are tending to be more restrained in their view of curricular and instructional matters, exhibiting a reemerging reluctance to intervene in school board decisions. This judicial deference to school boards concerning curricular matters suggests the possibility of newfound strength of school boards establishing and implementing school policy. Finally, developments in several other areas of the law have inspired the expansion of sections of the book, including discussions of the federal Supremacy Clause and No Child Left Behind (NCLB), sovereign powers of states, charter schools, vouchers, and the refinement of the legal definition of free public schools, as well as questions surrounding the equality of financial resources among local school districts. Expansion of law is found in sections of the book concerning federal civil rights statutes that prohibit racial, sexual, religious, and age discrimination in public school employment. Additional discussion is devoted to sexual harassment and Title IX issues, as indicated by prevailing precedents that affect students, teachers, and administrators. Sexual harassment, in its many shapes and forms, is revealed as an area of the law that is expanding very rapidly, and new precedents are continually creating new law. The authors are furthermore most appreciative of the able assistance of the fine staff at Wadsworth/Cengage. In particular we wish to acknowledge the attention given to this project by the editor, Mark Kerr, who worked with us in the overall conduct and direction of the project; Kara Kindstrom, for her creative marketing and sales initiatives; and Caitlin Cox, assistant editor, and Ashley Cronin, media editor, for helping develop the companion website to the text; and Genevieve Allen, editorial assistant, for her help
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xl
Preface
throughout the process. We also wish to acknowledge the production manager, Melena Fenn, for advancing the project with a high degree of professional efficiency; and the art director, Maria Epes. And very importantly, we would like to acknowledge the thoughtful and thorough assistance of Melissa Kelleher, development editor. Projects of this magnitude always require the unremitting dedication of a central figure who coordinates the entire endeavor from the authors’ side of the process. As with the Seventh Edition, Mrs. Shari Hall was the prime mover and essential player to whom the authors are profoundly grateful. The excellence of her managerial skills was readily apparent from the initiation to the completion of the project. In addition to her supervision responsibilities she bore much of the technical burden of the legal research, information retrieval, copyediting, verification of endnotes, and other essential details so critical throughout the many months of revision. Too, we would be remiss in not expressing our thanks to Kate Kemball and Nadia Geagea Pupa, who both played integral parts in the success of this entire undertaking. We also wish to acknowledge the continuing support of Karen Price, David Price, and the thoughtful commentary of Kane Alexander, a lawyer, whose grasp of the law was of great benefit. We are very much obliged to them for all their good services.
We must also extend thanks to those in the College of Education and College of Law at the University of Illinois, Urbana-Champaign, and the College of Education at Virginia Tech, who helped provide an agreeable study environment for this project. Finally, we wish to thank the following colleagues in academia who have used this book for their courses and have provided us with valuable suggestions for improving this new edition: Patrick C. Coggins, Stetson University, Deland, Florida; Robert J. Colon, Purdue University, Calumet; Lisa Driscoll, University of North Carolina, Charlotte; George Foldesy, Arkansas State University–Jonesboro; Mary Jane Guy, Winona State University, Wisconsin; Richard Moore, Trevecca Nazarene University, Nashville, Tennessee; Gary Schumacher, University of Houston–Clear Lake, Texas; David Thompson, University of Louisville; Lewis Wasserman, University of Texas, Arlington; and R. Craig Wood, University of Florida, Gainesville. In acknowledging those most helpful in the completion of this revision, we are, of course, more aware than ever of the unfailing support of our wives, Elizabeth and Nancy, who, with faithful understanding, have persevered with good humor and thoughtful encouragement. Kern Alexander, Urbana-Champaign, Illinois M. David Alexander, Blacksburg, Virginia
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1st Pass Pages
American Public School Law
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CHAPTER 1
The Legal System Definition of Law: [A] rule of civil conduct prescribed by the supreme power of a state (or nation), commanding what is right, and prohibiting what is wrong. —Blackstone The powers of the legislature are defined and limited; and that those limits are not mistaken, or forgotten, the Constitution is written. —Chief Justice John Marshall, Marbury v. Madison We must not expect a good constitution because those who make it are moral men. Rather it is because of a good constitution that we may expect a society composed of moral men. —Immanuel Kant
CHAPTER OUTLINE ■
INTRODUCTION
■
THE PURPOSE OF LAW
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THE NATURE OF PUBLIC SCHOOL LAW
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STARE DECISIS
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SOURCES OF LAW
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HOW TO READ A CASE
Constitutions
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CASE OR CONTROVERSY
Statutes
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THE AMERICAN COURT SYSTEM
Judicial Decisions (Case Law)
State Courts
Administrative Law
Federal Courts
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POLITICAL NEUTRALITY AND THE COURTS
■
PROCESS OF GOING TO COURT
■
POWERS AND FUNCTIONS OF COURTS
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FINDING THE LAW
Applying Principles
Citations
Interpreting Statutes
Sources of Legal Material
Determining Constitutionality
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2 ■
Chapter 1
The Legal System
Introduction
The law of the school includes all those areas of jurisprudence that bear on the operation of public elementary and secondary schools in the United States. School law, or education law, as a field of study is a generic term covering a wide range of legal subject matter including the basic fields of contracts, property, torts, constitutional law, and other areas of law that directly affect the educational and administrative processes of the educational system. Due to the breadth of the subject matter involved, it is necessary for the school law student to be versed in certain fundamental concepts of the American legal system and to be able to apply this knowledge to situations that daily affect school operation.
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The Nature of Public School Law
Because a public school is a governmental agency, its operation is circumscribed by precedents of public administrative law supplemented by those legal and historical traditions surrounding an educational organization that is state established, yet locally administered. In this setting, legal and educational structural issues that define the powers to operate, control, and manage the schools must be considered. In analyzing the American educational system, and comparing it to central state systems of education in foreign countries, one is struck by the diversity of authority under which the American public schools are governed. As a federal and not a national system, the U.S. government comprises a union of states united under one central government. The particular form of American federalism creates a unique educational system that is governed by laws of 50 states, with component parts amounting to several thousand local school district operating units. Through all of this organizational multiformity and, indeed, complexity runs the basis for justice on which the entire educational and legal systems are founded. The fundamental principles of legal control are those generally prescribed by our constitutional system, from which the basic organic law of the land emanates: the written constitutions of
the 50 states and the federal government. Constitutions at both levels of government are basic because the positive power to create public educational systems is assumed by state constitutions, and provisions of both the state and federal constitutions serve as restraints to protect the people from the unwarranted denial of basic constitutional rights and freedoms.
THE CONCEPT OF JUSTICE Justice embraces three elements. The first element has to do with one’s relations and dealings with other persons; it is ‘inter-subjective’ or interpersonal. There is a question of justice and injustice only where there is a plurality of individuals and some practical question concerning their situation and/or interactions vis-à-vis each other. The second element in the relevant concept of justice is that of duty, of what is owed (debitum) or due to another, and correspondingly of what that other person has a right to (viz. roughly) twhat is his ‘own’ or at least his ‘due’ by right. The third element in the relevant concept of justice can be called equality. . . . proportionality, or . . . equilibrium or balance. —John Finnis
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Sources of Law
The power of operation of the public educational system, therefore, originates with a constitutional delegation to the legislature to provide for a system of education. With legislative enactments forming the foundation for public school law, it then becomes the role of the courts to interpret the will of the legislature. The combination of constitutions, statutes, and judicial decisions (case law) and administrative law forms the legal structure on which the public schools are based.
SOURCES OF THE LAW 1. 2. 3. 4.
Constitutions (State and federal) Statutes (State and federal) Judicial Decisions (State and federal) Administrative Law (Agencies of government; federal, state and local)
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Sources of Law
CONSTITUTIONS A written constitution is a body of precepts that provides a framework of law within which orderly governmental processes can operate. An eminent English judge, Tom Bingham, in his book Rule of Law, noted the worldwide importance of the U.S. Constitution: The Constitution of the United States was a crucial staging-post in the history of the rule of law. . . . [T]he U.S. Constitution was groundbreaking in its enlightened attempt to create a strong and effective central government while at the same time preserving the autonomy of the individual states and . . . preserving the fundamental rights of the individual. . . .1
No one . . . would pay attention to a constitution if everyone thought it had been put together by a tribe of monkeys with quills. —Richard S. Kay The federal and state constitutions of this country are characterized by their provisions for securing fundamental liberty, property, and political rights. One of the basic principles embodied in a constitution is the provision for authorized modification of the document. Experience in human and governmental relations teaches that to be effective a constitution must be flexible and provide for systematic change processes. The U.S. Constitution expressly provides in Article V a process for proposing amendments by a two-thirds vote of each house of Congress or by a convention that shall be called by Congress upon application by two-thirds of the state legislatures. Amendments must be ratified by the legislatures of three-fourths of the states or by conventions in three-fourths of the states. [T]he purpose of a constitution is to lay down fixed rules that can affect human conduct and thereby keep government in good order. Constitutionalism implements the rule of law: It brings about predictability and security in the relations of individuals to the government by defining in advance the powers and limits of that government. —Larry Alexander
3
Another precept reflected in the state and federal constitutions of this country is the importance of a government of separated powers. Although all state constitutions do not expressly provide for a separation of all legislative, executive, and judicial departments, in actual practice, all states have governments of separated powers. No requirement in the federal constitution exists that the states have constitutions that require a separation of powers. Theoretically, if a state so desired, it could clothe an officer or an agency with not only executive but also plenary judicial and legislative powers. However, as indicated previously, this is not the case, and all states have governments with separate branches, each of which exercises checks and balance on the powers of other branches. All state constitutions provide for a system of free public schools. Such provisions range from very specific educational requirements to broad mandates that the legislature of the state shall provide funds for the support of a public school system.
STATUTES A statute is an act of government expressing legislative will and constituting a law of the state. Statute is a word derived from the Latin term statutum, which means “it is decided.” Statutes, in our American form of government, are the most viable and effective means of making new law or changing old law. Statutes enacted at the state or federal level may either follow custom or forge ahead and establish new laws that shape the future. Statutes in this country are subject to review by the judiciary to determine their constitutionality. This procedure is different from that used in England, where the legislature has ultimate authority and there are no means by which the courts can hold legislation unconstitutional. This is true primarily because in England the constitution, for the most part, is unwritten, and the legislature, Parliament, may amend the constitution when it so desires. The U.S. public schools are governed by statutes enacted by state legislatures. The schools have no inherent powers, and the authority to operate them must be found in either the express or implied terms of statutes. The specificity of statutes governing the operation of public schools varies from state to state and from subject to subject. As an example, one
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Chapter 1
The Legal System
state may generally require appropriate measures to be followed in budgeting and accounting for public funds, whereas in another state the legislature may actually specify each line item of the budget for school systems and prescribe intricate details for fund accounting. Rules and regulations of both state and local boards of education fall within the category of statutory sources of school law. As a general rule, the legislature cannot delegate its legislative powers to govern the schools to a subordinate agency or official. Boards of education must, in devising rules and regulations for the administration of the schools, do so within the limits defined by the legislature and cannot exercise legislative authority. However, the legislature may confer, expressly or impliedly, administrative duties upon an agency or official through statute. These administrative powers must be well defined and “canalized” within definitely circumscribed channels.
JUDICIAL DECISIONS (CASE LAW) The third source of school law derives from judicial opinions or case law. The term case law is used to distinguish the rules of law that originate within legislative bodies. The term common law, in its broadest sense, may be used to contrast the entire system of Anglo-American law with the law of non–English-speaking countries that sometimes are referred to as having systems of civil law. Civil law is a system of statutes which does not rely on case law precedent. Not all case law can be categorized as common law. Case law rendered by courts in interpreting the meanings of statutes or constitutions are not, per se, common law. Common law originated in England, where judicial precedents from various parts of the country became common to the entire country. This customary law eventually crystallized into legal principles that were applied and used as precedent throughout England—common to the entire country. Common Law. Thus, “common law is a body of general rules prescribing social conduct” 2 that has five recognizable attributes. First, it is a general, overarching precedent that applies throughout the state or country. Second, the general rules are applied and enforced by the courts without necessarily involving either the
executive or legislative branches of government. Third, the common law enunciates principles derived from actual legal controversies. Fourth, the common law emanates from use of the jury system to ascertain the facts to which the law is applicable. Fifth, the common law is premised upon the rule of law or doctrine of supremacy of law—that is, the rule of law and not of man, the rule of established principles and not acts of caprice or arbitrariness.3 Hogue says that these five principles prescribe a positive definition: “[T]he common law is a body of general rules prescribing social conduct, enforced by ordinary . . . courts, and characterized by the development of its own principles in actual legal controversies, by the procedure of trial by jury, and by the doctrine of the supremacy of law.”4 The subject matter most prevalent in common law involves torts, contracts, property, and trusts. Lawrence M. Friedman in his popular work, A History of American Law, describes what he calls the “‘liability explosion’: the vast increase in liability in tort, mostly for personal injuries.”5 He attributes most of this explosion in common-law tort to the invention of the automobile and all the injuries that emanate from that one source. Automobiles cannot take all the blame. The commonlaw tort explosion has resulted from other sources of injury as well: product liability, medical malpractice, and other professional malpractice suits against lawyers, accountants, financial institutions, etc., as well as the full panoply of toxic torts, best represented by the asbestos litigation, and other injuries both physical and mental, limited only by the imagination and ingenuity of knowledgeable lawyers. Since common law, including torts, is so diverse, by and large emanating from many state courts, the American Law Institute (ALI) began in 1923 to publish Restatements of Law, researched and written by committees of legal experts, judges, lawyers, and professors. The Restatements seek to enunciate “an orderly restatement of the general common law of the United States, including in that term not only the law developed solely by judicial decision, but also the law that has grown from the application by the courts of statutes that were generally enacted and were in force for many years.”6 These Restatements are
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Political Neutrality and the Courts
considered to be authoritative sources by the courts.
ADMINISTRATIVE LAW A fourth source of law is constituted of those rules and regulations promulgated by administrative agencies of government at the local, state, and federal levels. As we discuss later in this book, administrative agencies are a part of the executive branch of government. They, however, possess aspects of all three branches of government. Their rule-making function is quasi-legislative; their administrative function is that of the executive branch, and their enforcement of these rules is quasi-judicial in nature. State education agencies, usually headed by a state superintendent of public instruction or a commissioner of education, are agencies that form, implement, and adjudicate matters of administrative law for the public schools. At the local level the school board formulates policy and enacts regulations that are administered by a school superintendent, and the school board sets as an administrative tribunal when conflicts arise regarding the regulations or their implementation. At the federal level, the U.S. Department of Education is the main administrative agency that promulgates regulations affecting the public schools. All of such regulations must be authorized and approved by Congress and must be within the scope and intent of acts of Congress. For example, the myriad regulations promulgated by the U.S. Department of Education constitute a large body of administrative law to which state and local education agencies must adhere if they are to benefit from the largesse of federal educational funding. The administrative structure at the federal level, which oversees the use of federal funds for education, differs from the administrative law agencies at the state level in that the U.S. Department of Education regulations are not promulgated by a board but rather by the U.S. secretary of education. Moreover, the secretary is empowered by Congress to administer the laws of Congress and the regulations made pursuant thereto and to render judgments as to violations. However, not all federal agencies act only through the singularity of a secretary or one appointed official. For example, some
5
agencies are governed by appointed boards authorized by legislation such as the National Labor Relations Act, under which the National Labor Relations Board not only enacts agency policy, but oversees its administration and sits as a tribunal to hear cases involving labor disputes in the private sector.
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Political Neutrality and the Courts
The notion that the judiciary should be above pedestrian politics and factionalism is an ideal that has found only limited success in the United States. Madison was concerned about the detrimental effects of political factions—the danger of factions in securing the public good. 7 The Founders relied to a large extent on two features of the Constitution to mitigate the effects of national factions: first was the reservation of rights to the state governments, and second was the vesting of elections. Unfortunately, the nation was barely out of the starting gates when the conflict between the Federalists and the Republicans materially infected the Supreme Court and its judgments. The great Chief Justice John Marshall was not immune; rather, he was a carrier of the political virus. As an ardent Federalist, he opposed in his decisions virtually everything that the Republicans, led by Thomas Jefferson and James Madison, envisioned for the new nation. Most notably, the decision by Marshall in the seminal 1819 Dartmouth College case,8 that formed the boundaries of contract law and corporate charters, granted the Federalist Party an important victory in national and state politics. Also, politics greatly influenced Marshall’s decision in the structural constitutional law case of Marbury v. Madison.9 In Marbury, Marshall, the Federalist, again check-mated Madison and Jefferson and the Republicans, by upholding the appointments of the “midnight judges” by President Adams. Thus, the politicizing of the judiciary in the United States is of early vintage. Such political influences over the judiciary continue and are possibly even more pronounced today. In his relevant essay on the “rule of law,” Tom Bingham 10 observes that the appointment of U.S. Supreme Court justices is “a matter of acute
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6
Chapter 1
The Legal System
political controversy,” and he points to the highly partisan U.S. Supreme Court decision in Bush v. Gore, 2000, as the ultimate political act where the Court departed from all judicial restraint and effectively appointed the president of the United States. The Supreme Court, in supporting Bush, ignored precedents and exhibited little concern for the vaunted ideal of the “rule of law.” Bingham buttressed his argument by pointing to Justice Brandeis’s involvement with Democrat President Woodrow Wilson’s legislative program, Justice Frankfurter’s strategy sessions with President Roosevelt regarding the New Deal legislation, and Justice Fortas’s counsel to President Johnson regarding the Vietnam War, steel price increases, and labor union issues.11 The departures from the rule of law in favor of political considerations were notably illustrated in the U.S. Supreme Court 2010 decision, Citizens United v. Federal Election Commission,12 that disregarded earlier precedents, and upheld, as a corporate speech right, the film Hillary: The Movie, labeled by the New York Times to be a “90-minute stew of political commentary.”13 The decision dramatically favored the position of the Republican Party, permitting unlimited financing of political campaigns by large corporations.
POLITICS AND THE COURT On the morning of Jefferson’s inauguration, Marshall (whom Jefferson, in a conciliatory move, asked to administer the oath) had written a letter to a friend making clear where his political allegiances rested now that the judiciary was the only branch of government that his party, the Federalists, controlled. “Of the importance of the judiciary at all times but more especially the present, I am very fully impressed and I shall endeavor in the new office (Chief Justice) to which I am called not to disappoint my friends,” he wrote pointedly. Perhaps to put himself into a less partisan frame of mind, he conceded that Jefferson was not as extreme as some of his supporters. “The democrats are divided into speculative theorists and absolute terrorists,” he observed. “With the latter I am not disposed to class Mr. Jefferson.” The letter then broke off so Marshall could administer the oath of office, but he returned after the ceremony to add some wan praise for the
inaugural address he had just witnessed, in which Jefferson declared, “We are all republicans, we are all federalists,” referring to the political principles of majority rule and national union. “It is in the general well judged and conciliatory,” Marshall wrote. “It is in direct terms giving the lie to the violent party declamation which has elected him, but it is strongly characteristic of the general cast of his political theory.” —Jeffrey Rosen
A half century earlier, Robert A. Dahl,14 a respected political scientist from Yale, wrote about the “politics” dilemma expressing the view that the Supreme Court is simply a part of the ordinary partisan political machinery of the nation. He said: “As a political institution, the Court is highly unusual, not least because Americans are not quite willing to accept the fact that it is a political institution and not quite capable of denying it; so that frequently we take both positions at once.”15 Michael Kammen,16 the outstanding constitutional historian at Cornell, however, advances a more positive view of the encroachment of politics into the presumed sanctity of the judiciary. He cites Theodore Roosevelt’s reasoning when, in 1902, he was considering the great jurist Oliver Wendell Holmes, Jr., for appointment to the Supreme Court. Roosevelt asked the influential Henry Cabot Lodge, T. R.’s friend, for his opinion regarding Holmes’s partisanship and whether such would be a deterrent to his reasoning of cases before the Supreme Court. Roosevelt wrote to Lodge saying: “In the ordinary and low sense which we attach to the words ‘partisan’ and ‘politician,’ a judge of the Supreme Court should be neither. But in the higher sense, in the proper sense, he is not in my judgment fitted for the position unless he is a party man, a constructive statesman, constantly keeping in mind his adherence to the principles and policies under which this nation has been built up and in accordance with which it must go on.”17 Of course, Roosevelt’s observations regarding judges are equally applicable to all people in all walks of life, and are particularly expected of public officials, regardless of their political leanings.
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Powers and Functions of Courts
Brooks Adams, writing in 1913, lamented the inadequacy of the politicized courts. He wrote: [Under the American system] the Constitution, or fundamental law, is expounded by judges, and this function, which, in essence, is political, has brought precisely that quality of pressure on the bench which it has been the labor of a hundred generations of our ancestors to remove. On the whole, the result has been not to elevate politics, but to lower the courts toward the political level. . . . In 2010, six of the nine justices on the U.S. Supreme Court were appointed by Republican Party presidents and among the judges on 13 federal circuits, U.S. Courts of Appeals, 59 percent were appointed by Republican presidents.18 Among the federal circuits, only the Ninth has a majority of judges appointed by Democrat presidents. A careful examination of education law decisions reveals a more conservative bent of the federal courts due to the presidencies of Reagan, Bush I, and Bush II, as reflected in opinions regarding school desegregation, separation of church and state, student/teacher equal protection rights and due process interests, the emergence of Eleventh Amendment precedents protecting states from liability, etc. These precedents are discussed in the sections below. Thus, although most persons would, presumably, prefer the sanctity of the rule of law, and would desire political neutrality of the judiciary, the record of practical application of the concept unfortunately finds the political nonpartisanship screen to be porous and highly permeable.
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Powers and Functions of Courts
The question of what powers may be exercised by the judiciary in reviewing decisions or enactments by the other two branches of government is essential to our system of government. The courts have traditionally maintained and enforced the concept of “separation of powers” when confronted with cases involving education. They do not usually question the judgment of either the administrative agencies of the executive branch or the legislative branch. This is true at the federal level as well as the state level.
7
One court, in describing the hesitancy of the courts to interfere with the other two branches of government, said: This reluctance is due, in part, to an awareness of the sometimes awesome responsibility of having to circumscribe the limits of their authority. Even more persuasive is an appreciation of the importance in our system of the concept of separation of powers so that each division of government may function freely within the area of its responsibility. This safeguarding of the separate powers is essential to preserve the balance which has always been regarded as one of the advantages of our system.19
In accordance with this reasoning, the courts presume that legislative or administrative actions were enacted conscientiously with due deliberation and are not arbitrary or capricious.20 When the courts do intervene, they perform three types of judicial functions: (1) settle controversies by applying principles of law to a specific set of facts, (2) construe or interpret enactments of the legislature, and (3) determine the constitutionality of legislative or administrative actions.
APPLYING PRINCIPLES In applying principles of law to factual situations, the court may find the disputants to be school districts, individuals, or both. Although school law cases generally involve the school district itself, they may, in some instances, concern litigation between individuals; for example, a teacher and a student. In many cases, the principles of law governing the situation are vague, and statutory and constitutional guidance are difficult to find. In such instances, the judges must look to judicial precedent for guidance. Cardozo related the process in this manner: Where does the judge find the law he embodies in his judgment? There are times when the source is obvious. The rule that fits the case may be supplied by the constitution or by statute. If that is so, the judge looks no further. The correspondence ascertained his duty is to obey. The constitution overrides a statute, but a statute, if consistent with the constitution, overrides the law of judges. In this sense, judge-made law is secondary and subordinate to the law that is made by legislators. . . . We reach the land of mystery when constitution and statute are silent, and the judge must look to the common law for the rule that fits the case. He is the “living oracle of the law” in Blackstone’s vivid phrase.21
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Chapter 1
The Legal System
INTERPRETING STATUTES
DETERMINING CONSTITUTIONALITY
The second function of the courts, the task of construing and interpreting statutes, is the most common litigation involving public school operation. Because statutes are merely words, to which many definitions and interpretations may be applied, courts may actually affect the meaning of the legislation. Pound conceives of four ways with which legislation may be dealt by the courts once litigation arises:
The functions and responsibilities of the judiciary in determining the constitutionality of legislation were set out early in Marbury v. Madison24 in prescribing the power of the U.S. Supreme Court. This case shaped the American view of the role of the judiciary. Chief Justice Marshall’s landmark opinion stated:
1. They might receive it fully into the body of the law as affording not only a rule to be applied but a principle from which to reason, and hold it, as a later and more direct expression of the general will, of superior authority to judge-made rules on the same general subject; and so reason from it by analogy in preference to them. 2. They might receive it fully into the body of the law to be reasoned from by analogy the same as any other rule of law, regarding it, however, as of equal or coordinate authority in this respect with judge-made rules upon the same general subject. 3. They might refuse to receive it fully into the body of the law and give effect to it directly only; refusing to reason from it by analogy but giving it, nevertheless, a liberal interpretation to cover the whole field it was intended to cover. 4. They might not only refuse to reason from it by analogy and apply it directly only, but also give it a strict and narrow interpretation, holding it down rigidly to those cases it covers expressly.22 The last hypothesis is probably the orthodox, traditional approach; however, the courts today, in interpreting statutes, tend to adhere more and more to the second and third hypotheses. The philosophy of the courts toward statutory interpretation varies not only among judges and courts but also in the content of the legislation being interpreted. The courts are generally more willing to grant implied authority to perform educational programs where large sums of public monies are not involved. For cases in which taxing authority is in question or in which large capital outlay programs are at issue, the courts tend to require very specific and express statutory authority in order for a school board to perform.23
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So, if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case, conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
In determining the constitutionality of statutes, the courts first presume the act to be constitutional and anyone maintaining the contrary must bear the burden of proof. The Florida Supreme Court has related the principle in this manner: “[W]e have held that acts of the legislature carry such a strong presumption of validity that they should be held constitutional if there is any reasonable theory to that end. . . . Moreover, unconstitutionality must appear beyond all reasonable doubt before an act is condemned. . . .”25 If a statute can be interpreted in two ways, one by which it will be constitutional, the courts will adopt the constitutional interpretation.26 With specific regard to the U.S. Supreme Court’s review of legislation, either state or federal, the judicial duty in the eyes of Justice Brandeis was that “[i]t must be evident that the power to declare legislative enactment void is one which the judge, conscious of the fallibility of human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility.”27 Using this basic philosophy, Justice Brandeis, in 1936, set out certain
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Stare Decisis
criteria for judicial review that are still generally referred to today when considering the standing of litigants before the Supreme Court. 1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. 2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. 3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. 4. The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he or she is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by public officials interested only in the performance of their official duty will not be entertained. 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself or herself of its benefits. 7. When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether the construction of the statute is fairly possible by which the question may be avoided.28
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The Purpose of Law An Invitation to Jurisprudence, Harry W. Jones Reprinted with permission: Colum. L. Rev. 1023, 1031–32 (1974).
[F]ive of law’s most viable ends-in-view [are]: Preservation of the public peace and safety, the settlement of individual disputes, the maintenance of security of expectations, the resolution of conflicting social interests, and the channeling of social change. This is no complete inventory of law’s tasks, nor is it a neat set of mutually exclusive teleological pigeon holes. There are manifest overlappings—for example, the resolution of conflicting social interests is one of the ways in which law helps to channel the forces of social change— and some of the law’s ends-in-view can come into collision with others, as when law’s adjustment to social change involves some unavoidable impairment of the security of individual expectations. In law as in ethics, the hardest task is often not the identification of values, but the assignment of priorities when, in a specific problem context, one value cannot be fully served without some sacrifice of another. But even and particularly when values cut across one another, disinterested and informed judgment on legal and social problems requires that each of the competing ends-in-view be understood in its full claim as an aspect or dimension of what law is for: the creation or preservation of a social environment in which, to the degree manageable in a complex and imperfect world, the quality of human life can be spirited, improving and impaired.
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Stare Decisis
Implicit in the concept of common or case law is the reliance on past court decisions that reflect the historical development of legal controversies. Precedents established in past cases form the groundwork for decisions in the future. In the United States, the doctrine of precedent or the rule of stare decisis, “Let the decision stand,” prevails, and past decisions are generally considered to be binding on subsequent cases that have the same or substantially the same factual situations. The rule of stare decisis is rigidly
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Chapter 1
The Legal System
adhered to by lower courts when following decisions by higher courts in the same jurisdiction. Courts can limit the impact of the doctrine of precedent by distinguishing carefully the facts of the case from those of the previous case that established the rule of law. Aside from distinguishing factual situations, courts of last resort can reverse their own previous decisions and change a rule of law that they themselves established. Stare decisis in American law does not constitute the strict adherence to older decisions that is found in English courts. The American rule of today is probably best stated by Justice Brandeis when he said that “stare decisis is usually the wise policy . . . ”29 and by Justice Cardozo, who observed that “I think adherence to precedent should be the rule and not the exception.”30
Nature and Authority of Judicial Precedents, Henry Campbell Black The Law of Judicial Precedents 10–11 (1912).
Not as a classification, but as exhibiting the chief aspects or applications of the doctrine of precedents, the subject might be broadly divided into five branches, in each of which there is to be noted one general rule or governing principle, as follows: First. Inferior courts are absolutely bound to follow the decisions of the courts having appellate or revisory jurisdiction over them. In this aspect, precedents set by the higher courts are imperative in the strictest sense. They are conclusive on the lower courts, and leave to the latter no scope for independent judgment or discretion. Second. The judgments of the highest court in any judicial system—state or national—are binding on all other courts when they deal with matters committed to the peculiar or exclusive jurisdiction of the court making the precedent. Thus, when the U.S. Supreme Court renders a decision construing the federal constitution or an act of Congress, that decision must be accepted by all state courts, as well as the inferior federal courts, as not merely persuasive, but of absolutely conclusive authority. In the same way, when a state supreme court pronounces judgment upon the interpretation of a statute of the state, its decision has imperative
force in the courts of the United States, as well as in the courts of another state. Third. It is the duty of a court of last resort to abide by its own former decisions, and not to depart from or vary them unless entirely satisfied, in the first place, that they were wrongly decided, and, in the second place, that less mischief will result from their overthrow than from their perpetuation. This is the proper application of the maxim, “stare decisis.” Fourth. When a case is presented to any court for which there is no precedent, either in its own former decisions or in the decisions of any court whose rulings, in the particular matter, it is bound to follow, it may consult and be guided by the applicable decisions by any other court, domestic or foreign. In this case, such decisions possess no constraining force, but should be accorded such a measure of weight and influence as they may be intrinsically entitled to receive, the duty of the court being to conform its decision to what is called the “general current of authority” or the “preponderance of authority,” if such a standard can be ascertained to exist with reference to the particular question involved. Fifth. On the principle of judicial comity, a court that is entirely free to exercise its independent judgment upon the matter at issue, and under no legal obligation to follow the decision of another court on the same question, will nevertheless accept and conform to that decision, as a correct statement of the law, when such a course is necessary to secure the harmonious and consistent administration of the law or to avoid unseemly conflicts of judicial authority. But comity does not require any court to do violence to its own settled convictions as to what the law is.
Rule of Law 1 Commentaries on the Laws of England, William Blackstone, Vol. I, pp. 69–70.
For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in
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How to Read a Case
that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgment; but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And, hence, it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded.
THE RULE OF LAW The rule of law has two basic relevant meanings: First, “that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” Second, “no man is above the law . . . every man, whatever his rank or condition, is subject to the ordinary law . . . and amenable to the jurisdiction of the ordinary tribunals.” —A. V. Dicey
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How to Read a Case
Karl N. Llewellyn,31 late professor of law at the University of Chicago, in his work The Bramble Bush, probably offers the best and most concise
11
explanation of what to look for when reading case law. Since the case method is employed in presenting most of the materials in this book, it seems appropriate to quote a portion of Llewellyn’s comments on reading and analyzing judicial opinions. The first thing to do with an opinion, then, is read it. The next thing is to get clear the actual decision, the judgment rendered. Who won? The plaintiff or defendant? And watch your step here. You are after in first instance the plaintiff and defendant below, in the trial court. In order to follow through what happened you must therefore first know the outcome below; else you do not see what was appealed from, nor by whom. You now follow through in order to see exactly what further judgment has been rendered on appeal. The stage is then cleared of form—although of course you do not yet know all that these forms mean, that they imply. You can turn now to what you peculiarly do know. Given the actual judgments below and above as your indispensable framework—what has the case decided, and what can you derive from it as to what will be decided later? You will be looking, in the opinion, or in the preliminary matter plus the opinion, for the following: a statement of the facts the court assumes; a statement of the precise way the question has come before the court—which includes what the plaintiff wanted below, and what the defendant did about it, the judgment below, and what the trial court did that is complained of; then the outcome on appeal, the judgment; and finally the reasons this court gives for doing what it did. This does not look so bad. But it is much worse than it looks. For all our cases are decided, all our opinions are written, all our predictions, all our arguments are made, on certain four assumptions. . . . (1) The court must decide the dispute that is before it. It cannot refuse because the job is hard, or dubious, or dangerous. (2) The court can decide only the particular dispute which is before it. When it speaks to that question it speaks ex cathedra, with authority, with finality, with an almost magic power. When it speaks to the question before it, it announces law, and if what it announces is new, it legislates, it makes the law. But when it speaks to any other question at all, it says mere words, which no man needs to follow. Are such words worthless? They are not. We know them as judicial dicta; when they are wholly off the point at issue we call them obiter dicta—words dropped along the road, wayside remarks. Yet even wayside remarks shed light on the remarker. They may be very useful in the future to him, or to us. But he will not feel bound to them, as
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Chapter 1
The Legal System
to his ex cathedra utterance. They came not hallowed by a Delphic frenzy. He may be slow to change them; but not so slow as in the other case. (3) The court can decide the particular dispute only according to a general rule which covers a whole class of like disputes. Our legal theory does not admit of single decisions standing on their own. If judges are free, are indeed forced, to decide new cases for which there is no rule, they must at least make a new rule as they decide. So far, so good. But how wide or how narrow, is the general rule in this particular case? That is a troublesome matter. The practice of our case law, however, is I think, fairly stated thus: It pays to be suspicious of general rules which look too wide; it pays to go slow in feeling certain that a wide rule has been laid down at all, or that, if seemingly laid down, it will be followed. And there is a fourth accepted canon: (4) Everything, everything, everything, big or small, a judge may say in an opinion, is to be read with primary reference to the particular dispute, the particular question before him. You are not to think that the words mean what they might if they stood alone. You are to have your eye on the case in hand, and to learn how to interpret all that has been said merely as a reason for deciding that case that way. . .
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Case or Controversy
Article III of the U.S. Constitution limits the power of the federal judiciary to “decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”32 The federal judicial branch may settle conflicts that involve only actual “cases” and “controversies.”33 The determination of what constitutes a case and controversy is left to the judgment of the Supreme Court. The U.S. courts do not sit to decide questions of law presented in a vacuum, but only to decide such questions as arise in a case or controversy.34 The two terms can be used interchangeably for we are authoritatively told that a controversy, if distinguishable at all from a case, is distinguishable only in that it is a less comprehensive term and includes only suits of a civil nature.35 Whether it is a case or controversy—justiciable in the federal courts—was defined by Chief Justice Hughes in a classic and cryptic statement. He said: “A ‘controversy’ in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical character;
from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”36 Later, Chief Justice Warren said of the case or controversy requirement that “those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words ‘cases’ and ‘controversies’ are two complementary but somewhat different limitations. In part, those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case and controversy doctrine.”37 It should also be noted that the limitation to “case or controversy” is intimately related to the doctrine of judicial review. In Marbury v. Madison,38 it was central to Marshall’s argument that a court has power to declare a statute unconstitutional only as a consequence of the power of the court to decide a case properly before it. There may be unconstitutional statutes, but unless they are involved in a case properly susceptible of judicial determination, the courts have no power to pronounce that they are unconstitutional. The reluctance of courts to pass on constitutional issues, unless absolutely necessary, has led to a rigorous set of rules as to what constitutes a justiciable case or controversy.
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The American Court System
In our federal form of government, it is necessary to have a dual judicial system: state and federal. Cases involving public schools may be litigated at either level, and although most actions involve nonfederal questions and are decided by
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The American Court System
state courts, recent years have brought on a substantial increase in the number of school case decisions handed down by federal courts.
STATE COURTS State constitutions generally prescribe the powers and the jurisdiction of the primary or main state courts. The legislature, through power granted in the constitution, provides for the specific operation of the constitutional courts, and it may create new and additional courts. State courts may be called upon to rule on the constitutionality of either state or federal laws, and their rulings are final unless there is a conflict with federal judicial precedents. State courts are the final interpreters of state constitutional law and state statutes.39 The importance of state supreme courts in the judicial system is noted by Nowak and Rotunda:
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highest court. A mandatory case refers to an “appeal of right,” which the court must hear and decide on the merits.41 Discretionary jurisdiction of appellate courts refers to cases in which a party must file a petition to seek redress of the court. The court, then, must exercise its discretion in accepting or rejecting the case.42 Intermediate Appellate Courts
State courts can be classified into four categories: courts of last resort, intermediate appellate courts, courts of general jurisdiction, and courts of limited jurisdiction.
These courts have been established in 38 states to hear appeals from trial courts and administrative agencies as specified by state statute.43 The role of these appellate courts is to review specific trial court proceedings to correct errors in the application of law and procedure44 and to serve to extend and expand the law for the good of the community. Both of these generic purposes are held in common by both the intermediate appellate courts and the courts of last resort. The intermediate appellate courts hear both mandatory and discretionary cases. In the two-tier appellate state systems, a pattern exists that indicates that the highest court, the court of last resort, tends to control the docket by accepting more discretionary appeals than the intermediate appellate court.45 Today, as appellate caseloads increase, there is a trend toward creation of new intermediate appellate courts. During the last 30 years, 25 states created two-tier systems establishing intermediate appellate courts.46
Courts of Last Resort
Courts of General Jurisdiction
These courts are found at the top of the judicial hierarchy in each state and are established by the state constitution. In 43 states, the official name of this highest court is the Supreme Court. The exceptions are Maryland (Court of Appeals), Maine (Supreme Judicial Court sitting as Law Court), Massachusetts (Supreme Judicial Court), New York (Court of Appeals), and West Virginia (Supreme Court of Appeals). Oklahoma and Texas are unique because they have dual-headed systems that have, respectively, a Supreme Court and a Court of Criminal Appeals as the courts of last resort. Except for Texas and Oklahoma, where civil and criminal cases are separated, all of the courts of last resort have mandatory and discretionary jurisdiction for civil, criminal, and administrative cases. State statute prescribes where types of cases must be taken and which ones may be heard at the discretion of the
These courts are major courts of record from which there exists a right of appeal to the intermediate appellate court or, in some cases, to the court of last resort. The jurisdiction of these courts covers all cases except those reserved for limited or special jurisdiction. Courts of general jurisdiction have court filings in broad areas of civil, criminal, juvenile, and traffic cases, and these are heard by judges in the state court systems throughout the country.47 These courts hold a variety of names, including common circuit, chancery, district, superior, and juvenile.
The supreme court of a state is truly the highest court in terms of this body of law; it is not a “lower court,” even relating to the Supreme Court of the United States. It must follow the Supreme Court’s ruling on the meaning of the Constitution of the United States or federal law, but it is free to interpret state laws or the state constitution in any way that does not violate principles of federal law.40
Courts of Limited Jurisdiction
These courts are lower trial courts with specified jurisdiction, named municipal, district justice, justice of the peace, small claims, traffic, and probate. About three-fourths of all the cases in these courts deal with traffic offenses. Presently,
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14
Chapter 1
FIGURE 1.1
The Legal System
The United States Court System SUPREME COURT OF THE UNITED STATES
U.S. Tax Court and various Administrative Agencies Federal Trade Comm. National Labor Relations Board Federal Power Comm. Etc.
Court of Customs and Patent Appeals
U.S. Courts of Appeals circuits
Court of Claims
U.S. District Courts with Federal and Local Jurisdiction
Canal Zone Guam Virgin Islands
there are over 13,000 courts of limited jurisdiction in the 50 states.
FEDERAL COURTS Article III of the U.S. Constitution provides in part that: “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.”48 Pursuant to this provision, Congress has created a network of courts. Today, the U.S. federal court system includes district courts, circuit courts of appeals, special federal courts, and the Supreme Court. Each state has at least one district court, and usually more than two; California, Texas, and New York have four each, with a total of 94 district courts in the nation. Cases litigated before federal district courts may largely be classified into two types: (1) cases between citizens of different states and (2) cases involving litigation of federal statutes or the federal constitution. Cases before district courts are usually presided over by one judge. Decisions of district courts may be appealed to the federal circuit courts of appeals and, in some instances, directly to the U.S. Supreme Court. The 13 circuit courts of appeals include: one for the District of Columbia, one for all federal districts, and 11 for numbered circuits (see Figures 1.1, 1.2, and 1.3).
U.S. District Courts with Federal Jurisdiction Only
Districts in 50 States Puerto Rico District of Columbia
Customs Court
Appeals from State Court in 50 States, from the Supreme Court of Puerto Rico and the District of Columbia Court of Appeals
In addition, federal courts have been established by the Congress to handle special problems or to cover special jurisdictions. These courts are the courts of the District of Columbia, and the Court of Claims, the Tax Court, the FIGURE 1.2 General Structure of State Court Systems Court of Last Resort (Usually Supreme Court)
Intermediate Appellate Court (Usually Court of Appeals)
Court of General Jurisdiction (Usually Circuit, Chancery, District, Superior, Juvenile Courts)
Court of Limited Jurisdiction (Usually Municipal, Justice of Peace, County, Probate, Magistrate, Small-Claims Courts)
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ALASKA
CALIFORNIA
NEVADA
9 UTAH
GUAM
NEW MEXICO
10
COLORADO
Denver
WYOMING
HAWAII
NORTHERN MARIANA ISLANDS
9
ARIZONA
IDAHO
MONTANA
TEXAS
8
ARKANSAS
MISSOURI
6
Cincinnati
OHIO
ALABAMA
TENNESSEE
11
4
3
Richmond
VA
DC
Philadelphia
PA
2 NY
SOUTH CAROLINA
NORTH CAROLINA
W VA
GEORGIA
Atlanta
KENTUCKY
INDIANA
H
New Orleans
SIP SIS MIS
7
PI
I C
ILLINOIS
Chicago
LOUISIANA
5
M
WISCONSIN
St. Louis
IOWA
MINNESOTA
OKLAHOMA
KANSAS
NEBRASKA
SOUTH DAKOTA
NORTH DAKOTA
A N
9
OREGON
WASHINGTON
The Thirteen Federal Judicial Circuits
I G
San Francisco
FIGURE 1.3
MD
RI
D.C. CIRCUIT
3
VIRGIN ISLANDS
PUERTO RICO
1
Washington, D.C.
FEDERAL CIRCUIT
Washington, D.C.
Boston
New York
CONN
DEL
NJ
NH
MA
VT
1 MAINE
The American Court System
15
FL OR A ID
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Chapter 1
The Legal System
Customs Courts, the Court of Patent Appeals, the Emergency Court of Appeals, and the appeals courts for the U.S. territories. The U.S. Supreme Court is the highest court in the land, beyond which there is no redress. Cases may be brought before the Supreme Court by appeal, writ of certiorari, or through the original jurisdiction of the court. Most school cases that go to the Supreme Court are taken on writs of certiorari, certiorari being an original action whereby a case is removed from an inferior to a superior court for trial. Cases may be taken to the Supreme Court from state courts by writ of certiorari where a state statute or federal statute is questioned as to its validity under the federal Constitution or where any title, right, privilege, or immunity is claimed under the Constitution. Since most school law cases fall within this category, the writ of certiorari is the most common means of getting a case before the Supreme Court.
Vertical Judicial Federalism: The Legal Context Reprinted with permission: G. Alan Tarr and Mary Cornelia Aldis Porter, State Supreme Courts in State and Nation (New Haven and London: Yale University Press, 1988), pp. 5–13.
Federal law is extremely influential in structuring the relations between state supreme courts and federal courts. First of all, it defines the jurisdiction of the federal courts. For although Article III of the United States Constitution grants the federal judicial power to the national government, it does not create a separate system of federal courts (save for the U.S. Supreme Court), leaving Congress free to establish inferior federal courts to assign them the jurisdiction it deems appropriate. Historically Congress has not vested in the courts it created the full range of judicial power that might be assigned to them. Prior to 1875, for example, the federal district courts did not have general original jurisdiction in cases raising federal questions; that is, cases arising under the Constitution, laws, and treaties of the United States. And although the federal judicial power extends to all civil cases between citizens
of different states (the so-called diversity-ofcitizenship jurisdiction), the Judiciary Act of 1789 permitted initiation of such suits in federal courts only when the amount in dispute exceeded a specified minimum amount in order to prevent citizens from being summoned long distances to defend small claims. Furthermore, in conferring diversity jurisdiction on federal courts, Congress has also determined what restrictions shall be placed on the removal of a suit from a state court to a federal district court. Lastly, it is Congress alone that decides whether federal jurisdiction is to be exclusive, thereby precluding initiation of actions in state court, or concurrent. By determining what sorts of cases may be initiated in federal courts and what sorts may not be initiated in state courts, federal law does more than affect the business of federal and state trial courts. Since state supreme courts serve as appellate tribunals within state judicial systems, the mix of cases they receive is vitally affected by the mix of cases at the trial level. Perhaps not surprisingly, then, comparative analysis of the dockets of federal courts of appeals and state supreme courts reveals major differences in the sorts of issues each addresses. Generally speaking, state supreme courts are much more likely to address issues of state law, and federal courts to address issues of federal law, especially federal statutory law. In more substantive terms, state supreme courts issue many more rulings involving tort law, family law and estates, and real property than do federal courts of appeals. On the other hand, federal appellate courts confront public law issues much more frequently— indeed, they compose the single largest category of business for those courts. Despite these differences, each system of courts may have occasion to rule on issues of both federal and state law. And since federal constitutional or statutory claims may be advanced in a state proceeding, a state court may need to resolve issues of both state and federal law in reaching its decisions. Three legal principles govern the exposition and interrelation of these two bodies of law. First is the supremacy of federal law. Under the Supremacy Clause of the United States Constitution, all inconsistencies between federal and state law are to be resolved in favor of the federal law. Indeed, the Constitution expressly mandates that “the Judges in
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Process of Going to Court
every state” are bound by this principle and requires that they take an oath to support the Constitution. Second is the authority of each system of courts to expound its own body of law: state courts must not only give precedence to federal law over state law but also interpret that law in line with the current rulings of the U.S. Supreme Court. As the Mississippi Supreme Court put it in striking down a state law prohibiting the teaching of evolution in public schools, “In determining this question we are constrained to follow the decisions of the Supreme Court of the United States wherein that court has construed similar statutes involving the First Amendment to the Constitution of the United States.”49 Conversely, in interpreting state law, the federal courts are obliged to accept as authoritative the interpretation of the highest court of the state. Third is the so-called autonomy principle; that is, when a case raises issues of both federal and state law, the U.S. Supreme Court will not review a ruling grounded in state law unless the ruling is inconsistent with federal law. . . . [W]hen a state ruling rests on an “independent state ground,” it is immune from review by the U.S. Supreme Court. As this reference to review by the Supreme Court implies, Congress has established mechanisms to ensure the accuracy and faithfulness of state interpretations of federal law. Foremost among these is the provision for review by the Supreme Court of state rulings that present issues of federal constitutional or statutory law. The result, as the Supreme Court has . . . noted, is that “a state [court] may not impose greater restrictions [on state powers] as a matter of federal constitutional law when this court specially refrains from imposing them.”50 This augmentation of the Supreme Court’s authority to supervise the development of federal constitutional law by state courts has become increasingly important in recent years. . . .51 Several observations can be made on the legal context of state supreme courts’ relations with federal courts. First, it is emphatically federal law rather than state law that structures these relationships. Second, whereas the legal principles governing these relationships have not changed over time, the institutional arrangements and procedures designed to vindicate those principles clearly have, affecting both the division of
17
responsibilities between state and federal courts and the avenues for interaction between them. Third, although some changes in the applicable federal statutory law have resulted from a concern for more efficient or rational judicial administration, more frequently they have reflected substantive policy concerns, in particular, a dissatisfaction with or suspicion of rulings by state courts. Efforts during the 1980s to limit the power of federal courts to hear abortion and school prayer cases likewise reflected the injection of policy concerns into jurisdictional issues, although these proposals were, of course, premised on the assumption that state courts would be more likely to rule in line with their sponsors’ wishes.52 Fourth, despite these recent proposals, the trend has been toward an increased availability of federal forums, which—when combined with decisional and statutory limitations on the powers of state courts—has affected the sorts of cases brought to state supreme courts and the finality of their rulings. Thus, congressional expansion of the types of issues that can be litigated in federal court, as exemplified by the extension of the courts’ jurisdiction over federal questions in 1875, has in effect diverted some types of cases to federal forums that might otherwise have been brought to state supreme courts on review. And the expansion of habeas corpus has transformed federal review of state supreme courts’ criminal justice rulings from occasional intervention to a more regularized and consistent oversight.
■
Process of Going to Court
Cases referred to in this book are opinions as rendered by courts of appellate jurisdiction for civil actions in both state and federal courts. In each instance an action was brought in a lower court of original jurisdiction and was appealed by the loser to a higher court for a more favorable determination. The party that appeals is the appellant and the respondent is the appellee. Thus, in the title or style of the case on appeal the first named party, as in Jones v. School District, is the appellant, the loser in the lower court who has appealed. The school district is the appellee. However, we should note that in some states, such as California, for convenience
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Chapter 1
The Legal System
of recordkeeping, the party that originally files the complaint remains the first named party on appeal. In this book, we read what the appellate courts have written in rendering a judgment in a particular dispute. These appeals courts are courts of record, where the record of the lower court is brought forth and argued by the attorneys for each side. Every case in this book began at the lower trial court at either the federal or state level where the aggrieved party brought an action, a trial was conducted, and a judgment rendered on the evidence presented. It may be helpful here to very briefly review how a case gets started, the procedure, the terminology, the pretrial process, and a bit about the trial itself. School law cases nearly always involve civil law rather than criminal law, so the process discussed here in Figure 1.4 is what transpires in civil cases. Beginning the Action
Two types of actions exist: civil and criminal. Civil actions generally occur where an injured party seeks to be compensated for monetary damages, or in equity, where a party seeks an injunction (to prevent an action) or mandamus (to require an action). Civil actions typically involve a wrong against an individual, called a tort, where the burden of proof standard that must be met by the plaintiff is “a preponderance of the evidence.” Criminal actions, which are much less frequent in school law, occur where the police arrest the offender and the state prosecutes FIGURE 1.4
for violation of a criminal statute. Some criminal cases arise when a teacher has been charged with criminal assault and battery, public funds are not properly accounted for, or sexual misconduct occurs. Drugs in today’s schools are also a major criminal issue. The burden of proof standard in a criminal case is “beyond a reasonable doubt.” At the outset of a civil action, a party is aggrieved and believes that resort to the law is necessary to remedy the situation. This person first contacts a lawyer, establishes a lawyer–client relationship, and a determination is made as to whether going to court is actually necessary. If a decision is made to proceed to court, the plaintiff’s attorney must begin by choosing the proper court in which to sue. The attorney must consider three limitations in choosing a court. First, the court must have appropriate “subject-matter jurisdiction” over the action. Normally, this will be the court of general jurisdiction, not a special court of limited jurisdiction such as a traffic court, a domestic relations court, or the like. Second, a court of proper venue must be chosen. Venue refers to geographic location. State statutes define venue in state courts, and federal statutes define venue in federal courts. Third, a court must be chosen that can obtain “personal jurisdiction” over the defendant. Personal jurisdiction is the power of the court to impose a remedy upon the defendant. For example, if a school board is the defendant and statute places it in the jurisdiction of a particular court of general jurisdiction other than where the school board is located, then the plaintiff’s case may be stymied at the outset.
Difference between Civil and Criminal Law Civil Law
Criminal Law
Initiating an Action
Party (plaintiff ) Sues Another Individual or Corporation
Government Prosecutes Offender
Types of Offenses
Tort, Contract, Property, Trusts, Assault and Battery, Constitutional and Statutory Interpretations, etc.
Felonies or Misdemeanors: Treason, Theft, Drugs, Murder, Rape, Assault and Battery, Traffic Violations, etc.
Purpose
Compensation Deterrence
Public Peace and Quiet Punishment Deterrence Rehabilitation
Burden of Proof
Preponderance of Evidence
Beyond a Reasonable Doubt
Redress
Money Damages Equitable Remedies
Capital Punishment Prison Fines
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Process of Going to Court
After the plaintiff and attorney decide to begin a lawsuit and the appropriate court has been selected, the suit may be commenced formally. The party who initiates an action by filing a complaint is called the plaintiff (sometimes called the petitioner). Once the complaint is filed with the appropriate court, a copy (together with a summons) is served on the party named as the defendant. The defendant then has a certain number of days, usually 30, within which he or she must file an answer to the complaint. Failure of the defendant to appear by filing an answer may result in a default judgment. Federal statutes and statutes of many states require the commencement of an action by filing a complaint. The complaint sets forth the allegations that the plaintiff believes justify a judgment against the defendant. Filing of the complaint does not automatically notify the defendant of the action; therefore, the plaintiff must then proceed with a service of process on the defendant. Pleading
The defendant in an action must be notified by service of process and be given information about the nature of the claim. The information is conveyed by a complaint, declaration, or petition. This document is the first pleading in an action. Under federal rules and in most states, the complaint requires the plaintiff to give sufficient factual information to sustain a cause of action and to permit the case to be pled with the necessary specificity. After receiving the complaint and being served with summons, the defendant can respond by denial, introducing an affirmative defense, by seeking independent relief from the plaintiff, or any combination of these responses. Briefly, there are several types of denials, the three most common being a general denial, a specific denial of certain allegations in the complaint, and qualified denials that refer to particular averments within allegations. An affirmative defense may be couched in statutes of limitations (time has expired), res judicata (the matter has already been decided), or assumption of risk (in a tort action, plaintiff assumed the risk of injury). A third response by a defendant may be a counterclaim against the plaintiff. Here the defendant seeks recovery against the plaintiff in a cross-complaint.
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Discovery
Before trial, both parties may resort to discovery as a means of identifying and focusing on the issues in question as revealed by the pleadings. Discovery can record and preserve evidence of witnesses who may not be available for trial, reveal additional facts, and aid in formulating specific issues. Discovery has five basic types. First, a deposition is the testimony of a party or witness taken before trial and recorded. Depositions may be oral or written, and are conducted by the opposing attorneys who are responsible for following the procedural rules of a particular state or federal court. A second type of discovery procedure is for the parties to pose written interrogatories to each other, to which each party must respond with written answers. Discovery can also involve a procedure known as a request for the production of documents and things. Similar to interrogatories, this procedure permits parties to request in writing that the other side provide copies of documents, information, and data that may be used in the trial. A fourth type of discovery procedure is a request for admission that may be utilized by each party asking that the other party admit certain matters of fact or application of law to the facts. A fifth frequently used discovery procedure is a request for a physical or mental examination of one of the parties to the suit. The requesting party must show “good cause” for this procedure, but, of course, such cause may be readily apparent, particularly in personal injury cases where a defendant may seek to discover if there is an actual injury to a plaintiff and if so, the nature and extent of the injury. Disposition without Trial
The court may dispose of a suit before the trial in five basic ways: (1) the judge may enter a default judgment against the defendant if the defendant does not respond to the plaintiff’s summons and complaint; (2) the judge may make a judgment on the pleadings if there is sufficient information in the plaintiff ’s complaint and the defendant’s response; (3) either party may file a motion for summary judgment if there is no dispute as to the facts involved, making a trial unnecessary to establish the facts at issue, and the court then renders a judgment based on this motion and any response; (4) the plaintiff may decide not to pursue the action, in which case
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Chapter 1
20
The Legal System
Outline of Civil Procedure Process for Going to Court
FIGURE 1.5
Plaintiff or Defendant Appeals
Cause of Action Arises
Plaintiff Engages Attorney, Explains Situation
Motion to Alter or Amend; For a New Trial
Attorney Sends Demand Letter to Defendant
Remedy (Damages, Injunction, Restitution)
Attorney Prepares Complaint and Selects the Court
Judgment Plaintiff Files Complaint and Summons
Trial
Defendant Served Summons and Complaint
Settlement Conference or Mediation May Be Ordered
Defendant Responds (Files Answer/ CounterClaim, CrossClaim, or Motion to Dismiss)
Pretrial Conference (If Summary Judgment Not Granted)
Judge Rules on Motion
Motions for Summary Judgment (Plaintiff and/or Defendant)
he or she can move for a voluntary dismissal (an involuntary dismissal also can be obtained against the plaintiff if he or she fails to prosecute the action in a timely manner); and (5) a settlement is reached out of court by the parties (most civil actions can be settled out of court). Trial
The case may be tried before a judge or a jury. If tried before a jury, the first matter of business is to select the members of the jury. After the jury is impaneled, the plaintiff’s attorney makes an opening statement. The defendant’s attorney can
Plaintiff and Defendant Discovery (Depositions, Document Requests, Disclosures, etc.)
make an opening statement or reserve it until such time as the defendant’s case is put before the court. The trial then proceeds; the plaintiff bears the burden of proof. Judgment and Remedy
A judgment is rendered as the official decision of the court for or against the plaintiff. Three common types of remedies include: (1) damages, a monetary award to the prevailing party; (2) restitution, which seeks to prevent the defendant from benefiting from the plaintiff’s loss; and (3) coercive remedy, which enjoins a party through
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Finding the Law
the issuance of an injunction—a court order commanding that the losing party either do or cease doing something.
citation of a state court decision can be seen in the chart below.
Appeal
The party that loses may appeal to a higher court. Most states have at least two levels of courts for civil appeals, as the charts in this chapter indicate. In the federal system, trials begin at the federal district court level and may be appealed to the respective federal appellate courts.
■
Finding the Law
The sources of the law emanate from the three branches of government: statutes from the legislative branch, administrative regulations from the executive branch, and court opinions or case law from the judicial branch. All three are subject to constitutions that provide the basic law of both state and federal governments. The law of education presented in this book is primarily case law rendered by appellate courts that primarily interpret the constitutional validity of statutes as enacted by the legislative branch and rules and regulations of administrative agencies. Public schools are, by definition, in the executive branch of government. Decisions of both federal and state courts are located in case reporters housed in law libraries. In the new age of technology, court decisions can be accessed on the Internet through legal websites or official court websites. The primary sources for computerized access are Westlaw and LexisNexis. Each case is reported on a standard format that contains the citation, or legal reference, and the full text of the case as rendered by the court that handed down the decision.
CITATIONS The court’s opinion, as set forth in a case and officially reported, is the primary source of law for purposes of research and citation. The citation contains the case name, parties, somebody versus somebody, and the case reporter name, for example, Supreme Court Reporter or Federal Reporter (circuit court decisions or reporters for state appellate courts). An example of the
21
Case Name Stein v. Ashville City Board of Education
Case Name Stein v. Ashville City Board of Education
Volume Number
State Reporter
First Page
360
N.C.
321
Regional Reporter Volume and First Year of Number Series Page Decision 626
S.E.2d.
263
(2006)
The same case is reported in both a state reporter and a regional reporter. The regional reporters are published by West Publishing Company, St. Paul, a foremost law book publishing company, and are part of the West National Reporter System. In addition, the regional reporters of the West National Reporter System report state appellate cases as well as cases rendered by the federal courts. These include the Supreme Court Reporter for decisions of the U.S. Supreme Court, the Federal Reporter for decisions of the U.S. Circuit Courts of Appeals, and the Federal Supplement for decisions of the federal district courts in each of the federal circuits. In addition, the U.S. Supreme Court publishes its own opinions in the United States Reports, and Lawyer’s Cooperative publishes the Lawyer’s Edition. A U.S. Supreme Court case usually includes all three case reporter citations. For example: Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701 (1972). Some cases may be cited with the case name; a case file number, such as No. 108625; and with a Westlaw (WL) computerized reporter number of 2007 (year) and a long number such as 2046825, indicating the first page in the Westlaw identification. Too, citations both federal and state, hard copy or computerized, will show the designation of the court. A decision by the U.S. Court of Appeals will indicate the number of the federal circuit. For example, the Seventh Circuit case, Trauvetter v. Quick, 916 F.2d 1140 (7th Cir., 1990).
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Chapter 1
The Legal System
Map of the National Reporter System53
FIGURE 1.6
Pacific
North Western
South Western
North Eastern
South Eastern
Southern
Atlantic
WA VT
ND
MT OR
NH ME
MN SD
ID
MA
WI MI
WY IA
NE
NV UT CA
AZ
NY PA
IL CO
OH WV
KS
MO
VA
KY
NC
TN
OK
NM
IN
RI CT NJ DE MD DC
AR
SC MS
AL
GA
LA
TX
FL AK
HI Source: Reprinted with permission of Thomson Reuters, Legal Research Illustrated, J. Myron Jacobstein, Roy M. Mersky, Donald J. Dunn, Copyright 1994 by The Foundation Press, Inc.
Below are the names of the reporters in the West National Reporter System and the states encompassed by each reporter. P.
Pacific Reporter Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nevada, New Mexico, Oklahoma, Oregon, Utah, Washington, Wyoming
S.E.
Southeastern Reporter Georgia, North Carolina, South Carolina, Virginia, West Virginia
S.W.
Southwestern Reporter Arkansas, Kentucky, Missouri, Tennessee, Texas
F.
Federal Reporter The 13 federal judicial circuits courts of appeals decisions.
A.
Atlantic Reporter Connecticut, Delaware, District of Columbia, Maine, Maryland, New Hampshire, New Jersey, Pennsylvania, Rhode Island, Vermont
N.E.
Northeastern Reporter Illinois, Indiana, Massachusetts, New York, Ohio
Fed. Appx.
Federal Appendix Contains unpublished decisions of the U.S. Circuit Courts of Appeal.
N.W.
Northwestern Reporter Iowa, Michigan, Minnesota, Nebraska, North Dakota, South Dakota, Wisconsin
U.S.
United States Reports U.S. Supreme Court Decisions
S.Ct.
Supreme Court Reporter U.S. Supreme Court Decisions
Southern Reporter Alabama, Florida, Louisiana, Mississippi
L.Ed.
Lawyers’ Edition U.S. Supreme Court Decisions
So.
F.Supp. Federal Supplement The 13 federal judicial circuits district court decisions. See: The Judicial System, p. 699, for specific state circuits.
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Finding the Law
SOURCES OF LEGAL MATERIAL Commencing research on an education law topic in a law library involves a number of sources, including but not limited to the following: a) b) c) d) e)
Legal Encyclopedias and Restatements Dictionaries Law Reviews (or Journals) Books on Law Digests
Legal Encyclopedias and Restatements. Legal encyclopedias are helpful to a researcher in framing a topic and delimiting the scope of the research. Two major national legal encyclopedias include: Corpus Juris Secundum (C.J.S.), and the second legal encyclopedia, American Jurisprudence.2d (Second). Both encyclopedias are designated as “second” because their original first editions have now been superseded by a completely new set of volumes. The encyclopedias are in alphabetical order with the law of higher education found under the heading “Colleges and Universities.” Law for primary and secondary education is found under the heading “Schools and School Districts.” C.J.S. discusses the law under the relevant topic and cites case law very extensively with annotations in footnotes. The volumes are updated with pocket supplements. C.J.S. has a multivolume general index that is easily understood by both lawyers and nonlawyers. Am.Jur.2d presents topics a bit more clearly than C.J.S. in that it cites the prevailing precedents in a more direct manner and dispenses with discussions of less relevant case law. Am.Jur.2d is also kept up to date with pocket supplements. The major components of Am.Jur. are American Law Reports (A.L.R.), American Law Reports Federal (ALR.Fed.), Am.Jur.Forms, Am.Jur. Trials, and Am.Jur.Proof of Facts and Federal Procedure. Am.Jur.2d also has a volume called the Am.Jur. Deskbook that compiles facts and figures that may be relevant to legal researchers. Several states also have state-specific legal encyclopedias that can be accessed in hard copy or electronically via Westlaw or LexisNexis. Restatements. Restatements are authored and published by The American Law Institute (ALI), associated with the American Bar Association
23
(ABA). The American Law Institute was created in 1923 by judges, lawyers, and professors of law. The Restatements were felt to be necessary in order to better enunciate the prevailing precedents of the myriad judicial opinions on subjects of common law such as torts and contracts. For example, the American Law Institute first published the original Restatement of Torts from 1934 to 1939. The Restatement (Second) of Torts is a revision of the original version. In 1992, the Institute undertook a Restatement (Third) of Torts, which updates topics within tort law.54 Dictionaries. Legal dictionaries are much like ordinary dictionaries such as Webster’s, arranged alphabetically by legal words and phrases with definitions for each. The definitions cite case law as authority for the meaning of terms. Several legal dictionaries are available; however, the best known and most widely used are Black’s Law Dictionary and Ballentine’s Law Dictionary. Also, the multivolume set titled Words and Phrases, published by the West Group, is a comprehensive, richly annotated source that provides a valuable insight for research. Entries are alphabetical and the citations cover all jurisdictions and identify each court that defines a term. 55 Too, the online full-text databases of Westlaw and LexisNexis serve as very helpful sources of definitions and reference. Law Reviews and Journals. These sources are called either law reviews or journals and are primarily published by law schools with student editors. The publications have names that identify their academic institutions, such as University of Illinois Law Review and Washington University Law Review or the University of Kentucky Law Journal. Articles in law reviews are profusely footnoted and technically written, as a kind of certification of academic quality. Law review articles are not primary sources of law, but may be cited as persuasive legal authority by courts at all levels. There is, of course, a pecking order of prestige among the law reviews, with the publications at Harvard, Stanford, Yale, Cornell, Michigan, Minnesota, and Virginia always near the top. Articles and comments are indexed by topic and the author ’s name in the Index to Legal Periodicals and Books, published by H. W. Wilson Company. This Index identifies articles as far
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Chapter 1
The Legal System
back as 1908. H. W. Wilson Company also publishes WilsonDisk, a disc version of the Index. The Index to Legal Periodicals is also found online with Westlaw and LexisNexis. Another indexed source is the Current Law Index (CLI) published by Information Access Company (IAC). This source includes books, newspapers, and periodicals under headings developed by the U.S. Library of Congress. The online version of the Current Law Index is titled the Legal Resources Index and is accessible via Westlaw and LexisNexis. Books. Of course, books, more specifically identified in law as hornbooks or casebooks or a combination of the two, are valuable sources of information for research. In addition, there are shorter treatments of law called Nutshells published by West Publishing Company as well as Outlines of the law. Examples of authoritative hornbooks that are valuable for studying constitutional law pertaining to higher education are Constitutional Law, 6th ed., by John E. Nowak and Ronald D. Rotunda, Hornbook Series, WestGroup and Constitutional Law: Principles and Policies, by Erwin Chemerinsky, published by Aspen Law and Business. Nutshells, published by West Publishing Company, are an excellent source of prevailing law regarding many topics that may not be the principal focus of hornbooks or casebooks. For example, the Nutshell titled, The Law of Schools, Teachers and Students, 4th ed., by Kern Alexander and M. David Alexander, published by West Publishing Company, covers key aspects of primary and secondary law. Outlines. Summaries of the law are written specifically for courses in law schools and are utilized by students to aid them in their studies. The most commonly used are Gilbert’s, Emmanuel’s, and Glannon’s, which summarize various legal subjects in a concise and complete fashion. Digests. West Publishing Company, the developer of the National Reporter System, has created what is known as the digest system. The digest system is made possible by a monumental amount of legal analysis. The huge editorial staff at West reads each and every court decision, identifies each of the legal issues, and assigns to each a “headnote.” The headnote is a term of
art that is the substantive part of a classification scheme that assigns and “neatly pigeonholes”56 each point of law to a “key number.” The key number tracks the particular point of law by topic and subtopic from the headnotes of the case in the National Reporter System to the “Key Number Digest,” which is a vast compilation of keyed headnotes that are set out by topic and subtopic, in all the West’s digests. The key number identifies the same headnote from the original case whether the Digest is for a regional reporter, such as the Southern Reporter 2d, or for a particular state’s Digest. In other words, a researcher can follow a particular key number and identify all judicial opinions throughout the 50 states that have included the legal issue of that headnote and key number. Online Legal Research. The two most complete electronic databases for legal research are Westlaw and LexisNexis. Westlaw is owned by the West Group, and LexisNexis is owned by Reed Elsevier. Both services are complete sources for legal research providing all federal and state appellate court cases, federal and state statutes, legal periodicals, indices of legal periodicals, federal and state administrative rules and regulations, and more. Importantly, both systems have online citing sources that update case law and verify the validity of precedents. The Keycite, under Westlaw, flags judicial decisions, enabling the researcher to check the status of a case. A red flag warns that the case is no longer good law. A yellow flag indicates that the case, or points of law within a case, has been given negative treatment by other courts. LexisNexis also has a similar system, known as Shepard’s, which gives the history of each case and informs the researcher of the status of the case. Both Westlaw and LexisNexis cite references and research of the American Law Reports (ALR), along with Restatements, selected law reviews, and various other legal treatises that may have relevance for a particular case.
■
Endnotes
1. Tom Bingham, The Rule of Law (London: Penguin Books, Ltd., 2010), p. 26. 2. Arthur R. Hogue, Origins of the Common Law (Bloomington: Indiana University Press, 1966), p. 178.
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Quoted Box Citations 3. Ibid. 4. Ibid. 5. Lawrence M. Friedman, A History of American Law, 3rd ed. (New York: Simon & Schuster, 2005), p. 516. 6. Wo l k i n , “ R e s t a t e m e n t s o f t h e L a w : O r i g i n , Preparation, Availability,” 21 Ohio B.A. Rept. (1940). See also: Richard A. Mann and Barry S. Roberts, Smith and Roberson’s, Business Law, 12th ed. (Mason, OH: Thomson, South-Western, West, 2003), p. 8. 7. James Madison, “The Federalist No. 10,” The Federalist Papers, November 22, 1787 (New York: Bantam Dell: A division of Random House, Inc., 1982), p. 54. 8. Dartmouth v. Woodward, 4 Wheat (17 U.S.) 518 (1819). See also: Robert Remini, Daniel Webster: The Man and His Time (New York: W.W. Norton & Company, 1997), pp. 134–157. 9. Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803). 10. Tom Bingham, op. cit., pp. 74–95. 11. Ibid. 12. Citizens United v. Federal Election Commission, 558 U.S. 50, 130 S. Ct. 876, (2010). 13. New York Times, January 22, 2010. 14. Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” JPL, 6 (1957), pp. 279, 280–281, 293. In Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Alfred A. Knopf, 1986), pp. 198–200. 15. Ibid. 16. Ibid. 17. Letter, Roosevelt to Lodge, July 10, 1902, in Elting E. Morison, ed., The Letters of Theodore Roosevelt (Cambridge, Mass.: 1951), III, p. 289. Cited in Kammen, Ibid. 18. New York Times, “Week in Review,” Sunday, April 11, 2010, pp. 1, 4; Chicago Tribune, “News Focus,” Sunday, April 11, 2010, p. 4. 19. Ricker v. Board of Education of Millard County School District, 16 Utah 2d 106, 396 P.2d 416 (1964). 20. Latham v. Board of Education of City of Chicago, 31 Ill.2d 178, 201 N.E.2d 111 (1964). 21. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London: Yale University Press, 1962), pp. 18–19. 22. Roscoe Pound, “Common Law and Legislation,” 21 Harvard Law Review, pp. 383, 385 (1908). 23. Marion and McPherson Railway Co. v. Alexander, 63 Kan. 72, 64 P. 978 (1901). 9. 5 U.S. (1 Cranch) 137 (1803). 24. 5 U.S. (1 Cranch) 137 (1803). 25. Bonvento v. Board of Public Instruction of Palm Beach County, 194 So.2d 605 (Fla. 1967). 26. Hobbs v. County of Moore, 267 N.C. 665, 149 S.E.2d 1 (1966). 27. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466 (1936). 28. Ibid. 29. Burnet v. Coronado Oil and Gas Co., 285 U.S. 393, 52 S. Ct. 443 (1932). 30. Ibid., p. 449. 31. K. N. Llewellyn, The Bramble Bush: On Our Law and Its Study (New York: Oceana Publications, 1960), pp. 41–43.
25
32. Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250 (1911). 33. Constitution of the United States, Art. III, § 2. 34. Charles Alan Wright, Law of Federal Courts (St. Paul, Minn.: West Publishing Co., 1970). 35. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 463, 108 A.L.R. 1000 (1937), quoting from In Re Pacific Railway Commission, 32 Fed. 241, 255 (N.D. Cal. 1887). 36. Ibid. 37. Flast v. Cohen, 392 U.S. 83, 94–95, 88 S. Ct. 1942, 1949– 50 (1968). 38. 5 U.S. (1 Cranch) 137 (1803). 39. John E. Nowak and Ronald D. Rotunda, Constitutional Law, 6th ed. (St. Paul, Minn.: West Group, 2000), p. 19. 40. Ibid. 41. State Court Caseload Statistics: Annual Report 1988 (The National Center for State Courts, February 1990), p. 39. 42. Ibid., pp. 38–45. 43. Ibid., p. 18. 44. Ibid. 45. Ibid., pp. 19–20. 46. Ibid. 47. Ibid., p. 5. 48. Constitution of the United States, Art III, § 1. 49. Smith v. State, 242 So.2d 692, 696 (Miss. 1970). 50. Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 1219 (1975). 51. Hans A. Linde, “First Things First: Rediscovering the States’ Bill of Rights,” University of Baltimore Law Review 9 (Spring 1980), p. 389, n. 42. 52. See, e.g., S. 26, 98th Cong., 1st sess. (1983), which would have deprived lower federal courts of jurisdiction in cases involving state or local abortion laws, and S. 88, 98th Cong., 1st sess. (1983), which would have deprived all federal courts, including the U.S. Supreme Court, of jurisdiction in cases involving voluntary prayer in the public schools. 53. Reprinted with permission of Thomson Reuters, Legal Research Illustrated, J. Myron Jacobstein, Roy M. Mersky, Donald J. Dunn, Copyright 1994 by The Foundation Press, Inc., Map of the National Reporter System. 54. James A. Henderson, Jr., Richard N. Pearson, and John A. Siliciano, The Torts Process, 6th ed. (New York: Aspen Publishers, 2003), pp. 11–12. 55. Robert C. Berring and Elizabeth A. Edinger, Finding the Law, 11th ed. (St. Paul, Minn.: West Group, 1999), p. 300. 56. Robert C. Berringer and Elizabeth A. Edinger, Finding the Law, 11th ed. (St. Paul, Minn.: West Group, 1999), p. 95.
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Quoted Box Citations
John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1989), pp. 161–163. Richard S. Kay, “American Constitutionalism,” in Constitutionalism: Philosophical Foundations, ed. Larry
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Chapter 1
The Legal System
Alexander (Cambridge: Cambridge University Press, 2001), p. 30. Larry Alexander, Constitutionalism (Cambridge: Cambridge University Press, 1998), p. 4. Brooks Adams, The Theory of Social Revolutions (New York, 1913), pp. 45–46.
Henry Holt and Company, 2007), p. 27. Rosen cites: Jean Edward Smith, John Marshall: Definer of a Nation (New York: Henry Holt, 1996), p. 291. A. V. Dicey, An Introduction to the Study of the Law of the Constitution, 9th ed., 1885 (London: Macmillan Company, 1945), pp. 188, 193.
Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America (New York: Times Books/
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CHAPTER 2
Historical and Legal Perspective of Public Schools Public education is a duty that society owes to all its citizens. —Condorcet
CHAPTER OUTLINE ■
INTRODUCTION
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AMERICA’S FIRST SCHOOL LAWS
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EDUCATION AS A FUNDAMENTAL RIGHT UNDER STATE CONSTITUTIONS
THE PURITAN INFLUENCE
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JUDICIAL APPROVAL OF COMMON SCHOOLS
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A SYSTEM OF EDUCATION
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EXPANSION OF PUBLIC SCHOOLS
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EDUCATION AND NATURAL LAW
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CHARTER SCHOOLS
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THE STRUGGLE FOR PUBLIC SCHOOLS
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TUITION AND FEES IN PUBLIC SCHOOLS
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DEFINING THE PUBLIC SCHOOLS
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SUMMATION OF CASE LAW
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EDUCATION PROVISIONS OF STATE CONSTITUTIONS
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RESEARCH AIDS
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EDUCATION PROVISIONS AS LIMITATIONS ON LEGISLATURES
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Introduction
manifestation of the people’s conceptualization of the various forms of government and how the governments work. The traditions of the United States clearly enunciate the desire and necessity for maintaining a republican form of government. To this end, universal public education is required. Political philosophy supporting the American form of government leaves no doubt as to
Public education is shaped by the political philosophy of particular governments and the social and cultural traditions of the country in which those governments are found. An unavoidable reciprocity transpires by which the educated people sustain and transform the government. Public school law is an essential
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Chapter 2
Historical and Legal Perspective of Public Schools
the foundational nature of public education. Montesquieu, in his famous The Spirit of Laws published in 1748, observed that among the various types of government, a democracy ensures the greatest virtue, and that to sustain it, the people must be imbued with selflessness, benevolence of attitude to others, and a devotion to country. According to Montesquieu: This virtue may be defined, as the love of the laws and of our country. As this love requires a constant preference of public to private interest, it is the source of all particular virtues. . . . Everything, therefore, depends on establishing this love in a republic, and to inspire, it ought to be the principal business of education. . . . It is in a republican government that the whole power of education is required. . . .1
In 1755, Rousseau wrote that the exercise of citizenship was dependent on education and that “public education . . . is one of the fundamental rules of popular or legitimate government. . . .”2 Of course, Thomas Jefferson, James Madison, and John Adams had read these and other works of the era of the Enlightenment and were influenced by them.3
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According to Horace Mann, it was at the Massachusetts Bay Colony in the seventeenth century that the concept of public universal education was born. Mann said that “it was reserved for ‘the Fathers’ to engraft that great principle in the laws of a country, as a maxim of government, that all the people of a State should be educated by the State.”4 Thus, it would not be accurate to say that the Massachusetts legislation of 1642 and 1647 was solely intended for religious purposes. At that time, there was an emerging feeling that education of youth was essential to the well-being of the state, and that a stable social environment could best be facilitated if all persons were literate. In 1650, Connecticut followed Massachusetts by enacting its own school law following “the old deluder, Satan” law in full and adding new elements whereby failure of “masters of families” to educate their “children and servants” could lead to compulsory removal to other masters until ages 21 for boys and 18 for girls. These new masters would “more strictly look unto and force them to submit unto government, according to the rules of this order, if by fair means and former instructions they will not be drawn unto it.”5
America’s First School Laws
In the early years, predating the founding of the United States, the American colonies had to overcome the accepted pattern of the class-oriented English educational system in which free and universal education was beyond the eye of the most progressive governmental leaders. Children of poor and lower-class families received no education at all or were attached as apprentices to learn a trade and develop manual skills. Even though there was some governmental recognition of the benefits of education, as evidenced by a 1642 statute in Massachusetts in which all parents were charged with seeing to the education of their children, and later by a 1647 statute in which the legislature required certain towns to appoint a teacher and permitted taxes for education, by and large early colonial legislatures tended to ignore education. The law of 1647 was promulgated to teach all to read the Scriptures in order to avoid falling prey to “the old deluder, Satan.”
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The Puritan Influence
The revolution in England that saw the rise to power of Oliver Cromwell and the Puritans introduced a more communitarian outlook that was found wanting under the Tudor and Stuart monarchies. During this era, there were meaningful debates about the value of education and the necessity for governmental involvement in education. Francis Bacon had contributed greatly to this dialogue by urging the scientific scholasticism of the church. In 1641, Jan Amos Comenius, the Moravian exile of Czechoslovakia, internationally known as a preeminent educational thinker, urged that children be taught on realistic lines. Comenius visited England at the invitation of the Puritans to explore the reformation and extension of education. Comenius also called for universal books and universal schools to be implemented by the creation of a system of graded schools in all towns and villages. Even the great John Milton contributed
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A System of Education
to the interchange regarding education with his Of Education, wherein he advanced the idea that “the reforming of education . . . be one of the greatest and noblest designs that can be thought on, and for the want whereof this nation perishes.”6 Unfortunately, Comenius’s idea did not come to fruition, as the conflict between Charles I and Parliament escalated and civil war broke out. The influence of the newfound Puritan interest in education nevertheless had a direct effect on America. In 1656, James Harrison argued that the provision of schools was one of the state’s primary responsibilities.7 Unfortunately, with the restoration of Charles II to the throne after the death of Cromwell, the free flow of ideas regarding universal education subsided and lay virtually dormant for another 200 years. The emphasis on learning in England and the colonies was, however, feeble compared to the continent, where elementary education was made universal and compulsory for both sexes in the duchy of Wurttemberg in 1565, in the Dutch Republic in 1618, and in the duchy of Weimar in 1619. In 1722, Frederick I of Prussia decreed universal public education whereby every parish was required to maintain a school; by 1750 under Frederick II, the Great, Prussia led all of Europe in primary and secondary education.8 England itself did not have any provision of governmental education until 1870, two centuries later. England began to break free of the control of the privileged, who sent their children to the English “public” schools (exclusive private schools), which were operated primarily by the Church of England. It was not until 1880 that local attendance bylaws became compulsory. Even Scotland and France were more egalitarian in their perspective toward education, founding systems of universal education in 1696 and 1698 respectively, even though the French system did not provide for secondary education except in Jesuit schools.
Public education . . . under regulations prescribed by the government, and under magistrates established by the Sovereign, is one of the fundamental rules of popular or legitimate government. If children are brought up in common in the bosom of equality; if they are imbued with the laws of the
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State and the precepts of the general will; if they are taught to respect these above all things; . . . we cannot doubt that they will learn to cherish one another mutually as brothers, to will nothing contrary to the will of society, to substitute the actions of men and citizens for the futile and vain babbling of sophists, and to become in time defenders and fathers of the country of which they will have been so long the children. —Jean-Jacques Rousseau, 1758 The strongest influences of the English system on colonial efforts were mostly negative ones, causing pauper school laws to be created. These laws provided that if indigent parents would declare themselves paupers, their children could be sent to specified private or pay schools for a free education.9 Another vestige of the English system that was used in some colonies was the “rate bill,” which required the parent to pay an amount for each child to supplement inadequate school revenues. The amount assessed was collected from the parents through ordinary tax bills. Such rate bills were still in effect in New York State as late as 1867.10 It was not until the eighteenth-century Enlightenment that a new political philosophy fully developed that conceived of education as essential to the welfare of the state. Until then, the benefits of education were viewed as largely personal; the external value of education to society had not yet been realized. As the colonies began to struggle for independence from England, the concept of free public education gained momentum. Americans became obsessed with freedom, and schools were viewed as the primary means by which freedom could be obtained and maintained.
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A System of Education
During the 1760s and 1770s, the idea developed that there should be a free system of education that would provide for a general diffusion of knowledge, cultivate new learning, and nurture the democratic ideals of government. A “system” of education implied at least three attributes. First, there should be some uniformity of access so that the general population would have the opportunity to acquire some appropriate level of
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Chapter 2
Historical and Legal Perspective of Public Schools
learning. Second, there should be some method by which one could pursue a particular curriculum. Third, there should be some institutional organization whereby a person could progress from primary to secondary to college or university.11 This view was especially well enunciated by Benjamin Rush, who called for the state to be “tied together by one system of education.” “The university,” he said. Will in time furnish masters for the colleges, and colleges will furnish masters for the free schools, while the free schools, in their turns, will supply the colleges and universities with scholars, students and pupils. The same systems of grammar, oratory and philosophy will be taught in every part of the state, and the literary features of Pennsylvania will thus designate one great and equally enlightened family.12
Rush emphasized the need to have a free and uniform system of education that would “render the mass of the people more homogeneous, and thereby fit them more easily for uniform and peaceable government.”13 As Butts observed, “the really important reason for believing in the value of education is that it can be the foundation of freedom. In the first place, a truly democratic society must rest upon the knowledge, intelligence, and wisdom of all people.”14 John Adams observed that nothing is more effective in countering political oppression than the general diffusion of knowledge. Adams wrote that “wherever a general knowledge and sensibility have prevailed among the people, arbitrary government and every kind of oppression have lessened and disappeared in proportion.”15 Americans generally embraced the words of Jefferson, that “a people who mean to be their own Governors must arm themselves with the power which knowledge gives.” More than any other’s, Jefferson’s words redounded the public or common school philosophy that was to sweep the young nation in generations to come. Typical of Jefferson’s position was his letter from Paris in 1786 to his former professor George Wythe, written in support of a bill for general education: This I think by far the most important bill in our whole code is that for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom and happiness. . . . Preach, my dear sir, a crusade against ignorance; establish and improve the
law for educating the common people. Let our countrymen know . . . that the tax which will be paid for this purpose is not more than the thousandth part of what will be paid to kings, priests, and nobles who will rise up among us if we leave the people in ignorance.16
In this new era, universal education was in greater demand, and a discernible shift toward more practical studies was in evidence. The old Latin grammar school began to deteriorate as the major source of learning. After 1750, the enthusiasm for schools based on religious motivations began to die down, and the European traditions for both types and methods of education no longer satisfied the American appetite for knowledge.17 A concept of public education evolved that was uniquely American. During this period, general school laws in older states led the progression of public education, requiring maintenance of schools by towns for a definite term each year, imposing taxation, and generally statutorily sanctioning the public school movement that had evolved over a century and a half.18 A clearly defined role of the state in education, however, had not emerged by 1796 when George Washington, in his farewell address, called for the American people to “[p]romote, then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion, as the structure of a government gives force of public opinion, it is essential that public opinion be enlightened.”19 I consider knowledge to be the soul of a Republic, and as the weak and the wicked are generally in alliance, as much care should be taken to diminish the number of the former as of the latter. Education is the way to do this, and nothing should be left undone to afford all ranks of people the means of obtaining a proper degree of it at a cheap and easy rate. —John Jay, first Chief Justice of the United States To progress from the sporadic and inadequate early general school laws to uniform state systems of free public education was a laborious journey with battles over tax support and sectarianism marking the way. By 1825, it had become commonly recognized that a state system of education would require general and direct
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A System of Education
taxation of a major source of revenue, such as real property. A broad base of taxation became the watchword: “The wealth of the State must educate the children of the State” aptly described the principle of taxation for education that was eventually to emerge.20 Established traditions were not easily overcome, and it was difficult to convince many of the citizens that pauper schools were not the appropriate educational concept, because it was believed the poor and poverty-stricken would benefit from free public schools. A major impetus for education had come from the churches that sought to advance Christianity through knowledge of the Bible. Early states generally recognized and supported these efforts, and several states set aside lands to help church schools. As the new philosophy of public education became entrenched and people started to grasp its benefits, new advocates for state education emerged, and conflict with church leaders developed. The inherent discord between sectarian education and free state education was soon manifested in bitter struggles in several states, the story of which is more fully developed in a later chapter of this book.
Preamble to a Bill for the More General Diffusion of Knowledge (1779) From The Works of Thomas Jefferson, collected and edited by Paul Leicester Ford, Vol. 2, Federal ed. (New York: G.P. Putnam’s Sons, 1904), pp. 414–426, abridged.
Whereas it appeareth that however certain forms of government are better calculated than others to protect individuals in the free exercise of their natural rights, and are at the same time themselves better guarded against degeneracy, yet experience hath shown, that even under the best forms, those entrusted with power have, in time, and by slow operations, perverted it into tyranny; and it is believed that the most effectual means of preventing this would be, to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts, which history exhibiteth, that, possessed thereby of the experience of
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other ages and countries, they may be enabled to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes; and, whereas, it is generally true that people will be happiest whose laws are best, and are best administered, and that laws will be wisely formed, and honestly administered, in proportion as those who form and administer them are wise and honest; whence it becomes expedient for promoting the publick happiness that those persons, whom nature hath endowed with genius and virtue, should be rendered by liberal education worthy to receive, and able to guard the sacred deposit of the rights and liberties of their fellow citizens, and that they should be called to that charge without regard to wealth, birth or other accidental condition or circumstance; but the indigence of the greater number disabling them from so educating, at their own expense, those of their children whom nature hath fitly formed and disposed to become useful instruments for the public, it is better that such should be sought for and educated at the common expence of all, than that the happiness of all should be confided to the weak or wicked. . . .
John Adams and the Importance of Public Education to a Republic
McDuffy v. Secretary of the Executive Office of Education Supreme Judicial Court of Massachusetts, 1993. 415 Mass. 545, 615 N.E.2d 516.
. . . There is substantial evidence that John Adams believed that widespread public education was integral to the very existence of a republican government. In an early and influential essay, Adams described the strong alliances between ignorance and oppression, and between knowledge and liberty. He praised the early English settlers of the colony as deeply learned and deeply committed to liberty. They knew, he said, that nothing countered political oppression more
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Chapter 2
Historical and Legal Perspective of Public Schools
than “knowledge diffused generally through the whole body of the people” and so they set out to “propagate and perpetuate knowledge.” Under their efforts, “the education of all ranks of people was made the care and expense of the public,”. . . . There were, he claimed, however, some persons in Massachusetts “who affect to censure this provision for the education of our youth as a needless expense, and an imposition upon the rich in favor of the poor”; this attitude, Adams continued, was calculated to foster ignorance and, with it, servility. Ignorance and servility were not the lot of the people of Massachusetts, however, because people have natural rights to liberty and to knowledge (they have “a right, from the frame of their nature, to knowledge”). In Massachusetts, the right to liberty was not only a natural right but also the inheritance bequeathed by “our fathers [who] have earned and bought it for us, at the expense of their ease, their estates, their pleasure, and their blood.” Dissertation on the Canon and Feudal Law, in 3 Works of John Adams, 456 (C. F. Adams ed. 1851). To Adams, these rights were interdependent; the former could not be maintained without the latter: “[L]iberty cannot be preserved without a general knowledge among the people.” For this reason, he argued, “the preservation of the means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country.” In 1776, three years before drafting the Constitution of the Commonwealth, Adams wrote and published a pamphlet entitled Thoughts on Government, in which he endeavored to answer the question, “What plan I would advise a colony to pursue, in order to get out of the old government and into a new one?” He offered that “there is no good government but what is republican.” Thoughts on Government, in 4 Works of John Adams, 194 (C.F. Adams ed. 1851). He described the requirements of a Constitution for a republican government. He prescribed a tripartite system of government in which the executive, legislative, and judicial branches are independent of one another, a “militia law,” and provisions for widely dispersed public education: “Laws for the liberal education of youth, especially of the lower class of people, are so extremely wise and useful, that, to a humane and generous mind, no expense for this purpose would be thought extravagant.”
In a subsequent version of this plan, he wrote that “two things are indispensably to be adhered to—one is, some regulation for securing forever an equitable choice of representatives; another is, the education of youth, both in literature and morals.” . . .
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Education and Natural Law
Public school advocates, led by Horace Mann of Massachusetts, 21 preached an educational awakening that was ultimately to form the basis for state systems of public education as we know them today—free secular public schools supported by both local and state general taxation. Mann’s idea of free, public, common, universal education was based on natural law, or the external principles of natural ethics, which requires that “the obligation of the predecessors, and the right of the successors, extend to and embrace the means of such an amount of education as will prepare each individual to perform all the duties which devolve upon him [or her] as a man [or woman] and a citizen.”22 Mann saw education as an “absolute right” or a “natural right.” He said, “We can cite no attributes or purpose of the divine nature, for giving birth to any human being, and then inflicting upon that being the curse of ignorance, of poverty and of vice, with all their attendant calamities.”23
SELF-EVIDENCE OF THE GOOD OF KNOWLEDGE IN NATURAL LAW The basic practical principle that knowledge is good need hardly ever be formulated as the premise for anyone’s actual practical reasoning. . . . Is it not the case that knowledge is really a good, an aspect of authentic human flourishing, and that the principle which expresses its value formulates a real (intelligent) reason for action? It seems clear that such, indeed, is the case, and that there are no sufficient reasons for doubting it to be so. The good of knowledge is self-evident, obviously. It cannot be demonstrated, but equally it needs no demonstration. —John Finnis
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The Struggle for Public Schools
Thus, natural ethics requires the creation and maintenance of public common schools in fulfillment of the state’s obligation to pass on to the succeeding generation all the wealth (knowledge) of the preceding generation. The paramount law of nature requires that children should come into possession of all knowledge of the earlier generation.24 Mann’s view of knowledge as property or wealth was not new. Madison, in the Federalist Papers, had broadly defined property to include “everything to which a man may attach a value and have a right. . . .”25 According to Madison, man has an “equal property in the free use of his facilities,” and his facilities encompass knowledge and learning.26 Similarly to Mann, Madison thought that knowledge was the most important property that man possesses, and each generation has the obligation through education to pass all that property on to succeeding generations. Public schools are the means by which the state ensures the efficient and just transfer of knowledge: “[t]he claim of a child, then, to a portion of the preexistent property begins with the first breath he draws. . . . He is to receive this, not in the form of lands, or of gold and silver, but in the form of knowledge and training to good habits.”27 Thus, Mann believed natural ethics required that the state has an obligation to every child to enact a code of laws establishing free public schools. These laws governing education become “the fundamental law of the State.” The laws of the public common school system are based on three propositions: 1. The successive generations of men taken collectively, constitute one great Commonwealth. 2. The property of this Commonwealth is pledged for the education of all its youth, up to such a point as will save them from poverty and vice, and prepare them for the adequate performance of their social and civil duties. 3. The successive holders of this property are trustees, bound to the faithful execution of their trust, by the most sacred obligations. . . .28 The obligation under these inviolate propositions that form the philosophical foundation for the intergenerational transfer of knowledge require the establishment of a system of public common schools.
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Aligned with Mann in the early nineteenth century was an extraordinary group of dedicated and effective leaders who as “public school men” emerged in several states. They argued against tuition in any shape or form and most importantly they maintained that the term free school should no longer mean merely a place where the poor were given a free education and all others paid tuition. Class distinctions, they argued, would be reduced if all children could be given a free education financed with revenues from taxes levied on everyone.29 This view was reflected in an 1822 report to the Kentucky legislature that advocated free common schools and specifically rejected the pauper school approach: “To be separated from the rest of the community as a distinct and inferior caste, and held out to the world as the objects of public charity, is a degradation too humiliating for the pride of freemen.”30
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The Struggle for Public Schools
The early struggle over public schools was fought with conviction by those on both sides. Cubberley described this era when public, free, nonsectarian, tax-supported schools were first given serious consideration, and there was much public debate between church and private school advocates and public school proponents: The second quarter of the nineteenth century may be said to have witnessed the battle for taxsupported, publicly controlled and directed, and nonsectarian common schools. In 1825 such schools were the distant hope of statesmen and reformers; in 1850 they were becoming an actuality in almost every northern State. The twenty-five years intervening marked a period of public agitation and educational propaganda; of many hard legislative fights; of a struggle to secure desired legislation, and then to hold what had been secured; of many bitter contests with church and private-school interests, which felt that their “vested rights” were being taken from them; and of occasional referenda in which the people were asked, at the next election, to advise the legislature as to what to do. Excepting the battle for the abolition of slavery, perhaps no question has ever been before the American people for settlement which caused so much feeling or aroused such bitter antagonisms. Old friends and business associates parted company over the
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question, lodges were forced to taboo the subject to avoid disruption, ministers and their congregations often quarreled over the question of free schools, and politicians avoided the issue. The friends of free schools were at first commonly regarded as fanatics, dangerous to the State, and the opponents of free schools were considered by them as old-time conservatives or as selfish members of society. . . . Many thought that tax-supported schools would be dangerous for the State, harmful to individual good, and thoroughly undemocratic. There was danger, too, of making education too common. Schools of any kind were, or should be, for the few, and chiefly for those who could afford private instruction. It was argued that education demands a leisure class and that the poor do not have the necessary leisure, that it was not possible for the government to provide a general educational system, and that all such proposals represented the deliberate confiscation of the property of one class in society for the benefit of another class. These and other arguments were well answered some years later by Horace Mann when he stated, at some length, the political and economic “Ground of the Free School System.” Others were afraid that free schools were only a bait, the real purpose being to “religiously traditionalize the children,” and then later unite Church and State. Many did not see the need for schools at all, and many more were in the frame of mind of the practical New England farmer who declared that “the bible and figgers is all I want my boys to know.” Strangely enough, the most vigorous opposition often came from the ignorant, improvident, handto-mouth laborers, who most needed schools, and free schools at that. Often those in favor of taxation were bitterly assailed, and even at times threatened with personal violence. Henry Barnard, who rendered such useful service in awakening Connecticut and Rhode Island, between 1837 and 1845, to the need for better schools, tells us that a member of the Rhode Island legislature told him that a bill providing a small state tax for schools, which he was then advocating, even if passed by the legislature, could not be enforced in Rhode Island at the point of the bayonet.31
Legislatures gradually accepted the idea of free or common schools for all and by statute began to require local school districts to tax themselves to support the public schools. In this early period, it became clear that the states must require rather than permit localities to establish free schools. Local control of education gradually became limited by state constitutions and by actions of state legislatures. Uniformity of
education across states, it was decided, would be better brought to fruition by a degree of central state planning rather than through completely decentralized local school control.32 By 1852, when Massachusetts enacted the first compulsory attendance law, the responsibility for public education was firmly lodged at the state level. The idea of free common schools was well established, but the implementation of the concept developed slowly. It remained for succeeding generations to deal with the pervasive issues of “uniformity” and “equality” which have grown to be as vital to the public school movement as the word freedom was originally.
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Defining the Public Schools
The development of the public school system was accompanied by a continuous string of legal controversies in every state in the nation. As a result, court decisions have, to a great extent, given form and substance to the philosophical base on which the public schools are founded. The courts have made it quite clear that “[p]ublic education is not merely a function of government; it is of government.”33 In legal theory, public schools exist not only to confer benefits on the individual but also, just as importantly, to advance civil society, for which they are necessary, indeed essential.34 Of such importance is the public education function that the state can, under certain conditions, limit parental control in order to advance the commonwealth.35 The rationale for the creation of a system of free public schools has been reiterated many times by the courts, expounding the importance of an educated citizenry for the general welfare of the people and for the protection of the state.36 Recognition of the role and importance of public schools to the well-being of the people and the state was expressed by the Illinois Supreme Court in 1914. This court declared that public schools were created: . . . not out of philanthropic motives, but out of a consideration of the essentials of good government. The conduct and maintenance of schools . . . are not undertaken from philanthropic or charitable motives, but for the protection, safety, and welfare of the citizens of the state in the interest of good government.37
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Defining the Public Schools
Similarly, it was said by the New Hampshire Supreme Court: The primary purpose of the maintenance of the common school system is the promotion of the general intelligence of the people constituting the body politic and thereby to increase the usefulness and efficiency of the citizens, upon which the government of society depends. Free schooling furnished by the state is not so much a right granted to pupils as a duty imposed upon them for the public good. If they do not voluntarily attend the schools provided for them, they may be compelled to do so. While most people regard the public schools as the means of great personal advantage to the pupils, the fact is too often overlooked that they are governmental means of protecting the state from the consequences of an ignorant and incompetent citizenship.38
This philosophy is stated in various ways by the decisions from other state supreme courts. The high court in Tennessee, for example, saw a need for a uniform system of public schools to promote the general welfare “by educating the people, and thus, by providing and securing a higher state of intelligence and morals, conserve the peace, good order, and well-being of society.”39
Education, the Balance-Wheel of Social Machinery, Horace Mann’s Twelfth Report (1848) The Capacities of Our Present School System to Improve the Pecuniary Condition and to Elevate the Intellectual and Moral Character of the Commonwealth
Under the Providence of God, our means of education are the grand machinery by which the “raw material” of human nature can be worked up into inventors and discoverers, into skilled artisans and scientific farmers, into scholars and jurists, into the founders of benevolent institutions, and the great expounders of ethical and theological science. By means of early education, those embryos of talent may be quickened, which will solve the difficult problems of political and economical law; and by them, too, the genius may be kindled which will blaze forth in the Poets of Humanity. . . . Without undervaluing any other human agency, it may be safely affirmed that the Common School, improved
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and energized, as it can easily be, may become the most effective and benignant of all the forces of civilization. Two reasons sustain this position. In the first place, there is universality in its operation, which can be affirmed of no other institution whatever. If administered in the spirit of justice and conciliation, all the rising generation may be brought within the circle of its reformatory and elevating influences. And, in the second place, the materials upon which it operates are so pliant and ductile as to be susceptible of assuming a greater variety of forms than any other earthly work of the Creator. . . . I proceed, then, in endeavoring to show how the true business of the schoolroom connects itself, and becomes identical, with the great interests of society. The former is the infant, immature state of those interests; the latter, their developed, adult state. As “the child is father to the man,” so may the training of the schoolroom expand into the institutions and fortunes of the State. . . . Now, surely, nothing but Universal Education can counter-work this tendency to the domination of capital and the servility of labor. If one class possesses all the wealth and the education, while the residue of society is ignorant and poor, it matters not by what name the relation between them may be called; the latter, in fact and in truth, will be the servile dependents and subjects of the former. But if education be equably diffused, it will draw property after it, by the strongest of all attractions; for such a thing never did happen, and never can happen, as that an intelligent and practical body of men should be permanently poor. . . . Education, then, beyond all other devices of human origin, is the great equalizer of the conditions of men—the balance-wheel of the social machinery. I do not here mean that it so elevates the moral nature as to make men disdain and abhor the oppression of their fellowmen. This idea pertains to another of its attributes. But I mean that it gives each man the independence and the means, by which he can resist the selfishness of other men. . . . For the creation of wealth, then—for the existence of a wealthy people and a wealthy nation—intelligence is the grand condition. The number of improvers will increase, as the intellectual constituency, if I may so call it, increases. in former times, and in most parts of
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the world even at the present day, not one man in a million has ever had such a development of mind, as made it possible for him to become a contributor to art or science. Let this development precede, and contributions, numberless, and of inestimable value, will be sure to follow. That political economy, therefore, which busies itself about capital and labor, supply and demand, interest and rents, favorable and unfavorable balances of trade; but leaves out of account the element of a wide-spread mental development, is nought but stupendous folly. The greatest of all the arts in political economy is to change a consumer into a producer; and the next greatest is to increase the producing power—an end to be directly attained, by increasing his intelligence. . . .
2.
3.
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Education Provisions of State Constitutions
Some state constitutions have very general provisions for education, requiring that a system of education be established and maintained, whereas others are more specific, including adjectives such as free, thorough and efficient, uniform, suitable, or adequate. Such words are “terms of art” that, when interpreted by the courts, circumscribe the basis to which the legislature must conform in establishing a public school system. Although legislatures are given general authority to govern the schools and may go beyond the minimal constitutional mandates, the constitutional prescription must be satisfied. Where legislators fail to fulfill the constitutional requirements, their acts may be invalidated by the courts. The fact that education is specifically set out in state constitutions as a required state function gives education a preferential position relative to other state governmental functions that are not so mentioned. Provisions for the establishment and maintenance of public schools are enunciated differently in the various state constitutions, yet there exist certain underlying principles that are generally common to all. These may be summarized as follows: 1. The legislature is required to bear the responsibility for enactment of laws to govern the public or common schools. This obligation cannot be averted or delegated to other state or local agencies.
4.
5.
Legislatures may provide for local discretion but must ultimately bear the responsibility for the maintenance of a public school system within the context of the wording and meaning of the education provision of the state constitution. The public schools, by and large, are considered to be a cohesive unit: one organization or organic whole whose particular organizational pattern and subparts are within the prerogative of the legislature. The word system, which is used in most constitutions, requires a measure of orderliness and uniformity regardless of the number of local school districts, implies a unitary cohesiveness, and is not intended to create merely a conglomeration of locally independent school agencies. The schools as public entities are to be of the body politic of the state, controlled by the public and governed by the people. Early American experiments, ranging from church and private schools to pauper, rate-bill, and academy schools, quasi-private or semipublic in nature, were rejected as constitutional alternatives to public schools. The various devices to foster control by private interests, reducing public participation and preventing full access by the people, run counter to the ideal of a public school. The nature of the public school is that it be free and common to all, with no charges to limit access. Early attempts to create public schools were hindered by the reluctance of legislatures to tax at a level of sufficiency to operate a completely public system. The idea that education is a family or private concern and should be paid for out of private resources has resulted in imposition of various fees levied on the child’s family; such fees can potentially harm access and are contrary to the philosophical foundation on which public schools are premised. To sustain full participation and access by all the people requires that the schools be financed by all the people through common taxation. The concept of public common schools as a state governmental enterprise requires that tax resources be allocated throughout the state in a manner that will ensure that the quality of a child’s education will not be dependent on private or personal influence or wealth nor on the financial capabilities
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Education Provisions as Limitations on Legislatures
of the locality or political subdivision of the state. State constitutions do not envisage a system of schools with widely variant educational opportunity brought about by either political vicissitude or the vagaries of local fiscal fortune. Each of these principles, to varying degrees, has been emphasized by judicial interpretation of the education provisions in state constitutions. The nomenclature in state constitutions requiring the creation and maintenance of public schools is terminology of art, most of which has a long historical and legal tradition as to usage and intent. These general principles establishing public schools are implicit in the meaning of words such as to “maintain a general, suitable and efficient system of free schools,” as is found in article XIV of the Arkansas Constitution, or “a general uniform and thorough system,” as is included in the Montana Constitution, article XII, § 1. Such wording of education provisions is replete with significant implications for the conduct of education. For example, the New Jersey Supreme Court held that the words “thorough and efficient” defining “system” demanded that the state provide equal educational opportunity for all children of the state.40 These constitutional provisions can be classified in different ways, but one convenient categorization suggests a minimum of three types.41 The first of these can be called the adjective or gloss group, wherein the constitution employs words of amplification such as efficient, uniform, or thorough to specify the qualities of the system required. The second category can simply be called the system group. Here, the state constitution mandates the establishment and maintenance of a system but does not prescribe the type of system other than that it be free, public, or common. An example of this type is the California Constitution, which requires that the state provide for a “system of common schools.” A third category is what Mize calls the cherish group, or the New England category. A better term may be virtue, because in this type of provision the virtues of education are lauded and commended, but there is no positive requirement mandating any particular action by the legislature. In this category, the New Hampshire Constitution is one
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of the most descriptive, stating that “[I]t shall be the duty of the legislators and magistrates in all future periods of the government, to cherish the interests of literature and the sciences, and all seminaries and public schools.” Including New Hampshire, there are at least four states with virtue provisions: Massachusetts, Rhode Island, and Virginia. Three other states that can be classified as both system and virtue states are California, Vermont, and Connecticut. Virginia rests comfortably in all three categories by reason of some rather unique wording in its bill of rights42 that is separate from the education provision of its constitution.43 This provision, Section 15 of the Virginia Bill of Rights, enacted in 1971, taken from Jefferson’s bill for the More General Diffusion of Knowledge, 1779, states: That free government rests, as does all progress, upon the broadest possible diffusion of knowledge, and that the Commonwealth should avail itself of those talents which nature has sown so liberally among its people by assuring the opportunity for their fullest development by an effective system of education throughout the Commonwealth.44
This admonishment to the Virginia legislature of the value of widespread knowledge in concert with the requirement that the people be given “opportunity for their fullest development” combines the rationale of the virtue provisions with the qualitative standards of the adjectival provisions.
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Education Provisions as Limitations on Legislatures
Historically, state courts have seldom intervened to limit legislative prerogative in interpreting the intent of “education provisions” of state constitutions. Education provisions are typically those that place an affirmative constitutional obligation on the legislature to create a school system. The courts have most often followed the philosophy expressed by an Illinois court that refused to substitute its judgment for the legislature’s, saying that “[t]he efficiency and fairness of a state system is for the determination of the legislature.”45 Typically, the courts have not viewed the education provisions of state constitutions as limitations on the legislature.
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The education provisions were not considered to be limitations, but merely elaborations on enabling provisions to be used and defined as the legislature thought necessary. This attitude is expressed by a 1926 Virginia court that said, “While the Constitution of the state provides, in mandatory terms, that the Legislature shall establish and maintain public free schools, there is neither mandate nor inhibition in the provisions as to the regulation thereof. The Legislature, therefore, has the power to enact any legislation in regard to the conduct, control, and regulation of the public free schools, which does not deny to the citizen the constitutional right to enjoy life and liberty, to pursue happiness and to acquire property.”46 Thus, words in a state constitution defining the type of education the people required were not to be interpreted by the courts as limitations on legislative prerogative. The power of the legislature would not generally be questioned unless the legislation transgressed on the more important freedom provisions such as the right to life, liberty, happiness, and property. Constitutions restrict the reach of the state by a proper specification of what it may and may not do. —Richard S. Kay
Lately, however, this view has changed. The courts have become more assertive and have begun to more carefully scrutinize legislation in light of the education provisions. In several instances the courts have held state methods of financing the schools to be unconstitutional as violative of these provisions (see Chapter 20 on school finance). Such cases are beginning to establish an imposing array of precedents, which give definition to terms such as thorough, efficient, throughout, uniform, and a host of other terms. A state supreme court, in extreme circumstances, may even determine that the entire “system” of public schools created by the legislature is violative of the education provisions in the state constitution. This was the situation in the landmark Kentucky case of Rose v. Council for Better Education, Inc. (see below), where the state’s supreme court declared that, “the result of our decision is that Kentucky’s entire system of common schools is unconstitutional.”
Legislature Fails Constitutional Requirement to Establish an Efficient System of Common Schools
Rose v. Council for Better Education, Inc. Supreme Court of Kentucky, 1989. 790 S.W. 2d 186.
STEPHENS, Chief Justice. The issue we decide on this appeal is whether the Kentucky General Assembly has complied with its constitutional mandate to “provide an efficient system of common schools throughout the state.” In deciding that it has not, we intend no criticism of the substantial efforts made by the present General Assembly and by its predecessors, nor do we intend to substitute our judicial authority for the authority and discretion of the General Assembly. We are, rather, exercising our constitutional duty in declaring that, when we consider the evidence in the record, and when we apply the constitutional requirement of Section 183 to that evidence, it is crystal clear that the General Assembly has fallen short of its duty to enact legislation to provide for an efficient system of common schools throughout the state. In a word, the present system of common schools in Kentucky is not an “efficient” one in our view of the clear mandate of Section 183. The common school system in Kentucky is constitutionally deficient. In reaching this decision, we are ever mindful of the immeasurable worth of education to our state and its citizens, especially to its young people. The framers of our constitution intended that each and every child in this state should receive a proper and an adequate education, to be provided for by the General Assembly. This opinion dutifully applies the constitutional test of Section 183 to the existing system of common schools. We do no more, nor may we do any less. . . . The overall effect of appellants’ evidence is a virtual concession that Kentucky’s system of common schools is underfunded and inadequate; is fraught with inequalities and inequities
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Education Provisions as Limitations on Legislatures
throughout the 168 local school districts; is ranked nationally in the lower 20–25% in virtually every category that is used to evaluate educational performance; and is not uniform among the districts in educational opportunities. When one considers the evidence presented by the appellants, there is little or no evidence to even begin to negate that of the appellees. The tidal wave of the appellees’ evidence literally engulfs that of the appellants. In spite of the Minimum Foundation Program and the Power Equalization Program, there are wide variations in financial resources and dispositions thereof which result in unequal educational opportunities throughout Kentucky. The local districts have large variances in taxable property per student. Even a total elimination of all mismanagement and waste in local school districts would not correct the situation as it now exists. A substantial difference in the curricula offered in the poorer districts contrasts with that of the richer districts, particularly in the areas of foreign language, science, mathematics, music, and art. The achievement test scores in the poorer districts are lower than those in the richer districts and expert opinion clearly established that there is a correlation between those scores and the wealth of the district. Student–teacher ratios are higher in the poorer districts. Moreover, although Kentucky’s per capita income is low, it makes an even lower per capita effort to support the common schools. Students in property poor districts receive inadequate and inferior educational opportunities as compared to those offered to those students in the more affluent districts. . . . In a few simple, but direct words, the framers of our present Constitution set forth the will of the people with regard to the importance of providing public education in the Commonwealth. The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State. Ky. Const. Sec. 183. Several conclusions readily appear from a reading of this section. First, it is the obligation, the sole obligation, of the General Assembly to provide for a system of common schools in Kentucky. The obligation to so provide is clear and unequivocal and is, in effect, a constitutional mandate. Next, the school system must
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be provided throughout the entire state, with no area (or its children) being omitted. The creation, implementation, and maintenance of the school system must be achieved by appropriate legislation. Finally, the system must be an efficient one. It is, of course, the last “conclusion” that gives us pause and requires study and analysis. What, indeed, is the meaning of the word “efficient” as used in Section 183? . . . In language which brings together and reemphasizes earlier decisions, we said, The fundamental mandate of the Constitution and Statutes of Kentucky is that there shall be equality and that all public schools shall be nonpartisan and nonsectarian. Uniformity does not require equal classification but it does demand that there shall be a substantially uniform system and equal school facilities without discrimination as between different sections of a district or a county.
The lack of uniformity and the unequal educational opportunity existing in the county was said to constitute “a violation of both the spirit and intent of Section 183 of our State Constitution.” That reasoning therein applies, a fortiori, to the entire state system of common schools. Public schools must be efficient, equal, and substantially uniform. As can be seen, this Court, since the adoption of the present Constitution, has, in reflecting on Section 183, drawn several conclusions: 1. The General Assembly is mandated, is duty bound, to create and maintain a system of common schools—throughout the state. 2. The expressed purpose of providing such service is vital and critical to the well-being of the state. 3. The system of common schools must be efficient. 4. The system of common schools must be free. 5. The system of common schools must provide equal educational opportunities for all students in the Commonwealth. 6. The state must control and administer the system. 7. The system must be, if not uniform, “substantially uniform” with respect to the state as a whole. 8. The system must be equal to and for all students.
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Numerous well-qualified experts testified in this case. They were all well educated, experienced teachers, educators, or administrators; and all were familiar with the Kentucky system of common schools and with other states’ and national school issues. Dr. Richard Salmon testified that the concept of efficiency was a three-part concept. First, the system should impose no financial hardship or advantage on any group of citizens. Further, local school districts must make comparable tax efforts. Second, resources provided by the system must be adequate and uniform throughout the state. Third, the system must not waste resources. Dr. Kern Alexander opined that an efficient system is one which is unitary. It is one in which there is uniformity throughout the state. It is one in which equality is a hallmark and one in which students must be given equal educational opportunities, regardless of economic status, or place of residence. He also testified that “efficient” involves pay and training of teachers, school buildings, other teaching staff, materials, and adequacy of all educational resources. Moreover, he, like Dr. Salmon, believed that “efficient” also applies to the quality of management of schools. Summarizing Dr. Alexander’s opinion, an efficient system is unitary, uniform, adequate, and properly managed. The definitions of “efficient” were documented and supported by numerous national and local studies, prepared and authorized by many of the giants of the education profession. The primary expert for the appellees was a local school superintendent who felt that an efficient system is one which is operated as best as can be with the money that was provided. We reject such a definition, which could result in a system of common schools, efficient only in the uniformly deplorable conditions it provides throughout the state. In summary, the experts in this case believed that an “efficient” system of common schools should have several elements: 1. The system is the sole responsibility of the General Assembly. 2. The tax effort should be evenly spread. 3. The system must provide the necessary resources throughout the state—they must be uniform.
4. The system must provide an adequate education. 5. The system must be properly managed. We now hone in on the heart of this litigation. In defining “efficient,” we use all the tools that are made available to us. In spite of any protestations to the contrary, we do not engage in judicial legislating. We do not make policy. We do not substitute our judgment for that of the General Assembly. We simply take the plain directive of the Constitution, and, armed with its purpose, we decide what our General Assembly must achieve in complying with its solemn constitutional duty. Any system of common schools must be created and maintained with the premise that education is absolutely vital to the present and to the future of our Commonwealth . . . The sole responsibility for providing the system of common schools is that of our General Assembly. It is a duty—it is a constitutional mandate placed by the people on the 138 members of that body who represent those selfsame people. The General Assembly must not only establish the system, but it must monitor it on a continuing basis so that it will always be maintained in a constitutional manner. The state must carefully supervise it, so that there is no waste, no duplication, no mismanagement, at any level. The system of common schools must be adequately funded to achieve its goals. The system of common schools must be substantially uniform throughout the state. Each child, every child, in this Commonwealth must be provided with an equal opportunity to have an adequate education. Equality is the key word here. The children of the poor and the children of the rich, the children who live in the poor districts and the children who live in the rich districts must be given the same opportunity and access to an adequate education. This obligation cannot be shifted to local counties and local school districts. . . . A child’s right to an adequate education is a fundamental one under our Constitution. The General Assembly must protect and advance that right. We concur with the trial court that an efficient system of education must have as its goal to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable
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Education Provisions as Limitations on Legislatures
students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics, or in the job market. The essential, and minimal, characteristics of an “efficient” system of common schools may be summarized as follows: 1. The establishment, maintenance, and funding of common schools in Kentucky is the sole responsibility of the General Assembly. 2. Common schools shall be free to all. 3. Common schools shall be available to all Kentucky children. 4. Common schools shall be substantially uniform throughout the state. 5. Common schools shall provide equal educational opportunities to all Kentucky children, regardless of place of residence or economic circumstances. 6. Common schools shall be monitored by the General Assembly to assure that they are operated with no waste, no duplication, no mismanagement, and with no political influence. 7. The premise for the existence of common schools is that all children in Kentucky have a constitutional right to an adequate education. 8. The General Assembly shall provide funding which is sufficient to provide each child in Kentucky an adequate education. 9. An adequate education is one which has as its goal the development of the seven capacities recited previously. We have described, infra, in some detail, the present system of common schools. We have noted the overall inadequacy of our system of
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education, when compared to national standards and to the standards of our adjacent states. We have recognized the great disparity that exists in educational opportunities throughout the state. We have noted the great disparity and inadequacy of financial effort throughout the state. In spite of the past and present efforts of the General Assembly, Kentucky’s present system of common schools falls short of the mark of the constitutional mandate of “efficient.” When one juxtaposes the standards of efficiency as derived from our Constitution, the cases decided thereunder, the persuasive authority from our sister states and the opinion of experts, with the virtually unchallenged evidence in the record, no other decision is possible. We have decided this case solely on the basis of our Kentucky Constitution, Section 183. We find it unnecessary to inject any issues raised under the United States Constitution or the United States Bill of Rights in this matter. We decline to issue any injunctions, restraining orders, writs of prohibition, or writs of mandamus. We have decided one legal issue—and one legal issue only—viz., that the General Assembly of the Commonwealth has failed to establish an efficient system of common schools throughout the Commonwealth. Lest there be any doubt, the result of our decision is that Kentucky’s entire system of common schools is unconstitutional. There is no allegation that only part of the common school system is invalid, and we find no such circumstance. This decision applies to the entire sweep of the system—all its parts and parcels. This decision applies to the statutes creating, implementing and financing the system and to all regulations, etc., pertaining thereto. . . . Since we have, by this decision, declared the system of common schools in Kentucky to be unconstitutional, Section 183 places an absolute duty on the General Assembly to re-create, reestablish a new system of common schools in the Commonwealth. As we have said, the premise of this opinion is that education is a basic, fundamental constitutional right that is available to all children within this Commonwealth. The General Assembly should begin with the same premise as it goes about its duty. The system, as we have said, must be efficient, and the criteria we have set out are binding on the General
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Assembly as it develops Kentucky’s new system of common schools. . . .
CASE NOTE Some state courts have struck down state public school financing programs as violative of education provisions in those state constitutions: (See Meira Schulman Ferziger, “Validity of Public School Funding Systems,” American Law Reports, 110 A.L.R. 5th, 2003, updated, Thomson/West 2008).
Legislature Transgressed Its Constitutional Powers in Enacting Voucher Funding of Private Schools
John Ellis “Jeb” Bush v. Holmes Supreme Court of Florida, 2006 206 Ed. Law Rep. 756, 919 So. 2d 392
PARIENTE, C. J. The issue we decide is whether the State of Florida is prohibited by the Florida Constitution from expending public funds to allow students to obtain a private school education in kindergarten through grade twelve, as an alternative to a public school education. The law in question authorizes a system of school vouchers and is known as the Opportunity Scholarship Program (OSP). Under the OSP, a student from a public school that fails to meet certain minimum state standards has two options. The first is to move to another public school with a satisfactory record under the state standards. The second option is to receive funds from the public treasury, which would otherwise have gone to the student’s school district, to pay the student’s tuition at a private school. The narrow question we address is whether the second option violates a part of the Florida Constitution requiring the state to both provide for “the education of all children residing within its borders” and provide “by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows
students to obtain a high quality education.” Art. IX, § 1(a), Fla. Const. Our inquiry begins with the plain language of the second and third sentences of article IX, section 1(a) of the Constitution. The relevant words are these: “It is . . . a paramount duty of the state to make adequate provision for the education of all children residing within its borders.” Using the same term, “adequate provision,” article IX, section 1(a) further states: “adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools.” For reasons expressed more fully below, we find that the OSP violates this language. It diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children. This diversion not only reduces money available to the free schools, but also funds private schools that are not “uniform” when compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools. Because we determine that the OSP is unconstitutional as a violation of Article IX, section 1(a), we find it unnecessary to address whether the OSP is a violation of the “no aid” provision in Article I, section 3 of the Constitution, as held by the First District. . . . The OSP provides that a student who attends or is assigned to attend a failing public school may attend a higher performing public school or use a scholarship provided by the state to attend a participating private school. See § 1002.38(2)(a), (3), Fla. Stat. (2005). . . . In 1998, . . . the Constitutional Revision Commission proposed, and the citizens of this state approved, an amendment to Article IX, section 1 to make clear that education is a “fundamental value” and “a paramount duty of the state,” and to provide standards by which to measure the adequacy of the public school education provided by the state: The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for
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Education Provisions as Limitations on Legislatures the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require. Art. IX, § 1(a), Fla. Const. [emphasis supplied]
A commentary on the 1998 amendment by the executive director and the General Counsel of the Constitution Revision Commission explained that the amendment revised section 1 by (1) making education a “fundamental value,” (2) making it a paramount duty of the state to make adequate provision for the education of children, and (3) defining “adequate provisions” by requiring that the public school system be “efficient, safe, secure, and high quality.” . . . The “paramount duty” language represents a return to the 1868 Constitution, which provided that “[I]t is the paramount duty of the State to make ample provisions for the education of all children residing within its borders, without distinction or preference.”. . . The addition of “efficient, safe, secure, and high quality” represents an attempt by the 1997–98 Constitution Revision Commission to provide constitutional standards to measure the “adequacy” provision found in the second sentence of section 1. The action of the commission was in direct response to recent court actions seeking a declaration that Article IX, section 1 created a fundamental right to an adequate education, which the state had arguably violated by failing to provide sufficient resources to public education. . . . In our review of the constitutionality of the OSP, “[t]he political motivations of the legislature, if any, in enacting [this legislation] are not a proper matter of inquiry for this Court. We are limited to measuring the Act against the dictates of the Constitution.” . . . However, in this case we conclude that the OSP is in direct conflict with the mandate in Article IX, section 1(a) that it is the state’s “paramount duty” to make adequate provision for education and that the manner in which this mandate must be carried out is “by law for a uniform, efficient, safe, secure, and high quality system of free public schools.”
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This Court has long recognized the constitutional obligation that Florida’s education article places upon the legislature: Article XII, section 1, constitution [the predecessor to Article IX, section 1] commands that the Legislature shall provide for a uniform system of public free schools and for the liberal maintenance of such system of free schools. This means that a system of public free schools . . . shall be established upon principles that are of uniform operation throughout the State and that such system shall be liberally maintained. State ex rel. Clark v. Henderson.
. . . Currently, Article IX, section 1(a), which is stronger than the provision discussed in Henderson, contains three critical components with regard to public education. The provision (1) declares that the “education of children is a fundamental value of the people of the State of Florida,” (2) sets forth an education mandate that provides that it is “a paramount duty of the state to make adequate provision for the education of all children residing within its borders,” and (3) sets forth how the state is to carry out this education mandate, specifically, that “[a]dequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools.” [emphasis supplied] . . . Article IX, section 1(a) is a limitation on the legislature’s power because it provides both a mandate to provide for children’s education and a restriction on the execution of that mandate. The second and third sentences must be read in pari materia, rather than as distinct and unrelated obligations. This principle of statutory construction is equally applicable to constitutional provisions. . . . The second sentence of Article IX, section 1(a) provides that it is the “paramount duty of the state to make adequate provision for the education of all children residing within its borders.” The third sentence of Article IX, section 1(a) provides a restriction on the exercise of this mandate by specifying that the adequate provision required in the second sentence “shall be made by law for a uniform, efficient, safe, secure and high quality system of free public schools” (emphasis supplied). The OSP violates this provision by devoting the state’s resources to the education of children within our state through means other than a system of free public schools.
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The principle of construction, “expressio unius est exclusio alterius,” or “the expression of one thing implies the exclusion of another,” leads us to the same conclusion. This Court has stated: [W]here the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Even though the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it. Therefore, when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision. . . . Although parents certainly have the right to choose how to educate their children, Article IX, section 1(a) does not, as the Attorney General asserts, establish a “floor” of what the state can do to provide for the education of Florida’s children. The provision mandates that the state’s obligation is to provide for the education of Florida’s children, specifies that the manner of fulfilling this obligation is by providing a uniform, high quality system of free public education, and does not authorize additional equivalent alternatives. The Constitution prohibits the state from using public monies to fund a private alternative to the public school system, which is what the OSP does. Specifically, the OSP transfers tax money earmarked for public education to private schools that provide the same service—basic primary education. Thus, contrary to the defendants’ arguments, the OSP does not supplement the public education system. Instead, the OSP diverts funds that would otherwise be provided to the system of free public schools that is the exclusive means set out in the Constitution for the Legislature to make adequate provision for the education of children. Section 1002.38(6)(f), Florida Statutes (2005), specifically requires the Department of Education to “transfer from each school district’s appropriated funds the calculated amount from the Florida Education Finance Program and authorized categorical accounts to a separate account for the Opportunity Scholarship Program.” Even if the tuition paid to the private school is less than the amount transferred from the school
district’s funds and therefore does not result in a dollar-for-dollar reduction, as the dissent asserts, it is of no significance to the constitutionality of public funding of private schools as a means to making adequate provision for the education of children. Although opportunity scholarships are not now widely in use, if the dissent is correct as to their constitutionality, the potential scale of programs of this nature is unlimited. Under the dissent’s view of the Legislature’s authority in this area, the state could fund a private school system of indefinite size and scope as long as the state also continued to fund the public schools at a level that kept them “uniform, efficient, safe, secure, and high quality.” However, because voucher payments reduce funding for the public education system, the OSP by its very nature undermines the system of “high quality” free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida. The systematic diversion of public funds to private schools on either a small or large scale is incompatible with Article IX, section 1(a). In addition to specifying that a system of free public schools is the means for complying with the mandate to provide for the education of Florida’s children, Article IX, section 1(a) also requires that this system be “uniform.” The OSP makes no provision to ensure that the private school alternative to the public school system meets the criterion of uniformity. In fact, in a provision directing the Department of Education to establish and maintain a database of private schools, the legislature expressly states that it does not intend “to regulate, control, approve, or accredit private educational institutions.” § 1002.42(2)(h), Fla. Stat. (2005). This lack of oversight is also evident in section 1001.21, which creates the office of Private Schools and Home Education Programs within the Department of Education but provides that this office “ha[s] no authority over the institutions or students served.” § 1001.21(1), Fla. Stat. (2005). Further, although the parent of a student participating in the OSP must ensure that the student “takes all statewide assessments” required of a public school student, § 1002.38(5)(c), the private school’s curriculum and teachers are not subject to the same standards as those in force in public
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Education as a Fundamental Right under State Constitutions
schools. For example, only teachers possessing bachelor’s degrees are eligible to teach at public schools, but private schools may hire teachers without bachelor’s degrees if they have “at least 3 years of teaching experience in public or private schools, or have special skills, knowledge, or expertise that qualifies them to provide instruction in subjects taught.” § 1002.38(4)(g), Fla. Stat. (2005). In addition, public school teachers must be certified by the state. To obtain this certification, teachers must meet certain requirements that include having “attained at least a 2.5 overall grade point average on a 4.0 scale in the applicant’s major field of study” and having demonstrated a mastery of general knowledge, subject area knowledge, and professional preparation and education competence. Regarding curriculum, public education instruction is based on the “Sunshine State Standards” that have been “adopted by the State board of education and delineate the academic achievement of students, for which the state will hold schools accountable.” § 1003.41, Fla. Stat. (2005). Public schools are required to teach all basic subjects as well as a number of other diverse subjects, among them the contents of the Declaration of Independence, the essentials of the United States Constitution, the elements of civil government, Florida state history, AfricanAmerican history, the history of the Holocaust, and the study of Hispanic and women’s contributions to the United States. Eligible private schools are not required to teach any of these subjects. In addition to being “academically accountable to the parent,” a private school participating in the OSP is subject only “to the . . . curriculum . . . criteria adopted by an appropriate nonpublic school accrediting body.” There are numerous nonpublic school accrediting bodies that have “widely variant quality standards and program requirements.” Thus, curriculum standards of eligible private schools may vary greatly depending on the accrediting body, and these standards may not be equivalent to those required for Florida public schools. In all these respects, the alternative system of private schools funded by the OSP cannot be deemed uniform in accordance with the mandate in Article IX, section 1(a). . . .
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In sum, Article IX, section 1(a) provides for the manner in which the state is to fulfill its mandate to make adequate provision for the education of Florida’s children—through a system of public education. The OSP contravenes this constitutional provision because it allows some children to receive a publicly funded education through an alternative system of private schools that are not subject to the uniformity requirements of the public school system. The diversion of money not only reduces public funds for a public education but also uses public funds to provide an alternative education in private schools that are not subject to the “uniformity” requirements for public schools. Thus, in two significant respects, the OSP violates the mandate set forth in Article IX, section 1(a). We do not question the basic right of parents to educate their children as they see fit. We recognize that the proponents of vouchers have a strongly held view that students should have choices. Our decision does not deny parents recourse to either public or private school alternatives to a failing school. Only when the private school option depends upon public funding is choice limited. This limit is necessitated by the constitutional mandate in Article IX, section 1(a), which sets out the state’s responsibilities in a manner that does not allow the use of state monies to fund a private school education. . . . In order not to disrupt the education of students who are receiving vouchers for the current school year, our decision shall have prospective application to commence at the conclusion of the current school year. It is so ordered.
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Education as a Fundamental Right under State Constitutions
In interpreting their own state constitutions, the highest courts in several states have held that education is a fundamental right. Other state courts have ruled that it is not, whereas others remain noncommittal. If a court determines that a state function is fundamental, it effectively elevates that particular function to a unique governmental status, and fundamentality declares that each individual has a constitutional
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entitlement to have that right protected by the courts. It may also be interpreted to mean that the public as a whole has an entitlement to a particular governmental benefit. State constitutions, unlike the federal constitution, have within their framework a requirement that the legislatures provide for education. As noted previously in the chapter, the impetus for these state provisions for education flowed out of the enlightened ideals of the nation’s founders in the original colonies, and later in the expansion of those ideals to the new states through the land grants of the national domain, the ordinances of 1785 and 1787, and the respective Enabling Acts of statehood. What exactly is a fundamental right? A fundamental right is inherent in the individual and constitutes a protected claim that need not be earned; rather, it is immanent in the human being as an entitlement.47 A fundamental right has its foundation in moral law. If education is a fundamental right, then everyone is entitled to obtain it by virtue of being human. As Henkin has pointed out, “When a society recognizes that a person has a right, it affirms, legitimates, and justifies that entitlement, and incorporates and establishes it in the society’s system of values, giving it important weight in competition with other societal values.”48 Individual or human rights that carry the appellation of “fundamental” are therefore basic and essential to the life and dignity of each individual.49 Even fundamental rights are not absolute and can, therefore, be abridged; but to override them requires special circumstances by which the government must show that society at large is in some way enhanced by the denial of an individual’s right.
FUNDAMENTAL RIGHT A right is a morally fundamental right if it is justified on the ground that it serves the rightholder’s interest in having that right inasmuch as that interest is considered to be of ultimate value, i.e., inasmuch as the value of that interest does not derive from some other interest of the right-holder or of other persons. —Joseph Raz
A fundamental right enjoys a special place in the social contract between the individual and the state. Standing at the nexus of the social contract, a right enjoys a prima facie or presumptive inviolability, and can “trump” other less important public goods. 50 Individual human rights cannot be lightly denied or sacrificed merely because the majority of society is inconvenienced or has preference or disposition to deny the right; a fundamental right can only be denied for a compelling reason. In state constitutions, the fundamentality of education may be derived from two sources: (1) an education clause in the body or frame of the constitution that requires that the legislature provide for education, public school, or a public school system (i.e., “the legislature shall”); or (2) an equal protection clause or its equivalent in a state bill of rights that prohibits discrimination. If a state supreme court adjudicates an education issue under the first, there may be no necessity to reach a direct conclusion regarding fundamentality because a flat affirmative constitutional provision placing a duty on a legislature (“shall provide for education”) may ipso facto be of sufficient legal magnitude to clearly provide fundamentality. Yet, generally, fundamentality cannot be assumed unless the court so recognizes and pronounces. With regard to the second source, a general state equality or equal protection clause may be involved to assert a right against discrimination. If this avenue is pursued, the plaintiffs must show that they are a protected class that is suffering from deprivation of a state benefit. If the state benefit is found to be inconsequential, then discrimination is irrelevant; however, if the benefit is adjudged to be fundamental, the state has the onus of proving that disparities in benefits are necessary or compelling. If the plaintiffs are successful, the state is subject to close judicial scrutiny to ascertain whether the legislature had a compelling reason to act as it did. The viewpoints of the respective state supreme courts regarding the fundamentality of education are largely determined by how the courts apply these two aspects of state constitutions or how the plaintiffs plead their cases. It is evident from this sample of state court decisions that whether or not education is found to be a fundamental constitutional right is very
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Education as a Fundamental Right under State Constitutions
state specific. Some courts loosely interpret what appears to be definitive constitutional language with the result that legislatures are given almost unlimited prerogatives with very minor constitutional restraints. Moreover, courts may apply widely varying standards to legislative duties and responsibilities, even though the respective constitutional provisions are quite similar. However, in spite of the varying interpretations, it appears that there has been a general evolution, over a rather short time, of the law in testing legislative action under state constitutional requirements. Before the advent of these precedents, the education provisions in state constitutions rested largely dormant, with little meaning. Today, the interpretations of these state constitutional provisions flow continuously from the courts, forming a rather imposing body of law that protects the public and the individual. Chapter 20 discusses the fundamentality question in greater detail as it affects the equitable funding of public schools. However, the following Claremont case provides excellent discussion of fundamentality, meriting consideration at this time.
Fundamental Right of Education Requires Adequate Financing by Legislature
Claremont School District v. Governor Supreme Court of New Hampshire, 1997. 142 N.H. 462, 703 A. 2d 1353.
BROCK, Chief Justice. In this appeal we hold that the present system of financing elementary and secondary public education in New Hampshire is unconstitutional. To hold otherwise would be to effectively conclude that it is reasonable, in discharging a State obligation, to tax property owners in one town or city as much as four times the amount taxed to others similarly situated in other towns or cities. This is precisely the kind of taxation and
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fiscal mischief from which the framers of our State Constitution took strong steps to protect our citizens. . . . At the present time, the State places the responsibility for providing elementary and secondary public education on local school districts. State statutes, rules, and regulations delineate the requirements to be followed by school districts. . . . To comply with the State’s requirements, school districts must raise money for their schools with revenue collected from real estate taxes. . . . . . . The plaintiffs argue that the school tax is a unique form of the property tax mandated by the State to pay for its duty to provide an adequate education and that the State controls the process and mechanism of taxation. Because of the purpose of the tax and the control exerted by the State, the plaintiffs contend that the school tax is a State tax that should be imposed at a uniform rate throughout the State. . . . Determining the character of a tax as local or State requires an initial inquiry into its purpose. In order . . . that the tax should be proportional . . . it is required that the rate shall be the same throughout the taxing district—that is, if the tax is for the general purposes of the state, the rate should be the same throughout the state; if for the county, it should be uniform throughout the county—and the requisite of proportion, or equality and justice, can be answered in no other way. . . . We find the purpose of the school tax to be overwhelmingly a State purpose and dispositive of the issue of the character of the tax. [t]he local school district, an entity created by the legislature almost two centuries ago, exists for the public’s benefit, to carry out the mandates of the State’s education laws. . . .
Providing an adequate education is . . . a duty of State government expressly created by the State’s highest governing document, the State Constitution. In addition, public education differs from all other services of the State. No other governmental service plays such a seminal role in developing and maintaining a citizenry capable of furthering the economic, political, and social viability of the State. Only in part II, article 83 is it declared a duty of the legislature to “cherish” a service mandated by the State Constitution. . . . Furthermore,
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education is a State governmental service that is compulsory. . . . That the State, through a complex statutory framework, has shifted most of the responsibility for supporting public schools to local school districts does not diminish the State purpose of the school tax. . . . The question then is whether the school tax as presently structured is proportional and reasonable throughout the State in accordance with the requirements of part II, article 5. . . . We . . . hold that the school tax is disproportionate in violation of our State Constitution. . . . In addition, we conclude that the school tax as presently assessed is unreasonable. The word “reasonable” as used in part II, article 5 means “just.” . . . Because the diffusion of knowledge and learning is regarded by the State Constitution as “essential to the preservation of a free government,” N.H. CONST. pt. II, art. 83, it is only just that those who enjoy such government should equally assist in contributing to its preservation. The residents of one municipality should not be compelled to bear greater burdens than are borne by others. . . . There is nothing fair or just about taxing a home or other real estate in one town at four times the rate that similar property is taxed in another town to fulfill the same purpose of meeting the State’s educational duty. Compelling taxpayers from property-poor districts to pay higher tax rates and thereby contribute disproportionate sums to fund education is unreasonable. . . . We hold, therefore, that the varying property tax rates across the State violate part II, article 5 of the State Constitution in that such taxes, which support the public purpose of education, are unreasonable and disproportionate. . . . The constitution places the duty to support the public schools on “the legislators and magistrates.” N.H. CONST. pt. II, art. 83. As we said in Claremont I, it is for the legislature and the Governor to “fulfill their responsibility with respect to defining the specifics of, and the appropriate means to provide through public education, the knowledge and learning essential to the preservation of a free government.” Claremont I, 138 N.H. at 193, 635 A. 2d at 1381. . . . Our society places tremendous value on education. Education provides the key to individual opportunities for social and economic advancement and forms the foundation for our
democratic institutions and our place in the global economy. The very existence of government was declared by the framers to depend upon the intelligence of its citizens. . . . As the New Hampshire Constitution exists today, education is deemed so essential to the viability of the State that part II, article 83 is one of only two places in the constitution where a duty is affirmatively placed on the legislature. Compare N.H. CONST. pt. II, art. 83 (“it shall be the duty of the legislators . . . to cherish . . . public schools”) with N.H. CONST. pt. II, art. 5-A (legislature has “duty to provide for prompt and temporary succession to the powers and duties of public officers in the event of enemy attack”). “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” . . . In this appeal, the plaintiffs ask us to declare a state-funded constitutionally adequate public education a fundamental right. . . . When governmental action impinges fundamental rights, such matters are entitled to review under the standard of strict judicial scrutiny. . . . In determining whether, in New Hampshire, a State-funded constitutionally adequate elementary and secondary education is a fundamental right, we are guided by two salient factors: one of constitutional interpretation and the other of practicality and common sense. First and foremost is the fact that our State Constitution specifically charges the legislature with the duty to provide public education. See N.H. CONST. pt. II, art. 83. This fact alone is sufficient in our view to accord fundamental right status to the beneficiaries of the duty. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is “fundamental” is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. . . . Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Second, and of persuasive force, is the simple fact that even a minimalist view of educational adequacy recognizes the role of education in preparing citizens to participate in the exercise of voting and First Amendment rights. The latter being recognized as fundamental, it is
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Judicial Approval of Common Schools
illogical to place the means to exercise those rights on less substantial constitutional footing than the rights themselves. We hold that in this State a constitutionally adequate public education is a fundamental right. In so doing we note that “[t]he right to an adequate education mandated by the Constitution is not based on the exclusive needs of a particular individual, but rather is a right held by the public to enforce the State’s duty.” . . . We emphasize that the fundamental right at issue is the right to a state-funded constitutionally adequate public education . . . , the substance of the right may be achieved in different schools possessing, for example, differing library resources, teacher–student ratios, computer software, as well as the myriad tools and techniques that may be employed by those in on-site control of the State’s public elementary and secondary school systems. But when an individual school or school district offers something less than educational adequacy, the governmental action or lack of action that is the root cause of the disparity will be examined by a standard of strict judicial scrutiny. “Given the complexities of our society today, the State’s constitutional duty extends beyond mere reading, writing, and arithmetic. It also includes broad educational opportunities needed in today’s society to prepare citizens for their role as participants and as potential competitors in today’s marketplace of ideas.” A constitutionally adequate public education is not a static concept removed from the demands of an evolving world. It is not the needs of the few but the critical requirements of the many that it must address. Mere competence in the basics—reading, writing, and arithmetic—is insufficient in the waning days of the twentieth century to insure that this State’s public school students are fully integrated into the world around them. A broad exposure to the social, economic, scientific, technological, and political realities of today’s society is essential for our students to compete, contribute, and flourish in the twenty-first century. . . . The State’s duty to provide for an adequate education is constitutionally compelled. The present system selected and crafted by the State to fund public education is, however, unconstitutional. While the State may delegate its obligation to provide a constitutionally adequate public education to local school districts, it may not do so in a form underscored by unreasonable and
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inequitable tax burdens. As the State acknowledged at oral argument, several financing models could be fashioned to fund public education. It is for the legislature to select one that passes constitutional muster. . . . We are confident that the legislature and the Governor will act expeditiously to fulfill the State’s duty to provide for a constitutionally adequate public education and to guarantee adequate funding in a manner that does not violate the State Constitution. Reversed; proceedings stayed pending further order of the court.
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Judicial Approval of Common Schools
The egalitarian motivation for the common school necessitated the enrollment of children of all social and economic backgrounds. To enlarge public schools from a system of limited free education for poor children—pauper schools—to common schools at the elementary and high school levels required an ever-increasing commitment of public funds.51 The transformation to truly common schools required that the public schools be of such quality that they could attract the children of the more affluent in addition to the children of the poor. Ravitch points out that this movement toward common schools was a logical extension of the Jacksonian philosophy of 1828 that heralded the frontier philosophy of equality and the decline of social class based on wealth and position. “Political equality forced the emergence of new political patterns, and the schools, like other social institutions, began to adjust to the demands of the rising middle class.”52 Opposition to this movement was expressed both politically and in the courts. An early example of such litigation is found in the Hartman53 case in Pennsylvania (decided in 1851), wherein school directors refused to comply with a statute requiring them to create a system of common schools for all children, not just the poor. The school directors defended their position by maintaining that the Pennsylvania Constitution did not permit the legislature to expand the public schools from pauper schools to common schools. The court disagreed.
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Legislature Is Not Prohibited from Creating a System of Common Schools by Expanding on the Pauper School Provision in State Constitution
Commonwealth v. Hartman Supreme Court of Pennsylvania 1851. 17 Pa. 118.
The appellants, Hartman and five others, had been elected school directors of Lowhill Township, Lehigh County. They organized by electing the officers required by the common school law, and made provision for the education of the poor children in that township, but refused to comply with the provisions of the acts of assembly of 1848 and 1849, requiring them to provide for the establishment of common schools in that township: and they refused to resign. A petition was presented to the Court of Quarter Sessions, on April 30, 1849, praying the court to declare their offices vacant, and to appoint substitutes. The court granted a rule upon them to appear and answer; and on May 5, 1849, JONES, J., vacated their office and appointed others in their stead to act until the next annual election for directors. The objection made on the part of Hartman and others was that the school laws of 1848 and 1849 were unconstitutional, as being at variance with the provision in the first section of the 7th article of the Constitution of Pennsylvania, which is as follows: Sect. 1. “The legislature shall, as soon as conveniently may be, provide by law for the establishment of schools throughout the state, in such manner that the poor may be taught gratis.” It was provided in the act of assembly of 11th April, 1848, “that the common school system, from and after the passage of this Act, shall be deemed, held, and taken to be adopted by the several school districts in this Commonwealth.” . . . In the Act of 7th April 1849, it is provided, “That a system of common school education be and the same is hereby deemed, held, and taken to be adopted, according to the provisions of this act, in all the counties in this Commonwealth.”
. . . The Act points out the mode of electing directors, and defines their “general powers and duties.” It provided that “They shall establish a sufficient number of common schools for the education of every individual between the ages of five and twenty-one years, in the districts, who may apply for admission and instruction, either in person, or by parent, guardian, or next friend (emphasis added).” The opinion of the court was delivered Dec. 29, 1851, by BLACK, C.J. The only ground on which this court has been urged to reverse the order of the Quarter Sessions, is, that the school law is unconstitutional. We are of opinion that there is nothing in that law, certainly nothing in that part of it to which our attention has been particularly called, which, in the slightest degree, contravenes the constitution. It is to be remembered, that the rule of interpretation for the state constitution differs totally from that which is applicable to the Constitution of the United States. The latter instrument must have a strict construction; the former a liberal one. Congress can pass no laws but those which the Constitution authorizes either expressly or by clear implication; while the assembly has jurisdiction of all subjects on which its legislation is not prohibited. The powers, not granted to the government of the Union, are withheld; but the state retains every attribute of sovereignty which is not taken away. In applying this principle to the present case, it is enough to say, that there is no syllable in the Constitution which forbids the legislature to provide for a system of general education in any way which they, in their own wisdom, may think best. But it is argued, that for the purpose of promoting education, and carrying out the system of common schools, laws may be passed which will work intolerable wrong, and produce grievous hardship. The answer to this is that a decent respect for a coordinate branch of the government compels us to deny that any such danger can ever exist. But if a law, unjust in its operation, and nevertheless not forbidden by the Constitution, should be enacted, the remedy lies, not in an appeal to the judiciary, but to the people, who must apply the corrective themselves, since they have not entrusted the power to us. The Constitution, in sect. 1 of Article VII, provides that “the legislature shall, as soon as
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Judicial Approval of Common Schools
conveniently may be, provide by law for the establishment of schools throughout the state in such manner that the poor may be taught gratis.” It seems to be believed that the last clause of this section is a limitation to the power of the legislature, and that no law can be constitutional which looks to any other object than that of teaching the poor gratis. The error consists in supposing this to define the maximum of the legislative power, while in truth it only fixes the minimum. It enjoins them to do thus much, but does not forbid them to do more. If they stop short of that point, they fail in their duty; but it does not result from this that they have no authority to go beyond it. Order affirmed.
CASE NOTES Common Schools and Public Schools. The terms “common” and “public” have long been used to describe the tax-supported school. This is a foundational aspect of the American democratic form of government. However, the courts have not provided a uniform and precise definition of either “common” or “public.”54 After an analysis of the extant case law, American Law Reports (A.L.R.) concludes that “the terms ‘common school’ and ‘public school’ are generally, though not invariably, accepted as synonymous, and in a number of cases it has been specifically declared that they are synonymous” (113 ALR 697). For example, in O’Dell, an early Indiana case, the court simply opined that “common schools” are “public schools.” In that case, a parent argued that compulsory attendance statutes only applied to “common schools” that were limited to primary school and, therefore, his child was not required to attend high school. The Court said that common schools were public schools and the terms included both primary and high schools. State v. O’Dell, 187 Ind. 84, 118 N.E. 529 (1918). A Missouri Court, in defining “common” and “public” to be synonymous, said: “the term ‘common’ when applied to schools, is used to denote that they are open and public to all. State legislation on the subject uses the term ‘public’ as often as it uses ‘common.’ ” Accordingly, a Missouri Court concluded that the terms could be used interchangeably, as meaning one and the same thing. Roach v. Board, etc., of St. Louis Public Schools, 77 Mo. 484, 1883 WL 9780 (Mo. 1883).
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The terms “public schools” and “common schools” have also been defined as having the twin attributes of being “free” and “open” to all on equal terms. 118 ALR 697; Louisville v. Commonwealth, 134 KY 488, 121 S.W. 411 (1909); Board of Education ex. rel. State v. Corey, 63 Okla. 178, 163, p. 949 (1917). Other courts have held that the term “common” schools refer to “primary” schools, and the term “public school” refers to both primary and high schools. State ex. Rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929 (1905); Perchal v. Daily, 57 S. D. 554, 234 N.W. 45 (1931). A Washington court has contributed the following: it said that a “common school” is “one which is common to all children of proper age and capacity, free, and subject to, and under the control of, qualified voters of the district.” School Dist. v. Bryan, 51 Wash. 498, 99 p. 28 (1909). Similarly, a Montana court has said that public schools are “free common” schools, “universal” and “open to all,” in “contradistinction to ‘private’ and ‘denominational’ schools.” Henderson v. Dawson County, 87 Mont. 122, 286 p. 125 (1930). The term “common” is perhaps best explained by a Kentucky court that ruled that a “system of common schools implies common benefits of free schools, secured by common burdens upon all alike, without regard to or giving special advantages or privileges. . . .” Morganfield Public School v. Thomas, 12 Ky. L. Pep. 832, 15 S.W. 670 (1891). The terms “common schools” and “public schools,” while encompassing both elementary and secondary schools, have not been interpreted so broadly as to include “normal schools.” State Teachers’ College v. Morris, 165 Miss. 758, 144 So. 374 (1932); State ex. Rel. School Dist. v. Preston, 79 Wash. 286, 140, p. 350 (1914). However, if a statute of a state is sufficiently broad in its language in describing public schools, a teachers’ college may be included as a school that is open to all and is financed by tax sources. Kayser v. Board of Education, 273 Mo. 643, 201 S.W. 531 (1918). In most cases, however, common or public schools have not been defined to include postsecondary education, colleges, or universities. Pollitt v. Lewis, 269 Ky. 680, 108 S.W. 2d 671 (1937). In sum, “common schools” and “public schools” are defined by most courts, depending on state statutory and constitutional language,
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Historical and Legal Perspective of Public Schools
as having the same meaning. They are free, open to all, elementary and secondary, for the benefit of all, governed by the citizens and financed in common by general taxation paid by the entire community. All persons benefit in common and all contribute in common.
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Expansion of Public Schools
Earlier, education above the elementary school level had to be acquired at private academies for which a tuition fee was charged and few, if any, poor children attended. Common schools were generally looked upon as being for the elementary grades only. Yet, free, public high schools soon became a democratic necessity. Cubberley observed that “the rising democracy of the second quarter of the nineteenth century now demanded and obtained the democratic high school.”55 Gradually, the high school became an integral part of the free, public school system. The academy had succeeded the old Latin schools with a more practical curriculum designed to more adequately meet the needs of the older youths beyond preparation for college. These academies spread rapidly and were variously known as institutes, seminaries, collegiate institutes, and sometimes colleges. By the early 1800s, Massachusetts had 36 academies; New York, 19; Georgia, 10; and some states, including Kentucky and Indiana, had systems of county academies.56 The greatest growth of the academies was during the period from 1820 to 1840. Most of these academies were residential schools that charged fees for room and board as well as for tuition. Some were financed by local taxation, and a few even had state assistance. The academies, however, were inadequate to meet the burgeoning need for extended educational opportunity. The tuition and fees made accessibility difficult for the poor, and even though their numbers were substantial, they were not numerous enough to be within reasonable walking, wagon, or horseback distance from rural homes to be nonresidential. The solution was the genesis of the American high school. The American high school had no forerunners and was distinguished from previous European models by its close relationship
to the common schools. The high school was an extension of the common elementary school, making it, from the beginning, a higher common school. The first American high school was established in Boston in 1821, and the increase in the number of high schools was slow, but methodical, for the next 30 years. Skepticism as to the viability of the high school was expressed by many who were imbued with the tradition of the academy. As late as 1874, President Porter of Yale University observed that “the expenditure of money for high schools to prepare boys and girls for college was a doubtful experiment.” By 1872, 70 percent of the students entering colleges in the east were graduates of academies, but by 1920, 90 percent of the entering freshmen were graduates of high schools. Opposition to the high school as an extension of the common school generally came from taxpayers who did not want to bear the increased financial burden, as well as from those advocates of the academies and private sectarian schools who thought that the creation of high schools would further diminish the public’s reliance on their respective schools. The court decision generally credited with opening the doors to the public high school as we know it today was the famous Kalamazoo case in 1872.57 No constitutional or legislative provisions in Michigan had previously explicitly established a system of high schools. The legal basis for education was found in legislation in 1817, which contained a provision for public academies, and in the constitution of 1835, which provided for free primary schooling, but neither established a pathway between the primary schooling and the university. Local students aspiring to a university education had entered the preparatory department of the private Kalamazoo College (chartered in 1855). No public accommodation had been made for students’ preparation for college until 1858, when the local school superintendent created the union high school at a time when several of these union high schools had been created elsewhere in Michigan. This particular school thrived amid local controversy created by both taxpayers, who objected to paying for the school, and the proprietors of Kalamazoo College, who had lost students to the union high school. Finally, in 1873, a group
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Charter Schools
of prominent citizens filed suit to restrain the school board from expending public funds to support the high school. Ultimately, the case was appealed to the Michigan Supreme Court, where Judge Thomas M. Cooley rendered a landmark decision. Even though there was other litigation of this nature during this period, this case was particularly important because of the stature of the court and the judicial rationale by which the high school was justified. Courts are generally reticent, in the absence of express statutory language, to imply authority to perform some public function if the expenditure of funds is involved, but here the court did not hesitate to do so. This judicial recognition of the importance of public schools provided a philosophical basis for both legislatures and courts to broaden educational opportunity by extending the school system not only upward, but also downward to kindergartens, as well as to expand the scope of education to areas such as vocational education, special education for the disabled, and compensatory education.
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Charter Schools
We discuss charter schools here because they represent a structural change and departure from the traditional organization of public schools in the United States. Miller observes that charter schools have become the most important public education innovation to occur since their introduction as an educational concept in the early 1990s.58 She defines charter schools as “. . . a public school established under a contract between public authorities and a private organization or a group of private individuals.” 59 The first charter school in the United States was established in St. Paul, Minnesota, in 1992, and today there are over 5,000 such schools in 40 states, the most active of which are in California, Florida, Michigan, New Jersey, New York, Pennsylvania, and Texas. An increasing number of virtual charter schools that reach into several states can be added to this list. The idea of the charter school found its modern statutory origins in the United Kingdom with Margaret Thatcher’s school reform legislation in 1988. Thatcher, the Tory conservative
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prime minister, invented the idea as a mechanism to bypass Labor-controlled local education authorities. The law enacted by Parliament encouraged local schools, teachers, administrators, and parents to “opt out” from under the local authorities and to obtain direct funding from Parliament. These so-called “opt-out” schools were by statute named “Grant-Maintained Schools,” and were designed to be incorporated as privatized business models with laissez-faire competitive and entrepreneurial freedom from state regulatory and labor union constraints. Each school was controlled by its own independent board. The effectiveness of these schools has been much debated and criticized, and later Labor governments have substantially modified the approach to fashion a more viable structure. The charter school in the United States, in its most favorable light, seeks to increase the choice of educational programs, without fueling private self-interests that separate and segregate children of the community. It places great store in the importance of competition in improving the quality of schools. As Minow observes, charter schools are “anchored in faith in consumer sovereignty”60 and “confidence in market-style mechanisms,”61 and that by such means of competition, the freedom of an educational marketplace will make schools more efficient and productive. Parents, of course, now have a choice among private schools, but their choosings are not normally supported by public funds. Private schools are now chartered or incorporated as private entities in their respective states, and any institution, religious organization, or group of parents can easily obtain a charter to incorporate as a private school. The sanctity of such charters was guaranteed as a constitutionally protected interest under the “Obligation of Contracts” provision of the U.S. Constitution as defined by the U.S. Supreme Court in the famous Dartmouth College case in 1819.62 Moreover, the right to establish and keep private schools is protected by the Due Process Clause of the Fourteenth Amendment as interpreted by the U.S. Supreme Court in Pierce v. Society of Sisters in 1925.63 The “charter school” was first proposed in the United States as a definitional mirage that would redefine the term public schools to include private and parochial schools. The idea was
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advanced to circumvent constitutional prohibitions on the giving of public funds to private and parochial schools. The approach as it originated was to permit all private and parochial schools to become chartered in their respective states by meeting minimal state-established criteria. These minimal criteria, “roughly corresponding to the criteria many states now employed in accrediting private schools,” would then allow a private school to be “chartered as a public school and granted the right to accept students and receive public money.”64 By this means, any and all private and parochial schools participating would ipso facto become “public schools” as defined by the new system.65 Such newly defined “public schools” would retain their independence while avoiding constitutional restrictions that normally apply to the public sector and could, as well, retain their religious affiliations. This “definitional reshuffling,” as Henig called it, was proposed earlier by Jencks, who advocated the use of charter schools as a means to achieve the intent of public funding of private and parochial schools without actually resorting to tuition vouchers or tuition tax credits. Jencks said that “a lot of our thinking about the voucher system is based on an attempt to rethink the question of where the line between the public and private should be drawn.”66 The legal basis to circumvent the constitutional proscription against the use of public monies to support religious schools originated in the concept advanced by Justice White in the Allen case, rendered by the U.S. Supreme Court in 1968.67 (See Chapter 5 of this book). In that case, Justice White observed that parochial schools do an “acceptable job of providing secular education to their students”68 in addition to their sectarian instruction. In other words, according to White, the nonsectarian aspects of parochial school instruction served a public purpose in keeping with the purpose of the public school. From there, it took only a short leap of logic to suggest that the presence of secular aspects of the educational programs in parochial schools was so substantial that it merited them the status of a quasi-public school, justifying their receiving public funds. The attempt to redefine public schools was advanced by President H. W. Bush in 1992 when he explained that “[w]hether a school is organized by privately financed educators or town councils
or religious orders or denominations, any school that serves the public and is held accountable by public authority provides public education.”69 Henig points out that such an indiscriminate stretch of the label “public” to “cover largely deregulated, market-based systems of educational choice is possible only because the term ‘public’ has been so devalued.” In its ungarnished primitive form, the “charter school” is designed to remain private, sans public control and accountability. As described by Minow, “These independent schools are intended to operate with public funds, but outside the regulations of the public system.”70 The thrust of the charter school concept changed dramatically when President Clinton advocated school choice that could be exercised only in public schools and not in private or parochial schools. As charter schools have developed, however, they have taken on various permutations in state legislation. Moving away from the base form of a private sectarian institution, in keeping with the Clinton administration’s definition, the charter school has evolved in most states as a form of quasi-public nonsectarian school that requires diversity of racial, economic, and social mix of students. Federal charter school legislation71 passed in 1994 and bearing President Clinton’s imprint defines such schools as having the following features: They are exempted from state and local regulations that inhibit flexible management, yet they are operated under general public supervision and direction, designed with specific educational objectives as their purpose; they are nonsectarian in their programs, admissions, policies, and employment practices and are not affiliated with a sectarian school or religious institution; they are free of tuition and fees; they must be in compliance with federal civil rights legislation; they must provide for admission of students by lottery; they must comply with federal and state financial audit requirements as do other elementary and secondary schools; they must meet required federal, state, and local health and safety requirements; and they are required to operate in accordance with state law.72 This law makes it clear that the concept of the “charter school” adopted by the federal government is a school operating under public auspices and control. It is not a private school defined as public. Yet these requirements apply only if a state desires to receive federal
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Charter Schools
funding for the planning, design, and initial implementation of charter schools. President Obama has made the public charter school one of the central aspects in his educational reform initiative. Taking a page from Margaret Thatcher’s “opt-out” schools competitive business model, the U.S. Department of Education emphasizes “the need for additional effective education entrepreneurs to join the work of reforming America’s lowest performing schools.”73 To stimulate states to place emphasis on the development of more charter schools, the Obama government has monetarily incentivized states to make charter schools an integral part of a larger reform initiative named the “Race to the Top” program.74 Whether a charter school is for-profit is an important feature relevant to the grant of federal funds. The U.S. Court of Appeals, Ninth Circuit, has held that for-profit charter schools are ineligible to receive federal funds under both the Elementary and Secondary Education Act (ESEA) and the Individuals with Disabilities Education Act (IDEA).75 This issue was the focus of a suit that resulted from a U.S. Department of Education audit revealing that the State of Arizona had distributed over $1 million to 11 private for-profit organizations that operated 75 charter schools. Federal law, the court observed, limited by definition the authorized recipients of federal funds to public schools and “nonprofit institutional day and residential” schools. Neither ESEA nor IDEA permits federal funds to flow to for-profit schools or organizations. The court observed that even though both of these major federal subventions have been amended and refined, Congress has not modified its express intent to make for-profit schools ineligible to receive funding.76 Thus, the set of suggested features or principles in the federal law reflects just one philosophical view of the nature and characteristics of charter schools. In actuality, state laws vary widely, indicating the diversity of social, economic, religious, and political forces that define and influence state education policy. In practice, some state laws permit such an extent of private discretion and so little state or local control that the charter school leans far more toward being a private or sectarian school than a public school. Too, state laws differ in that some may limit the number of charter schools or the number of students permitted to enroll in such schools. Others designate
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various agencies that can sponsor charter schools, such as state boards of education, local school boards, chief state school officers, boards of community colleges, boards of public universities, state boards of regents, or special state charter boards. In some states, charters may be granted to schools that were previously public schools or to schools that were previously private. The exact legal status of charter schools may also vary among states. Charter schools may be independent entities, corporate entities, or nonprofit organizations, or may remain an organizational component of the local school district. A range of conditions may govern employment of personnel, including independent employment with the charter school as the employer or as public employees remaining within the personnel system of the local school district. In some states, charter schools are subject to public collective-bargaining laws, and in other states the statutes are silent on the subject. Therefore, state charter school legislation ranges from sincere attempts to improve the public schools by providing greater parental choice and involvement in the educational processes to the obvious efforts to simply divert public funds for private gain. In a relatively short time, charter school litigation has become a cottage industry. In Pennsylvania alone over two dozen appellate court cases have been launched. Originally, the litigation pertained to the state constitutionality of legislation creating charter schools with issues pertaining to the “splintering” of the public schools,77 to problems of racial,78 ethnic,79 and religious80 discrimination; however, recent legal contests have had to do with more pedestrian questions of state statutory intent regarding approval of applications of charters,81 audits of charter school finances,82 accountability and academic standards,83 control of curriculum,84 health and safety,85 demonstrated sustainable financial support,86 funding by the local education agency,87 financing of charter school facilities,88 and a host of other issues, all of which involve judicial interpretation of state charter school statutory provisions. However, the most important legal issues involve the effect of the charter school concept in changing the structure of public schools. The essence of charter schools legislation among the states is that it shifts the control and conduct of the school from public school boards made up of elected local citizenry to private boards, once removed from direct public influence, governed
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by board members who are not elected by the public. The contractual arrangements between state boards of education and/or local boards and the charter school corporate entity is, thus, a major structural change in how the public common schools of the United States have historically functioned as organs of the polity. Cases that probably best describe the basic structural change in public education are increasingly better defined by ongoing litigation. Three cases are particularly informative. In one of these the New Jersey Supreme Court89 clearly and concisely gives legal definition to the charter school: Charter schools are public schools, which through legislative authorization are free from many state and local regulations. Charter schools have more autonomy than other public schools in staffing, curriculum, and spending choice. . . . Such schools actually are accountable to several groups for both their academic results and fiscal practices, including the charter schools’ governmental approving authority, the individuals who organize the schools, and the public that funds them.90
Importantly, it should be added that, by and large, charter schools avoid public school teacher unions and administrative “inconveniences” such as tenure for teachers and much of the attendant complications emanating therefrom that may vest teachers with constitutional property and liberty interests. Yet, the charter schools themselves may generally have governmental protections from liability for tort claims,91 and/ or have immunity from state laws that specify conditions and procedures for private contracts with public bodies. In this regard, at least one state court has held that the charter school agreement with the state or local school district is not in fact a “contract,” but rather is “a grant of power to the charter school board of directors.”92 The most important cases, though, have dealt with issues pertaining to how structural variances of charter schools have induced state constitutional challenges. Principal among these are a Michigan case, Council of Organizations and Others for Education About Parochiaid, Inc. v. Governor;93 a Utah case;94 and a California case, Wilson v. State Board of Education.95 The Michigan Supreme Court upheld the constitutionality of the state charter school law
that had been amended so as not to offend the Michigan constitutional prohibition against giving public monies to church schools. The Michigan court also rejected the plaintiff’s argument that charter schools were private schools, and receipt of public funds by private entities violated that state’s constitutional provision that forbids using public funds for private purposes. The court reasoned that charter schools, although not normal public schools, were nevertheless under the general supervision of the state board of education that had statutory authority to approve charter schools.96 The Utah case sets out clearly a basic question regarding the constitutional authority of the state legislature to deviate from the traditional organization of public schools where local school boards, elected by the citizenry, have the policy oversight of public schools. The crux of the case was whether the legislature was vested with sufficient constitutional latitude to prescribe a new and different role for a state board of education. The California case mentioned previously addresses the philosophical and legal objectives regarding charter schools, primarily noting that although charter schools do represent a modification in the traditional structure of public schools, the legislation does not create a separate school system which would violate the state constitution. This case is set forth in part below.
Charter Schools Act of California Creating Legal Basis for Charter Schools as an Aspect of the Public School System Comports with Requirements of the California Constitution
Wilson v. State Board of Education Court of Appeal, First District, Division 4, California, 1999. 75 Cal. App. 4th 1125, 89 Cal. Rptr. 2d 745
REARDON, J. “Charter schools are grounded in privatesector concepts such as competition-driven improvement . . . , employee empowerment, and
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Charter Schools
customer focus. But they remain very much a public-sector creature, with in-bred requirements of accountability and broad-based equity. Simple in theory, complex in practice, charter schools promise academic results in return for freedom from bureaucracy.” Charter schools are a phenomenon of the 1990’s. With the Charter Schools Act of 1992, California became the second state to enact charter school legislation. . . . New provisions have been added. Troubled by what they see as a multifaceted assault on the California Constitution, appellants aim to halt the march of the charter school movement in California through a facial challenge to the Charter Schools Act and Assembly Bill No. 544. They have petitioned for a writ of mandate commanding the Board to refrain from (1) granting any charters under Assembly Bill No. 544 or the original legislation, and (2) expending any public funds in implementing those laws. Their petition has been denied. On appeal appellants roll out a slate of errors. None have merit. Anyone closely allied with a public school— whether a parent or family member of a student, or a teacher, administrator or classified staff member—can attest to the perils resident in the complex tangle of rules sustaining our public school system. These include the potential to sap creativity and innovation, thwart accountability, and undermine the effective education of our children. The 1992 legislation sought to disrupt entrenchment of these traits within the educational bureaucracy by encouraging the establishment of charter schools. Specifically, it permitted the founding of 100 charter schools statewide and up to ten in any district. These schools would be free from most state laws pertaining uniquely to school districts. Each would receive a five-year revocable charter upon successful petition to the school district governing board or county board of education, signed by a specified percent of teachers. The original enactment set out six goals: (1) improving pupil learning; (2) increasing learning opportunities, especially for low-achieving students; (3) encouraging use of different and innovative teaching methods; (4) creating new professional opportunities for teachers, including
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being responsible for the school site learning program; (5) providing parents and students with more choices in the public school system; and (6) holding schools accountable for measurable pupil outcomes and providing a way to change from rule-based to performance-based accountability systems. Charter schools nonetheless were—and are— subject to important restraints: (1) they must be nonsectarian in their programs, admission policies, employment practices, and all other operations; (2) charter schools cannot charge tuition or discriminate against any student on the basis of ethnicity, national origin, gender or disability; and (3) no private school can be converted to a charter school (former [and current]). The petition to establish a charter school was, and is, a comprehensive document which must, among other items, set forth (1) a description of the educational program; (2) student outcomes and how the school intends to measure progress in meeting those outcomes; (3) the school’s governing structure; (4) qualifications of employees; (5) procedures to ensure the health and safety of students and staff; (6) means of achieving racial and ethnic balance among its students that reflects the general population within the territory of the school district; (7) admission requirements, if applicable; (8) annual audit procedures; (9) procedures for suspending and expelling students; and (10) attendance alternatives for students who choose not to attend charter schools. Under the 1992 scheme, upon receiving a duly signed charter petition and convening a public hearing on its provisions, the school district had discretion to grant or deny the charter. The granting of a charter exempted the school from laws governing school districts except, at the school’s option, provisions concerning participation in the state teacher’s retirement system. Denial of a charter could trigger procedures for reconsideration, at petitioner’s request. Charter schools were, and are, required to meet statewide performance standards and conduct certain pupil assessments. The chartering authority could, and can, revoke a charter for various deficiencies including charter or legal violations and failure to meet student outcomes. AB 544 substantially revamped the 1992 enactment. . . .
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New provisions include the following: (1) no funds will be given for any pupil who also attends a private school that charges his or her family for tuition; (2) all charter school teachers must hold a Commission on Teaching Credentialing certificate or equivalent; (3) petitioners must provide the chartering authority with financial statements that include a proposed first-year operational budget and three-year cash-flow and financial projections; (4) charter schools must use generally accepted accounting principles in conducting the required annual financial audits, and any exceptions or deficiencies identified during the audit must be resolved to the satisfaction of the chartering authority. SB 434 further refines the Charter Schools Act. Starting January 1, 2000, charter schools must (1) at a minimum, offer the same number of instructional minutes per grade level as required of all school districts and (2) maintain written contemporaneous records documenting pupil attendance and make the same available for audit and inspection. As well, as a condition of apportionment of state funding, charter schools must certify that its pupils have participated in the state testing program in the same manner as all other pupils attending public schools. Further, charter schools which provide independent study must comply with statutory requirements and implementing regulations that relate to independent study. And finally, in keeping with this sentiment, charter schools will be held to the same prohibition as local education agencies when it comes to extending funds or value to pupils in independent study programs (or their parents or guardians): They cannot claim state funding if the funds or other value so extended could not legally be extended to similarly situated pupils of a school district (or their parents or guardians). Appellants have provoked a facial challenge to the Charter Schools Act and the AB 544 amendments. This comes with a formidable burden commensurate with the outcome of a successful assault—namely, invalidation of a legislative act. The California Constitution is a limitation on the powers of the legislature, and we construe such limits strictly. Thus, when scrutinizing the constitutionality of a statute, we start with the premise of validity, resolving all doubts in favor of the Legislature’s action. This presumption
of constitutionality is particularly appropriate where, as here, the Legislature has enacted a statute with the pertinent constitutional prescriptions in mind. . . . As a preamble to addressing the amalgam of constitutional objections laid out in this appeal, we emphasize that the Legislature’s power over our public school system is plenary, subject only to constitutional restraints. Since 1879 our Constitution has declared the Legislature’s preeminent role in encouraging education in this state, as well as its fundamental obligation to establish a system of public schools: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.” (Art. IX, § 1.) “The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.” (§ 5) There can thus be no doubt that our Constitution vests the Legislature with sweeping and comprehensive powers in relation to our public schools including broad discretion to determine the types of programs and services which further the purposes of education. Appellants first maintain that the 1998 AB 544 amendments violate Article IX, section 5 because they amount to abdication of any state control over essential educational functions, e.g., control over curriculum, textbooks, educational focus, teaching methods and operations of charter schools. This is so, they argue, because the parents and teachers who write the charters and the grantees who operate the schools now run the show with respect to all these functions. Appellants confuse the delegation of certain educational functions with the delegation of the public education system itself. As explained in California Teachers Assn. v. Board of Trustees, the public school system is the system of schools, which the Constitution requires the Legislature to provide—namely kindergarten, elementary, secondary and technical schools, as well as state colleges—and the administrative agencies that maintain them. (See Art. IX, § 6 [delineating features of public school system].) However, the
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Charter Schools
curriculum and courses of study are not constitutionally prescribed. Rather, they are details left to the Legislature’s discretion. Indeed, they do not constitute part of the system but are merely a function of it. The same could be said for such functions as educational focus, teaching methods, school operations, furnishing of textbooks, and the like. Moreover, appellants take too myopic a view of what it means for the state to retain control of our public schools, including charter schools. The Charter Schools Act represents a valid exercise of legislative discretion aimed at furthering the purposes of education. Indeed, it bears underscoring that charter schools are strictly creatures of statute. From how charter schools come into being, to who attends and who can teach, to how they are governed and structured, to funding, accountability, and evaluation— the Legislature has plotted all aspects of their existence. Having created the charter school approach, the Legislature can refine it and expand, reduce, or abolish charter schools altogether. In the meantime, the Legislature retains ultimate responsibility for all aspects of education, including charter schools. “ ‘Where the legislature delegates the local functioning of the school system to local boards, districts or municipalities, it does so, always, with its constitutional power and responsibility for ultimate control for the common welfare in reserve.’ ” Appellants further complain that AB 544 has spun off a separate system of charter public schools that has administrative and operational independence from the existing school district structure, and whose courses of instruction and textbooks may vary from those of non-charter schools. Such splintering, appellants charge, violates the article IX, section 5 mandate to the Legislature to provide a “system of common schools.” Article IX, section 6 defines “Public School System” as including “all kindergarten schools, elementary schools, secondary schools, technical schools, and state colleges, established in accordance with law and, in addition, the school districts and the other agencies authorized to maintain them.” The key terms in these provisions are “common” and “system.” The concept of a “common” school is linked directly to that of a “free school,”
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which the Constitution mandates must be “kept up and supported” in each district for a prescribed annual duration. (Art. IX, § 5.) . . . As to the concept of a “system,” we note that early on in California history “the contest was between a state system and a local system of common schools.” The notion of a single state system, under state control, prevailed. Thus, the term “system” has come to import “ ‘unity of purpose as well as an entirety of operation, and the direction to the legislature to provide “a” system of common schools means one system which shall be applicable to all the common schools within the state.’ ” (Serrano v. Priest (1971).) This means that the educational system must “be uniform in terms of the prescribed course of study and educational progression from grade to grade.” From this perspective it is apparent that charter schools are part of California’s single, statewide public school system. First, the Legislature has explicitly found that charter schools are (1) part of the article IX “Public School System”; (2) under its jurisdiction; and (3) entitled to full funding. (§ 47615, subd. (a).) These findings are entitled to deference. As well, the Legislature has directed that the Charter Schools Act “shall be liberally construed to effectuate [these] findings. . . .” Second, the establishment of charter schools does not create a dual system of public schools, as, for example, would be the case if there were a competing local system. Rather, while loosening the apron springs of bureaucracy, the Act places charter schools within the common system of public schools, as the following provisions illustrate: Charter schools by law are free, nonsectarian, and open to all students. They cannot discriminate against students on the basis of ethnicity, national origin, gender, or disability. Further, charter schools must meet statewide standards and conduct pupil assessments applicable to pupils in non-charter public schools; must hire credentialed teachers; and are subject to state and local supervision and inspection. Finally, charter schools must offer the minimum duration of instruction as required of all other public schools. . . . In sum, it is clear that the Act brings charter schools within the system uniformity requirement because (1) their students will be taught by teachers meeting the same minimum
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requirements as all other public school teachers; (2) their education programs must be geared to meet the same state standards, including minimum duration of instruction, applicable to all public schools; and (3) student progress will be measured by the same assessments required of all public school students. Moreover, the Act assures that charter schools will receive funding comparable to other public schools. In addition, it guards against the flow of funds to schools outside the system. For example, the Act prohibits the conversion of private schools to charter schools. It also bars charter schools from receiving any public funds for any pupil also attending a private school that charges the family for tuition. Next, appellants contend that charter schools offend constitutional provisions calling for public schools to be under the exclusive control of officers of the public school system, as well as under the jurisdiction of that system. We find no problem. Article IX, section 8 provides in part: “no public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools. . . .” This section endeavors to (1) prohibit the use of public funds to support private schools, whether sectarian or not; and (2) preserve strict separation between religion and public education. . . . First, the terms of AB 544 belie these contentions. To begin with, charter schools are public schools because, as explained above, charter schools are part of the public school system. Further, the Legislature has specifically declared that charter schools are under “the exclusive control of the officers of the public schools” and directs us to construe the law liberally to effectuate that finding. Second, . . . charter schools are not in opposition to the public school system. On the contrary, they are a part of that system. Although they have operational independence, an overarching purpose of the charter school approach is to infuse the public school system with competition in order to stimulate continuous improvement in all its schools. Third, we wonder what level of control could be more complete than where, as here, the very destiny of charter schools lies solely in the hands
of public agencies and offices, from the local to the state level: school districts, county boards of education, the Superintendent, and the Board. The chartering authority controls the application approval process, with sole power to issue charters. . . . The Board, upon recommendation from the Superintendent, can . . . revoke any charter or take other action in the face of certain grave breaches of financial, fiduciary, or educational responsibilities. Additionally, the Board exercises continuous control over charter schools through its authority to promulgate implementing regulations. Finally, public funding of charter schools rests in the hands of the Superintendent. Fourth, the sum of these features, which we conclude add up to the requisite constitutional control over charter schools, are in place whether a school elects to “operate as, or be operated by, a nonprofit public benefit corporation” or whether it remains strictly under the legal umbrella of the chartering authority. In other words, even a school operated by a non-profit could never stray from under the wings of the chartering authority, the Board, and the Superintendent. . . . Fifth, speaking directly to appellants’ repeated concern that charter grantees will be making decisions about curriculum and similar educational functions and, thus, the necessary control element abandoned, we reiterate that these functions are details left to legislative discretion. . . . Sixth, as to appellants’ point that charter grantees are not officers of public schools, the law again belies this proposition. . . . . . . Thus, under this scheme, charter school officials are officers of public schools to the same extent as members of other boards of education of public school districts. So long as they administer charter schools according to the law and their charters, as they are presumed to do, they stand on the same constitutional footing as noncharter school board members. If they violate the law, the charter will be revoked. . . . Appellants’ greatest misgiving is their assessment that the current scheme “requires the issuance of a school charter to every church or sect who otherwise qualifies to be a charter grantee. . . .” . . . Moreover, appellants are dismayed that the Act does not specifically sanction charter revocation in the event a school is or becomes controlled by a religious sect. Accordingly, they are adamant that churches and other sectarian
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Charter Schools
groups will and must be permitted to operate and control charter schools, all in defiance of article XVI, section 5 and article IX, section 8. The antidote to these concerns is found in the Act itself. Charter petitioners must affirm that their school will be nonsectarian in its programs and operations. A petition lacking such affirmation can be denied. But what if the petition contained the requisite affirmation but petitioners nonetheless were controlled by a religious organization? In that event, the chartering authority could deny the petition because petitioners were “demonstrably unlikely to successfully implement the program set forth in the petition,” most notably its nonsectarian premise. . . . Appellants’ final protest concerns the effect of the unamended Charter Schools Act, should we strike AB 544. They insist that the underlying enactment amounts to an unconstitutional delegation of legislative powers to the Board and other chartering authorities. . . . Here, the Legislature made the fundamental policy decision to give parents, teachers, and community members the opportunity to set up public schools with operational independence in order to improve student learning, promote educational innovation, and accomplish related public education goals. . . . Having set the policy and fixed standards and limits, the Legislature did its job: “In the educational setting, legislatures rarely control public school operations directly, but delegate authority which permits state, regional, and local education agencies to establish school policies and practices.” Reasonable grants of power to administrative agencies will not offend the non-delegation doctrine so long as adequate safeguards exist to protect against abuse of that power. Here, procedures are in place to safeguard the chartering authority decision-making process. . . . Finally, while it is obvious that appellants wish for more-and-more detailed standards and guidelines, more could not be better in this situation where a primary purpose of the Act is to encourage educational innovation, experimentation, and choice in order to improve learning and expand learning opportunities for all students. How can you write the score to a symphony yet to be created? The Charter Schools Act rests on solid constitutional ground. We affirm the judgment.
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CASE NOTES 1. A Colorado appeals court, 2009, held that a statute creating a state agency to authorize state-run charter schools as an alternative to locally authorized charter schools did not violate a provision of the Colorado Constitution limiting the state board of education’s power over public schools to generally supervisory powers. The constitutional provision requiring the Colorado legislature to establish and maintain a “thorough and uniform” system of free public schools did not prohibit the legislature from establishing a “second and different system” governed by persons outside the local community. Boulder Valley School District RE-2 v. Colorado State Board of Education, 217 P. 3d 918 (Colo.App. 2009). See also: Utah School Boards Association v. Utah State Board of Education, 17 P. 3d 1125 (2001). 2. The power to approve charter schools may be vested in the state board of education, local school boards, or in specially created state charter appeals boards. Conflict among these boards is almost inevitable when local boards reject charter school applications and appeals are made to the state level. One such high-profile case transpired in Colorado when the Denver Board of Education rejected a charter school application and an appeal was taken to the state board of education, whereupon the state board remanded the application back to the Denver Board for reconsideration. Again, the Denver Board denied the application and the applicants appealed again. The state board then overruled the local denial and compelled the Denver Board to approve the application. On appeal, the Colorado Supreme Court held that the Colorado Constitution vested the state board with general supervisory powers that permitted it to be the ultimate regulatory arbiter of such education matters. Further, the court upheld the legislature’s allocation in the charter school law of powers between the state board and the local boards. Board of Education of School District No. 1, Denver v. Booth, 984 P. 2d 639 (Colo. 1999). 3. One important difficulty with constitutional overtones arises when states do not exercise adequate supervisory powers to ensure that racial discrimination does not occur. In South
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Carolina, when a group seeking to form a charter school failed to identify the racial makeup of prospective students, the state’s Supreme Court ruled for the school board in rejecting the application. The potential for use of charter schools as a device for fostering separation will almost certainly constitute a continuing area of legal activity. Beaufort County Board of Education v. Lighthouse Charter School Committee, 335 S.C. 230, 516 S.E.2d 655 (S.C. 1999). 4. As noted above in the text, racial and ethnic segregation is a major concern with charter schools. In a challenge contesting the decision of a local school board to close a neighborhood elementary school and open a charter school, Hispanic parents claimed that the impact was discriminatory in violation of the Equal Protection Clause of the Fourteenth Amendment and the Civil Rights Act of 1964. The U.S. Court of Appeals, Tenth Circuit, held that the parents had failed to show that the action discriminated against Hispanic students. The court found that the State of Colorado had a legitimate interest in enacting a Charter Schools Act designed to increase educational opportunities for at-risk students, as this school was designed to do. Moreover, the court found that under the Act, the charter school must admit all children on an equal basis who are not classified as at risk. Villanueva v. Carere, 85 F. 3d 481 (10th Cir. 1996). 5. The New Jersey Charter School Law, enacted in 1995, was held to be constitutional so long as its implementation did not violate the “thorough and efficient” clause of the state constitution. In re Grant of Charter School Application of Englewood on Palisades Charter School, 164 N.J. 316, 753 A. 2d 687 (N.J. 2000). 6. For-profit companies have been very active in the charter school market and are increasingly consuming greater public school funds for their operations. The question arises, of course, as to the prerogatives of local school districts in relationship to these private companies. When Lincoln-Edison, a nonprofit corporation, submitted a charter school application to a local Pennsylvania school district seeking to convert an elementary school to a charter school managed by Edison Schools, Inc., a for-profit company, the local school district denied the
application. Upon appeal, the State Charter appeal board reversed. On appeal to the court, the local school district argued that the management agreement, among other things, denied the local school trustees oversight of the school and improperly delegated control over teachers to the for-profit company. The court held against the local trustees, finding that because the trustees retained authority as a contracting party, it could oversee the corporation’s operations and thereby fulfill its public responsibility. School District of City of York v. Lincoln-Edison Charter School, 798 A. 2d 295 (Pa. Commw. Ct. 2002). See also Brockbill v. Ron Brown Charter School, 777 A. 2d 131 (Pa. Commw. Ct. 2001); Souderton Area School District v. Souderton Charter School Collaborative, 764 A. 2d 688 (Pa. Commw. Ct. 2000); Boyertown Area School District v. Department of Education, 787 A. 2d 421 (Pa. Commw. Ct. 2002). 7. With regard to federal money flowing to for-profit charter schools, the U.S. Court of Appeals, Ninth Circuit, has interpreted the provisions of ESEA and IDEA to prohibit states from distribution of those funds to for-profit entities. The court in making this determination relied on the “plain meaning” of the wording of the federal statutes, their legislative history, and the U.S. Department of Education’s interpretations of the law. Arizona State Board for Charter Schools v. U.S. Department of Education, 464 F.3d 1003 (9th Cir. 2006). 8. Since charter schools, themselves, are creatures of the state legislatures, procedures for their creation and funding are a matter of specific state statutory provision. A substantial amount of litigation has ensued as a result of denials of applications for state or local charters for charter schools. See: Comprehensive Community Solutions v. Rockford School District, No. 205, 216 Ill. 2d 455, 837 N.E.2d 1 (Ill. 2005); School Board of Osceola County v. UPC of Central Florida, 905 So.2d 909 (Fla. Dist. Ct. App. 2005); Central Dauphin School District v. Founding Coalition of Infinity Charter School, 847 A. 2d 195 (Pa. Commw. Ct. 2004). 9. Further, litigation continues to mount as charter schools scramble for more public funding in competition with traditional public schools. Contests over facilities, transportation, and
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Tuition and Fees in Public Schools
current operating funds are common issues. See: Ridgecrest Charter School v. Sierra Sands Unified School Dist., 130 Cal. App. 4th 986, 30 Cal. Rptr. 3d 648 (Cal. Ct. App. 2005), transportation; see: Racine Charter One v. Racine Unified School District, 424 F. 3d 677 (7th Cir. 2005), tuition and transportation; see: Mosaica Academy Charter School v. Commonwealth Department of Education, 572 Pa. 191, 813 A. 2d 813 (Pa. 2002); and per pupil expense allocations, Francine Delany New School for Children, Inc. v. Asheville City Board of Education, 536 S.E.2d 92 (N.C. Ct. App. 2002).
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Tuition and Fees in Public Schools
Courts have generally held that tuition fees; “matriculation” or “registration” fees; and fees for materials, activities, or privileges cannot be levied in public schools.97 In most cases invalidating fees, the courts have reasoned that the fee was charged as a condition of attendance, which violated the states’ constitutional or statutory provisions establishing “free” public schools. In deciding whether school districts in California could charge a fee for participation in extracurricular activities such as dramatic productions, music groups, and cheerleading, fees were imposed by school districts without the benefit of statutory authorization. The court determined that extracurricular activities constitute “an integral component of public education” and are a “fundamental ingredient of the educational process.”98 Therefore, no fee for these activities may be charged because of the constitutional free school guarantee. Later, a California legislature authorized local districts to charge a transportation fee to non-indigent parents and guardians. This fee was also challenged under the free school guarantee of the state constitution, as in the Hartzell case. The California Supreme Court ruled that because transportation is not an educational activity, it was not protected by the reasoning in Hartzell. The free school provision of the state constitution applies to educational activities, and noneducational activities such as transportation are not required to be free.99 Another reason often given by the courts for invalidating fees is the lack of statutory authority
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to exact the fee. Courts have usually held fees invalid when the fees have been charged for an essential element of a school’s activity. When fees have been upheld, the courts have found that there was statutory authorization for the fee, that the purpose for the fee was a reasonable one, or that the term free schools did not include the item, such as textbooks, for which the school was charging. 100 Courts have, on occasion, distinguished tuition fees from incidental fees, and, in one jurisdiction, a court has upheld an incidental fee of 25 cents per pupil per month to be used for raising funds to pay for fuel to heat the schoolroom, for brooms to sweep the schoolroom, and for water buckets to contain water.101 In the same jurisdiction, an incidental fee for improvement of grounds, insurance, and other incidental expenses did not violate the state constitution.102 In other jurisdictions, incidental fees have been held invalid. In Georgia, 103 a very early decision held that a state statute requiring each child upon entering a municipal public school to pay the board of education an “incidental fee” was “clearly unconstitutional.” However, a court in Illinois ruled that the state constitutional provision requiring the establishment of a thorough and efficient system of free schools did not prevent the state legislature from authorizing school boards to purchase textbooks and rent them to pupils.104 In most cases, fees for activities, materials, or privileges have been held invalid. 105 A $25 annual fee required by one school district as a condition of furnishing each high school student a transcript of courses studied and grades achieved was held to be unconstitutional in Idaho.106 The fee consisted of $12.50 for school activity fees and $12.50 for textbook fees, and it had to be paid before a student could receive a transcript. Responding to each of these fees separately, the court reasoned that the student activity fee was imposed on all students whether they participated in extracurricular activities or not. Therefore, the fee was on attendance, not on activity, and as such contravened the state constitutional mandate that public schools be free. The court did note that since social and extracurricular activities were not necessarily principal elements of a high school career, the state constitution did not prohibit the school district from setting activity fees for students
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who voluntarily participated. With regard to the textbook fee, the court observed that since textbooks were necessary to the school, they were indistinguishable from other fixed educational expense items, such as building maintenance and teachers’ salaries, for which fees could not be charged.107 The requirement that pupils purchase textbooks and school supplies has been held invalid in Michigan.108 In this case, the school district maintained that the word free in the state constitution did not include textbooks and supplies. The Michigan Supreme Court held that books and supplies were necessary elements of any school’s activity and an integral and fundamental part of elementary and secondary education.
Fee for Textbooks and Materials Violates the Free Public Schools Provision of the State Constitution
Randolph County Board of Education v. Adams Supreme Court of Appeals of West Virginia, 1995. 467 S.E.2d 150.
CLECKLEY, Justice. The plaintiff below and appellant herein, Randolph County Board of Education (Board), appeals from an order of the Circuit Court of Randolph County, which held in a declaratory judgment action that it was unconstitutional for the board to charge parents of non-needy school children a book user fee for school books and materials necessary for the completion of the “required school curriculum. . . .” According to the defendants below and appellees herein, the Board’s book user fee essentially amounted to tuition because the fee was mandatory on a non-needy basis regardless of what type of books and materials was given to the child and regardless of whether the parents purchased textbooks through private vendors. The Board claims, and there is no evidence to the contrary, that no student was deprived of a textbook or restricted from school based on
non payment of the book user fee. The Board created a standard for classifying students by economic need by relying on a list of children actually receiving reduced cost or free meals through a school lunch program. . . . In this appeal, we are asked to clarify, if not define, what is meant in the West Virginia Constitution by “free schools.” . . . The textbook user fee system at issue was adopted by the Board in response to an unfortunate reality: the rejection of a school levy by the citizens of Randolph County that, if passed, would have avoided the necessity for the adoption of such a fee. Nevertheless, we now determine that the “free schools” clause prevents local school authorities from charging students and their parents a fee for the use of necessary textbooks. In voiding the fee under the West Virginia Constitution, we attempt to avoid engrafting upon this constitutional provision a judicial gloss so protean, elusive, or arbitrary as to prevent the political branches from performing their mandatory constitutional function of providing “for a thorough and efficient system of free schools.” Our cautious approach in construing Section 1, therefore, is intended not to excessively encroach on the powers which the Constitution has reserved for the Legislature. . . . The “free schools” clause contained in Section 1 of Article XII of the West Virginia Constitution provides: “the Legislature shall provide, by general law, for a thorough and efficient system of free schools.” Its central mandate is to require equal and quality educational opportunities for all West Virginians. Though the application of this imperative raises difficult choices and questions, the framers of our Constitution enacted Section 1 to facilitate public access to education. Premised on the belief that an educated electorate is vital to the proper operation of a democracy, Section 1 is intended to create an expedient for achieving this end while at the same time making the Legislature responsible for raising funds for that purpose. We, therefore, proceed to the basic interpretive question aware that we are interpreting a constitutional provision that seeks broadly to overcome all hostility to quality public education. . . . Section 1 of Article XII of the West Virginia Constitution creates a strong presumption in favor of making everything that is deemed
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Tuition and Fees in Public Schools
a necessary component to public education cost-free. When a board of education seeks to charge parents for their children’s participation in public education, the board bears a heavy burden in rebutting this constitutionally based presumption. To provide otherwise would render the constitutional guarantee of a free public education an empty and cruel illusion. With this background we turn to the central issue in this case: whether a county board of education may charge a book user fee to non-needy school children. The Board points to various statutes, case law, the West Virginia Constitution, and its financial problems to justify charging the book user fee to non-needy students. The defendants argue, on the other hand, that the book user fee is unconstitutional and ultra vires. More specifically, the parties focus on whether the phrase “free school” includes the distribution of textbooks to all students without charge. . . . At first glance, the “free schools” language of Section 1 of Article XII seems clear and unambiguous. However, the word “free” can be a word of many meanings and its construction is often influenced by its context. When used as an adjective, the word takes on many different connotations. Because the word “free” is open to divergent interpretations, we must examine the word in the context of this constitutional provision. Without doubt, the drafters of the Constitution intended to create a system of free public schools. . . . Our basic law makes education’s funding second in priority only to payment of State debt, and ahead of every other State function. Our Constitution manifests, throughout, the people’s clear mandate to the Legislature, that public education is a prime function of our State government. [Therefore, w]e must not allow that command to be unheeded. Pauley v. Kelley, 162 W.Va. 672, 719, 255 S.E.2d 859, 884 (1979). . . .
In . . . State ex rel. Board of Education for the County of Grant v. Manchin, 179 W. Va. 235, 366 S.E.2d 743 (1988), we stated: The mandatory requirements of “a thorough and efficient system of free schools” found in Article XII, Section 1 of the West Virginia Constitution, make education a fundamental, constitutional right in this State. . . .
[I]t is clear that the Constitution provides a clear entitlement to a basic education. Although
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we have never interpreted the “free schools” portion of Section 1 of Article XII, we have considered what the “thorough and efficient” portion of this section and article means in relation to a school system. We define a “thorough and efficient” system of schools as: “It develops, as best the state of education expertise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupations, recreation and citizenship, and does so economically.” . . . . . . We recognize that part of the goal of the school system is to instruct students so they might become well-rounded, academically talented, and productive citizens. How one goes about this task and what materials are used are key. For this reason, we find that whatever items are deemed necessary to accomplish the goals of a school system and are, in fact, an “integral fundamental part of the elementary and secondary education” must be provided free of charge to all students in order to comply with the constitutional mandate of a “free school” system. . . . Are the textbooks and materials at issue in this case such an “integral fundamental part of the elementary and secondary education” that they must be provided free? We find that the answer to this question is “yes.” Of course, providing a place of instruction and qualified teachers are extremely important; however, hindering access to necessary materials would make the educational process nearly meaningless. . . . Throughout the history of this State, we have taken great strides to ensure that each child has an equal opportunity to receive a quality education. . . . Specifically, textbooks have always been an important issue in the great educational debate. Moreover, there generally has been a “push” to equalize education and providing “free textbooks followed as a matter of course.” . . . Various legislative enactments and case law have solidified the concept that free textbooks are a fundamental part of the learning experience. Even in the general authorization of power to the State Board of Education, the Legislature indicated that the supervision over the distribution of free textbooks was one of the duties of the State Board. . . . [T]he Board [argues] that never in the history of this State has it been required to provide textbooks free of charge for all students.
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By narrowly focusing on the failure to provide textbooks in the past, the Board fails to embrace the full history surrounding the educational system in this State. Although Section 1 of Article XII provides textual support for the right to a free education, it is clear the framers intended and the populace continues to support the notion that all students are entitled to a basic level of education free of budgetary concerns. History is indeed very important, but it alone cannot be permitted to overwhelm or replace the constitutional provision in question. . . . What may have been fundamental for a quality education in the past does not make it necessarily so now. Textbooks for modern students are a fundamental part of the learning experience. To find otherwise would ignore reality and, moreover, constitutional mandates. . . . Balancing constitutional mandates with fiscal constraints while still maintaining quality educational programs has placed a tremendous burden on school systems to make difficult choices. We understand and sympathize with the Board concerning its dire financial straits. However, its extreme need is still no justification for a violation of rights of constitutional magnitude. . . . The dilemma faced by the Board is indistinguishable from any number of difficult choices that governmental agencies must make under our constitutional system. Section 1 necessarily exerts pressure on our Legislature and boards of education to make hard—and sometimes undesirable—decisions while staying within constitutional limitations. Thus, we are compelled to underscore that financial hardship is an insufficient basis for ignoring the West Virginia Constitution. The imposition of these difficult choices is an inevitable and unavoidable attribute that emanates from our Constitution. Although we find our interpretive choice difficult, we believe that our interpretation is most faithful to the Constitution. Concededly, our interpretation limits the Legislature’s and the Board’s authority to carry out their mandate of providing “for a thorough and efficient system of free schools.” The history of Section 1, to the extent informative, indicates that the framers saw the word “free” as part of a guarantee that education in West Virginia would remain user friendly and that the financial burden to achieve this purpose would be shared generally
by the taxpayers of West Virginia. The context of Section 1 confirms this understanding of the framers’ intent. . . . Accordingly, for the reasons discussed above, we affirm the judgment of the Circuit Court of Randolph County. Affirmed.
State Constitutional Provision for Free Public Schooling Prohibits Fees for Either Regular or Extracurricular Programs
Hartzell v. Connell Supreme Court of California, In Bank, 1984. 35 Cal. 3d 899, 201 Cal. Rptr. 601, 679 P. 2d 35.
BIRD, Chief Justice. May a public high school district charge fees for educational programs simply because they have been denominated “extracurricular”? The Santa Barbara High School District (District) offers a wide variety of extracurricular activities, ranging from cheerleading to madrigal singing, and from archery to football. Many of these activities are of relatively recent origin. For example, in 1956, Santa Barbara High School fielded six athletic teams while today there are thirty-eight. Prior to the 1980–1981 school year, any student could participate in these activities free of charge. The programs were financed by a combination of District contributions (mostly state aid and local tax revenues), ticket sales, and fundraising activities conducted by the constituent high schools. In the spring of 1980, the District school board (Board) decided to cut its budget by $1.1 million. This decision reflected a drop in revenues due to the combined effects of inflation, declining enrollment, and the adoption of Proposition 13. Among the items to be reduced was the District’s contribution to the high school extracurricular programs. The Board considered two plans for adapting the programs to fit its reduced budget. The first plan called for a major cut in interscholastic athletic competition, including the reduction of the
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Tuition and Fees in Public Schools
high school program from over thirty teams to only eight and the elimination of interscholastic competition at the ninth-grade level. Under this plan, the surviving programs were to remain open to all students free of charge. The second plan provided for a less extensive cut in athletic competition—elimination of the ninthgrade program only. To make up the difference, it proposed to raise money by charging students fees for participation in dramatic productions, musical performances, and athletic competition. The Board chose the second option. Under the plan finally adopted, students are required to pay $25 for each athletic team in which they wish to participate, and $25 per category for any or all activities in each of the following four categories: (1) dramatic productions (e.g., plays, dance performances, and musicals); (2) vocal music groups (e.g., choir and madrigal groups); (3) instrumental groups (e.g., orchestra, marching band, and related groups such as the drill team and flag twirlers); and (4) cheerleading groups. Thus, a student who desires to play football in the fall and tennis in the spring, in addition to participating in a dramatic production, must pay $75. A more musically inclined student, who plays an instrument, sings in a group, and performs in a musical, also pays $75. None of the affected activities yield any credit toward graduation. . . . The teachers of the credit courses also supervise the noncredit performances. . . . In an attempt to ensure that the fees would not prevent any students from participating, the District has implemented a fee-waiver program. Upon a showing of financial need, a student may obtain a “scholarship” to participate without paying the fee. The standard of need is similar to that of the free lunch program. . . . The District’s three high schools granted a total of seventy-seven waivers. . . . Shortly before the start of the 1980–1981 school year, Barbara Hartzell, a taxpayer with two children in the public schools, and the Coalition Opposing Student Fees, a grouping of community organizations, filed this taxpayers’ action against the District, various school officials, and the members of the Board. . . . The California Constitution requires the Legislature to “provide for a system of common schools by which a free school shall be kept up and
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supported in each district. . . . ” (Cal. Const., Art. IX, § 5, emphasis added) This provision entitled “the youth of the State . . . to be educated at the public expense.” (Ward v. Flood (1874) 48 Cal. 36, 51.) Plaintiffs assert that the imposition of fees for educational extracurricular activities violates the free school guarantee. They are correct. The first question raised by plaintiffs’ challenge is whether extracurricular activities fall within the free education guaranteed by section 5. California courts have not yet addressed this issue. The reported decisions from other jurisdictions reveal two distinct approaches. One approach restricts the free school guarantee to programs that are “essential to the prescribed curriculum.” . . . Under this view, the right to an education does not extend to activities that are “outside of or in addition to the regular academic courses or curriculum of a school.” . . . Accordingly, it has been held that students have no right to participate in extracurricular activities. . . . The second approach holds that the free school guarantee extends to all activities which constitute an “integral fundamental part of the elementary and secondary education” or which amount to “necessary elements of any school’s activity.” . . . Courts applying this approach have held that “the right to attend school includes the right to participate in extracurricular activities.” In particular, courts have struck down extracurricular activities fees as unconstitutional. . . . To determine which, if either, of these approaches is consistent with California’s free school guarantee, this court must examine the role played by education in the overall constitutional scheme. Because the nature of the free school concept has rarely been addressed by the courts, it will be necessary to explore its underpinnings in some depth. The free school guarantee was enacted at the Constitutional Convention of 1878–1879. Also adopted was article IX, § 1, which proclaims that “[a] general diffusion of knowledge and intelligence [is] essential to the preservation of the rights and liberties of the people” (emphasis added). . . . Joseph W. Winans, chairperson for the convention’s Committee on Education, elaborated: “Public education forms the basis of self-government and constitutes the very cornerstone of republican institutions.” (Debates
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and Proceedings, Cal. Const. Convention 1878– 1879, p. 1087 [hereafter Proceedings].) In support of section 1, delegate John T. Wickes argued that “a liberal education . . . breaks down aristocratic caste; for the man who has a liberal education, if he has no money, if he has no wealth, he can stand in the presence of his fellowmen with the stamp of divinity upon his brow, and shape the laws of the people. . . . ” (Proceedings at p. 1088.) This theme runs like a unifying thread through the writings of our forefathers. In 1786, Thomas Jefferson wrote from France, then a monarchy: “I think by far the most important bill in our whole code is that for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom, and happiness. . . . ” (Jefferson, Letter to George Wythe, in The Portable Thomas Jefferson (Peterson edit. 1979) pp. 399–400.) John Swett, California’s most prominent free school advocate at the time section 5 was adopted, warned: “Our destruction, should it come at all, will be . . . [f]rom the inattention of the people to the concerns of their government. . . . I fear that they may place too implicit confidence in their public servants and fail properly to scrutinize their conduct. . . . Make them intelligent, and they will be vigilant; give them the means of detecting the wrong, and they will apply the remedy.” (Quoted in Cloud, The Story of California’s Schools, p. 20.) Without education for all, a majority of the people would be—in the words of Horace Mann—“the vassals of as severe a tyranny, in the form of capital, as the lower classes of Europe are bound to in the form of brute force.” (Mann, Twelfth Annual Report, in “Educational Ideas in America: A Documentary History” (Rippa edit. 1969), p. 199.) Perhaps the most eloquent expression of the free school idea came not from a political leader or educator, but from the poet Ralph Waldo Emerson: “We have already taken, at the planting of the Colonies, . . . the initial step, which for its importance, might have been resisted as the most radical of revolutions, thus deciding at the start of the destiny of this country,—this, namely, that the poor man, whom the law does not allow to take an ear of corn when starving, nor a pair of shoes for his freezing feet, is allowed to put his hand into the pocket of the rich, and say, You
shall educate me, not as you will, but as I will: not alone in the elements, but, by further provisions, in the languages, in sciences, in the useful and in elegant arts.” (Emerson, Education, in “Educational Ideas in America: A Documentary History,” supra, at p. 176.) The contribution of education to democracy has a political, an economic, and a social dimension. As this court has previously noted, education prepares students for active involvement in political affairs. . . . Education stimulates an interest in the political process and provides the intellectual and practical tools necessary for political action. Indeed, education may well be “the dominant factor in influencing political participation and awareness.” . . . Without high quality education, the populace will lack the knowledge, self-confidence, and critical skills to evaluate independently the pronouncements of pundits and political leaders. . . . Not only does education provide skills useful in political activity, it also prepares individuals to participate in the institutional structures— such as labor unions and business enterprises— that distribute economic opportunities and exercise economic power. Education holds out a “bright hope” for the “poor and oppressed” to participate fully in the economic life of American society. . . . Finally, education serves as a “unifying social force” among our varied population, promoting cohesion based upon democratic values. . . . The public schools bring together members of different racial and cultural groups and, hopefully, help them to live together “in harmony and mutual respect.” . . . Viewed in light of these constitutionally recognized purposes, the first of the two tests described above is insufficient to ensure compliance with California’s free school guarantee. That approach determines whether a given program falls within the guarantee not by assessing its actual educational value, but by deferring to a school board’s decision on whether or not to offer it for formal, academic credit. Under this test, a for-credit program would fall within the guarantee, while a noncredit program with identical content—and equal value in fulfilling the constitutionally recognized purposes of education— could be offered for a fee.
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Tuition and Fees in Public Schools
The second approach, on the other hand, does not sever the concept of education from its purposes. It focuses not upon the formalities of credit, but upon the educational character of the activities in question. It can no longer be denied that extracurricular activities constitute an integral component of public education. Such activities are “generally recognized as a fundamental ingredient of the educational process.” . . . They are “[no] less fitted for the ultimate purpose of our public schools, to wit, the making of good citizens physically, mentally, and morally, than the study of algebra and Latin. . . .” In a variety of legal contexts, courts have emphasized the vital importance of student participation in educational extracurricular programs. . . . In addition to the particular skills taught, group activities encourage active participation in community affairs, promote the development of leadership qualities, and instill a spirit of collective endeavor. These results are directly linked to the constitutional role of education in preserving democracy, as set forth in article IX, section 1, and elaborated in Serrano I, 96 Cal. Rptr. 601, 487 P. 2d 1241. Accordingly, this court holds that all educational activities—curricular or “extracurricular”— offered to students by school districts fall within the free school guarantee of article IX, section 5. Since it is not disputed that the programs involved in this case are “educational” in character, they fall within that guarantee. Defendants argue, however, that the feewaiver policy for needy students satisfies the requirements of the free school guarantee. They suggest that the right “to be educated at the public expense” . . . amounts merely to a right not to be financially prevented from enjoying educational opportunities. This argument contradicts the plain language of the Constitution. In guaranteeing “free” public schools, article IX, section 5 fixes the precise extent of the financial burden which may be imposed on the right to an education—none. . . . A school which conditions a student’s participation in educational activities upon the payment of a fee clearly is not a “free school.” The free school guarantee reflects the people’s judgment that a child’s public education is too important to be left to the budgetary circumstances
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and decisions of individual families. It makes no distinction between needy and non-needy families. Individual families, needy or not, may value education more or less depending upon conflicting budget priorities. As John Swett, the “father of the California Public School System,” recognized in 1863, “[i]f left to their own unaided efforts, a great majority of the people will fail through want of means to properly educate their children; another class, with means at command, will fail through want of interest. The people then, can be educated only by a system of Free Schools, supported by taxation, and controlled directly by the people.” (Swett, Duties of the State to Public Schools, reprinted in Swett, History of the Public School System of California (1876) p. 110, emphasis added). The free school guarantee lifts budgetary decisions concerning public education out of the individual family setting and requires that such decisions be made by the community as a whole. Once the community has decided that a particular educational program is important enough to be offered by its public schools, a student’s participation in that program cannot be made to depend upon his or her family’s decision whether to pay a fee or buy a toaster. Nor may a student’s participation be conditioned upon application for a special waiver. The stigma that results from recording some students as needy was recognized early in the struggle for free schools. Thaddeus Stevens once declared, in response to an 1835 proposal that teachers keep a list of “poor scholars”: “Sir, hereditary distinctions of rank are sufficiently odious; but that which is founded on poverty is infinitely more so. Such a law should be entitled ‘an act for branding and marking the poor, so that they may be known from the rich and proud.’ ” (Stevens, A Plea for Free Schools, in “Educational Ideas in America: A Documentary History,” supra, at p. 188.) Defendants’ extracurricular programs are not truly “free” even to those students who are eligible for waivers. “[T]o a child or his parents financially unable to pay the additional fees and charges imposed by a free, public school system, any waiver procedure is a degrading experience.” . . . Finally, defendants warn that, if the fees are invalidated, many school districts may be forced to drop some extracurricular activities. They
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argue that invalidation would—in the name of the free school guarantee—produce the anomalous result of reducing the number of educational opportunities available to students. This court recognizes that, due to legal limitations on taxation and spending, school districts do indeed operate under difficult financial constraints. However, financial hardship is no defense to a violation of the free school guarantee. . . . Perhaps, in view of some, public education could be more efficiently financed by peddling it on the open market. Under the California Constitution, however, access to public education is a right enjoyed by all—not a commodity for sale. Educational opportunities must be provided to all students without regard to their families’ ability or willingness to pay fees or request special waivers. This fundamental feature of public education is not contingent upon the inevitably fluctuating financial health of local school districts. A solution to those financial difficulties must be found elsewhere—for example, through the political process. In conclusion, this court holds that the imposition of fees for educational activities offered by public high school districts violates the free school guarantee. The constitutional defect in such fees can neither be corrected by providing waivers to indigent students, nor justified by pleading financial hardship. . . . In conclusion, the imposition of fees as a precondition for participation in educational programs offered by public high schools on a noncredit basis violates the free school guarantee of the California Constitution and the prohibition against school fees contained in title 5, section 350 of the California Administrative Code. The judgment is reversed.
CASE NOTES The authoritative source regarding tuition and fees for children attending elementary and secondary schools is American Law Reports (A.L.R. 3d) by Jeffrey F. Ghent. After an analysis of the case law in all the states, Ghent concludes that, as a whole, considering all types of fees, the court decisions that invalidate fees are approximately double in number the decisions that have validated fees. Courts invalidating
fees have usually found that the offending characteristics of fees are: (1) the fee was a condition of attendance, where there was a constitutional or statutory provision that required the public schools to be “free,” (2) the fee was ultra vires, the school district did not have statutory discretion to levy a fee, or (3) the fee was charged for an essential and necessary element of a school’s educational program; exaction of the fee effectively nullified the concept of gratuitous education. Where fees have been upheld the courts have reasoned that; (1) there was statutory authority for the fee, (2) the purpose for exaction of the fee was reasonable, (3) fiscal necessity justified the fee, (4) the state constitution did not explicitly or impliedly require public schools to be “free,” (5) the historical meaning and intent of the constitutional use of the word “free” did not include textbooks or other items ancillary to the central instructional program, or (6) the fee was in fact only a refundable deposit. TUITION FEES: a charge or a fee to attend school. Held Valid: A charge or a fee to attend school. South Carolina: Holler v. Rock Hill School District, 60 S.C. 41, 38 S.E. 220 (1901); Arizona: Ruth Fisher Elementary School v. Buckeye Union High School District, 41 P. 3d 645 (Ariz. Ct. App. Div. 1, 2002). North Carolina: Kiddie Korner Day Schools, Inc. v. Charlotte–McKlenbury Bd. of Education, 55 N.C. App. 134, 285 S.E.2d 110, petition denied, 291 N.C. 291 S.E.2d 150 (1981). Texas: Jackson v. Waco Independent School District, 629 S.W.2d 201, 3 Ed. Law Rep. 441 (Tex. App. 1982). Kentucky: Major v. Cayce, 98 Ky. 357, 33 S.W. 93 (1895). New Mexico: Norton v. Board of Education, 89 N.M. 470, 553 P. 2d 1277 (1976). Not Valid: Alabama: Roberson v. Oliver, 189 Ala. 82, 66 So. 645 (1914); Williams v. Smith, 192 Ala. 428, 68 So. 323 (1915). Hughes v. Outlaw, 197 Ala. 452, 73 So. 16 (1916). Arkansas: Special School District v. Bangs, 144 Ark. 34, 221 S.W. 1060 (1920). Kansas: Board of Education v. Dick, 70 Kan. 434, 78 P. 2d 812 (1904). Missouri: Roberts v. Wilson, 221 Mo. App. 9, 297 S.W. 419 (1927). North Dakota: Batty v. Board of Education, 67 N.D.6, 269 N.W. 49 (1936). Montana: Granger v. Cascade Country School District, 159 Mont. 516, 499 P. 2d 780 (Mont. 1972). North Carolina: 115 N.C. App. 452, 446 S.E.2d 107 (1994). Wisconsin: Marcy v. Oshkosh, 144 Wis. 238, 128 N.E. 899 (1910).
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Tuition and Fees in Public Schools
MATRICULATION OR REGISTRATION FEES: To matriculate means to enroll. A matriculation fee would thus be an enrollment fee. Registration in normal parlance is synonymous with matriculation. In a majority of cases the courts have held that matriculation and/or registration fees are unconstitutional. Held Valid: Alabama: Vincent v. County Board of Education, 222 Ala. 216, 131 So. 893 (1931). South Carolina: Felder v. Johnson, 127 S.C. 215, 121 S.E. 54 (1924). Georgia: Kristin Nat., Inc. v. Board of Education of City of Marietta, 250 Ga. app. 488, 552 S.E.2d 474 (2001). Held Not Valid: Arkansas: Dowell v. School District, 220 Ark. 828, 250 S.W.2d 127 (1952). Georgia: Wilson v. Sanford, 133 Ga. 483, 66 S.E. 258 (1909). Georgia: Brewer v. Ray, 149 Ga. 596, 101 S.E. 667 (1919). Georgia: Brinson v. Jackson, 168 Ga. 353, 148 S.E. 96 (1929). Michigan: Bond v. Public Schools of Ann Arbor School District, 383 Mich. 693, 178 N.W.2d. 484, 41 ALR 3d 742 (1970). Missouri: Parents v. Caruthersville School District, 548 S.W.2d 554 (Mo. 1977). INCIDENTAL FEES: Incidental fees are subsidiary fees, for minor needs, subordinate to the main school program. Held Valid: Alabama: Bryant v. Whisenant, 167 Ala. 325, 52 So. 525 (1910); Roberson v. Oliver, 189 Ala. 82, 66 So. 645 (1914); Ryan v. Sawyer, 195 Ala. 69, 70 So. 652 (1916); Kennedy v. Board of Education, 214 Ala. 349, 107 So. 907 (1926); Vincent v. Board of Education, 22 Ala. 216, 131 So. 893 (1931). Held Not Valid: Georgia: 86 Ga. 605, 13 S.E. 120 (1891). South Carolina: 64 S.C. 131, 41 S.E. 824 (1902). FEES FOR TEXTBOOKS, PARTICULAR MATERIALS, ACTIVITIES, OR PRIVILEGES. Held Valid: Arizona: (textbooks), Carpio v. Tucson High School District, 111 Ariz. 127, 524 P. 2d 948 (1974), cert. denied, 420 U.S. 982, 43 L.Ed. 664, 95 S. Ct. 1412. California: (transportation), Salazar v. Eastin, 9 Cal. 4th 836, 39 Cal. Rptr. 2d 21, 890 P. 2d 43 (1995). Colorado: (textbook rentals), Marshall v. School District, 191 Colo. 451, 553 P. 2d 784 (1976). Illinois: (materials and supplies), Beck v. Board of Education, 63 Ill.2d 10, 344 N.E.2d 440; (lunchroom supervision), Ambroiggio v. Board of Education, 101 Ill. App. 3d 187, 56 Ill. Dec. 622, 427 N.E.2d 1027 (1981); (workbooks, maps, paper, magazines), Beck v. Board of Education,
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27 Ill. App. 3d 4, 325 N.E.2d 640, Affd. (Ill.) 344 N.E.2d 440 (1976); (textbooks and towels), Hamer v. Board of Education, 9 Ill. App 3d, 663, 292 N.E.3d 569 (1973). Indiana: (textbooks), Chandler v. South Bend Community School Corp., 160 Ind. App. 593, 312 N.E.2d 915 (1974); however, note, Chandler was contradicted and found to be “dubious at best” by the Court of Appeals of Indiana, in Nagy v. Evansville–Vanderburgh, School Corporation, 2004 WL 1178244, 187 Ed. Law Rep. 1030, 808 N.E.2d 1221 (2004). Michigan: (interscholastic athletics), Attorney General v. East Jackson Public Schools, 143 Mich. App. 634, 372 N.W.2d 638 (1985). New Jersey: (driver education), ParsippanyTroy Hills Education Assoc. v. Board of Education, 188 N.J. Super. 161, 457 A. 2d 15 (1983). North Carolina: (course fees for materials and supplies), Sneed v. Greensboro Board of Education, 299 N.C. 609, 264 S.E.2d 106 (1980). West Virginia: (textbooks, workbooks, and materials), Vandevender v. Cassell, 208 S.E.2d 436 (1974), but see above, Randolph County Board of Education v. Adams, 467 S.E.2d 150 (1995). Wisconsin: (books, pens, pencils, notebooks, and paper), Board of Education v. Sinclair, 65 Wisc. 2d 179, 222 N.W.2d 143 (1974). Held Not Valid: California: (music and sports), Hartzell v. Connell, 35 Cal. 3d 899, 201 Cal. Rptr. 601, 679 P. 2d 35 (1984); (drivers education), Driving School Assoc. v. San Mateo Union High School District, 11 Cal. App. 4th 1513, 14 Cal. Rptr. 2d 908 (1992). Georgia: (rental of books), Mississippi v. Gordy, 119 Ga. 817, 47 S.E. 171 (1904). Idaho: (transcripts of course work), Paulson v. Minidoka Country School District, 93 Idaho 469, 463 P. 2d. 935 (1970). Illinois: (handling charges for textbooks), Hamer v. Board of Education, 52 Ill. App. 3d 531, 10 Ill. Dec. 286, 367 N.E.2d 739 (1977). Indiana: (activities), Nagy v. Evansville– Vanderburgh County School Corp., 808 N.E.2d 1221 (Ind. Ct. App. 2004). Michigan: (textbooks and school supplies), Bond v. Public Schools, 383 Mich. 693, 178 N.W.2d 484 (1970). Indiana: (textbook rental), Gohn v. Akron School, 562 N.E.2d 1291 (Ind. App. 1990). Mississippi: (literary, library, and athletics fees), Morris v. Vandiver, 164 Miss. 476, 145 So. 228 (1933). Montana: (pens, pencils, workbooks, athletic equipment, supplies), Granger v. Cascade Country School District, 499 P. 2d 159 Mont. 516, 499 P. 2d 780 (1972). North Dakota: (textbooks), Cardiff v. Bismarck Public School District, 263 N.W.2d 105 (1978).
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Summation of Case Law
1. Congress can pass no laws but such as the constitution authorizes; the state can legislate on all subjects not forbidden. 2. A state statute will not be held unconstitutional merely because it is unjust or repugnant to general principles of justice or rights which are not clearly expressed in the state constitution. 3. Depending on the wording of the education article of a state constitution, it may impose a maximum duty on the state legislature to provide for public schools that are uniform and of high quality. 4. Although the cardinal rule of constitutional construction is to give effect to the intent of the framers of a constitution, it is appropriate to consider new and changing conditions not existing at the time the constitution was adopted when interpreting and applying constitutional provisions. 5. The language of the education provision of a state constitution requiring the state to provide a “uniform, efficient, safe, secure, and high quality system of free public schools” may be a limitation on the legislature’s power in that it creates both a mandate to provide for children’s education and a restriction on the execution of that mandate. 6. An education clause of a state constitution that mandates that the state’s obligation is to provide for the education of the state’s children, and specifies that the manner of fulfilling that obligation is by providing a uniform, highquality system of free public education, does not authorize additional equivalent alternatives such as public funding of vouchers for private schools. 7. A statute establishing a scholarship program requiring a department of education to move tax money earmarked for public education to an account for funding vouchers may violate a state constitution’s education clause by diverting funds that would otherwise be provided to the system of free public schools. 8. Acting within its constitutional limits, the legislature’s power to resolve issues of civic debate receives great judicial deference; however, beyond those limits, the state constitution must prevail over any enactment contrary to it.
9. Clear and unambiguous constitutional language is itself the best expression of the framers’ intent; however, if the language of a constitutional provision is ambiguous, then ordinary principles employed in statutory construction must be applied to ascertain the true intent. 10. Where a state constitution creates a strong presumption in favor of making everything that is deemed to be a necessary component of public education cost-free and a local board of education seeks to charge parents for their children’s participation in the public education, the local board bears a heavy burden in rebutting the constitutionally based presumption. 11. “Education,” within an entitlement created by a state constitution, is defined as: an act or process of imparting or acquiring general knowledge, developing powers of reasoning and judgment, and generally of preparing oneself or others intellectually for mature life; and act or process of imparting or acquiring particular knowledge or skills as for trade or profession. 12. The prevailing view is that under a “free” school system, fees cannot be charged as a requirement for students to be admitted to school nor can fees be charged for any required course in the curriculum. 13. Whatever the items that are deemed necessary to accomplish the goals of a school system and are in fact an integral fundamental part of elementary and secondary education must be provided free of charge to all students in order to comply with a constitutional mandate of free school system. 14. Reasonable construction of a state constitution does not require static doctrines but instead permits evolution and adjustment to changing conditions as well as to a varied set of facts. 15. All educational activities, curricular or extracurricular, offered to students by school districts, fall within free school guarantee of a state constitution; thus, a school district may be constitutionally prohibited from charging a fee for student participation in dramatic productions, musical performances, and athletic competitions.
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Endnotes
16. Financial hardship of the school district is no defense to violation of a constitutional free school guarantee. 17. A charter school act is constitutional unless an examination of the state constitution reveals limitations upon the legislature pertaining to the creation of charter schools. 18. A legislature has plenary authority to create laws that provide for the establishment and maintenance of the public education system; this includes any other schools, such as charter schools, and/or programs the legislature may designate to be included in the public school system. 19. A charter school act’s delegation of certain educational functions to the parents and teachers who write the charters, and to the grantees who operate the schools, does not violate the provision of a state constitution obligating the legislature to provide for a system of common schools. 20. A charter school act does not create a separate school system in violation of the provision of the state constitution obligating the legislature to provide for a system of common schools, because charter schools may be, by statute, public schools. 21. A charter school act does not amount to an unconstitutional delegation of legislative powers to a board of education or other chartering authorities.
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Research Aids
Research citations below are abbreviated as: American Law Reports (A.L.R.), American Jurisprudence, (Am.Jur.), Corpus Juris Secundum, (C.J.S.), and McQuillen Municipal Corporations (McQuillen Mun.Corp.). Explanations for each of these sources of law are found in Chapter 1 of this text. Also, see Appendix B of this book. 68 Am.Jur.2d Schools § 2, Common or Public Schools. 68 Am.Jur.2d Schools § 10, Education as a Governmental Function: Provisions Requiring a Uniform System of Education. 78 C.J.S. Schools and School Districts § 2, Definition of Public School. 113 A.L.R. 697, What Is a Common or Public School Within Contemplation of Constitutional or Statutory Provisions?
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68 Am.Jur.2d Schools § 239, Considerations Bearing on Validity or Invalidity of Fees. 16 Am.Jur.2d Constitutional Law § 64, Construction of Constitutions: General Rules of Construction. 16 C.J.S. Constitutional Law § 62, Constitution, Operation and Enforcement of Constitutional Provisions: Meaning of Language. 16B McQuillen Mun.Corp.§ 46.02.10 (3rd ed.), Public School Establishment and Government— “Public School” Defined. 78A C.J.S. Schools and School Districts § 1080, Conduct of Schools and Scholastic Activities: Textbooks and Other Instructional Materials. 41 A.L.R.3d 752, Validity of Exaction of Fees from Children Attending Elementary and Secondary Schools. 16 C.J.S. § 293, Distribution of Governmental Powers and Functions. 68 Am.Jur.2d Schools § 35, Delegation of Legislative Authority to Agencies, Boards, or Officers. Education Justice, Education Law Center, www.EducationJustice.org.
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Endnotes
1. Montesquieu, The Spirit of Laws (1748), trans. and ed. David Wallace Carrithers (Berkeley, Calif.: University of California Press, 1977), p. 130. 2. Jean-Jacques Rousseau, A Discourse on Political Economy (1758), trans. G. D. H. Cole (London: J. M. Dent and Sons, 1973), p. 149. 3. In 1760, John Adams noted in his diary that he had begun to read The Spirit of Laws. About 15 years later, Thomas Jefferson devoted 28 pages in his Commonplace Book to extracts from Montesquieu, and James Madison, in 1792, in his essay on “Spirit of Governments,” compared Montesquieu’s contributions to political philosophy to those of Francis Bacon in natural philosophy. See the introduction to Montesquieu’s The Spirit of Laws (1748), trans. and ed. David Wallace Carrithers, p. xiii. 4. Horace Mann, Tenth Annual Report of the Board of Education (Boston: Dutton and Wentworth Printers, 1847), p. 14. 5. “The Connecticut Law of 1650, Codification of 1650,” in Barnard’s American Journal of Education, Vol. 4, p. 660. Cited in Ellwood P. Cubberley, Readings in Public Education in the United States (Boston: Houghton Mifflin Co., 1934), pp. 19–20. 6. See John Lawson and Harold Silver, A Social History of Education in England (London: Methuen & Co., 1973), p. 154. 7. Ibid., p. 155. 8. Will and Ariel Durant, The Age of Voltaire, Vol. 9 (New York: MJF books, 1965), p. 438.
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Chapter 2
Historical and Legal Perspective of Public Schools
9. Ellwood P. Cubberley, A Brief History of Education (Boston: Houghton Mifflin Co., 1922), p. 374. 10. Ibid., p. 376. 11. Lawrence A. Cremin, American Education: The National Experience 1783–1876 (New York: Harper & Row Publishers, 1980), p. 125. 12. Benjamin Rush, Essays, Moral and Philosophical, 2nd ed. (Thomas and William Bradford, 1806), pp. 4, 6–7. 13. Ibid., pp. 7–8. 14. R. Freeman Butts, “Search for Freedom: The Story of American Education,” NEA Journal (March 1960), pp. 33–48. 15. John Adams, “Dissertation on the Canon and Feudal Law,” in 3 Works of John Adams, ed. C. F. Adams (1851), pp. 447, 448, cited in McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 615 N.E.2d 516 (1993). 16. Letter from Thomas Jefferson to George Wythe, Paris, August 14, 1786; Bernard Mayo, Jefferson Himself (Charlottesville: University Press of Virginia, 1942), p. 89. 17. Cubberley, op. cit., p. 286. 18. Ibid. General school laws were enacted in Connecticut in 1700, 1712, and 1714; Vermont in 1782, in addition to earlier statutes in Massachusetts (1647) and New Hampshire (1680). Georgia created a state system of academies in 1783. In 1795, New York provided for a state system of elementary education. Delaware established a state school fund in 1796, and Virginia enacted an optional school law in 1796. 19. Ibid., p. 288. 20. Ibid., p. 371. 21. Cremin, op. cit., pp. 133–142. 22. Ibid., p. 127. 23. Ibid., p. 125. 24. Ibid., p. 123. 25. Marvin Meyers, ed., Sources of the Political Thought of James Madison (Hanover and London: Brandeis University Press, 1973), p. 186. 26. Ibid. 27. Mann, op. cit., pp. 124–125. 28. Ibid. 29. Butts, op. cit. 30. House Journal 1822, Commonwealth of Kentucky, p. 236. 31. Ellwood P. Cubberley, Public Education in the United States, pp. 164–166. Copyright 1934, renewed 1962 by Ira S. Lillick, adapted by permission of Houghton Mifflin Co. 32. Butts, op. cit. 33. Newton Edwards, The Courts and the Public Schools (Chicago: the University of Chicago Press, 1955), p. 23. 34. Ibid., p. 24. 35. Meyer v. State of Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923). 36. Fogg v. Board of Education of Union School Dist. of Littleton, 76 N.H. 296, 82 a. 173 (1912). 37. Scown v. Czarnecki, 264 Ill. 305, 106 N.E. 276 (1914). 38. Fogg, op. cit. 39. Leeper v. State, 103 Tenn. 500, 53 S.W. 962 (1899). 40. Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1973). 41. This classification is a slight modification of that suggested by James M. Mize in his article entitled “San Antonio Independent School District v. Rodriguez: A Study of Alternatives Open to State Courts,” University of San Francisco Law Review, Vol. 8 (1973–74), pp. 105–111. 42. The Constitution of Virginia, 1971, Art. I, § 15. 43. Ibid., Art. VIII, §§ 1 and 2. 44. Ibid., Art I, § 15.
45. McLain v. Phelps, 409 Ill. 393, 100 N.E.2d 753 (1951). 46. Flory v. Smith, 145 Va. 164, 134 S.E. 360 (1926). 47. Louis Henkin, Gerald L. Newman, Diane F. Orentliches, and David W. Leebron, Human Rights (New York: Foundation Press, 1929), p. 4. 48. Ibid. 49. Ibid. 50. Ibid. 51. Cubberley, Public Education in the United States, p. 260. 52. Diane Ravitch, The Great School Wars, New York City, 1805–1973 (New York: Basic Books, 1974), p. 23. 53. Commonwealth v. Hartman, 17 Pa. 118 (1851). 54. See: 113 ALR 697. 55. Cubberley, Public Education in the United States, p. 386. 56. Ibid., p. 247. 57. Stuart v. School District No. 1 of Village of Kalamazoo, 30 Mich. 69 (1874). 58. Robin Cheryl Miller, 78 A.L.R. 5th 533 (originally published in 2000, updated in 2010). 59. Ibid. 60. Martha Minow, “Reforming School Reform,” 68 Fordham L. Rev. 257 (1999). 61. Ibid. 62. Dartmouth College v. Woodward, 4 Wheat 518 (1819). 63. Pierce v. Society of Sisters, 268 U.S. 355 (1925). 64. John E. Chubb and Terry M. Moe, Politics, Markets and America’s Schools (Washington, D.C.: Brookings Institution, 1989), p. 219. 65. Ibid. 66. James A. Mecklenburger and Richard W. Hostrop, Education Vouchers: From Theory to Alum Rock (Homewood, Ill.: ETC Publishers, 1972), pp. 112–113. 67. Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 88 S. Ct. 1923 (1968). 68. Ibid. 69. See Jeffrey R. Henig, Rethinking School Choice, Limits of the Market Metaphor (Princeton, N.J.: Princeton University Press, 1994), p. 94. 70. Minow, op. cit. 71. 20 U.S.C.A. § 8061 to § 8066. 72. Ibid. 73. “Race to the Top,” ED.gov., U.S. Department of Education, http://www2.ed.gov/news/pressreleases/ 2009/06/06082009.html. 74. Ibid. 75. Arizona State Board of Charter Schools v. U.S. Department of Education, 464 F.3d 1003 (9th Cir. 2006). 76. Ibid. 77. Wilson v. State Board of Education, 75 Cal. App., 4th, 1125, 89 Cal.Rptr. 2d 745 (1999). 78. Beaufort County Board of Education v. Lighthouse Charter School Committee, 335 S. Ct. 230, 516 S.E.2d 655 (1999). 79. Villaneuva v. Carere, 85 F.3d 481 (10th Cir. 1996). 80. Council of Organizations and Others for Education About Parochiaid, Inc. v. Governor, 455 Mich. 557, 566 N.W.2d 208 (1997). 81. In re Grant of Charter School Application of Englewood on Palisades Charter School, 320 N.J. Super. 174, 727 A.2d 15 (App. Div. 1999). 82. New York Charter Schools Ass’n, Inc. v. DeNapoli, 871 N.Y.S.2d 497, 240 Ed. Law Rep. 860 (App. Div.3d Dept, 2009).
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Quoted Box Citations 83. State ex rel. Ohio Congress of Parents and Teachers v. State Board of Education, 111 Ohio St. 3d 568, 857 N.E.2d 1148 (2006). 84. Boulder Valley School District RE-2 v. Colorado State Board of Education, 217 P. 3d 918 (Colo. App. 2009), cert denied, 2009 WL 3165618 (Colo. 2009). 85. Beaufort County Board of Education v. Lighthouse Charter School Committee, op. cit. 86. Carbondale Area School District v. Fell Charter School, 829 A.2d 400 (Pa. Commw. Ct. 2003). 87. Baltimore City Board of School Commissioners v. City Neighbors Charter School, 400 Md.324, 929 A.2d 113 (2007). 88. Environmental Charter High School v. Centinela Valley Union High School District, 122 Cal. App. 4th 139, 18 Cal. Rptr. 3d 417 (2d Dist. 2004). 89. In the Matter of the Grant of the Charter School Application of Englewood on the Palisades Charter School, 164 N.J. 316, 753 A.2d 687 (2000). 90. Ibid. 91. Warner ex rel. Warner v. Lawrence, 900 A.2d 980, 210 Ed. Law Rep. (Pa. Commw. Ct. 2006). 92. Foreman v. Chester-Upland School Dist., 941 A.2d 108 (Pa. Commw. Ct. 2008). 93. 455 Mich. 557, 566 N.W.2d 208 (1997). 94. Utah School Boards Association v. Utah State Board of Education, 17 P. 3d 1125 (2001). 95. Wilson v. State Board of Education, 75 Cal. App. 4th 1125, 89 Cal. Rptr. 2d 745, 138 Ed. Law Rep. 453 (2000). 96. Council of Organization and Others for Education About Parochiaid, Inc., op. cit. 97. 41 A.L.R.3rd 755. 98. Hartzell v. Connell, 35 Cal.3d 899, 679 P. 2d 35 (1984).
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99. Arcadia Unified School District v. State Dept. of Education, 825 P. 2d 438 (Cal. 1992). 100. 41 A.L.R.3rd 755. 101. Kennedy v. County Board of Education, 214 Ala. 349, 107 So. 907 (1926). 102. Vincent v. County Board of Education, 222 Ala. 216, 131 So. 893 (1931). 103. Irvin v. Gregory, 86 Ga. 605, 13 S.E. 120 (1891). 104. Hamer v. Board of Education, 47 Ill.2d 480, 265 N.E.2d 616 (1970). 105. Mathis v. Gordy, 119 Ga. 817, 47 S.E. 171 (1904). 106. Paulson v. Minidoka County School District, 93 Idaho 469, 463 P. 2d 935 (1970). 107. Ibid. 108. Bond v. Public Schools of Ann Arbor School District, 383 Mich. 693, 178 N.W.2d 484 (1970).
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Quoted Box Citations
Jean-Jacques Rousseau, “A Discourse on Political Economy,” 1758, in The Social Contract and Discourses (London: J.M. Dent & Sons, Ltd., 1973), p. 149. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1989), pp. 63–65. Richard S. Kay, “American Constitutionalism,” in Constitutionalism: Philosophical Foundations, ed. Larry Alexander (Cambridge: Cambridge University Press, 1998), p. 22. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1989), p. 192.
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CHAPTER 3
Role of the Federal Government The question of the relation of the States to the federal government is the cardinal question of our constitutional system. At every turn of our national development we have been brought face to face with it, and no definition either of statesmen or of judges has ever quieted or decided it. It cannot, indeed, be settled by the opinion of any one generation, because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question. —Woodrow Wilson, Constitutional Government in the United States, 173 (1908)
CHAPTER OUTLINE ■
INTRODUCTION
First Amendment
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THE LAND ORDINANCES
Fourth Amendment
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INDIRECT FEDERAL ROLE
Fifth Amendment
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SOURCES OF THE FEDERAL ROLE
Eighth Amendment
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STRUCTURAL PROVISIONS IN THE CONSTITUTION
Ninth Amendment
Tenth Amendment and State Sovereignty
Fourteenth Amendment
General Welfare and Education
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Liberty Rights
Commerce Clause and Education ■
Dignity Rights
SUPREMACY CLAUSE Obligation of Contracts
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EDUCATION AS A UNIQUE GOVERNMENTAL FUNCTION
RIGHTS PROVISIONS IN THE CONSTITUTION
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SUMMATION OF CASE LAW
Bill of Rights and Absorption by the Fourteenth Amendment
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RESEARCH AIDS
Eleventh Amendment Immunity ■
FUNDAMENTAL RIGHTS AND EDUCATION
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The Land Ordinances
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Introduction
Historically, the federal government has exhibited an active interest in education. Education was much on the minds of the founding fathers, who believed that public virtue and the welfare of the state were dependent on the ability of the people to properly exercise their democratic prerogatives. The founders of the American republic, influenced by John Locke, believed that the citizens were neither innately wise nor foolish, good nor bad, but were products of their learning and exhibited civic responsibilities accordingly. From this assumption, it was imminently reasonable to conclude that “mankind could be greatly improved by education.”1 Moreover, no lesser light than Kant, the great German philosopher, in the decade of the adoption of the American Constitution, had maintained that man had a duty to raise himself “from his crude state of nature” and to “diminish his ignorance by instruction,” and by education attain his own moral perfection.2 And, of course, Montesquieu, whom the American founding fathers had read so thoroughly, had stoutly maintained that education is a prime necessity of a republican form of government: “It is in a republican government that the whole power of education is required.”3 There existed an implicit desire to guarantee the perpetuation of the democratic form of government by educating and “remaking the whole people . . . to conform the principles, morals and manners of our citizens to our republican forms of government.”4 In this light, many statesmen of the new nation believed that education was the best preservative of freedom, and most republicans tied general education and dissemination of knowledge to the success of the new republic.5 In the Constitutional Convention of 1787, the matter of education and a national university was advanced by several delegates, including Madison, but to no avail. The problem lay not in the delegates’ general belief in the importance of education, but in the pressing concern that the sovereign states and not the federal government should be the proper repository of such power. The hesitancy to vest the power over education in the central government prevailed, and the state orientation of education became the pattern in the United States. Nevertheless, the interest in
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education at the federal level continued and stimulated educational progress throughout the states.
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The Land Ordinances
Even before the adoption of the Constitution, the Continental Congress enacted the Land Ordinances of 1785 and 1787, which provided impetus for creation of educational systems in all the states joining the union. Initially, the original colonies had claimed almost unlimited territory extending west beyond the Alleghenies. For purposes of mutual accord, the matter was settled in the Continental Congress in 1780, when the existing states ceded their claims to the federal government, creating a national domain. This “common estate” created a common interest and bond among the first states of the new nation, and it was from this national domain that new states were to be carved for westward expansion. Although the primary motivation of Congress was to raise revenues for the debt-ridden nation that had just emerged from the War of Independence with England, the provision for education in the ordinances caused the new states to address the issue of education at the very beginning of their statehood. The Land Ordinance of 1785 included a provision reserving the sixteenth section of every township “for the maintenance of public schools within the said township.” The purpose of this provision was to make the purchase of land more attractive to persons with families who might venture west. Regardless of the profit motive, however, the effect was a very positive force in the expansion of education. The survey plan of 1785 laid out square townships, six miles by six miles, containing a total of 36 sections. The sixteenth section, one mile by one mile (640 acres), was dedicated for schools (see Figure 3.1). Within two years after the enactment of the Ordinance Survey of 1785, in mid-July of 1787, the Continental Congress met and enacted the Ordinance of 1787, known as the Northwest Ordinance. This ordinance is included in Article III, the now-famous provision, which stated that “[r]eligion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall be forever encouraged.”
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Chapter 3
FIGURE 3.1
Role of the Federal Government
A Congressional Township North 6
5
4
3
2
1
7
8
9
10
11
12
18
17
16
15
14
13
West
East 19
20
21
22
23
24
30
29
28
27
26
25
31
32
33
34
35
36
South
The Northwest Ordinance set out the requirements necessary for territorial areas to become states. Provisions for education, habeas corpus, due process, and religious freedom were all to be provided for in the compact, which was required by the central government as a condition for a territory to become a state. The legislatures of the new states were thus required, in accordance with the Ordinance of 1785, to oversee the sixteenth-section lands, or to account for the funds if sold; the Northwest Ordinance of 1787 required that each state have an education provision in its basic law. Later, when Ohio became a state in 1802, the problem arose as to whether states could tax federal property within their boundaries. A compromise was reached that provided that states would receive 5 percent of the sale of public lands, if in turn federal property would be exempt from state taxation. These “5-percent” funds, along with income from salt lands and swamplands, added to the revenues available for the public schools. Later, as a result of Jackson’s decentralization efforts, the Surplus Revenue Deposit Act of 1836 distributed $28 million in
federal funds back to state governments, much of which was devoted to school purposes. These federal initiatives, in combination, provided an important stimulus for the states to assume responsibility for education. When the use and the sale of the land grant and the surplus revenues became inadequate to support state funding of education, the state legislatures began to move slowly toward appropriation of supplemental funds. One can only speculate as to what might have happened had the federal government not ended the inertia that retarded the creation of public schools. Perhaps some states would not have assumed the responsibility at all and would have allowed education to languish as an entirely local function or even, possibly, have allowed education to remain almost entirely in the hands of individuals or charitable and religious groups.
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Indirect Federal Role
The early method of supporting education by means of federal land grants was most notable for two particular aspects. First, the grants were made for the purpose of creating and aiding
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Indirect Federal Role FIGURE 3.2
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Land Grants Map
Land Grants for Common Schools 16th Section 16th & 36th Section Four Sections No Land Grants Source: Land Grants Map Taken from the book, Public Education in the United States, A Study and Interpretation of American Educational History, by Ellwood P. Cubberley, The Riverside Press, Cambridge Massachusetts, Copyright, 1934, p. 93.
public schools directly, thus espousing a federal interest in mass general common school education for everyone; second, the federal government exercised no control over education as a condition for receiving the grants.6 From these beginnings, it was established that the federal government was to play an indirect role in the development of public education, to serve a stimulus function without direct control of educational policy and operation. Over the years, the federal government’s role has remained one of indirect support of education. Never directly controlling education, but generally in a positive and affirmative manner, the Congress has, from time to time, fashioned educational policy to address certain perceived national interests. The first Morrill Act, passed by Congress in 1862, like the early land grants, shaped American educational policy by providing a grant of land to each state; the land was to be sold, with the proceeds to be used for the endowment, maintenance and support of at least one college where the leading object shall be, without excluding other scientific and classical studies
and including military tactics, to teach such branches of learning as are related to agriculture and mechanic arts in such manner as the legislatures of the states may respectively prescribe.7
In relying on this Act, the great land-grant colleges were established and supported. Herein, Congress advanced a role of higher education that transcended the traditional, narrow European model by expanding and giving credibility to the study of agriculture and engineering, disciplines that a new and developing nation so badly needed. Subsequent legislation—the second Morrill Act of 1890, the Hatch Act of 1887, the Adams Act of 1906, and other provisions—expanded the activities of the land-grant colleges and introduced grants-in-aid as another type of federal support. Following these initial steps, the federal government has continued to provide assistance to various phases of education. Categorical grants that were geared toward bringing about a particular educational emphasis became the method of allocation most relied upon. All of the federal programs combined, however, constitute a small portion of all the revenues
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Chapter 3
Role of the Federal Government
necessary for elementary and secondary schools. The role of the federal government is conveyed by Congress to be one of supplementary assistance to the state systems of education. Congress has sought to shape educational policy through the indirect means of categorical grants, giving direction to certain educational programs once states accept the funds. In each instance, the states have the option of accepting or rejecting the funds, but once they are accepted, the states must abide by the federal guidelines for use of the resources. As states have accepted the conditions of these categorical grants over the years, the role of the federal government in guiding educational choices has become more predominant, and some commentators have maintained that too much control today is vested in the federal government. As a result, even though the federal government’s role in education is said to be indirect and secondary, myriad federal regulations and conditions bear down quite heavily on the public schools and have led some to question the legal scope of federal powers. Unfortunately, the legal definition of the role of the federal government in education is as hazy and uncertain as the legal parameters of our federal system of government itself. Courts today continue to ponder the nature of the states’ relationship to the central government not only in education, but in all areas of domestic activity.
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Sources of the Federal Role
The federal government’s authority to influence educational policy emanates from two primary sources: (1) the structural provisions in the body of the U.S. Constitution that frame our federal system by delegating functions to the three branches of the central government and (2) the rights provisions of the Constitution found in the Bill of Rights and other amendments designed to protect individual liberties and freedoms from inappropriate government intrusion or discrimination. The structural provisions are “shalls” that delegate power to the legislative, executive, and judicial branches of the federal government for the purpose of creating “a more perfect Union.” Article I of the Constitution, the provision that forms the Congress, states that all legislative powers “shall be vested in a Congress.” Article II vests
the executive power of the federal government in the president, whereas Article III vests the judicial power of the United States in “one supreme court” and such inferior courts as Congress may ordain and establish. The legislative powers in Article I, as prescribed principally under Section 8, give Congress the power to lay and collect taxes, pay debts, provide for the common defense and the general welfare, and regulate commerce. It is this article of the Constitution that has been interpreted to give the federal government the authority to play a definitive, though indirect, role in the education of the people. Also critical to the structure of federalism is the Supremacy Clause, Article VI, Clause 2, that emphasizes that the U.S. Constitution and laws exacted by Congress must prevail when in conflict with state constitutional provisions or state statutes. The structure of the federal system is also shaped by certain prohibitions in the Tenth and Eleventh Amendments. The Tenth Amendment makes it clear that the powers not delegated to the federal government are reserved to the states or to the people. The Eleventh Amendment limits the judicial power of the federal government to preserve state immunity from liability. Thus, in the body of the Constitution and these two amendments, we find the parameters of the role of the federal government in education as interpreted and applied by the courts. This chapter is primarily concerned with the structural provisions, which have implications for the federal control of education as interpreted by the Supreme Court. The federal role in education is further defined by rights provisions of the U.S. Constitution found in the Bill of Rights and other constitutional amendments that protect individual liberties and freedoms. These rights provisions are generally couched in negative language, “shall nots,” that prohibits government denial of human and civil rights. Instead of granting power, these rights serve as guarantees and limits on the central government. These amendments are laced with prohibitions, such as “Congress shall make no law,” the right of the people “shall not be infringed,” or “shall not be violated,” guaranteeing natural and “self-evident” rights of the individual against overzealous government. The list of inherent individual rights that are mentioned in the Constitution is, however, not exhaustive. There was an implicit assumption by the framers
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Structural Provisions in the Constitution
that it was unnecessary to list specifically all the “inalienable rights” that are “endowed by the creator” in order for them to be protected against unreasonable government action. As observed elsewhere in this chapter, the word education is not found in either the structural provisions or the rights provisions of the U.S. Constitution. However, as will be seen later in this chapter, Congress can tax and spend for education by implication relying on Article I, Section 8, the General Welfare Clause. On the other hand, the U.S. Supreme Court has categorically rejected the idea that education is a fundamental right that can be explicitly or implicitly recognized as worthy of constitutional protection. In Rodriguez, the Supreme Court held that education is not a fundamental right, writing that “[e]ducation, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.” 8 The Court has reiterated this position in Plyler 9 and Papason 10 with no indication of a change of mind. These cases will be discussed later in detail. There is a great irony in the fact that education is not recognized as a fundamental right under the federal Constitution, particularly in view of the fact that public universal education first came to fruition in the United States as an essential aspect of the democratic form of government. Moreover, the right to education has become a standard part of major international treaties to which most developed countries are signatories.11 As explained in the Chapter 21 of this book, several state supreme courts have held that education is a fundamental right. However, the U.S. Supreme Court has been reluctant to recognize that same right to exist under the U.S. Constitution. Yet, the role of the federal government in the provision of education extends beyond the legal question of the fundamentality of education. Other individual rights under the Bill of Rights, including freedom of religion, speech, assembly, privacy, due process, and equal protection, have developed into a formidable array of judicial precedents that play an important role in circumscribing and defining public education policy. Thus, both Congress, through its delegated structural powers, and the courts, through
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their recognition of individual rights emanating from the Bill of Rights and other amendments, combine to form the context in which the federal government influences public education. This chapter discusses the pertinent precedents regarding education in our federal system. The structural provisions of the U.S. Constitution are presented first, including the Tenth and Eleventh Amendments, followed by the rights provisions, including the Bill of Rights and attendant amendments pertaining to individual liberties and freedoms.
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Structural Provisions in the Constitution
As observed previously, the federal power to educate the people in the United States is determined by the nature of our federal system of government. The central government has only delegated powers that are found principally in Article I, Powers Delegated to Congress. In order to ensure that the central government could not encroach on the residual powers of the states and the people, the Tenth Amendment was added to the Bill of Rights and ratified by the states in 1791. The Eleventh Amendment was added in 1798 to protect the sovereign immunity of the states from liability that could have been imposed by Congressional statute or by common law. These parts of the Constitution, relevant to education, that delegate powers to the central government, along with the limiting amendments, are shown in Box 3.1 and discussed in the following sections.
NATURE OF CONSTITUTION A constitution is different from ordinary statute law. It has two crucial functions. First, it sets up and sets out the structure of government—its permanent shape, its organs or parts, and their rights, duties, boundaries, and limits. Second, it can list the essential rights of the citizen; this list is supposed to limit what government is allowed to do— it is a list, in other words, of rights that the state must not and cannot infringe [emphasis added]. —Lawrence A. Friedman
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BOX 3.1
Role of the Federal Government
Structural Provisions in the U.S. Constitution Most Pertinent to Federalism and Education
Article I, § 1. Powers of Congress “All legislative Powers herein granted shall be vested in a Congress of the United States. . . . ” Article I, § 8. [1] General Welfare Clause “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. . . . ” Article I, § 8. [3] Commerce Clause The Congress shall have Power “To regulate Commerce with foreign nations, and among the several States . . . ” Article I, § 10. [1] Contracts Clause “No State shall . . . pass any . . . Law impairing the Obligation of Contracts.” Article II, § 1. [1] Powers of the President “The executive Power shall be vested in a President of the United States of America. . . . ”
TENTH AMENDMENT AND STATE SOVEREIGNTY The powers of the federal government are circumscribed by delegation within the frame of the Constitution and are specifically limited by the Tenth Amendment, which provides that “[t]he 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.” Education is not mentioned in the Constitution and is, therefore, presumably reserved to the states or to the people. The Tenth Amendment was intended to reconfirm the implicit understanding at the time of the Constitution’s adoption that powers not granted to the central government were reserved.12 James Madison, at the urging of Jefferson, sponsored the Tenth Amendment. In the course of debate that took place while the amendment was still pending, Madison declared: “Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.”13
Article III, § 1. Powers of the Judiciary “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Article VI, Clause 2. [2] Supremacy Clause “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land. . . . ” Tenth Amendment. Residual Powers “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.” Eleventh Amendment. State Sovereignty “The Judicial power of the United States shall not be construed to extend to any suit in law or equity . . . against one of the United States. . . . ”
Standing alone, the Tenth Amendment bears witness that our system of government assures separation of powers and prevents federal activity without express or implied constitutional authority. As such, there is a presumption of state power, which effectively places the burden on the federal government to justify in court its involvement in affairs that may have been presumed to be left to the states. The U.S. Supreme Court now sitting has enunciated a very strong opinion and, indeed, a constitutional philosophy that emphasizes the sovereignty of states in the design of our federal system. The Supreme Court emphatically maintains that states do not derive their powers from the U.S. Constitution, but, rather, are possessed of certain inherent and sovereign powers of independent governmental entities, some of which were ceded or delegated to the central government by the U.S. Constitution. This view is not without controversy, and the extent of this ceding of powers is the source of substantial disagreement. The present balance reflects the opinion of five justices of the U.S. Supreme Court who are generally viewed as the conservative majority of the Court. This Court has said that
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Structural Provisions in the Constitution
“the founding document [the U.S. Constitution] ‘specifically recognizes the States as sovereign entities,’ ” 14 and by so concluding, implicitly expands the concept of state sovereignty from the more limited “quasi-sovereigns,” or limited sovereign philosophy as espoused by Justice Cardoza, that is contrary to the current more full-blown idea that states have a pronounced and weighty, inherent and original constitutional sovereignty. The concern over the balance between the powers of the central government and state government was, of course, the principal issue that animated the debates in the original 13 states when their conventions were held to ratify the U.S. Constitution. At that time, the Anti-Federalists argued that a Bill of Rights and, in particular, a Tenth Amendment, was necessary to assert clearly and positively that states retained all those preexisting, sovereign rights that were not specifically delegated to the new central government. Moreover, the Anti-Federalists were concerned that the Supremacy Clause, when implemented by the federal courts, would “sweep aside all prior claims of states’ rights and authority.”15 The importance of this structural issue in the formation of the U.S. Constitution cannot be overstated; in this regard, the Supreme Court has said: “The Constitution never would have been ratified if the States and their courts were to be stripped of their sovereign authority except as expressly provided by the Constitution itself.” 16 Thus, the Anti-Federalists’ arguments that supported the passage of the Bill of Rights were primarily concerned with unstated rights and prerogatives of the states and of the people and with whether these rights could ever be preserved if they were not specifically designated. The Supreme Court said in Hall that [I]n view of the Tenth Amendment’s reminder that powers not delegated to the Federal Government nor prohibited to the States are reserved to the States or to the people, the existence of express limitations on state sovereignty may equally imply that caution should be exercised before concluding that unstated limitations on state power were intended by the Framers.17
Thus, the Supreme Court makes it clear that: (1) states retain inherent sovereign powers that were not ceded or given up to the federal
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government in the Constitution; (2) the federal government has only those powers delegated; and (3) the Tenth Amendment is a positive expression that verifies the existence of the inherent state sovereignty, as well as a formal declaration of the preservation of the rights of the people.18 Accordingly, it is the position of the current Supreme Court that the inherent sovereign powers of the states are to be found and preserved in the design of the “federative”19 system in the Constitution where “[t]he Federal Government, by contrast, ‘can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication.’ ”20 This presumption, on behalf of the states, provides a constitutional basis through which a state can seek legal redress in challenging a federal statute. Without the Tenth Amendment, no such action would be possible. In the face of such challenges, the federal government has been forced, on several occasions, to identify other constitutional provisions that justify its activity in the regulation of functions that states have assumed to be within their prerogative. In this light, the federal government does not possess general police powers, as such, and in justifying its many educational activities, it must assert implied powers of the general welfare and commerce clauses of the Constitution. The Tenth Amendment, therefore, assures that federal control over education is secondary to the power of the states. Although a state can create, organize, and reorganize school districts; employ and dismiss personnel; prescribe curriculum; establish and enforce accreditation standards; and govern all management and operation functions of the public schools directly, the federal government can intervene only in a peripheral and oblique way.
GENERAL WELFARE AND EDUCATION Federal power to become engaged in education emanates principally from the General Welfare Clause of Article I, Section 8, which provides, “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. . . .”21 The interpretation of the General Welfare Clause, also known as Spending Clause, has
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been the subject of much debate and controversy. James Madison contended that the clause “amounted to no more than a reference to other powers enumerated in subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general welfare must be confined to the enumerated legislative fields committed to the Congress.”22 Madison pointed out that the framers of the Constitution borrowed the phrase from the Articles of Confederation, and it was not looked upon as a phrase to extend the parameters of federal authority. In taking an opposing point of view, Hamilton maintained that the article conferred upon the Congress a general substantive power to tax and spend for purposes that would provide for the general welfare of the United States. The Supreme Court adopted the Hamiltonian philosophy in a 1936 case, United States v. Butler, which tested the constitutionality of President Roosevelt’s Agriculture Adjustment Act.23 Even though the Supreme Court struck down the Agricultural Adjustment Act in 1936, it nevertheless interpreted the General Welfare Clause as giving Congress broad powers. In so doing, the Court thus adopted the Hamiltonian expansive viewpoint and rejected Madison’s more restrictive view. The Court said, “Congress is expressly empowered to lay taxes to provide for the general welfare. Funds in the Treasury, as a result of taxation, may be expended only through appropriation, Article 1, § 9, cl. 7. They can never accomplish the objects for which they were collected, unless the power to appropriate is as broad as the power to tax. The necessary implication is that public funds may be appropriated ‘to provide for the general welfare of the United States.’ ” The next year, in Helvering v. Davis (1937),24 the Supreme Court upheld the Social Security Act, and in so doing ruled conclusively that Congress can tax and spend under the General Welfare Clause. In this case, the Supreme Court finally adopted the broad interpretation of the meaning of the General Welfare Clause. In approving the constitutionality of President Roosevelt’s Social Security Act, the Court pointed out that the Great Depression of 1929 and the rampant unemployment caused a “nationwide calamity” that could not be resolved by the
individual states, and it was a problem of national dimensions affecting the general welfare of the nation. Spending of federal tax monies under Article I, Section 8, was therefore well justified. It was this decision that broke the constitutional logjam of a conservative Supreme Court that had earlier prompted President Roosevelt’s threat to “pack” the Court. Importantly, the Court in Helvering observed that henceforth defining of what was in the national or general need of the nation was to be determined by Congress and not the courts and, unless Congress acted imprudently or arbitrarily, the Court would not intervene. The Court said: The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law.25
With this elastic definition of general welfare, Congress is free to define education as general welfare and to tax and appropriate funds for educational purposes. With the prerogative to broadly define general welfare as inclusive of education, Congress then looks to the taxing power of the clause for the instrumentality to “provide” for education. Jefferson had explained the power and purpose of the clause in this manner: [T]he laying of taxes is the power and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please, but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose [emphasis added].26
This clause therefore expresses not an unlimited power, only a qualified one. Congress has never acted to assert an unlimited power to tax, and the Supreme Court has therefore never been compelled to decide the point as it directly applies to education.27 The last sentence in Jefferson’s statement addresses the issue quite clearly, that Congress cannot provide for the general welfare in any manner other than through its taxing and
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Structural Provisions in the Constitution
appropriation power. Therefore, with regard to education, this means that Congress can involve itself in educational matters only through the indirect means of the appropriation of funds and does not have the power to directly legislate changes in education. It is for this reason that Congress has so consistently used the categorical aid approach to bring about change in education. Constitutionally, regulation of educational functions can be acquired only through conditional grants. The federal government cannot, therefore, affirmatively and directly require that states alter educational policy; this would be an affront to state autonomy. Constitutionally, the issue is really one of inducement versus compulsion, as one commentator has observed that “[t]he Constitution counts upon the necessary participation of the states . . . not by direct command but by incentive of not losing the opportunity of participation.”28 In matters of education, then, Congress can effect change only through persuasion or by giving the states an option that allows a state to act of its own volition. A choice of accepting the grant and the conditions attached thereto must be provided to the state. Under the General Welfare Clause, then, a state may elect not to participate in a federal program if the conditions are educationally, financially, or legally offensive.29 Federal expenditure of taxation dollars for No Child Left Behind is justified under the General Welfare (Spending) Clause. The No Child Left Behind Act (Public Law 107–110) is a consolidation of several federal programs for elementary and secondary education. NCLB, as it is commonly known, was signed into law by George W. Bush on January 8, 2002. The NCLB act encompassed and amended in principle part the old Title I of the Elementary and Secondary Education Act of 1965 (ESEA). The entire legislation of NCLB reauthorizes a range of federal education funding programs around the central thesis of increasing the performance of public schools, requiring accountability of states and local school districts, and promoting parental choice. Within the scope of federal power to affect education policy as justified by the General Welfare Clause (Spending Clause), Article I, Section 8 of the Constitution, the federal
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government provides funding through NCLB for national purposes and to acquire the money the states must agree to certain conditions. The principal overall condition of the agreements are (a) to improve academic performance as measured by achievement tests, (b) to adhere to required measures of accountability for the programs and funds, and (c) to not supplant state and local money with federal funds. The means of measuring academic performance and the penalties for nonperformance are the principal and most controversial aspects of the new NCLB legislation. Title I, the heart of NCLB, ascribes an encompassing goal to ensure that “all children have a fair, equal, and significant opportunity to obtain a high quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and State academic assessments.”30 To effectuate this purpose, the statute endeavors to meet the educational needs of “low-achieving children in . . . highestpoverty schools,” and of “limited English proficient children, migratory children, children with disabilities, Indian children, neglected or delinquent children, and young children in need of reading assistance.” The law calls for reduction in the achievement gap between high- and low-performing children and, importantly, the Act holds schools, local educational agencies, and states accountable for improving the academic achievement of all students.31 To achieve these broad ends the NCLB requires that school districts must show that students have achieved Adequate Yearly Progress (AYP) in designated subject matter areas. Much of the controversy surrounding NCLB has to do with the issue of federalism and the bounds of the General Welfare Clause. The federalism question comes into play in that the recipient state must agree to a complex performance regime affecting all children in order to obtain a rather limited allowance of federal funds. The categorical purpose of NCLB is hereby used as torque to institute a testing regimen for all children. Objection to the program has been primarily concerned with overreaching mandate and underfunding of the real costs of the program. In fact, federal appropriations for funding NCLB do fall below the estimates of full implementation and the authorization levels established by Congress. The result is that the federal
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government exercises rather extensive control while contributing a relatively minor portion of the total expenditures for public elementary and secondary education. Yet, all states have made application for NCLB funding, have agreed to certain conditions given assurances, and, indeed, have contracted with the federal government to relinquish certain state autonomy over public schools in consideration for receipt of the federal funds. Litigation, to date, has only marginally helped define the limits of federalism and the parameters of inducement or coercion between the states and the federal government. As we shall see later in this book, in discussion of contractual agreements, both parties must be fully aware of the conditions to the meeting of the minds or a valid contract has not occurred. The Supreme Court has held that Congress has broad power under the General Welfare (Spending) Clause to set the terms and conditions it requires in the disbursement of federal money to the states32; however, Congress cannot attach conditions that are not clearly understood by the States. In Pennhurst, the Supreme Court said that the conditions by Congress must be set out “unambiguously.”33 In Rowley, a case dealt with in more detail in Chapter 10 of this book, the Supreme Court said that “Legislation enacted pursuant to the spending power is much in the nature of a contract,”34 and therefore to be bound by “federally imposed conditions,” recipients of federal funds must accept them “voluntarily and knowingly.”35 In 2006, in Arlington, the Supreme Court pointed out that “we must view (the federal legislation) from the perspective of a state official who is engaged in the process of deciding whether the State should accept (federal) funds and the obligations that go with these funds.”36 Thus, the Supreme Court defines the balance of federalism, at least to some extent, in terms of standard common law contract that requires both parties to clearly understand what they are getting into. In Arlington, the Court further explains that the hypothetical state official, who agrees to the state’s side of the contract, must be able to comprehend what commitments the state is promising to perform in order to get the money. The Court explained, “We must ask whether such a state official would clearly understand”37 the “obligations” required by the federal act that is
providing the funds. According to the Court, the federal law must furnish “clear notice” regarding the consequences that result from the State’s acceptance of the funds.38
A PUTATIVE CONTRACT When Congress acts pursuant to its spending power, it generates legislation ‘much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.’ In interpreting language in spending legislation, we thus ‘insist that Congress speak with a clear voice,’ recognizing that ‘[t]here can, of course, be no knowing acceptance [of the terms of the putative contract] if a State is unaware of the conditions [imposed by the legislation] or is unable to ascertain what is expected of it. —Davis v. Monroe County Board of Education, quoting Pennhurst State School and Hospital v. Halderman
The boundaries of Congress’s authority to require obedience to its national interests is illustrated by a 2006 higher education case. Because of the domestic discord in the United States caused by the invasion of Iraq, several law schools throughout the United States denied military recruiters access to facilities on their campuses. In response, Congress passed a law, the Solomon Amendment, requiring institutions of higher education to provide access to military recruiters upon pain of loss of federal funds. The federal funds covered by the Solomon Amendment (10 U.S. C.A. 983 (d)(1)(supp. 2005)) include funding from the U.S. Departments of Defense, Homeland Security, Transportation, Labor, Education and Health and Human Services, the Central Intelligence Agency, and the National Nuclear Security Administration of the Department of Energy. Funds provided for student financial assistance are not jeopardized by failure to adhere to the Act (§ 983 (d)(2)). Denial of access to military recruiters would result in loss of federal funding not merely for a law school but for the entire university as well. Plaintiffs claimed, among other things, that the Solomon Amendment’s broad reach across such a range of federal funds in penalizing institutions
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Structural Provisions in the Constitution
of higher education exceeded Congressional authority under the General Welfare Clause. Congressional justification for the Solomon Amendment could arguably have been tied to Congress’ power to “provide for the common Defense,” “(t)o raise and support Armies,” and “(t)o provide and maintain a Navy.” In Article I, § 8, cls. 1., however, Congress sought justification under the General Welfare Clause instead. The Supreme Court ruled for Congress upholding the Solomon Amendment as a constitutionally valid application of the General Welfare Clause. In this regard, the Court concluded simply that, “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.”39 The delicate balance of federalism when applied to education can at times become almost unintelligible for states—making their understanding of the “putative contract” with the federal government uncertain as to the states’ contractual obligations. For example, Rodney Paige, U.S. Secretary of Education, appointed by George W. Bush, erroneously led states to believe in an oral presentation that states would not be required to use their own resources to finance unfunded federal mandates under NCLB. Paige said that “there is language in the bill (NCLB) that prohibits (the federal government) requiring anything that is not paid for,”40 suggesting that waivers would be granted to states when the federal government did not fund NCLB requirements. Then later contradicting himself, Paige said in a speech to the National Urban League, that “if a state decides to accept the federal funds [offered under the NCLB], then it’s required to implement the law in its entirety.” 41 Paige then granted no waivers of NCLB educational requirements in spite of the fact that the federal government had appropriated insufficient funds for the law’s implementation. Paige’s incoherence fueled a state challenge to NCLB regulations relying on the Pennhurst42 criterion that conditions state receipt of federal funds in clear and “unambiguous” terms. The situation led to extended litigation in which the city school district of Pontiac, Michigan, sued the U.S. Secretary of Education claiming that the Supreme Court’s Spending Clause standards as enunciated in Pennhurst had been violated.
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A federal district court dismissed the complaint,43 but a three-judge panel of the Sixth Circuit Court of Appeals reversed the district court.44 However, the story did not end there. On rehearing, the Sixth Circuit Court, en banc, 2009, vacated the decision of the three-judge panel and scheduled a rehearing in which all 16 judges would be sitting. The resulting decision of the entire court was effectively a non-decision, with the opinions of the judges evenly split. Because of the inability of the court to definitively settle the issue, the dismissal of the Pontiac School Districts’ complaint prevailed. It is, however, worthy of note that one-half of the judges who believed that the Pontiac School District should prevail believed that while Paige’s interpretation of NCLB was not clearly “frivolous,” it nevertheless was so careless as not to give “clear notice to the states of their obligation.”45 Concerns about NCLB’s unfunded mandates have resulted in other litigation, but none yet to reach the Supreme Court. The ambiguity issue arose in an Illinois case in which a perceived conflict developed between NCLB and the Individuals with Disabilities Education Act (IDEA). Plaintiffs claimed uncertainty as to which law prevailed after several amendments to both; and the court dismissed the case for failure of plaintiffs to state a claim.46 Other cases have addressed the ambiguity issue, but have not augmented the understanding of the federalstate relationship under the Spending Clause.47 The U.S. Court of Appeals, Fourth Circuit has summarized its own reading of the precedents in attempting to define a balance of federalism pertaining to education.48 This court noted that Congress may exercise its spending power to impose conditions on grants of federal funds, but such conditions must be within certain restraints, which are: 1. The exercise of the spending power must be for the general welfare, 2. The conditions must be stated unambiguously, 3. The conditions must bear some relationship to the purpose of federal spending, 4. The conditions for the expenditures must not violate some other constitutional command, and 5. The financial inducement offered by Congress must not be so coercive as to pass the point at which pressure becomes compulsion.49
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In the case of South Dakota v. Elizabeth H. Dole, Secretary, U.S. Department of Transportation, 483 U.S. 203, 107 S.Ct. 2793 (1987), the Supreme Court upheld a requirement that states set federally specified drinking and driving laws in order to receive federal transportation subventions as within the power of Congress under the Spending Clause. However, Justice O’Connor, in a vigorous dissent, argued that the majority opinion gave excessive reach to congressional power. In Arlington (2006) below, the Supreme Court now appears to agree with Justice O’Connor.
Federal Legislation Enacted Under the Spending Clause Must Be Clear and Unambiguous as to the Obligations Required of the States
Arlington Central School District Board of Education v. Murphy Supreme Court of the United States, 2006 548 U.S. 291, 126 S. Ct. 2455
Justice ALITO delivered the opinion of the Court. The Individuals with Disabilities Education Act (IDEA or Act) provides that a court “may award reasonable attorneys’ fees as part of the costs” to parents who prevail in an action brought under the Act. 111 Stat. 92, 20 U.S.C. § 1415(i)(3)(B). We granted certiorari to decide whether this fee-shifting provision authorizes prevailing parents to recover fees for services rendered by experts in IDEA actions. We hold that it does not. Respondents Pearl and Theodore Murphy filed an action under the IDEA on behalf of their son, Joseph Murphy, seeking to require petitioner Arlington Central School District Board of Education to pay for their son’s private school tuition for specified school years. Respondents prevailed in the District Court, and the Court of Appeals for the Second Circuit affirmed. As prevailing parents, respondents then sought $29,350 in fees for the services of an
educational consultant, Marilyn Arons, who assisted respondents throughout the IDEA proceedings. The District Court granted respondents’ request in part. It held that only the value of Arons’ time spent between the hearing request and the ruling in respondents’ favor could properly be considered charges incurred in an “action or proceeding brought” under the Act. This reduced the maximum recovery to $8,650. The District Court also held that Arons, a nonlawyer, could be compensated only for time spent on expert consulting services, not for time spent on legal representation, but it concluded that all the relevant time could be characterized as falling within the compensable category, and thus allowed compensation for the full $8,650. The Court of Appeals for the Second Circuit affirmed. 402 F.3d 332 (2005). Acknowledging that other Circuits had taken the opposite view, the Court of Appeals for the Second Circuit held that “Congress intended to and did authorize the reimbursement of expert fees in IDEA actions.” . . . We granted certiorari to resolve the conflict among the Circuits with respect to whether Congress authorized the compensation of expert fees to prevailing parents in IDEA actions. We now reverse. Our resolution of the question presented in this case is guided by the fact that Congress enacted the IDEA pursuant to the Spending Clause. Like its statutory predecessor, the IDEA provides federal funds to assist state and local agencies in educating children with disabilities “and conditions such funding upon a State’s compliance with extensive goals and procedures.” Congress has broad power to set the terms on which it disburses federal money to the States, but when Congress attaches conditions to a State’s acceptance of federal funds, the conditions must be set out “unambiguously,” see Pennhurst State School and Hospital v. Halderman. “[L]egislation enacted pursuant to the spending power is much in the nature of a contract,” and therefore, to be bound by “federally imposed conditions,” recipients of federal funds must accept them “voluntarily and knowingly.” Pennhurst. States cannot knowingly accept conditions of which they are “unaware” or which they are “unable to ascertain.” Thus, in the present case, we must view the IDEA from the perspective of a state official who is engaged in the
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Structural Provisions in the Constitution
process of deciding whether the State should accept IDEA funds and the obligations that go with those funds. We must ask whether such a state official would clearly understand that one of the obligations of the Act is the obligation to compensate prevailing parents for expert fees. In other words, we must ask whether the IDEA furnishes clear notice regarding the liability at issue in this case. ... The governing provision of the IDEA, 20 U.S.C. § 1415(i)(3)(B), provides that “[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs” to the parents of “a child with a disability” who is the “prevailing party.” While this provision provides for an award of “reasonable attorneys’ fees,” this provision does not even hint that acceptance of IDEA funds makes a State responsible for reimbursing prevailing parents for services rendered by experts. Respondents contend that we should interpret the term “costs” in accordance with its meaning in ordinary usage and that § 1415(i)(3)(B) should therefore be read to “authorize reimbursement of all costs parents incur in IDEA proceedings, including expert costs.” This argument has multiple flaws. For one thing, as the Court of Appeals in this case acknowledged, “ ‘costs’ is a term of art that generally does not include expert fees.” The use of this term of art, rather than a term such as “expenses,” strongly suggests that § 1415(i) (3)(B) was not meant to be an open-ended provision that makes participating States liable for all expenses incurred by prevailing parents in connection with an IDEA case—for example, travel and lodging expenses or lost wages due to time taken off from work. . . . Thus, the text of 20 U.S.C. § 1415(i)(3)(B) does not authorize an award of any additional expert fees, and it certainly fails to provide the clear notice that is required under the Spending Clause. . . . In sum, the terms of the IDEA overwhelmingly support the conclusion that prevailing parents may not recover the costs of experts or consultants. Certainly the terms of the IDEA fail to provide the clear notice that would be needed to attach such a condition to a State’s receipt of IDEA funds. . . .
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Finally, respondents vigorously argue that Congress clearly intended for prevailing parents to be compensated for expert fees. They rely on the legislative history. . . . Whatever weight this legislative history would merit in another context, it is not sufficient here. Putting the legislative history aside, we see virtually no support for respondents’ position. Under these circumstances, where everything other than the legislative history overwhelmingly suggests that expert fees may not be recovered, the legislative history is simply not enough. In a Spending Clause case, the key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds. Here, in the face of the unambiguous text of the IDEA . . . we cannot say that the legislative history on which respondents rely is sufficient to provide the requisite fair notice. . . . We reverse the judgment of the Court of Appeals for the Second Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.
CASE NOTES 1. As noted above, federal funding of education, justified under the General Welfare Clause, assumes the nature of a contractual agreement between the recipient state and the granting federal government. States must, of course, abide by any such agreement and expend the federally distributed dollars in accordance with the agreement. If funds are misused by a state, then the federal government can recover the funds, or some portion thereof, as determined by a federal audit. Such was the situation in a case regarding misused ESEA funds by the states of New Jersey and Pennsylvania in which the Supreme Court held that the federal government’s recovery and imposition of liability on a state for inappropriate use of federal monies does not interfere with state sovereignty in violation of the Tenth Amendment. Bell v. New Jersey and Pennsylvania, 461 U.S. 773, 103 S. Ct. 2187 (1983). 2. Regarding recovery by the federal government of funds misspent by a state, the Supreme Court has ruled that a state is not retroactively liable for Title I ESEA funds
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where the U.S. Secretary of Education sought amendments to the Act to earlier state obligations. The Supreme Court, in a case involving a claim by the federal government against New Jersey for the return of allegedly misspent monies, said that, “Practical considerations related to the enforcement of the requirements of grant-in-aid programs . . . suggest that expenditures must presumptively be evaluated by the law in effect when the grants are made,” and are not subject to laws made after the fact. 3. A standard feature of the contractual agreement between state governments and the federal government as a condition of receiving federal funds is that state and local funds will not be “supplanted” by federal funds. This means that state or local funds will not be reduced or replaced by federal dollars. Federal dollars are in virtually all instances meant to be supplemental. If supplanting is shown to have transpired by a fiscal audit, then the federal government can recover the requisite funds from state. The federal government is not required to show that the misuse of federal funds was in bad faith. Regardless of a bad faith showing, the state is liable for misuse of federal funds in supplanting of expenditures. Where Title I, ESEA, funds were not used in accordance with the law, but in good faith, the U.S. Supreme Court held that the state was nevertheless liable to return the funds as a condition of the federal-state Title I nonsupplanting agreement. Bennett v. Kentucky Dept. of Ed., 470 U.S. 656, 105 S. Ct. 1544 (1985), Bennett v. New Jersey, 470 U.S. 632, 10 S. Ct. 555 (1985). 4. The NCLB Act does not provide a basis for judicial standing for individuals to enforce provisions of the Act against states. The only remedy for state noncompliance of requirements of the Act is the withholding of federal funds from the state by the U.S. Secretary of Education. See: Association of Community Organizations for Reform Now v. New York City Department of Education, 269 F. Supp. 2d 910 (S.D.N.Y. 2003); Center for Law and Education v. Department of Education, 396 F.3d 1152 (D.C. Cir. 2003); Fresh Start Academy v. Toledo Board of Education, 363 F. Supp. 2d 910 (N.D. Ohio 2005).
COMMERCE CLAUSE AND EDUCATION Congress has relied on the Commerce Clause to require certain actions by states. Quite beyond the limitations governing general welfare, the Congress has power under this clause to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”50 Education can be affected by congressional action pursuant to this clause in many different ways, but most notably safety, transportation, and labor regulations have touched education. Although one would naturally assume that the term commerce included commercial activity—buying, selling, and trading goods to and fro among states—the definition, as applied by the Supreme Court, has been given broader meaning. In Gibbons v. Ogden,51 Chief Justice Marshall rejected the narrow “trading” definition and maintained that it was “something more—intercourse.” Commerce, as intercourse, was defined in Gibbons not merely as an exchange of goods but also as a means for “advancement of society, labor, transportation, intelligence, care, and various mediums of exchange [emphasis added]. . . .” That education is the foundation of commerce is not a new idea. The importance of literacy as a necessity, and indeed a right, of every human being began its ascendancy with the great innovation of movable type for printing by Gutenberg. Later, according to Condorcet writing in 1793, “knowledge became the subject of a brisk and universal trade.” 52 Condorcet attributed the rapid advancement of scientific discoveries to this “universal trade,”53 citing the prodigious expansion of scientific knowledge by Bacon, Boyle, Newton, Halley, Huygens, Mercator, Kepler, Franklin, and others who fueled the advances in architecture, mathematics, medicine, astronomy, chemistry, and physics. Thus, the rationale required to support a constitutional assertion of education and knowledge as an aspect of commerce is neither new nor difficult to maintain. As a mere limitation on states to prevent interference with interstate commerce, such a definition has little practical effect on education, but when read in its larger context in relation to the “necessary and proper clause,”54 then Congress may act to improve commerce in an affirmative way rather than merely act to prevent state impediments. This, coupled with
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the fact that commerce regulation is not limited to interstate but may also, under certain conditions, include intrastate activities, brings public education within the purview of the clause.55 In this broad context, education could conceivably be brought within the scope of commerce in that the movement of an intelligent citizenry among the states is vital to the growth and prosperity of the nation. With this definition, the courts are presented with the difficult dilemma of weighing the state powers under the Tenth Amendment against the apparent boundless scope of “commerce.” Few decisions have been rendered in favor of state prerogative. In expounding the philosophy of the “political process,” in which each state has representation in the Congress and this representation will protect state interests, the Supreme Court largely exhibits a hands-off attitude toward the expansion of the federal role through the Commerce Clause.56 By 1942, Congress’s economic regulatory power was viewed by the Supreme Court as being virtually unlimited. Later, in 1946, the Court said that the commerce power is “as broad as the economic needs of the nation.”57 At that time the national prerogative, through the Commerce Clause, attained its broadest scope. This expansive view was changed, if not reversed, in National League of Cities v. Usery, handed down by the Supreme Court in 1976. Under litigation were the 1974 amendments to the Fair Labor Standards Act, which extended wage and hour standards to almost all public employment, including local school districts. In this case, the Court, although admitting that the amendments were within the scope of the Commerce Clause, nevertheless held that the Tenth Amendment was violated. The decision enunciated a more restricted view of the Commerce Clause and interpreted the Tenth Amendment as an affirmative limitation upon the power of Congress to regulate the activities of state and local governments. 58 Justice Rehnquist, writing for the majority, maintained that the state’s power to determine wages of its own employees is an “undoubted attribute of state sovereignty” and that the functions performed by the affected state employees were “essential to the separate and independent existence” of the state.59
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Usery, however, was reversed by the Supreme Court on February 19, 1985, in Garcia v. San Antonio Metropolitan Transit Authority.60 In this 5–4 decision, Justice Blackmun, writing for the majority, said that judicial restraint in assuring state sovereignty is unnecessary in our federal system. Blackmun was of the opinion that the balance in the federal system is sufficiently ensured by the political processes, and constant intervention by the courts is unnecessary. Therefore, in Garcia, Blackmun was willing to rely on the legislative and executive branches of the central government to define the limits of federalism. It was Blackmun’s contention that any commerce clause limitations on the powers of the central government could not derive from the judiciary, but rather must come from self-imposed restraints that the legislative and executive branches would place on themselves. Blackmun therefore entrusted the Congress and the president in their respective powers to prescribe the limits of the Commerce Clause. The Supreme Court took another turn at circumscribing Congress’s powers in 1995 in United States v. Lopez,61 in which the power of Congress to create gun-free school zones came into question. In this case a man was arrested and convicted of possessing a firearm in a gun-free zone, as established by Congress in the Gun-Free School Zones Act in 1990. He challenged the constitutionality of the act, claiming Congress had exceeded its authority. The congressional act was defended by asserting that commerce clause powers gave Congress the authority to make such laws regulating commerce. The Supreme Court held the law unconstitutional, finding that Congress had exceeded its powers because it could not be reasonably maintained that possession of a gun in a local school zone was an economic activity affecting interstate commerce. The Court quoted Chief Justice Marshall’s 1819 decision in McCulloch v. Maryland 62 explaining the uncertainty of the extent of Congress’s powers. Marshall said: The [federal] government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it . . . is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist.
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As the cases of Usery, Garcia, and Lopez indicate, the precise balance inherent in the commerce clause has not been clearly and finally decided. The Supreme Court in Lopez attempted to define those boundaries.
Congress’s Gun-Free School Zones Act Violates the Commerce Clause
United States v. Lopez Supreme Court of the United States, 1995. 514 U.S. 549, 115 S. Ct. 1624.
Chief Justice REHNQUIST delivered the opinion of the Court. In the Gun-Free School Zones Act of 1990, Congress made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C. § 922”(q)(1) (A) (1988 ed., Supp. V). The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress “[t]o regulate Commerce . . . among the several States. . . .” U.S. Const., Art. I, § 8, cl. 3. On March 10, 1992, respondent, who was then a 12th-grade student, arrived at Edison High School in San Antonio, Texas, carrying a concealed .38 caliber handgun and five bullets. Acting upon an anonymous tip, school authorities confronted respondent, who admitted that he was carrying the weapon. He was arrested and charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged respondent by complaint with violating the Gun-Free School Zones Act of 1990. . . . A federal grand jury indicted respondent on one count of knowing possession of a firearm at a school zone, in violation of § 922(q). Respondent moved to dismiss his federal indictment on
the ground that § 922(q) “is unconstitutional as it is beyond the power of Congress to legislate control over our public schools.” The District Court denied the motion, concluding that § 922(q) “is a constitutional exercise of Congress’ well-defined power to regulate activities in and affecting commerce, and the ‘business’ of elementary, middle and high schools . . . affects interstate commerce.” Respondent waived his right to a jury trial. The District Court conducted a bench trial, found him guilty of violating § 922(q), and sentenced him to six months’ imprisonment and two years’ supervised release. On appeal, respondent challenged his conviction based on his claim that § 922(q) exceeded Congress’ power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed respondent’s conviction. We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, § 8. As James Madison wrote, “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist, No. 45, pp. 292–293 (C. Rossiter ed. 1961). The Constitution delegates to Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const., Art. I, § 8, cl. 3. The Court, through Chief Justice Marshall, first defined the nature of Congress’ commerce power in Gibbons v. Ogden, 9 Wheat. 1, 189–190, 6 L.Ed. 23 (1824): Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.
The commerce power “is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. . . .” . . . [W]e have identified three broad categories of activity that Congress may regulate under its commerce power. . . . First, Congress may regulate the use of the channels of interstate commerce. . . . “[T]he authority of Congress to keep the channels of interstate commerce
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Structural Provisions in the Constitution
free from immoral and injurious uses has been frequently sustained, and is no longer open to question.” . . . . . . Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. . . . Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e. those activities that substantially affect interstate commerce. . . . Within this final category, admittedly, our case law has not been clear whether an activity must “affect” or “substantially affect” interstate commerce in order to be within Congress’ power to regulate it under the Commerce Clause. . . . . . . We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity “substantially affects” interstate commerce. We now turn to consider the power of Congress, in the light of this framework, to enact § 922(q). The first two categories of authority may be quickly disposed of: § 922(q) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can § 922(q) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce. Thus, if § 922(q) is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce. First, we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce. . . . Section 922(q) is a criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the interstate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial
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transaction, which viewed in the aggregate, substantially affects interstate commerce. Second, § 922(q) contains no jurisdictional element which would ensure, through case-bycase inquiry, that the firearm possession in question affects interstate commerce. . . . The Government’s essential contention, in fine, is that we may determine here that § 922(q) is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce. . . . The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. . . . Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation’s economic well-being. As a result, the Government argues that Congress could rationally have concluded that § 922(q) substantially affects interstate commerce. We pause to consider the implications of the Government’s arguments. The Government admits, under its “costs of crime” reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. . . . Similarly, under the Government’s “national productivity” reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of § 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we
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are hard-pressed to posit any activity by an individual that Congress is without power to regulate. . . . . . . [I]f Congress can, pursuant to its Commerce Clause power, regulate activities that adversely affect the learning environment, then, a fortiori, it also can regulate the educational process directly. Congress could determine that a school’s curriculum has a “significant” effect on the extent of classroom learning. As a result, Congress could mandate a federal curriculum for local elementary and secondary schools because what is taught in local schools has a significant “effect on classroom learning,” . . . and that, in turn, has a substantial effect on interstate commerce. These are not precise formulations, and in the nature of things they cannot be. But we think they point the way to a correct decision of this case. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, . . . and that there never will be a distinction between what is truly national and what is truly local. . . . This we are unwilling to do. For the foregoing reasons the judgment of the Court of Appeals is Affirmed.
In 1788, before the Tenth Amendment was ratified, Madison described the federal government’s relationship to the states in the new Constitution this way: The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
(The Federalist, No. 45, January 26, 1788.)
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Supremacy Clause
Occasionally in the field of education, a state statute will come in direct conflict with a federal statute. If this occurs, the state law must give way and accede primacy to the federal law. This, of course, assumes that the federal law in question is enacted within the scope of appropriate constitutional authority. In anticipation of such occurrences, the founding fathers in 1787 included in the new Constitution a provision that became known as the “Supremacy Clause,” whereby the central government of delegated powers could have a preeminent counterbalance against the strong sovereign powers of the states. Article I, Section 8 of the Constitution grants Congress the broad power to enact legislation in several delegated areas of national concern. This power is buttressed by the Supremacy Clause, which elevates the authority of congressional legislation above that of state legislation in areas in which Congress possesses constitutionally delegated authority. This preeminence of congressional power, however, must conform to the overall governance structure of the United States as contemplated by the Constitution. Article VI, Clause 2 of the U.S. Constitution contains the “Supremacy Clause.” This clause states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . , shall be the supreme Law of the Land; and the Judges in every State shall be bound
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Supremacy Clause
thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The rationale for the supremacy of the laws of the central government is to be found in Madison’s explanation in the Federalist Papers, Number 33, wherein he points out that “the laws of the Union are to be the supreme law of the land.”63 Madison observes that “[i]f a number of political societies enter into a larger political society, . . . the laws of the latter must necessarily be supreme over those societies and the individuals of whom they are composed. It would otherwise be a mere treaty . . . , and not a government. . . .” 64 Yet Madison goes on to note in a point that is cited by the U.S. Supreme Court in Alden in 1999, that it does not, however, follow “from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land.”65 The smaller societies in the case of the American system are, of course, the states that retain residual powers of their sovereignty. The adoption of the Supremacy Clause provoked what was perhaps the most contentious of all the debates of the delegates to the Constitutional Convention at Philadelphia in 1787. The basis for the clause is found in James Madison’s proposal in the Virginia Plan that gave the national legislature “dominance” over state laws that conflicted with laws or articles of the Union.66 Yet the issue was never clearly decided in the minds of the delegates at the Constitutional Convention. In the Federalist Papers, Number 39, Madison, after analyzing aspects of the powers of the central government as bestowed by the new Constitution, was inconclusive as to whether the new government was either federal, national, or something in between. He summarized that “[t]he proposed Constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal Constitution, but a composition of both.”67 According to Rakove, it was Madison’s favored image that “the new federal system was to occupy a middle ground between a confederation of sovereign states and a consolidated nation.”68 Because the new system was not well defined and never really understood or agreed upon by the delegates at Philadelphia, great reliance was placed on the
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federal judiciary. The judiciary was to interpret the Supremacy Clause in actual cases and controversies and thereby develop an accepted balance between states and the central government. The Supremacy Clause attempted implicitly to incorporate a principle of judicial review to create the appropriate equilibrium that would establish limits on state sovereignty while advancing the necessary cohesion of the central government.69 The Supremacy Clause, as interpreted by the Supreme Court, was, therefore, to provide the legal nexus on which the American brand of federalism would ultimately be determined. Thus, under the Supremacy Clause, the federal courts must decide whether the state law in question is compatible with the policy as enunciated by the federal statute. If the state law is in conflict with the federal statute and policy, the state law must yield. As anticipated by Madison, the balance between the powers of the “union” government and the residual powers of the state would be more fully defined by the judiciary as it interpreted cases and controversies over the succeeding years and decades. The balance has tended to reflect the political philosophy of the members of the U.S. Supreme Court and as a result the lines drawn do not remain static, tending to shift with the political climate of the times. Nowhere is the expression “the living constitution” more readily apparent than in the Supreme Court’s interpretations as to the evolving balance of power between the central and state governments. Today, the U.S. Supreme Court decisions have taken on a gloss and tone of decentralization as opposed to the centrist view of a few decades ago. The Supreme Court in 1999, in Alden v. Maine, devotes considerable attention to the explanation of what the U.S. Constitution intended for the design of our government as viewed through the lens of today’s more conservative Court. Interestingly, the Court in Alden speaks of a “National Government” and “States as sovereign entities” operating in a “Federal system.” Thus, to this Court the system seems to be federal rather than national even though the word National is used for the central government. Yet, it would appear, as measured by Madison, that the system is probably neither national nor federal, “neither wholly federal nor wholly national.”70
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The view of the current U.S. Supreme Court is explicated by Justice Kennedy writing for the majority in Alden: The federal system established by our Constitution preserves the sovereign status of the States in two ways. First, it reserves to them a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status. The States “form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” (The Federalist, No. 39). Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation’s rejection of “the concept of a central government that would act upon and through the States” in favor of “a system in which the State and Federal Governments would exercise concurrent authority over the people—who were, in Hamilton’s words, ‘the only proper objects of government.’” (quoting The Federalist, No. 15).
The States thus retain “a residuary and inviolable sovereignty.” (The Federalist, No. 39). They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty.71 Thus, according to Justice Kennedy, “the Supremacy Clause enshrines as ‘the supreme law of the land’ only those federal acts that accord with the constitutional design”72; therefore, the Supremacy Clause sits as the test and raises the eternal question of the constitutional design as to whether a law enacted by the Congress is “a valid exercise of national power.”73
State Statute Impeding Intent of Federal Statute Violates Supremacy Clause
Shepheard v. Godwin United States District Court of Eastern Virginia, 1968. 280 F. Supp. 869.
ALBERT V. BRYAN, Circuit Judge. . . . “Impacted” school areas are those whose school populations have been substantially
enlarged by the attendance of Federal employees’ children, but at the same time are losing school tax revenues because of the United States government’s immunity from land taxes, both factors arising from increased Federal activities in the area. These conditions prompted Congress to provide financial aid for operation of the local educational facilities, P.L. 874. In applying a State formula for State assistance to local school districts, Virginia has deducted from the share otherwise allocable to the district a sum equal to a substantial percentage of any Federal “impact” funds receivable by the district. Residents, real estate owners, and taxpayers of the City of Norfolk, later joined by those of the County of Fairfax, Virginia, in behalf of themselves and others similarly situated, here attack this deduction . . . as violative of the purpose and intent of the act of Congress and as transgressing the Fourteenth Amendment. We uphold their contention. . . . The theory of the deduction in toto was that the Federal moneys were substituting for the taxes lost to the district by reason of the immunity of the Government property, and hence should be charged to the locality, just as the taxes would have been, in fixing the State supplementary aid. . . . The grievance of the plaintiffs is obvious: any deduction whatsoever of the Federal supplement in apportioning State aid, pro tanto burdens them as taxpayers, for they and the other property owners in Norfolk and Fairfax have to make up the unindemnified portion of the impact costs. They contend that any deduction is prohibited by the purpose and plan of the Federal act. The rejoinder of the defendant officials is, first, that the impact pupils are counted by the State in computing the minimum program cost in the district, and in accounting with the district for the State’s supplementary aid it is not inequitable to insist upon a deduction of a commensurate amount of the impact moneys. At first appealing, this argument ignores the fact that the Federal children are to a large extent paying their own way so far as the State is concerned. Quite soundly, the Congressional Committee on Education and Labor, in recommending passage of P.L. 874, observed that the influx of Federal employees, and the withdrawal of real estate from taxes, did not diminish the tax sources of the State or otherwise burden the State. . . .
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Supremacy Clause
Our conclusion is that the State formula wrenches from the impacted localities the very benefaction the act was intended to bestow. The State plan must fall as violative of the supremacy clause of the Constitution. Our decision rests entirely on the terms, pattern and policy of the act. The act makes these propositions clear: (1) the Federal funds are exclusively for supplementation of the local sources of revenues for school purposes; and (2) the act was not intended to lessen the efforts of the State. Those postulates are manifested in the statute by these provisions, especially: that the Federal contribution be paid directly to the local school agency on reports of the local agency, and that the contribution be computed by reference to the expenditures “made from revenues derived from local sources” in comparable school districts. But the State formula at once sets these precepts at naught. It uses the impact funds to account in part for fulfillment of the State’s pledge of supplementary aid to the community; and the State moneys thus saved are available for State retention or such use as Virginia determines. Without the inclusion of the Federal sums, the State’s annual payments towards supplementary aid would be increased, it is estimated, by more than $10,000,000. This commandeering of credit for the Federal moneys severely injures both the community and the pupil. First and foremost, it does not relieve the local taxpayers to the extent Congress contemplated. Next, without the exclusive application of the funds to the areas where the need arose and remains, the result may be to lower the standard of education provided in an impacted district. Instead of maintaining the previous standards for the additional pupils, the impact money when thinned by the State would obviously be inadequate to continue that level for the increased school attendance, a result certainly thwarting the aim of the Federal law. The construction and the implications we put upon the act find confirmation in its legislative history. . . . The exposition underscores the Congressional mandate that the impact payments are for local use and are not to be applied to compensate the State in any respect. Since its explanation in 1950 when P.L. 874 was passed that no compensation was intended for the State, Congress has reiterated this intention. In this
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repetition it definitely disapproves the accounting use Virginia’s formula makes of the impact moneys. The House of Representatives Committee Report No. 1814, dated August 5, 1966, in proposing an amendment to P.L. 874, stated: Fifteen States offset the amount of Public Law 874 funds received by their school districts by reducing part of their State aid to those districts. This is in direct contravention to congressional intent. Impact aid funds are intended to compensate districts for loss of tax revenues due to Federal connection, not to substitute for State funds the districts would otherwise receive.
The committee report and the amendment are cited merely as evidence of Congressional intendment. The amendment provides only an administrative remedy of the Government and does not deprive the plaintiffs of standing to prevent future State infringement of their Constitutional right to the benefits of the aid proposed by Congress. Necessarily, then, the upshot is that the defendants must be enjoined from hereafter in any way denying to the impacted area the exclusive use and enjoyment of the impact funds. . . . An order implementing this opinion is filed herewith. . . .
Case Notes 1. Supremacy of the central government must be considered by the courts on a case-by-case basis. The Supreme Court has observed that both the federal and state laws that are said to be in conflict must be carefully examined to determine the exact nature of the inconsistency before an application of the Supremacy Clause is warranted. In that regard, the Court has said: . . . from the very nature of the problem there cannot be any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in light of . . . federal laws that touch the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula.
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
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Chapter 3
Role of the Federal Government
Supremacy of the central government, therefore, generally hinges on whether state law stands as an obstacle to the accomplishment and implementation of the objectives of Congress in effectuating a national purpose. Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399 (1941). 2. A state statute may be held invalid under the Supremacy Clause even if Congress does not expressly preempt state law for a given purpose. The U.S. Supreme Court has held that a state law violates the Supremacy Clause if it “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” For example, in a case where a federal statute compensated local county governments for loss of tax revenue resulting from the tax-immune status of federal lands, such as wilderness areas and natural parks located within county boundaries, and for the costs of providing services to these areas, and a state statute contrarily provided that the federal monies should be distributed on a state prescribed formula, the U.S. Supreme Court held that the state law violated the Supremacy Clause. The Court said that the federal statutory intent was to allow full local discretion in the deployment of the federal funds and that the state statute would not be permitted to frustrate the federal intent, as expressed by Congress. Lawrence County v. Lead-Deadwood School District No. 40-1, 469 U.S. 256, 105 S. Ct. 695 (1985). 3. In the event of conflict as to definition of the requirements of a particular federally funded program, the federal definition will prevail. Where a controversy arose between the state of Pennsylvania and the U.S. Secretary of Education regarding what constituted vocational education as prescribed by the Perkins Act, a U.S. Court of Appeals ruled that such definitional authority is vested in the Secretary. The primary issue in this case was whether state monies spent for state defined vocational education could be counted as fiscal effort of the state as required to be maintained from one year to the next. The Secretary had determined that certain expenditures that the state included in its determination of fiscal effort for vocational education could not be permitted as not falling within the scope of the Secretary’s definition of vocational education. State
of Pennsylvania v. Riley, 84 F. 3d 125 (3rd Cir. 1996). 4. In helping clarify the supremacy issue, the Supreme Court has further explained that an implied conflict in a federal versus a state law may be as constitutionally meaningful as one that is expressed. For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must, of course, be considered, and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished—if its operation within its chosen field can be frustrated and its provisions refused their natural effect—the state law must yield to the regulation of Congress within the sphere of its delegated power. Savage v. Jones, 225 U.S. 501, 32 S. Ct. 715 (1912)
5. Though not involving the question of “supremacy,” the Federal Impact Aid Program was the basis of a U.S. Supreme Court decision in 2007, wherein a local school district in New Mexico challenged the statistical calculation used by the U.S. Secretary of Education to determine the school funding equalization level of each state. The Secretary calculated state and local equalization funding among school districts by weighting the number of pupils in each school district. The local school district of Zuni, New Mexico, challenged the method, arguing that such weighting was not intended by the federal Impact Aid Act (108 Stat. 3749, as amended, 20 U.S.C. 7701 et seq.). The Supreme Court ruled for the U.S. Secretary indicating that although there was ambiguity in the literal interpretation of the statute, that a “gap” left by Congress could be validly filled in by the Secretary and her interpretation would be upheld by the Court. Zuni Public School District No. 89 v. Department of Education, U.S. 2007, 127 S. Ct. 1534 (2007).
OBLIGATION OF CONTRACTS The Obligation of Contracts Clause, Article I, Section 10, does double duty as both a structural provision and an individual rights provision in the Constitution. The clause states in part: “No state shall enter into any Treaty, Alliance or Confederation; . . . coin Money; . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, . . . ”
Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Supremacy Clause
Structurally, the clause is essential to federalism in that it prohibits states from acting as separate nations by making treaties or alliances with other countries, forming confederations, or coining money. These were, of course, the rules that the southern states broke when they seceded from the Union, causing the Civil War.74 However, the part important to public schools is the obligation of contracts provision. The state, or the public school as an agency of the state, cannot pass a law or regulation, or take an action that impairs a contractual obligation with an individual or a corporation. School districts have many contractual relations with teachers and other employees, vendors, and agencies and organizations, public and private. The most famous case to which this clause was ever applied was Dartmouth College v. Woodward in 1819, where Justice Marshall defined the meaning of “obligation of contract” as “the law which binds the parties to perform their agreement.”75 Later, the Supreme Court defined “impair,” saying “the obligations of a contract . . . are impaired by a law which renders them invalid, or releases or extinguishes them. . . .”76 In accordance with these constitutional restraints, the Supreme Court held that the state legislature’s 1933 repeal of a 1927 Indiana law granting tenure rights to teachers violated the obligation of contracts provision.77 The application of this provision is, however, contingent upon whether an actual contract was contemplated by the state. For example, where an annuity benefit for teachers was reduced, the Supreme Court held that the state had not intended to create a contract, but merely a benefit that could be modified.78 Thus, the Obligation of Contracts Clause may be important to the employment relationship between the teacher and the school districts and between various private entities and school districts. Further discussion of this issue will occur later in this text in Chapter 15, Certification, Contracts, and Tenure.
ELEVENTH AMENDMENT IMMUNITY One of the most important changes in constitutional law in decades is the series of recent U.S. Supreme Court precedents that c
