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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.
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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, . . . ”
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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 create a “new balance” of federalism. In reversing a trend of several decades that vested greater authority in
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the Congress to enact laws and to impose liability on state governments and their state entities for noncompliance with those laws, the Court has now begun to test federal laws from a new perspective that places greater importance on state sovereignty. The principal constitutional provision that is being elevated and reinterpreted by the Court is the Eleventh Amendment. The new balance directly affects several federal laws that impact state education policy. These results are having a marked effect on state education policy. As we have seen recently, the U.S. Supreme Court struck down Congress’s attempts to hold states liable under the Religious Freedom Restoration Act (RFRA),79 the Fair Labor Standards Act (FLSA),80 the Patent Remedy Act (PRA),81 the Age Discrimination in Employment Act (ADEA),82 and the Americans with Disabilities Act (ADA).83
ELEVENTH AMENDMENT The Eleventh Amendment provides that the federal judiciary shall have no jurisdiction over suits brought against one of the United States, i.e., a state—by citizens of another state, or by citizens or subjects of any foreign state. According to the Supreme Court, this language bars federal jurisdiction over any suit commenced against one of the United States even by citizens of that same state. —U.S. Constitution, Amendment XI
The question of whether the federal courts and Congress can impose liability for damages on state governments is integral to the balance of our system of government and, indeed, has great importance to the conduct of the state public school systems. In 1999, the U.S. Supreme Court said that “the States’ immunity from suit is a fundamental aspect of the sovereignty which States enjoyed before the ratification of the Constitution.”84 The Eleventh Amendment to the U.S. Constitution bars a private party from recovery of funds from a state treasury for a liability judgment against the state. It does not bar such judgments against public officials or local entities not considered to be state entities. To date, the prevailing view is that local school districts are not state entities for purposes of the
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Eleventh Amendment. The Eleventh Amendment provides that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or Subjects of any Foreign State.” The Eleventh Amendment is therefore an explicit limitation on the power of the judiciary to hold states liable, and is, thereby, a reinforcement of the sovereign power of the states.85 The idea that states as sovereign entities should be immune from liability was supported by both Madison and Hamilton. Madison said, “I do not conceive that any controversy can ever be decided, in these courts, between an American state and a foreign state, without consent of the parties.”86 Hamilton observed in the Federalist Papers, Number 81, that “[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its [the state’s] consent.” Such invasion on state legislative prerogative, it was thought, would hinder the operation of states and unduly restrain the exercise of their sovereignty. The Supreme Court has held that the amendment, by implication, also bars suits against the state by any and all citizens, including the state’s own citizenry. 87 The Supreme Court has thus stated the general rule of law as follows: “[A] suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.”88 Because of the delicate balance between central versus state powers, sovereign immunity was of utmost importance to the states in their decision to ratify the Constitution. This issue strikes at the core of the concept of a union of states. As noted earlier in the discussion of the Supremacy Clause, the U.S. Supreme Court, of late, has adopted the philosophy that holds that “a more perfect union” is devised of separate sovereign states that “clearly preceded the Union in point of time. . . .”89 This is the current view of the Supreme Court as expounded in Kimel (2000), Alden (1999), Florida Prepaid (1999), Seminole Tribe (1996), and Garrett (2001). 90 According to the Supreme Court, 91 the Eleventh Amendment confirms a presupposition that may be expressed in two parts: “first, that each State is a sovereign entity in our federal
system; ” 92 and “second, that ‘it is inherent in the nature of sovereignty not to be amenable to suit of an individual without its consent.’ ”93 Thus, the Eleventh Amendment is founded on the idea, indeed, “rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity.”94 Immunity of the state, as derived from the concept of sovereignty, antedates the U.S. Constitution, and the Eleventh Amendment is, therefore, merely a restatement, a renunciation, an assertion of positive law regarding the fact of sovereignty. The immunity of states is, however, not without limits. The Supreme Court, in Alden, pointed out that “the constitutional privilege of a state to assert its sovereign immunity . . . does not confer upon the State a concomitant right to disregard either the Constitution or valid federal law. The states and their agencies are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design.”95 Thus, even though state sovereignty predated the formation of the Nation, where conflicts arise and a state violates a substantive aspect of the Constitution, then state sovereign immunity may be overridden, and liability may be imposed on the state by the state itself, by Congress, or by the federal courts. There are basically two ways that state sovereign immunity can be abrogated. The first is “if a State waives its immunity and consents to suit in Federal court.”96 Concerning this waiver, the Supreme Court has held that “a State will be deemed to have waived its immunity only where stated by the most express language or by such overwhelming implication from the text as to leave no room for any other reasonable construction.”97 The second is for Congress to unilaterally abrogate state immunity by its own legislative act. For Congress to abrogate state sovereign immunity, two questions must be answered, and both must be answered in the affirmative. The first is whether Congress has “unequivocally express[ed] its intent to abrogate the immunity,”98 and the second is whether Congress has acted “pursuant to a valid exercise of power.”99 Where Congress abrogates, there must be unambiguous intent to abolish the immunity of the states, and such must be set forth in “a clear legislative statement.”100 A general authorization
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Rights Provisions in the Constitution
for a suit in federal court is insufficient to abrogate immunity.101 The Supreme Court in Seminole Tribe held that Congress cannot abrogate state sovereignty based on its constitutional powers under Article I alone, the constitutional provision from which Congress receives its delegated powers.102 In the final analysis, therefore, any federal statute that attempts to abrogate state sovereign immunity must find its justification in the substance and enforcement of the Fourteenth Amendment. Congress must “identify conduct transgressing the Fourteenth Amendment’s substance provisions in Section 1, and enforce the substance under Section 5. Congress must tailor its legislative scheme to remedying or preventing undesirable conduct.” 103 The U.S. Supreme Court held in Kimel v. Florida Board of Regents104 that Congress could not invoke Section 5 of the Fourteenth Amendment to impose liability on states in enforcing the Age Discrimination in Employment Act of 1967 (ADEA). In Kimel, Justice O’Connor, writing for the majority, concluded that “ADEA does not contain a clear statement of Congress’ intent to abrogate the States’ immunity” and that Congress had exceeded its authority in justifying its actions under Section 5 of the Fourteenth Amendment; the Act was, therefore, unconstitutional. In Garrett, Justice Rehnquist rejected the defendant’s assertion that Title I of the Americans for Disabilities Act was enacted as a result of such irrational state discrimination against persons with disabilities as to warrant the invoking of damages against a state. Thus, the Supreme Court has demonstrated that it will be very restrictive in its interpretations of congressional acts that attempt to pierce state sovereign immunity, even if Congress attaches its rationale to the Fourteenth Amendment.105 Consent by a state cannot be implied or be mere constructive acquiescence; rather, it must be an express denial of its own immunity. The fact that a state participates in a federal program does not implicitly waive the state’s immunity from suit.106 Too, it makes no difference whether the state had abrogated its common law sovereign immunity;107 the waiving of common law immunity does not affect Eleventh Amendment immunity. Finally, and importantly, the reader should be reminded that these Eleventh Amendment
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precedents apply only to “state” liability and not to “individual” liability. It should therefore be noted that Eleventh Amendment immunity protection does not extend to suits against public officials as individuals; 108 the fact that the state is immune from damages claimed by an aggrieved party does not necessarily mean that an individual will avoid liability. Also, the foregoing discussion does not address the potential liability of local school districts as governmental entities apart from state government. Liability of local school districts is discussed in Chapter 13. The predominant view of the courts is that local school districts may be held liable and are not provided immunity by the Eleventh Amendment.
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Rights Provisions in the Constitution
The rights provisions in the Constitution most pertinent to education are found in the Bill of Rights and the Fourteenth Amendment. Education is greatly influenced by the federal judiciary’s interpretations of these rights provisions as they affect students, parents, and teachers in relationship to the public school as a state agency. The judicial power found in Article III of the U.S. Constitution is the power of a federal court to “decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”109 As the federal courts have fulfilled this responsibility to adjudicate and to “carry into effect” their judgments, there has evolved an imposing body of federal law that circumscribes and restrains public school powers and prerogatives as agencies of state government. Whether the constitutional restraints emanate from controversies involving students, parents, teachers, or other persons dealing public schools, the judgments made by the federal courts usually find their legal rationale and justifications in the Bill of Rights and the Fourteenth Amendment. The first 10 amendments to the Constitution form the Bill of Rights. These amendments were submitted to the state legislatures on September 25, 1789, and the requisite number of states ratified them by December 15, 1791.110 Jefferson described a bill of rights as a “legal check” by the judiciary on the excesses of government. 111 Jefferson, while in Paris as
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ambassador to France, pointed out the need for a bill of rights. He said, “Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no government should refuse, or rest on inference.”112 Jefferson’s opinion reflected that of popular opinion of the people and the states who ultimately required the Bill of Rights before they would accept the new Constitution.113 Madison, who drafted the Bill of Rights and presented it to the U.S. House of Representatives on June 8, 1789, argued before the House that all power of government is subject to abuse and a specific statement declaring “the great rights of mankind” should be set forth as limitations on that power.114 The Bill of Rights, therefore, forms the basis of the liberties and freedoms that every individual has as an inherent or natural right against government. Because public schools are governmental agencies, they are subject in their operation to the limitations of individual liberties and freedoms as secured in the Bill of Rights.
ORIGINALLY LUKEWARM, MADISON BECAME CONVINCED OF THE NEED FOR A BILL OF RIGHTS It is my sincere opinion that the Constitution ought to be revised, and that the first Congress . . . ought to prepare and recommend to the States for ratification the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, and security against general warrants. — James Madison
Thus, under our system of government, state or federal laws that violate or deny individual rights or freedoms may be invalidated by the courts through application of the U.S. Constitution. Many of the restraints that educators refer to as “federal control” emanate from the application of federal constitutional provisions to state statutes, regulations, or actions by agents of the public school system. Virtually all the cases that have held state actions unconstitutional have been based on the First, Fourth, Fifth, and Eighth Amendments of the Bill of Rights (see Box 3.2).
Individual liberties that are given constitutional status in the First Amendment serve as the basis for frequent litigation and, many times, subsequent federal judicial control of educational activity. Personal freedoms found in the First Amendment pertain to religion, speech, association, press, and assembly. Each of these has been brought into play in federal courts as a restraint on objectionable activities by state school systems. These constitutional issues are fully discussed in subsequent chapters of this book, but it is important to note here that it is these legitimate constitutional concerns involving personal freedoms and rights that are primarily responsible for the “federal involvement in education.” Such activity by the federal courts in no way violates the sovereign power of the states to operate the public schools.
BILL OF RIGHTS AND ABSORPTION BY THE FOURTEENTH AMENDMENT The Fourteenth Amendment, in concert with the Bill of Rights, is critical to protecting individual rights and freedoms. Prior to the enactment of the Fourteenth Amendment in 1868, the prohibitions of the Bill of Rights applied only to Congress. The First Amendment states that “Congress shall make no law . . . ,” and the other Amendments making up the Bill of Rights, enacted in 1791, likewise protected the individual against rights denials by Congress, but there was no commensurate constitutional protection for individual rights against state governments. After the Civil War, however, the widespread discrimination against former slaves by states in the South was so pervasive that enactment of the Fourteenth Amendment became necessary. At the time, the Fourteenth Amendment was specifically directed to states. It says in part: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The “No state shall” provision, however, was not applied to any amendments contained in the Bill of Rights throughout the first half of the twentieth century. It was first applied to the exercise of religion by the U.S. Supreme Court in 1940 in Cantwell v. Connecticut115 when the Court used the amendment as a conduit to apply the Free Exercise Clause of the First Amendment to state actions. Later in 1947, the “No state shall” provision was again applied in Everson v. Board of Education to invalidate state
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Rights Provisions in the Constitution
BOX 3.2
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Rights Provisions in the U.S. Constitution Most Pertinent to Federalism and Education
The first nine amendments in the Bill of Rights and the Fourteenth Amendment are the principal sources of individual rights and liberties. Technically, the Tenth Amendment is not a rights provision; rather, it is a structural provision. First Amendment:
prohibits laws that infringe on the freedom of religion, speech, press, and assembly.
Fourth Amendment:
prohibits unreasonable searches and seizures.
Fifth Amendment:
prohibits deprivation of life, liberty, or property without due process of law.
Eighth Amendment:
prohibits cruel and unusual punishments.
Ninth Amendment:
assures that rights not enumerated are retained by the people.
Fourteenth Amendment:
prohibits laws that deprive a person of life, liberty, or property without due process of law and prohibits laws that would deny any person equal protection of the laws.
legislation under the Establishment Clause of the First Amendment. Therefore, the Fourteenth Amendment makes the prohibitions against government encroachments upon individual liberties and freedoms of the Bill of Rights applicable to the state. Moreover, the Fourteenth Amendment’s Due Process and Equal Protection Clauses directly apply to state legislation protecting the individual rights. This is further discussed later. Therefore, the contour of federalism as it affects public education is very much dependent on judicial interpretations of the various provisions in the Bill of Rights, and the implications thereof, as applied to the states through the Fourteenth Amendment. The first 10 amendments to the Constitution, the Bill of Rights, are the main repository of the liberties and freedoms guaranteed to all individuals. In Dennis v. United States, Justice Frankfurter captured the essence of the Bill of Rights when he wrote: The law is perfectly well settled . . . that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized . . . principles . . . of fundamental law.116
The Bill of Rights and the Fourteenth Amendment, as safeguards of individual rights, are the basis for the vast majority of the constitutional litigation in public school law. Students, parents, and teachers have invoked these amendments when asserting claims against states and school districts, forming the body of constitutional law that is so instrumental in defining the federal role in education. The Fourteenth Amendment has had a pervasive and lasting effect on public school policy. This amendment is particularly important because it not only serves directly to provide equal protection against discrimination, but it also assures procedural and substantive due process. In addition, the Fourteenth Amendment provides the conduit through which the First Amendment and other parts of the Bill of Rights are applied to the states. The Bill of Rights originally served only as a restraint on Congress,117 but later the Supreme Court expanded the reach of the various clauses to apply to the states through the Fourteenth Amendment. The Supreme Court first connected the Fourteenth Amendment to the First Amendment in 1925,118 in striking down state encroachments on the freedoms of speech and press. Corwin, in his seminal work on U.S. constitutional law, refers to this vital linkage as the “absorption” of the First Amendment into the Fourteenth Amendment.119 In addition
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to the Cantwell decision regarding freedom of religion,120 subsequent Supreme Court decisions continued the “absorption” of other clauses of the First Amendment, including freedom of the press121 and the right to assemble peaceably.122
schools as the federal courts have defined the intent of these clauses. These matters are treated extensively in the student and teacher rights discussions in later chapters of this book.
FOURTH AMENDMENT FIRST AMENDMENT This amendment is the foremost source of liberties and freedoms found in the Constitution. Levy has said that “[a]lthough the framers of the Bill of Rights did not rank the rights in order of importance, some are more precious than others.”123 Those rights listed in the First Amendment were understood to be the most deserving of protection. The First Amendment states: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first clause prohibiting laws respecting an establishment of religion is, according to Levy, “a right that has no superior. . . .”124 This vital clause was followed by the free exercise of religion clause that guaranteed the freedom of conscience and belief, neither of which can be protected if the government is entwined with religion. Chapter 5 of this book deals extensively with prayer and Bible reading in public schools and the use of government funds to support religious schools. The framers of the Constitution knew well that freedom of expression is an absolute necessity of a democratic form of government. Expression is protected by the two clauses of the First Amendment that prohibit abridging the freedoms of speech and the press. Government cannot censor or restrain expression, and though the right is not unlimited, the Supreme Court precedents jealously guard it. In West Virginia State Board of Education v. Barnette, the 1943 school flag salute case, Justice Jackson summarized the essence of the freedom of expression when he said that it is “a commonplace that censorship or suppression of expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish.”125 Therefore, the First Amendment’s protection of speech and press has played a very large part in the operation of public
This amendment protects individual privacy and prohibits the government from conducting “unreasonable” searches and seizures. It applies to government action only, and not to intrusions by individuals or private entities in which government plays no part. Thus, students and teachers in private schools are not protected. The Fourth Amendment states in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. . . .” The key words unreasonable and probable cause ultimately define the protection of the individual. The Supreme Court, in viewing situations involving searches in the special circumstances of the public school, has established the standard of “reasonable suspicion” that permits a search: if, at the inception of the search, it is reasonable to assume something is hidden in the possession of a student that may be harmful to other students or to the good conduct of the school.126 As society has become more concerned about illegal drugs, guns, and bombs, the U.S. Supreme Court has tended to expand the definition of reasonableness. In the key cases of Vernonia School District 47J v. Acton127 (1995) and Board of Education of Independent School District No. 92 of Pottawatomie v. Earls128 (2002), the Supreme Court even permitted “suspicionless” searches of students. The effect of these decisions is to reduce the margin of student privacy while increasing school administrator flexibility in the conduct of searches. These cases and others are presented in greater detail in this book in Chapters 8, 9 and 10 on student rights and Chapter 16 on teacher freedoms.
FIFTH AMENDMENT The protections against unfair criminal trials and double jeopardy are encompassed in this important amendment. One of the parts of this amendment most pertinent to public schools today is the Due Process Clause. The Fifth Amendment states in part, “No person shall be . . . compelled in any
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Rights Provisions in the Constitution
criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” This amendment may touch the conduct of public schools in various ways. First, the question has arisen as to whether the “incrimination of one’s self,” “self-incrimination,” or “taking the Fifth” provision applies to hearings in the public schools. The answer is that generally it does not. With regard to teachers, the Supreme Court held in Beilan v. Board of Education129 that a teacher could be dismissed for failure to answer questions by the superintendent that were relevant to the interests of the school, even though the questions may pertain to possible criminal activity on the part of the teacher. Similarly, students cannot take the Fifth and refuse to answer questions germane to their conduct at school. Both of these issues are addressed in later chapters. The second aspect of the Fifth Amendment that has affected public schools has to do with racial segregation. In one of the companion cases to the 1954 watershed litigation known principally as Brown v. Board of Education,130 the plaintiffs challenged the segregation of Washington, D.C., schools that were under the control of Congress.131 Because the Washington, D.C., schools were not subject to state control, the “Equal Protection Clause” of the Fourteenth Amendment did not apply to federally conducted functions. Being unable to rely on the Equal Protection Clause of the Fourteenth Amendment that states “no state shall,” the Supreme Court invoked the Due Process Clause of the Fifth Amendment, and attributed to it the same intent and meaning for the D.C. schools as did the Equal Protection Clause for state school systems. Third, the provision of the Fifth Amendment that prohibits the taking of property for public use “without due process of law” is a direct restraint on school districts when they seek to acquire additional real property for new school buildings. The Fifth Amendment permits the school districts to take or purchase property from private entities but only after providing “just compensation.” Thus, the role and the reach of the federal government’s involvement in the public schools may at times have much to do with this amendment. These Fifth Amendment constraints on the operation
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of public schools are presented in more detail in subsequent chapters.
EIGHTH AMENDMENT Herein is the “cruel and unusual punishment” prohibition that prevents government from inflicting penalties of torture upon convicted persons. The amendment reads simply that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Even though this amendment was designed to protect individuals under criminal prosecution, there have been attempts to attach it to the punishment of children in public schools. Notably, the Supreme Court addressed the issue of cruel and unusual punishment of school children in Ingraham v. Wright,132 wherein the Court held that even in the face of excessively severe corporal punishment, the Eighth Amendment does not apply to public schools. This decision has been criticized and distinguished by a few lower courts, as is pointed out in a later chapter of this book.
NINTH AMENDMENT The framers of the Constitution were very much concerned that the central government would gradually assume more power and erode the liberties and freedoms of the people. Moreover, they knew that they could not spell out and specify in the Bill of Rights all of the liberties and freedoms to which the people were entitled. Patrick Henry, a strong Anti-Federalist, observed that there existed the danger by “fair implication” that the central government could do anything or encroach on any rights that were not expressly forbidden to it by the Constitution.133 The Ninth Amendment was thus added in recognition that individual liberties and freedoms were not limited to those specifically enumerated in the other clauses of the Bill of Rights. The Ninth Amendment, as a catchall of freedoms, states, “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” As the framers anticipated, the freedoms enumerated in the Bill of Rights were not sufficient to foretell all the contingencies or intrusions on liberties in the future. And the framers were quite right in their fear that political reality could possibly result in the judiciary on occasion
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falling short in its responsibility to recognize and protect those rights that are not specifically enumerated. In fact, it was not until as late as 1965 that the Ninth Amendment was brought forth and dusted off by the Supreme Court to find the “unstated” right of privacy. The case had to do with the protection of the right of married couples to use contraceptives. 134 As noted previously in this chapter, Justice Douglas derived the “right of privacy older than the Bill of Rights” from the Ninth Amendment and from implications of the First, Third, Fourth, and Fifth Amendments. The Ninth Amendment, therefore, helps to define the delicate balance between government power and individual rights.
FOURTEENTH AMENDMENT The Fourteenth Amendment, enacted in 1868 to prevent racial discrimination after the Civil War, has undoubtedly had more impact on public schools in particular and American society in general than any other rights provision in the Constitution. Beyond the use of the Fourteenth Amendment to absorb and apply the Bill of Rights to the states, discussed earlier, the principal parts of the amendment important to the public schools are the “due process” and “equal protection” clauses. Life, liberty, and property are fundamental rights that can “only be taken away by due process of law.”135 The rights of both students and teachers have been materially affected by the Due Process Clause, and state and school district policies have been greatly influenced by its implementation by the courts. As explained in detail later in this book, the Due Process Clause has both a substantive aspect that expands on the intent and meaning of liberty and property and a procedural aspect that compels the schools to provide fair hearings for students and teachers. The substance of liberty and property, for example, has been interpreted by the Supreme Court in Goss v. Lopez136 to ensure that a student not be excluded from school without proper constitutional procedures. Too, the substance of liberty in due process notably affects teachers’ rights to obtain knowledge and to instruct children. In Meyer v. Nebraska, the Supreme Court extended the meaning of liberty to include the “right . . . to teach and the right
of parents to engage” a teacher “to instruct their children.”137 The Due Process Clause encompasses the employment of teachers. The Supreme Court said in Board of Regents of State Colleges v. Roth138 that “ ‘Liberty’ and ‘property’ are broad and majestic terms;”139 liberty for teachers includes the right to contract, engage in any occupation, and to acquire useful knowledge, and generally to enjoy the privileges essential to the pursuit of happiness.140 For teachers, the term property implicitly includes the interest that one has in employability and livelihood.141 The effects of the substance of liberty and property as “majestic terms,” as protections for students and teachers, are more fully discussed in Chapters 8, 16, and 17. Importantly, in addition, due process of law guarantees fairness in hearing the students’ side of the story in suspension or dismissal proceedings,142 and it similarly ensures that teachers and other employees will be treated fairly by the school district if termination is necessary.143 Here, due process requires that the government and the school district, as an arm of the state, follow given procedures involving notice and a hearing whenever a liberty or property right is to be affected. The second historically important clause in the Fourteenth Amendment, that has guarded equality throughout society, is equal protection. This clause is an “inhibition against denial of equal protection of the laws with exclusive reference to State action.”144 It means that no agency of the state, public schools, “the legislative, the executive or judiciary, no instrumentality of the state and no person, officer or agent exerting the power of the state shall deny equal protection to any person within the jurisdiction of the state. . . .”145 This clause forbids invidious discrimination against persons or classes of people. The Due Process and Equal Protection Clauses “overlap but the spheres of protection are not coterminous.”146 They differ in that the Due Process Clause endeavors to secure equality of law in the “sense that it makes a required minimum of protection for everyone’s right of life, liberty and property against state action. Although, on the other hand, equal protection is aimed at erasing undue favor in individual or class privilege,” and stands importantly as a bulwark against “inequality and hostile discrimination.”147 Equal protection permeates issues in public education and therefore plays an essential part
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Fundamental Rights and Education
in the way the federal judiciary has influenced state legislation governing the public schools and the policies of public schools. The effects of these clauses are fully discussed throughout later chapters of this book.
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Fundamental Rights and Education
As noted at the outset of this chapter, the U.S. Supreme Court held in San Antonio Independent School District v. Rodriguez in 1973 that education is not a fundamental right under the U.S. Constitution.148 Education in the United States has, of course, been shaped materially by many Supreme Court decisions that emanate from individual rights recognized in the Constitution. However, not one of these decisions was based on the legal rationale of education as a fundamental right. “Fundamental rights are beyond the reach of majority will.” 149 These “rights” decisions have constitutional basis in protected fundamental rights such as religion, speech, assembly, privacy, race, and so on. Fundamental human rights are claims on society, and the Supreme Court has decided not to extend such a claim to education. If education were elevated to the level of a fundamental human right, there would be accompanying obligations for the federal government and society to satisfy, which at present, neither the Supreme Court nor Congress are willing to acknowledge for all children. Two types of fundamental rights exist. The first is that of liberty, or freedom, as a civil or political right. Liberty rights are the rights of personal freedom beyond government control: autonomy, freedom of self-control, to hold and keep private property, and to be free of government oppression. The second type is that of dignity, the right to an opportunity to acquire human dignity.
UNIVERSAL PRINCIPLE OF RIGHT Any action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law. —Immanuel Kant
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LIBERTY RIGHTS It is the right of liberty that dominated the thinking of the founding fathers of the United States who had English royal tyranny much on their minds. 150 They viewed life, liberty, and property as inalienable natural rights upon which government could not encroach. Liberty was the cardinal right.151 In this regard, the idea of natural rights could be conceived as “negative rights”; that government “shall not” deny a liberty or a particular freedom was the principal basis of the Bill of Rights. It is this aspect of fundamental rights that the U.S. Supreme Court has enforced through numerous decisions having to do with education, most of which find textual basis in the First Amendment’s religion, speech, and assembly provisions; the Fourth Amendment’s search and seizure restraints; the Fifth Amendment’s mandate that no person shall be deprived of life, liberty, or property without due process of law; and the Fourteenth Amendment’s Equal Protection and Due Process Clauses, that have been most instrumental in the protection of fundamental rights—all of which have had an impact on education policy.152 Each of these rights, as it affects students, teachers, and parents, is discussed in detail in subsequent chapters of this book.
DIGNITY RIGHTS The second aspect of a fundamental right, the right of dignity, the right to be respected by others, is usually thought to include personal security, work, and a means of earning a reasonable wage—an adequate standard of living, including shelter, food, clothing, health care, and, of course, education. It is argued that dignity, worth, and respect in being human cannot be fulfilled without these essentials that all humans owe to each other, for which governments are created to provide. This category of rights is not mentioned in the Constitution, and therefore must be implied by the Supreme Court in the “penumbras” of the Constitution if it is to exist at all. The idea that the state must help provide for the essentials of human existence was not fully developed until the twentieth century, at which time it was realized that, as a matter of morals and ethics, human worth and dignity are implicit in the social contract, requiring more of the state than to merely leave people alone.
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For example, a basic moral imperative is that an individual’s opportunity to succeed in life must not be denied simply because the state will not provide sufficient resources to permit each person to have the necessities of life. The social contract between the individual and the state requires positive state action to provide programs and services to improve the human condition. Jeremy Waldron clearly explained the economic and social aspects of this fundamental right when he wrote: It is no longer widely assumed that human rights must be pinned down to the protection of individual freedom. Humans have other needs as well, related to their health, survival, culture, education, and ability to work. We all know from our own case how important these needs are. . . . It is now widely (though not universally) accepted that material needs generate moral imperatives which are as compelling as those related to democracy and civil liberty. If we want a catalogue of what people owe each other as a matter of moral priority, we should look not only to liberty but also to the elementary conditions of material well being. . . . Everyone has a right to a standard of living adequate for health and well-being of himself and his family [emphasis added].153
Perhaps the best and most famous statement of the moral obligation of government to provide for such rights was given by President Franklin Roosevelt in his 1944 inaugural address, where he proposed an Economic Bill of Rights to which all persons were entitled, “regardless of station, race and creed.”154 The rights advanced by President Roosevelt were the dignity rights to a remunerative job; adequate food, clothing, and recreation; a decent return on products for the farmer; a business free from unfair competition; a decent home; adequate medical care; adequate protection from economic fears in old age; and a good education.155 To President Roosevelt, all of these rights were entitlements, moral obligations of government to take positive action to provide for human happiness and well-being. Later, the United Nation’s Universal Declaration of Human Rights included these rights within Article 26, providing that “[e]veryone has the right to education.” The European Convention on Human Rights also now provides that “no person shall be denied the right to education.”156 Governments that deny dignity rights usually maintain that to remedy denials of such rights
is far too cumbersome, too administratively difficult, too costly, or upsets tradition or precedent. Such were the arguments of those states that had segregated public schools throughout the twentieth century and refused to adequately fund schools for black children.157 To provide for the redress of deprivation of a fundamental right may, therefore, have a price tag that the government is unwilling to bear. This is particularly true in the case of dignity rights related to economic well-being because large governmental programs such as mass public education are major budget items. In this regard, Dworkin further writes: So if rights make sense at all, then the invasion of a relatively important right must be a very serious matter. It means treating a man as less than a man, or as less worthy of concern than other men. The institution of rights rests on the conviction that this is a grave injustice, and that it is worth paying the incremental cost in social policy or efficiency that is necessary to prevent it.158
The U.S. Supreme Court has not exhibited a conviction that the denial of educational opportunity is a grave injustice that the government has a moral obligation to rectify. Effectively, the Court in Rodriguez decided that education was not sufficiently essential to human dignity to merit the legal appellation of a fundamental right. The obligation of the federal government for education is, therefore, limited by the reluctance of the Supreme Court to venture beyond the traditional “liberty and freedom” aspect of rights. For the Supreme Court to recognize only those “negative rights” or “thou shalt nots” pertaining to liberty, to be free from governmental interference, requires much less of an outlay of governmental resources than is required for social rights, necessitating affirmative governmental actions in creating and adequately funding programs such as education. It was precisely at this point of accommodating the right of education and considering state costs, local property taxes, and local control of schools, that the U.S. Supreme Court in Rodriguez backed away from recognizing education as a fundamental right. The Court said that the assertion by plaintiffs in Rodriguez 159 that education was a fundamental right was “nothing less than a direct attack on the way
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Fundamental Rights and Education
Texas has chosen to raise and disburse state and local tax revenues.”160 The Court further pointed out that to designate education as a fundamental right would create “intractable economic, social, and even philosophical problems.”161 In other words, the Court would not recognize education as a fundamental right primarily because, in Dworkin’s words, it was not “worth paying the incremental cost.”162 The influence of the Rodriguez decision on the federal policy should not be underestimated in its effect on the structure of education in the federal system. The consequences of the Supreme Court recognizing that education is a constitutionally fundamental right would undoubtedly have an impact, not only on the way states conduct and finance their school systems, but on federal education programs as well. If the Supreme Court found that education was a constitutionally fundamental right, then it would be doubtful that the federal government could ignore the actual costs of the education of children who are at risk or have a disability, or other education costs when Congress appropriates funds to the states. Various federal distribution formulas that are at the heart of federal grants to states would be subject to close scrutiny as to their possible effects on schoolchildren in states and school districts. Moreover, and possibly more importantly, if education were to be classified as a fundamental right, the balance of federalism between the federal and state governments could be affected in shifting the expenditure obligations and tax burdens in different patterns among the levels of government. Thus, the Supreme Court’s decision in Rodriguez is of paramount importance to the federal government’s role in education. When Demetrius Rodriguez and six other parents launched their complaint on behalf of their children who attended an inferior school, they probably did not realize that they were raising a profound human rights issue that is today a foremost moral and ethical consideration of modern states and nations worldwide. A portion of the Supreme Court’s decision in San Antonio Independent School District v. Rodriguez follows. Justice Powell wrote the opinion for the 5–4 majority. Significantly, Arthur Gochman, attorney for the plaintiffs, argued that education lies at the heart of the exercise of all
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other liberties and freedoms, and that the other rights cannot be fully realized without knowledge and education. Gochman succinctly stated that education “is related to every important right we have as citizens.”163 In so saying, he tied education to rights and liberty as John Adams had done in 1765, when he observed that education evokes and sustains liberty, that Americans founded their liberties on “knowledge diffused generally through the whole body of the people.”164
Education Is Not a Fundamental Right Under the U.S. Constitution
San Antonio Independent School District v. Rodriguez Supreme Court of the United States, 1973. 411 U.S. 1, 93 S. Ct. 1278, rehearing denied, 411 U.S. 959, 93 S. Ct. 1919 (1973).
Mr. Justice POWELL delivered the opinion of the Court. This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas. They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. . . . For the reasons stated in this opinion, we reverse the decision of the District Court. . . . Texas virtually concedes that its historically rooted dual system of financing education could not withstand the strict judicial scrutiny that this Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights or that involve suspect classifications. . . . The State candidly admits that “[n]o one familiar with the Texas system would contend that it has yet achieved perfection.”
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Apart from its concession that educational financing in Texas has “defects” and “imperfections,” the State defends the system’s rationality with vigor and disputes the District Court’s finding that it lacks a “reasonable basis.” This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. . . . The Texas system of school financing might be regarded as discriminating (1) against “poor” persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally “indigent,” or (2) against those who are relatively poorer than others, or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts. Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect. . . . Only appellees’ first possible basis for describing the class disadvantaged by the Texas schoolfinancing system—discrimination against a class of definably “poor” persons—might arguably meet the criteria established in . . . prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the “poor,” appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. . . . Second, neither appellees nor the District Court addressed the fact that, unlike each of the
foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. . . . For these two reasons—the absence of any evidence that the financing system discriminates against any definable category of “poor” people or that it results in the absolute deprivation of education—the disadvantaged class is not susceptible of identification in traditional terms. . . . This brings us, then, to the third way in which the classification scheme might be defined— district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. . . . However described, it is clear that appellees’ suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts. The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention. They also assert that the State’s system impermissibly interferes with the exercise of a “fundamental” right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. . . . It is this question—whether education is a fundamental right, in the sense
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Fundamental Rights and Education
that it is among the rights and liberties protected by the Constitution—which has so consumed the attention of courts and commentators in recent years. . . . Nothing this Court holds today in any way detracts from our historical dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that “the grave significance of education both to the individual and to our society” cannot be doubted. But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. . . . 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. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. . . . Education, 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. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation. It is appellees’ contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. . . . . . . We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual’s rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these
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may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted. These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial intrusion into otherwise legitimate state activities. Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short. Whatever merit appellees’ argument might have if a State’s financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where—as is true in the present case—no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process. . . . It should be clear, for the reasons stated above and in accord with the prior decisions of this Court, that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights. We need not rest our decision, however, solely on the inappropriateness of the strictscrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State’s system be shown to bear some rational relationship to legitimate state purposes. This case represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing less than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues. We are asked to condemn the State’s judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests. In so doing,
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appellees would have the Court intrude in an area in which it has traditionally deferred to state legislatures. . . . In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of “intractable economic, social, and even philosophical problems.” . . . The very complexity of the problems of financing and managing a statewide public school system suggests that “there will be more than one constitutionally permissible method of solving them,” and that, within the limits of rationality, “the legislature’s efforts to tackle the problems” should be entitled to respect. . . . In sum, to the extent that the Texas system of school financing results in unequal expenditures between children who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. . . . In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. . . . We hold that the Texas plan abundantly satisfies this standard. . . . The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. . . . Reversed.
CASE NOTES 1. The U.S. Supreme Court has recognized these implied, nontextual rights as emanating from the Bill of Rights and other constitutional provisions, principally the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment. Justice Douglas referred to these rights in Griswold v. Connecticut as within the “penumbras” of the Bill of Rights. Douglas wrote, “. . . the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Justice
Douglas expanded by implication of the Bill of Rights by relying on a natural law rationale to protect individual privacy. He asserted, “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.” In Griswold, it was marriage and privacy that were denominated as fundamental rights even though neither was specifically mentioned in the Bill of Rights. Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965). 2. Implied rights include: the right to marry (implied from the “liberty” reference in the Due Process Clause of the Fourteenth Amendment), Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967); Zablocki v. Redhail, 434 U.S. 378, 98 S. Ct. 673 (1978); the right of parents to custody of their children (implied from the Due Process Clause) Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208 (1972); Michael H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 2333 (1989); the right to keep the family together (Due Process Clause) Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932 (1977); the right of parents to control the education and upbringing of their children (Due Process Clause) Meyer v. Nebraska, 262 U.S. 390, 3 St. Ct. 625 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571(1925); Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000); the right to procreate (Equal Protection Clause of Fourteenth Amendment) Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110 (1942); the right to purchase and use contraceptives (zone of privacy as implied by the First Amendment, Due Process Clause, and several other constitutional guarantees), Griswold v. Connecticut, op. cit.; Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (1972); the right to abortion (privacy as implied by the “liberty” reference in the Due Process Clause of the Fourteenth Amendment) Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973); Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992); the right to refuse medical treatment (“liberty” reference of the Due Process Clause) Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990); the right to travel and to migrate interstate, not including international travel (Privileges and Immunities Clause of Article IV, Section 2) Saenz v. Roe, 526 U.S. 489, 119 S. Ct. 1518 (1999); and the right to vote (explicitly provided for in the Fifteenth,
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Education as a Unique Governmental Function
Nineteenth, Twenty-Fourth, and TwentySixth Amendments as well as implicitly provided for in the Fourteenth Amendment). As early as 1886, in Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064 (1886), the Supreme Court said that the “right to vote is a ‘fundamental political right’ because it is the ‘preservative of all rights.’ ” See Erwin Chemerinsky, Constitutional Law (New York, New York: Aspen Law & Business, 2001), pp. 816–817; Kramer v. Union Free School District, 395 U.S. 621, 89 S. Ct. 1886 (1969).
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Education as a Unique Governmental Function
After Rodriguez, the Supreme Court repeated its denial of education as a fundamental right in Plyler v. Doe,165 Papason v. Allain,166 and Kadrmas v. Dickinson Public Schools. 167 In each case, the Supreme Court went to considerable lengths to extol the virtues of education and to assert that it is a special, yet not a fundamental, right. In Plyler, the Supreme Court ruled that even though education is not a fundamental right, to completely deny it to children of undocumented immigrants is irrational and violates the Equal Protection Clause. Writing for the Court, Justice Brennan spoke of education as being a unique function of government: Public education is not a “right” granted to individuals by the Constitution. But neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child mark the distinction. . . .168
Although the Court has not declared education to be a fundamental right, it does appear that the Court views education as critical to every individual in the exercise of other essential freedoms guaranteed by the Constitution. In Plyler, the Texas state law resulted in a complete denial of public education to children of undocumented immigrants, and the Court struck down the law even though the Court would not declare that education is a fundamental right. In Papason,169 the Court, although reinforcing that education is not a fundamental right, nevertheless set constitutional guidelines that invalidated a Mississippi state law that distributed
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state money unequally among school districts. As in Plyler, the Court drew a very fine line to distinguish Rodriguez by maintaining that Rodriguez involved issues of local property wealth and local control, whereas in Papason, the state directly discriminated by giving more state funds to some districts than to others. Thus, the Court found such a malapportionment of funds to be irrational, and in so holding, effectively skirted the fundamentality issue. Later, in Kadrmas,170 a poor family challenged a state law authorizing local school districts to charge a fee to ride school buses. The Court, in upholding the fee and ruling against the family, reaffirmed that education is not a fundamental right and followed earlier precedents in holding that poverty is not a protected or suspect classification. Thus, in these cases, the Supreme Court has consistently adhered to its Rodriguez precedent—education is not a fundamental right. Even though the Court has consistently lauded the benefits of education and has pointed out its essential necessity, fundamentality remains beyond the constitutional grasp of education. In its rulings, the Court has remained constant in its “general unwillingness to hold that there are constitutional rights to affirmative services provided by government.”171 Throughout, the Court has remained expansive in its view of liberty rights such as speech and press, but restrictive and wary of extending dignity rights, of which education is obviously a foremost contender. Yet the Court holds education in particularly high esteem as a necessity for all individuals and recognizes the importance of government provision of public schools. As Justice Brennan observed in Plyler, public education is “not merely some governmental ‘benefit,’ ” but a distinguishable and unique imperative to the individual and the state. Following the trend of the Court’s reasoning from Rodriguez to Plyler to Papason and then to Kadrmas suggests that the Court, although defending its determination that education is not a fundamental right, effectively regards it in a special category of governmental functions. The Supreme Court, therefore, happens not to have closed the door completely on a heightened scrutiny standard if a proper set of facts involving denial of education should emerge. In Rodriguez, the Court did not foreclose this possibility, saying, “that some identifiable quantum
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of education is a constitutionally protected prerequisite to the meaningful exercise of either [the right to speak or the right to vote].”172 In theory, then, should the education provided by a state fall short of some “hypothetical constitutional prerequisite,” the Court could possibly invoke the heightened level of scrutiny associated with a fundamental right. In this light, the Court has not been called upon to address the direct question of whether a state could deny a child access to a minimally adequate education.173 The Court has explicitly left undecided the question of a constitutional inadequacy of education and at what level a detriment is sufficient to violate a constitutional right. “The question remains open today.”174
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Summation of Case Law
Spending Clause 1. Federal legislation enacted pursuant to spending power of the General Welfare Clause is much in nature of a contract. In return for federal funds, states agree to comply with federally imposed conditions. The legitimacy of Congress’s power to legislate under its spending power rests on whether a state voluntarily and knowingly accepts terms of “contract.” U.S.C.A. Const. Art. 1, § 8, cl. 1. 2. If Congress intends to impose a condition on a grant of federal monies pursuant to spending power, it must do so unambiguously, especially where a state’s potential obligations are largely indeterminate. 3. The constitutional spending power of Congress is not unlimited, but is instead subject to several general restrictions, including the requirement that the exercise of spending power be in pursuit of general welfare. 4. In considering whether a particular expenditure is intended to serve general public purposes so as to be within Congress’s spending power, the courts will defer substantially to the judgment of Congress. 5. If Congress desires to use the spending power to condition states’ receipt of federal funds, it must do so clearly, distinctly, and unequivocally, enabling states to exercise their choice knowingly, cognizant of the consequences of participation.
Supremacy Clause 1. State laws that directly contravene federal laws are unconstitutional as violative of the Supremacy Clause of the U.S. Constitution. Equal Protection 1. If a state statute does not deny a fundamental right, it will ordinarily survive an equal protection attack so long as the challenged classification is rationally related to a legitimate governmental purpose. 2. The test of strict judicial scrutiny of a state’s laws is reserved for cases involving laws which operate to the disadvantage of suspect classes or interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution. 3. Although education is one of the most important services performed by the state, it is not among rights afforded explicit or implicit protection under the Federal Constitution. 4. Questions of federalism are always inherent in the process of determining whether a state’s laws are to be accorded traditional presumption of constitutionality or are to be subjected instead to rigorous judicial scrutiny. 5. Maintenance of principles of federalism is a foremost consideration in interpreting any pertinent provisions when the U.S. Supreme Court seeks to determine whether there is state action. 6. The constitutional standard under the Equal Protection Clause of the Fourteenth Amendment is whether the challenged state action rationally furthers a legitimate state purpose or interest.
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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. 91 C.J.S. United States § 158. Fiscal Management: Appropriations. 16 Am.Jur.2d Constitutional Law § 237. Separation of Governmental Powers. 16 Am.Jur.2d Constitutional Law § 138.
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Endnotes
5 McQuillen Mun.Corp.§ 19:111 (3 rel. ed.). Consti tutionality of Ordinances: Interference with Foreign or Interstate Commerce. 41 A.L.R. Fed. 2d. 1. Construction and Application of Dormont Commerce Clause, U.S. Const. Art. I, § 8, cl. 3, Supreme Court Cases. Am. Jur. 2d. American Jurisprudence 2d. 68 Am.Jur.2d Schools § 52. Power as Limited by Equal Protection. NATIONAL ACCESS NETWORK at Teachers College, Columbia University; www.schoolfunding. info. Law Review Wendy Parker, “Limiting the Equal Protection Clause Roberts Style,” University of Miami Law Review, January 2009, 63:2.
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Endnotes
1. Forrest McDonald, Novus Ordo Seclorum (Lawrence: University Press of Kansas, 1985), p. 53. 2. Immanuel Kant, The Metaphysics of Morals (1797), trans. Mary Gregor (Cambridge, England: Cambridge University Press, 1991), pp. 190–192. 3. Montesquieu, The Spirit of Laws (1748), trans. and ed. David Wallace Carrithers (Berkeley, Calif.: University of California Press, 1977), p. 130. 4. Ibid., pp. 190–191. 5. Ibid., p. 191. 6. Roe L. Johns, Edgar L. Morphet, and Kern Alexander, The Economics and Financing of Education, 4th ed. (Upper Saddle River, N.J.: Prentice Hall, 1983), p. 332. 7. U.S.C.A., Title 20, Education, §§ 81–1686. 8. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, rehearing denied, 411 U.S. 959, 93 S. Ct. 1919 (1973). 9. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982). 10. Papason v. Allain, 478 U.S. 265, 106 S. Ct. 2932 (1986). 11. Article 2 of Protocol No. 1, European Convention Human Rights, See Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium, 6 Eur. Ct. H.R. (ser. A), 1 E.H.R.R. 252 (1968). Universal Declaration of Human Rights, (4) International Covenant on Economic, Social and Cultural Rights, Article 26, and International Covenant on Civil and Political Rights, Article 18 (4). 12. United States v. Sprague, 282 U.S. 716, 51 S. Ct. 220 (1931). 13. Annals of Congress, 1897 (1791). See Edward S. Corwin, ed., The Constitution of the United States of America (Washington, D.C.: U.S. Government Printing Office, 1964), pp. 1035–1036. 14. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996). 15. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1997), pp. 324–325. 16. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142 (1985); See also Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347 (1974).
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17. Nevada v. Hall, 440 U.S. 418, 99 S. Ct. 1182 (1979). 18. Rakove, op. cit., pp. 324–325. 19. John Locke used the term federative power in describing aspects of a government concerned with relations among several states. See Rakove, Original Meanings, p. 167. 20. Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240 (1999). See Martin v. Hunter’s Lessee, 1 Wheat 304 (1816); City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157 (1997); United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). 21. Article I, § 8, cl. 1. 22. United States v. Butler, 297 U.S. 1, 56 S. Ct. 312 (1936). 23. Ibid. 24. Helvering v. Davis, 301 U.S. 619, 57 S. Ct. 904 (1937). 25. Ibid. 26. 3 Writings of Thomas Jefferson (Library Edition, 1904), pp. 147–149. 27. Edward S. Corwin, The Constitution, rev. Harold W. Chose and Craig R. Ducet (Princeton, N.J.: Princeton University Press, 1978), pp. 139–144. 28. Henry Hart, “The Relations Between State and Federal Law,” Columbia Law Review, Vol. 54 (1954), p. 489. 29. Wheeler v. Barrera, 417 U.S. 402, 94 S. Ct. 2274 (1974), modified, 422 U.S. 1004, 95 S. Ct. 2625 (1975). 30. Title I—Improving the Academic Achievement of the Disadvantaged, Section 101. Improving the Academic Achievement of the Disadvantaged. Title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.) amended. Section 1001. 31. Ibid. 32. South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793 (1987). 33. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531 (1981). 34. Board of Ed. of Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 102 S. Ct. 3034 (1982). 35. Pennhurst, op cit. 36. Arlington Central School District v. Murphy, 548 U.S. 291, 126 S. Ct. 2455 (2006). 37. Ibid. 38. Ibid. Too, in Murphy, Justice Ginsburg pointed out that justification for federal expenditure of funds and imposing requirements on state response is to be found not only in the General Welfare Clause, but also under Section 5 of the Fourteenth Amendment. 39. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 126 S. Ct. 1297 (2006). 40. School District of the City of Pontiac v. Secretary of the United States Department of Education, 584 F.3d 253 (6th Cir. Oct 16, 2009); Citing Plaintiffs Complaint for Declaratory and Injunction Relief 12: Joint Appendix (“J.A.”) 21, (quoting Paige’s statement of December 2, 2003). 41. Complaint 12; JA 21 (quoting Rodney Paige, Sec’y, U.S. Dept of Educ.), Remarks to National Urban League (March 25, 2004). 42. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531 (1981). 43. School District of Pontiac v. Spellings, 2005 WL 3149545 (E.D. Mich., Nov 23, 2005). 44. Pontiac School District v. Secretary of U.S. Department of Education, 512 F. 3d 252 (6th Cir. 2008). 45. School District of the City of Pontiac v. Duncan, ___ U.S. ___, 130 S. Ct. 3385 (2010).
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46. Board of Education of Ottawa Township High School District 140 v. Spellings, 517 F. 3d 922 (7th Cir. 2008). 47. See: Alliance for Children, Inc. v. City of Detroit Public Schools, 475 F. Supp. 2d 655 (E.D. Mich. 2007). 48. Constantine v. Rectors and Visitors of George Mason University, 411 F. 3d 474 (4th Cir. 2005). 49. Ibid. 50. Article I, § 8, cl. 3. 51. Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824). 52. Edward Goodell, The Nobel Philosopher, Condorcet and The Enlightenment (Buffalo, NY: Prometheus Books, 1994), p. 215. 53. Ibid. 54. The power of Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. . . .” Article I, § 8, cl. 18. 55. Gibbons v. Ogden, op. cit. Justice Marshall stated: “[T]he power of Congress does not stop at the jurisdictional lines of the several States,” but “must be exercised whenever [and wherever] the subject exists. . . . Commerce among the States must, of necessity, be commerce [within] the States.” 56. Ibid. “[T]he power over commerce . . . is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are . . . the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.” 57. American Power and Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 67 S. Ct. 133 (1946). 58. National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465 (1976). 59. Welch, “At Federalism’s Crossroads,” pp. 178–179. 60. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S. Ct. 1005 (1985). 61. United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). 62. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819). 63. James Madison, Alexander Hamilton, and John Jay, The Federalist Papers, ed. Issac Krammick, first published in 1788 (Hammondsworth, UK: Penguin Books, 1987), p. 225. 64. Ibid. 65. Ibid.; see also Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240 (1999); Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365 (1997). 66. See Peter Irons, A People’s History of the Supreme Court (New York: Viking, 1999), pp. 44–45. 67. The Federalist Papers, op. cit., p. 259. 68. Jack N. Rakove, Original Meanings (New York: Vintage Books, Random House, 1997), p. 168. 69. Ibid., p. 175. 70. Madison, op. cit. 71. Alden v. Maine, op. cit. 72. Ibid. 73. Ibid. 74. See Holmes v. Jennison, 14 Pet. 540 (1840). 75. 4 Wheat 518 (1819). 76. Home Building and Loan Ass’n v. Blaisdell, 290 U.S. 398, 54 S. Ct. 231 (1934).
77. Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S. Ct. 443 (1938). 78. Dodge v. Board of Education of City of Chicago, 302 U.S. 74, 58 S. Ct. 98 (1937). 79. City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157 (1997); see also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996). 80. Alden v. Maine, op. cit. 81. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 119 S. Ct. 2199 (1999). 82. Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S. Ct. 631 (2000). 83. University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001). 84. Alden v. Maine, op. cit. 85. Missouri v. Fiske, 290 U.S. 18, 54 S. Ct. 18, 20 (1933). 86. 3 Elliott’s Debates, 553. 87. Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504 (1890); Employees v. Department of Public Health and Welfare, 411 U.S. 279, 93 S. Ct. 1614 (1973). 88. Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S. Ct. 873 (1944). 89. Rakove, op. cit., p. 163. 90. See Kimel v. Florida Board of Regents, op. cit.; Alden v. Maine, op. cit.; Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, op. cit.; Seminole Tribe of Florida v. Florida, op. cit.; University of Alabama v. Garrett, op. cit. 91. Seminole Tribe of Florida v. Florida, op. cit. 92. Blatchford v. Native Village of Noatak, 501 U.S. 775, 111 S. Ct. 2578 (1991); Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504 (1890). 93. The Federalist Papers, Number 81, op. cit. 94. See Seminole Tribe of Florida v. Florida, op. cit., citing Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, 506 U.S. 139, 113 S. Ct. 684 (1993). 95. Alden v. Maine, op. cit. 96. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142 (1985). 97. Edelman, op. cit., p. 673, 94 S. Ct. at 1360. 98. Green v. Mansour, 474 U.S. 64, 106 S. Ct. 423 (1985). 99. Ibid. 100. Blatchford v. Native Village of Noatak, op. cit. 101. Atascadero State Hospital v. Scanlon, op. cit. 102. Seminole Tribe of Florida v. Florida, op. cit. 103. Ibid. 104. Kimel v. Florida Board of Regents, op. cit. 105. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, op. cit. 106. Edelman, op. cit.; see also Atascadero State Hospital v. Scanlon, op. cit.; Fitzpatrick v. Bitzer, op. cit.; Quern v. Jordan, 440 U.S. 332, 342, 99 S. Ct. 1139, 1140 (1979). 107. See Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89 (1959). 108. Ibid. 109. Edward S. Corwin (ed.), The Constitution of the United States of America (Washington, D.C.: U.S. Government Printing Office, 1964), p. 563, citing Miller, On the Constitution (1891), p. 314. 110. See Leonard W. Levy, Constitutional Opinions: Aspects of the Bill of Rights (New York: Oxford University Press, 1986), p. 114.
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Quoted Box Citations 111. Ibid., p. 118. 112. Ibid., p. 113. 113. Ibid. 114. Ibid. 115. Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900 (1940); see also Jesse H. Choper, “A Century of Religious Freedom,” 88 Calif. L. Rev. 1709 (2000). 116. Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857 (1951). 117. Edward S. Corwin, ed., The Constitution of the United States of America (Washington, D.C.: U.S. Government Printing Office, 1964), p. 845. 118. Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625 (1925). 119. Corwin, op. cit., p. 845. 120. Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900 (1940). 121. Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625 (1931). 122. DeJonge v. Oregon, 299 U.S. 353, 57 S. Ct. 255, (1937). 123. Leonard W. Levy, Origins of the Bill of Rights (New Haven, CT: Yale University Press, 2001), p. 79. 124. Ibid. 125. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943). 126. New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733 (1985). 127. Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386 (1995). 128. Board of Education of Independent School District No. 92 of Pottawatomie v. Earls, 536 U.S. 822, 122 S. Ct. 2559 (2002). 129. Beilan v. Board of Education, 357 U.S. 399, 78 S. Ct. 1317 (1958). 130. Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686 (1954). 131. Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693 (1954). 132. Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401 (1977). 133. Levy, op. cit., p. 29. 134. Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965). 135. Slaughter-House Cases, 16 Wall. 36, 83 U.S. 36, 21 L.Ed. 394 (1872). 136. Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975). 137. Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923). 138. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701 (1972). 139. Ibid. 140. Ibid. See also Meyer v. Nebraska, op. cit. 141. Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694 (1972). 142. See Goss, op. cit. 143. See Roth, op. cit.; Sindermann, op. cit. 144. Corwin, op. cit., p. 1279. 145. Ibid., p. 1280. 146. Ibid., p. 1283. 147. Truax v. Corrigan, 257 U.S. 312, 42 S. Ct. 124 (1921). 148. San Antonio Independent School District v. Rodriguez, supra. 149. Jed Rubenfeld, “Legitimacy and Interpretation in Constitutionalism,” ed. Larry Alexander, (Cambridge: Cambridge University Press, 1998), p. 212. 150. William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 1 (1769). 151. Henkin, op. cit., p. 5. 152. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571 (1925); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct.
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1526 (1972); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923); Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573 (1987); New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733 (1985); Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 779 (1975). 153. Jeremy Waldron, “Nonsense Upon Stilts” (1987), pp. 157–159, in Henkin, op. cit., pp. 83–85. 154. Ibid. 155. Nathan Miller, F.D.R., An Intimate History (New York: A Meridian Book, New American Library, 1983), pp. 497–498. 156. See Henkin, op. cit., p. 1183. 157. Note in particular Missouri v. Jenkins, 515 U.S. 70, 115 S. Ct. 2038 (1995), wherein the U.S. Supreme Court ruled that de jure segregation in one school district does not justify inter-district remedies involving more than one school district. 158. Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), p. 199. 159. Rodriguez, op. cit. 160. Ibid. 161. Ibid. 162. Dworkin, op. cit., p. 199. 163. See Peter Irons, The Courage of Their Convictions (New York: Penquin Books, Inc., 1990), p. 289 164. See Samuel H. Beer, To Make a Nation, The Rediscovery of American Federalism (Cambridge, Mass: The Belknap Press of Harvard University, 1993), pp. 27–28, citing John Adams, A Dissertation on the Canon and Feudal Law (1765). 165. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982). 166. Papason v. Allain, 478 U.S. 265, 106 S. Ct. 2932 (1986). 167. Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108 S. Ct. 2481 (1988). 168. Plyler, op. cit. 169. Papason, op. cit. 170. Kadrmas, op. cit. 171. Erwin Chemerinsky op. cit., p. 888. 172. San Antonio Independent School District v. Rodriguez, op. cit., 411 U.S. at 36, 93 S. Ct. at 1298 (1973). 173. Ibid. 174. Kadrmas, op. cit., at Note No. 1 in dissent of Justice Marshall.
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Quoted Box Citations
Lawrence A. Friedman, A History of American Law, Third Edition, (New York: Simon & Schuster, 2005), p. 74. Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1662 (1999). U.S. Constitution, Amendment XI, Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996). James Madison, Source: JM to GE (Reverend Eve) January 2, 1789, PJM 11:404, See: Richard Labunski, James Madison and the Struggle for the Bill of Rights (Oxford: Oxford University Press, 2006), p. 164. Immanuel Kant, The Metaphysics of Morals, 1797 (Cambridge: Cambridge University Press, 1993), p. 56. Ira Harvey, A History of Educational Finance in Alabama 1819–1986 (Auburn, Ala.: The Truman Pierce Institute for the Advancement of Teacher Education, Auburn University, 1989), p. 17. Reprinted with permission.
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CHAPTER 4
Governance of Public Schools 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. —Tenth Amendment, 1791 The powers reserved to the several states will extend to all objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvements, and prosperity of the State. —James Madison, The Federalist, No. 45, 2:82 (1788). Today, education is perhaps the most important function of state and local governments . . . It is the very foundation of good citizenship. —Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686 (1954)
CHAPTER OUTLINE ■
INTRODUCTION
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JUDICIAL REVIEW OF SCHOOL BOARD ACTIONS
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PUBLIC REASON AND THE STATE
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AUTHORITY OF INTERSCHOLASTIC ORGANIZATIONS
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EDUCATION AS A STATE FUNCTION
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SCHOOL OFFICERS
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LIMITS OF STATE CONTROL
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SCHOOL ELECTIONS
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STATE AND LOCAL EDUCATIONAL AGENCIES
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SCHOOL BOARD MEETINGS
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LOCAL CONTROL
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OPEN MEETINGS AND PUBLIC RECORDS LAWS
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FUNCTIONS OF EDUCATION AGENCIES
Open Meetings
Delegation of Legislative Powers
Public Records
Administrative or Executive Functions
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SUMMATION OF CASE LAW
Quasi-Judicial Functions
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RESEARCH AIDS
118 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.
Education as a State Function
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Introduction
When the U.S. Constitution was promulgated in Philadelphia in 1787, the Founders, by design, omitted the governmental function of education from those aspects of government delegated to the new central government. Obviously, the learned men who debated the features of the new government valued education and recognized its importance to the republican form of government, but they also highly valued state sovereignty and were generally very wary of vesting too much power at the federal level. Indeed, the delegation of education to the central government would have reflected a desire by those state representatives at Philadelphia to fashion a “national” rather than a “federal” government, a motive that was conspicuously absent from the deliberations. Thus, states as sovereign entities, strengthened by the Tenth Amendment, retained the important prerogative to provide, at their discretion, for systems of public instruction. Thus, each of the states, most with varying degrees of enthusiasm and commitment, established and maintained commendable systems of public schools. This chapter outlines and discusses the main legal features that define these systems.
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good. This public reason emanates from the intellectual and moral power that is rooted in the ideals and aspirations of society.3 Thus, public reason to obtain the common good is an attribute of a democratic society, and the creation of public schools is a direct manifestation of that public reason.4 Public reason is the foundation of the state educational systems. According to Rawls,5 public schools are a product of that philosophy in at least three ways: (1) it is the reason of citizens as such, it is the reason of the public (not nonpublic); (2) it is subject to the good of the public and matters of fundamental justice; and (3) it is public in its nature and content, “being given by the ideals and principles expressed by society’s conception of political justice. . . .”6 In the exercise of that public reason, the state creates public schools to ensure fundamental political justice.
EDUCATION AND DEMOCRACY “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” —James Madison, Letter to William T. Barry, August 4, 1822
Public Reason and the State
It is through the state and by its governance that the people collectively act for the good of society and themselves. Every state is an association,1 and each is formed to achieve a societal good that is not attainable by individuals acting in their own separate interest. The formation and governance of the public schools constitutes the most important aspect of government used to improve the condition of humankind. The state, as a community, is a form of “unifying relationship between human beings” in which “practical reasonableness” is achieved from collective and cooperative judgment.2 It is surmised that the common good will be best identified and achieved through action of the state in carrying out the will of the people. Public reason requires that public schools be created by political society as the principal vehicle to advance the common
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Education as a State Function
The courts have consistently held that the power over education is an essential attribute of state sovereignty of the same order as the power to tax, to exercise police power, and to provide for the welfare of the citizenry. In the exercise of this pervasive function, states have established systems of public schools that are operated as administrative arms of the state government. The broad power of the state extends to providing for education generally within its boundaries and not merely to the public schools alone. Education, in this broader context, encompasses educational purposes and pursuits of the populace and the schools, both public and private. The interest in an educated citizenry is such an
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important part of state sovereignty that a certain minimal quality of education for all children is required, whether their education is acquired in public or private schools. Court decisions abundantly support the preeminence of the state in control of education. Interestingly, most precedents indicate that the legislature has the prerogative to govern education, when actually education is governed by the democratic legislative process, which requires action by both the legislative and executive branches of government. The legal principles controlling education have been stated many times in different ways by state courts; for example, the legislature has plenary power to set up public schools,7 the maintenance of common schools is a concern of the state and legislature,8 or a uniform system of public schools is exclusively within the province of the legislature. 9 The pervasiveness of this power is adequately illustrated by a Michigan decision, which states that “[t]he legislature has entire control over the schools of the state. . . . The division of the territory of the state into districts, the conduct of the schools, the qualifications of teachers, the subjects to be taught therein, are all within its (the state’s) control.”10 An Ohio court has briefly encapsulated this power as follows: [T]hat the control of schools, be they public or private, providing elementary and secondary education for the youth of Ohio, reposes in the Legislature of our state. When the General Assembly speaks on matters concerning education it is exercising plenary power and its action is subject only to the limitations contained in the Constitution. . . . We can, therefore, indulge in generalities and make a broad statement to the effect that the Legislature of Ohio, in passing laws concerning elementary and secondary schools, is restrained only by its own conscience, [and] fear of the electorate. . . .11
The power of the state to control education has sometimes been characterized as emanating from the state’s police power.12 Although “police power” has not been fully defined by the courts, it is clear that the term encompasses all the elements vested in state sovereignty, including those powers necessary to preserve the peace, morals, good order, and well-being of society.13 It embraces the broad prerogatives of general welfare. The U.S. Supreme Court has said: “The police power of a
state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and to the protection of all property, within the state, and hence to the making of all regulations promotive of domestic order, morals, health, and safety.”14 Within this framework is the power of the state to protect the individual and society through provision for a system of education. In holding that education is a state function, the courts maintain that the state’s authority over education is not a distributive one to be exercised by local government, but is a central power residing in the state. The legislature has the prerogative to prescribe the methods of education, and the courts will not intervene unless the legislation is contrary to constitutional provisions.
One rule for the construction of State constitutions, adopted by the courts of all the States, so far as we are informed, and a rule in harmony with the common law, upon which our institutions are founded, is this: “The legislature is supreme, and its acts valid and binding unless they are in express conflict with the constitution of the United States or of the State. Limitations upon the power of the legislature arise either from express words in the constitution or necessary implication.” —Supreme Court of Illinois, 1879
The state legislature has both the power and the responsibility to enact laws to govern education. These laws prescribe the nature and number of local school districts and define their powers. The legislature may, if it so decides, create, alter, or do away with local school districts.15 A Nebraska court has observed: [T]he state may change or repeal all powers of a school district, take without compensation its property, expand or restrict its territorial area, unite the whole or part of it with another subdivision or agency of the state, or destroy the district with or without the consent of the citizens.16
In education, as in all other functions of state government, the state constitution is fundamental and is determinative of the broad scope within which the legislature can operate. The fact that the legislature is created by the state constitution and given lawmaking authority, in
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Education as a State Function
conjunction with the executive branch, is a pervasive and general delegation that is not limited to special conditions or situations. To explain this prerogative, the New York Court of Appeals has said, “The people, in framing the constitution, committed to the legislature the whole law-making power of the state, which they did not expressly or impliedly withhold. Plenary power in the legislature of all purposes of civil government is the rule.”17 Unlike the U.S. Congress, which has only those powers delegated to it by the Constitution, state legislatures have plenary power and may pass any act that is not expressly or impliedly forbidden by the state constitution.18 This legislative power over the control of local school districts does not constitute any sort of a contract in which the local district has any contractual rights or other constitutional rights. This was cleared up by the U.S. Supreme Court in Michigan ex. rel. Kies v. Lowry, where a local school district in Michigan complained that an act of the legislature creating a new school district partially from property of an old district
FIGURE 4.1
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violated the Obligation of Contracts, Article I, Section 10, and the Due Process Clauses of the U.S. Constitution. The Supreme Court found no merit in such an allegation, and quoted with approval the following: Institutions of the kind, whether called counties or towns, are auxiliaries of the state and cannot have the least pretension to sustain their privileges or their existence upon anything like a contract between them and the legislature of the state, because there is not, and cannot be any reciprocity of stipulation, and their objects and duties are utterly incompatible with everything of the nature of compact . . . it is everywhere acknowledged that the legislature possesses the power to divide counties and towns at their pleasure. . . .19
The relationship between the legislature and the local school district is, therefore, unlike the relationship between the U.S. Congress and the state. As explained previously in Chapter 3, the federalism under which we operate is a compact, as prescribed by the U.S. Constitution, which delegates only certain powers to the central government. Unlike state governments, the
State Governance of Education: Basic Points of Authority Legislative Branch Statutory power: Fiscal Substantive
Executive Branch Authority: Regulatory Fiscal Administrative
Judicial Branch Interpretative Authority: Constitutional Law Statutory Law Common Law Regulatory Law
State Education Agency Authority: Regulatory Administrative Quasi-Judicial
Local Education Agency Authority: Regulatory Administrative Quasi-Judicial
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federal government does not have sovereign and inherent police powers to control subordinate state and local governments. On the other hand, state legislatures generally do have sovereign powers to create, dissolve, or alter subordinate local agencies, school districts, municipalities, or counties. According to Edwards, “The legislature must do so much; it may do more.”20
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Limits of State Control
Strictly speaking, the term plenary, meaning complete, absolute, and unqualified, should be used with proper qualification. Even though the courts have frequently used the term in defining the legislature’s prerogative, in actuality, legislative power is subject to definite limits imposed on it by both the federal and state constitutions, as well as by federal statutes—which are supreme and take precedence over state statutes. This limitation must be recognized as of major significance. The term plenary can be a particularly poor choice of words in view of recent trends in which courts have not only invoked the general constitutional restraints of equal protection, liberty, property, and so forth, but also have begun to directly circumscribe legislative action within the limits of education clauses of state constitutions. As indicated earlier in this book, terms such as efficient, thorough, effective, uniform, and system, as used in education clauses, have increasingly been invoked by the courts to strike down statutes governing the financing of public schools. Several recent decisions21 have revitalized the education clauses, and their interpretations may, in the future, represent important precedents and, as a consequence, important limitations on legislative power. William Thro observes that prior to the recent school finance cases, the “education clauses (in state constitutions) were largely useless as tools for school finance reform,” but today’s legislatures are subject to a responsibility to provide for public schools.22 The imposition by the courts of this newly enforced obligation of state legislatures creates an increased standard to which legislative action must adhere. This standard, emanating from more assertive interpretation of education clauses, is seen by some courts as creating
a “duty” that is supreme, preeminent and dominant. Flowing from this constitutionally imposed “duty” is its jural correlative, a correspondent “right” permitting control of another ’s conduct. Therefore, all children residing within the borders of the state possess a “right,” arising from a constitutionally imposed “duty” of the State, that the State make ample provision for their education. Further, since the “duty” is characterized as paramount, the correlative “right” has equal stature. . . . Consequently, all children residing within the State’s borders have a “right” to be amply provided with an education.23
Regulation of Common Schools Is Within the Power of the Legislature
State ex rel. Clark v. Haworth Supreme Court of Indiana, 1890. 122 Ind. 462, 23 N.E. 946.
ELLIOTT, J. . . . It is sufficient, to bring the question clearly enough before the mind for investigation and consideration, to say that the relator petitioned for a writ of mandate to compel the appellee, as school trustee of Monroe township, in the county of Howard, to certify to the county superintendent of schools the number of textbooks required by the children of the township for use in the public schools, and to procure and furnish such books as the law requires . . . Elliott’s Supp. § 1289 (Acts 1889, p. 74). The act assailed does not impinge in the slightest degree upon the right of local self-government. The right of local self-government is an inherent, and not a derivative, one. Individualized, it is the right which a man possesses in virtue of his character as a free man. It is not bestowed by legislatures, nor derived from statutes. But the courts which have carried to its utmost extent the doctrine of local self-government have never so much as intimated that it exists as to a matter over which the constitution has given the lawmaking power supreme control; nor have they gone beyond the line which separates matters of
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Limits of State Control
purely local concern from those of state control. Essentially and intrinsically, the schools in which are educated and trained the children who are to become the rulers of the commonwealth are matters of state, and not of local, jurisdiction. In such matters the state is a unit, and the legislature the source of power. The authority over schools and school affairs is not necessarily a distributive one, to be exercised by local instrumentalities; but, on the contrary, it is a central power, residing in the legislature of the state. It is for the law-making power to determine whether the authority shall be exercised by a state board of education, or distributed to county, township, or city organizations throughout the state. With that determination the judiciary can no more rightfully interfere than can the legislature with a decree or judgment pronounced by a judicial tribunal. The decision is as conclusive and inviolable in the one case as in the other; and an interference with the legislative judgment would be a breach of the constitution which no principle would justify, nor any precedent excuse. . . . Judge Cooley has examined the question with care, and discussed it with ability; and he declares that the legislature has plenary power over the subject of the public schools. He says, in the course of his discussion, that “to what degree the legislature shall provide for the education of the people at the cost of the state, or of its municipalities, is a question which, except as regulated by the constitution, addresses itself to the legislative judgment exclusively.” Again, he says, “The governing school boards derive all their authority from the statute, and can exercise no powers except those expressly granted, and those which result by necessary implication from the grant.” . . . No case has been cited by counsel, and none has been discovered by us, . . . which denies the doctrine that the regulation of the public schools is a state matter, exclusively within the dominion of the legislature. . . . As the power over schools is a legislative one, it is not exhausted by exercise. The legislature, having tried one plan, is not precluded from trying another. It has a choice of methods, and may change its plans as often as it deems necessary or expedient; and for mistakes or abuses it is answerable to the people, but not to the courts. It is clear, therefore, that, even if
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it were true that the legislature had uniformly entrusted the management of school affairs to local organizations, it would not authorize the conclusion that it might not change the system. To deny the power to change is to affirm that progress is impossible, and that we must move forever “in the dim footsteps of antiquity.” . . . All the public schools have been established under legislative enactments, and all rules and regulations have been made pursuant to statutory authority. Every school that has been established owes its existence to legislation, and every school officer owes his authority to the statute. It is impossible to conceive of the existence of a uniform system of common schools without power lodged somewhere to make it uniform; and, even in the absence of express constitutional provisions, that power must necessarily reside in the legislature. If it does reside there, then that body must have, as an incident of the principal power, the authority to prescribe the course of study, and the system of instruction, that shall be pursued and adopted, as well as the books which shall be used. Having this authority, the legislature may not only prescribe regulations for using such books, but it may also declare how the books shall be obtained and distributed. If it may do this, then it may provide that they shall be obtained through the medium of a contract awarded to the best or lowest bidder, since, if it be true, as it unquestionably is, that the power is legislative, it must also be true that the legislature has an unrestricted discretion, and an unfettered choice of methods. It cannot be possible that the courts can interfere with this legislative power, and adjudge that the legislature shall not adopt this method or that method; for, if the question is at all legislative, it is so in its whole length and breadth. . . . Either the state has power to regulate and control the schools it owns, or it has not. That it does not have the power, we venture to say, no one will affirm. If it does have the power, it must reside in the law-making department, for it is impossible for it to exist elsewhere. If the power does reside in the law-making department, then that department must exercise its discretion and adopt such measures as it deems best; and, if the measures adopted lead to the exclusion of some book-owners, it is an incident
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that no ingenuity can escape, nor any system avoid. The denial of the right to select the books is the denial of the right of regulation and control, and we cannot conceive it possible to deny this right. If the right of regulation and control exists, then the fact that the exercise of the right does not exclude some publisher is an inseparable and unavoidable condition of the exercise of the right. Without it, the right is annihilated. If a clear and manifest legislative right cannot be exercised without conferring privileges in the nature of a monopoly, then, as the authorities all agree, a monopoly may be created; for a denial of the right will not be suffered. . . . All that is here done is to provide that the person who receives, after fair and open competition, the contract for supplying books to the school children, shall enjoy an exclusive privilege for the period prescribed by the statute. Judge Cooley says that “it is held competent for the state to contract with a publisher to supply all the schools of the state with textbooks of a uniform character and price.” . . . Judgment reversed, with instructions to proceed in accordance with this opinion. . . .
3. The Tennessee Supreme Court explained the role of the legislature in exercising police power over public education: We are of the opinion that the legislature, under the constitutional provision, may as well establish a uniform system of schools and a uniform administration of them, as it may establish a uniform system of criminal laws and of courts to execute them. The object of the criminal laws is, by punishment, to deter others from the commission of crimes, and thus preserve the peace, morals, good order and well-being of society; and the object of the publicschool system is to prevent crime, 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. The prevention of crime, and preservation of good order and peace, is the highest exercise of the police power of the state, whether done by punishing offenders or educating the children. Keeper v. State, 103 Tenn. 500, 53 S.W. 962 (1899).
4. The U.S. Supreme Court has expressly declined to define the limits of the police power of state legislatures, Stone v. Mississippi, 101 U.S. 814, 25 L. Ed. 1079 (1879). In Mayor v. Miln, [36 U.S. 102,] 11 Pet. 139, 9 L. Ed. 648 (1835), the Court said:
CASE NOTES 1. The broad extent of legislative power over local school districts is shown in a statement by a Texas court: The Legislature has the power to create school districts at will without any kind of notice. It also has the power to change the boundaries of or to abolish school districts, to consolidate them, to group them for high school purposes, to annex school districts to other school districts and to provide the mode and agencies for effecting such action. Neill v. Cook, 365 S.W.2d 824 (Tex. 1963).
2. The Supreme Court of New York, in Cohen v. State, 52 Misc. 2d 324, 275 N.Y.S.2d 719 (1966), held that the requirement of the New York Constitution stating that “the legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated” gave the legislature power to govern the educational system of the state. Such power allows the legislature to create school districts and to establish different types and structures of school boards to govern and regulate the local school districts.
It embraces every law which concerns the welfare of the whole people, of the state or any individual within it, whether it relates to their rights or duties, whether it respects them as men or citizens of the state, whether in their public or private relations, whether it relates to the rights of persons or property of the whole people of the state or of any individual within it.
5. In Railroad Co. v. Husen, 95 U.S. 465, (1877), the Supreme Court said: “The police power of a state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and to the protection of all property, within the state, and hence to the making of all regulations promotive of domestic order, morals, health, and safety.” 6. Where the legislature empowers local school boards to perform certain functions, the courts will not interfere with the exercise of those powers unless the school board’s actions are found to be “palpably arbitrary, unreasonable or capricious.” Tyska By Tyska v. Board of Education of Township High School District 214, Cook County, 117 Ill. App.3d 917, 73 Ill. Dec. 209, 453 N.E.2d 1344 (1983).
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State and Local Educational Agencies
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State and Local Educational Agencies
All states and the federal government have networks of administrative agencies (usually called boards, commissions, bureaus, or offices) that have been created to implement and administer statutes. State legislatures and the U.S. Congress have not seen fit historically to actually administer legislative enactments themselves, even though the legislative branch could conceivably assume the role of program administration. Traditionally, the view has been that the legislature should not perform the multiple duties of enacting legislation, appropriating funds, and then administering the funds, thereby invading the gray area of executive responsibility. In education, for example, it would be tedious and legislatively cumbersome for a state legislature to attempt to establish by statute the rules and regulations governing specific certification requirements for teachers. In this regard, an Illinois court has said that the delegation of public school responsibilities from the general assembly to subordinate agencies— duly elected school boards—is of practical necessity because the legislature could not itself conveniently or efficiently attend to the details of establishing, maintaining, and operating the public schools.24 Jaffe has suggested the reasoning for such delegation of regulatory power by saying: “Power should be delegated where there is agreement that a task must be performed and it cannot be effectively performed by the legislature without the assistance of a delegate or without an expenditure of time so great as to lead to the neglect of equally important business.”25 The result has been for the state legislature to create agencies that handle the administrative functions necessary to implement legislation properly. In most states, this delegation by the legislature manifests itself in a state board of education, which may be either elected or appointed and has authority to perform administrative and supervisory functions. An alternative to this approach is to vest officials of the executive branch with regulatory and attendant authority to administer the school system of the state; such officers are generally referred to as chief state school officers. Legislatures may also delegate powers to local school districts.
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It is well established that the local school district is a state agency that simply operates at the local level. The Michigan Supreme Court has said the school district is a legislative creation. It is true that it was provided for in obedience to a constitutional requirement; and whatever we may think . . . we cannot doubt that such management must be in conformity to the provisions of such laws of a general character as may from time to time be passed, and that the property of the district is in no sense private property, but is public property devoted to the purposes of the state for the general good, just as almshouses and courthouses are, although confined to local management, and applied to uses which are in a sense local, though in another sense general.26
Another Michigan decision described the legal relationship between the state and local school districts in this way: Fundamentally, provision for and control of our public school system is a state matter, delegated and lodged in the state legislature by the Constitution in a separate article entirely distinct from that relating to local government. The general policy of the state has been to retain control of its school system, to be administered throughout the state under state laws by local state agencies organized with plenary powers independent of the local government with which, by location and geographical boundaries, they are necessarily closely associated and to a greater or lesser extent authorized to cooperate. “Education belongs to the state.”27
Because local school boards are state bodies, it follows that school board members are state, not local, officials.28 Local school boards are vested with a portion of the sovereignty of the state through delegation, by which they acquire certain administrative functions having attributes of all three branches of government: executive, quasi-judicial, and regulatory (or quasilegislative). As creatures of the legislature or constitution, local school districts abide within their legal prerogatives and cannot give away or redelegate their judgmental powers to other agencies or individuals. The courts commonly divide the administrative functions of the local school board into two categories: discretionary and ministerial. The meaning of discretionary powers here is those acts that require judgment on the part of the board. Examples of such responsibilities could be the
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location of a school building site, the employment of a particular teacher, or the purchase of a certain type of school bus. The greatest portion of a board’s powers may be classified as discretionary. In exercising these discretionary powers, a board of education is limited only by the requirements and restrictions of the law. As has been pointed out in the case of state educational agencies, the courts will not interfere with a board’s exercise of discretion even though the judgment is unwise except where the board’s action violates the law, abuses authority, or is ultra vires. The operation of school districts is based upon the express or implied authority of statute. The courts, in circumscribing the authority of school boards from statutory implication, have held that in the absence of statute, travel expenses can be paid for the recruitment of teachers outside the state;29 a school district can establish a cafeteria;30 and a school board can establish a school health inspection department made up of doctors, dentists, and nurses.31 On the other hand, authority has been denied for a school district to pay for surgical and dental operations for pupils,32 for medical care for pupils injured in athletic contests,33 and for purchases of basketball uniforms to be used on land not under school control.34
School Districts Can Exercise Only Those Powers Fairly Implied or Expressly Granted by Statute
McGilvra v. Seattle School District No. 1 Supreme Court of Washington, 1921. 113 Wash. 619, 194 P. 817.
PARKER, J. The plaintiffs, McGilvra and others, residents and taxpayers of Seattle School District No. 1, of King County, suing for themselves and in behalf of all others similarly situated, commenced this action in the superior court for that county, seeking an injunction to restrain the school district and its officers from maintaining in one of its school buildings and expending funds of the
school district for the maintenance therein of a so-called clinic, which, as we proceed we think it will appear would be more properly designated as a “hospital,” for the medical, surgical, and dental treatment of the physical ailments of pupils of the schools of the district, whose parents or guardians are financially unable to furnish such treatment. Trial in the superior court upon the merits resulted in findings and judgment denying the relief prayed for, from which the plaintiffs have appealed to this court. . . . The question to be here answered is: Have the school district and its officers legal authority for so furnishing the use of, and equipping rooms in its buildings and the maintenance therein of such clinic, by the expenditure of the taxpayers’ funds collected and placed at their disposal, for the sole purpose of maintaining the public schools of the district? At the outset let us be reminded in the language of Judge Dillon, in his work on Municipal Corporations, quoted with approval by this court in State ex rel. Winsor v. Mayor and Council, 10 Wash. 4, 37 Pac. 761, that [i]t is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation— not simply convenient but indispensable. Any fair or reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.
This view of the law is of added weight when applied to school districts, because they are municipal corporations with powers of a much more limited character than are cities, or towns, or even than counties. . . . We are quite unable to find in . . . statutory provisions any power given to the school district officers, other than the power to cause inspection of the buildings and premises of the district to be made with a view to making them sanitary and healthful, and to cause inspection of persons with a view to the exclusion from the school premises of all persons afflicted with contagious diseases, to the end that such diseases shall not obtain a foothold among the pupils and other persons whose duties require them to be upon the school premises.
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State and Local Educational Agencies
Counsel for the school district officers call our attention to, and rely upon, our decision in State ex rel. School District No. 56 v. Superior Court, 69 Wash. 189, 124 Pac. 484, and Sorenson v. Perkins & Co., 72 Wash. 16, 129 Pac. 577, commonly known as the “playground” and “gymnasium” cases, wherein it was held that a school district has the power to acquire, by expenditure of the funds of the district, additional land for playgrounds for the pupils, and also at the expense of the district to construct and equip gymnasiums. We do not think these cases are of any controlling force touching the present inquiry. Playgrounds in connection with public schools have for generations been so common that it must be presumed that the Legislature by giving the general power to maintain public schools incidentally intended to also give the authority to provide such playgrounds in connection therewith; and, while gymnasiums in connection with public schools have not been so common, the work and exercise of the students carried on therein is manifestly so intimately connected with the education of the pupil as to warrant the assumption that the Legislature intended the school districts and their officers to possess the power of providing the same as a proper public school equipment. The rendering of medical, surgical, and dental services to the pupils, however, is, and always has been, we think, so foreign to the powers to be exercised by a school district or its officers, that such power cannot be held to exist in the absence of express legislative language so providing. . . . The specific legislative enumeration of these powers which it seems could with much sounder reason be considered as implied powers in the absence of express language in the statute than the claimed powers here in question, argues, in the light of well-settled rules of statutory construction, that the Legislature has not intended that here should be an exercise of such claimed powers. We see no argument lending any substantial support, in a legal way, to the view that a school district and its officers possess the powers they are seeking to exercise and threatening to continue to exercise. There is much in the argument of counsel for the school officers which might be considered as lending support to the view that such powers ought to be possessed by the school district and its officers, and it is probable that counsel has many well meaning people
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upon his side of that question. The Legislature may give heed to such arguments, but the courts cannot do so. The judgment of the trial court is reversed, and the case remanded to that court, with directions to render a judgment enjoining the school district and its officers from furnishing or equipping upon the school premises, or elsewhere, appliances for the medical, surgical, or dental treatment of the physical ailments of the pupils of the schools at the expense of the district, and from employing physicians, dentists, or nurses for the rendering of such medical, surgical, or dental treatment; it being understood, however, that such injunction shall not restrain the school district or its officers from the doing of these things at the expense of the district in connection with, and as may be necessary in, the maintenance of the parental schools of the district and the proper care of the pupils committed to such schools.
School District Exceeded Its Statutory Authority in Operating a Virtual Charter Academy Program for Students Beyond School District Geographical Borders
Johnson v. Burmaster Court of Appeals of Wisconsin, 2007 307 Wis.2d 213, 744 N.W.2d 900. Rev.den. 308 Wis.2d 619, 749 N.W.2d 662 (Sup.Ct.Wis. 2008).
BROWN, C. J. Wisconsin Virtual Academy (WIVA) is a charter school established by the Northern Ozaukee School District. Though WIVA’s administrative offices are within district boundaries in Fredonia, it serves pupils across the state by providing curricular materials to them in their homes via [I]nternet and mail. WIVA employs several certified teachers who also live throughout the state and have email, telephone and some [I]nternetbased contact with the pupils. However, primary day-to-day responsibility for implementing the pupils’ education resides with the pupils’ parents. The great bulk of WIVA’s funding comes
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from open-enrollment transfer payments to the District from the pupils’ home districts. This appeal calls on us to determine whether the District’s operation of WIVA comports with Wisconsin’s charter school, open-enrollment, and teacher licensing statutes. The relevant provisions of these statutes prohibit a school district from operating a charter school located outside the district, require that open-enrollment students attend a school in the district, and require that teachers in all public schools, including charter schools, be state-certified. For each statute, the District presents a creative reading allowing WIVA to continue its present operations, but our job is not to bend the statutory framework to fit WIVA. If, as its proponents claim (and its opponents dispute), WIVA has hit upon a bold new educational model that educates pupils in a way equal to traditional school at a fraction of the cost, then the legislature may well choose to change the law to accommodate WIVA and other schools like it. However, as the law presently stands, the charter school, open-enrollment, and teacher certification statutes are clear and unambiguous, and the District is not in compliance with any of them. We reverse the circuit court’s grant of summary judgment and instead direct that summary judgment be granted to the plaintiffs. The essential facts are undisputed. In 2003, the District contracted with K12 Inc., a Delaware corporation, to provide a curriculum for its new virtual charter school, WIVA. K12 sends books and other materials to the students, and also provides curricular materials via the internet (it also provides loaned computers). The WIVA students, under the direction of their parents, study the materials and complete various assignments to demonstrate their understanding. The parents are provided with instructor’s materials to assist the student’s learning. The parents check the students’ work on their assignments to determine whether the students have mastered the topic. A parent is required to devote four to five hours per day to the student’s education. The overwhelming majority of WIVA’s 619 students (as of December 2004) live and study outside the District. The open-enrollment payments transferred from these students’ home districts cover the District’s costs to operate WIVA and provide the district with an “oversight fee.” The remaining revenue is paid to K12.
WIVA’s principal, vice-principal, and other administrators work at the District’s office in Fredonia. WIVA’s certified teachers are employees of the District, but they work from their homes across the state. They review samples of students’ work to assess progress, and hold one to two twenty- to thirty-minute telephone conferences per month with each student and parent, during which they discuss and assess student progress. They correspond with students via email, and respond to parental requests for assistance via email and telephone. Certified teachers also conduct thirty- to forty-minute interactive online classes using online conferencing software; students participate in such classes two to four times per month. In January 2004, individual citizens and the Wisconsin Education Association Council (collectively “WEAC”) filed suit against the District, its officials and school board, and K12 (collectively “the District”), along with State Superintendent of Public Instruction Elizabeth Burmaster. WEAC claimed that the District’s operation of WIVA violated the open-enrollment, charter school, and teacher licensing statutes. Though formally a defendant, Burmaster has adopted WEAC’s position on the teacher licensing statute and takes no position on the other two claims. . . . In March 2006, the circuit court granted summary judgment to the District on all claims. . . . For the reasons that follow, we now reverse the circuit court’s grant of summary judgment to the District, and direct that it grant summary judgment to Burmaster and WEAC. . . . This case calls on us to interpret three statutory provisions. . . . Burmaster and the District each advance legislative history arguments based primarily on various bills that never became law. Even if these bill histories were probative of legislative intent, we would not consider them because we conclude below that each of the statutory provisions at issue has a plain and unambiguous meaning. We first consider whether the District has complied with WIS. STAT. § 118.40(3)(c), which states that “[a] school board may not enter into a contract for the establishment of a charter school located outside the school district.” . . . The circuit court held that WIVA is located at the address of its administrative offices.
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State and Local Educational Agencies
This view has the virtue of simplicity, but we cannot adopt it because it ignores the plain language of the statute. WISCONSIN STAT. § 118.40(3)(c) restricts the location of a “charter school” to the boundaries of the establishing district. Surely, the administration of a school is a part of that school, and so we have no problem agreeing that part of WIVA is “located” in Fredonia where the principal, vice-principal, and secretary work. But to agree with the circuit court’s conclusion and hold WIVA in compliance with § 118.40(3)(c), we would have to accept that a school consists only of its administrators and that where the teachers teach and the students learn has nothing to do with where the school is “located.” We cannot believe that the plain and ordinary meaning of the statutory term “school” excludes both teachers and students. The large majority of WIVA students receive their educations at locations outside of the district, from teachers working at locations outside of the district. The conclusion is inescapable that WIVA is located, in part, outside of the district. . . . Nor is it reasonable to say that WIVA exists only in cyberspace or make the related claim that “geography-based conceptions” like “location” have been rendered meaningless. First, as a matter of law, “located” is a statutory term, and we may not lightly nullify it. Second, as a matter of common sense, the rise of the [I]nternet notwithstanding, “location” remains a meaningful and often indispensable concept, particularly when it comes to the relationships between governmental units. The Northern Ozaukee School District has boundaries. WIVA’s students are educated by WIVA’s teachers outside of them. WIVA is thus in violation of WIS. STAT. § 118.40(3)(c). We next consider WIS. STAT. § 118.51, the fulltime open-enrollment statute. It allows a pupil to attend a public school outside his or her home district, and sets forth the procedures the pupil and the sending and receiving district (“resident” and “nonresident” school district) must follow . . . , including a shift in funding from the resident school district to the Northern Ozaukee School District. The disagreement boils down to whether a WIVA pupil “attends school” in the District. . . . We have already explained that WIVA is, in part, located outside the district, and so it is of no import whether the statute requires a student
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to be in the district attending school or merely to attend a school that is in the district. WIVA’s nonresident pupils attend school outside the district. They also attend a school outside the district. . . . The final question we must answer is whether WIVA violates Wisconsin’s teacher licensure requirement. Burmaster and WEAC contend that WIVA’s parents serve as the school’s teachers and that because they are not licensed by the Department of Public Instruction (DPI), WIVA violates WIS. STAT. § 118.19(1), which requires that “[a]ny person seeking to teach in a public school, including a charter school . . . shall first procure a license or permit from the department.” . . . “Teaching” means improving pupil learning by planning instruction, diagnosing learning needs, prescribing content delivery through classroom activities, assessing student learning, reporting outcomes to administrators and parents and evaluating the effects of instruction. . . . The differences between the parties’ descriptions of a WIVA parent’s role are of emphasis rather than substance. The District has nowhere disputed that a parent works one-on-one with a pupil, presenting the lesson, answering questions, and assessing progress. Instead, it simply highlights other parental tasks. Even accepting the District’s description of the parent’s role (which, again, is not necessarily inconsistent with the description proffered by WEAC and Burmaster), we have no difficulty concluding that the activities of the WIVA parents fall within the DPI definition (or any reasonable definition) of “teaching.” Indeed, we have a difficult time understanding what else it could mean to say that a WIVA parent is responsible for “continuous progress through the curriculum.” . . . The District points to teacher aides, parent volunteers, guest speakers, and others who may perform some of the same “teaching” functions in the public schools that parents do in WIVA. The District proposes that there is no reasonable distinction between WIVA and a more traditional public school in which unlicensed individuals play a role in the teaching of students. We wish to emphasize that the issue in this case is not simply what the parents do, but what the school requires them to do in order for the school to function. We underscore that no one is suggesting that a parent assisting his or her child to whatever extent the parent finds necessary is
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“illegal.” The question is not whether and how a parent may assist his or her child with schoolwork; rather, it is whether the District can establish a public school, using . . . public funds, that relies upon unlicensed individuals as the primary teachers of the pupils. The problem is not that the unlicensed WIVA parents teach their children, but that they “teach in a public school.” . . . WIVA may be, as its proponents claim, a godsend for children who would not succeed in more traditional public schools, as well as welcome a new option for parents who want their children to receive a home-based education for any number of reasons. But it is also a public school operated with state funds, and its operation violates the statutes as they now stand. It is for the citizens of this state, through their elected representatives in the legislature, to decide whether and how their tax money is going to be spent. If the citizenry wants tax money spent on virtual schools like WIVA, that is fine. Let the citizens debate it and set the parameters, not the courts. . . . We conclude that the plaintiffs are entitled to summary judgment. On remand, we direct that the circuit court enter a declaratory ruling that the District and K12 are in violation of WIS. STAT. §§ 118.19, 118.40 and 118.51, and enjoin the DPI from making pupil transfer payments based upon nonresident students enrolled in WIVA. Order reversed and cause remanded with directions.
CASE NOTE Boards of education are creatures of statute and, as such, have only those powers that are expressly granted by statute or are necessarily implied therefrom. Schwing v. McClure, 120 Ohio St. 335, 166 N.E. 230 (1929); see also Tax Deferred Annuities Corp. v. Cleveland Board of Education, 24 Ohio App. 3d 105, 493 N.E.2d 305 (1985).
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Local Control
Local control of education is an ideal that is highly valued by most Americans. However, as discussed previously, most state constitutions center the authority for the provision of education in the state legislature. As such, the state legislature has the authority, obligation, and
positive duty to provide for a system of public schools in accordance with the mandates of the constitution. However, in several states the constitutional mandates include specific reference to local supervision, control, operation, or maintenance of the public schools. The balance between state and local control can therefore be found in the exact wording of the state constitution. Thus, the state control may not be plenary if the people in their constitution have chosen to delegate education authority to the locality. Six states have such constitutional language which mitigates state control in favor of local decision making. 1. Colorado. Colo. Const. Art. IX, § 15 mandates the creation of school districts with “three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.” 2. Florida. Fla. Const. Art. IX, § 4 provides that local school boards “shall operate, control and supervise” district schools. 3. Georgia. Ga. Const. Art. VIII, § 5 vests local boards with authority to “establish and maintain” district schools. 4. Kansas. Kan. Const. Art VI, § 5 provides that local public schools “shall be maintained, developed and operated by locally elected boards.” 5. Montana. Mont. Const. Art. X, § 8 vests “supervision and control of schools” in local boards. 6. Virginia. Va. Const. Art. VIII, § 7 delegates the “supervision of schools” to local school boards. Among these states, Colorado courts have probably been most diligent in upholding local control. For example, in Booth,35 the Colorado Supreme Court held that the state’s constitutional language required that there be a balance between state and local control. The balance that is to be maintained must not have the effect of usurping the local board’s decision-making authority to implement, guide, or manage educational programs. The balance that the Colorado Supreme Court requires in Booth is to vest “general control” in the state and specific control of instruction in local boards. In keeping with this balance the Colorado Court also ruled in Lujan36
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Local Control
that the statewide system of school finance was designed to preserve local control over locally raised revenues. Thus, the idea of local control in Colorado creates a balance whereby instructional decisions and use of local funds are set out as local prerogatives. This concept of local control was also the basis for a Colorado Supreme Court decision in Owens in 2004, wherein the court invalidated a state voucher scheme that would have diverted local funds to private schools.37 Owens is set forth below.
Vouchers Providing Parental Choice and Funds for Private Schools Violate Local Control Provision in State Constitution
Owens v. Colorado Congress of Parents, Teachers and Students Supreme Court of Colorado, 2004. 92 P. 3d 933.
Justice BENDER delivered the Opinion of the Court. In this case, we consider whether the Colorado Opportunity Contract Pilot Program . . . violates the local control provisions of article IX, section 15 of the Colorado Constitution. The program was challenged in the district court by eight parents on behalf of their children as well as several concerned individuals and institutions (collectively “plaintiffs”). They are supported on this appeal by the Colorado Association of School Boards as amicus curiae. The program was defended by Bill Owens in his official capacity as Governor and twelve parents who intervened because they wanted their children to participate in the program (collectively “defendants”). The trial court found the Pilot Program interferes with the local school districts’ discretion to allocate their funding, and therefore violates the local control requirement of article IX, section 15. The trial court also concluded that it could not interpret the program in a constitutional manner without effectively reading section 15 out
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of the constitution. Accordingly, the trial court concluded that the program was unconstitutional beyond a reasonable doubt. The defendants appeal to this Court, arguing that the General Assembly has plenary authority to guide and implement educational policy. Pursuant to this authority, the General Assembly has determined that the Pilot Program best serves the needs of children who “simply are not succeeding in the traditional school district setting.” The defendants contend that the local control provisions of article IX, section 15 do not place any impediment in the way of the General Assembly’s power to enact the Pilot Program. First, the defendants argue that the program does not disturb the districts’ authority over instruction in any way because students who participate in the program leave the district. Thus, the district retains control over instruction of those students who remain in the district. Our task is to assess the constitutionality of the Pilot Program. . . . Through article IX, section 15, the framers created a representative body to govern instruction in the public schools. The qualified electors of each district elect local school boards, who in turn “shall have control of instruction in the public schools of their respective districts.” Beginning with Belier v. Wilson, this Court has consistently construed this provision to mean that local school districts must retain control over any instruction paid for with locally raised funds. . . . Without control over locally raised funds, the representative body mandated by our state constitution loses any power over the management of public education. Given the mandates of article IX, section 15, we hold that the Pilot Program violates the local control requirements of our state constitution because it directs the school districts to turn over a portion of their locally raised funds to nonpublic schools over whose instruction the districts have no control. Irrespective of the fact that the goals of the program and the policy considerations underlying it are laudable, we see no way to reconcile the structure of the program with the requirements of the Colorado Constitution. To hold otherwise would render the local control provisions of article IX, section 15 meaningless. Accordingly, we affirm the judgment of the trial court.
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The Colorado Opportunity Contract Pilot Program is designed to meet the “educational needs of high-poverty, low-achieving children in [Colorado’s] highest-poverty public schools,” 7A C. R. S. (2003). Participation in the program is mandatory for any school district that, “for the 2001–02 school year, had at least eight schools that received an academic performance rating of ‘low’ or ‘unsatisfactory,’ and which . . . continues to operate said schools in the 2003–04 school year.”. . . The program is available to low-income, lowachieving children who attend public school in a participating school district. Only those children who are eligible to receive free or low-cost lunch under the National School Lunch Act may participate. Academic criteria vary according to the child’s age. . . . If a child is eligible to participate in the program and has been accepted by a qualified nonpublic school, the child’s parents may enter into a contract with the school district in which the child is enrolled. The school district is then required to make four assistance payments to the parents, who in turn must endorse the check “for the sole use of the participating nonpublic school.” The school district is required to pay the lesser of “the participating nonpublic school’s actual educational cost per pupil,” or a percentage of the school district’s per pupil operating revenues. . . . The plaintiffs challenged the program on several grounds, including that the program . . . violates the local control provisions of article IX, section 15 of the Colorado Constitution. The plaintiffs moved for judgment on the pleadings . . . and, in response, the defendants moved for partial summary judgment dismissing these issues. . . . Article IX, section 15 mandates the creation of school districts and provides a broad sketch of the districts’ powers: The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.
... Our review of the history of article IX, section 15 and our case law construing it leads us to
conclude that to accept [defendants’] arguments would effectively delete the local control requirement from our state constitution. Because we see no way to reconcile the requirements of section 15 with the Pilot Program as it is currently enacted, we hold that the program is unconstitutional beyond a reasonable doubt. The principle of local control has deep roots in Colorado’s constitutional history. The Colorado Constitution was adopted in 1876 in an atmosphere of deep distrust of centralized authority. . . . The document ultimately adopted was designed to “protect citizens from legislative misbehavior,” and thus, while the delegates recognized that a legislature must inevitably be created, they “assiduously wrote provisions that took away much of [the General Assembly’s] discretionary authority.” The provisions governing education reflect the delegates’ ambivalence about legislative power. Article IX, section 2 empowers the General Assembly to create and maintain a public school system: The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously.
Article IX, section 15 then provides that control over instruction in the public schools shall devolve to local school boards, whose members are elected by the residents of the school districts: The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts. . . . With the adoption of article IX, Colorado became one of only six states with an express constitutional local control requirement. See Booth, 984 P. 2d at 646. In that provision, the framers made the choice to place control “as near the people as possible” by creating a representative government in miniature to govern instruction. And since its adoption, this Court has consistently emphasized the importance of local control to the state’s educational system. . . .
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Functions of Education Agencies
The question in this case is whether the Pilot Program satisfies the mandates of the local control requirement of article IX, section 15 and whether the Pilot Program fits within those parameters. To answer that question, we now examine the program itself, and our analysis is guided by the language of article IX, section 15 and our case law, cited above, construing that provision. The defendants argue that nothing in the language of article IX, section 15 ties control over instruction to authority to disburse locally raised funds. In their view, local control means control over instruction per se, and does not implicate funding in any way. This argument simply ignores nearly one hundred years of this Court’s precedent clearly linking control over instruction to discretion to spend locally raised funds. Local authority over locally raised funds preserves the representative body created by section 15 and gives substance to the constitutional requirement that local boards “shall have control of instruction in the public schools of their respective districts.” The Pilot Program violates these principles by requiring the school districts to pay funds— including those derived from locally raised tax revenues—to parents, who in turn are required to pay those funds to nonpublic schools. By denying local districts discretion to allocate their locally raised funds, the program not only violates the clear mandates of our cases construing article IX, section 15, but also undermines the basic rationale of our state-wide school finance system: effectuating local control over public schools. Thus, . . . we hold that control over locally raised funds is essential to effectuating local control of instruction, and the Pilot Program violates this requirement by stripping local districts of any discretion over the character of instruction participating students will receive at district expense. . . . At base, the defendants argue that the public schools have failed, and the General Assembly should have the power to address that failure through programs such as the Pilot Program. Thus, the defendants contend, the General Assembly has reasonably chosen to confer power over instruction directly upon the parents of public school children and allow them to choose to send their children to private school.
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Our task is not to pass judgment on the wisdom of the General Assembly’s policy choices. Rather, it is solely to determine whether those policy choices comport with constitutional requirements. Our analysis of article IX, section 15 reveals that the framers sought to empower the electors in each school district, including the parents of public school students, with control over instruction through the creation of local school boards which would represent the will of their electorate. If the General Assembly wants to change this fundamental structure, it must either seek to amend the constitution or enact legislation that satisfies the mandates of the Colorado Constitution. We hold that the Pilot Program as enacted by the General Assembly conflicts clearly and irreconcilably with the Colorado Constitution, and the plaintiffs have met their burden of proving the program is unconstitutional beyond a reasonable doubt. For the reasons given above, we hold that the Colorado Opportunity Contract Pilot Program violates the local control provisions of article IX, section 15 of the Colorado Constitution. Accordingly, we affirm the judgment of the trial court and return the case to that court for further proceedings consistent with this opinion.
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Functions of Education Agencies
Functions of public agencies can generally be classified as (1) legislative, (2) executive, and (3) judicial (or quasi-judicial). As agencies of government, both state and local educational authorities have these basic powers. Administration encompasses the rule-making and adjudication processes and incidental powers, such as coordinating, supervising, investigating, prosecuting, advising, and declaring.38 The exercise of administrative functions may be reviewed by the courts to determine if duties have been carried forth within the scope of law and whether proper procedures have been followed.
DELEGATION OF LEGISLATIVE POWERS Legislative functions of the state agency include the promulgation of rules and regulations made pursuant to and within the scope of statute.
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The legislative functions performed by state agencies have been justified on the grounds that the agency was merely “filling in the details” within the meaning of general statute.39 In the public interest, it is said the state agency should not have legislative powers, because agency officials are not direct representatives of the people with constitutionally sanctioned lawmaking prerogative. This is a basic tenet of representative government recognized early by John Locke. In his treatises on civil government, he said: The legislature cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it over to others. . . . [N]obody else can say other men shall make laws for them; nor can they be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them.40
Exclusive powers of the legislature should not therefore be delegated to subordinate agencies. In clarification of this theory of government, a Michigan court has said: This is not to say, however, that a subordinate body or official may not be clothed with authority to say when the law shall operate, or to whom, or upon what occasion, provided, however, that the standards prescribed for guidance are as reasonably precise as the subject matter requires or permits.41
Davis maintains, though, that formulations by state courts that attempt to circumscribe the legislative function of subordinate agencies are largely without substance.42 Although generally it appears that most courts seek to restrain too broad a delegation in order to prevent arbitrary use of uncontrolled power by subordinate officials, the actual legal theory and its implementation by the courts is sometimes difficult to follow. Basically, the theory of delegation appears to have been justified on the grounds of “adequacy of standards.” Does the statute provide sufficient delineation of the particular requirement or prohibition so that in light of the surrounding facts and circumstances the agency can ascertain, interpret, and implement the true purpose of the act? The legislature must prescribe a “reasonably adequate standard.”43 Some courts maintain that “definite standards are indispensable, not only to avoid a delegation of the essential legislative power, but to guard against an arbitrary use of the delegated
administrative authority.”44 Limitations on legislative delegation to subordinate agencies may have been best described by a Washington court that said: The legislature may delegate these legislative controls to an administrative agency of the state; provided, in so doing, it defines what is to be done; the instrumentality which is to accomplish it; and the scope of the instrumentality’s authority in so doing, by prescribing reasonable administrative standards.45
This statement probably represents the prevailing view of the courts, but the doctrine of delegation is one that must be treated as highly flexible. Courts, for example, tend to restrict agency prerogatives in the area of taxation, property rights, or individual civil rights. On the other hand, state educational agencies may have broad latitude in dealing with regulation of purely educational matters, such as school district organization. For example, a Wisconsin statute was contested as being unconstitutional because it authorized the state school superintendent to merge certain school districts of low assessed valuation with contiguous school districts. The Wisconsin Supreme Court said that “the power to exercise discretion in determining whether such districts shall be altered . . . may be delegated without any standard whatsoever to guide in the exercise of the power delegated.”46 The tendency in recent years has been for the courts to follow a much more lenient policy toward delegation of legislative power.47 Changes in the nature of modern government and the increasing complexity of society necessitate that public agencies have more general authority to assume broader prerogatives. As it now stands, the delegation principle is still applicable to the state educational process, and it remains in use to prevent unconstitutional usurpation of unauthorized powers, but it is much less pervasive than before. The rule today as expounded by state courts is best exemplified by a New York court48 that quoted with approval the standard established by the U.S. Supreme Court, which said that a legislative body “does not abdicate its functions when it describes what job must be done, who must do it, and what is the scope of his authority. In our complex economy, that, indeed, is frequently the only way in which the legislative process can go forward.”49
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Functions of Education Agencies
Although the rationale of the courts continues to follow the delegation doctrine, it should be observed that the proper delegation and a guarantee against arbitrary action by agencies cannot be assured through the specification of standards in legislative declarations. Protection against inappropriate action and injustice in education are to be found more in procedural safeguards and various checks and balances, the most effective of which is, of course, justification of the action to the voters and taxpayers.
Statute Giving Superintendents Authority to Transfer Territory Among School Districts Is an Unconstitutional Delegation of Legislative Power
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 Supreme Court of Montana, 2000. 15 P.3d 447.
Justice WILLIAM E. HUNT, Sr. delivered the Opinion of the Court. Lame Deer High School District appeals the decisions of the Thirteenth Judicial District Court, . . . which reversed the decisions of the State Superintendent and affirmed the County Superintendents’ decisions to grant a transfer of territory from Lame Deer High School District. We reverse the decisions of the District Courts. The appellants raise several issues, but we find the dispositive issue on appeal to be whether the school territory transfer statute, § 20-6-320, MCA, is an unconstitutional delegation of legislative power. Lame Deer High School District (LDHSD) was created in 1993 after extensive hearings and testimony. In February of 1991, after petitions were filed to create the new district, the County Superintendents of Schools of both Big Horn
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and Rosebud Counties held hearings. After both County Superintendents denied the petitions to create LDHSD, the State Superintendent of Public Instruction issued a notice of hearing, consolidated the appeals, and an independent hearing examiner conducted further hearings on the matter. The hearing examiner issued an order; the parties were allowed to file exceptions and present oral arguments. On November 9, 1993, after consideration of this record, the State Superintendent issued her order creating LDHSD. . . . LDHSD includes land from the Colstrip and Hardin High School Districts in both Rosebud and Big Horn Counties, including lands within and outside of the borders of the Northern Cheyenne Reservation. The territories proposed for transfer in this consolidated case border the Northern Cheyenne Indian Reservation on three sides. Transferring both the Rosebud and Big Horn territories from LDHSD would leave the district with only $161,000 in taxable valuation, all within the Northern Cheyenne Indian Reservation. In 1994, individuals residing in both Rosebud and Big Horn Counties, but outside of the Northern Cheyenne Indian Reservation (collectively “Respondents”), petitioned their respective County Superintendents of Schools requesting a territory transfer from LDHSD back to the Colstrip and Hardin High School Districts. Both County Superintendents of Schools held hearings, and both granted the Respondents’ requests to transfer territory from LDHSD pursuant to § 20-6-320, MCA (1993). LDHSD appealed these decisions to the State Superintendent of Public Instruction, who reversed the County Superintendents’ decisions. From that determination, Respondents appealed to their respective District Courts. Both District Courts reversed the State Superintendent’s decisions. LDHSD now appeals from the District Courts’ decisions. . . . The dispositive issue on appeal is whether § 20-6-320, MCA, which gives authority to county superintendents of schools to grant or deny petitions to transfer territory among school districts, is an unconstitutional delegation of legislative power. Our review of issues involving constitutional law is plenary. . . . A statute, however, is presumed to be constitutionally valid. . . . The party challenging the constitutionality of a statute has the burden of overcoming this presumption. . . .
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In general, this Court does not consider issues raised for the first time on appeal. . . . It appears, however, that substantial rights of the litigants are at stake here. Their school district boundaries and tax burden have been affected by a potentially unconstitutional delegation of power to the County Superintendents. . . . LDHSD argues that the County Superintendent’s change of the boundaries of LDHSD was an exercise of legislative power. We have previously held that the authority to alter school district boundaries is legislative in nature. The authority to make school district boundaries is entirely within the power of the legislature. . . . Section 20-6-320, MCA, grants local county superintendents the power to transfer territory from one school district to another. Section 206-320, MCA, gives the county superintendents the authority to alter the boundaries of school districts, constituting a delegation of legislative power. The legislature may constitutionally delegate its legislative functions to an administrative agency, but it must provide, with reasonable clarity, limitations upon the agency’s discretion and provide the agency with policy guidance. . . . Article III, Section 1, of the 1972 Montana Constitution (formerly Article IV, Section 1, 1889 Montana Constitution) provides: Separation of powers. The power of the government of this state is divided into three distinct branches— legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.
In Bacus v. Lake County (1960), 138 Mont. 69, 354 P.2d 1056, we set the standard for a delegation of legislative power. We stated the rule as follows: The law-making power may not be granted to an administrative body to be exercised under the guise of administrative discretion. Accordingly, in delegating powers to an administrative body with respect to the administration of statutes, the legislature must ordinarily prescribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary and uncontrolled discretion with regard thereto, and a statute or ordinance which is deficient in this respect is invalid.
Bacus, 138 Mont. at 78, 354 P.2d at 1061. A statute granting legislative power to an administrative agency will be held to be invalid if the legislature has failed to prescribe a policy, standard, or rule to guide the exercise of the delegated authority. If the legislature fails to prescribe with reasonable clarity the limits of power delegated to an administrative agency, or if those limits are too broad, the statute is invalid. . . . LDHSD argues that the statute’s delegation of power is unconstitutional because it gives the county superintendents unfettered discretion in determining whether to transfer territory. Further, the statute’s only directive is that the decision must be based on the effects of a transfer on both those living in the territory proposed for transfer and those living in the remaining territory. LDHSD argues that the legislature must give more guidance than this broad discretionary language. Respondents counter that the detailed procedure involved in petitioning for a territory transfer expressly constrains the county superintendents’ ability to act. The legislature has established a number of conditions which must be satisfied before a petition may be considered by a county superintendent of schools. Satisfaction of these conditions, however, does not require granting of a petition. . . . This statute’s only directive on whether to grant or deny a petition is that “the decision must be based on the effects that the transfer would have on those residing in the territory proposed for transfer as well as those residing in the remaining territory of the high school district.” Section 20-6-320(6), MCA (1993) . . . The territory transfer statute does not constrain a county superintendent’s discretion in whether to grant or deny a transfer. The decision is left up to the county superintendent’s unguided judgment. Although this statute sets forth some criteria, the satisfaction of these conditions does not limit a county superintendent’s discretion in granting or denying a petition once the procedural requirements have been met. This statute fails to provide any checks on the discretion of the county superintendent of schools in deciding whether to grant a territory transfer. The statute’s only directive is that the county superintendent should make the decision based on the effects felt by those transferred and those remaining. Section 20-6-320(6),
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Functions of Education Agencies
MCA (1993). The legislature has provided no criteria for balancing the effects felt by the parties involved in a school district territory transfer. Instead, the decision is left solely to the whim of the local county superintendents. It is this broad grant of discretion to a county superintendent of schools, unchecked by any standard, policy or rule of decision, that renders the territory transfer statute unconstitutional. In Bacus, we stated that “the standard must not be so broad that the officer or board will have unascertainable limits within which to act.” Bacus, 138 Mont. at 81, 354 P.2d at 1062. If the legislature had limited a county superintendent to the role of fact finder or if the legislature had set forth the specific criteria to be weighed when deciding to grant or deny a petition, the statute would have conformed to constitutional requirements. We hold that § 20-6-320, MCA, is an unconstitutional delegation of legislative power. The decisions of the District Courts are reversed.
CASE NOTES 1. “The Supreme Court of Nebraska has defined the legislature’s power to delegate authority as follows: The law appears to be well settled that the Legislature may properly delegate authority to an executive or administrative agency to formulate rules and regulations to carry out the expressed legislative purpose, or to implement such expressed purpose in order to provide for the complete operation and enforcement of the statute. The purpose of the delegation of authority ordinarily must be limited by express standards which have the effect of restricting the actions of the agency to the expressed legislative intent. . . .
The difference between a delegation of legislative power and the delegation of authority to an administrative agency to carry out the expressed intent of the legislature and the details involved has long been a difficult and important question. The increased complexity of our social order, and the multitude of details that necessarily follow, has led to a relaxation of the specific standards in the delegating statute in favor of more general ones where a specialized state agency is concerned. It is almost impossible for a legislature to prescribe all the rules and regulations necessary for a specialized agency to accomplish the legislative purpose. The delegation of authority
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to a specialized department under more generalized standards has been the natural trend as the need for regulation has become more evident and complex. . . .” School District No. 8 of Sherman County v. State Board of Education, 176 Neb. 722, 127 N.W.2d 458 (1964). 2. In a Kentucky case concerning the constitutionality of the delegation of legislative power to agencies in general and county boards of education in particular, the court said: It has been suggested that the statute in this respect . . . is unconstitutional as being a delegation of legislative power to the several county boards of education. Such bodies may and do have conferred upon them legislative authority in a degree, for rules and regulations partake of that function. But delegation of legislative power in relation to constitutional limitations means delegation of discretion as to what the law shall be, and does not mean that the legislature may not confer discretion in the administration of the law itself. . . . Many are the instances where powers more nearly approaching the legislative prerogative than this have been vested in executive or administrative agencies and sustained as valid. This authority given the school boards is administrative and not legislative, and the act does not offend the Constitution in this regard. Board of Education of Bath County v. Goodpaster, 260 Ky. 198, 84 S.W.2d 55 (1935).
3. An Illinois court has said that the legislature may not delegate legislative authority but it may “give an administrative body discretionary powers to decide an issue if it establishes standards under which that discretion may be exercised.” People ex rel. Community Unit School District No. 1 v. Decatur School District No. 61, 45 Ill. App.2d 33, 194 N.E.2d 659 (1963). 4. The Illinois Supreme Court has held that the Superintendent of Public Instruction of Illinois is the head of the public school system of that state and is vested by the General Assembly with the duty of establishing standards in education, along the lines delineated by statute. Games v. County Board of School Trustees of McDonough County, 13 Ill. 2d 78, 147 N.E.2d 306 (1958). 5. A Massachusetts court determined that the state commissioner of education has the power to compel local school officials to produce information by racial census. The court said that the commissioner had the implied authority to do in an ordinary and reasonable
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manner those things required for the efficient exercise of powers and satisfactory performance of duties. School Committee of New Bedford v. Commissioner of Education, 349 Mass. 410, 208 N.E.2d 814 (1965).
ADMINISTRATIVE OR EXECUTIVE FUNCTIONS Although functions of educational agencies are difficult to compartmentalize, it is possible to identify certain ones that may be more readily described as executive rather than legislative or judicial. In fact, the organizational structures of state educational agencies tend to adhere to such definition in that the legislative functions are usually vested in a state board of education, the executive functions in a chief state school officer and his or her staff (the state department of education), and the quasi-judicial functions within the authority of either or both. A similar situation exists at the local level, where the board makes policy and the superintendent implements it, with both sometimes exercising quasi-judicial functions. The distinction between legislative and executive acts can be expressed as the difference between the general and the particular: A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of policy, the making and issue of specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy and expediency of administrative practice.50
Activities of the educational agency that may be classified as purely executive are declaring and enforcing policy as well as advising and supervising implementation of policy. One can easily identify such activities as they are performed daily in state agencies; for example, when a policy is established, it must be properly interpreted and conveyed to the local school district administrators, then advice may be given and certain supervisory activities may be followed to assist in implementation. Should problems arise, steps must be taken to ensure enforcement of the particular policy. Executive actions can also be viewed in the more commonly used legislative categories of ministerial and discretionary functions. “Ministerial” refers to those required duties performed by the administrator for which no exercise of
judgment is permitted. “Discretionary” functions, as noted earlier, are judgmental and represent exercise of substantial administrative prerogative. An official can pass ministerial functions to a subordinate, but cannot delegate duties that are discretionary in nature. Discretionary functions, of course, represent an area of major overlap with the broader quasi-judicial functions of agencies. The maxim delegatus non potest delegare has, on the whole, been more strictly enforced when applied to subdelegation than at the primary or legislative level of delegation. In other words, courts tend to examine more critically the internal delegation of a discretionary function from the state superintendent down to an assistant than from the legislature to the agency itself. For example, where statute vests a specific discretionary power in a state board, the board cannot subdelegate to one board member or to some other officer, such as the state superintendent. Similarly, statutory discretion vested in the state superintendent cannot be redelegated to a deputy or assistant. Ministerial functions, on the other hand, can be subdelegated. As is true at the state level, a local school board cannot delegate discretionary functions, but it may delegate ministerial functions. The exact definition between discretionary powers that cannot be delegated and ministerial powers that can be delegated, is, however, indistinct. A good illustration is provided by a 1987 Colorado case in which the power to dismiss personnel was delegated. Normally, personnel matters involving hiring and firing of employees are considered to be discretionary or quasi-judicial powers that cannot be delegated; yet the high court of Colorado upheld the dismissal of a school bus driver by the school district’s director of business services, because the court found that such discharges were administrative matters and did not constitute action “significantly related to the policy-making duties” of the school district.51 Will has pointed out that there is a discernible trend toward the separation of the legislative function and the executive powers in state educational administration. He describes the pattern in this way: Students of state educational administration commonly hold that the central education agency should consist of a state board of education, a chief state school officer, and the necessary staff.
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Functions of Education Agencies The state board of education is looked upon as the agency’s legislative policy-making body, the chief state school officer as the agency’s executive officer, and the organized staff as the agency’s work force. A virtually complete separation of legislative and executive powers at the administrative level is intended under this pattern.52
The powers and duties of the state board of education, the chief state school officer, and the state department of education vary from state to state; however, general rules governing the delegation of legislative powers, the exercise of discretionary authority, and the quasi-judicial role of central state agencies are carefully circumscribed by court decisions.
QUASI-JUDICIAL FUNCTIONS In their tripartite capacity, administrative agencies hand down many more decisions affecting individuals than do the formal courts of this country. Decisions by educational tribunals form an important source of law under which education operates. Authority for decisions by educational tribunals may be found at federal, state, and local levels. At the federal level, statutes often vest the U.S. Commissioner of Education with quasi-judicial authority to render decisions in disputes over federal grant processes and procedures that may have direct impact on individuals or states. At the state level, quasi-judicial authority may be given to state boards of education, to state superintendents, or, in some cases, to other legislatively authorized bodies. New Jersey and New York are good examples of states in which such powers are vested in the chief state school officer. The state commissioner of education in New Jersey has the authority to decide cases involving internal administrative operations of the public schools of that state. A New Jersey court has said that a statute providing that the state commissioner shall decide all controversies under the school laws of the state is evidence of legislative intent to set up a comprehensive system of internal appeals with broad powers. Such an authority vested in administrative tribunals ensures that controversies are justly disposed of in accordance with the law.53 In another New Jersey case illustrating the judicial function of the state commissioner of education, the court said that the commissioner must
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enforce all rules and regulations prescribed by the state board and decide all questions arising under rules and regulations of the state board.54 Determinations by these tribunals are binding on the parties involved and serve additionally to establish a type of quasi-judicial stare decisis within the agencies’ jurisdiction. Agencies, in exercise of their judicial powers, are required generally to merely provide fair treatment to the parties involved. Some states, through administrative procedure acts, may provide a specific definition of the requirements of fairness, and, when administrative tribunals are dealing with disputes involving constitutional interests, more elaborate procedures are necessary. In the absence of statutory or constitutional restraints, however, the courts have been very liberal in allowing educational tribunals to establish their own procedures. In so doing, courts more or less adhere to a requirement similar to the English doctrine of audi alteram partem of natural justice that requires tribunals to adjudicate fairly. Fairness is not always easily defined, but may be roughly equated to reasonableness and good faith. These two standards are not the same, but may be viewed as complementary. It has been said that “some of the most honest people are the most unreasonable; and some excesses may be sincerely believed in but yet be quite beyond the limits of reasonableness.”55 It is true, however, that the actions of one conducting a hearing could be so unreasonable as to be arbitrary and capricious and as such appear to be taken in bad faith. The objective is for justice to be rendered by tribunals, whether they are courts of law or administrative agencies. When persons stand before tribunals, there is an implicit assumption that the tribunal will act “neutrally in a principled way” because there is a natural right of justice for requiring that tribunals not help nor hinder one side more than the other.56 Fairness of a hearing may also be explained in terms of equality before the law. It is expected that persons coming before a tribunal will be treated equally, and the determination favorable or unfavorable toward one or the other will be ascribed on the merits of the case. Equality, as an aspect of fairness, requires that “rules of law shall be applied according to their terms without regard to the person(s) involved. . . .” This equal
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application of laws is guaranteed not only by common law, but also by constitutional provisions guaranteeing due process.57 A particularly perplexing problem is presented when the tribunal is itself a party to the action that comes before it. Because school boards have tripartite jurisdiction—legislative, executive, and quasi-judicial—it is not uncommon for a board to sit in judgment in its own cause. Because of the nature of our governmental system, however, this problem cannot be avoided. This particular issue, whether a school board can sit in judgment when it is a party in the dispute, has been litigated before the U.S. Supreme Court. The Court held that the mere fact that a public agency is, as a body, a party to a dispute before it is not alone an indication of bias sufficient to violate due process.58
A School Board Is Assumed To Be an Impartial Tribunal Unless Bias Is Shown
Hortonville Joint School District No. 1 v. Hortonville Education Association Supreme Court of the United States, 1976. 426 U.S. 482, 96 S.Ct. 2308.
Mr. Chief Justice BURGER delivered the opinion of the Court. We granted certiorari in this case to determine whether School Board members, vested by state law with the power to employ and dismiss teachers, could, consistent with the Due Process Clause of the Fourteenth Amendment, dismiss teachers engaged in a strike prohibited by state law. The petitioners are a Wisconsin school district, the seven members of its School Board, and three administrative employees of the district. Respondents are teachers suing on behalf of all teachers in the district and the Hortonville Education Association (HEA), the collective-bargaining agent for the district’s teachers.
During the 1972–1973 school year Hortonville teachers worked under a master collectivebargaining agreement; negotiations were conducted for renewal of the contract, but no agreement was reached for the 1973–1974 school year. The teachers continued to work while negotiations proceeded during the year without reaching agreement. On March 18, 1974, the members of the teachers’ union went on strike, in direct violation of Wisconsin law. . . . On April 1, most of the striking teachers appeared before the Board with counsel. Their attorney indicated that the teachers did not want individual hearings, but preferred to be treated as a group. Although counsel agreed that the teachers were on strike, he raised several procedural objections to the hearings. He also argued that the Board was not sufficiently impartial to exercise discipline over the striking teachers and that the Due Process Clause of the Fourteenth Amendment required an independent, unbiased decisionmaker. . . . The sole issue in this case is whether the Due Process Clause of the Fourteenth Amendment prohibits this School Board from making the decision to dismiss teachers admittedly engaged in a strike and persistently refusing to return to their duties. Respondents’ argument rests in part on doctrines that have no application to this case. They seem to argue that the Board members had some personal or official stake in the decision whether the teachers should be dismissed . . . and that the Board has manifested some personal bitterness toward the teachers, aroused by teacher criticism of the Board. . . . [T]he teachers did not show, and the Wisconsin courts did not find, that the Board members had the kind of personal or financial stake in the decision that might create a conflict of interest, and there is nothing in the record to support charges of personal animosity. . . . The only other factor suggested to support the claim of bias is that the School Board was involved in the negotiations that preceded and precipitated the striking teachers’ discharge. Participation in those negotiations was a statutory duty of the Board. The Wisconsin Supreme Court held that this involvement, without more, disqualified the Board from deciding whether the teachers should be dismissed:
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Functions of Education Agencies The board was the collective bargaining agent for the school district and thus was engaged in the collective bargaining process with the teachers’ representative, the HEA. It is not difficult to imagine the frustration on the part of the board members when negotiations broke down, agreement could not be reached and the employees resorted to concerted activity. . . . They were . . . not uninvolved in the events which precipitated decisions they were required to make. . . .
Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not, however, disqualify a decisionmaker. . . . Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not “capable of judging a particular controversy fairly on the basis of its own circumstances.” . . . Due process, as this Court has repeatedly held, is a term that “negates any concept of inflexible procedures universally applicable to every imaginable situation.” . . . Determining what process is due in a given setting requires the Court to take into account the individual’s stake in the decision at issue as well as the State’s interest in a particular procedure for making it. . . . Our assessment of the interests of the parties in this case leads to the conclusion that . . . the public interest in maintaining uninterrupted classroom work required that teachers striking in violation of state law be discharged. The teachers’ interest in these proceedings is, of course, self-evident. They wished to avoid termination of their employment, obviously an important interest, but one that must be examined in light of several factors. Since the teachers admitted that they were engaged in a work stoppage, there was no possibility of an erroneous factual determination on this critical threshold issue. . . . The Board’s decision whether to dismiss striking teachers involves broad considerations, and does not in the main turn on the Board’s view of the “seriousness” of the teachers’ conduct or the factors they urge mitigated their violation of state law. It was not an adjudicative decision, for the Board had an obligation to make a decision based on its own answer to an important question of policy: What choice among the alternative
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responses to the teachers’ strike will best serve the interests of the school system, the interests of the parents and children who depend on the system, and the interests of the citizens whose taxes support it? . . . State law vests the governmental, or policymaking, function exclusively in the School Board, and the State has two interests in keeping it there. First, the Board is the body with overall responsibility for the governance of the school district; it must cope with the myriad day-to-day problems of a modern public school system including the severe consequences of a teachers’ strike; by virtue of electing them the constituents have declared the Board members qualified to deal with these problems, and they are accountable to the voters for the manner in which they perform. Second, the state legislature has given to the Board the power to employ and dismiss teachers, as a part of the balance it has struck in the area of municipal labor relations; altering those statutory powers as a matter of federal due process clearly changes that balance. Permitting the Board to make the decision at issue here preserves its control over school district affairs, leaves the balance of power in labor relations where the state legislature struck it, and assures that the decision whether to dismiss the teachers will be made by the body responsible for that decision under state law. Respondents have failed to demonstrate that the decision to terminate their employment was infected by the sort of bias that we have held to disqualify other decisionmakers as a matter of federal due process. A showing that the Board was “involved” in the events preceding this decision, in light of the important interest in leaving with the Board the power given by the state legislature, is not enough to overcome the presumption of honesty and integrity in policymakers with decisionmaking power. . . . Accordingly, we hold that the Due Process Clause of the Fourteenth Amendment did not guarantee respondents that the decision to terminate their employment would be made or reviewed by a body other than the School Board. The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.
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CASE NOTES 1. The decision of the Commissioner of Education of New York, acting in a quasi-judicial capacity in interpreting a statute, is to be given great weight by the courts, and unless irrational or unreasonable, the decision will be upheld. Board of Education of Roslyn Union Free School District v. Nyquist, 90 Misc.2d 955, 396 N.Y.S.2d 567 (1977). 2. Administrative agencies in quasi-judicial hearings have traditionally not been held to the intricate procedural requirement of the courts. However, there are fundamental requirements of fairness that must be observed. A West Virginia court had this to say concerning the conduct of hearings by administrative agencies: An administrative body, clothed by law with quasijudicial powers, must never depart from those elemental principles of discreetness and circumspection which our system of law requires in all tribunals which purport to conduct trials. . . . There was a time in the history of English jurisprudence when a felon was not entitled to have the assistance of an attorney at law, but in America, the very word “hearing,” both in common and legal parlance, implies some kind of trial, formal or informal, and presupposes permission to have legal aid if desired. State ex rel. Rogers v. Board of Education of Lewis County, 125 W.Va. 579, 25 S.E.2d 537 (1943).
3. Legislation in Texas has been interpreted to mean that all administrative steps should be taken to resolve a dispute before appeal can be taken to the courts. Exception to this rule is only found where an action involves a question of taxation, City of Dallas v. Mosely, 286 S.W. 497 (Tex. Civ. App. 1926), if the facts are undisputed and the issue is one purely of law and not of education; in such instances, direct access to the courts is available. Alvin Independent School District v. Cooper, 404 S.W.2d 76 (Tex. Civ. App. 1966). 4. A Maryland court has held that the state board of education has the last word on any matter concerning educational policy or administration of the system of public instruction; however, it cannot finally decide pure questions of law nor exercise its visitatorial power fraudulently, in bad faith, or in breach of trust. Where the Maryland State Board of Education set a rule for a county board of education requiring fingerprint cards of all employees to be submitted to local police, the
court upheld the action of the state board as being a valid exercise of its authority. Wilson v. Board of Education of Montgomery County, 234 Md. 561, 200 A.2d 67 (1964). 5. A Missouri court has held that, where four local school districts were unable to reorganize because of the refusal of one to discuss the matter, the state board of education was vested with exclusive jurisdiction to make the decision for the board, and once this decision by the state board was approved by the voters, the school district became officially and legally organized. Eagleton ex rel. Reorganized School District R-I of Miller County v. Van Landuyt, 359 S.W.2d 773 (Mo. 1962).
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Judicial Review of School Board Actions
Whether the administrative actions be legislative, executive, or judicial, the courts agree that school boards or officials may exercise those powers expressly granted by statute, and those fairly and necessarily implied: The rule respecting such powers is that, in addition to the powers expressly given by statute to an officer or board of officers, he or it has by implication such additional powers as are necessary for the due and efficient exercise of the powers expressly granted or which may be fairly implied from the statute granting the express powers.59
Although some flexibility in discretion is necessary, indeed indispensable, for the schools to operate efficiently, the courts cannot usurp the legislative function by too broad an interpretation of administrative powers.60 In challenging the exercise of administrative powers by an educational agency, express or implied, the aggrieved parties are required by the courts to exhaust their administrative remedies before they are allowed to bring an action before the courts. Such a rule assures the courts that issues have been properly treated at lower levels, within the realm of administrative authority, thus preventing continuous involvement of the courts in educational disputes where legitimate legal controversy is not present. Examples of the hesitancy of courts to intervene until administrative remedies are exhausted may be found in many instances.61
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Judicial Review of School Board Actions
In New York, the state administrative decisions are considered to have substantial weight owing largely to a statute that provides that decisions of the commissioner of education “shall be final and conclusive, and not subject to question or review in any place or court whatsoever.” Although this provision on its face would appear to preclude any judicial intervention, the true “intent” has been interpreted to mean that the decisions of the commissioner would stand so long as they were not arbitrary.62 The general rule of law is probably best expounded by an Illinois court, which stated: A court of review cannot substitute its judgment for the judgment of the administrative tribunal. The question is not simply whether the court of review agrees or disagrees with the finding. . . . It has been said that courts should not disturb administrative findings unless such findings are arbitrary, or constitute an abuse of discretion, or are without substantial foundation in evidence, or are obviously and clearly wrong, or unless an opposite conclusion is clearly evident.63
Although this rule governing judicial review of administrative actions is generally followed by courts across the country, the individual interpretations of the rule are widely variant, ranging from rather strict adherence to what some would consider to be relative disregard. As a matter of fact, courts may exercise their prerogatives to intervene and alter administrative action with several different legal bases. Ministerial actions of government agencies have been successfully challenged under the ancient legal doctrines of nonfeasance, misfeasance, or malfeasance. Failure to perform properly may be remedied by the courts by use of the common law remedy, writ of mandamus. If the aggrieved party is seeking to prevent an inappropriate action, then an injunction may be the appropriate legal remedy. On the other hand, if discretionary actions are in question, then the person challenging the action may proceed from a broader legal basis. As mentioned previously, the fairness and reasonableness of an action are requisite to the appropriate use of the quasi-judicial authority of an agency. More directly, discretionary powers may be viewed quite broadly, and if an agency acts beyond the scope of its powers, it may well be ultra vires. A discretionary power may be abused in either good faith or in bad faith, but in both instances the action may
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be voided by the courts.64 Beyond inquiry into an ultra vires act, judicial intervention may be justifiable in the following situations: 1. A power granted to an agency is not properly applied. Here the courts will seek to determine whether the agency had either express or implied statutory power to perform as it did, and if the statute was broad enough, with possibly a plurality of purposes sufficient to support the action. The court will generally apply certain tests, including seeking to ascertain: (a) the true purpose for the action, (b) the dominant purpose, and (c) if there was an unauthorized or illicit purpose,65 or if the action was taken in bad faith. 2. The agency, official, or tribunal was influenced by considerations that could not have been lawfully taken into account, or it ignored obviously relevant considerations. Plaintiff, though, must show that irrelevant considerations were actually relied upon in the decision. Certainly, if extraneous or irrelevant matters are set out as reasons in support of the decision, then courts may consider the result to be invalid. 3. Prescription of law is not followed in effecting administrative actions. Although most instances that come to mind here involve ministerial functions (e.g., following election procedures or budgetary submission processes), the educational agency’s action may also be challenged if it fails to recognize or appreciate the amplitude of its discretion.66 For example, a state authority may have the statutory power to grant salary increases or increase fringe benefits, but misconstrues and through misunderstanding fails to recognize the discretion. Here, it is not the reasonableness of the decision made by the agency, but the failure of the agency to recognize its power that is judicially questionable. 4. A public education board binds itself through its own regulation in such a way as to constrict or disable itself from fulfilling the primary purposes for which it was created. Where a public body is entrusted by the legislature with certain powers and duties either express or implied for public purposes, the body cannot divest itself of such powers and duties. Regulations or bylaws that effectively thwart statutory intent— for example, by contracting away a power or requiring the exercise of a broad power in a
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restrictive way—may be unreasonable and incompatible with public purpose. Courts do not penalize a state agency for possible error in the exercise of discretion where judgment or opinion of the public officials is in contest. If there are reasonable grounds, the judge has no further duty to inquire. The criterion of reasonableness is not subjective, but objective in the sense that it must be weighed in light of surrounding facts and circumstances. This rule applies to actions of local school agencies as well as to state educational agencies. The Virginia Supreme Court has refused to intervene and question a school division action even if the court would quite probably not have agreed with the result of the decision. The court said: “[W]here there is rational, legal and factual basis for a school board’s administrative determination, the Court will not overturn such decision and substitute its own judgment even if it would have reached a contrary conclusion.”67 The court is concerned with whether the judgment rendered by the board is founded on “rational, legal and factual” information, not whether the court, viewing the same situation and evidence, would have reached a contrary decision. The party who assails a school board’s decision must prove that the board acted arbitrarily and without regard for the evidence, and thus illegally, before a court will upset a board’s decision.68
School District Did Not Abuse Its Discretion When It Decided Not to Provide Bus Transportation for Students
Sioux City Community School District v. Iowa Department of Education Supreme Court of Iowa, 2003. 659 N.W.2d 563.
STREIT, Justice. This dispute began when the Sioux City Community School District decided not to provide
busing for students who live less than two miles from the school. Parents appealed this decision to the Western Hills Area Education Agency (AEA). The AEA found the route students would have to travel was unsafe and therefore reversed the school district’s decision. Both the Department of Education and district court affirmed the AEA’s decision. Because we find the school district did not abuse its discretion in deciding not to provide transportation, we reverse. This case involves a dispute over the provision of transportation for ninety-four students to and from McKinley Elementary School in Sioux City, Iowa. Children who reside at the Regency Mobile Home Park in Sioux City live approximately one mile from their school. . . . . . . The AEA found the route between the mobile home park and the school was not reasonably safe for elementary students to travel. It concluded the school district’s decision to not provide transportation was not a proper discretionary act and ordered the school district to immediately resume transportation services for the students. The school district appealed and both the Iowa Department of Education (Department) and the district court affirmed the AEA’s decision. The school district appeals the decision of the Department claiming it exceeded its authority in ordering the school district to provide transportation. . . . The school district begins by challenging the applicable standard under which the Department has authority to review its decision. The school district’s argument shows a dichotomy of thought. On the one hand, the school district argues there can be no review of its discretionary decisions. On the other hand, the school district states if we review its discretionary decision, we can review only for an abuse of discretion. The Department did not precisely articulate the applicable scope of review for its review of the school district’s decision. In the Department’s decision, and implicitly on appeal, the Department urges the director may determine whether the school district’s decision was reasonable and “exercise [its] own independent judgment and discretion.” The parties disagree over whether substantial credible evidence supports the school district’s decision not to provide transportation. Both parties concede the Department has authority to review the school district’s decision. However, they disagree over the appropriate
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Judicial Review of School Board Actions
standard of review the Department must apply in its review. We begin by briefly explaining the powers of the school district in transportation matters. Iowa Code chapter 285 gives the board of directors of a school district certain duties and powers over the provision of transportation. The school district argues its decision to not provide transportation in this case was a discretionary decision subject to review only for an abuse of discretion. The school district relies upon Iowa Code section 285.1 which provides the board of directors of every school district, shall provide transportation . . . for all resident pupils attending public school, kindergarten through twelfth grade, except that: (a) Elementary pupils shall be entitled to transportation only if they live more than two miles from the school designated for attendance. . . . (d) Boards in their discretion may provide transportation for some or all resident pupils attending public school . . . who are not entitled to transportation. . . . Iowa Code § 285.1(1) (1999).
The code creates only one mandate for the school district. The school district must provide transportation to students who live more than two miles from school. . . . Apart from this requirement, the school district is vested with discretionary authority to decide whether to provide transportation under other circumstances. Iowa Code section 274.1 supports this conclusion stating, “[e]ach school district . . . shall have exclusive jurisdiction in all school matters. . . .” Id. § 274.1. The school district’s decision to not provide transportation was discretionary in nature because the statute states the provision of transportation is discretionary for students living less than two miles from school. . . . In the case before us, the statute giving the school district discretion in the matter of transportation controls the standard we will use to review the school district’s decision. Administrative boards, commissions, and officers have no common law powers. The powers and duties of public office are measured by the terms and necessary implication of the grant of constitutional or statutory authority; in this regard, it has sometimes been stated that public officers have only those powers expressly granted or necessarily implied by statute. . . . 63C Am.Jur.2d Public Officers and Employees § 231, at 670 (1997); 67 C.J.S. Officers § 107, at 378 (2002). . . .
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Nothing in Iowa Code Section 285.12 suggests the scope of the Department’s review of the school district’s decision is de novo, allowing the Department to reverse the school district and substitute its own judgment. No statute gives the Department authority to override the school district’s ultimate decision because it determines the decision was wrong. Rather, where a statute provides for a review of a school district’s discretionary action, the review, by necessary implication, is limited to determining whether the school district abused its discretion. . . . Because the school district has discretion in the provision of transportation and the Department has authority to review decisions made pursuant to such discretion, its review is necessarily limited to the abuse of discretion standard. We can find no statute in the Code of Iowa or in the Iowa Administrative Code which gives the Department more authority upon review than that necessary to determine whether the school district abused its discretion. In applying abuse of discretion standards, we look only to whether a reasonable person could have found sufficient evidence to come to the same conclusion as reached by the school district. . . . In so doing, we will find a decision was unreasonable if it was not based upon substantial evidence or was based upon an erroneous application of the law. . . . Neither we nor the Department may substitute our judgment for that of the school district. . . . The issue is whether the Department properly reviewed the school district’s decision for an abuse of discretion. The Department stated, “Although reasonable minds could differ over the judgment call that the [AEA] was called upon to make,” it went on to say the parents “convinced” the AEA that the school district’s decision was “adverse to the health and safety of the students.” By stating “reasonable minds could differ” over this discretionary decision, the Department conceded there was evidence supporting the school district’s decision. That is, the Department did not review the school district’s action for abuse of discretion but instead made its own judgment based upon the entire record. This conclusion is even more evident by the Department’s statement that the parents “convinced” the AEA the district’s decision was not correct. Such a statement shows the Department, like the AEA before it, considered the entire record and concluded the
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school district’s decision was wrong. The Department did not determine whether a reasonable person could have come to the same conclusion as the school district. The Department’s action exceeded its authority. Under the appropriate standard, a reasonable person could have found substantial credible evidence supporting the school district’s decision. The sidewalk in question was constructed by the City of Sioux City in compliance with all of the applicable laws and ordinances. The school district created the District Traffic Safety Committee to study the area and make recommendations as to the safety of the route for school children. . . . The safety committee members met several times to discuss the area around Gordon Avenue. The committee made visual inspections of the route and examined the traffic volume and patterns. Before making any conclusions, the committee consulted the Department of Motor Vehicle Safety, Department of Transportation, and the City of Sioux City. It discussed the safety of the route with various experts who all determined the area was safe for students to use. The committee made special note of the concerns of the AEA. It discussed numerous possibilities, aside from providing transportation to the students, that might increase the relative safety of the area. The safety committee compared the nature of this particular sidewalk to others in the area that students must walk to get to school. It determined the traffic flow along Gordon Drive was regular, but not excessive, and the speed of the traffic was not extreme. . . . It concluded the distance between the sidewalk and the frontage road did not present any safety concerns. Because some parents complained snow removal was not regular on the sidewalk, the committee examined the maintenance of the area. Although there was one report of snow on the sidewalk preventing the students from using it, the safety committee determined the snow removal overall was reliable and the conditions were not dangerous for the students. Based upon these findings, the committee concluded, as a general matter, this particular sidewalk presents no more danger to the students than any other sidewalk in Sioux City. . . . The superintendent considered and accepted the committee’s findings and recommendations. In determining the school district would no longer provide transportation to these students, the
superintendent considered the following: safety of the students, cost and reimbursement schedules of the State of Iowa, equitable treatment for all students in the Sioux City Community School District, statutory obligations, and the actual conditions of the route along Gordon Drive. The school board voted unanimously supporting the superintendent’s conclusion the route was safe. Given the facts above, it can hardly be argued the school district did not carefully balance competing considerations in exercising its discretion determining whether it should bus these students to and from school. It did not make a denial of the parents’ request without first exploring the situation. In keeping with the findings of the safety committee, the school district made an informed decision and concluded it was not appropriate under the circumstances to provide transportation for these students. Taking into consideration the recommendations for safety improvement made by the commission, the school district determined this route was safe for the students to use. . . . The school district by reason of statute has discretion in its provision of school transportation for students who live less than two miles from school. The Department has authority to review the school district’s discretionary decisions made pursuant to Iowa Code section 285.12. However, by necessary implication, the Department’s review is limited to determining whether the school district abused its discretion. The parents were required to show the school district’s decision was unreasonable and lacked rationality. The Department exceeded its authority by substituting its judgment for that of the school district. The record shows substantial credible evidence upon which a reasonable person could come to the same conclusion as did the school district. As such, we reverse the Department’s order compelling the school district to provide transportation services. Reversed.
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Authority of Interscholastic Organizations
Membership of a school district in an interscholastic organization requires that a certain amount of autonomy of the participating school
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Authority of Interscholastic Organizations
be relinquished in order for the organization to be viable. School districts that volunteer to join must therefore subordinate their authority to some extent to the control of the interscholastic organization. Such organizations are normally nonprofit and privately governed corporations, with boards made up of individuals from participating schools. As a general rule, the regulations of the interscholastic organizations bind the school districts that are in membership. 69 The courts have by-and-large upheld reasonable rules vesting authority in interscholastic athletic associations.70 The courts will, however, overturn association rules that are contrary to good educational policy, or are arbitrary or irrational.71 Litigation frequently arises when athletic associations deny academic eligibility to student athletes. The courts will normally not intervene and substitute their judgment on athletic associations’ rules with regard to academic standards to which student athletes must adhere,72 but rules of athletic associations are subject to state and federal constitutions and cannot infringe on constitutional rights of students and parents. The fact that these associations are voluntary and established as private corporate entities does not prevent the courts from finding sufficient “state action” to subject their rules to state and federal constitutional restraints. Although students do have a constitutional right to attend public schools,73 they do not necessarily have a right to participate in interscholastic athletics;74 however, there are exceptions to this prevailing view. For example, the Montana Supreme Court has held that students clearly have a constitutional right to participate in extracurricular activities;75 however, the students’ rights of participation are not absolute, and such rights can be denied by reasonable rules of eligibility promulgated by either the school district and/or the interscholastic association.76 Where a student was denied participation in basketball because of a high school athletic association rule requiring attendance in the school for one semester prior to playing, the Montana Supreme Court ruled that the delegation of such rule-making authority to the athletic association by the school district was not an illegal delegation, and that such a rule did not violate the student’s constitutional rights.77
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Yet, with regard to delegation, the Iowa Supreme Court has rejected the validity of a general delegation of the regulation of student eligibility to interscholastic athletic associations.78 The Iowa court observed that the school boards’ rulemaking involves the exercise of judgment and discretion. The functions involving judgment and discretion that are delegated to local school boards must be exercised by the school board only and cannot be delegated to another organization, body, or board. Only ministerial powers, those powers not requiring the exercise of judgment, can be delegated. The Iowa Court said that while it is a general rule that powers conferred upon a public board or body cannot be delegated, yet a public corporation or municipality or instrumentality of government may, like a private corporation or person, do its ministerial work by agents or committees. . . . Where the act to be done involves judgment or discretion, it cannot be delegated to an agent or committee.79
Further, the Iowa court laid down the rule of law as follows: “. . . a school district or other local school organization cannot lawfully delegate to others, whether to one or more of its members, or to any school officer, or to any other board, the exercise of any discretionary power conferred by law.”80 The Iowa court concluded that the legislature clearly meant for schools to participate in interscholastic events sponsored by qualifying organizations, but from that, it could not be inferred that schools could turn over their rule-making authority to such organizations.81 Thus, whether the school district can assign away its authority to an interscholastic organization may depend on the technicality of not only the relevance and reasonableness of the delegation, but also whether the functions of the organization can be characterized as merely ministerial or involving the exercise of judgment or discretion of the school board as contemplated by the legislature. A collateral issue of importance to the question of valid authority is whether an incorporated nonprofit interscholastic athletic association is involved to a sufficient degree in “state action” as to be subject to the strictures of Section 1983 of the Civil Rights Act or Title IX. If there is state action, the interscholastic
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association is vulnerable to federal statutory and constitutional claims. In 2001, the U.S. Supreme Court held in Brentwood Academy v. Tennessee Secondary Schools Athletic Ass’n82 that such associations’ activities entail state actions, as does a local school board, and are therefore to be treated as any other state agency or local school district in civil rights actions. After this initial Brentwood case was resolved, with the ruling by the Supreme Court that the Tennessee Secondary Schools Athletic Association (TSSAA) had the legal attributes of the state and its acts constituted “state action,” another controversy between the two parties arose whereby the Brentwood private school’s football coach was accused by the TSSAA of recruiting violations.83 Brentwood sued claiming that the sanctions imposed by the TSSAA against the school constituted “state action” denying the school its First Amendment free speech rights and Fourteenth Amendment due process interests. The TSSAA countered that its anti-recruiting rule was both reasonable and rational. The Supreme Court found for the TSSAA holding that the association’s rules and their implementation did entail “state action” bringing the issue under the First and Fourteenth Amendments; however, Brentwood’s claims fell far short of the denial of either the First or Fourteenth Amendment. The Court observed that “Brentwood made a voluntary decision to join TSSAA and to abide by its recruiting rules,” yet then failed to abide by such rules. Therefore, sanctions by the TSSAA against Brentwood do not offend or even touch on the denial of First Amendment free speech. Similarly, the school’s due process interests were not offended as the record indicated that the TSSAA had engaged in extensive communications with Brentwood officials and had made its decision after due deliberations. Thus, even though the TSSAA actions were, in fact, “state actions,” such did not offend the protections of the First and Fourteenth Amendments.84 This issue of “state action” is treated further in a later chapter that is devoted to the federal civil rights legislation and the Equal Protection Clause of the U.S. Constitution. The following Grabow case illustrates what is probably the prevailing view of the courts regarding the validity of the delegation of
school board authority to interscholastic athletic organizations.
School District’s Membership in High School Athletic Association, Under Which the District Consented to Abide by Association Rules, Did Not Constitute an Unlawful Delegation of School Board Power.
Grabow v. Montana High School Association Supreme Court of Montana, 2002 312 Mont. 92, 59 P.3d 14.
REGNIER, Justice. Rob Grabow sought a declaratory judgment and injunctive relief against the Montana High School Association (the “MHSA”) in the First Judicial District Court, Lewis and Clark County. . . . [T]he District Court ruled against Grabow. Grabow appeals and we affirm. . . . For purposes of this appeal, we will summarize the facts . . . Grabow enrolled at Park High School in Livingston, Montana, in the fall of 1999. After he enrolled, the MHSA informed Grabow that he could not participate in basketball because of its semester rule. The semester rule essentially states that students each have eight consecutive semesters within which they may participate in MHSA contests. Grabow, the MHSA determined, did not meet this requirement. The MHSA is a nonprofit association that has existed since 1921. It supervises, regulates and administers interscholastic activities between its member high schools. Delegates from the member schools meet each year to conduct the business of the MHSA, which a staff and sevenmember Board of Control then administer. The MHSA classifies schools into four classifications; each of which, along with the Montana School Boards Association, Office of Public Instruction and Governor, elects one member of the Board of Control. All public and private high schools in Montana that the Montana Board of Public Education
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Authority of Interscholastic Organizations
accredits may join the MHSA. Membership is voluntary and has consisted of 182 public and private schools during the relevant times of this appeal. Park High School, which Grabow attended, is a member of the MHSA. The Board of Trustees (the “Board”) for the school district in which Park High School is located meets each year to consider and vote on whether to rejoin the MHSA. Each year, the Board renews its membership by signing a membership form. Before the MHSA’s annual meeting, the Board receives and considers any proposed changes to the MHSA’s rules and regulations. The Board then instructs its representative on how to vote. As a member of the MHSA, the Livingston School District also had the power to submit proposed changes at the MHSA;s annual meeting. Grabow filed a complaint with the District Court seeking relief from the MHSA’s decision to declare him ineligible to play basketball. . . . Grabow now appeals. . . . May the Livingston School District contract with the MHSA to consent to be bound by the MHSA’s rules? The Montana Constitution vests school board trustees with the power to supervise and control the schools in their district. See Mont. Const. Art. X, § 8. The Montana Code, in turn, authorizes trustees to adopt policies and perform any duties necessary to carry out their legal requirements. The pivotal question in this appeal is what powers do trustees have regarding interscholastic athletics. Grabow argues, however, that the Board unlawfully delegates the authority to govern interscholastic activities by violating a student’s right to administrative appeal. The Board allegedly does this by binding itself to the MHSA’s rules and decisions. Grabow points out that § 20-3-210, MCA, states that the county superintendent “shall hear and decide all matters of controversy . . . as a result of decisions of the trustees.” Under the MHSA’s structure, however, students have no mechanism of administrative appeal from an MHSA decision. Grabow contends that the Board thus divests students of their right to review by leaving final decision-making authority with the MHSA. Because the legislature never granted school boards the power to delegate decision-making authority to the MHSA, Grabow asserts that this delegation is unlawful.
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Other jurisdictions are split on the issue of whether a voluntary membership in a high school athletic association is an unlawful delegation of authority. Compare Quimby v. School Dist. No. 21 of Pinal County (1969), 10 Ariz.App. 69, 455 P.2d 1019 (concluding that becoming a member of an association was not a delegation of governmental power) with Bunger v. Iowa High Sch. Athletic Ass’n (Iowa 1972), 197 N.W.2d 555 (concluding that membership was a delegation of power). Ultimately, we find the Quimby line of reasoning more persuasive. We conclude that becoming a member of the MHSA is not an unlawful delegation of a governmental power. Competitive interscholastic athletics requires rules for competition. The MHSA establishes its rules through the vote of its members. If a school board disagrees with any of the rules, it may refuse to participate in the MHSA. Accordingly, the school district makes the rules of the association its own by participating. We acknowledge that a school district would undoubtedly have a difficult time finding other schools against which to compete if it decided to withdraw from the MHSA. Such a consequence, however, does not render membership in the MHSA involuntary. Instead, it simply highlights the nature of organized athletics. Interscholastic competition would simply not exist unless some independent entity serves as a neutral arbiter to establish and monitor eligibility rules and the ground rules for play. While the consequences may weigh on a district’s decision to withdraw from the MHSA, the district still remains free to do so. While school districts may adopt the MHSA’s eligibility rules as their own, enforcement of these rules is a unique power derived through mutual agreement that no individual school board possesses. School boards have no power of supervision or control over schools outside their own school district. The Helena School Board, for instance, could not enforce eligibility rules on students in Park High School in Livingston. School boards thus must establish a neutral referee. In reality, eligibility rules do not exist to ensure that a district’s own students meet certain requirements. Such rules ensure that the students of a competing district abide by the rules. The MHSA is thus exercising a power over students that individual school boards never
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had. Therefore, although the Board adopted the MHSA rules as their own, the MHSA’s decision to exclude Grabow from participating in basketball, in effect, was not the Board’s own decision. The other school districts effectively made the decision. Section 20-3-210, MCA, only applies to “matters of controversy arising in the county” (emphasis added). Therefore, Grabow has no right to administrative appeal of MHSA decisions under § 20-3-210, MCA. To remedy this lack of administrative review, Grabow suggests that we order the Office of Public Instruction (the “OPI”) to review all of the MHSA’s decisions regarding eligibility. No authority, however, empowers the OPI to review decisions made by the MHSA. Without a specific legislative mandate, we will not create an additional level of administrative review. . . . While the MHSA may not be accountable to the OPI, any decisions made by the MHSA still must comply with the constitution. Simply creating an additional level of administrative review will not ensure this. Adding additional levels of review instead may work to a student’s detriment. An aggrieved student cannot seek judicial review of an administrative decision until the student has exhausted his or her administrative remedies. This rule allows administrative agencies to make a factual record and to correct any errors within their specific expertise before a court interferes. . . . As the system functions now, students may immediately seek judicial review after the MHSA has reached a final conclusion. Grabow, for instance, got what he ultimately sought by directly seeking judicial review: an injunction that allowed him to play basketball. In reaching our conclusion in this matter, we wish to emphasize that we neither endorse nor criticize the function of the MHSA or its eligibility rules. The sole issue before us was whether the Livingston School District could contract with the MHSA and thus be bound by its rules; we conclude that it can. Affirmed.
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School Officers
A school officer, as distinguished from an employee, is one who possesses a delegation of sovereign power of the state. An Indiana court85 has
defined a public office as “a position to which a portion of the sovereignty of the state attaches for the time being, and which is exercised for the benefit of the public.” The most important characteristic that may be said to distinguish an office from an employment is that the duties of an office must involve an exercise of some part of the sovereignty; there are powers and duties conferred by the legislature or the constitution. The duties must be performed independently, without the control of a superior power, unless statute provides for a subordinate office. Other characteristics that typically identify the office are a permanency or continuity of office, a required oath of office, and a procedure for removal that is usually fixed by statute. In addition, employees may exercise only ministerial powers and have no authority to exercise discretionary powers. A superintendent of a local school district is, in most states, considered an employee. A case in point is that of a local superintendent in California who was discharged by the board of education and claimed he could be discharged only by the grand jury since he was a school officer. The school code provided that the school board shall “elect” a superintendent for a four-year term. Other provisions of the code said the school board may “employ” a superintendent. The superintendent in this case asserted that the term elect was indicative of public office. The court, however, held that the terms elect and employ in this case meant the same thing. The court further pointed out that the position of superintendent did not exercise a sovereign power, was not created by the constitution or statute, and that statutes did not impose independent police power duties upon the individual.86 Public officers are not allowed to hold two offices that are in conflict. Offices may be incompatible when one exercises control over the other, one office is subordinate to another, or the offices are held in more than one branch of the government at the same time. For example, a judge cannot also be a prosecuting attorney, a legislator cannot also be a school board member, and a governor cannot also be a legislator. Extending this principle further, it has been held that teachers, even though they are only employees, cannot also serve as board members in the same school district.87
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School Officers
Some state constitutions may say that a person cannot hold two lucrative offices regardless of whether one is subordinate to the other. The Indiana Constitution provides: “No person holding a lucrative office or appointment under the United States or under this State, shall be eligible to a seat in the General Assembly; nor shall any person hold more than one lucrative office at the same time, except as in this Constitution expressly prohibited. . . .”88 Such “lucrative offices” have been held to prevent a person from serving both as a justice of the peace and a school board member, or to be sheriff while serving as a school board member. Nearly all states have statutes that prevent public officers from having an interest in contracts made with the agencies they administer. A case illustrating a conflict of interest occurred when a board member with an interest in an insurance company wrote a policy for his own school district. The court held that this board member could be removed because he had wrongfully gained advantage through his public position.89 A conflict of interest may be in the form of nepotism. Nepotism can be prohibited by common law, statute, or state constitutional provision, and is defined by the courts as the “bestowal of patronage by public officers in appointing others to positions by reason of blood or marital relationship to the authority.”90 Thus, a violation may occur where a school board appoints the blood kin or spouse of a board member to a position with the schools. A public office, theoretically, is a public duty; an officer must have the consent of the governing power before he or she can resign. In other words, a public office is held at the will of both parties, and the public has a right to the services of its citizens. Therefore, to be valid, a resignation must be accepted. Without acceptance, the resignation is of no effect, and the officer remains in office.91 Although this is one theory of vacation of a public office, some states provide for an “absolute” right to resign.92 In states in which the officer has an “absolute” right to resign, if he or she tenders a resignation, he or she cannot withdraw it. There is immediate unconditional acceptance. In states that follow the “public duty” theory, a resignation probably can be withdrawn prior to acceptance or prior to an effective date if the resignation specifies such a date.
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An Illinois court has held that resignations in advance are not legal. In a case in which a mayor required board members to put resignations in writing at the time of appointment, and the mayor later accepted them, the court said that such resignations were invalid because they were not contemplated by the law.93 Statutes provide the procedure to be used for the removal of public officers. In the absence of statute, removal is an incidental power of the appointing agency. For removal for cause, only a notice and a hearing are generally required. Cause may be malfeasance; improper or illegal performance of duties; or breach of good faith, inefficiency, and incapacity. A public officer cannot be removed during a term of office when the term is fixed by statute, unless for cause. In a case in which school board members took “kickbacks” from a contractor in violation of a competitive bid law, the court removed the board. The court held that even in the absence of statute, the board members could be punished under common law for willful misconduct in office.94
Constitutional Prohibition of Nepotism Is Violated Where School Board Enters into Teaching Contract with Spouse of Board Member
Smith v. Dorsey Supreme Court of Mississippi, 1988. 530 So.2d 5.
EN BANC. On Petition for Rehearing Griffin, Justice, for the Court. In this appeal this Court is asked to construe Section 109 as applied to contracts of teachers whose spouses are school board members. Stated differently, may a local school board contract with spouses of its members? Proceedings in the lower court were held on October 9, 1986. Testimony at trial and stipulated exhibits include documents issued to defendants by the Secretary of State certifying them as Claiborne County School Board members; contracts for employment for their spouses—Jo Anne
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Collins Smith, Mary Jennings, Ernestine Williams and Catherine Knox—as teachers in the Claiborne County School District, at the time defendants served as board members; the teachers’ payroll records from 1980–1986; and minutes of the Claiborne County School Board from 1980–1986. On October 10, 1986, the chancellor entered an order finding all defendants to be in violation of Section 109. He further adjudicated the defendants’ spouses’ contracts to be null and void, and that each defendant had an indirect interest in these contracts as he had been a Trustee of the Claiborne County Board of Education when said Board approved one or more contracts for the employment of the defendants’ spouses. Finally, the chancellor ordered claims of restitution be made against the spouses of the defendants because of the Section 109 violations. The Court found that these violations as to all defendants and their spouses had existed for several years up to and including the present date. This appeal followed. Article 4, Section 109, of the Mississippi Constitution of 1890 provides: No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term.
In Frazier . . . [514 So. 2d 675 (Miss. 1987)] at 693, we said that this section prohibits any officer from: (a) having any direct or indirect interest in any contract (b) with the state or any political subdivision (c) executed during his term of office or one year thereafter, and (d) authorized by any law, or order of any board of which he was a member. The chancellor found that each defendant had an indirect interest in his spouse’s contract as prohibited by Section 109. We would agree. . . . However, without hesitation we find that logic dictates some manifest interest by appellants herein in the public school employment contracts of their wives. Appellants are directly
responsible for the hiring and firing of their spouses. Additionally, the record indicates that these school board members share fully in the process behind which the salaries are awarded to public school teachers in their district. This is not to say that we question the integrity or fairness of these board members in any way; we simply recognize that each has an indirect interest in his wife’s contract, which violates the constitutional provision. Next, we address the question of restitution ordered by the lower court and brought up on appeal. In the trial below plaintiffs and appellees herein neither plead nor raised the question of any bad faith committed by appellants for their role in the employment of their spouses. Nor did the chancellor make any finding of such. In our review of the record, we can see no allegation by these Claiborne County taxpayers that they did not receive value for services performed by the teachers, whose time of employment ranged from two (2) to thirty-three (33) years. Further, in at least one instance the record shows that a spouse of one board member had been teaching long before his election to that body. We have no doubt that such circumstances involving husband and wife teams in which one teaches and the other serves as a member of the school board are commonplace across this state, with no thought to any wrongdoing by the parties involved. The record reflects that the conduct of the defendants here had been the general practice in Claiborne County for many years, and we would concede that a similar case could be made in many other counties of the state. The claim for restitution, however, should be denied on other grounds. There is no way the parties can be put back in their original position before the teaching contracts were entered. For restitution to be equitable there would have to be some way of restoring to the teachers the value of the services they have rendered to the schools. Obviously, this cannot be done. To require restitution under the facts of this case would place these school teachers in a position where they would have served as public school teachers without pay, and in several instances for a number of years. The equitable remedy of restitution should not be enforced in such an inequitable way.
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School Officers
We hold that the above premise, coupled with the fact that there is no allegation or finding of bad faith on the part of the appellants, would make it grossly inequitable to require restitution on the peculiar facts presented here. . . . We, therefore, uphold the chancellor’s order finding appellants herein have been and are in violation of Sec. 109; declaring the contracts of appellants’ spouses to be null and void; and enjoining any further payment of salaries, etc., to said spouses while appellants remain as members of the Board of the Claiborne County School District and for a period of one year after the defendants shall leave their official capacities. . . .
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interest. Moreover, the statute does not operate to deny either procedural or substantive due process of law. School board members were allowed to serve out their elected terms, thus there was no deprivation of any perceived property interest. Chapman v. Gorman, 839 S.W.2d 232 (Ky. 1992). 3. Anti-nepotism policy of public vocational school that prohibits married couples from working together is not unconstitutional. The rule was rationally related to legitimate goals, including avoiding friction if a marriage broke down, cutting down on social fraternization, promoting collegiality among teachers, and easing the task of managing teachers. Montgomery v. Carr, 101 F.3d 1117 (6th Cir. 1996).
CASE NOTES Powers of Public Officer. Limitations on authority; extent of powers and duties: Public officers may exercise only that power which is conferred upon them by law. . . . The powers and duties of public office are measured by the terms and necessary implication of the grant of constitutional or statutory authority; . . . in this regard, it has sometimes been stated that public officers have only those powers expressly granted . . . or necessarily implied . . . by statute, and that any act of an officer, to be valid, must find express authority in the law . . . or be necessarily incidental to a power expressly granted. . . . 63C Am.Jur.2d Public Officers and Employees § 231.
Nepotism. 1. A state criminal statute prohibiting “selfdealing and nepotism” is violated by a county school superintendent who nominates his wife for a central administration position. West Virginia Education Association v. Preston County Board of Education, 171 W.Va. 38, 297 S.E.2d 444 (1982). 2. An anti-nepotism statute precluding relatives of school employees from serving as members of a school board does not inflict significant injury on the First Amendment rights of voters or school board candidates, restricting the voters’ choice of candidates or a candidate’s right to run in school board election. Neither does the statute deny equal protection of the law, because it is rationally related to a legitimate state interest in avoiding conflicts of
Conflict of Interest. 1. A conflict of interest still exists even though a school board member cast a negative vote against his wife’s employment as a teacher in the school district. The board member ’s attempt to “insulate” himself by voting against his wife was insufficient to protect him from constitutional and statutory prohibitions against any direct or indirect personal interest in a public contract. The board member and his wife were required to make restitution to the school board for money paid to the wife. Waller v. Moore ex rel. Quitman County School District, 604 So.2d 265 (Miss. 1992). 2. A chief state school officer may, in the exercise of statutory power, remove a local school board member from office for conflict of interest where a due process hearing found substantial evidence to that effect. In this case, a school board member who operated a building and a home supply store received credits from a paint manufacturer for assisting in acquiring paint sales to the school district. State Board of Elementary and Secondary Education v. Ball, 847 S.W.2d 743 (Ky. 1993). 3. No conflict of interest exists where the husband of a public school teacher serves in the state legislature. The fact that the spouse, while serving in the legislature, votes on general public school laws and educational appropriations does not create a constitutional conflict. Frazier v. State by and through Pittman, 504 So.2d 675 (Miss. 1987).
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School Elections
Legal issues relating to school elections are nearly as diverse as the general election laws of the state. No attempt is made here to fully encompass this wide body of law, but it is necessary to generally examine election law with regard to reapportionment precedents and to those legal requirements pertaining to compliance with election statutes. Until 1962, the view of the courts prevailed in that legislative representation and how it was apportioned throughout a state was a matter for only the legislature to determine. Malapportionment and rotten boroughs were of grave concern to many, and the problems became more acute as population mobility left some voters with very little legislative power, whereas others reaped disproportionately great political muscle. Judicial precedent, which permitted this to transpire, was found in Colegrove v. Green,95 in which case Justice Frankfurter, writing for the Supreme Court, opted to keep the courts out of the “political thicket.” Frankfurter said: To maintain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in distributing is to secure state legislatures that will apportion properly, or to invoke the ample powers of Congress. . . . The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action and, ultimately, in the vigilance of the people in exercising their political rights.96
After this decision, it soon became clear that the problems of apportionment would not be corrected by the legislators themselves, and the people were powerless to fully exercise their political rights. In reevaluation of its position, the Supreme Court handed down a new precedent in Baker v. Carr97 in 1962. In so doing, the court found that the Equal Protection Clause was violated by the resulting discrimination against some voters, which was not reasonable or rational, but instead was arbitrary and capricious. This case has had bearing on school district elections in the same manner as it has influenced statewide elections; if officials are elected by popular vote, then the Constitution ensures “that each person’s vote counts as
much, insofar as it is practicable, as any other person’s.”98 Subsequent litigation regarding voting rights has led to the courts establishing valuable reference points for government officials to follow. First, because of the one person–one vote standard, there is always a presumption in favor of enfranchisement. For government action to result in disenfranchisement requires that the government carry the burden of showing a compelling reason for its action.99 Second, Supreme Court rulings prohibit, by indirect means, the debasement or dilution of the weight of a citizen’s vote.100 Even though there is a strong presumption in favor of enfranchisement, there is no per se rule against selective disenfranchisement. In the case of “special interest” elections, the Supreme Court has held that the government can limit those who vote to those who have the required special interest.101 For example, the Supreme Court has held that the voters for a water conservation board of directors can be limited to landowners as a special interest group if apportioned according to assessed valuation. 102 Similarly, there may be a valid abridgement of the one person–one vote principle if the rationale includes a “special interest” where votes for directors of an agricultural improvement and power district are apportioned based on acreage.103 On the other hand, where there is no “special interest” involved, dilution of the voters’ franchise is obviously unconstitutional. The Supreme Court has invalidated a Texas constitutional provision that restricted the franchise for a bond issue to residents who had property listed on the tax rolls.104 Such means of disenfranchisement in the absence of valid special interests has been held unconstitutional in school cases where a state statute limited the franchise in school board elections to those who owned real property or had children enrolled in school,105 and where a statute limited membership on a school board to those residents owning real property in the school district.106 The U.S. Court of Appeals for the Sixth Circuit has held that allowing inclusion of out-of-district city voters is an unconstitutional “dilution” of rural county school district residents’ franchise, because city voters had a “special interest” due to the fact that a portion of their tax money went
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School Elections
to support the rural district schools.107 The court also considered the effects of the dilution and concluded that it was unlikely that city residents were in sufficient numbers to control the county school board. 108 On the other hand, the same federal court held that where nonresident city voters did not have a “special financial interest” in the county school system and the sheer number of city voters was sufficient to overwhelm the county voters in a countywide school board election, the election was invalid.109 Thus “special interest” elections may be valid if rational, even though a dilution of the franchise for resident voters may result, yet there is, however, a strong presumption against debasement of the weight of a resident citizen’s vote. From these election precedents, one can draw certain basic rules. First, the conception of political equality, one person–one vote, is required by the Fourteenth, Fifteenth, Seventeenth, and Nineteenth Amendments of the U.S. Constitution. Second, the right of suffrage cannot be denied by debasement or dilution of the weight of a citizen’s vote. Third, the presumption of enfranchisement is particularly powerful when a voter can show that he or she lives in the relevant political jurisdiction. Fourth, government can conduct “special interest” elections, but for such elections to be valid, the government must bear an onerous proof burden to demonstrate that the purpose is sufficiently different and unique to forego a universal franchise of resident voters.110
Equality of Voting Power Is Required in Local District Elections
Hadley v. Junior College District of Metropolitan Kansas City, Mo. Supreme Court of the United States, 1970. 397 U.S. 50, 90 S. Ct. 791.
Mr. Justice BLACK delivered the opinion of the Court.
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This case involves the extent to which the Fourteenth Amendment and the “one man, one vote” principle apply in the election of local governmental officials. Appellants are residents and taxpayers of the Kansas City School District, one of eight separate school districts that have combined to form the Junior College District of Metropolitan Kansas City. Under Missouri law separate school districts may vote by referendum to establish a consolidated junior college district and elect six trustees to conduct and manage the necessary affairs of that district. The state law also provides that these trustees shall be apportioned among the separate school districts on the basis of “school enumeration,” defined as the number of persons between the ages of six and twenty years, who reside in each district. In the case of the Kansas City School District this apportionment plan results in the election of three trustees, or 50 percent of the total number from that district. Since that district contains approximately 60 percent of the total school enumeration in the junior college district, appellants brought suit claiming that their right to vote for trustees was being unconstitutionally diluted in violation of the Equal Protection Clause of the Fourteenth Amendment. The Missouri Supreme Court upheld the trial court’s dismissal of the suit, stating that the “one man, one vote” principle was not applicable in this case. . . . [F]or the reasons set forth below we reverse and hold that the Fourteenth Amendment requires that the trustees of this junior college district be apportioned in a manner that does not deprive any voter of his right to have his own vote given as much weight, as far as is practicable, as that of any other voter in the junior college district. . . . This Court has consistently held in a long series of cases that in situations involving elections, the States are required to insure that each person’s vote counts as much, in so far as it is practicable, as any other person’s. We have applied this principle in congressional elections, state legislative elections, and local elections. The consistent theme of those decisions is that the right to vote in an election is protected by the United States Constitution against dilution or debasement. While the particular offices involved in these cases have varied, in each case a constant factor is the decision of the government
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to have citizens participate individually by ballot in the selection of certain people who carry out governmental functions. Thus in the case now before us, while the office of junior college trustee differs in certain respects from those offices considered in prior cases, it is exactly the same in the one crucial factor—these officials are elected by popular vote. . . . While there are differences in the powers of different officials, the crucial consideration is the right of each qualified voter to participate on an equal footing in the election process. It should be remembered that in cases like this one we are asked by voters to insure that they are given equal treatment, and from their perspective the harm from unequal treatment is the same in any election, regardless of the officials selected. . . . It has also been urged that we distinguish for apportionment purposes between elections for “legislative” officials and those for “administrative” officers. Such a suggestion would leave courts with an . . . unmanageable principle since governmental activities “cannot easily be classified in the neat categories favored by civics texts,” . . . and it must also be rejected. We therefore hold today that as a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials. . . . Although the statutory scheme reflects to some extent a principle of equal voting power, it does so in a way that does not comport with constitutional requirements. This is so because the Act necessarily results in a systematic discrimination against voters in the more populous school districts. This discrimination occurs because whenever a large district’s percentage of the total enumeration falls within a certain percentage range it is always allocated the number of trustees corresponding to the bottom of that range. Unless a particularly large district has
exactly 331/3 percent, 50 percent or 662/3 percent of the total enumeration it will always have proportionally fewer trustees than the small districts. As has been pointed out, in the case of the Kansas City School District, approximately 60 percent of the total enumeration entitles that district to only 50 percent of the trustees. Thus while voters in large school districts may frequently have less effective voting power than residents of small districts, they can never have more. Such builtin discrimination against voters in large districts cannot be sustained as a sufficient compliance with the constitutional mandate that each person’s vote count as much as another’s, as far as practicable. . . . We have said before that mathematical exactitude is not required . . . but a plan that does not automatically discriminate in favor of certain districts is. In holding that the guarantee of equal voting strength for each voter applies in all elections of governmental officials, we do not feel that the States will be inhibited in finding ways to insure that legitimate political goals of representation are achieved. We have previously upheld against constitutional challenge an election scheme that required that candidates be residents of certain districts that did not contain equal numbers of people. . . . Since all the officials in that case were elected at large, the right of each voter was given equal treatment. We have also held that where a State chooses to select members of an official body by appointment rather than election, and that choice does not itself offend the Constitution, the fact that each official does not “represent” the same number of people does not deny those people equal protection of the laws. . . . And a State may, in certain cases, limit the right to vote to a particular group or class of people. . . . But once a State has decided to use the process of popular election and “once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded.” . . .
CASE NOTES 1. The Federal Voting Rights Act of 1965 was enacted to eradicate discriminatory voting practices. Under Section 2 of the Act,
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School Elections
2.
3.
4.
5.
states and their political subdivisions are barred from maintaining discriminatory voting practices or standards and procedures. This section may be violated if the electoral system is not open to equal participation based on race. Section 5 of the Act identifies particular states and their political subdivisions as covered jurisdictions. In these covered jurisdictions, new election laws cannot be passed unless they are shown to be nondiscriminatory. Section 5 of the Act establishes preclearance procedures requiring federal district court approval. Preclearance requires, among other things, that any new electoral system must not have a “dilutive impact” that will reduce or deny voting power of African American voters. See Reno v. Bossier Parish School Board, 520 U.S. 471, 117 S. Ct. 1491 (1997). A statute limiting the franchise in school elections to parents of children enrolled in the public schools and owners and lessees of taxable real property denies equal protection. Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S. Ct. 1886 (1969). Similarly, the Supreme Court has held unconstitutional a statute that limited electors in a public utility bond election to only “property taxpayers.” Cipriano v. City of Houma, 395 U.S. 701, 89 S. Ct. 1897 (1969). The Civil Rights Acts of 1957 and 1960 protect voters in federal elections from intimidation and interference and require state election officials to preserve federal election records. 42 U.S.C.A. §§ 1971(b), 1974–1974(b). Also, state laws requiring literacy to vote cannot be ambiguous and vague, violating the Fifteenth Amendment. Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757 (1944). The one person–one vote standard is not applicable to appointive boards. Sailors v. Board of Education of Kent County, 387 U.S. 105, 87 S. Ct. 1549 (1967). Where there is no fraud, bad faith, or misleading of the voters, it is a well-settled rule that statutory provisions that are treated as mandatory before an election will be construed as directory after the election. Lindahl v. Independent School District No. 306, 270 Minn. 164, 133 N.W.2d 23 (1965).
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6. A Minnesota court, in Bakken v. Schroeder, 269 Minn. 381, 130 N.W.2d 579 (1964), stated that challenges to consolidation proceedings will not serve to invalidate the election unless there is proof of prejudice and that statutory requirements are treated as directory rather than mandatory when election proceedings are contested following the election. In a case involving a challenge, the court quoted an earlier decision, Erickson v. Sammons, 242 Minn. 345, 65 N.W.2d 198 (1954), and said: It is the general rule that, before an election is held, statutory provisions regulating the conduct of the election will usually be treated as mandatory and their observance may be insisted upon and enforced. After an election has been held, the statutory regulations are generally construed as directory and such rule of construction is in accord with the policy of this state, which from its beginning has been that, in the absence of fraud or bad faith or constitutional violation, an election which has resulted in a fair and free expression of the will of the legal voters upon the merits will not be invalidated because of a departure from the statutory regulations governing the conduct of the election except in those cases where the legislature has clearly and unequivocally expressed an intent that a specific statutory provision is an essential jurisdictional prerequisite and that a departure therefrom shall have the drastic consequence of invalidity. . . .
7. The Supreme Court of Texas, in McKinney v. O’Conner, 26 Tex. 5 (1861), has stated the rule for elections as rules prescribing the manner in which the qualified electors shall hold the election, at the time and place designated, and those prescribing the manner in which their act, when done, shall be authenticated, so as to import verity on its face, are directory. Irregularities in their observance will not vitiate an election, unless they be such that the true result of the ballot cannot be arrived at with reasonable certainty. The ultimate test of the validity of an election is involved in the questions: Did the qualified electors, at the time and place designated, acting in concert, either actively or by acquiescence, hold an election and cast their votes in the ballot box; and has it been done in a manner sufficiently conformable to the directions of the law, as that the true result can be arrived at with reasonable certainty?
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8. In a case contending a lack of sufficiency of notice for a special election, a Missouri court said that “[g]enerally, statutory provisions as to notice of special elections are mandatory, must be strictly followed, the failure to properly call a special election will invalidate it. . . . A special election, however, will not be vitiated by failure to comply strictly with the statutory requirements with respect to the giving of notice where the electors were in fact informed of the time, place, and purpose of the election and generally voted on the question submitted; where it is not shown that the electors did not participate in the election because of lack of notice or knowledge or that a different result would have obtained if the full statutory notice had been given. State v. Whittle, 401 S.W.2d 401 (Mo. 1966).
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School Board Meetings
A fundamental rule of school board meetings is that the meeting must be held within the geographic boundaries of the school district. The courts have traditionally been rather lenient concerning the procedure used by boards of education in meetings. Unless the rules of procedure are prescribed by statute, a board of education may establish its own rules of procedure. Where neither statutes nor adopted board procedures are used, the generally accepted rules of parliamentary procedure will control. As indicated, the courts are indulgent concerning procedure and will not insist on a specific set of rules. The court is primarily concerned that every board member has been given a right to be heard and to vote. The actual board meeting is an important prerequisite to an action by a board of education. Action taken separately or individually, by board members outside a board meeting, has no validity. Likewise, promises made by individual board members outside official meetings have no legal validity. However, a board of education, if it chooses, may ratify a previous individual commitment made by a board member. Official action at a later meeting is necessary for ratification.
Allegation That Board Had Made Decision Prior to Official Meeting Not Sustained by Facts
Aldridge v. School District of North Platte Supreme Court of Nebraska, 1987. 225 Neb. 580, 407 N.W.2d 495.
WHITE, Justice. Gary R. Aldridge appeals from an order of the district court for Lincoln County, Nebraska, granting summary judgment in favor of the appellees, the school district of North Platte and six members of its board of education. . . . The petition in this case attacked decisions made by the board in regard to the employment status of the superintendent of schools. On August 31, 1984, the superintendent was found guilty of third degree sexual assault. The board called a meeting on September 5, 1984, a week before the next scheduled meeting. The meeting was largely attended, and when the matter concerning the superintendent’s conviction arose, board member Linda L. Gale requested that there be no discussion on the subject. Dallas F. Darland, a board member, announced that he had been tendered a resignation by the superintendent and read aloud the letter, which stated that the superintendent would resign voluntarily in December. Darland moved to accept the offer to resign; the motion was seconded and passed. Board member Myra Satterfield then made a motion to suspend the superintendent from his duties with pay until his resignation was effective. The motion also was seconded and passed. There was no discussion of these motions except for the reading of the letter and the making of the motions. Aldridge’s petition alleges two causes of action: first, that a quorum of the board met with the attorney for the school district and discussed and made policy in violation of the public meetings law; and second, that the motion by
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School Board Meetings
Satterfield to suspend the superintendent with pay passed without public discussion based on the prior nonpublic briefing and meeting alleged in the first count. In his deposition Aldridge stated he based his allegations that the public meetings law was violated on two facts: that a major motion passed without discussion and that a witness saw a quorum (four of six) of the board members at the school board attorney’s office earlier in the day of the September 5 meeting. The witness, Kathy Seacrest, testified on deposition that she saw four board members in the “entryway” of the attorney’s office and that two of them were leaving as she left. She heard no discussion or comments made by the members. A reading of the depositions of the board members exposes no discrepancies in their stories. The four members met with the attorney to discuss the legal ramifications of various options to remove the superintendent from office. Each feared a long legal battle and was informed that the superintendent had due process and contractual rights in his employment. Each was aware that certain of the benefits would vest in December and that the superintendent knew this. They specifically denied that a quorum ever met to decide policy and testified that they left the office having made no decision in the matter. . . . At oral argument counsel for Aldridge argued that Gale’s statement limiting discussion on the issue was a violation of the public meetings law. The petition shows two causes of action: that an illegal meeting of a quorum of the board took place prior to the public meeting and that, without public discussion, the board passed a motion based on the previous illegal deliberations. The petition does not maintain that public discussion may not be limited or prohibited by the board at its meetings. See Neb. Rev. Stat. § 84-1412(2) (Cum. Supp. 1984). . . . Appellant’s counsel conceded at argument that the attorney for the board could advise members two at a time without violating the public meetings law. However, he still argues that the lack of discussion at the meeting implies that the real decision was made illegally prior to the meeting. The appellant based his case on Seacrest’s statements that she saw four board members
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in the attorney’s office. She corroborated their statements that two were leaving as two were waiting. Obviously, no meeting of the board members in which a quorum was present occurred. . . . The appellees’ testimony establishes that no improper meeting occurred. The appellant then had the burden to introduce evidence in opposition to the motion for summary judgment that would tend to prove that a meeting did occur. . . . He could not produce such evidence. Since no issue of fact existed, the motion for summary judgment was properly granted in favor of the appellees. Affirmed.
CASE NOTES 1. A teachers’ association can videotape proceedings of a school board meeting. A New Jersey court, in upholding videotaping of a board meeting, reasoned that video cameras and recorders are so commonplace today that one would have great difficulty showing that their use would in some manner impede the deliberations or harm the public interest. On the school board’s behalf, the court did say that the videotaping equipment could not be used in such a manner as to disrupt the meeting. The court, though, was not sympathetic with school board members who wanted to ban the cameras merely because the cameras’ presence made the members feel uncomfortable or inhibited. Maurice River Board of Education v. Maurice River Township Teachers Ass’n, 193 N.J. Super. 488, 475 A.2d 59 (N.J. App. Div. 1984). See also Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774 (1984). 2. Procedure. As pointed out earlier, courts are rather flexible as to the procedure used by local school boards. In 1960, a New Hampshire court upheld an action by a school board when there was considerable irregularity in parliamentary procedure. The court said that a board’s action could not be voided so long as no statutes were violated. If the machinery of government were not allowed a little play in its joints, it would not work. Lamb v. Danville School Board, 102 N.H. 569, 162 A.2d 614 (1960).
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3. Executive Sessions. Executive sessions, where the board retires to privacy, may be used for discussion, but not for action. Where a board met in open session, adjourned for an hour or so, reconvened in executive session, and then met again in open session, and teachers’ contracts were terminated in the open session after discussion in the executive session, the teachers sued, questioning the validity of the action. The court said the meeting was a legal one, despite the fact that the contracts were discussed in the executive session. The requirements of the law were met when the official action of the board was taken in open session. Alva v. Sequoia Union High School District, 98 Cal. App. 2d 656, 220 P.2d 788 (1950); Dryden v. Marcellus Community Schools, 401 Mich. 76, 257 N.W.2d 79 (1977). In a later case, in Illinois, the board of education voted in an executive session to condemn land. The action was challenged, and the court held that the action in the executive session was “not an effective exercise of the power of the board to commence condemnation.” However, since the board had later ratified the action in an official meeting, the condemnation proceedings were legal. Goldman v. Moore, 35 Ill.2d 450, 220 N.E.2d 466 (1966); see also State ex rel. Stewart v. Consolidated School District, 281 S.W.2d 511 (Mo. App. 1955). Boards of education should adopt rules of procedure, and when they do, they are bound by their own rules. In an early Kentucky case illustrating the binding force of a board rule, a board made a rule that purchases of supplies and materials of $500 or less could be made without bid. Pianos were purchased in an amount of $2,500 without bids. The membership of the board changed, and the new board refused to pay for the pianos. The vendor sued, and the action of the vendor was unsuccessful. The court held that the school board rules had the force of law upon the board itself, which the board could not disregard. Montenegro-Riehm Music Co. v. Board of Education of Louisville, 147 Ky. 720, 145 S.W. 740 (1912). An Ohio school board passed a rule that provided that bus drivers involved in five accidents causing police investigation shall be dismissed. A bus driver arrived home from
a vacation trip at three in the morning and arose four hours later to drive a school bus. The bus left the road and struck an embankment 17 feet from the highway. No one was injured. The board dismissed the driver, and the driver sued. The court held for the driver, saying that the board’s rule of five accidents was “unfortunate.” Since there was evidence of only one accident and even though the discharge of the driver was desirable, the board could not discharge him because of its own regulation. State ex rel. Edmundson v. Board of Education, 2 Ohio Misc. 137, 201 N.E.2d 729 (Com. Pl. 1964). 4. Quorum. A quorum under common law is a simple majority of the total membership. In the absence of statute, the common law rule will be applied. Gunnip v. Lautenklos, 33 Del. Ch. 415, 94 A.2d 712 (1953). See also Matawan Regional Teachers Ass’n v. Matawan-Aberdeen Regional Board of Education, 223 N.J. Super. 504, 538 A.2d 1331 (1988). A Kentucky court has held that where there was one vacancy on a five-member board, the four remaining members represented a quorum. Trustees v. Brooks, 163 Ky. 200, 173 S.W. 305 (1915). The number required for a quorum is not reduced by a reduction in the membership due to vacancies. This means that in the case of a five-member board that has three vacancies, the two remaining board members cannot take action. 5. Voting. Boards, in the absence of statute, may establish voting procedures (e.g., voice vote, show of hands, secret ballot). There is no authority for a board member to allow someone else to vote for him or her. When a board member refuses to vote, the general rule is that this vote is considered as an assent to the will of the majority. Mullins v. Eveland, 234 S.W.2d 639 (Mo. App. 1950). In a Tennessee case in which a board of seven members considered a motion to execute a contract, three voted in favor, two opposed, and two did not vote. The court said the motion carried by a vote of five to two. Those not voting were considered as assenting to the majority. Collins v. Janey, 147 Tenn. 477, 249 S.W. 801 (1923). Common law does not require that individual votes be recorded in the board
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Open Meetings and Public Records Laws
minutes so long as the totals are made a part of the record. Diefenderfer v. Budd, 563 P.2d 1355 (Wyo. 1977). 6. Minutes and Records. Courts hold that the school board can act only through their minutes. The minutes of a board meeting are the only legal evidence of what has transpired during the meeting. An Illinois court has said that “[p]roper minutes and records should be kept by a board of education to the end that the persons who are carrying the tax load may make reference thereto and the future boards may be advised of the manner of disposition of questions that have arisen.” Hankenson v. Board of Education, 10 Ill. App.2d 79, 134 N.E.2d 356 (1956), rev’d on other grounds, 10 Ill. 2d 560, 141 N.E.2d 5 (1957). A board secretary may record minutes after the meeting has adjourned. Kent v. School District, 106 Okl. 30, 233 P. 431 (1925). Memoranda kept by the board secretary cannot be examined by the public prior to transcribing the minutes. In a 1954 case, on the day after a board meeting, citizens requested permission to examine the minutes. The school board secretary had not as yet transcribed his notes and refused permission to the group. The court upheld the board and said “the clerk’s untranscribed notes reasonably are not classifiable as a public writing . . . whereas the transcribed minutes, in final form, but awaiting only approval and placement in the journal, are a public writing. . . .” Conover v. Board of Education, 1 Utah 2d 375, 267 P.2d 768 (1954). The form and wordage used in school board minutes are looked upon with indulgence by courts. “Although they may be unskillfully drawn, if by fair and reasonable interpretation their meaning can be ascertained, they will be sufficient to answer the requirements of law.” Noxubee County v. Long, 141 Miss. 72, 106 So. 83 (1925). A public records law may require that names of applicants screened for a superintendent’s position be released to the press. Attorney General v. School Committee of Northampton, 375 Mass. 127, 375 N.E.2d 1188 (1978). 7. Notice of Meetings. In order for a board meeting to be legal, proper notice must be given and all members must be notified in time to
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be given an opportunity to participate. A reasonable time in advance of a meeting for notice to be given is “sufficient time to the party notified for preparation and attendance at the time and place of such meeting.” Green v. Jones, 144 W.Va. 276, 108 S.E.2d 1 (1959). When a board meeting was called with a few minutes’ notice, making the chairman unable to attend, and the board employed a teacher, the court held the employment invalid. “[The chairman] was hardly bound to quit the work he had started to do and rush over to attend a suddenly called meeting of the board. The notice should have given him reasonable opportunity to attend. It did not.” Wood v. School District, 137 Minn. 138, 162 N.W. 1081 (1917). Notice should include the time and the place of the meeting. Members should be notified of any changes. When a meeting is held without notice, and all members are present and consent to act, the requirement of notice is waived. Notice is not required for regular board meetings because members have constructive notice. For example, boards usually establish a regular meeting date each month for which special notice is not required. Notice is only required for special board meetings. 8. Bylaws. In the absence of a statute to the contrary, a board’s bylaws are binding on the board. School boards cannot set aside or render nugatory a bylaw by suspension of a mere rule of order for the convenience of transacting business. A bylaw must be changed using appropriate procedures, with notice, and following proper regulatory processes. See Matawan Regional Teachers Ass’n v. Matawan-Aberdeen Regional School District Board of Education, 223 N.J. Super. 504, 538 A.2d 1331 (N.J. App. Div. 1988).
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Open Meetings and Public Records Laws
In recent years, state legislatures have sought to make public board meetings more open and public records more accessible to the public. Even though there has always been a general common
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law right of the citizenry to be informed through openness of public meetings and public records, actual implementation of the ideal often fell short of the mark. Technicalities regarding when meetings were open, the justification for executive sessions, notice, and the logistics of access to public records have presented problems that legislatures have attempted to resolve by enactment of statutes specifically governing meetings and records. As a result of this legislation, much new litigation has transpired that endeavors to interpret the meaning of the statutes. The most important difference between the traditional common law covering public meetings and the new statutes is that public school boards could adjourn to executive session to discuss virtually any matter bearing on the operation of the schools, whereas the new laws narrowly define the purposes and procedures for the conduct of closed or executive sessions. Most Sunshine laws require both deliberations and actions to be taken in public, the exception being only for a limited number of sensitive matters that would, if aired in public, be personally detrimental to some party or would harm the public interest. The underlying purpose of both open meeting and public records laws is to display to the public marketplace and subject to public scrutiny the truth about official acts of public servants.111
OPEN MEETINGS Most Sunshine laws closely track the common law by permitting executive sessions of school boards for information and strategy concerning collective negotiations or bargaining, purchase or lease of real property, consultation with an attorney in connection with litigation, business pertaining to lawful privilege, or confidentiality regarding investigations of possible law violations. Yet, the actual official actions of boards taken by vote of the membership must be conducted in public. In this regard, a Pennsylvania court permitted a school board to take a “straw vote” in executive session in order to reduce the number of applicants, from five to three, for the position of school superintendent in the district. The court said that “[j]ust because a vote is taken in executive session does not mean that it is an ‘official
action.’ . . .112 To be a vote constituting official actions as defined [in] . . . the Sunshine Act, it must be a matter that commits the agency to a course of conduct.” A “straw vote,” according to this court, came within the definition of “discussion and deliberation” not constituting “official action.”113 In determining whether a meeting of a school board violates a state Sunshine law, the court will look at the decision making as a whole to determine if the citizenry has been deprived of a meaningful opportunity to respond or to hold officials accountable for their actions. A West Virginia court has pointed out that courts will normally look for certain indicators of an illegal meeting, to wit. First, the content of the discussion is crucial to a policy decision. School board members can gather in complete privacy at will, and the meeting will not violate the law if matters discussed are entirely unrelated to school business. Second, the number attending a meeting is important. If only two of 10 board members attend a meeting, it is far less suspect than if eight of 10 attend; thus, the percentage of the public body present is important. Third, the identity of those not attending is significant, especially those absent in opposition to an issue before the board. Fourth, the intentions of members are important. Fifth, the nature and degree of planning for the meeting by those involved is important. If the meeting is by happenstance, legal objection to the meeting is reduced. Sixth, the duration of the meeting is of importance; longer meetings are more suspect. Seventh, the setting and opportunity for private discussion are significant. Eighth, regarding the possible effects on decision making when having the meeting in private, does the situation inhibit meaningful opportunity to respond or does it lessen public accountability of the officials? In enumerating this list of considerations, the West Virginia court concluded that although they are all relevant, none of the criteria are individually controlling. Using these criteria, this court invalidated a vote taken as a result of a private meeting held by several members of a school board when evidence indicated that (a) a quorum of the board was present; (b) the gathering addressed the highly controversial matter of merger of
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Open Meetings and Public Records Laws
schools; (c) information was conveyed that was of great importance and sensitivity to the decision; and (d) the meeting was prearranged, took place in school board offices, was a two-hour meeting, and was on the day before a crucial board vote. Thus, the actual board vote taken in a public meeting a day later was found to be legally defective.114
School Committee’s Closed-Session Discussion and Approval of Drug Search Was Exempt from Open Meetings Law
Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Bernasconi Supreme Court of Rhode Island, 1989. 557 A.2d 1232.
FAY, Chief Justice. This case comes before us on appeal from a Superior Court order granting the defendants’ motion to dismiss pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. The plaintiffs, Rhode Island Affiliate, American Civil Liberties Union (ACLU), and Steven Brown, Executive Director, contend that the trial justice erred in granting that motion. . . . On January 26 and February 12, 1987, the Chariho school committee (school committee) held regularly scheduled public meetings. During the meetings, the school committee voted unanimously to enter into closed executive session pursuant to G.L. 1956 (1984 Reenactment) § 42-46-5(a)(1) and (2). These provisions allow a public body to hold a closed meeting, in limited circumstances, following an affirmative vote of the majority of its members. On April 8, 1987, plaintiffs filed an action to impose civil fines against defendants, in their individual capacities and in their capacities as members of the school committee, for violations of the Rhode Island Open Meetings Law.
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Chapter 46 of title 42. The plaintiffs alleged, on information and belief, that the school committee discussed and approved a plan to search student lockers at the Chariho Regional JuniorSenior High School. Thereafter, state and local police conducted a search of approximately 800 lockers at the school. The plaintiffs maintained that these closed sessions of the school committee violated multiple provisions of the openmeetings law. . . . . . . [P]laintiffs aver that the school committee’s closed-session discussion and approval of a drug search is not a matter exempted from the requirement that meetings of a public body remain open to the public. Assuming, as required, that all allegations in the complaint are true, we find that the topic of a drug search falls within the statutory guidelines enunciated in §§ 4246-4 and 42-46-5. This topic clearly implicates security matters as contemplated by § 42-465(a)(3). Additionally, these closed sessions may involve or lead to investigative proceedings concerning allegations of civil or criminal misconduct. See § 42-46-5(a)(4). We believe that the sale and use of drugs in a school system represents a serious threat to the security, health, and welfare of a student body. It would be inconceivable for this court to find that the topic is not a legitimate concern for a closed session. Therefore, we hold that the discussion and approval of a drug search is exempted by §§ 42-46-4 and 42-46-5. . . . The plaintiffs further argue that the school committee violated § 42-46-6(b), as amended by P.L. 1984, ch. 372, § 1, which requires notice of agenda topics. In the present case, defendants did not include the matter of the drug search on the agenda for the January and/or February meetings. We may infer, however, that defendants provided adequate notice of the meetings pursuant to § 42-46-6(a) and (c). We note that any announcement of this subject matter would be self-defeating and hold that defendants’ action does not operate to their detriment. . . . For the reasons stated, the plaintiffs’ appeal is denied and dismissed. The judgment appealed from is affirmed, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
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CASE NOTES 1. The Montana Constitution has two components of Article II, Section 9. These are the right to examine documents and the right to observe the deliberations of public bodies. The court ruled that a spreadsheet that contained a rating system used to make a decision to close an elementary school was a public document. Bryan v. Yellowstone County Elementary School District No. 2, 60 P.3d 381 (Mont. 2003). 2. A Washington court ruled under the State Open Meeting Act that the term meeting has a broad definition. Elected officials can meet without being in a face-to-face situation. If they use e-mail for the purpose of making decisions, then this could constitute a meeting; however, the use or passive receipt of e-mail does not automatically constitute a “meeting.” Wood v. Battle Ground School District, 27 P.3d 1208 (Wash. Ct. App. 2001). 3. The gathering of school board members on occasion at various restaurants, sometimes before and sometimes after official board meetings, did not violate the Oregon Open Meetings Law even though, at times, a quorum was present. The court held that there was not a “convening of the body” of the board for the purpose of making “a decision or to deliberate toward a decision.” Harris v. Nordquist, 96 Or. App. 19, 771 P.2d 637 (1989). 4. A student suspension hearing before a school board must be open to the public if such is requested by the student or parent. Meetings may not be closed unless they are intended to evaluate the professional competency of an employee or to consider employment actions such as for hiring or dismissal. No exception is contained in the Iowa law for students. Schumacher v. Lisbon School Board, 582 N.W.2d 183 (Iowa 1998). 5. Where a quorum of school board members attended a meeting of another school board in an adjacent town where the topic discussed was a possible merger, the court ruled that the open meetings law was not violated because the board members were not “meeting for the purpose of exercising the school board’s responsibilities, powers or duties.” Paulton v.
Volkmann, 141 Wis. 2d 370, 415 N.W.2d 528 (Wis. Ct. App. 1987). 6. A Wisconsin court has held that failure to announce with specificity the reason for going into closed session did not violate the state’s open meetings law. State v. Van Lare, 125 Wis. 2d 40, 370 N.W.2d 271 (Wis. Ct. App. 1985). 7. The Open Meetings Act of Illinois has been held not to require notice in the school board agenda of topics to be considered in closed session. In so holding, the court expanded on the rationale for the openness of public boards as what provides the greatest “public advantage”: While we keep in mind that the purpose of the Act is to promote the openness of public business, we must not overlook the larger, overriding purposes of the Act within which the promotion of openness is subsumed and made a constituent part— aiding the conduct of the people’s business, or, in other words, securing public advantage. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649.) In promoting the ultimate goal of requiring public bodies to carry out their business in the manner most beneficial to the public they represent, there are occasions in which it is not to the public’s advantage that a public body carry on its business in a meeting open to the public. Therefore, it is not always possible for both of the above-stated purposes of the Act to be promoted in harmony. It is our belief that where the purposes of the Act cannot be promoted in harmony, priority should be given to the more dominant or overriding purpose. . . . Openness is in most circumstances an element fundamental in furthering public advantage; however, in some instances openness simply prevents or defeats public advantage. For example, consideration of topics concerning matters such as personal information, bargaining position, and negotiating strategy makes it necessary that a public body meet in private, lest it run the risk that the business undertakings will be rendered, for all practical purposes, ineffective and meaningless. Public knowledge of their officials’ intentions and actions resulting from compulsory public deliberative sessions when considering matters such as the purchase of real estate would destroy any advantage to be gained from negotiation and work a severe detriment upon the officers and the public they represent. . . . Gosnell v. Hogan, 179 Ill. App. 3d 161, 128 Ill. Dec. 252, 534 N.E.2d 434 (Ill. App. Ct. 1989).
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Open Meetings and Public Records Laws
8. Attorney-client privilege is normally an exception to open meetings requirements. When such a privilege would come into play is expressed by a Minnesota court: When a public body can show that litigation is imminent or threatened, or when a public body needs advice above the level of general legal advice, i.e., regarding specific acts and their legal consequences, then the attorney-client exception applies. Star Tribune v. Board of Education, Special School District No. 1, 507 N.W.2d 869 (Minn. Ct. App. 1993).
9. The Michigan Open Meetings Act has been interpreted to permit “straw polls” in closed sessions where members did not actually vote or make a decision as defined by law. Moore v. Fennville Public Schools Board of Education, 566 N.W.2d 31 (Mich. Ct. App. 1997).
PUBLIC RECORDS In determining the public nature of records, the courts must weigh the extent of the public interest involved. A case in point involved the investigation by an Atlanta television station that sought the release of personnel records of bus drivers who transported schoolchildren. The drivers worked for a private bus company that had contracted to transport schoolchildren to and from school in buses owned by the school district. The private company refused to release the personnel files, claiming it was a private entity. The television station claimed that the transportation of pupils was a “legitimate function” of the school board and that the private company was merely a “management tool” used by the board to carry out public responsibilities. The court agreed, saying that “without question, then, operation of school buses or arranging for their operation, is ‘a legitimate function’ of the Board,”115 and, therefore, the public should be entitled to inspect the records. The court found it important to note that there is a significant public interest in the safe transportation of children and that the board’s public duty to ensure safety required that the personnel records of the private company be held open to public scrutiny. One of the most controversial aspects of open meetings laws is determining what actually constitutes a meeting. Is it a meeting if a quorum of board members meet to play a round of golf,
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have dinner together, or play cards? Some state statutes provide that a public meeting shall not include an informal gathering.116 Even though the precise wording of the statute will prevail, it may be generally concluded that the actual intent of the meeting must be the true test. If the intent of a meeting is purely social and informal, then by definition no public business is conducted. If no public business is conducted, then the meeting is not subject to open meeting requirements. A Missouri court has defined public business as “those matters over which the public governmental body has supervision, control, jurisdiction or advisory power.”117 A workshop at a mountain retreat to improve the personal relations and foster social interaction among board members who had a history of divisive behavior is not a matter of public business.118 In this particular case, the court said that [a]s a matter of law, it was not public business for the Board to discuss the betterment of interpersonal relationships in the context of a workshop when the discussions of interpersonal relationships did not include reference to any business matters which would come before the Board for consideration and action.119
In another interesting case, a statute defined meeting as constituting “any deliberation between a quorum of members” at which “public business” is discussed, the court found that at a meeting that was held by a quorum of board members who merely sat and listened to a consultant’s report—a briefing session—and at which no members indulged in verbal exchange or discussion, the open meetings law was not violated. The court in this case said explicitly that a meeting such as that held by the Board . . . does not violate the Act so long as a quorum of the Board does not conduct a verbal exchange between themselves or with any other person about any issue within the jurisdiction of the government body or any public business.120
This court did not speculate as to what the result would have been if board members had communicated with each other in sign language, body language, or writing. A threshold issue in all these cases involves the definition of a public body or a public agency to which the Sunshine meeting or public records
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requirements are applied. Of course, private meetings, or purely private records, are not subject to openness requirements. Some public boards have sought to limit the possible overbreadth of Sunshine statutes by employing private entities to perform certain sensitive functions. For example, job searches for school superintendents have, at times, been delegated to private firms in order to shield the identity of applicants who would not want their names revealed for fear of jeopardizing their current employment. Litigation over the permissible latitude of public boards in this regard has been relatively frequent, with newspapers as the usual plaintiffs. General legal rules that determine whether an entity is the functional equivalent of a public body are applied in such cases. If an entity is the functional equivalent of the public body for which it performs a task, then its meetings and records must be open to scrutiny of the press and the citizenry. The criteria are as follows: 1. Whether the entity performs a governmental function. 2. The level of governmental funding supporting the entity. 3. The extent of governmental involvement and regulation. 4. Whether the agency was related by the government.121 The following case clearly defines the matter.
Charter School Is an “Agency” Subject to State Right-to-Know Act (Open Records Law)
Zager v. Chester Community Charter School Supreme Court of Pennsylvania, 2007 594 Pa. 166, 934 A.2d 1227.
Justice BALDWIN. Appellant, Chester Community Charter School (“the school”), was created pursuant to the Charter School Law, 24 P.S. § 17-1701-A
et. seq. The school is currently managed by Charter School Management, Inc., which provides management services to the school pursuant to a written agreement. A corporation known as Charter Choice, Inc. managed the school prior to July, 2002. Appellee, Matthew Zager (Zager), is a resident of Pennsylvania. On April 5, 2005, pursuant to the Right-toKnow Act (“Act”), 65 P.S. § 66.1 et. seq., Zager sent a letter to Vahan Gureghian, the Chief Executive Officer of Charter School Management, Inc., requesting the independent Auditor’s report and financial statements for Chester Community Charter School for the fiscal year ending June 30, 2003. Zager additionally requested information regarding the management arrangement between Chester Community Charter School and Charter Choice, Inc. A copy of the letter was sent to Peter Idstein, an officer of Charter School Management, Inc. and school chief administrator. The school failed to respond to Zager’s request. On April 22, 2004, Zager ’s attorney sent a letter to Mr. Gureghian indicating that Chester Charter School was a non-Commonwealth agency under the Right-to-Know Act, and that pursuant to 65 P.S. § 66.3-4(a), the school’s failure to respond to Zager’s initial letter in a timely manner constituted a deemed denial of Zager’s request. The letter further specified that it included Zager’s exceptions to the deemed denial, pursuant to 65 P.S. § 63.3-5(a), and restated Petitioner’s requests. . . . In excepting to the deemed denial of Zager’s requests, the letter indicated that the documents requested were clearly public records as defined by section 66.1 of the Right-to-Know Act, 65 P.S. § 66.1. By letter dated May 19, 2004, Danielle Gureghian, Executive Vice President and legal counsel for Charter School Management, Inc. denied Zager’s request for the records on grounds that Charter School Management, Inc. was a private company and therefore not subject to the Right-to-Know Act. The letter further noted that 24 P.S. § 17-1732A of the Public School Code did not indicate that the Right-to-Know Act applies to charter schools. Thereafter, Zager filed a Petition for Review with the Court of Common Pleas of Delaware County.
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Open Meetings and Public Records Laws
In a comprehensive and well-reasoned opinion, the trial court concluded that the school was subject to the requirements of the Right-to-Know Act and that the documents requested by Zager constituted public records that were subject to disclosure. . . . The Commonwealth Court affirmed, reasoning that the school qualified as an “agency” performing an essential government function for purposes of the Right-to-Know Act and therefore it was subject to the Act’s disclosure requirements. . . . The Right-to-Know Act requires “agencies” to make public records accessible for inspection and duplication. The purpose of the statute is to “enlarge the rights of the general public for the examination and inspection of public records.” Agencies that are required to disclose their records are defined by the Act as follows: “Agency.” Any office, department, board or commission of the executive branch of the Commonwealth, any political subdivision of the Commonwealth, the Pennsylvania Turnpike Commission, the State System of Higher Education or any State or municipal authority or similar organization created by or pursuant to a statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function. Charter schools are not specifically listed within the definition of “agency” as set forth in section 66.1 of the Right-to-Know Act. However, in addition to the entities that are explicitly enumerated, section 66.1 provides a catchall provision which subjects to the Act’s requirements organizations that are similar to those listed and which perform or have for their purpose, the performance of an essential governmental function. Chester Community Charter School asserts, however, that the catchall provision refers only to those organizations that are similar to state or municipal authorities since the language of section 66.1 lists “state or municipal authorities” immediately preceding the catch-all provision. Contending that charter schools are not similar to state or municipal authorities, Chester Community Charter School argues that it is therefore not subject to the Right-to-Know Act. . . . Courts within this Commonwealth have repeatedly found school districts, vested with the power to carry out the provisions of the
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Public School Code, sufficiently similar to the entities explicitly listed in section 66.1 to qualify as “agencies” within the Act’s definition. Public schools, which constitute the foundation of school districts, are therefore subject to the Right-to-Know Act’s record requirements. Charter schools are not exempt from the statutes that are applicable to public schools. [A] critical inquiry is whether the organization performs an “essential governmental function.” In determining whether an agency is performing an essential governmental function, we held in Community College that the performing entity must be either statutorily identified as providing an essential service or provide a service which is constitutionally mandated or indisputably necessary to continued existence of the Commonwealth. . . . The Charter School Law, pursuant to which Chester Community Charter School was created, defines a charter school as “an independent public school established and operated under a charter from the local board of school directors and in which students are enrolled or attend.” The Public School Code, within which the Charter School Law is contained, is intended to “establish a thorough and efficient system of public education, to which every child has a right.” A stated purpose of charter schools is to “provide parents and pupils with expanded choices in the types of educational opportunities that are available within the public school system.” (“A charter school is defined under the [Charter School Law] as an independent, nonprofit, public school. . . .”). Therefore charter schools, as independent public schools created for the purpose of providing the essential governmental service of education in a constitutionally mandated manner, are necessarily included among the agencies that are subject to the Right-to-Know Act. . . . Additionally, the Right-to-Know Act, enacted on June 21, 1957, predates the Charter School Law, which was enacted on June 19, 1997. Therefore, we may presume that at the time the Charter School Law was enacted, the Legislature was aware that charter schools would fall within the Act’s authority, and consequently declined to specifically reference the Right-to-Know Act within the Charter School Law. For the same reason, the Legislature may have declined to explicitly include charter schools within the definition
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of “agency” upon the amendment of the Rightto-Know Act on June 29, 2002. The General Assembly is empowered to pass legislation [and] define the terms of its legislation as its sees fit. While the Legislature may have declined to mandate compliance with the Right-to-Know Act within the Charter School Law, the Right-to-Know Act itself includes charter schools within its scope and therefore subjects charter schools to its requirements. Accordingly, we affirm the determination of the Commonwealth Court that the records requested by the Appellee are subject to public disclosure.
Citizen May Review Teacher’s Personnel File Under Authority of State Public Record Law
Hovet v. Hebron Public School District Supreme Court of North Dakota, 1988. 419 N.W.2d 189.
VANDE WALLE, Justice. Meredith Hovet appealed from a judgment of dismissal declaring his personnel file to be a public record open for inspection by the public under the provisions of Sections 44-04-18 and 1529-10, N.D.C.C., and Article XI, Section 6, of the North Dakota Constitution. We affirm. Hovet was employed by the Hebron Public School District (School District) as a teacher of business education and physical education during the 1986–1987 school year and had been so employed for the previous three school years. During the course of this employment a personnel file was maintained by the School District. By a letter dated May 21, 1987, Madonna Tibor requested that the School District allow her to review Hovet’s personnel file. Subsequently the superintendent for the School District agreed to provide a review of Hovet’s personnel file on June 2, 1987.
Hovet then filed a complaint seeking a permanent injunction enjoining the School District from allowing the review of his personnel file by anyone other than a legal representative of the School District. At this time Hovet also sought a temporary restraining order prohibiting the review. A hearing was held and a temporary restraining order was granted. . . . Hovet and the School District each argued that the personnel file was confidential. Tibor argued that the personnel file was a public record open to inspection. . . . The trial court issued a judgment of dismissal. It is from this judgment that Hovet appealed. We note that the School District has aligned itself with Hovet and against Tibor on appeal. Hovet and the School District concede that the personnel file is a governmental record, but argue that it is a record not open to public inspection because certain statutes protect a teacher’s personnel file from inspection under the open-records law. The concession that the personnel file is a governmental record is based upon this court’s decisions. . . . Open governmental records in North Dakota are required by our Constitution and our statutes. Article XI, Section 6, of the North Dakota constitution provides: Unless otherwise provided by law, all records of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours.
Section 44-04-18, N.D.C.C., tracks and implements Article XI, Section 6. It provides: 1. Except as otherwise specifically provided by law, all records of public or governmental bodies, boards, bureaus, commissions or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours. 2. Violations of this section shall be punishable as an infraction.
The first argument of Hovet and the School District is that Section 15-47-38, N.D.C.C.,
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Open Meetings and Public Records Laws
provides an implied exception to the openrecords law. Section 15-47-38 specifies the procedures to be utilized when a school board discharges a teacher or decides to not renew a teacher’s contract. Among these procedures are the following: For a non-renewal decision the reasons for non-renewal must be drawn from specific and documented findings arising from formal reviews conducted by the board with respect to the teacher’s overall performance; that such proceedings must be held in an executive session unless both parties agree to open them to the public; that no action for libel or slander shall lie for statements expressed orally or in writing at the executive sessions. Hovet and the School District argue that these procedures are designed to facilitate openness in the proceedings and to protect the teacher’s reputation. They reason that opening to the public a teacher’s personnel file—which would be reviewed at these proceedings—harms the above-stated goals. Thus, they conclude, an exception for teachers’ personnel files from the open-records law must be implied. This argument, however, ignores the language of the open-records law. Section 44-0418(1), N.D.C.C., provides that all governmental records are open to the public “Except as otherwise specifically provided by law. . . .” (emphasis added) Our Code provides that “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears. . . .” The word “specific” usually is defined to mean “explicitly set forth; particular, definite.” . . . This definition is opposite to the meaning of “implied,” which is defined to mean “suggested, involved, or understood although not clearly or openly expressed.” . . . Thus, because the open-records law provides that governmental records are to be open to the public “Except as otherwise specifically provided by law,” an exception to the open-records law may not be implied. In order that a record may be excerpted from the open-records law, the Legislature must specifically address the status of that type of record—e.g., statements that a certain type of record is confidential or that it is not open to the public. . . . Thus, for an exception to the open-records law to exist under our constitutional and statutory provisions, it must be specific, i.e., the
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Legislature must directly address the status of the record in question, for a specific exception, by the plain terms of those provisions, may not be implied. Therefore, the contention that an exception to the open-records law for teacher personnel files should be implied from Section 15-47-38, N.D.C.C., must fail. Hovet next alleges that he has a right to privacy guaranteed to him by the United States Constitution and the North Dakota Constitution, which will be violated if the public is allowed to inspect his personnel file. . . . In Grand Forks Herald we decided that personnel records are not protected by the right to privacy arising under the Federal Constitution because personnel records do not concern a subject to which the Federal right to privacy has been recognized as applying. . . . In Grand Forks Herald we also refused to find that a governmental employee’s personnel record was protected by a right to privacy arising from the North Dakota Constitution. . . . Even if a right to privacy existed under our Constitution, there would be no right of privacy “in a personnel record of a person employed by a public agency. . . .” 307 N.W.2d at 580. [Vande Walle, J., concurring specially.] A teacher’s personnel file has not been shown to be different from the personnel files of other governmental employees. Therefore, we reject Hovet’s argument. . . . The judgment is affirmed. . . .
CASE NOTES 1. Public Records. A Florida statute defines public records as all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. Section 119.011(1), West’s Florida Statutes Annotated.
In holding that the transcript of a dismissal proceeding, held by a school board to determine the fitness of a school administrator, must be released on request of a newspaper, the Iowa Supreme Court said that, as a method of public policy, “Disclosure is favored over nondisclosure, and exemptions from disclosure are to be strictly
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construed and granted sparingly.” Board of Directors of Davenport Community School District v. Quad City Times, 382 N.W.2d 80 (Iowa 1986). 2. Where a public records statute provided that “records of any executive session may remain secret as long as publication may defeat purposes of the executive session, but no longer,” the court held that closed-session minutes of a hearing charging sexual harassment of an employee must be released on request to the newspaper after the employee had resigned. The court said: The lawful purposes of the executive sessions called by the school committee were to discuss the litigation that the school committee was engaged in with the director. By the time this case was filed, the director had resigned, and the litigation was terminated. Thus, the lawful purposes, . . . for which the executive sessions were held were no longer extant.
One is likely to be perplexed with this result because the minutes may have continuing harmful effects on the employee. In this case, however, the trial judge concluded that the purpose of the executive session was not to discuss or preserve the employee’s reputation, but rather to consider complaints or charges brought against the employee. Foudy v. Amherst-Pelham Regional School Committee, 402 Mass. 179, 521 N.E.2d 391 (1988). 3. A request was made to review a teacher’s personnel file, in particular the college transcript of the teacher. The court ruled that the Family Educational Rights and Privacy Act did not protect the transcript. Also the teacher’s right to privacy under the federal Constitution was rejected, and the Texas open records law required disclosure of the transcript. Klein Independent School District v. Mattox, 830 F.2d 576 (5th Cir. 1987). 4. Teacher Emails. A question may arise as to whether the contents of personal e-mails written by teachers, which were created and/or stored on a government-owned system, are “public records.” A Wisconsin court in 2010 addressed this issue and concluded that a teacher ’s personal e-mails sent on school e-mail accounts and district-owned computers were not records under that state’s Public
Records Act. This court pointed out that several states had addressed this question and each concluded that government employees’ personal e-mails are not information about government affairs; therefore, they are not open to the public. The court stated, “The court is asked in the instant case to apply the Public Records Law to emails, a technology not contemplated when the legislature enacted the Public Records Law.” The court said that courts are routinely required to interpret the meaning of statutory language and apply it to “complicated social questions” involving technology that were not contemplated when a statute was enacted. Schill v. Wisconsin Rapids School District Schill v. Wisconsin Rapids School District, 786 N.W.2d 177 (S. Ct. Wis. 2010). 5. Concerning teacher e-mails, a Michigan appellate court concluded that, “while we believe this question is one that must be resolved by the Legislature, and we call upon the Legislature to address it, we conclude that under the Michigan Freedom of Information Act, FOIA, the individual plaintiff’s (teacher’s) personal emails were not rendered public records solely because they were captured in the email systems’ digital memory. Additionally, we conclude that mere violation of an acceptable use policy barring personal use of the email system—at least one that does not expressly provide that emails are subject to FOIA—does not render emails public records subject to FOIA.” Howell Education Association MEA/NEA v. Howell Board of Education, Howell Education Association MEA/NEA v. Howell Board of Education, 287 Mich.App. 228, ___ N.W.2d ___ (2010).
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Summation of Case Law
Legislative Control 1. The control of schools and school affairs is vested in the lawmaking power of the state, upon the principle that schools are intrinsically matters of state concern, and not of a local nature. Both by the state constitution and the intrinsic nature of the duty and the power, the authority is exclusively legislative, and the matter over which it is to be exercised solely of state concern.
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Summation of Case Law
2. The legislature has choice of methods for public schools and may change its plans as often as it deems necessary or expedient. For any mistakes or abuses, it is answerable to people, but not to courts. It has been a uniform course since the organization of states to regulate and control school affairs by legislation. All public schools have been established by legislative enactments, and all rules and regulations have been made pursuant to statutory authority. Every school district and school owes its existence to legislation, and every school officer owes his authority to statute. 3. The power to establish a uniform system of common schools is lodged in the state legislature. Incident thereto, the legislature has the principal authority to prescribe the course of study and the system of instruction that shall be pursued and adopted, as well as the books which shall be used. Delegation of Legislative Authority 1. A state legislature may constitutionally delegate its legislative functions to an administrative agency, but it must provide, with reasonable clarity, limitations upon the agency’s discretion and provide the agency with policy guidance. 2. A statute granting legislative power to an administrative agency will be held to be invalid if the legislature has failed to prescribe a policy, standard, or rule to guide the exercise of the delegated authority. If the legislature fails to prescribe such with reasonable clarity the limits of power delegated to an administrative agency, or if those limits are too broad, the statute is invalid. 3. A state may constitutionally vest discretion as to execution of law in administrators when the legislature states the purpose of the law and sets up standards to guide agency administering it. Administrative Discretion 1. A statute reposing, in effect, an absolute, unregulated, and undefined discretion in an administrative body, bestows arbitrary powers and unlawfully delegates legislative powers.
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2. The presumption that an officer will not act arbitrarily, but will exercise sound discretion and good faith, cannot sustain delegation of unregulated discretion to him by statute. 3. The method and manner of enforcing any law must be left to reasonable discretion of administrative officers, but a statute vesting in such officer’s discretion to determine what the law is or to apply it to one party and refuse its application to another in like circumstances is void as unwarranted delegation of legislative authority. Impartial Tribunal 1. A decision maker is not disqualified on due process grounds simply because it has taken a position, even in public, on a policy issue related to the dispute if there is no showing that the decision maker is not capable of judging the particular controversy fairly on the basis of its own circumstances. 2. A school board’s prior role as negotiator with its teachers does not disqualify it, on due process grounds, from deciding that the public interest, in maintaining uninterrupted classrooms, required the striking teachers to be discharged. Abuse of Discretion 1. An abuse of discretion by an agency is synonymous with unreasonableness. 2. An agency’s decision is unreasonable where it is not based on substantial evidence or is based on an erroneous application of the law. 3. In applying an abuse of discretion standard, an appellate court looks only to whether a reasonable person could have found sufficient evidence to come to the same conclusion as reached by the school district. Thus, an appellate court will find that a decision was unreasonable if it was not based upon substantial evidence or was based upon an erroneous application of the law. Delegation of School Board Authority 1. Where a high school could be withdrawn from association, which established rules relating to athletic competition between schools, the school’s membership in association did not constitute an illegal delegation of authority of the school board.
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2. Legislation by an interscholastic association that deals with athletic eligibility is not violative of equal protection rights if the legislation has a reasonable basis.
applying, and even if a right to privacy existed under the state constitution, there would be no right to privacy in the personnel record of a person employed by a public agency.
Conflict of Interest Legislative intent prohibiting conflicts of interest seeks to engender confidence in public bodies and to eliminate situations in which preference or undue influence could come to bear in operation of government. School Board Elections 1. States must ensure in elections that each person’s vote counts as much, insofar as it is practicable, as any other person’s. 2. Generally, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis which will ensure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials. 3. Where a state chooses to select members of an official public body by appointment rather than by election, and that choice does not itself offend the U.S. Constitution, the fact that each official does not “represent” the same number of people does not deny those people equal protection of the laws. Open Meetings A school board does not violate open meetings law when it conducts a closed-session discussion and approval of drug search of student lockers without including the matter of drug search on the agenda for its meetings. Public Records Allowing the public to view teacher’s personnel file pursuant to open-records law does not violate a teacher ’s right to privacy. Personnel records do not concern a subject to which the federal right to privacy has been recognized as
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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. 67B Am.Jur.2d Schools § 8. Education as a Government Function: Legislatures Power and Duty. 78 C.J.S. Schools and School Districts § 6. Public Schools In General: Legislative Power and Discretion. Am.Jur.2d. Municipal Corporations, Counties, and other Political Subdivisions: Express and Implied Powers. Am.Jur.2d. Schools. Introductory Matters, Establishment and Regulation of Charter Schools, Contracts. A.L.R. Validity, Construction, and Application of Statute or Regulation Governing Charter Schools. 16A Am.Jur.2d Constitutional Law § 329. Departmental Separation of Governmental Powers: Delegation of Powers, Legislative Powers, Particular Delegations. 69 A.L.R. 266. Constitutionality of Statutes for Formation or Change of Political Districts or Municipal Corporations Having To Do With Delegated Powers. 16 C.J.S. Constitutional Law § 293. Distribution of Governmental Powers and Functions: Legislative Powers and Delegation to Local Authorities. 16D C.J.S. Constitutional Law § 1815. Administrative Proceedings Impartiality in Hearings. 52 A.L.R.3d 1036. Nature and Extent of School Transportation that Must Be Furnished Free. 15 A.L.R.4th 885. Validity of Regulation of Athletic Eligibility of Students. 67B Am.Jur.2d Schools § 29. School Districts: Powers and Duties.
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Endnotes
16B C.J.S. Constitutional Law § 1277. Political Rights and Elections: Equality of Voting Power. 73 C.J.S. Public Administrative Law and Procedure § 32. Administrative Agencies, Officers and Agents. Meeting; Sunshine Laws Am.Jur.2d Municipal Corporations, Counties, and Other Political Subdivisions. Meetings and Proceedings: Requirements of Public Meetings. 2 Am.Jur.2d Administrative Law § 84. Meetings and Records: Public Meetings Requirements and Sunshine Acts. 35 A.L.R.5th 113. Pending or Prospective Litigation Exception Under State Law Making Proceedings by Public Agencies Open to the Public. 78 A.L.R.5th 533. Validity Construction, and Application of Statute or Regulation Governing Charter Schools. 27 A.L.R. 4th 680. What Are “Records” of an Agency Which Must Be Available Under State Freedom of Information Acts?
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Endnotes
1. Aristotle, The Politics, trans. T. A. Sinclair, revised and represented by Trevor J. Saunders (London: Penguin Books, 1981), p. 54. 2. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), p. 138. 3. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 212. 4. Ibid., p. 213. 5. Ibid. 6. Ibid. 7. State Tax Commission v. Board of Education of Jefferson County, 235 Ala. 388, 179 So. 197 (1938). 8. Board of Education v. Stoddard, 294 N.Y. 667, 60 N.E.2d 757 (1945). 9. Moore v. Board of Education, 212 N.C. 499, 193 S.E. 732 (1937). 10. Child Welfare Society of Flint v. Kennedy School District, 220 Mich. 290, 189 N.W. 1002 (1922). 11. Board of Education of Aberdeen-Huntington Local School District v. State Board of Education, 116 Ohio App. 515, 189 N.E.2d 81 (1962). 12. Campbell v. Aldrich, 159 Or. 208, 79 P. 2d 257 (1938), appeal dismissed, 305 U.S. 559, 59 S. Ct. 87 (1938). 13. Leeper v. State, 103 Tenn. 500, 53 S.W. 962 (1899). 14. Hannibal and St. J. Railroad Co. v. Husen, 95 U.S. (5 Otto) 465 (1877). 15. Leroy J. Peterson, Richard A. Rossmiller, and Marlin M. Volz, The Law and Public School Operation (New York: Harper & Row, 1978), p. 90. 16. Halstead v. Rozmiarek, 167 Neb. 652, 94 N.W.2d 37 (1959).
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17. People v. Draper, 15 N.Y. 532 (1857). 18. See Newton Edwards, The Courts and the Public Schools (University of Chicago Press, 1955), p. 27; Commonwealth v. Hartman, 17 Pa. 118 (1851); Moseley v. Welch, 209 S.C. 19, 39 S.E.2d 133 (1946); Board of Education of Chicago v. Upham, 357 Ill. 263, 191 N.E. 876 (1934); Board of Education v. State Board of Education, 116 Ohio App. 515, 189 N.E.2d 81 (1962); Associated Schools of Independent District No. 63 v. School District No. 83 of Renville County, 122 Minn. 254, 142 N.W. 325 (1913). 19. State of Michigan ex rel. Kies v. Lowry, 199 U.S. 233, 26 S. Ct. 27 (1905). 20. Edwards, The Courts and the Public Schools, op. cit., p. 28. 21. See Helena Elementary School District No. 1 v. State, 236 Mont. 44, 769 P.2d 684 (1989); Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989); Edgewood Independent School District v. Kirby, 777 S.W.2d 391 (Tex. 1989). 22. William E. Thro, “The Third Wave: The Impact of the Montana, Kentucky and Texas Decisions on the Future of Public School Finance Reform Litigation,” Journal of Law and Education 19, no. 2 (Spring 1990), p. 240. 23. Seattle School Dist. No. 1 v. State, 90 Wash.2d 476, 511–513, 514, 585 P. 2d 71, 91–92 (1978). 24. Tyska by Tyska v. Board of Education, 117 Ill. App.3d 917, 73 Ill. Dec. 209, 453 N.E.2d 1344 (1983). 25. Louis L. Jaffe, “Essay on Delegation of Legislative Power,” 47 Colorado Law Review, pp. 359, 361 (1947). 26. Attorney General v. Lowrey, 131 Mich. 639, 92 N.W. 289 (1902). 27. MacQueen v. City Commission of City of Port Huron, 194 Mich. 328, 160 N.W. 627 (1916). 28. Board of Educ. of Louisville v. Society of Alumni of Louisville Male High School, 239 S.W.2d 931 (Ky. 1951). 29. School District No. 1, Multnomah County v. Bruck, 225 Or. 496, 358 P.2d 283 (1960). 30. Goodman v. School District No. 1, 32 F.2d 586 (8th Cir. 1929). 31. Hallett v. Post Printing & Publishing Co., 68 Colo. 573, 192 P. 658 (1920). 32. McGilvra v. Seattle School District No. 1, 113 Wash. 619, 194 P. 817 (1921). 33. Jarrett v. Goodall, 113 W.Va. 478, 168 S.E. 763 (1933). 34. Brine v. City of Cambridge, 265 Mass. 452, 164 N.E. 619 (1929). 35. Denver Board of Education v. Booth, 984 P. 2d 639 (Colo. 1999). 36. Lujan v. Colorado State Board of Education, 649 P. 2d 1005 (Colo. 1982). 37. Owens v. Colorado Congress of Parents, Teachers and Students, 92 P. 3d 933 (2004). 38. Kenneth Culp Davis, Administrative Law Treatise, Vol. 1 (St. Paul, MN: West Publishing Co., 1958), p. 5. 39. Ibid., p. 102. 40. John Locke, Two Treatises of Civil Government, Book 2, Ch. 11, § 141. 41. Osius v. City of St. Clair Shores, 344 Mich. 693, 75 N.W.2d 25 (1956). 42. Davis, Administrative Law Treatise, p. 103. 43. Ward v. Scott, 11 N.J. 117, 93 A.2d 385 (1952).
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44. Ibid. 45. State v. Kinnear, 70 Wash.2d 482, 423 P.2d 937 (1967). 46. School District No. 3 of Town of Adams v. Callahan, 237 Wis. 560, 297 N.W. 407 (1941). 47. Schinck v. Board of Education of Westwood Consolidated School Dist., 60 N.J. Super. 448, 159 A.2d 396 (1960). 48. Jokinen v. Allen, 15 Misc.2d 124, 182 N.Y.S.2d 166 (1958). 49. Bowles v. Willingham, 321 U.S. 503, 64 S. Ct. 641 (1944). 50. S.A. de Smith, Judicial Review of Administrative Action (London: Stevens & Sons, 1973), p. 60. 51. Fremont RE-1 School District v. Jacobs, 737 P.2d 816 (Colo. 1987). 52. Robert F. Will, State Education, Structure and Organization (U.S. Department of Health, Education and Welfare, U.S. Office of Education, 1964), pp. 8–10. 53. Laba v. Board of Education of Newark, 23 N.J. 364, 129 A.2d 273 (1957). 54. In re Masiello, 25 N.J. 590, 138 A.2d 393 (1958). 55. R. v. Roberts, 2 K.B. 695 (1924). See also Kern Alexander, “Administrative Prerogative: Restraints of Natural Justice on Student Discipline,” Journal of Law and Education 7, no. 3 (July 1978), pp. 331–358. 56. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 113. 57. Lloyd L. Weinreb, Natural Law and Justice (Cambridge, Mass.: Harvard University Press, 1987), p. 166. 58. Hortonville Joint School District No. 1 v. Hortonville Education Ass’n, 426 U.S. 482, 96 S. Ct. 2308 (1976). 59. A. H. Andrews Co. v. Delight Special School District, 95 Ark. 26, 128 S.W. 361 (1910). 60. Edwards, The Courts and the Public Schools, op. cit., p. 147. 61. Knox County Board of Education v. Fultz, 241 Ky. 265, 43 S.W.2d 707 (1931); Lyerley v. Manila School District 15, 214 Ark. 245, 215 S.W.2d 733 (1948); Board of Education v. County Board of School Trustees, 25 Ill. App.2d 390, 166 N.E.2d 472 (1960); Detroit Edison Co. v. East China Township School District No. 3, 366 Mich. 638, 115 N.W.2d 298 (1962); School District No. 12, Phillips County v. Hughes, 170 Mont. 267, 552 P.2d 328 (1976). 62. Board of Education of City of New York v. Allen, 6 N.Y 2d 127, 188 N.Y.S.2d 515, 160 N.E.2d 60 (1959). 63. Board of Education v. County Board of School Trustees, 32 Ill. App.2d 1, 176 N.E.2d 633 (1961). 64. de Smith, Judicial Review of Administrative Action, p. 283. 65. Ibid., pp. 288–289. 66. Ibid., p. 279. 67. Bristol, Virginia School Board v. Quarles, 235 Va. 108, 119–20, 366 S.E.2d 82, 89 (1988). 68. Wood v. Board of Supervisors of Halifax County, 236 Va. 104, 372 S.E.2d 611 (1988). 69. School District of Harrisburg v. Pennsylvania Interscholastic Ass’n, 309 A.2d 353 (Pa. 1973). 70. Marshall v. Alabama High School Athletic Ass’n, 717 So.2d 404 (Ala. Civ. App. 1998). 71. Crane by Crane v. Indiana High School Athletic Ass’n, 975 F.2d 1315 (7th Cir. 1992). 72. Bailey v. Truby, 321 S.E.2d 302 (W.Va. 1984); Thompson v. Fayette County Public Schools, 786 S.W.2d 879 (Ky. Ct. App. 1990). 73. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982).
74. L.P.M. v. School Board of Seminole County, 753 So.2d 130 (Fl. Dist. Ct. App. 2000); Pirschel v. Sorrell, 2 F. Supp. 2d 930 (E. D. Ky. 1998). 75. Moran v. School District No. 7, Yellowstone County, 350 F. Supp. 1180 (D. Mont. 1972). 76. State ex rel. Bartmess v. Board of Trustees of School District No. 1, 223 Mont. 269, 726 P.2d 801 (1986). 77. Grabow v. The Montana High School Ass’n, 312 Mont. 92, 59 P.3d 14 (2002). 78. Bunger v. Iowa High School Athletic Ass’n, 197 N.W.2d 555, 53 A.L.R.3d 1110 (1972). 79. Ibid. 80. The Iowa Supreme Court in Bunger, Ibid. Quoted in 78 Corpus Juris Secundum § 122 at p. 91. 81. Bunger, op. cit. 82. 531 U.S. 288, 121 S. Ct. 924 (2001). 83. Tennessee Secondary School Athletic Association v. Brentwood Academy, U.S. 2007, 127 S. Ct. 2489, 2007 168 L. Ed. 2d 166 (2007). 84. Ibid. 85. Shelmadine v. City of Elkhart, 75 Ind. App. 493, 129 N.E. 878 (1921). 86. Main v. Claremont Unified School District, 161 Cal. App.2d 189, 326 P.2d 573 (1958). 87. Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952). 88. Constitution of Indiana, Art. 2, § 9. 89. People v. Becker, 112 Cal. App.2d 324, 246 P.2d 103 (1952). 90. State ex rel. Robinson v. Keefe, 111 Fla. 701, 149 So. 638 (1933). 91. Green v. Jones, 144 W.Va. 276, 108 S.E.2d 1 (1959). 92. Leech v. State, 78 Ind. 570 (1881). 93. People v. Reinberg, 263 Ill. 536, 105 N.E. 715 (1914). 94. Commonwealth v. Fahey, 156 Pa. Super. 254, 40 A.2d 167 (1944). 95. 328 U.S. 549, 66 S. Ct. 1198 (1946). 96. Ibid. 97. 369 U.S. 186, 82 S. Ct. 691 (1962). 98. Hadley v. Junior College District of Metropolitan Kansas City, Mo., 397 U.S. 50, 90 S. Ct. 791 (1970). 99. Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801 (1963). 100. Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964). 101. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 99 S. Ct. 383 (1978). 102. Associated Enters, Inc. v. Toltec Watershed Improvement District, 410 U.S. 743, 93 S. Ct. 1237 (1973). 103. Ball v. James, 451 U.S. 355, 101 S. Ct. 1811 (1981). 104. Hill v. Stone, 421 U.S. 289, 95 S. Ct. 1637 (1975). 105. Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S. Ct. 1886 (1969). 106. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532 (1970). 107. Duncan v. Coffee County, Tennessee, 69 F.3d 88 (6th Cir. 1995). 108. Ibid. 109. Board of County Commissioners of Shelby County, Tennessee v. Burson, 121 F.3d 244 (6th Cir. 1997). 110. Duncan v. Coffee County, Tennessee, op. cit. 111. Conover v. Board of Education, 1 Utah 2d 375, 267 P.2d 768 (1954). 112. Morning Call v. Board of School Directors, 164 Pa. Commw. 263, 642 A.2d 619 (1994).
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Quoted Box Citations 113. Ibid. 114. McCemas v. Board of Education of Fayette County, 475 S. E.2d 280 (W.Va. 1996). 115. Hackworth v. Board of Education for the City of Atlanta, 214 Ga. App. 17, 447 S.E.2d 78 (1994). 116. Kansas City Star Co. v. Fulson, 859 S.W.2d 934 (Mo. App. 1993). 117. Ibid., p. 940. 118. Ibid. 119. Ibid. 120. Dallas Morning News Co. v. Board of Trustees of Dallas Independent School District, 861 S.W.2d 532 (Tex. Ct. App. 1993).
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121. Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 436 A.2d 266 (1980).
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Quoted Box Citations
The Mind of the Founder: Sources of the Political Thought of James Madison, Revised Edition. Edited by Marvin Meyers, (Hanover and London, Published for Brandeis University Press by University Press of New England, 1973), p. 343. Richards v. Raymond, 92 Ill. 612, 1879 WL 8569 (1879).
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CHAPTER 5
Church and State When a religion is good, I conceive that it will support itself; when it cannot support itself, and God does not take care to support it, so that its professors are obliged to call for the help of the civil power, it is a sign, I apprehend, of its being a bad one. . . . —Benjamin Franklin, 1780
CHAPTER OUTLINE ■
INTRODUCTION
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VOUCHERS
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BACKGROUND
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INDEPENDENT VITALITY OF STATE CONSTITUTIONS
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WALL OF SEPARATION
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COLONIAL ESTABLISHMENTS
SUPREME COURT’S SECULARIZATION OF PUBLIC SCHOOLS: A BIFURCATED STANDARD Released Time for Religious Instruction
The Three Choices ■
SEPARATION IMPLEMENTED
Volitional Exercises
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CHURCH OPPOSITION TO SCHOOLS OF THE REPUBLIC
Religious Exercises
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THE PUBLIC SCHOOL AND RELIGION
Silent Meditation
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PUBLIC TAXATION TO SUPPORT RELIGIOUS SCHOOLS
Student-Initiated Religious Speech
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THE ESTABLISHMENT CLAUSE AND THE LEMON TEST
Prayer at Graduation and Extracurricular Activities
The Lemon Test The Wall Begins to Crumble The Marginalizing of Lemon The New Establishment Clause Jurisprudence ■
RELIGION AND THE RECONSTRUCTION ERA: GRANT AND BLAINE
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THE FOUNDERS’ INTENT REGARDING SEPARATION
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NEW THEORIES OF CHURCH AND STATE
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EQUAL ACCESS ACT
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FACILITIES
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FLAG SALUTE
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SUMMATION OF CASE LAW
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RESEARCH AIDS
Separation Nonpreferential Subsidization Subsidization and Collaboration
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Background
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Introduction
The leading clauses of the First Amendment, so revered by the Founders of the Republic, proclaims: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .” As we shall see in this chapter, the current Supreme Court in its “new jurisprudence” has effectively abrogated the Establishment Clause now permitting Congress and state legislatures to provide public funds for religious institutions, even “pervasively sectarian” ones, by means of devices such as “grants for faith-based initiatives” as well as vouchers and tax credits to support clerical schools. The Court, however, while permitting public monies to flow to church-controlled schools and institutions, has been consistently diligent in its pursuit of the secularization of public institutions, in general, and public schools in particular. The legal precedents rendered by the Supreme Court are discussed throughout this chapter.
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Background
Reports of religious conflicts worldwide are emblazoned across the front pages and covers of major newspapers and magazines in virtually every edition. Religious and ethnic cleansing, and indeed genocide, are not recent phenomena and have been a tragic part of our world’s history for time immemorial. Witness the atrocities perpetrated against the Christians during the Roman Empire, the Jews and Muslims in the name of religion during the Crusades, the Spanish Inquisition, the pogroms in Russia and the Holocaust, and against other groups in more recent history, including genocide carried out against Americans, Bosnians, and Kurds. Additionally, religious strife continues to be standard fare in daily news accounts. Northern Ireland, Iraq, Iran, Indonesia, Kashmir, Algeria, Israel, Egypt, and the Christians versus Muslims at “ground zero” in New York City, 2010, are but a few of the trouble spots dealing with religious discord in today’s world. 1 The Economist has called this increasing religious militancy “a crisis of conscience,” affecting peoples throughout the world.2 In his influential book The Clash of Civilizations, Huntington observes that “Religion is a central
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defining characteristic of civilizations,” 3 and religious intolerance has created definitive “fault lines” between the Christian west and the Muslim east.4 Rising religious division has dramatically affected the drafting of a new constitution for the European Union. This problem, coupled with disagreement over the weight of voting power among the European Union countries, has thus far foreclosed the adoption of a new European charter.5 The French are strongly for separation of church and state and desire a secular document, whereas Poland, Italy, Spain, and Ireland require an explicit reference to Christianity in the statement of values of any new charter. On the other hand, Turkey, a country of millions of Muslims, which is scheduled to be a new entrant to the EU, is strongly secular and sees great difficulty in the European Union becoming a “Christian Club.” Moreover, the EU countries, as now constituted, are home to millions of Muslim, Hindu, and Jewish citizens.6 Thus, religious discord continues worldwide as one of the most troubling and historically insoluble issues facing world peace. Nor is this religious strife restricted to foreign and remote lands. As we have seen, religious fanaticism has bred dire and sorrowful problems in our own country, as witnessed by the debacle at Waco and the destruction of the World Trade Center in New York in September 2001. In the United States, there has been a recent and dramatic shift by large and prominent religious groups toward the view that “religiously trained professionals should exert spiritual influence over the secular matters of government.” 7 Cox, a professor of religion at Harvard, has explained, in an article entitled “The Warring Visions of the Religious Right,” the theological bases for the emergence of this new wave of Christian fundamentalism and its political implications at both the state and the federal levels. This fundamentalism argues that those with “Judeo-Christian” values are best qualified “to rule” and should be given their “rightful place of leadership at the top of the world” before world peace can or should be restored. This dogma has been given increasing credence in legislative halls.8 All of this is not new, but with new momentum, religious fundamentalism has recently reached out in an effort to control both state legislatures and the
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U.S. Congress, materially affecting the nature and structure of public schools in America. The court cases bearing on efforts by various religious groups to use tax monies to enhance religious schools, coupled with efforts to introduce sectarianism into the activities of public schools, reflect the multiplication and magnification of this religious discord surrounding public schools. This chapter is about the struggle for liberty of conscience and the requirements on the public schools in maintaining neutrality in matters of religion.
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Wall of Separation
In 1879, the Supreme Court in Reynolds v. United States9 first invoked Jefferson’s famous dictum, calling for the erection of a “wall of separation between church and state.” More than a century of judicial struggle has resulted in precious little resolution of the church and state conflict. In fact, it appears that the plethora of litigation over the years has merely tended to obscure the boundaries of separation envisaged by Jefferson. Indeed, lately it seems that the vision of separation, the foundational premise10 of religious freedom, may be becoming so obscure as to have indiscernible contours and boundaries. In 1985, Chief Justice Rehnquist, in his dissent in Wallace v. Jaffree, started the judicial ball rolling to dismantling the American “wall of separation” by roundly condemning the entire idea, saying that it is “a metaphor based on bad history, a metaphor which has proved useless as a guide to judging,” and that it “should be frankly and explicitly abandoned.”11
WALL OF SEPARATION I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. —Thomas Jefferson, reply to Danbury Baptist, Connecticut, January 1, 1802
[B]ishops may not meddle with the affairs of the commonwealth because they are governors of another corporation, which is the church, nor kings with making laws for the church, because they have government not of this corporation, but of another divided from it, the commonwealth, and the walls of separation between the two must forever be upheld. —Richard Hooker, England, 1648 For public schools to exist, “[I]t is necessary to erect a wall of separation between education and religion.” —Directory’s Commissioner to the Seine, Paris, France, 1793
Thus, the issue of separation and the interrelationship between religion and government retains its characteristic preeminence as a divisive issue in American society. To better understand the problem requires a brief look backward to the antecedents of the church–state issues touching the schools of this country. Centuries of religious strife in Europe left an indelible mark on the minds of the fathers of the American Constitution. Controversy over religion has not abated and today causes as much international and domestic discord as it did a thousand years ago. The diversity of religious backgrounds among the American colonies was so great, and religious sentiments so deep, that representatives at the Constitutional Convention in Philadelphia in 1787 were loath to address the issue should the convention founder on the shoals of religious dissension. Avoidance was implicitly agreed upon, and everyone more or less adopted the position of John Adams, who assumed that if the issue was not mentioned, both the state and religion would be best served. Adams expressed the hope that “Congress will never meddle with religion further than to say their own prayers, and to fast and to give thanks once a year.”12 Some believed that simple omission was not the appropriate solution to the religious dilemma, and although it was not acted upon by the convention, Pinckney of South Carolina sought to make the absence of congressional power in religion explicit by proposing that the new constitution provide that “the legislature of the United States
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Colonial Establishments
shall pass no law on the subject of religion.”13 Even though no general religious provision was acted upon, there is little doubt that the failure resulted from the delegates’ firm belief that such a provision was not necessary to preserve religious liberty. Although no general religious separation provision was thought to be needed, the convention did decide to specifically prohibit states from imposing religious tests for federal office. Madison explained it might be implied that “without [an] exception, a power would have been given to impose an oath involving religious test as a qualification for office.”14 Obviously, it was in the interest of the central government to prevent states with different religious ties from requiring religious tests for federal office. With cognizance of this, the convention adopted Pinckney’s motion that “no religious test shall ever be required as a qualification to any office or public trust under the United States”; this became the last clause of Article VI in the Constitution. Thus, when the Constitution was presented to the states, only the “religious test” of office provision was included, and no other reference was made regarding religious toleration. This omission was not taken lightly when the states were called upon to ratify the document. Six states ratified but proposed amendments guaranteeing religious liberty, and two other states, North Carolina and Rhode Island, refused to ratify until a bill of rights including religious freedom was promulgated.15 Although Madison defended the omission, saying that “the government has no jurisdiction over [religion],”16 it was argued by others that there was no security for the rights of conscience. Jefferson ultimately convinced Madison that a religious provision in a bill of rights was necessary. Commenting on the proposed constitution in a letter to Madison from Paris, where Jefferson was serving as ambassador, he said: I will now add what I do not like. First, the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against monopolies, the external and unremitting force of the habeas corpus laws, and trials by juries. . . . [A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inference.17
The very uncertainty itself of whether such rights were implied in the Constitution was
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evidence enough that a bill of rights protecting religious freedom and ensuring disestablishment was necessary. Madison, with Jefferson’s urging and his own experience in persuading the states to ratify only after promising amendments as specific affirmation of individual rights and freedoms, stated that he now favored amendments to provide for “all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trial by jury, etc.”18 In accordance with this position, Madison introduced to the House of Representatives, in 1789, a compilation of proposals for amendments that he maintained would prevent encroachments by the sovereign power into individual rights and liberties. Madison’s proposals before the House were to finally become the Bill of Rights, which was approved by the requisite number of states in 1791. Prominent among these rights was the separation of church and state provision, which guaranteed religious freedom and prohibits establishment of religion by government. The First Amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.
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Colonial Establishments
The colonies during the seventeenth and eighteenth centuries reflected the precedent of single-church establishments of Europe. Although the intensity of the force of the preferred church varied among the colonies, there nevertheless existed strong and unquestioned establishments of the Congregational Church in New England—Massachusetts, Connecticut, and New Hampshire—and of the Anglican Church in the South—Virginia, North Carolina, and South Carolina. Another group of colonies—New York, New Jersey, Maryland, and Georgia—evolved through periods of preference for different churches, and tax support for Protestant churches, as the population changed. In New York, for example, the Dutch Reformed Church was initially established, but as the colony grew, a heterogeneous group of other believers entered, including Calvinists, Lutherans, Mennonites, Quakers, Catholics, and Jews. When the English took over
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New Netherland and it became New York, the inclinations of the Stuarts toward Catholicism forced more toleration for all religious groups. The ultimate effect was that, by 1693, New York, while Anglican, was reasonably tolerant toward Catholics and generally provided tax support for all Protestant ministries.19 Because the religious preference of New York was largely unclear, a battle raged for years between the royal governors and the Anglican clergy, who demanded the clear and certain establishment of the Church of England. The policy ultimately became one of multiple establishments, whereby a variety of churches were provided funding by the state. A fourth group of colonies—Pennsylvania, Delaware, and Rhode Island—had a large measure of religious freedom, which generally prevailed from their origins. Pennsylvania advanced a toleration that generally followed William Penn’s philosophy as expounded in his Frame of Government, promoting freedom of religion.20 Delaware broke off from Pennsylvania in 1702 and continued this policy of religious freedom and the prohibition of use of public funds for church purposes. But Rhode Island, under Roger Williams, was the prototype of religious tolerance that came ultimately to prevail. From the time that Williams landed in Massachusetts in 1631, conflict developed with the Puritan establishment. Because of his insistence on separation of civil and ecclesiastical aspects of society, Williams was banished in 1635. In 1636, he formed a plantation in Rhode Island territory, and in 1643, a patent was obtained from Charles I to form a new colony. Williams’s ideas regarding the separation of church and state were predominant in Rhode Island, evolving from four basic theses: (1) attempts by the state to enforce religious orthodoxy produce persecution and religious wars and pervert God’s plan for the regeneration of souls; (2) God has not blessed a particular form of government, and governments will vary with the nature of the people governed; (3) political and religious diversity cannot be avoided; and (4) the human conscience must be totally free, through religious freedom and the separation of church and state.21 These ideas were elaborated in Williams’s Bloudy Tenet of Persecution in 1644. Williams’s ideas undoubtedly influenced the American attitude toward disestablishment that became prevalent after the war for independence, but Williams’s legacy apparently
had little carryover on those who formed the new federal Constitution in 1787 and the subsequent First Amendment.22
THE THREE CHOICES When the matter of religion was to be considered by the Constitutional Convention at Philadelphia in 1787, there were essentially three rationalizations for church–state relationships that had arisen out of the Reformation: the Erastian (named after the German philosopher Erastus), the theocratic, and the separatist. First, and dominant among these was the Erastian view, which assumed state superiority over ecclesiastical affairs and used religion to further the interests of the state. It was during the Elizabethan era in England that the Erastian philosophy was fully implemented. The second, the theocratic, was founded in the idea that the church is supreme and the state should be used to further ecclesiastical policy. Third, complete separation was advanced as the proper course by minority dissident groups in Europe, but it did not find full expression until 1791 in America.23 It was, however, John Locke on whom both Madison and Jefferson relied for their basic philosophical ideas concerning separation. In his Letter Concerning Toleration, Locke maintained that “[t]he care of souls cannot belong to the civil magistrate because his power consists only in outward force, but true and saving religion consists in the inward persuasion of the mind.”24 Locke’s ideas were developed and expanded under fire in the great dispute in Virginia over the established religion that had been carefully protected by statutes promulgated by the Anglican Church until the Revolution. These laws provided for religious services according to the laws and orders of the Church of England: compulsory attendance at religious services, regulation of nonconformists, glebe lands for support of the clergy, and a system of governmentally sanctioned vestries empowered to levy tithes for upkeep of the church and ministers’ salaries.
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Separation Implemented
Jefferson, more than any other person, led in enunciating and implementing the separation principle. In 1776, while he was in Philadelphia writing the Declaration of Independence, he drafted a proposed constitution for Virginia that
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Separation Implemented
stated: “All persons shall have full and free liberty of religious opinion; nor shall any be compelled to frequent or maintain any religious institution.”25 Although this particular measure was not passed, it nevertheless set the tone for religious freedom for Virginia in the era to come. In spite of Jefferson’s position, however, in 1779 a bill was introduced in the Virginia legislature declaring that “the Christian Religion shall in all times coming be deemed and held to be the established Religion of the Commonwealth.”26 It required every person to enroll his or her name with the county clerk and designate the society that he or she intended to support, whereupon the clerk would present the roll for the appropriate religious group to determine assessment rates; these were then collected by the sheriff, and the proceeds were turned over to the church. Persons failing to enroll in a religious society had their payments spread across all religious groups.27 In 1784, the bill was called up for a vote. Entitled “A Bill Establishing a Provision for Teachers of the Christian Religion,” it was sponsored by Patrick Henry. Although the bill was defeated, from the preceding and ensuing debate, two of the most important documents in religious freedom were written, Jefferson’s Bill for Establishing Religious Freedom and Madison’s Memorial and Remonstrance against Religious Assessments. Jefferson’s bill was written and introduced in the Virginia General Assembly in 1779 but was not enacted into law until January 1786. Madison’s Memorial, in opposition to Henry’s bill for religious assessments, was of major historical significance. The philosophy stated therein has often been referred to by the U.S. Supreme Court in support of its opinions. The Memorial presents several arguments against the religious assessment bill, but more important, it conveys a philosophy of separation that, along with Jefferson’s, provided the logic and rationale for the “wall of separation” provisions of the First Amendment in 1791.
An Act for Establishing Religious Freedom, Thomas Jefferson Written and introduced in 1779, enacted in 1786.
. . . That the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being
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themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose power he feels most persuasive to righteousness, and is withdrawing from the ministry those temporal rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind. That our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that, therefore, the proscribing any citizen as unworthy of the public confidence by laying upon him an incapacity of being called to the offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; That it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though indeed these are criminals who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; That to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; . . . And finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument
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and debate, errors ceasing to be dangerous when it is permitted freely to contradict them. Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities. And though we well know this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with the powers equal to our own, and that therefore to declare this act irrevocable, would be of no effect in law, yet we are free to declare, and do declare, that their rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.
THREE PENCE TAX FOR RELIGION That the same authority that can call for each citizen to contribute three pence only of his property for the support of only one establishment, may force him to conform to any one establishment, in all cases whatsoever. —James Madison, Memorial and Remonstrance Against Religious Assessments, 1795
Memorial and Remonstrance Against Religious Assessments, James Madison 1785. To the Honorable General Assembly of the Commonwealth of Virginia. A Memorial and Remonstrance (in part).
We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of
General Assembly, entitled “A Bill establishing a provision for teachers of the Christian Religion,” and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill, Because we hold it for a fundamental and undeniable truth, “that religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.”28 The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. . . . Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We reverse this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever? . . . What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberties, may have found an established clergy convenient auxiliaries. A just government, instituted to secure and perpetuate it, needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which
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Church Opposition to Schools of the Republic
protects his person and his property; by neither invading the equal rights by any Sect, nor suffering any Sect to invade those of another. . . . Because, it (the proposed Virginia Bill) will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects. Torrents of blood have been spilt in the old World, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all difference in Religious opinions. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs, that equal and complete liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bonds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruit of the threatened innovation. The very appearance of the Bill has transformed that “Christian forbearance,29 love and charity,” which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed with the force of a law? . . . . . . We, the subscribers, say, that the General Assembly of the Commonwealth have no such authority: And that no effort may be omitted in our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand turn their councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his [blessing, may re]dound to their own praise, and may establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth.
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Church Opposition to Schools of the Republic
The idea of “schools of the republic,” or public schools, arose in the era of Enlightenment from
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about 1740 to 1800 in Germany, France, and America, the time of revolution and the forming of new republics. Earlier, universal education was far from the most progressive contemplation, and ignorance and prejudice retarded the human condition on both sides of the Atlantic.30 With the breadth of change emanating from the Enlightenment, a new secular and utilitarian spirit found the old system of religious education to be not only inadequate, but also a primary reason for the vast social ills that restrained the human spirit, manifested inequality, and resulted in a general denial of prospects in life for the poor and ignorant. Ultimately, the American and French revolutionaries of the 1790s, versed in the philosophy of the Enlightenment, moved to fill the educational vacuum that had long existed.31 Universal primary schooling became the ideal of a progressive nation. Essential to that ideal was the assumption that “children belonged to the nation as well as their families.”32 As Danton, the great French revolutionary, declared, “I too am a father, but my son does not belong to me, he belongs to the Republic.”33 In short, the education of the children was too important to be left to the parents and the Church. The theory of public secular schools that emerged from the Enlightenment philosophy was advanced by the founding fathers of the American Constitution: the best education was to be thorough and common to all children in public schools, and schools were to be nonsectarian and religiously neutral. As one commissioner of the Directory in the French Revolution in Paris stated, predating Jefferson’s reference to a wall, “it is necessary to erect a wall of separation between education and religion.”34 For a brief time in the 1790s, it appeared that public nonsectarian schools created during the Revolution might gain a foothold and succeed in France, but there soon emerged a great deterrent that one French historian called the “imperious demands for instruction in religious doctrines.”35 The Catholic Church was convinced that education not conducted by the Church itself could lead only to a general perversion of morals and the degeneration of the condition of society.36 In France, intense competition developed between the Catholic Church and the public schools.37 The competition between the newly created public and parochial schools intensified and was manifested in various ways, including
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community discord among teachers, parents, and pupils, even deteriorating into physical strife and pitched street fights. Moreover, the social and religious pressures resulted in the public schools drawing a poorer and smaller clientele of students than did the parochial schools. In the end, the new experiment of public schools in France was eclipsed as the government no longer sought to preserve a secular atmosphere in the public schools. The public school classrooms returned to the use of “religious texts, served as sacristans to the clergy and conformed to the religious ‘prejudices’ of the parents.”38 By 1811, virtually “all primary education had religious coloration;”39 thus, the public secular school ideal, fostered and given philosophical sustenance by the rationale and reasoning of the Enlightenment, never really obtained reality in revolutionary and postrevolutionary France. Public common schools fared better in America, where religious divisiveness and discord were not indigenous and well entrenched. In the early 1800s, various states set about creating public school systems that would not offend the diverse religious beliefs of those who populated the new nation. Commager’s cogent phrase, “How Europe Imagined and America Realized the Enlightenment,” was nowhere more evident than in the creation of American public schools.40 In the new republic, unlike in France and England, secularization and rationalism had made “inroads on the claims of the clergy to preeminence in the public arena,” and in particular with regard to public education.41 The early experience of England and the colonies taught that investing authority of the state in a privileged church had produced very little except “resentment and acrimony”42 and that “a broad text of toleration and equality” should be the goal of society and its schools.43 In America, there emerged, after much discord, an understanding that the separation of church and state would not impair morals or weaken any religion, but rather would strengthen both the state and the church.44 Yet America was not destined to cleanly escape the problems of the age-old religious strife of Europe that had prevented the successful establishment of a system of public schools in France and England. Each state in America had its own instances of religious opposition to the
creation of public schools intertwined with attempts by various religious groups to encroach on the school curriculum and to obtain public tax funds to support their own sectarian schools. Such conflict was particularly evident in New England and other original colonies, where church and state had not been separated prior to the American Revolution. As observed in Chapter 2 of this book, much opposition to public schools was manifested by Protestant churches in Massachusetts, developing into what Cubberley would later call “The Battle for Free State Schools.” 45 Not only was this battle joined by people who simply did not want to pay taxes for public schools, but also the opposition largely emanated from the ranks of conservative Protestant ministers who argued that public schools would injure religious schools’ attendance, thereby reducing their influence and thus retarding the progress and welfare of the churches. More intense objection came from more extreme Protestant sects, which feared that there was an ulterior motive of the state, “priestcraft,” the purpose of which was to create a state school that would then evolve into a state church.46 In Massachusetts, Horace Mann was roundly castigated as being antireligious and the principal exponent of “Godless public schools.”47 Cubberley, in writing about New England Puritan opposition to the creation of public schools, observed: “Those who believed in the old system of religious instruction, . . . those who desired to . . . stop the development of the public schools, united their forces in this first big attack (in America) against secular education.”48 Thus, a substantial segment of the Protestants opposed public schools and vigorously denounced them because they were nonsectarian and did not espouse particular religious beliefs. In 1838, Massachusetts public schools were assailed as being incapable of teaching moral values if they remained nonsectarian. It was said that “[t]he Bible . . . the need of a Redeemer . . . the holy employments of the redeemed in heaven—should be daily and thoroughly taught in the schools.”49 Later, in 1846, a great hue and cry arose in Massachusetts, where Protestant fundamentalist groups charged that the increase in “intemperance, crime, and juvenile depravity in the state was due to the ‘Godless schools.’”50
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The Public School and Religion
STRUGGLE OF RELIGION AND PUBLIC SCHOOLS In predominately Catholic countries, notably France and Italy, and later, almost every country in Latin America, Catholics and anticlerical liberals engaged in protracted struggles over matters of public education. [I]n the English-speaking Protestant North Atlantic, the German and Irish Catholic diaspora of the 1840s thrust the religious problem into center stage. . . . As one American Catholic writer put it in 1850, the battle over religion and education is ‘the fierce contest in Ireland; the same in France; the same in Belgium; the same in Prussia and the petty states of Germany; the same in Bavaria; the same in Austria; the same in Piedmont . . .’ The education issue became especially volatile in the United States. —John T. McGreevy Possibly the greatest early discord occurred in New York City, where Catholic immigrants from Europe, who constituted a large percentage of the total population, launched a determined resistance to the establishment of public schools. This episode was the principal event in the establishment of the parochial schools in America. In New York, Catholic clergy in the late 1830s and 1840s objected to the creation of public schools for the same reasons that were advanced by the Catholic Church in France during and after the French Revolution. The Catholic argument was basically twofold: first, by excluding sectarianism, positive church dogma was banished from public schools, and, second, if the public schools were to be sectarian, they could only be of the Catholic faith.51 If the public schools were not to teach Catholic doctrine as the only brand of religion, then the public schools would be promoting infidelity to Christianity; therefore, if the public common schools did not convey the Catholic theology, then Catholic children would not be permitted to attend.52 The Catholic Church defined religion as being inseparable from specific denominational doctrines and denied that any school could teach moral principles in the absence of the Catholic catechism.53 This reasoning therefore effectively foreclosed the possibility that the Catholic Church could ever support public common schools.
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The only condition under which an accord could be reached with the Catholic Church to participate in a system of education was for the state to pay for a “Catholic Public School System.” Any type of public school system that did not inculcate Catholic doctrine and that was nonsectarian and nondenominational was unacceptable. Thus, the permanent and insoluble problem was set, wherein fundamentalist Protestant groups and the Catholic Church could never agree with the principles and philosophy that form the foundation of public schools. As in France, the Catholic Church and fundamentalist Protestant groups opposed the creation of secular public schools in America. This struggle remains alive and well today. The U.S. Supreme Court decisions in Agostini, 54 Helms,55 and Zelman56 indicate that this church opposition to the idea of public common schools has now been accepted by the Court and that the religion provisions of the First Amendment will no longer be interpreted to prevent tax funds being appropriated to strengthen church schools. Thus, the ideal of public schools, envisaged as perhaps the most important aspect of a republic—a system of universal, secular common schools supported by general taxation—an Enlightenment idea that confronted severe opposition at its birth, appears to be waning in its political strength relative to the political power of private and ecclesiastical schools. The opinions of the members of the U.S. Supreme Court today, however, clearly reflect the weight and political prominence of conservative religion’s antipathy toward secular public schools. Bills abound in state legislatures that propose various schemes to utilize public tax revenues to fund private and religious schools. Perhaps this trend in reducing the wall of separation may foretell the slowly engulfing twilight for the public school experiment in America. The following pages of this chapter present the issues pertaining to the establishment of religion and the progression of Supreme Court decisions allowing state and federal laws to channel public tax funds to sectarian schools.
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The Public School and Religion
The public school is founded on three fundamental assumptions that relate either directly or indirectly to the issue of church and state. First,
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education is a benefit to the entire society, and the legislature has the power to tax all for support. Essential to this concept is that general taxation is used for support and that taxation is not levied merely on those who use the public schools—the childless and those who send their children to private schools must all pay their fair share. Thaddeus Stevens in 1835, in dramatically defeating a legislative proposal to repeal general taxation for education, enunciated the principle of universal responsibility for universal education in Pennsylvania. Opponents of public schools claimed that it was unjust to tax people to educate the children of others; Stevens responded thusly: It is for their own benefit, inasmuch as it perpetrates the government and ensures the due administration of the laws under which they live, and by which their lives and property are protected. Why do they not urge the same objection against all other taxes? The industrious, thrifty, rich farmer pays a heavy county tax to support criminal courts, build jails, and pay sheriffs and jail keepers, and yet probably he never has had and probably never will have any direct personal use for them. . . . He cheerfully pays burdensome taxes which are necessarily levied to support and punish convicts, but loudly complains of that which goes to prevent his fellow being from becoming a criminal and to obviate the necessity of those humiliating institutions.57
To Stevens, education was a public obligation that must be nurtured to develop the entire civic intelligence to better govern through an elective republic. Those who do not directly benefit from public education certainly gain indirectly through association with an enlightened citizenry. Second, education provided by the state must be secular, and individual religious beliefs should not be inhibited. An important element of the secular state envisioned by Jefferson was a system of public schools that could convey all necessary temporal knowledge and yet not impede religious freedom. The power of the state could not be used to inculcate religious beliefs, nor could the authority of the state to tax be used to assist religious training. An extract from an opinion by the Iowa Supreme Court forcefully expresses the idea that public tax funds should not be used for religious
instruction and, further, should not be used by religious groups to proselytize: If there is any one thing which is well settled in the policies and purposes of the American people as a whole, it is the fixed and unalterable determination that there shall be an absolute and unequivocal separation of church and state, and that our public school system, supported by the taxation of the property of all alike—Catholic, Protestant, Jew, Gentile, believer and infidel—shall not be used directly or indirectly for religious instruction, and above all that it shall not be made an instrumentality of proselyting influence, in favor of any religious organization, sect, creed, or belief.58
Third, the state can compel all parents to provide their children with a minimum secular education. This assumption is essential to the concept of general mass education. Every government has as a goal its own continuation and preservation, and in a republic, an educated electorate is fundamental. As such, the state must be conceived as parens patriae in enforcing minimum educational and welfare requirements. The validity of the state’s interest was established years ago in Prince v. Massachusetts.59 The primary issue emanates from placing the force and power of the state, whether it be through taxation or other public policy decision, in a position to either enhance or inhibit religion. This was one of the most obstinate problems that Horace Mann was forced to overcome in his great crusade to found free common schools in Massachusetts. Mann vigorously maintained that the only purpose of religious education in the schools was to convey to each child the idea and respect of religious liberty. American public schools are secular and not merely nonsectarian; this is necessary if separation of church and state is to be complete. The important position of education in the governmental process is the key to maintaining religious liberty. Pfeffer observes that to be secular does not mean to be “Godless”; it is merely a guarantee that the state will not dictate or encroach on religious beliefs of the individual. He says: A secular state requires a secular state school; but the secularization of the state does not mean the secularization of society. Only by accepting a totalitarian philosophy, either in religion or politics or both, can [it] be equated with society. We are a religious people even though our government
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Public Taxation to Support Religious Schools is secular. Our democratic state must be secular, for it does not purport or seek to pre-empt all of societal life. Similarly the public school need not and should not be the totality of the education process.60
In this regard, the public school ideal in America precludes religious indoctrination in the public schools, and it proscribes the state from preempting all the child’s time, thereby allowing substantial opportunity for religious training outside the school by parents and churches.61 Whether the U.S. Supreme Court will continue to disallow the providing of public funds to parochial schools is a continuing saga, the outcome of which is still uncertain.
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Public Taxation to Support Religious Schools
The U.S. Supreme Court, in the case of Cochran v. Louisiana State Board of Education, ruled that a state plan to provide textbooks to parochial school students does not violate the Fourteenth Amendment.62 The Court in this case was not asked to determine whether the First Amendment was violated. The decision in the Cochran case was rendered in 1930, 10 years before the Court decided in the Cantwell case that the religious liberties of the First Amendment not only provided protection against actions by the Congress, but also, when applied through the Fourteenth Amendment, protected the individual from arbitrary acts of the states.63 However, the Court in this case did identify and adopt the “child benefit” concept, which has subsequently been used in many instances to defend the appropriation of public funds for private and parochial school use. The Supreme Court in Everson v. Board of Education, a 1947 decision, held that the use of public funds for transportation of parochial school children does not violate the First Amendment. However, many state constitutions impose stricter regulations concerning separation of church and state than does the U.S. Constitution, and as a result, the highest courts in several states have ruled that their state constitutions would be violated if public funds were used to provide transportation for parochial school pupils.
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In the Everson case, the legislature of New Jersey enacted a law that allowed boards of education to provide transportation for parochial school children at public expense. A school board, acting under this statute, authorized reimbursement of parents for bus fares spent in sending their children to parochial schools. The plaintiff attacked the statute on the grounds that it violated the First and Fourteenth Amendments of the federal Constitution. The Court, in a 5–4 decision, ruled that the statute did not violate the Constitution. The Court adopted the “child benefit” doctrine and reasoned that the funds were expended for the benefit of the individual child and not for religious purposes. The transportation law was a general program that provided assistance in getting children safely to and from school, regardless of their religion. In 1968, the Supreme Court in Board of Education of Central School District v. Allen applied the reasoning of the Cochran and Everson cases in upholding as constitutional a New York statute that provided for distribution of textbooks free of charge to students attending parochial schools. The Court stated that there was no indication that the books were being used to teach religion and that, since private schools serve a public purpose and perform a secular as well as a sectarian function, such an expenditure of public funds is not unconstitutional.64
Establishment Clause Does Not Prohibit Spending Tax Funds to Pay Bus Fares for Parochial School Students
Everson v. Board of Education Supreme Court of the United States, 1947. 330 U.S. 1, 67 S. Ct. 504.
Mr. Justice BLACK delivered the opinion of the Court. A New Jersey statute authorizes its local school districts to make rules and contracts for the transportation of children to and from schools. The appellee, a township board of education acting pursuant to this statute authorized
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reimbursement to parents of money expended by them for the bus transportation of their children on regular buses operated by the public transportation system. Part of this money was for the payment of transportation of some children in the community to Catholic parochial schools. These church schools give their students, in addition to secular education, regular religious instruction conforming to the religious tenets and modes of worship of the Catholic Faith. The superintendent of these schools is a Catholic priest. The appellant, in his capacity as a district taxpayer, filed suit in a State court challenging the right of the Board to reimburse parents of parochial school students. He contended that the statute and the resolution passed pursuant to it violated both the State and the Federal Constitutions. That court held that the legislature was without power to authorize such payment under the State constitution. . . . The only contention here is that the State statute and the resolution, in so far as they authorized reimbursement to parents of children attending parochial schools, violate the Federal Constitution in these two respects, which to some extent, overlap. First. They authorize the State to take by taxation the private property of some and bestow it upon others, to be used for their own private purposes. This, it is alleged, violates the due process clause of the Fourteenth Amendment. Second. The statute and the resolution forced inhabitants to pay taxes to help support and maintain schools which are dedicated to, and which regularly teach, the Catholic Faith. This is alleged to be a use of State power to support church schools contrary to the prohibition of the First Amendment, which the Fourteenth Amendment made applicable to the states. First. The due process argument that the State law taxes some people to help others carry out their private purposes is framed in two phases. The first phase is that a state cannot tax A to reimburse B for the cost of transporting his children to church schools. This is said to violate the due process clause because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public’s interest in the general education of all children. This argument, if valid, would apply equally to prohibit state payment for the transportation of children to any nonpublic school, whether
operated by a church, or any other nongovernment individual or group. But, the New Jersey legislature has decided that a public purpose will be served by using tax-raised funds to pay the bus fares of all school children, including those who attend parochial schools. The New Jersey Court of Errors and Appeals has reached the same conclusion. The fact that a state law, passed to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an inadequate reason for us to say that a legislature has erroneously appraised the public need. . . . It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose. Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S. Ct. 335 (1930). . . . The same thing is no less true of legislation to reimburse needy parents, or all parents, for payment of the fares of their children so that they can ride in public buses to and from schools rather than run the risk of traffic and other hazards incident to walking or “hitchhiking.” . . . Nor does it follow that a law has a private rather than a public purpose because it provides that tax-raised funds will be paid to reimburse individuals on account of money spent by them in a way which furthers a public program. . . . Subsidies and loans to individuals such as farmers and home owners, and to privately owned transportation systems, as well as many other kinds of businesses, have been commonplace practices in our state and national history. Insofar as the second phase of the due process argument may differ from the first, it is by suggesting that taxation for transportation of children to church schools constitutes support of a religion by the State. But if the law is invalid for this reason, it is because it violates the First Amendment’s prohibition against the establishment of religion by law. This is the exact question raised by appellant’s second contention, to consideration of which we now turn. Second. The New Jersey statute is challenged as a “law respecting an establishment of religion.” The First Amendment, as made applicable to the states by the Fourteenth, . . . commands that a state “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These words of the First Amendment reflected in the minds of early Americans a vivid
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Public Taxation to Support Religious Schools
mental picture of conditions and practices which they fervently wished to stamp out in order to preserve liberty for themselves and for their posterity. Doubtless their goal has not been entirely reached; but so far has the Nation moved toward it that the expression “law respecting an establishment of religion” probably does not so vividly remind present-day Americans of the evils, fears, and political problems that caused that expression to be written into our Bill of Rights. . . . The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.” Reynolds v. United States, 98 U.S. at page 164. We must consider the New Jersey statute in accordance with the foregoing limitations imposed by the First Amendment. But we must not strike that state statute down if it is within the state’s constitutional power even though it approaches the verge of that power. . . . New Jersey cannot consistently with the “establishment of religion” clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from
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receiving the benefits of public welfare legislation. While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general State law benefits to all its citizens without regard to their religious belief. Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children’s bus fares out of their own pockets when transportation to a public school would have been paid for by the State. The same possibility exists where the state requires a local transit company to provide reduced fares to school children including those attending parochial schools, or where a municipally owned transportation system undertakes to carry all school children free of charge. Moreover, statepaid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children’s welfare. And parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools, the approaches to which were not protected by policemen. Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks. Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires
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the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them. . . . The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here. Affirmed.
CASE NOTES 1. A Pennsylvania statute that allowed the transportation of private schoolchildren beyond school district boundary lines was ruled constitutional. School District of Pittsburgh v. Commonwealth Department of Education, 33 Pa. Commw. 535, 382 A.2d 772 (1978), appeal dismissed, 443 U.S. 901, 99 S. Ct. 3091 (1979). See also Springfield School District v. Department of Education, 483 Pa. 539, 397 A.2d 1154 (1979), appeal dismissed, 443 U.S. 901, 99 S. Ct. 3091 (1979). 2. Statutes that authorize public transportation for parochial school children to travel to and from the private schools do not constitute mandatory authority for the public schools to also transport such children for educational field trips. Cook v. Griffin, 47 A.D.2d 23, 364 N.Y.S.2d 632 (1975). See also Wolman v. Walter, 433 U.S. 229, 97 S. Ct. 2593 (1977).
Loan of Textbooks to Parochial School Students Does Not Violate Establishment Clause
Board of Education of Central School District No. 1 v. Allen Supreme Court of the United States, 1968. 392 U.S. 236, 88 S. Ct. 1923.
Mr. Justice WHITE delivered the opinion of the Court. A law of the State of New York requires local public school authorities to lend textbooks free of charge to all students in grades seven through
twelve; students attending private schools are included. This case presents the question whether this statute is a “law respecting an establishment of religion, or prohibiting the free exercise thereof,” and so in conflict with the First and Fourteenth Amendments to the Constitution, because it authorizes the loan of textbooks to students attending parochial schools. We hold that the law is not in violation of the Constitution. . . . Beginning with the 1966–1967 school year, local school boards were required to purchase textbooks and lend them without charge “to all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law.” New York Education Law, § 701 (Supp. 1967). Appellant Board of Education of Central School District No. 1 in Rensselaer and Columbia counties brought suit in the New York courts against appellee James Allen. The complaint alleged that § 701 violated both the State and Federal Constitutions; that if appellants, in reliance on their interpretation of the Constitution, failed to lend books to parochial school students within their counties, appellee Allen would remove appellants from office; and that to prevent this, appellants were complying with the law and submitting to their constituents a school budget including funds for books to be lent to parochial school pupils. Appellants therefore sought a declaration that § 701 was invalid, an order barring appellee Allen from removing appellants from office for failing to comply with it, and another order restraining him from apportioning state funds to school districts for the purchase of textbooks to be lent to parochial students. . . . Everson and later cases have shown that the line between state neutrality to religion and state support of religion is not easy to locate. “The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree.” . . . The test may be stated as follows: what is the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances
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Public Taxation to Support Religious Schools nor inhibits religion. Everson v. Board of Education. . . . 374 U.S. at 222, 83 S. Ct. at 1571.
This test is not easy to apply. . . . The statute upheld in Everson would be considered a law having “a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” We reach the same result with respect to the New York law requiring school books to be loaned free of charge to all students in specified grades. The express purpose of § 701 was stated by the New York Legislature to be furtherance of the educational opportunities available to the young. . . . The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution. . . . The major reason offered by appellants for distinguishing free textbooks from free bus fares is that books, but not buses, are critical to the teaching process, and in a sectarian school that process is employed to teach religion. However, this Court has long recognized that religious schools pursue two goals, religious instruction and secular education. In the leading case of Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571 (1925), the Court held that although it would not question Oregon’s power to compel school attendance or require that the attendance be at an institution meeting state-imposed requirements as to quality and nature of curriculum, Oregon had not shown that its interest in secular education required that all children attend publicly operated schools. A premise of this holding was the view that the State’s interest in education would be served sufficiently by reliance on the secular teaching that accompanied religious training in the schools maintained by the Society of Sisters. Since Pierce, a substantial body of case law has confirmed the power of the States to insist that attendance at private schools, if it is to satisfy state compulsory-attendance laws, be
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at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction. Indeed, the State’s interest in assuring that these standards are being met has been considered a sufficient reason for refusing to accept instruction at home as compliance with compulsory education statutes. These cases were a sensible corollary of Pierce v. Society of Sisters: if the State must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function. Another corollary was Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S. Ct. 335 (1930), where appellants said that a statute requiring school books to be furnished without charge to all students, whether they attend public or private schools, did not serve a “public purpose,” and so offended the Fourteenth Amendment. Speaking through Chief Justice Hughes, the Court summarized as follows its conclusion that Louisiana’s interest in the secular education being provided by private schools made provision of textbooks to students in those schools a properly public concern: “[The State’s] interest is education, broadly; its method, comprehensive. Individual interests are aided only as the common interest is safeguarded.” 281 U.S. at 375, 50 S. Ct. at 336. Underlying these cases, and underlying also the legislative judgments that have preceded the court decisions, has been a recognition that private education has played and is playing a significant and valuable role in raising national levels of knowledge, competence, and experience. Americans care about the quality of the secular education available to their children. They have considered high quality education to be an indispensable ingredient for achieving the kind of nation, and the kind of citizenry, that they have desired to create. Considering this attitude, the continued willingness to rely on private school systems, including parochial systems, strongly suggests that a wide segment of informed opinion, legislative and otherwise, has found that those schools do an acceptable job of providing secular education to their students. This judgment is further evidence that parochial schools are performing, in addition to their sectarian function, the task of secular education.
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Against this background of judgment and experience, unchallenged in the meager record before us in this case, we cannot agree with appellants either that all teaching in a sectarian school is religious or that the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public are in fact instrumental in the teaching of religion. . . . Nothing in this record supports the proposition that all textbooks, whether they deal with mathematics, physics, foreign languages, history, or literature, are used by the parochial schools to teach religion. No evidence has been offered about particular schools, particular courses, particular teachers, or particular books. We are unable to hold, based solely on judicial notice, that this statute results in unconstitutional involvement of the State with religious instruction or that § 701, for this or the other reasons urged, is a law respecting the establishment of religion within the meaning of the First Amendment. . . .
relief to them as this case involves is not in itself a serious burden to taxpayers and I had assumed it to be as little serious in principle. Study of this case convinces me otherwise. The Court’s opinion marshals every argument in favor of state aid and puts the case in its most favorable light, but much of its reasoning confirms my conclusions that there are no good grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron’s reports, “whispering ‘I will ne’er consent,’—consented.”
4. What is the implication of Justice White’s statement that “parochial schools are performing, in addition to their sectarian function, the task of secular education”? 5. How does Justice Black, in dissent in Allen, distinguish textbooks from transportation in Everson, in which he wrote the majority opinion?
CASE NOTES 1. Justice Black wrote the majority opinion in Everson and dissented in Allen. This is particularly interesting, since the majority opinion by Justice White relied heavily on the interpretation and meaning of the majority in Everson. 2. The Cochran case in Louisiana was preceded by Borden v. Louisiana State Board of Education, 168 La. 1005, 123 So. 655 (1929), which held that the Acts of 1928, Nos. 100 and 143, the same Acts contested in Cochran, were not violative of constitutional provisions prohibiting public funds for private or benevolent purposes and were not adverse to due process requirements. 3. Appellants in Allen argued that transportation of parochial pupils may be constitutional, whereas providing textbooks is not. How does the Court react to this argument? Compare the Court’s opinion to the dissenting opinion of Justice Jackson in the Everson case. In Everson, Justice Jackson said: I find myself, contrary to first impressions, unable to join in this decision. I have a sympathy, though it is not ideological, with Catholic citizens who are compelled by law to pay taxes for public schools, and also feel constrained by conscience and discipline to support other schools for their own children. Such
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The Establishment Clause and the Lemon Test
The decision by the Supreme Court in the Allen case65 created many questions on the part of both public and parochial school leaders throughout the country. The language of Justice White, speaking for the majority, was unclear, failing to delineate First Amendment restrictions in providing state aid to parochial schools. White applied the public purpose theory and reasoned that the state could give assistance to religious schools so long as the aid was provided for only secular services in the operation of parochial schools. He said that a wide segment of informed opinion, legislative and otherwise, has found that [parochial] schools do an acceptable job of providing secular education to their students. This judgment is further evidence that parochial schools are performing, in addition to their sectarian function, the task of secular education.66 [emphasis added]
This statement was taken by many parochial school advocates to mean that a state could permissibly provide funds to parochial schools for such things as teachers’ salaries, operations,
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The Establishment Clause and the Lemon Test
buildings, and so on, so long as the funds were used by the parochial schools only for “public secular purposes.” State legislatures were suddenly flooded with hundreds of bills to provide state support to parochial schools; some were passed and others, for various reasons, failed.67
THE LEMON TEST It was into this fertile area of conjecture that the U.S. Supreme Court walked in 1971, when it was asked to rule on the constitutionality of two such state acts from Pennsylvania and Rhode Island. This was the now famous Lemon v. Kurtzman case, which first enunciated the three-part test of constitutionality of state acts pertaining to the establishment of religion. Both states, capitalizing on the vagueness of Allen, were attempting to give public funds to parochial schools. The Supreme Court struck down the statutes of both states. The Court found the “secular purpose” standard alone to be inadequate and then added another standard, that of “excessive entanglement.” This standard seeks to prevent the state from infringing on the separate rights of religion by becoming too intermingled with the process of religion. The Supreme Court enunciated a three-part test for determining whether a state statute is constitutional under the Establishment Clause of the First Amendment: (1) the statute must have a secular legislative purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster excessive government entanglement with religion.
State Aid to Parochial Schools Through Salary Supplements and Purchase of Services Constitutes Impermissible Entanglement Between Church and State
Lemon v. Kurtzman Supreme Court of the United States, 1971. 403 U.S. 602, 91 S. Ct. 2105.
Mr. Chief Justice BURGER delivered the opinion of the Court.
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These two appeals raise questions as to Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools. Both statutes are challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment. Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and secondary schools by way of reimbursement for the cost of teachers’ salaries, textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15% of their annual salary. Under each statute state aid has been given to church-related educational institutions. We hold that both statutes are unconstitutional. The Rhode Island Salary Supplement Act, R.I. Gen. Laws § 16-51-1 et seq., was enacted in 1969. It rests on the legislative finding that the quality of education available in nonpublic elementary schools has been jeopardized by the rapidly rising salaries needed to attract competent and dedicated teachers. The Act authorizes state officials to supplement the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in excess of 15% of his current annual salary. . . . In order to be eligible for the Rhode Island salary supplement, the recipient must teach in a nonpublic school at which the average per-pupil expenditure on secular education is less than the average in the State’s public schools during a specified period. Appellant State Commissioner of Education also requires eligible schools to submit financial data. If this information indicates a per-pupil expenditure in excess of the statutory limitation, the records of the school in question must be examined in order to assess how much of the expenditure is attributable to secular education and how much to religious activity. The Act also requires that teachers eligible for salary supplements must teach only those subjects that are offered in the State’s public school. They must use “only teaching materials which are used in the public schools.” Finally, any teacher applying for a salary supplement must first agree in writing “not to teach a course in religion for so long as or during such time as he
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or she receives any salary supplements” under the Act. Appellees are citizens and taxpayers of Rhode Island. . . . Appellants are state officials charged with administration of the Act, teachers eligible for salary supplements under the Act, and parents of children in church-related elementary schools whose teachers would receive state salary assistance. A three-judge federal court was convened. . . . It found that Rhode Island’s nonpublic elementary schools accommodated approximately 25% of the State’s pupils. About 95% of these pupils attended schools affiliated with the Roman Catholic Church. To date some 250 teachers have applied for benefits under the Act. All of them are employed by Roman Catholic schools. The court held a hearing at which extensive evidence was introduced concerning the nature of the secular instruction offered in the Roman Catholic schools whose teachers would be eligible for salary assistance under the Act. Although the Court found that concern for religious values does not necessarily affect the content of secular subjects, it also found that the parochial school system was “an integral part of the religious mission of the Catholic Church.” The District Court concluded that the Act violated the Establishment Clause, holding that it fostered “excessive entanglement” between government and religion. In addition two judges thought that the Act had the impermissible effect of giving “significant aid to a religious enterprise.” . . . We affirm. Pennsylvania has adopted a program that has some but not all of the features of the Rhode Island program. The Pennsylvania Nonpublic Elementary and Secondary Education Act, 24 Pa. Stat. §§ 5601-9, was passed in 1968 in response to a crisis that the Pennsylvania Legislature found existed in the State’s nonpublic schools due to rapidly rising costs. The statute affirmatively reflects the legislative conclusion that the State’s educational goals could appropriately be fulfilled by government support of “those purely secular educational objectives achieved through nonpublic education. . . .” The statute authorizes appellee state Superintendent of Public Instruction to “purchase” spec ified “secular educational services” from non public schools. Under the “contracts”
authorized by the statute, the State directly reimburses nonpublic schools solely for their actual expenditures for teachers’ salaries, textbooks, and instructional materials. A school seeking reimbursement must maintain prescribed accounting procedures that identify the “separate” cost of the “secular educational service.” These accounts are subject to state audit. . . . There are several significant statutory restrictions on state aid. Reimbursement is limited to courses “presented in the curricula of the public schools.” It is further limited “solely” to courses in the following “secular” subjects: mathematics, modern foreign languages (Latin, Hebrew, and classical Greek excluded), physical science, and physical education. Textbooks and instructional materials included in the program must be approved by the state Superintendent of Public Instruction. Finally, the statute prohibits reimbursement for any course that contains “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” The Act went into effect on July 1, 1968. . . . The State has now entered into contracts with some 1,181 nonpublic elementary and secondary schools with a student population of some 535,215 pupils—more than 20% of the total number of students in the State. More than 96% of these pupils attend church-related schools, and most of these schools are affiliated with the Roman Catholic Church. Appellants brought this action in the District Court to challenge the constitutionality of the Pennsylvania statute. . . . The District Court held that the individual plaintiffs-appellants had standing to challenge the Act. . . . The court granted appellees’ motion to dismiss the complaint for failure to state a claim for relief. . . . It held that the Act violated neither the Establishment nor the Free Exercise Clause. . . . We reverse. . . . The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be “no law respecting an establishment of religion.”
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The Establishment Clause and the Lemon Test
A law may be one “respecting” the forbidden objective while falling short of its total realization. A law “respecting” the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion but nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment. In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, (1970). Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, (1968); finally, the statute must not foster “an excessive government entanglement with religion.” Walz, supra. Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate. As in Allen, we find nothing here that undermines the stated legislative intent; it must therefore be accorded appropriate deference. . . . The two legislatures, however, have also recognized that church-related elementary and secondary schools have a significant religious mission and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions
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and to ensure that State financial aid supports only the former. All these provisions are precautions taken in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses. We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion (emphasis added). . . . Rhode Island Program. The District Court made extensive findings on the grave potential for excessive entanglement that inheres in the religious character and purpose of the Roman Catholic elementary schools of Rhode Island, to date the sole beneficiaries of the Rhode Island Salary Supplement Act. The church schools involved in the program are located close to parish churches. . . . The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and statues either in the classrooms or hallways. Although only approximately thirty minutes a day are devoted to direct religious instruction, there are religiously oriented extracurricular activities. Approximately two-thirds of the teachers in these schools are nuns of various religious orders. Their dedicated efforts provide an atmosphere in which religious instruction and religious vocations are natural and proper parts of life in such schools. Indeed, as the District Court found, the role of teaching nuns in enhancing the religious atmosphere has led the parochial school authorities to attempt to maintain a one-to-one ratio between nuns and lay teachers in all schools rather than to permit some to be staffed almost entirely by lay teachers. On the basis of these findings the District Court concluded that the parochial schools constituted “an integral part of the religious mission of the Catholic Church.” The various characteristics of the schools make them “a powerful vehicle for transmitting the Catholic faith to the next generation.” This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools
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particularly. In short, parochial schools involve substantial religious activity and purpose. The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid. Although the District Court found that concern for religious values did not inevitably or necessarily intrude into the content of secular subjects, the considerable religious activities of these schools led the legislature to provide for careful governmental controls and surveillance by state authorities in order to ensure that state aid supports only secular education. . . . The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses that subsidized teachers do not inculcate religion— indeed the State here has undertaken to do so. To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions. An eligible recipient must teach only those courses that are offered in the public schools and use only those texts and materials that are found in the public schools. In addition, the teacher must not engage in teaching any course in religion. A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church. There is another area of entanglement in the Rhode Island program that gives concern. The statute excludes teachers employed by nonpublic schools whose average per-pupil expenditures on secular education equal or exceed the comparable figures for public schools. In the event that the total expenditures of an otherwise eligible school exceed this norm, the program requires the government to examine the school’s records in order to determine how much of the total expenditures is attributable to secular
education and how much to religious activity. This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction of church schools and hence of churches. . . . Pennsylvania Program. The Pennsylvania statute also provides state aid to church-related schools for teachers’ salaries. The complaint describes an educational system that is very similar to the one existing in Rhode Island. According to the allegations, the church-related elementary and secondary schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. Since this complaint was dismissed for failure to state a claim for relief, we must accept these allegations as true for purposes of our review. As we noted earlier, the very restrictions and surveillance necessary to ensure that teachers play a strictly non-ideological role give rise to entanglements between church and state. The Pennsylvania statute, like that of Rhode Island, fosters this kind of relationship. Reimbursement is not only limited to courses offered in the public schools and materials approved by state officials, but the statute excludes “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” In addition, schools seeking reimbursement must maintain accounting procedures that require the State to establish the cost of the secular as distinguished from the religious instruction. The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related schools. This factor distinguishes both Everson and Allen, for in both those cases the Court was careful to point out that state aid was provided to the student and his parents—not to the church-related school. . . . In Walz v. Tax Commission, . . . the Court warned of the dangers of direct payments to religious organizations: Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass sustained and detailed administrative
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The Establishment Clause and the Lemon Test relationships for enforcement of statutory or administrative standards. . . .
The history of government grants of a continuing cash subsidy indicates that such programs have almost always been accompanied by varying measures of control and surveillance. The government cash grants before us now provide no basis for predicting that comprehensive measures of surveillance and controls will not follow. In particular the government’s post audit power to inspect and evaluate a church-related school’s financial records and to determine which expenditures are religious and which are secular creates an intimate and continuing relationship between church and state. A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith. Ordinarily, political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. . . . The potential divisiveness of such conflict is a threat to the normal political process. . . . The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow. . . .
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In Walz it was argued that a tax exemption for places of religious worship would prove to be the first step in an inevitable progression leading to the establishment of state churches and state religion. That claim could not stand up against more than 200 years of virtually universal practice embedded in our colonial experience and continuing into the present. The progression argument, however, is more persuasive here. We have no long history of state aid to church-related educational institutions comparable to 200 years of tax exemption for churches. Indeed, the state programs before us today represent something of an innovation. We have already noted that modern governmental programs have self-perpetuating and self-expanding propensities. These internal pressures are only enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support. Nor can we fail to see that in constitutional adjudication some steps, which when taken were thought to approach “the verge,” have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a “downhill thrust” easily set in motion but difficult to retard or stop. Development by momentum is not invariably bad; indeed, it is the way the common law has grown, but it is a force to be recognized and reckoned with. The dangers are increased by the difficulty of perceiving in advance exactly where the “verge” of the precipice lies. As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement or entanglement between government and religion serves as a warning signal. . . . The judgment of the Rhode Island District Court in No. 569 and No. 570 is affirmed. The judgment of the Pennsylvania District Court in No. 89 is reversed, and the case is remanded for further proceedings consistent with this opinion. . . .
THE WALL BEGINS TO CRUMBLE The issue of aid to nonpublic schools in the form of tax credits or tax deductions is not a new idea. In 1972, a lower federal district court invalidated Ohio’s Parental Reimbursement Grant, which provided a tax credit 68 to
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nonpublic school parents, a decision that was summarily affirmed by the U.S. Supreme Court in 1973. 69 The Supreme Court addressed the tax benefit in Committee for Public Education and Religious Liberty v. Nyquist in 1973 and found a New York statute for nonpublic school parents was unconstitutional. 70 Again, in 1979, the Supreme Court confronted the tax benefit issue, at which time it summarily affirmed the decision 71 of the Third Circuit Court of Appeals invalidating a tax benefit program for nonpublic school parents in New Jersey. The watershed case on the subject of tax credits, Mueller v. Allen72 resulted from a Minnesota statute that allowed all parent taxpayers to deduct from their income taxes a legislatively specified amount. In approving this scheme of aid to private schools, the U.S. Supreme Court appeared to chart a new direction of even greater leniency in the provision of public monies for parochial schools. In upholding the Minnesota plan, the Court distinguished its rejection of the earlier tax deduction or credit plans by noting that each of those limited tax benefits was available only to parents of private school children, whereas the Minnesota deduction was available to parents of all children in both private and public schools. The Court did not seem to be concerned that tax deduction benefits to public school parents would be minimal because public schools do not charge tuition or transportation fees and textbooks are, by and large, free. The primary benefits would then, of course, accrue largely to the advantage of parochial school parents. Justice Rehnquist, in applying the three-part test for the 5–4 majority, found that the statute had a secular purpose, that it did not advance or promote religion, and that governmental entanglement with the church was minimal and unimportant. Importantly, Rehnquist, in justifying the decision, expressed a view of the Court to the effect that parochial schools are a viable and important alternative to public schools, fostering “wholesome competition,” and that states are justified in giving them tax support. 73 This same view is a slightly different version of that expressed by Justice White in 1968 in Board of Education of Central School District v. Allen.74 In School District of the City of Grand Rapids v. Ball,75 in 1985,
the Supreme Court, under the hand of Justice Brennan, momentarily returned to a stricter adherence to separation. In this case, a Grand Rapids plan offered benefits to parochial schools through shared time and community education programs financed by the public school system. Justice Brennan, writing for the majority, found that the plan had the primary effect of advancing religion. Justice Brennan again prevailed in the 1985 Aguilar v. Felton decision,76 in which he formed a majority coalition of justices, enabling the Court to strike down a New York City plan that provided funds under Title I of the federal Elementary and Secondary Education Act of 1965 to pay for the education of eligible parochial school students on parochial school premises. The Supreme Court found that such a benefit to the parochial schools offended the Establishment Clause. Justice Brennan went to great length to explain why this particular plan, which involved the use of public school teachers in parochial schools as well as an elaborate monitoring system, violated the excessive entanglement test. The erosion of the wall as far as aid to parochial schools is concerned is premised on the philosophical rationale enunciated by Chief Justice Rehnquist in his dissent in Wallace v. Jaffree in 1985,77 where he maintained that the true intent of the Establishment Clause is merely to prohibit a “national religion” or the “official designation of any church as a national one,” as well as to discourage the preference of any particular religious sect over another. It did not intend, according to Rehnquist, to create “government neutrality between religion and irreligion, nor did it prohibit the federal government from providing non-discriminating aid to religion.”78 This neutrality or nonpreferential philosophy allows state and federal tax funds to go to religious schools so long as one or a few religious sects are not preferred over others. According to Levy, the fact that the Catholic Church may control 80 percent of America’s private schools would apparently make no difference in the application of this nonpreferential philosophy.79 This position is, of course, diametrically opposed to the intent enunciated in Madison’s Memorial and Remonstrance, which declared that government should not aid one religion or all religions.
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The Establishment Clause and the Lemon Test
Mueller v. Allen is the Supreme Court’s first obvious and definitive step away from the doctrine of separation.
Tax Deductions Benefiting Parents of Parochial School Children Do Not Violate the Establishment Clause
Mueller v. Allen Supreme Court of the United States, 1983. 463 U.S. 388, 103 S. Ct. 3062.
Justice REHNQUIST delivered the opinion of the Court. Minnesota allows taxpayers, in computing their state income tax, to deduct certain expenses incurred in providing for education of their children. . . . Minnesota, like every other state, provides its citizens with free elementary and secondary schooling. It seems to be agreed that about 820,000 students attended this school system in the most recent school year. During the same year, approximately 91,000 elementary and secondary students attended some 500 privately supported schools located in Minnesota, and about 95% of these students attended schools considering themselves to be sectarian. Minnesota, by a law originally enacted in 1955 and revised in 1976 and again in 1978, permits state taxpayers to claim a deduction from gross income for certain expenses incurred in educating their children. The deduction is limited to actual expenses incurred for the “tuition, textbooks and transportation” of dependents attending elementary or secondary schools. A deduction may not exceed $500 per dependent in grades K through six and $700 per dependent in grades seven through twelve. . . . Today’s case is no exception to our oft-repeated statement that the Establishment Clause presents especially difficult questions of interpretation and application. It is easy enough to quote the few words comprising that clause—“Congress shall make no law respecting an establishment
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of religion.” It is not at all easy, however, to apply this Court’s various decisions construing the Clause to governmental programs of financial assistance to sectarian schools and the parents of children attending those schools. Indeed, in many of these decisions “we have expressly or implicitly acknowledged that ‘we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.’” Lemon v. Kurtzman, 403 U.S. 602, 609, 612, 91 S. Ct. 2105, 2109, 2111 (1971) . . . One fixed principle in this field is our consistent rejection of the argument that “any program which in some manner aids an institution with a religious affiliation” violates the Establishment Clause. . . . The general nature of our inquiry in this area has been guided, since the decision in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105(1971), by the “three-part” test laid down in that case: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster “an excessive government entanglement with religion.” Ibid., at 612–613, 91 S. Ct., at 2111.
While this principle is well settled, our cases have also emphasized that it provides “no more than [a] helpful signpost” in dealing with Establishment Clause challenges. With this caveat in mind, we turn to the specific challenges raised against § 290.09(22) under the Lemon framework. Little time need be spent on the question of whether the Minnesota tax deduction has a secular purpose. Under our prior decisions, governmental assistance programs have consistently survived this inquiry even when they have run afoul of other aspects of the Lemon framework. This reflects, at least in part, our reluctance to attribute unconstitutional motives to the states, particularly when a plausible secular purpose for the state’s program may be discerned from the face of the statute. A state’s decision to defray the cost of educational expenses incurred by parents—regardless of the type of schools their children attend— evidences a purpose that is both secular and understandable. . . .
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We turn therefore to the more difficult but related question whether the Minnesota statute has “the primary effect of advancing the sectarian aims of the nonpublic schools.” In concluding that it does not, we find several features of the Minnesota tax deduction particularly significant. First, an essential feature of Minnesota’s arrangement is the fact that § 290.09(22) is only one among many deductions—such as those for medical expenses, Minn. Stat. § 290.09(10), and charitable contributions, Minn. Stat. § 290.21—available under the Minnesota tax laws. . . . Under our prior decisions, the Minnesota legislature’s judgment that a deduction for educational expenses fairly equalizes the tax burden of its citizens and encourages desirable expenditures for educational purposes is entitled to substantial deference. Other characteristics of § 290.09(22) argue equally strongly for the provision’s constitutionality. Most importantly, the deduction is available for educational expenses incurred by all parents, including those whose children attend public schools and those whose children attend nonsectarian private schools or sectarian private schools. . . . We . . . agree with the Court of Appeals that, by channeling whatever assistance it may provide to parochial schools through individual parents, Minnesota has reduced the Establishment Clause objections to which its action is subject. It is true, of course, that financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools attended by their children. It is also true, however, that under Minnesota’s arrangement public funds become available only as a result of numerous, private choices of individual parents of school-age children. For these reasons, we recognized in Nyquist that the means by which state assistance flows to private schools is of some importance: we said that “the fact that aid is disbursed to parents rather than to . . . schools” is a material consideration in Establishment Clause analysis, albeit “only one among many to be considered.” . . . We find it useful, in the light of the foregoing characteristics of § 290.09(22), to compare the attenuated financial benefits flowing to parochial schools from the section to the evils against which the Establishment Clause was designed to protect. These dangers are well-described by our statement that “what is at stake as a matter of
policy [in Establishment Clause cases] is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.” It is important, however, to “keep these issues in perspective.” At this point in the 20th century we are quite far removed from the dangers that prompted the Framers to include the Establishment Clause in the Bill of Rights. The risk of significant religious or denominational control over our democratic processes—or even of deep political division along religious lines—is remote, and when viewed against the positive contributions of sectarian schools, such risk seems entirely tolerable in light of the continuing oversight of this Court. Wolman, 433 U.S., at 263, 97 S. Ct., at 2613.
The Establishment Clause of course extends beyond prohibition of a state church or payment of state funds to one or more churches. We do not think, however, that its prohibition extends to the type of tax deduction established by Minnesota. The historic purposes of the clause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue in this case. Petitioners argue that, notwithstanding the facial neutrality of § 290.09(22), in application the statute primarily benefits religious institutions. Petitioners rely, as they did below, on a statistical analysis of the type of persons claiming the tax deduction. They contend that most parents of public school children incur no tuition expenses, and that other expenses deductible under § 290.09(22) are negligible in value; moreover, they claim that 96% of the children in private schools in 1978–1979 attended religiously affiliated institutions. Because of all this, they reason, the bulk of deductions taken under § 290.09(22) will be claimed by parents of children in sectarian schools. Respondents reply that petitioners have failed to consider the impact of deductions for items such as transportation, summer school tuition, tuition paid by parents whose children attended schools outside the school districts in which they resided, rental or purchase costs for a variety of equipment, and tuition for certain types of instruction not ordinarily provided in public schools.
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We need not consider these contentions in detail. We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law. Such an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated. Moreover, the fact that private persons fail in a particular year to claim the tax relief to which they are entitled—under a facially neutral statute—should be of little importance in determining the constitutionality of the statute permitting such relief. . . . Thus, we hold that the Minnesota tax deduction for educational expenses satisfies the primary effect inquiry of our Establishment Clause cases. Turning to the third part of the Lemon inquiry, we have no difficulty in concluding that the Minnesota statute does not “excessively entangle” the state in religion. The only plausible source of the “comprehensive, discriminating and continuing state surveillance” necessary to run afoul of this standard would lie in the fact that state officials must determine whether particular textbooks qualify for a deduction. In making this decision, state officials must disallow deductions taken from “instructional books and materials used in the teaching of religious tenets, doctrines or worship, the purpose of which is to inculcate such tenets, doctrines or worship.” Making decisions such as this does not differ substantially from making the types of decisions approved in earlier opinions of this Court. In Board of Education v. Allen, for example, the Court upheld the loan of secular textbooks to parents or children attending nonpublic schools; though state officials were required to determine whether particular books were or were not secular, the system was held not to violate the Establishment Clause. See also Wolman v. Walter; Meek v. Pittenger. The same result follows in this case. For the foregoing reasons, the judgment of the Court of Appeals is Affirmed.
elementary or secondary school tuition or for textbooks did not violate the Establishment or Free Exercise Clauses of the First Amendment. Luthens v. Bair, 788 F. Supp. 1032, (S.D. Iowa 1992). 2. Tax Credits. The Supreme Court of Arizona followed the rationale of Mueller v. Allen and upheld a state statute that allowed for a state tax credit of up to $500 for donations to school tuition organizations (STO). An STO is a charitable organization that is tax exempt under § 501(c)(3) of the Internal Revenue Code of the United States. An STO is required to allocate at least 90 percent of its annual revenue for educational scholarships or tuition grants to children to attend any qualified school of the parents’ choice. Plaintiffs brought suit claiming the tax credit violated the Establishment Clause of the First Amendment and the Arizona Constitution. The Arizona court upheld the statute, and in so doing, followed the rationale of Mueller. The Arizona Constitution, Article II, § 12, stated that “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or to the support of any religious establishment.” 3. A second section of the constitution, Article IX, § 10 says, “No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.” In spite of this strong and specific prohibition, the court said that the framers of the Arizona Constitution “did not show an undisputable desire to exceed the federal requirement of the Establishment Clause.” Thus, regardless of the language, the Arizona court reads the Arizona Constitution to be no more restrictive as to an establishment of religion. Accordingly, the Arizona Constitution has no “independent vitality” in such matters and thereby must follow the U.S. Supreme Court interpretation in Mueller. Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999).
CASE NOTES
THE MARGINALIZING OF LEMON
1. Relying on Mueller v. Allen, in 1992, a federal district court in Iowa held that Iowa’s income tax laws that allowed a taxpayer to claim an income tax deduction or credit for payment of
The Lemon test was used in all Supreme Court school religion cases in the 1980s and for all but two non-school cases: Marsh v. Chambers80 (here the so-called historical analysis was used) and
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Larson v. Valente.81 In a number of the decisions, the Supreme Court downgraded the importance of the Lemon test. The test was described as only a “guideline” in Committee for Public Education and Religious Liberty v. Nyquist82 and then as “no more than [a] useful ‘guideline’” in Mueller v. Allen.83 Later, in Lynch v. Donnelly,84 the Court stated that the Lemon test has never been binding on the Court. There was speculation that the Supreme Court would overturn Lemon or establish a new test when Lee v. Weisman85 was argued before the Court in 1992. But Justice Kennedy, writing for the majority, averted the issue, stating that “the court will not reconsider its decision in Lemon.”86 The Court thereby did not use the tripartite Lemon test in Weisman, but, rather, it applied a new standard—the coercion test. The Court stated: “The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitation imposed by the Establishment Clause, which guarantees at a minimum that a government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’ ”87 The member of the Supreme Court most critical of Lemon has been Justice Scalia. Scalia, a strong proponent of parochial schools, in his dissent in Lamb’s Chapel,88 attacked the Lemon test, stating: As to the Court’s invocation of the Lemon Test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children. . . .89
Justice Scalia’s efforts to overturn the Lemon test and demolish the wall of separation have now largely come to fruition. The Court did not use the Lemon test in deciding Board of Education of Kiryas Joel Village School District v. Grumet;90 rather, it applied a “neutrality” standard, saying, “A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion.”91 In this case, the state legislature created a separate special education school district for a religious educational enclave: The New York Village of Kiryas Joel is a religious enclave of Satmar Hasidim, practitioners of a strict
form of Judaism. Its local incorporation intentionally drew its boundaries under the state’s general village incorporation law to exclude all but Satmars.92
This state statute specifically carved out the special school district exclusively for the Satmar Hasidic sect. In declaring the Act unconstitutional, the Supreme Court stated: “Because this unusual act is tantamount to an allocation of political power on a religious criterion and neither presupposes nor requires governmental impartiality toward religion, we hold that it violates the prohibition against establishment.”93
THE NEW ESTABLISHMENT CLAUSE JURISPRUDENCE Earlier Supreme Court precedents confirming the Establishment Clause as a strong deterrent against state aid to parochial or clerical schools have now been largely repudiated by later rulings. With Justices Rehnquist, O’Connor, Kennedy, Scalia, and Thomas forming the majority, historic separation preventing the flow of public tax funds to parochial schools was nullified in the 1997 case of Agostini v. Felton.94 Justice O’Connor, writing for a 5–4 majority, announced the new and “significant change in Establishment Clause law.” In this decision, the Court repeatedly referred to its “current understanding of the Establishment Clause.” This “current understanding” is based on this Supreme Court’s precedents in Witters v. Washington Department of Services for the Blind,95 Zobrest v. Catalina Foothills School District, 96 Rosenberger v. Rector and Visitors of the University of Virginia,97 and Board of Education of Kiryas Joel Village School District v. Grumet.98 In these cases, the Court established a carefully calculated chain of precedents leading to what amounts to a negation of the effects of the Establishment Clause as it had before applied to public funding of parochial schools. The Court’s reasoning was synthesized and enunciated as new precedent in Agostini v. Felton, in which it overruled the earlier precedents of Aguilar v. Felton99 and School District of the City of Grand Rapids v. Ball.100 As pointed out earlier in this chapter, the original Aguilar case, with former Justice Brennan writing for the majority, had held that the use of federal Title I funds to pay for educational services in parochial schools was unconstitutional. The same Court in the Grand
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The Establishment Clause and the Lemon Test
Rapids case reinforced the Establishment Clause principle of separation of church and state by invalidating a state plan to provide public funds for shared time and community education programs in parochial schools. Subsequently, however, after Justices Brennan and Marshall retired, the philosophy of the Court shifted dramatically. The new appointees to the Court formed a majority that, in Agostini, annulled the strong separation decisions of Aguilar and Grand Rapids. The Supreme Court, although not directly overruling Lemon and its three-prong test, did nevertheless reinterpret Lemon in such a way as to greatly reduce its strength in preventing public aid to parochial schools. In addressing the Lemon standards, the Court observed that its new ruling in Agostini had not materially changed the first prong of Lemon, the purpose test. The fact that the Court let this part stand without reinterpretation did not, however, change current jurisprudence. For some time now, the Court’s precedents have indicated that the purpose test did not prevent government from providing tax funds to parochial schools.101 The real and pervasive shift in the new Establishment Clause judicial philosophy emanated from this Court’s virtual obliteration of the second prong, the effect test, and the third prong, the excessive entanglement test. The majority in Agostini pointed out that the Court’s ruling in Zobrest was controlling in the application of the effect test; in Zobrest, the Court held that the use of public funds to pay for a special education employee in a Roman Catholic high school did not have the impermissible effect of advancing religion. The Court’s ruling in Agostini cited its own decision in Witters as precedent and pointed out that its new Establishment Clause jurisprudence did not prevent direct grants to students in religious schools even though the money would be used to obtain a religious education. Zobrest and Witters directly repudiate the previously held assumptions in Aguilar and Grand Rapids that a publicly funded employee in a religious school creates the unacceptable effect of advancing religion. Thus, Zobrest, Witters, and Agostini, in concert, apparently largely nullify the effect test as a deterrent to government funding for parochial schools. The Court in Agostini most clearly indicated its overruling of the separation precedents of
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earlier Supreme Court decisions when it examined the federal Title I program in light of the third prong of Lemon, excessive entanglement. The Court explained that monitoring by public officials of parochial school programs, administrative interaction between public school boards and the parochial schools, and possible “political divisiveness” created by aid to parochial schools cannot be construed to be excessive entanglement. Thus, in view of this Court’s treatment of the excessive entanglement standard, it is difficult to conjure a scenario where excessive entanglement could be adjudged so intrusive as to be violative of this third Lemon test. A careful reading of Agostini makes it clear that the entanglement test is to be considered of little importance in future Supreme Court decisions. In June 2000, the U.S. Supreme Court handed down Mitchell v. Helms,102 a fractionated decision that appeared to nullify the remaining Establishment Clause deterrence to public funding of sectarian schools. The opinion, rendered by a plurality, meaning four justices, with Thomas writing, consolidated and reinforced the Court’s position encapsulated in Agostini,103 flatly breaking from previous Supreme Court decisions that had prohibited providing sectarian schools with public funds. The Supreme Court observed in Agostini that “stare decisis is not an inexorable command”; therefore, earlier precedents did not bind this Court to the earlier Supreme Court rulings that held that the Establishment Clause prohibited public funding of ecclesiastical schools. Agostini and Helms gave birth to a so-called new Establishment Clause jurisprudence because of its departure from the historical American separation of church and state philosophy. Justice Clarence Thomas explained that the new Establishment Clause jurisprudence hinges primarily on an “effect” test that considers the neutrality of the governmental funding and whether the aid subsidizes a particular religious group. According to Justice Thomas, if the government funds have no strings attached and do not require that the sectarian schools teach a particular brand of religion, then use of public funds by the church schools is permissible. If in the use of the public funds, the sectarian school chooses to inculcate its own religious doctrine, and such cannot be attributed directly to governmental action, then there is no violation of the Establishment Clause.
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Therefore, according to the Court, public funds can be used for religious indoctrination so long as it is the choice made by the particular religious sect that conducts the school and does not constitute a religious doctrine prescribed by the government as a condition for receiving the funds. This reasoning the Court calls the neutrality principle. In short, what the Court is apparently saying is that if the public funds are not used to impose a “state religion” upon the sectarian schools or are not given to only one particular type of religious school, then the governmental funding comports with the Establishment Clause. Even though the Court in Helms was not required by the appeal to address the “purpose test” or the “excessive entanglement test” of Lemon, the implication is clear that neither test will in the future be effective deterrents to the channeling of public dollars to religious schools. The new criteria of Justice Thomas’s effect test appear to subsume the original “purpose” test of Lemon, indicating that there is no constitutional violation if the state aid is allocated on a neutral and secular basis, neither favoring nor disfavoring any particular religious sect. Further, regardless of the fact that the excessive entanglement test was not directly addressed in Helms, the Court indicated that it would probably give this test rather short shrift in the future due to its “pared down” judicial concern for potential divisiveness that might accrue from financial aid to religion. Too, the Court suggested foreclosure of entanglement considerations in an elongated dismissal of the issue of diversion of funds. The plaintiffs in Helms had complained that governmental funds provided to sectarian schools could be easily diverted for religious indoctrination, regardless of their original secular purpose. Lemon had held that the act of monitoring the use of public funds by government to prevent their diversion within the sectarian school to religious purposes created excessive entanglements. The Court in Helms responded that all this is obviated if the diversion comes about as a result of the choices made by the clergy controlling the schools or the parents of children attending the religious schools. Church and family choices justify such diverting of funds. Moreover, the Court indicated it would simply disregard any concern of political divisiveness as an entanglement issue.
Therefore, the Helms case constitutes a definitive step in the Supreme Court’s disassembling of the judicial precedents that had earlier in American history forbidden tax support for the benefit of sectarian schools. The new jurisprudence of the Establishment Clause, appropriated by the current Supreme Court, has now dismantled the principal constitutional barriers that prevented general taxation for the support of religious institutions.
Payment of Title I Teachers in Parochial Schools Does Not Violate the Establishment Clause
Agostini v. Felton Supreme Court of the United States, 1997. 521 U.S. 203, 117 S. Ct. 1997.
Justice O’CONNOR delivered the opinion of the Court. In Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232 (1985), this Court held that the Establishment Clause of the First Amendment barred the city of New York from sending public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to a congressionally mandated program. On remand, the District Court for the Eastern District of New York entered a permanent injunction reflecting our ruling. Twelve years later, petitioners—the parties bound by that injunction—seek relief from its operation. Petitioners maintain that Aguilar cannot be squared with our intervening Establishment Clause jurisprudence and ask that we explicitly recognize what our more recent cases already dictate: Aguilar is no longer good law. . . . In 1965, Congress enacted Title I of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, as modified, 20 U.S.C. § 6301 et seq., to “provid[e] full educational opportunity to every child regardless of economic background.” . . . Toward that end, Title I channels federal funds, through the States, to “local educational agencies.” . . . The LEA’s spend these funds to provide remedial education, guidance,
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The Establishment Clause and the Lemon Test
and job counseling to eligible students. . . . Title I funds must be made available to all eligible children, regardless of whether they attend public schools. . . . An LEA providing services to children enrolled in private schools is subject to a number of constraints that are not imposed when it provides aid to public schools. Title I services may be provided only to those private school students eligible for aid, and cannot be used to provide services on a “school-wide” basis. . . . In addition, the LEA must retain complete control over Title I funds; retain title to all materials used to provide Title I services; and provide those services through public employees or other persons independent of the private school and any religious institution. . . . The Title I services themselves must be “secular, neutral, and non-ideological,” . . . and must “supplement, and in no case supplant, the level of services” already provided by the private school. . . . In 1978, in Aguilar, six federal taxpayers— respondents here—sued the Board in the District Court for the Eastern District of New York. . . . In a 5–4 decision, this Court affirmed on the ground that the Board’s Title I program necessitated an “excessive entanglement of church and state in the administration of [Title I] benefits.” 473 U.S. at 414, 105 S. Ct. at 3239. . . . The Board, like other LEA’s across the United States, modified its Title I program so it could continue serving those students who attended private religious schools. Rather than offer Title I instruction to parochial school students at their schools, the Board reverted to its prior practice of providing instruction at public school sites, at leased sites, and in mobile instructional units (essentially vans converted into classrooms) parked near the sectarian school. The Board also offered computer-aided instruction, which could be provided “on premises” because it did not require public employees to be physically present on the premises of a religious school. It is not disputed that the additional costs of complying with Aguilar’s mandate are significant. . . . In order to evaluate whether Aguilar has been eroded by our subsequent Establishment Clause cases, it is necessary to understand the rationale upon which Aguilar, as well as its companion case, School Dist. of Grand Rapids v. Ball, rested.
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In Ball, the Court evaluated two programs implemented by the School District of Grand Rapids, Michigan. The district’s Shared Time program, the one most analogous to Title I, provided remedial and “enrichment” classes, at public expense, to students attending nonpublic schools. The classes were taught during regular school hours by publicly employed teachers, using materials purchased with public funds, on the premises of nonpublic schools. . . . Accordingly, a majority found a “substantial risk” that teachers—even those who were not employed by the private schools—might “subtly (or overtly) conform their instruction to the [pervasively sectarian] environment in which they [taught].” Distilled to essentials, the Court’s conclusion that the Shared Time program in Ball had the impermissible effect of advancing religion rested on three assumptions: (i) any public employee who works on the premises of a religious school is presumed to inculcate religion in her work; (ii) the presence of public employees on private school premises creates a symbolic union between church and state; and (iii) any and all public aid that directly aids the educational function of religious schools impermissibly finances religious indoctrination, even if the aid reaches such schools as a consequence of private decisionmaking. Additionally, in Aguilar there was a fourth assumption: that New York City’s Title I program necessitated an excessive government entanglement with religion because public employees who teach on the premises of religious schools must be closely monitored to ensure that they do not inculcate religion. Our more recent cases have undermined the assumptions upon which Ball and Aguilar relied. To be sure, the general principles we use to evaluate whether government aid violates the Establishment Clause have not changed since Aguilar was decided. For example, we continue to ask whether the government acted with the purpose of advancing or inhibiting religion, and the nature of that inquiry has remained largely unchanged. . . . As we have repeatedly recognized, government inculcation of religious beliefs has the impermissible effect of advancing religion. Our cases subsequent to Aguilar have, however, modified in two significant respects the approach we use to assess indoctrination. First, we have
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abandoned the presumption erected in Meek and Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion. . . . Second, we have departed from the rule relied on in Ball that all government aid that directly aids the educational function of religious schools is invalid. In Witters v. Washington Dept. of Servs. for the Blind, we held that the Establishment Clause did not bar a State from issuing a vocational tuition grant to a blind person who wished to use the grant to attend a Christian college and become a pastor, missionary, or youth director. Even though the grant recipient clearly would use the money to obtain religious education, we observed that the tuition grants were “made available generally without regard to the sectarian-nonsectarian, or public/nonpublic nature of the institution benefited.” . . . The grants were disbursed directly to students, who then used the money to pay for tuition at the educational institution of their choice. . . . Zobrest and Witters make clear that, under current law, the Shared Time program in Ball and New York City’s Title I program in Aguilar will not, as a matter of law, be deemed to have the effect of advancing religion through indoctrination. Indeed, each of the premises upon which we relied in Ball to reach a contrary conclusion is no longer valid. . . . . . . [I]t is clear that Title I services are allocated on the basis of criteria that neither favor nor disfavor religion. The services are available to all children who meet the Act’s eligibility requirements, no matter what their religious beliefs or where they go to school, 20 U.S.C. § 6312(c)(1)(F). The Board’s program does not, therefore, give aid recipients any incentive to modify their religious beliefs or practices in order to obtain those services. We turn now to Aguilar’s conclusion that New York City’s Title I program resulted in an excessive entanglement between church and state. Whether a government aid program results in such an entanglement has consistently been an aspect of our Establishment Clause analysis. We have considered entanglement both in the course of assessing whether an aid program has an impermissible effect of advancing religion, . . . and as a factor separate and apart from “effect,” Lemon v. Kurtzman, 403 U.S. at 612–613, 91 S. Ct. at 2111. . . .
Not all entanglements, of course, have the effect of advancing or inhibiting religion. Interaction between church and state is inevitable, and we have always tolerated some level of involvement between the two. Entanglement must be “excessive” before it runs afoul of the Establishment Clause. . . . The pre-Aguilar Title I program does not result in an “excessive” entanglement that advances or inhibits religion. As discussed previously, the Court’s finding of “excessive” entanglement in Aguilar rested on three grounds: (i) the program would require “pervasive monitoring by public authorities” to ensure that Title I employees did not inculcate religion; (ii) the program required “administrative cooperation” between the Board and parochial schools; and (iii) the program might increase the dangers of “political divisiveness.” . . . Under our current understanding of the Establishment Clause, the last two considerations are insufficient by themselves to create an “excessive” entanglement. They are present no matter where Title I services are offered, and no court has held that Title I services cannot be offered offcampus. . . . Further, the assumption underlying the first consideration has been undermined. In Aguilar, the Court presumed that full-time public employees on parochial school grounds would be tempted to inculcate religion, despite the ethical standards they were required to uphold. Because of this risk pervasive monitoring would be required. But after Zobrest we no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment. Since we have abandoned the assumption that properly instructed public employees will fail to discharge their duties faithfully, we must also discard the assumption that pervasive monitoring of Title I teachers is required. . . . To summarize, New York City’s Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: it does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement. We therefore hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program
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The Establishment Clause and the Lemon Test
containing safeguards such as those present here. The same considerations that justify this holding require us to conclude that this carefully constrained program also cannot reasonably be viewed as an endorsement of religion. . . . Accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time program, are no longer good law. The doctrine of stare decisis does not preclude us from recognizing the change in our law and overruling Aguilar and those portions of Ball inconsistent with our more recent decisions. As we have often noted, “[s]tare decisis is not an inexorable command,” but instead reflects a policy judgment that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” . . . As discussed above, our Establishment Clause jurisprudence has changed significantly since we decided Ball and Aguilar, so our decision to overturn those cases rests on far more than “a present doctrinal disposition to come out differently from the Court of [1985].” . . . We therefore overrule Ball and Aguilar to the extent those decisions are inconsistent with our current understanding of the Establishment Clause. . . . We therefore conclude that our Establishment Clause law has “significant[ly] change[d]” since we decided Aguilar. . . . For these reasons, we reverse the judgment of the Court of Appeals and remand to the District Court with instructions to vacate its September 26, 1985, order. It is so ordered.
Federal Funds to Sectarian Schools for Acquisition of Instructional and Educational Materials Does Not Violate the Establishment Clause
Mitchell v. Helms Supreme Court of the United States, 2000. 530 U.S. 793, 120 S. Ct. 2530.
Justice Thomas announced the judgment of the Court and delivered an opinion, in which the Chief Justice, Justice Scalia, and Justice Kennedy join.
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As part of a longstanding school aid program known as Chapter 2, the Federal Government distributes funds to state and local governmental agencies, which in turn lend educational materials and equipment to public and private schools, with the enrollment of each participating school determining the amount of aid that it receives. The question is whether Chapter 2, as applied in Jefferson Parish, Louisiana, is a law respecting an establishment of religion, because many of the private schools receiving Chapter 2 aid in that parish are religiously affiliated. We hold that Chapter 2 is not such a law. . . . Chapter 2 of the Education Consolidation and Improvement Act of 1981, Pub. L. 97–35, 95 Stat. 469, as amended, 20 U.S.C. §§ 7301–7373, has its origins in the Elementary and Secondary Education Act of 1965 (ESEA), and is a close cousin of the provision of the ESEA that we recently considered in Agostini v. Felton, 521 U.S. 203 (1997). Like the provision at issue in Agostini, Chapter 2 channels federal funds to local educational agencies (LEA’s), which are usually public school districts, via state educational agencies (SEA’s), to implement programs to assist children in elementary and secondary schools. Among other things, Chapter 2 provides aid “for the acquisition and use of instructional and educational materials, including library services and materials (including media materials), assessments, reference materials, computer software and hardware for instructional use, and other curricular materials.” . . . LEA’s and SEA’s must offer assistance to both public and private schools (although any private school must be nonprofit). Participating private schools receive Chapter 2 aid based on the number of children enrolled in each school, and allocations of Chapter 2 funds for those schools must generally be “equal (consistent with the number of children to be served) to expenditures for programs . . . for children enrolled in the public schools of the [LEA].” LEA’s just in all cases “assure equitable participation” of the children of private schools “in the purposes and benefits” of Chapter 2. Further, Chapter 2 funds may only “supplement and, to the extent practical, increase the level of funds that would . . . be made available from non-Federal sources.” LEA’s and SEA’s may not operate their programs “so as to supplant funds from nonFederal sources.” . . .
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The Establishment Clause of the First Amendment dictates that “Congress shall make no law respecting an establishment of religion.” In the over 50 years since Everson, we have consistently struggled to apply these simple words in the context of governmental aid to religious schools. . . . In Agostini, however, we brought some clarity to our case law, by overruling two anomalous precedents (Meek and Wolman, one in whole, the other in part) and by consolidating some of our previously disparate considerations under a revised test. Whereas in Lemon we had considered whether a statute (1) has a secular purpose, (2) has a primary effect of advancing or inhibiting religion, or (3) creates an excessive entanglement between government and religion, . . . in Agostini we modified Lemon for purposes of evaluating aid to schools and examined only the first and second factors. . . . We acknowledged that our cases discussing excessive entanglement had applied many of the same considerations as had our cases discussing primary effect, and we therefore recast Lemon’s entanglement inquiry as simply one criterion relevant to determining a statute’s effect. . . . We also acknowledged that our cases had pared somewhat the factors that could justify a finding of excessive entanglement. . . . We then set out revised criteria for determining the effect of a statute: To summarize, New York City’s Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement. . . .
In this case, our inquiry under Agostini’s purpose and effect test is a narrow one. Because respondents do not challenge the District Court’s holding that Chapter 2 has a secular purpose, and because the Fifth Circuit also did not question that holding, . . . we will consider only the first two Agostini criteria, since neither respondents nor the Fifth Circuit has questioned the District Court’s holding, . . . that Chapter 2 does not create an excessive entanglement. Considering Chapter 2 in light of our more recent case law, we conclude that it neither results in religious indoctrination by the government nor defines its recipients by reference to religion. We therefore
hold that Chapter 2 is not a “law respecting an establishment of religion.” In so holding, we acknowledge . . . Meek and Wolman are anomalies in our case law. We therefore conclude that they are no longer good law. . . . As we indicated in Agostini, and have indicated elsewhere, the question whether governmental aid to religious schools results in governmental indoctrination is ultimately a question whether any religious indoctrination that occurs in those schools could reasonably be attributed to governmental action. . . . We have also indicated that the answer to the question of indoctrination will resolve the question whether a program of educational aid “subsidizes” religion, as our religion cases use that term. . . . In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. For attribution of indoctrination is a relative question. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible for any particular indoctrination. To put the point differently, if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, . . . then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. The government, in crafting such an aid program, has had to conclude that a given level of aid is necessary to further that purpose among secular recipients and has provided no more than the same level to religious recipients. As a way of assuring neutrality, we have repeatedly considered whether any governmental aid that goes to a religious institution does so “only as a result of the genuinely independent and private choices of individuals.” . . . We have viewed as significant whether the “private choices of individual parents,” as opposed to the “unmediated” will of government, . . .
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The Establishment Clause and the Lemon Test
determine what schools ultimately benefit from the governmental aid, and how much. For if numerous private choices, rather than the single choice of a government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment. Private choice also helps guarantee neutrality by mitigating the preference for pre-existing recipients that is arguably inherent in any governmental aid program . . . and that could lead to a program inadvertently favoring one religion or favoring religious private schools in general over nonreligious ones. The principles of neutrality and private choice, and their relationship to each other, were prominent not only in Agostini, . . . but also in Zobrest, Witters, and Mueller. . . . [P]rivate choices helped to ensure neutrality, and neutrality and private choices together eliminated any possible attribution to the government even when the interpreter translated classes on Catholic doctrine. . . . The tax deduction for educational expenses that we upheld in Mueller was, in these respects, the same as the tuition grant in Witters. We upheld it chiefly because it “neutrally provides state assistance to a broad spectrum of citizens,” . . . and because “numerous, private choices of individual parents of school-age children,” determined which schools would benefit from the deductions. We explained that “[w]here, as here, aid to parochial schools is available only as a result of decisions of individual parents no ‘imprimatur of state approval’ can be deemed to have been conferred on any particular religion, or on religion generally.” . . . If aid to schools, even “direct aid,” is neutrally available and, before reaching or benefiting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any “support of religion,” . . . Although the presence of private choice is easier to see when aid literally passes through the hands of individuals—which is why we have mentioned directness in the same breath with private choice, . . . there is no reason why the Establishment Clause requires such a form. . . . Respondents also contend that the Establishment Clause requires that aid to religious schools
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not be impermissibly religious in nature or be divertible to religious use. We agree with the first part of this argument but not the second. Respondent’s “no divertibility” rule is inconsistent with our more recent case law and is unworkable. So long as the governmental aid is not itself “unsuitable for use in the public schools because of religious content,” . . . and eligibility for aid is determined in a constitutionally permissible manner, any use of that aid to indoctrinate cannot be attributed to the government and is thus not of constitutional concern. And, of course, the use to which the aid is put does not affect the criteria governing the aid’s allocation and thus does not create any impermissible incentive under Agostini’s second criterion. . . . A concern for divertibility, as opposed to improper content, is misplaced not only because it fails to explain why the sort of aid that we have allowed is permissible, but also because it is boundless—enveloping all aid, no matter how trivial—and thus has only the most attenuated (if any) link to any realistic concern for preventing an “establishment of religion.” Presumably, for example, government-provided lecterns, chalk, crayons, pens, paper, and paintbrushes would have to be excluded from religious schools under respondents’ proposed rule. But we fail to see how indoctrination by means of (i.e., diversion of) such aid could be attributed to the government. In fact, the risk of improper attribution is less when the aid lacks content, for there is no risk (as there is with books), of the government inadvertently providing improper content. . . . Finally, any aid, with or without content, is “divertible” in the sense that it allows schools to “divert” resources. Yet we have “not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.” . . . One of the dissent’s factors deserves special mention: whether a school that receives aid (or whose students receive aid) is pervasively sectarian. The dissent is correct that there was a period when this factor mattered, particularly if the pervasively sectarian school was a primary or secondary school. . . . But that period is one that the Court should regret, and it is thankfully long past. . . . [T]he inquiry into the recipient’s religious views required by a focus on whether a school
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is pervasively sectarian is not only unnecessary but also offensive. It is well established, in numerous other contexts, that courts should refrain from trolling through a person’s or institution’s religious beliefs. . . . Yet that is just what this factor requires, as was evident before the District Court, . . . In addition, and related, the application of the “pervasively sectarian” factor collides with our decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity. Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow. . . . Although the dissent professes concern for “the implied exclusion of the less favored.” . . . [T]he exclusion of pervasively sectarian schools from governmentaid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’s consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.” . . . In short, nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This doctrine, born of bigotry, should be buried now. . . . . We therefore have no difficulty concluding that Chapter 2 is neutral with regard to religion. . . . Chapter 2 aid also, like the aid in Agostini, Zobrest, and Witters, reaches participating schools only “as a consequence of private decisionmaking.” . . . It is the students and their parents—not the government—who, through their choice of school, determine who receives Chapter 2 funds. The aid follows the child. Because Chapter 2 aid is provided pursuant to private choices, it is not problematic that one could fairly describe Chapter 2 as providing “direct” aid. The materials and equipment provided under Chapter 2 are presumably used from time to time by entire classes rather than by individual students (although individual students are likely the chief consumers of library books
and, perhaps, of computers and computer software), and students themselves do not need to apply for Chapter 2 aid in order for their schools to receive it, but, as we explained in Agostini, these traits are not constitutionally significant or meaningful. . . . Nor, for reasons we have already explained, is it of constitutional significance that the schools themselves, rather than the students, are the bailees of the Chapter 2 aid. The ultimate beneficiaries of Chapter 2 aid are the students who attend the schools that receive that aid, and this is so regardless of whether individual students lug computers to school each day or, as Jefferson Parish has more sensibly provided, the schools receive the computers. . . . Finally, Chapter 2 satisfies the first Agostini criterion because it does not provide to religious schools aid that has an impermissible content. The statute explicitly bars anything of the sort, providing that all Chapter 2 aid for the benefit of children in private schools shall be “secular, neutral, and nonideological,” . . . and the record indicates that the Louisiana SEA and the Jefferson Parish LEA have faithfully enforced this requirement insofar as relevant to this case. The chief aid at issue is computers, computer software, and library books. The computers presumably have no pre-existing content, or at least none that would be impermissible for use in public schools. . . . In short, Chapter 2 satisfies both the first and second primary criteria of Agostini. It therefore does not have the effect of advancing religion. For the same reason, Chapter 2 also “cannot reasonably be viewed as an endorsement of religion.” . . . Accordingly, we hold that Chapter 2 is not a law respecting an establishment of religion. Jefferson Parish need not exclude religious schools from its Chapter 2 program. To the extent that Meek and Wolman conflict with this holding, we overrule them. The judgment of the Fifth Circuit is reversed. It is so ordered.
CASE NOTE In 2010, during the period of speculation regarding President Obama’s deliberations in choosing a replacement for Justice John Paul Stevens on the Supreme Court, considerable attention was given to the religious beliefs of the sitting members of the Supreme Court. Earlier,
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Religion and the Reconstruction Era: Grant and Blaine
Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law and former Dean of the Law School, University of Chicago, had raised the issue of religion and politics in the Chicago Tribune where he observed that the five justices who voted to uphold the federal ban on the so-called partial birth abortions in Gonzales v. Carhart, 548 U.S. 938, 127 S. Ct. 30 (2006), were Roman Catholics; Chief Justice Roberts and Associate Justices Alito, Kennedy, Thomas, and Scalia. Professor Stone had specifically written in the Tribune in 2007 that: “Here is a painfully awkward observation. All five justices in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with the settled precedent.” Stone continued, “Given the nature of the issue, the strength of the relevant precedent, and the inadequacy of the court’s reasoning, the question of religion is too obvious to ignore.” The New York Times reported that following the Tribune article, Professor Stone “was surprised by the vehement criticism that followed. Catholics in particular.” The Times noted that “One Catholic, Justice Antonin Scalia, was especially furious about the questions raised by Professor Stone’s article.” Scalia said that Stone’s article was “a damn lie” and added that “it got me so mad that I will not appear at the University of Chicago until he (Stone) is no longer on the faculty.” The New York Times, “Week in Review,” Sunday, April 11, 2010, Opinion pp. 1, 4. Thus, whether religious beliefs of the Supreme Court justices bear on their views regarding the First Amendment and the meaning of the idea of “separation of church and state” will undoubtedly be a matter of ongoing disagreement.
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Religion and the Reconstruction Era: Grant and Blaine
One of Justice Clarence Thomas’ sweeping generalizations in Mitchell v. Helms104 asserted that not only can states constitutionally provide public funding to pervasively sectarian schools, but that not to do so manifests a hostility toward religion, and in particular the Roman Catholic religion. To Thomas, strong separation language in state constitutions written after 1870 were simply subtle devices to deprive Catholic schools of
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public funding, and are, therefore, violative of the federal Constitution. At the heart of Thomas’ reasoning is his belief that state constitutional provisions that prohibit government aid to religion were enacted as Protestant manifestations of anti-Catholic bigotry of the Reconstruction Era. Thomas’ “bigotry thesis” is grounded in his assumption that the strict separation provisions in post-reconstruction state constitutions had emanated from the U.S. Congress in the 1870s, led by Speaker of the House James G. Blaine and by President Grant, both of whom Justice Thomas believes to have had strong and prejudiced anti-Catholic biases. Later in Locke v. Davey,105 2004, a State of Washington case, Justice Rehnquist, although lending credence to Thomas’ “bigotry thesis,” concluded that the facts in Davey were not sufficient to document bigoted intent in that particular case. Rehnquist concluded saying that: “neither Davey nor amici have established a credible connection between the Blaine Amendment and Articles I and II of the Washington Constitution. Accordingly, the Blaine Amendment’s history is simply not before us.”106 Most states have church-state provisions that are explicitly stronger than the Establishment Clause of the First Amendment in prohibiting the use of public funds for churches, church schools, or other religious enterprises. 107 The effect of Justice Thomas’ “bigotry thesis” is that any state prohibition against public funding of religious schools is suspect as constituting “hostility” to religion,108 generally, and to the Catholic religion specifically. The so-called Blaine Amendment that Justice Thomas cites in Helms, was proposed by James G. Blaine, representative from Maine and speaker of the House, on December 14, 1875, and was passed by an overwhelming majority of the House (180 votes in favor and 7 votes opposed) on August 4, 1876. It, however, failed to gain the two-thirds required vote in the U.S. Senate (28 votes in favor and 16 votes opposed). The failure of the Amendment in the Senate was directly attributable to the negative votes of the newly reinstated segregationist Democrats from the Confederate states.109 Justices Rehnquist, Thomas, and Scalia asserted in Helms and Davey that further historical scrutiny is desirable to specifically document the
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bigotry of that era and its connection as the motivating factor in the adoption of state constitutions that prohibit public funding of Catholic schools. If any such evidence is found, then it must be presumed that the present Supreme Court will entertain the opportunity to overthrow separation provisions in state constitutions. Who was Blaine? Blaine was an Abraham Lincoln110 liberal Republican from the State of Maine. Blaine’s allegiance to Lincoln rested on the shared belief in a nation founded on a postCivil War “new birth of freedom,” and, as a congressman in the 38th Congress, Blaine advanced the vision of “national survival and glory.” 111 Essential to Lincoln and Blaine’s philosophy of nationhood was “oneness,” “unity,” and “one country, one Constitution, one destiny.”112 With the idea of national oneness, Blaine called for all measures that would “bind us more indissolubly together,” in order that “we cannot fly apart.”113 After Lincoln’s death, Blaine opposed proSouthern segregationist policies and, in particular, he strongly questioned the reconstruction policies of President Andrew Johnson and Johnson’s stifling of the Civil Rights Act of 1866; and other civil rights measures caused Blaine to vote for Johnson’s impeachment in February of 1868.114 The last straw had been Johnson’s opposition to the Fourteenth Amendment.115 The language and passage of the Fourteenth Amendment in 1868116 owed much to Blaine’s leadership in Congress and his constancy in support of the southern blacks who had been disenfranchised by southern white Democrats shortly after the War.117 Robert Kagan, in his 2006 bestseller Dangerous Nation,118 speaks of Blaine’s advocacy of national progress and his instrumental role in mending a nation that had been broken by the Civil War and later rent by Jim Crow laws. Kagan observes that Blaine was “by far the most popular and dominant political figure from the 1870s to the early 1890s” in America, and by virtue of leadership he not only sought to eradicate the vestiges of slavery, but he represented the “Republican vision of a more active and moralistic American foreign policy.”119 Morton Keller, in his seminal history of the late nineteenth-century America, placed Blaine in the vanguard of the northern Republican intellectuals, who defied southern racism and
subscribed “to the ideal of a powerful, unified, purposeful nation.” 120 Kagan observed that Blaine, Seward, and other Republicans sought a foreign policy that would eventually “place the United States at the center of global influence”121 and a domestic policy of cohesion, unity of purpose, and a revival of morality that had been so badly damaged by the rationalization of racial discrimination. Grant and Blaine believed that religion, as well as race, could indelibly mark and separate the nation.122 As described by the eminent historian Jean Edward Smith in his biography Grant, “The issue had two dimensions: public funding for sectarian education and religious exercises in public schools.”123 Division and discord between Catholics and Protestants were highly visible political issues as Catholics became the majority political force in northern cities, voted their religion, and petitioned state legislatures for public funding of Catholic schools.124 Protestants countered in efforts to have state legislatures to prohibit state funding for Catholic schools.125 The conflict escalated as Catholics challenged hymn singing, Bible reading, and praying in the public schools as Protestant rituals.126 Such religious exercises were in fact generally Protestantoriented, using, for example, a Protestant version of the Bible rather than the Catholic Douay Bible. School boards in Cincinnati, Chicago, New York, Buffalo, Rochester, and several other major cities under concerted core city Catholic political pressure were able to purge most of the Protestant religious exercises from public schools.127 In 1875, President Grant, in a speech to the veterans of the army of Tennessee, appealed for a unified nation, calling for equality of treatment and privilege between North and South, and an end to divisiveness. With cognizance of the religious political strife that was being waged between Protestants and Catholics, Grant asked the veterans to defend “free thought, free speech, a free press, pure morals unfettered by religious sentiments, and of equal rights and privileges of all men, irrespective of nationality, color, or religion.”128 Directly addressing the issue of unity, Grant maintained that the greatest danger of dividing the nation was to be found in strife and intolerance among religious sects and he warned: “I predict that the dividing line will not be Mason
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Religion and the Reconstruction Era: Grant and Blaine
and Dixon’s, but between patriotism and intelligence on the one side, and superstition, ambition, and ignorance on the other.”129 Then Grant concluded, enunciating the rationale for a unified country. To him, the key to unity was a “common school education” that advanced the knowledge of the people as the basis for a democracy that was Jeffersonian in thought and concept. Smith affirms that the foundation for Grant’s idea of a democratic nation was “free public education.”130 Grant’s resolution of the Catholic versus Protestant conflict, as explained by Smith, was “evenhanded” and denied both of their zealous self-interested positions; “he belted Protestants and Catholics alike.”131 For the Catholics, he would provide no public funding for their parochial schools; for the Protestants, he would deny them religious services in the public school classroom and provide them with no public funding of their religious schools. He said to the veterans: “Resolve that neither the State nor the nation shall support institutions of learning other than those sufficient to afford to every child the opportunity of a good common school education, unmixed with sectarian, pagan, or atheistic dogmas. Leave the matter of religion to the family altar, the church, and the private school supported entirely by private contributions. Keep the church and state forever separate.”132 On December 7, 1875, in his annual message to Congress, President Grant proposed a constitutional amendment that would require states to make schools entirely secular, banning religious exercises and the teaching of religion, and further, the amendment would prohibit states from providing aid to religious schools and institutions. He further proposed that church property should be taxed, a measure that neither Catholics nor Protestants appreciated. 133 Yet, much favorable press, both Catholic and Protestant, followed President Grant’s speech, and a week later, Speaker Blaine introduced a constitutional amendment into Congress that if passed and ratified would bring President Grant’s wishes to fruition.134 The Grant/Blaine proposed amendment in 1875 was designed to accomplish five objectives.135 First, it would effectively apply the Establishment and Free Exercise Clauses of the First Amendment to the states. As written and ratified in 1791, the First Amendment only
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applied to Congress. Second, it would reassert and define the meaning of “establishment” to comport more clearly with the intent that Madison and Jefferson had envisaged for the First Amendment. Third, it would restate the Free Exercise Clause and apply it to prevent majorities in states from using the public schools to advance their own particular brand of religious belief. The proposed amendment would directly prohibit any state from denying free exercise of religion. Per President Grant’s ideal, the provision was to ensure that public schools would be completely secular, entirely removed from the inculcation of any religious tenet or belief. The efficiency of the language in this provision has been borne out by Supreme Court precedents that have since completely secularized the public schools.136 Fourth, because the Catholic versus Protestant conflict was rooted in education and the struggle to see which sect could obtain the advantage in inculcation of religious beliefs in the children’s minds of the next generation, the Grant and Blaine amendment was directed toward education specifically. The more generalized prohibitions of the First Amendment were to be made more pointed to ensure secularization of public schools and to prohibit the use of taxation to support schools of “any religious sect or denomination.” The prohibition applied to all sects in keeping with the wording of the First Amendment as defined by Jefferson and Madison. Fifth, the proposed Amendment would prohibit public monies flowing to church schools and it would also prohibit the use of funds from the sale or rent of land grants from the national domain, reserved for education, to be used for religious purposes or institutions. Importantly too, the amendment sought to reverse the rejuvenated southern “states’ rights” arguments that had survived the Civil War and still deprived individual rights and freedoms. According to Notre Dame’s eminent historian John I. McGreevy, both Catholics and southerners looked with a jaundiced eye upon any measure that strengthened the federal government to the detriment of states’ rights.137 McGreevy says the “Catholics and southerners alike constantly warned of an expanding federal state.”138 Throughout the period in which Justice Thomas founds his “bigotry thesis,” white southern Protestants and northern white Catholics combined
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forces in opposition to federal initiatives toward unity, centralization, and nationalism. Professor McGreevy explains that: “the sources of Catholic and white southern hostility to liberal nationalism differed,” but, “the extent to which Catholic commentators on Reconstruction and Republican reform echoed their white counterparts is striking. Catholic editors . . . joined white southerners in opposing Reconstruction programs. . . .”139 In this regard, the proposed Grant/Blaine amendment was Hamiltonian in concept, invoking more central federal authority to correct injustices fostered by state action. Too, as had been vividly demonstrated, confederated states could not be relied upon to protect religious freedom or individual rights or preserve the unity of the nation. Grant and Blaine had learned that even when the Constitution explicitly prohibited certain state offenses against the individual, the conservative U.S. Supreme Court could and did neuter the applicable constitutional provision. This, of course, did happen to the Fourteenth Amendment in the Slaughter House Cases,140 in 1873, wherein the Supreme Court held that the basic rights of liberty and equality of the Fourteenth Amendment should remain under the control of state legislatures. Moreover, the Court very narrowly defined privileges and immunities to restrict the Fourteenth Amendment’s effect on civil rights. Grant and Blaine had watched helplessly as the flagship of reconstruction, the Fourteenth Amendment, had been drastically curtailed and deprived of essential application “against state violations of fundamental guarantees of liberty.”141 Thus, in view of the Supreme Court’s early emasculation of the Fourteenth Amendment, Grant and Blaine sought in their proposed amendment to prevent similar negation or nonenforcement of the Establishment and Free Exercise Clauses of the First Amendment. Further, both Grant and Blaine meant to clarify the definition of “establishment of religion” by explicit language that would clearly prohibit states from giving financial support to any and all religions. In short, the amendment that Grant proposed and that Blaine shepherded through the U.S. House was designed to deter religious intolerance and separation that threatened the unity of the nation. Just as the Fourteenth Amendment was designed to effectuate unity and equality
by preventing states from using state power and money to continue segregation of the races, the Grant/Blaine amendment was designed to prevent states from feeding religious discord by providing public financing of any and all religious schools and institutions. Bigotry obviously existed during the nineteenth century, as it has in all ages at least since Constantine and the rise of monotheism, but what was new in the Blaine era was the spirit of nationalism, and the belief that the state could provide a moral foundation, address, and rectify social and economic inequalities while ensuring new liberties. The pervasiveness and complexity of international religious conflict with emerging national governments and the many instances of extreme measures taken by both Catholics and Protestants that created divisiveness and discord in the late nineteenth century, suggest that “bigotry thesis” of Justice Thomas would require more substantial historical research than that indicated by Justice Thomas’ understandings and presumptions.
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The Founders’ Intent Regarding Separation
The critical question regarding government providing public money to clerical schools (Baptist, Catholic, Muslim, et al.) is the intent of the Founders of the American Republic. When they wrote in the first sentence of the Bill of Rights, “Congress shall make no law respecting the establishment of religion . . . ,” did they mean that government could not fund any and all religions, or did they mean simply that government could not aid one preferred religion and could thereby give public money to all religions? As discussed previously, the current Supreme Court has departed from the earlier separation precedents of Everson (1947) and Lemon (1971), and now advances a new and different constitutional philosophy in Agostini (1997), Helms (2000), Zelman (2002), and Davey (2004) that permits Congress and state legislatures to provide public moneys for “faith-based initiatives,” etc., to all religious institutions and schools, even those that are “pervasively sectarian,” including those whose purpose it is to educate the clergy.
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The Founders’ Intent Regarding Separation
Whether we should look to history to interpret the Constitution, and not simply rely on legal precedents, is a subject of considerable debate among judges and historians. As is amply demonstrated by the Thomas decision in Helms, judges may have only a surface view of history. According to Frank Lambert, the Purdue University scholar of American history, religion was viewed as a divisive force, (a progenitor of factions), threatening “a more perfect union,”142 and to avoid the inherent discord that religion generated, the Founders sought to completely separate church and state.143 In pursuit of separation, Madison opposed using public tax money to support one and all ministers of religion.144 Lambert concluded that history teaches that the Founder’s intent was not nonpreferential toward religious sects, but rather that the government should remove religion from its cognizance. Thus, according to Lambert, “The Founders’ solution to the problem of how to keep religion from undermining union was to ignore it.”145 This position of the majority of the Supreme Court today, that the Establishment Clause requires that government be merely nonpreferential toward religion, is clearly contrary to the conclusions of Leonard Levy, the constitutional historian, who points out that the Establishment Clause when ratified in 1791 was meant to prevent not just state preference for one religion over others, but it also was intended to forbid nonpreferential support for any or all religious groups.146 Levy’s reading of Madison leads to the conclusion that disestablishment meant that government had no power to legislate concerning religion, period, “to aid one sect exclusively or to aid all equally.”147 Madison famously observed in his Memorial and Remonstrance, “That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever.” For this danger not to exist was to have a constitution that would prevent legislatures from enacting any laws at all that touched religion. Madison sought to have no adjoining or abutting of government with religion in any form or context, requiring complete separation, and as is observed earlier in this text, Jefferson made his position quite clear in his Act for Establishing Religious Freedom, passed by the
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Virginian legislature in 1786: “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” That government should have nothing to do with religion and vice versa was intended by those who designed and rationalized the Bill of Rights in 1789 is best discerned in the actual wording of the Establishment Clause. The words were well-considered and precise in their meaning. The Clause states: “Congress shall make no law respecting an establishment of religion. . . .” As Levy concludes, the mandate is quite clear. It states concisely that Congress is to “make no law,” no law regarding religion, whatsoever. Further, the founders used the word “respecting” which is a synonym for “concerning” or “considering,” thus Congress cannot consider an establishment of religion. Moreover, the Clause does not say “one” establishment, rather it uses the article “an.” “An establishment,” according to Levy, referred to all religions as a group. Thus, the question is, does the word establishment mean one religion or all religions? Madison in his Memorial and Remonstrance opposed a general tax assessment in Virginia that had been proposed to support teachers of all religious sects, not just one sect. In objecting to such a tax for all religions, Madison repeatedly referred to an “establishment of religion.”148 Madison considered the tax for all religions as “the establishment proposed by the bill.” And he further referred to the tax law for all religions as the “proposed establishment.” The intent of the words an establishment was in reference to any one or more religions and did not imply that government should only be neutral or nonpreferential among religions. In 1785, a strong push was launched in the Continental Congress to set aside a section of land under the Northwest Ordinance for religion in western territories. Madison opposed and helped defeat the plan not because it was religiously neutral and nonpreferential, but because it was in “consideration” of religion.149 Thus, to Madison, “an establishment” pertained to all religions without regard to neutrality or preference. This is Levy’s interpretation of the Establishment Clause, which is essentially confirmed by the debates of the House and Senate in 1789 as the delegates considered the
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appropriate wording of the religion provision in the First Amendment. The House Committee of the Whole of the U.S. House of Representatives proposed that “no religion shall be established by law.” Another proposal was that “Congress shall make no laws touching religion. . . .” In the Senate, the preference question arose more directly when it was proposed and rejected that the amendment have inserted a clause that prohibited Congress from making a law favoring “One Religious sect or Society in preference to others” (emphasis added). Another Senate proposal was also rejected that stated that “Congress shall make no law establishing any particular denomination of religion in preference to another. . . .” (emphasis added). Yet another Senate proposal was agreed on that read, “Congress shall make no law establishing articles of faith or a mode of worship. . . .”150 According to Levy, the Senate’s version rejecting the preference language compelled the House Committee to decide the issue. Madison was Chair of the House Conferees. Finally, rejecting all language regarding “preference,” or neutrality of one religious sect over another, the final agreed wording was reached that became the final version of the “Establishment Clause” of the First Amendment. The House Conferees, “not satisfied with merely a ban or preference of one sect or religion over others,” 151 stated, “Congress shall make no law respecting an establishment of religion. . . .”152 Thus, according to Levy’s interpretation of the intent of the conferees, the Establishment Clause did not speak of neutrality among religious sects, nor did it enunciate a requirement of nonpreference, instead it simply forbade “an establishment of religion,” prohibiting Congress to make any law at all that considers religion. Rakove, in his Pulitzer Prize–winning treatise on the Constitution, titled Original Meanings: Politics and Ideas in the Making of the Constitution, confirms Levy’s interpretations that Madison’s and Jefferson’s intent with regard to religion was “a flat constitutional denial of legislative jurisdiction . . . a specific refusal to permit government to act over an entire area of behavior” (religion).153 According to Rakove, religion was different and more basic than other rights. He observes that in the “realm of religion,” Madison and Jefferson denied that the State had any constitutional capacity to act at all.154
Thus, the three prominent historians, Lambert, Levy, and Rakove, agree that what was new about the American idea of separation of church and state was that the Establishment Clause and the Free Exercise Clause of the First Amendment meant that laws of the State could not touch religion, they could not provide public appropriation of tax funds to aid one religion or all religions, nor could the State promulgate any legislation at all in the realm of religion. Such conclusions regarding constitutional intent of the Founding Fathers by eminent historians call into dispute the interpretations laid down by the Supreme Court in recent years as expressed in Agostini, Helms, Zelman, and Davey.
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New Theories of Church and State
With the dramatic change in the philosophy of the U.S. Supreme Court toward church and state in the past few years, three rationalizations of competing interpretations of the Establishment Clause and Free Exercise Clause of the First Amendment have emerged. 155 The first is the traditional American strict separation philosophy of Locke, Jefferson, and Madison. The second is what is called the nonpreference theory, advanced by Justices O’Connor, Thomas, Scalia, et al., who interpret the religion clauses to simply say that government can aid religion but must be impartial; that it cannot favor one religion over another, or secularism over religion. The third is the noncoercive theory; under this reasoning, the government can aid religion and does not violate the Establishment Clause unless it effectively establishes a state religion.
SEPARATION The separation theory, as explained earlier, is based on the philosophy that government and religion should operate in two entirely separate spheres, as Madison reasoned in his Memorial and Remonstrance. Government should be secular, not ecclesiastical, and should not have anything to do with the spiritual world and the hereafter. Rather, government should relate only to temporal affairs of men of the present world. The church, on the other hand, should be purely private and concerned with personal beliefs and individual theology, not attached to or dependent upon
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New Theories of Church and State
government in any way. “Separation” means the temporal and the spiritual should not “touch.” As observed above, the separation theory was most clearly enunciated in Everson v. Board of Education, where Justice Black, writing for the majority of the Supreme Court said: “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.”156 In Reynolds v. United States, the Court interpreted the Establishment Clause intended to “erect a wall of separation between church and state.”157 Specifically to the point, in Everson, Justice Black captured the essence of the theory of separation when he said, “Neither a state nor the federal government . . . can pass laws which aid one religion, aid all religions, or prefer one religion over another,”158 and “no tax in any amount large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”159 This passage in Everson best captures the essential difference between separation and the other two theories regarding the relationship between church and state. Justice Brennan, in his dissent in Marsh v. Chambers,160 explained that the intent of the Establishment Clause is to guarantee “the individual right of conscience . . . to keep the state from interfering in the essential autonomy of religious life, . . . to prevent the trivialization and degradation of religion by too close an attachment to the organs of government,” and to “help assure that essentially religious issues . . . not become the occasion for battle in the political arena.”161 As the Supreme Court observed in Everson, separation does not call for the denial of essential public service, such as public transportation for children who attend parochial schools, nor does it require the denial of civil services such as fire and police protection to benefit churches, but separation does mean that churches are not entitled to be strengthened by having public funds to set up their own transportation systems, private fire departments, religious police forces, or to pay costs of attending clerical schools.
NONPREFERENTIAL SUBSIDIZATION A second theory says that the dictates of the Establishment and Free Exercise Clauses are not offended if government provides funds and supports religion so long as it is neutral, neither
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preferring nor favoring one religion over another. In Mueller v. Allen,162 with Chief Justice Rehnquist writing for the majority, the Supreme Court upheld tax deductions from state income taxes for parents’ expenses for children attending parochial schools. He maintained that because the deductions were available to all parents, regardless of the type of private or religious school attended, the benefits were neutral. Kurland, a proponent of this theory, has written that “the clauses should be read as stating a simple precept: that government cannot utilize religion as a standard for action or inaction because the clauses, read together as they should be, prohibit classification in terms of religion, either to confer a benefit or to impose a burden.”163 The nonpreference theory is also at times called the “neutrality” theory. Justice Rehnquist, in his dissent in Wallace v. Jaffree, interpreted the Establishment Clause to forbid “preference among religious sects or denominations.”164 He argued that the Establishment Clause did not prohibit the federal government from providing nondiscriminatory funding for religious schools.”165 Justice O’Connor, an advocate of the nonpreference theory, has explained the issue in terms of an “endorsement test.” According to this explanation, government violates the Establishment Clause if it endorses or “symbolically” endorses either religion or secularism. O’Connor wrote that “[e]very government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.”166 Commenting on the confusion implicit in the endorsement test, Chemerinsky writes, “People may perceive symbols in widely varying ways. The Court is left to make a subjective choice as to how people perceive a particular symbol.”167 Thus, the task of the courts in deciding whether government endorses or prefers a religion may become very difficult to ascertain. Moreover, Levy, quoted above in this chapter, points out that government neutrality was never the objective of the Establishment Clause of the First Amendment.168 Levy documents that before approving the wording of the religion clauses as ratified in 1791, the U.S. Senate rejected three motions containing language that would have prohibited government preference of one religious sect over another.169 He concludes that the
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Establishment Clause means that not only does the clause require neutrality and enjoin preference of one religion over others, but also clearly prohibits “governmental support, primarily financial,”170 for one religion or all religions. The present majority of Supreme Court Justices, however, do not accept such documentation of the Founders’ original intent. Rather, the Supreme Court’s majority, although undecided about neutrality versus endorsement, has clearly abrogated the separation interpretation and now appears more inclined toward the accommodation theory which posits that government should be free to subsidize churches and clerical institutions.
SUBSIDIZATION AND COLLABORATION A third theory of the intent of the religion clauses is that of subsidization and collaboration, sometimes called accommodation, where the state effectively embraces, funds, and obliges religion’s presence in government.171 This approach reads the Establishment Clause to mean that the government can fund religion and religious activity and is only prohibited from creating a state church or passing laws that coerce religions that are not in government favor. The underlying “theory of accommodation” has long been advocated by the priestcraft and parochial school proponents, but has only gained recent judicial support under the present Supreme Court. Justice Kennedy, in advancing this theory, has said that government can aid religion, and the only Establishment Clause restraint is that “government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious faith, or tends to do so.”172 The word coerce, as used by Justice Kennedy, is a central aspect of this theory. Government cannot use its power to establish state orthodoxy in religion. If, for example, government aid is denied for certain religious groups in an effort to gain adherence to a particular religious viewpoint, it would violate the Establishment Clause. The coercion test appears to be most readily applicable to prevent religious exercises in public schools; however, it would presumably do little to prevent government aid to religious schools. On the contrary, it appears that “accommodation” clearly permits an unremitting flow of public funds to religious schools.
In Lee v. Wisconsin, clergy-delivered prayers at public school graduations were declared unconstitutional, and “coercion” was the rationale for invalidation of the practice. Justice Kennedy, writing for the majority, said that such prayers are inherently coercive because there is an implicit pressure to attend the graduation ceremonies and be subjected to listen, or to leave the ceremonies during the prayer.173 The dissenting opinion in Lee, written by Justice Scalia, joined by Chief Justice Rehnquist and Justices White and Thomas, strongly supported a broader collaboration approach, maintaining that the Establishment Clause could only be violated if the law required religious practices and punished those who failed to engage. Accordingly then, at least four of the Supreme Court Justices in Lee supported an interpretation of the Establishment Clause that would permit accommodation of religion in government, which would be prohibited only if government directly and overtly coerced dissenters. Under this theory, government is now permitted to support “pervasively sectarian” religious institutions as confirmed in 2004 by the Supreme Court’s ruling in Locke v. Davey.174 Therefore, the “accommodation” or “noncoercive theory” as well as the nonpreference theory permit state and federal governments to support churches and religious institutions with the only caveat being that governments cannot overtly favor one religion or establish a state religion.
PUBLIC MONEY FOR RELIGION: THE NEW JURISPRUDENCE . . . there is no doubt that the State could, consistent with the Federal Constitution, permit [a public voucher program for students] to pursue a degree in devotional theology. . . . [a State can provide public funds for] students to attend pervasively religious schools so long as they are accredited. —Chief Justice Rehnquist, Locke v. Davey
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Vouchers
The subject of vouchers has become a highly controversial issue in politics and religion in America. Vouchers are considered the preferred
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Vouchers
alternative funding mechanism for conveying public tax money to religious schools. A voucher is a coupon worth a predetermined amount of money that is presented at a private or parochial school by the parent, whereupon the school and parent endorse the voucher and the school redeems the money from the state or local school district. In keeping with the Supreme Court’s decision in Zelman v. Simmons-Harris, vouchers that provide public funds for Catholic or other clerical schools do not violate the Establishment Clause of the First Amendment. Vouchers or similar devices are not new; they have been used as a conduit to move public funds to the private sector, not only for education, but for various health, welfare, and other functions of government as well. Yet, vouchers are most closely understood in the public’s mind as devices to funnel money from general taxation to church schools. The voucher’s connection with the struggle between religious schools and public schools goes back at least to the French Revolution, where in 1793, the Catholic Church thwarted the French government’s efforts to create a system of public schools, and in its place, initiated a system whereby parents were given vouchers for cash to employ teachers and form schools that best suited them. The voucher committed the state to pay the tuition (rétribution scolaire) of each student at a standard rate.175 Although this early system soon collapsed, it was not dissimilar from the voucher systems now in use in a few states and the federal government in the United States. In the modern era, the use of tuition vouchers for private schools did not arise in any significant degree until the public schools were racially desegregated and tuition vouchers were used in the south to circumvent the Equal Protection Clause of the Fourteenth Amendment. Most notably, in an attempt to nullify the effects of Brown v. Board of Education,176 the Virginia legislature enacted a tuition voucher law in 1956, and an amended one in 1959, that permitted the closing of public schools and the opening of private, segregated academies.177 Per the Virginia legislation, a private group formed a charter school for white children only, and the Board of Supervisors of Prince Edward County awarded the parents tuition vouchers and tax credits. In the case of County School Board of Prince Edward County v. Griffin,178
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the Virginia Supreme Court upheld the validity of the law. On appeal of the question to the U.S. Supreme Court, the public school closing and the tuition voucher and tax credit scheme was held to be in violation of the Equal Protection Clause of the Fourteenth Amendment.179 Thus, the tuition voucher as a means for conveying public funding to private schools in circumvention of constitutional protections established a lamentable legal precedent in race relations. The record of tuition vouchers as a device to skirt constitutional restraints has provided incentive for many church-related elementary and secondary schools to pursue the same. Vouchers have become a more volatile political issue throughout the last three decades of the twentieth century as fundamentalist religious groups have opened new schools in the South, and as white parents have moved their children out of desegregated public schools. In the northern central cities, pressure has also increased for states to fund vouchers, as Catholic schools have faced shortages of teachers and resources.180 Moreover, the ideals of capitalism and the virtues of competition have coupled with denominational school interests to advance the libertarian virtues of consumer and parental choice. The strength of the privatization movement has permeated not only the federal government’s domestic policy, but its foreign policy as well, influencing the World Bank and the International Monetary Fund to require tuition voucher systems in developing countries.181 Domestically, economic and social forces have combined to establish a national political agenda that aggressively advances privatization of education. In response, President George W. Bush announced a voucher plan for the fiscal 2004 budget for the District of Columbia, the only school system operated directly by the federal government.182 In July 2002, a presidential commission under the Bush Administration recommended empowering parents to exercise choice for students served by the Individuals with Disabilities Education Act (IDEA). 183 Also, No Child Left Behind (NCLB), in its original form, was designed to permit students to opt out of failing schools with vouchers to attend church-related and private schools. Before NCLB was amended in the U.S. Senate, it would have followed the Florida voucher plan (see Chapter 2) that
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initially encouraged students in public schools that have failed to achieve statewide assessment benchmarks to obtain vouchers for enrollment in other public schools or private religious schools. The tuition voucher program in Milwaukee, Wisconsin, established in 1990 and expanded in 1995, involves more than 10,000 students and is designed to provide vouchers to students from low-income families to attend private or religious schools. On review of the Milwaukee voucher plan, the Wisconsin Supreme Court held that it did not offend any of the three prongs of the Lemon test under the First Amendment, nor did it violate Article I, Section 8, which prohibits money to “be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.”184 The Wisconsin court disagreed with the plaintiff’s contention that the voucher aid benefited the church school. The court concluded that the “primary effect” of such funds was not to the benefit of the religious school if the state funds were washed through a third party. The court said, “Public funds may be placed at the disposal of third parties so long as the program on its face is neutral between sectarian and nonsectarian alternatives and the transmission of funds is guided by the independent decision of third parties.”185 The legal contest over this voucher plan ended when the U.S. Supreme Court denied certiorari, 186 and the Wisconsin court’s ruling prevailed. In 1995, the Ohio legislature enacted the Cleveland voucher program, which provided funds for tuition at private and parochial schools. In upholding the Cleveland voucher program in Zelman v. Simmons-Harris,187 the U.S. Supreme Court established the long sought-after precedent that expounded a constitutional justification for voucher aid to church-related schools. Chief Justice Rehnquist, writing for the majority, relied on a neutrality or nonpreference rationale, saying that the “program permits the participation of all schools within the district, religious or nonreligious. . . . Program benefits are available to participating families on neutral terms, with no preference to religion.”188 According to the Court, the fact that “46 of the 56 private schools . . . participating in the program are religious schools does not condemn it as a violation of the Establishment Clause.”189
Zelman is the definitive word on vouchers, the Establishment Clause, and church–state relationships. Under this decision, it would be difficult to envisage any type of government aid program, vouchers or otherwise, to church schools that would be so blatantly religious that this Supreme Court would strike it as violative of the Establishment Clause of the First Amendment.
Ohio Voucher Program Does Not Violate the Establishment Clause of the First Amendment
Zelman v. Simmons-Harris Supreme Court of the United States, 2002. 536 U.S. 639, 122 S. Ct. 2460.
Chief Justice REHNQUIST delivered the opinion of the Court. The State of Ohio has established a pilot program designed to provide educational choices to families with children who reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not. . . . The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent’s choosing. . . . Second, the program provides tutorial aid for students who choose to remain enrolled in public school. . . . The tuition aid portion of the program is designed to provide educational choices to parents who reside in a covered district. Any private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school is located within the boundaries of a covered district and meets statewide educational standards. . . . Participating private schools must agree not to discriminate on the basis of race, religion, or ethnic background, or to “advocate or foster unlawful
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Vouchers
behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion.” . . . Any public school located in a school district adjacent to the covered district may also participate in the program. . . . All participating schools, whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent. . . . Tuition aid is distributed to parents according to financial need. . . . The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the State for payment. . . . Students from low income families receive 90% of the amount charged for such assistance up to $360. All other students receive 75% of that amount. . . . The number of tutorial assistance grants offered to students in a covered district must equal the number of tuition aid scholarships provided to students enrolled at participating private or adjacent public schools. . . . The program has been in operation within the Cleveland City School District since the 1996–1997 school year. In the 1999–2000 school year, 56 private schools participated in the program, 46 (or 82%) of which had a religious affiliation. None of the public schools in districts adjacent to Cleveland have elected to participate. More than 3,700 students participated in the scholarship program, most of whom (96%) enrolled in religiously affiliated schools. Sixty percent of these students were from families at or below the poverty line. In the 1998–1999 school year, approximately 1,400 Cleveland public school students received tutorial aid. . . . . . . In December 2000, a divided panel of the Court of Appeals affirmed the judgment of the District Court, finding that the program had the “primary effect” of advancing religion in violation of the Establishment Clause. . . . We granted certiorari, . . . and now reverse the Court of Appeals. The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the “purpose” or “effect” of advancing
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or inhibiting religion. Agostini v. Felton, . . . (1997) (“[W]e continue to ask whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid has the ‘effect’ of advancing or inhibiting religion” . . .). There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children. . . . Thus, the question presented is whether the Ohio program nonetheless has the forbidden “effect” of advancing or inhibiting religion. . . . Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges. In Mueller, we rejected an Establishment Clause challenge to a Minnesota program authorizing tax deductions for various educational expenses, including private school tuition costs, even though the great majority of the program’s beneficiaries (96%) were parents of children in religious schools. . . . That the program was one of true private choice, with no evidence that the State deliberately skewed incentives toward religious schools, was sufficient for the program to survive scrutiny under the Establishment Clause. In Witters, we used identical reasoning to reject an Establishment Clause challenge to a vocational scholarship program that provided tuition aid to a student studying at a religious institution to become a pastor. . . . Five Members of the Court, in separate opinions, emphasized the general rule from Mueller that the amount of government aid channeled to religious institutions by individual aid recipients was not relevant to the constitutional inquiry. . . . Our holding thus rested not on whether few or many recipients chose to expend government aid at a religious school but, rather, on whether recipients generally were empowered to direct the aid to schools or institutions of their own choosing. Finally, in Zobrest, we applied Mueller and Witters to reject an Establishment Clause challenge to a federal program that permitted sign language interpreters to assist deaf children enrolled in religious schools. . . . Its “primary
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beneficiaries,” we said, were “disabled children, not sectarian schools.” . . . We further observed that “[b]y according parents freedom to select a school of their choice, the statute ensures that a government paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents.” . . . Our focus again was on neutrality and the principle of private choice, not on the number of program beneficiaries attending religious schools. . . . Because the program ensured that parents were the ones to select a religious school as the best learning environment for their handicapped child, the circuit between government and religion was broken, and the Establishment Clause was not implicated. Mueller, Witters, and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. . . . We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. . . . It confers educational assistance directly to a broad class of individuals defined without reference to religion, i.e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater
assistance and are given priority for admission at participating schools. There are no “financial incentive[s]” that “ske[w]” the program toward religious schools. . . . Such incentives “[are] not present . . . where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” . . . Respondents suggest that even without a financial incentive for parents to choose a religious school, the program creates a “public perception that the State is endorsing religious practices and beliefs.” . . . But we have repeatedly recognized that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement. . . . Respondents and Justice SOUTER claim that even if we do not focus on the number of participating schools that are religious schools, we should attach constitutional significance to the fact that 96% of scholarship recipients have enrolled in religious schools. They claim that this alone proves parents lack genuine choice, even if no parent has ever said so. We need not consider this argument in detail, since it was flatly rejected in Mueller, where we found it irrelevant that 96% of parents taking deductions for tuition expenses paid tuition at religious schools. Indeed, we have recently found it irrelevant even to the constitutionality of a direct aid program that a vast majority of program benefits went to religious schools. . . . The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school. As we said in Mueller, “[s]uch an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated.” . . . In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public
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Independent Vitality of State Constitutions
and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause. The judgment of the Court of Appeals is reversed. It is so ordered.
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Independent Vitality of State Constitutions
State constitutions may be more protective of individual rights and freedoms than the federal Constitution. With regard to protecting religious freedoms, state constitutions may be stronger in preventing legislatures from taking tax monies from individual citizens and giving it to churches and ecclesiastical schools and colleges. State constitutions that have such higher standards of anti-establishment protections are said to have “independent vitality.” The terminology independent vitality emanates from a Harvard Law Review article by Justice William J. Brennan, Jr., in 1977, where he espoused the need to invoke state constitutional protections of individuals over and beyond the rights and interests guaranteed in the Federal Constitution.190 As described by Clint Bolick in the Texas Review of Law and Politics, Justice Brennan “pointed out that state constitutions provide an additional layer of constitutional rights, and in many cases more expansive protection for those rights.”191 Justice Brennan, known for his views of expansive protections of the U.S. Constitution, had become concerned with inelastic conceptions of federal protections and as a result encouraged state courts to exercise the “independent vitality” of their own state constitutions. Brennan was particularly concerned about the “substantial irony” of the overreader of federal courts in taking action to “upset state court decisions protecting individual rights.”192 A vivid example of which, in the church–state context, is Justice Thomas’ explicit threat in Helms to apply his “bigotry thesis” to invalidate state constitutional provisions that prohibit state legislation from funding parochial schools. The ideals of freedom of conscience are reflected in the state constitutions as well as in
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the First Amendment of the U.S. Constitution. A state law that is constitutional under the First Amendment of the U.S. Constitution may not be constitutional under the state constitution. Some of the state provisions establish strong and effective barriers preventing the mixing of affairs of state with those of religion. The history, tradition, and religious influence of both Protestant and Catholic churches in the various states, though, have led to judicial interpretations that have, in many instances, weakened the separation of church and state. As political pressure for use of tax funds for support of religious schools has intensified, primarily in states with greater numbers of parochial schools, the establishment principles of those state constitutions have been interpreted by state courts to be less restrictive. For example, even though the states of Rhode Island, New York, Pennsylvania, Ohio, and Illinois have strongly worded constitutional prohibitions against establishment of religion, lenient judicial interpretations have given the legislatures substantial latitude in aiding parochial schools. In these states, the courts have generally ruled that the state constitutional restraints are no more, and probably less, restrictive than the First Amendment of the U.S. Constitution. As an example, the various pressures for aid to parochial schools in Rhode Island, ironically the state of Roger Williams, have caused the courts to negate the meaning of the strong disestablishment language of the Rhode Island Constitution, which says, “[W]e, therefore, declare that no man shall be compelled to frequent or to support any religious worship, place, or ministry whatever” (emphasis added).193 The Supreme Court of Rhode Island, in considering the constitutionality of textbook aid to parochial schools, noted that the allegedly offending statute was less vulnerable to attack under the Rhode Island Constitution than under the First Amendment. This court held that the Rhode Island Constitution erected a lower wall of separation than did the First Amendment: Nor can we agree with appellees that the language of the constitution of this state prohibiting establishment of religion or the interference with the free exercise thereof is more restrictive than the language of the federal constitution as interpreted in Allen. . . .194
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Similarly, an apparently strong and definitive prohibition in the Illinois Constitution, forbidding state aid to church schools by stating that neither the state nor any school district or public corporation “shall ever make any appropriation or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school . . . controlled by any church or sectarian denomination whatever,”195 has been substantially weakened by state court interpretation. The Illinois Supreme Court has held that the Illinois Constitution is no more restrictive than the First Amendment.196 This view of the Illinois court appears to reflect a prevailing pattern of precedents of state courts in interpreting their own constitutions, closely adhering to the constitutional philosophy of the U.S. Supreme Court.197 The Connecticut Supreme Court followed the Everson precedent and upheld a state statute that provided public funds for transportation of parochial school students.198 The “public purpose” theory used by the U.S. Supreme Court in Everson was cited as the controlling rationale for the Connecticut Constitution. The Connecticut Court said: “It cannot be said that their transportation does not serve the purpose of education, and [e]ducation in itself serves a public purpose. . . .”199 Similarly, the Indiana Constitution has been held to be no more forceful in the separation of church and state than is the First Amendment.200 Other states, including Iowa, 201 Kansas,202 Maine,203 Michigan,204 Minnesota,205 New Jersey,206 and Wisconsin,207 have applied the U.S. Supreme Court’s First Amendment rationale to the church–state provisions of their own constitutions. The judicial precedents of many of these states explicitly follow the establishment of religion tests used by the U.S. Supreme Court. It remains to be seen whether a lessening of the strictures by the U.S. Supreme Court in interpreting the Establishment Clause of the First Amendment—as indicated by the “new Establishment jurisprudence” of Agostini v. Felton208 and by the current makeup of the membership of the Court—will in turn elicit a corresponding further lowering of the establishment standards of state constitutions. It is possible, of course, that state supreme courts will choose instead to maintain a higher standard in the protection of religious liberties. There is precedent for greater
assertiveness on the part of state courts in the protection of individual rights and freedoms.209 States with “Independent Vitality.” The history and legal precedents of some states do indicate that there may be substantial resistance to reinterpretation that would diminish present religious liberty protections in state constitutions. A recent example of a state’s independent vitality is a 2010 interpretation of the state constitution rendered by the Kentucky Supreme Court.210 In this case, the Court held that a state appropriation for the constitution of a pharmacy school at a Baptist college violated the Kentucky Constitution, in particular, the right of religious freedom provision that forbids that anyone (a taxpayer) “be compelled . . . to contribute to the erection or maintenance” of any place of “ecclesiastical polity.”211 The Court rejected the Baptist school’s argument, based on Justice Thomas’ “bigotry thesis” in Helms,212 that the Kentucky Constitution’s prohibition of public appropriations to religious schools was founded in “Blaine Amendment” type of animosity toward clerical institutions. The Kentucky court cited Justice Rehnquist’s dictum in Locke v. Davey to the effect that it is permissible for states to draw “a more stringent line than that drawn by the United States Constitution” in advancing the state’s “anti-establishment interests.” Other states, including Alaska, Colorado, Hawaii, Idaho, Iowa, Kentucky, Massachusetts, Missouri, Montana, New Hampshire, Washington, and Wyoming, have constitutional provisions that would suggest strong and definite opposition to legislative action to use public monies to aid parochial schools. For example, the Alaska Supreme Court in Matthews v. Quinton213 found “unpersuasive” the U.S. Supreme Court’s rationale in Everson that the transportation of school children to parochial schools was for the benefit of the children only. Rather, the Alaska court concluded that furnishing transportation to nonpublic school students at public expense was a direct benefit to the school, just as would be the payment of teachers’ salaries or building and equipment costs.214 Reasoning thusly, the court in Matthews held that furnishing transportation to parochial school students violated the provision in the Alaska Constitution that forbade the use of “public funds for the direct benefit of any religious or other private educational foundation.”215
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Independent Vitality of State Constitutions
The Colorado Constitution, too, appears to contain a stronger church–state provision than that of the First Amendment. Article V, § 34 of the Colorado Constitution forbids state appropriation for educational purposes to any person or corporation not under absolute control of the state or to any denominational or sectarian institution.216 Moreover, Article IX, § 7 of the Colorado Constitution provides that [n]either the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever. . . .217
Similarly, the Hawaii Constitution is quite specific in banning the use of public money for aid to parochial schools. In Spears v. Honda,218 a 1968 case, the Hawaii Supreme Court refused the permissive interpretation advanced by the U.S. Supreme Court in Everson, saying, “We find that the framers did not open the door one bit. The language of the Constitution itself is unequivocal. It explicitly states, ‘Nor shall public funds be appropriated for the support or benefit of any sectarian or private educational institution.’ ”219 In the same vein, the Idaho Supreme Court has said, “The Idaho Constitution places much greater restriction upon the power of state government to aid activities undertaken by religious sects than does the First Amendment to the Constitution of the United States.”220 The 1918 Iowa case of Knowlton v. Baumhover221 enunciates a stronger state separation requirement than does the federal First Amendment. In this case, the Iowa Supreme Court rejected the idea that a religious school could be publicly funded because it had both secular and sectarian purposes. In dismissing the reasoning that was later given currency by the U.S. Supreme Court in Allen,222 the Iowa court denied the constitutionality of an Act that provided state funds to parochial schools for aspects of the secular school program. In 1969, the attorney general of Iowa223 relied on Knowlton,224 saying that “[t]he case held that every church or other organization upholding or promoting any form of religion or
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religious faith or practice is a ‘sect’ and that the right to use public school funds for the advancement of religious or sectarian teaching is denied to each and all. The Court found that to constitute a sectarian school or sectarian instruction which may not lawfully be maintained at public expense, it is not necessary to show that the school is wholly devoted to religious or sectarian teaching.” The reasoning by the Iowa court in Knowlton appears to reject both the child benefit and the public purpose rationales used to justify aid to parochial schools. The Massachusetts Supreme Court has held that “the language of our anti-aid amendment,” Article 46, Section 2 of the Amendments to the Massachusetts Constitution rewritten in 1974, which says: No grant, appropriation or use of public money . . . shall be made or authorized by the Commonwealth . . . for the purpose of funding, maintaining or aiding any . . . primary or secondary school, . . . which is not under the exclusive control . . . of public officers or public agents . . .
prohibits the state from creating tax deductions for school expenditures for tuition, textbooks, and transportation for parents of children who attend private and parochial schools.225 The Court exerted the independent vitality of the Massachusetts Constitution from the U.S. Constitution, holding: “[The] First Amendment of the U.S. Constitution need not enter our analysis. The language of our anti-aid amendment is ‘much more specific’ than the First Amendment,226 and its restrictions are ‘more stringent.’” 227 Moreover, the Massachusetts court refused to distinguish between direct and indirect aid schemes. According to the Court, “[T]he form of payment to a private school is not dispositive on the issue of whether aid is prohibited. If the aid has been channeled to the student, rather than to the private school, the focus still is on the effect of the aid, not on the recipient.”228 The Massachusetts court has also ruled that vouchers would be unconstitutional in Massachusetts, saying that money allocated in “the form of vouchers to students attending private elementary and secondary schools . . . paid only upon the payee’s endorsement of the voucher to the school of his or her choice . . .”229 is in “practical effect . . . an indirect form of aid to nonpublic schools,” 230
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which would violate Article 46, Section 2 of the Constitution of Massachusetts. The Missouri Supreme Court has made it clear that the Missouri constitutional restraint is more restrictive than the federal First Amendment. 231 The Missouri Supreme Court has said that “[t]he constitutional policy of our state has decreed the absolute separation of church and state, not only in governmental matters, but in educational ones as well.”232 In comparing the Missouri establishment standard to the Establishment Clause of the First Amendment, the Missouri court said: [I]t becomes readily apparent that the provisions of the Missouri Constitution declaring that there shall be a separation of church and state are not only more explicit but [also] more restrictive than the Establishment Clause of the United States Constitution [emphasis added].233
Thus, the Missouri Constitution has “independent vitality” and is a definitive obstacle to legislation designed to provide public funds for parochial schools. Both Montana and Wyoming have religious liberty protections that are stronger than those of the First Amendment. The Montana Supreme Court in 1971, 234 in barring the employment of public school teachers in parochial schools, noted that the practice would probably have violated the First Amendment as interpreted by the Lemon v. Kurtzman235 tripartite test, but the Montana court made it clear that the Montana Constitution was actually more pervasive than the federal Constitution. The Montana Constitution of 1972 retained the strict separation language of the old 1889 constitution, which prohibited appropriations “for religious, charitable, industrial, educational or benevolent purposes to any private corporation not under the control of the state.”236 It is unlikely that such strong language could be watered down to the point that it would permit the use of state funds for parochial schools, whether the aid was extended through direct or indirect funding devices. In support of this supposition, Howard has noted that “Montana’s Constitution appears to establish stricter barriers to denominational schools and colleges than does the First Amendment to the United States Constitution.”237
There are several other examples of such strong constitutional restraints. A notable provision is Article 1, § 19 of the Wyoming Constitution, which simply states that “[n]o money of the state shall ever be given or appropriated to any sectarian or religious society or institution.” The conclusiveness of this provision imposes “strong bars to any state funding for private or sectarian schools.”238 The Oregon Constitution, like that of Missouri, has an anti-establishment provision that has been held to constitute a more restrictive barrier than the First Amendment in preventing the flow of public funds to church schools. Article I, § 5 of the Oregon Constitution states in part: “No money shall be drawn from the Treasury for the benefit of any religious or theological institution. . . .” The Supreme Court of Oregon has interpreted this provision as precluding the use of public funds to provide textbooks to students in parochial schools.239 In so holding, the court rejected the “child benefit” theory and found that textbooks, being essential to the educational process and not an incidental, were an asset to the religious institution. In 1991, proponents of parochial schools in Oregon placed on the ballot a proposed amendment to Article I, § 5 that would have allowed tax credits for parents sending their children to parochial schools. The plan called for tax credits of up to $2,500 per child for tuition and costs incurred for private schools or for home school education. This effort was roundly defeated by the Oregon voters in the spring of 1991. The State of Washington has perhaps one of the strongest provisions for guaranteeing religious liberty and separation of church and state. The Washington Supreme Court rejected the reasoning of the U.S. Supreme Court in Everson as to a precedent applicable to the provisions of the Washington Constitution. The “independent vitality” of that state’s constitution appears to more strictly adhere to more basic principles of religious freedom than does the First Amendment. Therefore, the anti-establishment provisions of state constitutions may be strong or weak, effectual or ineffectual, depending on their wording and the interpretations of the state supreme courts. Whether the state supreme courts, though, will follow new U.S. Supreme Court precedents such
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Independent Vitality of State Constitutions
as Agostini v. Felton in a diminution of religious liberty and an erosion of the wall of separation remains to be seen.
State Constitution’s “Compelled Support Clause” Renders Tuition Reimbursement to Sectarian Schools Unconstitutional
Chittenden Town School District v. Department of Education Supreme Court of Vermont, 1999. 169 Vt. 310, 738 A.2d 539.
DOOLEY, J. . . . Today we confront a question . . . whether the tuition reimbursement scheme transgresses the Compelled Support Clause of the Vermont Constitution, Vt. Const. Ch. I., Art. 3, which speaks not to establishment of religion but to state support of religious worship. . . . We focus on the Vermont Constitution and conclude that a school district violates Chapter I, Article 3 when it reimburses tuition for a sectarian school under § 822 in the absence of adequate safeguards against the use of such funds for religious worship. Because of the absence of such safeguards in this case, we affirm the judgment of the superior court. The case was submitted to the superior court on stipulated facts, which we summarize in relevant part. Plaintiff Chittenden Town School District has ninety-five students in grades nine through twelve. It does not maintain a high school for the education of these secondary students. Instead, it pays tuition to public high schools or approved independent schools for this purpose, as explicitly authorized by 16 V.S.A. § 822. Pursuant to §§ 822(a)(1) and 824(b), parents of the students may select an approved school to which to send their children. Until the 1996–97 school year, the Chittenden School Board authorized tuition payments only for public high schools or approved secondary schools that it found to be nonsectarian. In the 1995–96 school year, it paid tuition for seventy-five secondary school students. Of these, seventy-two attended one of the five public
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high schools operating in Rutland County, and three attended approved private secondary schools. In December of 1995, the Chittenden School Board adopted a new secondary education tuition-reimbursement policy that would allow tuition to be paid to sectarian schools. One approved independent sectarian secondary school operates in Rutland County. That school is Mount Saint Joseph Academy (MSJ), a parochial high school located in the City of Rutland. MSJ is owned and operated by the Sisters of Saint Joseph, under the authority of the Roman Catholic Diocese of Burlington. MSJ is an institution in which the secular and sectarian aspects of its educational program are intertwined. Its statement of philosophy reveals that its academic program incorporates religious and moral education through a broad range of curricular and co-curricular activities and that “[w]e believe that learning occurs in an atmosphere where faith and community are emphasized and overtly practiced. . . .” Consistent with its educational philosophy, MSJ requires instruction in theology, constituting four of twenty-three credits required for graduation. The four theology courses are entitled “Salvation History,” “Sacraments,” “Ethics” and “Commitment.” . . . Among the expected outcomes of the theology education and the religious life activities of the school are that the students will “witness a sense of Catholic identity” and will “continue to proclaim the Gospel of Jesus and work towards fulfilling the kingdom through service/ ministry/action.” The MSJ school day begins with a prayer, to which all students are required to give quiet attention. Once a month, the entire school attends a celebration of the Roman Catholic mass led by a priest. Non-Catholics must attend, but are not required to participate in the sacrament. All students must attend annual spiritual retreats, which include prayers and a mass. All students must attend a twice-annual celebration of the sacrament of reconciliation; participation in the sacrament is not required. MSJ faculty is required to adhere to Catholic doctrine in their teachings and must demonstrate and exemplify the values of the Catholic faith by
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striving to live and teach the Gospel messages of Jesus. The principal of MSJ is a Roman Catholic nun. Of the twenty-seven teachers, four are nuns or priests. Although we have been required by the issue before us to examine the sectarian aspects of education at MSJ, we emphasize that the record indicates that MSJ is a very good high school. Ninety-one percent of MSJ’s class of 1996 went on to college. In recent years, the percentage has been 83% to 93%. Of the 206 students enrolled in MSJ for the 1996–97 school year, 164 were Roman Catholics and the remainder were of different faiths. In May 1996, the Chittenden School Board specifically approved payment of tuition to MSJ. Fifteen Chittenden students were enrolled in MSJ for the 1996–97 school year. The Chittenden Town School District funds secondary education through a combination of revenues raised by the local property tax and aid to education received from the State of Vermont. For the 1996–97 school year, it intended to use $39,000 in public funds to pay tuition at MSJ. MSJ has a three-tiered tuition policy, charging $3,000 annually to non-Catholics; $2,775 to Catholics who reside in the Diocese, but not in the City of Rutland; and $2,525 to Catholics who reside in the City of Rutland. MSJ projected its per-pupil cost of education at $5,021 for 1996–97. The Diocese and local Rutland parishes would make up the bulk of the difference. When the Chittenden School Board voted to allow tuition reimbursement to MSJ, the Commissioner of Education terminated state aid to education to the district. The Chittenden Town School District then brought this action against the Commissioner and the Vermont Department of Education, asserting, among other claims, that tuition reimbursement to MSJ was constitutional and seeking an order to restore state-aid funding. Defendants counterclaimed that the Chittenden decision to make tuition payments to MSJ violated the Establishment Clause of the First Amendment to the United States Constitution and Chapter I, Article 3 of the Vermont Constitution. They also sought an injunction. . . . On June 27, 1997, the superior court issued its opinion and order concluding that “tuition payments from a school district to pervasively sectarian high schools, or the parents of the
children who attend, would have the effect of a direct subsidy to religious schools in violation of the United States and Vermont Constitutions.” . . . Before reaching the constitutional questions, we find it helpful to look at the controlling statutes. The basic scheme is quite simple. Since the Chittenden Town School District provides elementary education, it is required to provide secondary education. See 16 V.S.A. § 822(a). It has a number of options in meeting this obligation. The two main ones are to maintain a public high school or to pay tuition “to an approved public or independent high school, to be selected by the parents or guardians of the pupil, within or without the state.” Chittenden has taken the second of these options. The approval for public or independent high schools is given by the Vermont Board of Education. . . . The sending district must pay the full tuition rate of any independent school meeting public school standards. . . . Although the term “tuition” is not defined, we see nothing in the statutory scheme to suggest that it is other than the rate charged by the approved independent school for whatever educational services it delivers. Thus, the cost of purely religious education can be included in the tuition payment made to a sectarian school. We do not mean to suggest that our present inquiry implicates the ability of a . . . sectarian school to charge tuition for religious education, rather than requiring that the cost of such education be borne by voluntary donations of religious adherents. This is a policy choice of the religious school. However, for reasons discussed fully below, we deem it highly relevant that, in the absence of any kind of regulatory process, the tuition payment system adopted by the Chittenden Town School District can, and presumably will, expend public money on religious education as long as some undetermined percentage of the money funds education on secular subjects required in the state’s minimum course of study. The stipulated facts indicate that this is happening at MSJ. Apparently, the public and private sources of revenue are commingled so that each supports religious education. . . . Defendants argue that the Chittenden tuition payment policy violates both the federal and Vermont constitutions, and the superior court accepted both claims. In Swart, this Court
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Independent Vitality of State Constitutions
chose to analyze a virtually identical case under the First Amendment because the federal law was clear, and the Court was uncertain of the outcome under Chapter I, Article 3 of the Vermont Constitution. The federal law has become less clear. See, e.g., Agostini v. Felton. We are the final judicial interpreters of the Vermont Constitution, and our fundamental charter is a freestanding document. . . . Accordingly, we decide this case based solely on the Vermont Constitution and, since it is dispositive, need not consider whether the Establishment Clause of the First Amendment would also prohibit the tuition reimbursement policy at issue here. . . . Defendants argue that Chittenden’s tuition policy violates the Compelled Support Clause of Article 3. That is, the policy forces dissenting Chittenden and other Vermont taxpayers to “support [a] place of worship . . . contrary to the dictates of conscience.” Our decision must, therefore, turn on the meaning of the quoted language. . . . In performing this analysis, we turn first to the text of Article 3. The relevant language provides that “no person ought to, or of right can be compelled to . . . support any place of worship . . . contrary to the dictates of conscience.” Vt. Const. Ch. I, Art. 3. . . . The disagreements come in two places. First, plaintiffs argue that a school, however sectarian, is not a place of worship as that term is used in Article 3. Second, they assert that the intent behind the language was to prohibit state-sponsored religious institutions—that is, a state establishment of religion—and there is no state sponsorship here because the parents, not the school district, chose the religious school. At the outset, we can narrow the first disagreement about the meaning of Article 3. We do not read defendants as claiming that any payment of public money to a religious school, for whatever reason, necessarily offends Article 3 because it supports a place of worship. As narrowed, plaintiffs’ claim is that religious education is not religious worship within the meaning of Article 3. To reinforce this point, they note that the Vermont Constitution contains no specific provision on support of sectarian education, a subject we address in a later section of this opinion. Plaintiffs also draw our attention to Chapter II, § 68, the section on public education, which provides:
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All religious societies, or bodies of people that may be united or incorporated for the advancement of religion and learning, or for other pious and charitable purposes, shall be encouraged and protected in the enjoyment of the privileges, immunities, and estates, which they in justice ought to enjoy, under such regulations as the general assembly of this state shall direct.
Vt. Const. ch. II, § 68. Plaintiffs see in this language an intent to aid religious education, which can occur through financial support. Defendants necessarily take the opposite side of the issue. We do not try to resolve this disagreement on the language alone and consider it in later sections of the opinion. The second disagreement over the meaning of the text is central to the relationship between Article 3 and the First Amendment. The First Amendment prohibits any law “respecting an establishment of religion.” U.S. Const. Amend. I. Plaintiffs argue that Article 3 expresses the same policy aimed at the same governmental wrong. Thus, they assert that as long as government does not take sides among religions, it may compel support for religious activities. Here, government is not endorsing any religion because the parents have free choice of religious or secular institutions. Again, defendants disagree with this interpretation, and we do not attempt to resolve it on the language alone. We emphasize, however, that the text appears to be inconsistent with plaintiffs’ position. Rather than prohibiting compelled support of a particular or stateselected place of worship, it prohibits compelled support of “any place of worship.” Vt. Const. Ch. I, Art. 3. . . . Even if we were prepared to say that the phrase “support any place of worship” has a plain meaning for the case before us, if it were included in a modern statute, we cannot say that it has such a meaning as placed in Article 3. We must proceed to other evidence of the meaning of the Article. One of our most useful tools to determine the meaning of a constitutional provision is an understanding of its historical context, and we have often relied upon history to illuminate the meaning of our constitution. . . . The . . . relevant element of the historical record is the history of the “Virginia Bill for Religious Liberty,” as enacted in 1785 based on
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the draft of Thomas Jefferson. Because of its author and the primary advocacy for it by James Madison, the Virginia law became an important building block for the First Amendment to the United States Constitution and the interpretation of that amendment by the United States Supreme Court. We also find this law, and its history, relevant to our interpretation of Article 3. . . . The language of the Virginia law relevant to the controversy before us states that a man shall not be “compelled to . . . support any religious worship, place or ministry whatsoever.” The preamble describes the policy of the language: “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” . . . The Virginia law was passed in response to a bill “Establishing a Provision for Teachers of the Christian Religion,” which almost passed in the years before the Jefferson law was enacted. It provided for taxpayer support of “learned teachers” of “Christian knowledge” in order “to correct the morals of men, restrain their vices, and preserve the peace of society.” Each owner of property on which the tax was levied would specify the “society of Christians” to which the owner ’s tax money would be paid. If the taxpayer failed to specify the beneficiary, that money would be placed in the public treasury to be expended for the encouragement of seminaries of learning in the county. In his “Memorial and Remonstrance” on the bill, James Madison described its provisions as “a dangerous abuse of power.” Madison’s main disagreement with the bill was because man’s duty is “to render to the Creator such homage, and such only, as he believes to be acceptable to him.” He argued that it discriminated against those who professed a non-Christian religion or no religion: Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered.
Jefferson was later to describe the Virginia law as creating “a wall of separation between church and State.” Reynolds v. United States, 98 U.S. 145, 164, 25 L. Ed. 244 (1878). What is instructive here is that the language used to create the wall is essentially the same as that in Article 3 of our constitution. . . . Moreover, the Virginia law was enacted in response to a plan that bears some similarities to that before us. It applied specifically to religious teachers, and although it required tax financing of education, it gave choice in the method of its implementation. Christians could choose their beneficiary, and any taxpayer could choose to designate the money to the seminary education system of the time, rather than to a religious order. Despite the choice feature, the Virginia law responded that compelling “a man to furnish contributions of money for the propagation of opinion which he disbelieves and abhors, is sinful and tyrannical.” We believe that the Virginia experience undercuts plaintiffs’ position that the intent of Article 3 was to cover religious worship, but not religious education. The Virginia controversy was about religious education, and Madison saw no line between it and religious worship. Language virtually identical to Article 3 was adopted to prohibit compelled support of religious education. . . . Public education in Vermont may have been only an ideal when our first constitution was adopted, but it quickly became a reality when state and local government could deal with matters other than the security of the inhabitants. We see no reason why, from its first adoption, Article 3 would not be seen to cover all forms of religious worship even as part of religious education. As indicated above, the Virginia religious-support controversy arose over what was being labeled as religious education. We believe that no artificial line between religious worship and religious education emerged in Vermont. . . . In conclusion, we return to the Article 3 textual issues that divide the parties. In view of the history, as we have outlined above, and the decisions from other jurisdictions, we see no way to separate religious instruction from religious worship. The limited record we have
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Independent Vitality of State Constitutions
before us indicates that there is no line between these concepts. Nor are we persuaded that the constitutional drafters authorized public financing of religious education in Chapter II, § 68. The specification that such education be “encouraged and protected” does not extend to public financing in light of the prohibition of Article 3. . . . Thus, we conclude that the Chittenden School District tuition-payment system, with no restrictions on funding religious education, violates Chapter I, Article 3. . . . By prohibiting compelled taxpayer support of religious worship, Chapter I, Article 3 of the Vermont Constitution renders unconstitutional the Chittenden Town School District tuitionpayment policy to the extent that it authorizes tuition reimbursement to sectarian schools without appropriate restrictions. This application of state constitutional law does not implicate the Free Exercise Clause of the First Amendment. Because we conclude that the superior court correctly entered summary judgment in favor of defendants, their cross-appeal and plaintiffs’ motion to dismiss it are both moot and need not be considered. Affirmed.
CASE NOTES 1. Wisconsin has a Compelled Support Clause in its Constitution, Act I, § 18, that is similar to that in Vermont’s constitution; however, the Wisconsin Supreme Court has not viewed this provision as having “independent vitality” as to give it greater strength than the Establishment Clause of the U.S. Constitution. The Wisconsin Supreme Court has held that its own Compelled Support Clause is to be interpreted as meaning the same as the First Amendment’s Establishment Clause, and, in that sense, does not have independent vitality. Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998). 2. On the other hand, the Compelled Support Clause of the Kentucky Constitution requiring that “no part of the common school fund shall ever be used in aid of or for the use of benefit of a sectarian or denominational school,” has been held by that state’s highest court to have “independent vitality,” preventing public
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funds from flowing to parochial schools. Williams v. Board of Trustees of Stanton Common School District, 173 Ky. 708, 191 S.W. 507 (1917).
Oregon Law Providing Textbooks to Parochial Schools Cannot Be Justified on Child Benefit Theory
Dickman v. School District No. 62 C Supreme Court of Oregon, 1961. 232 Or. 238, 366 P.2d 533, cert. denied, 93 A.L.R.2d 969.
O’CONNELL, J. This is a suit in equity brought by plaintiff taxpayers against School District No. 62 C, its board and clerk, to enjoin defendants from supplying textbooks without charge for the use of pupils enrolled in St. John’s The Apostle School, a parochial school maintained and operated by the Catholic Church. Plaintiffs also seek a judicial declaration that the so-called free textbook statute (ORS 337.150), under which distribution was made to the St. John’s school and other parochial schools, does not authorize defendants to supply textbooks free of charge to church or parochial schools, or if the statute is so construed that it be declared unconstitutional. . . . For a period of several years the defendant district has furnished free textbooks for the use of the pupils of St. John’s school. In a period of three school years these books have cost the district approximately $4,000. The books were purchased by the district from money in its General Fund, a part of which was derived from taxes levied upon real property in the district, including real property owned by plaintiffs. . . . The district retains title to the books, a matter of little practical significance however, because the books are not ordinarily retrieved by the district. Textbooks furnished for the use of parochial school students do not differ from those delivered to public schools. A school is not entitled to receive free textbooks unless it complies with standards established by the Oregon statutes as
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implemented by administrative regulation. The St. John’s school met these standards. The evidence establishes, and the trial judge found, that the purpose of the Catholic church in operating in the St. John’s school and other similar schools under this supervision is to permeate the entire educational process with the precepts of the Catholic religion. . . . . . . The principal issue presented to us is whether the expenditure of public funds by the defendant school district for the purpose of furnishing textbooks free of charge to pupils of a parochial school is within these constitutional prohibitions. We have concluded that the expenditure authorized by ORS 337.150 is within the proscription of Article I, § 5 of the Oregon Constitution. . . . Nor is it necessary to consider whether Article VIII, § 2 of the Oregon Constitution has been violated. Article I, § 5 prohibiting the use of public monies “for the benefit of any religious or theological institution,” was designed to keep separate the functions of state and church and to prevent the influence of one upon the other. In this respect our constitution follows the general pattern of other state constitutions and may be regarded as expressing, in more specific terms, the policy of the First Amendment as it has been explained in the Everson case. The historical setting in which constitutional provisions such as Article I, § 5 were written and the factors which prompted their adoption have been thoroughly explained elsewhere; it is not necessary, therefore, to restate those observations here. We need only say that we regard the separation of church and state no less important today than it was at the time Article I, § 5 and its counterpart in other constitutions were adopted. The general policy is clear. Our problem is to determine whether that policy is violated by the distribution of free textbooks to parochial schools under ORS 337.150. . . . Defendants’ principal argument in support of the statute is that the expenditure of public funds for the purpose of furnishing books to pupils of parochial and public schools benefits the pupils who receive these books and not the schools themselves. . . . This so-called “child benefit theory” has been applied in other cases in which the expenditure of public funds is made for the purpose of meeting the educational needs of pupils, including those
attending parochial schools. The difficulty with this theory is, however, that unless it is qualified in some way, it can be used to justify the expenditure of public funds for every educational purpose, because all educational aids are of benefit to the pupil. . . . It is argued that the aid to school children is for a public purpose because the compulsory school law compels all children to attend school and that the state may, therefore, make expenditures to further compliance. But this begs the basic question—the state may not compel compliance through the device of furnishing aid to religious schools if that aid is in violation of the constitution. Moreover, the state does not compel pupils to attend parochial schools. . . . We recognize that whether an expenditure is an aid to a religious institution in its religious function or in some other capacity is a question of degree. But it seems clear that the line must be drawn to include within the constitutional proscription the furnishing of textbooks to pupils of parochial schools. This conclusion is compelled because such books are an integral part of the educational process. As we have already pointed out, the teaching of the precepts of Catholicism is an inseparable part of the educational process in the St. John’s school. Considering the purpose of Article I, § 5, we are unable to see any substantial distinction between the furnishing of textbooks and the furnishing of blackboards, desks, laboratory instruments, or other equipment clearly necessary to the operation of the school. In comparing these various essential tools we agree with the dissenting opinion in Everson v. Board of Education of Ewing Twp. . . . that there is no way of “satisfactorily distinguishing one item of expense from another in the long process of child education.” It is argued that the strict notions of separation in vogue at the time of the adoption of our constitutional provisions no longer exist and that these provisions should be interpreted to reflect this change in attitude. Conceding that such change has occurred, there are still important considerations warranting the resolve that the wall of separation between church and state “must be kept high and impregnable.” Everson v. Board of Education, supra. . . . These considerations convince us that the wall of separation in this state must also be kept “high and impregnable” to meet the demands of Article I, § 5. . . .
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
The trial judge was of the opinion that the expenditures in question constituted a violation of the constitutional principle of separation of church and state, but he concluded that he was bound by Everson v. Board of Education. . . . A decision of the Supreme Court of the United States holding that certain legislation is not in violation of the federal constitution is not an adjudication of the constitutionality of the legislation under a state constitution. In such a case it is not only within the power of the state courts, it is their duty to decide whether the state constitution has been violated. Our views on the policy or interpretation of a particular constitutional provision do not always coincide with those of the Supreme Court of the United States. As we have indicated, Everson v. Board of Education, supra, is distinguishable from the case at bar. Even if it were not, our conclusion would be the same. The judgment is reversed. The trial court is directed to enter a decree in accordance with the prayer in plaintiffs’ complaint.
CASE NOTE The Oklahoma Supreme Court has held that Article II, § 5 of that state’s constitution prevents use of public funds to transport parochial school students to school. Gurney v. Ferguson, 190 Okla. 254, 122 P.2d 1002 (1941); Board of Education v. Antone, 384 P.2d 911 (Okla. 1963). In Antone, the court wrote: The law leaves to every man the right to entertain such religious views as appeal to his individual conscience, and to provide for the religious instruction and training of his own children to the extent and in the manner he deems essential or desirable. When he chooses to seek for them educational facilities which combine secular and religious instruction, he is faced with the necessity of assuming the financial burden which that choice entails.
In specifically rejecting the Everson precedent as applicable to Oklahoma, the Oklahoma Supreme Court pointed out that Everson is merely an interpretation of federal law and does not negate the more restrictive provisions of the Oklahoma Constitution. The Oklahoma Supreme Court said further: As we pointed out in Gurney v. Ferguson . . . , if the cost of school buses and the operation and maintenance thereof is in aid of the public schools, then it would seem to necessarily follow that when
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pupils of parochial schools are transported by them, such service is in aid of that school. Any such aid or benefit, either directly or indirectly, is expressly prohibited by the above quoted provision of the constitution of Oklahoma. Antone, 384 P.2d 911 (Okla. 1963); the provision referred to is Article II, § 5 of the Oklahoma Constitution.
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
RELEASED TIME FOR RELIGIOUS INSTRUCTION In spite of the fact that U.S. Supreme Court decisions today permit public funding of clerical schools, even those that are “pervasively sectarian,” the Court is now and has been very strict in enforcing the secularization of public schools. In this, the Supreme Court appears to have established a bifurcated standard of separation by which one branch of cases, represented by Abington Township,240 Stone,241 Weisman,242 and Santa Fe,243 are strong on secularizing the public schools, whereas another branch of cases, represented by Mueller,244 Zobrest,245 Agostini,246 Helms,247 and Zelman,248 allow almost unlimited constitutional leeway for state and federal governments to provide public funds to sectarian schools. The effort to secularize the public schools is a long-running melodrama that has produced much antipathy toward the public schools. As a plethora of Supreme Court decisions indicate, from McCollum in 1948 through Weisman in 1992 and Santa Fe in 2000, attempts at incursions into public schools by religious groups are an unceasing phenomenon. The struggle to prevent public schools from being controlled by any church or religious sect has been the most difficult issue to face public schools since the idea of public schools was conceived in Europe in the eighteenth century and came to fruition in the United States in the nineteenth century. The material in the following pages discusses the many and continuing attempts by religious sects to conduct activities in the public schools in an effort to inculcate their own religious beliefs. The list of attempts to reduce the public schools to sectarian educational enclaves reflecting the
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majority beliefs of a locality or state is virtually endless, and many of the episodes have been memorialized in U.S. Supreme Court precedents. The discussion and cases following seek to capture the essence of the many and multifaceted innovations used by religious sects to enter the public schools and to inculcate religion. Many of the cases address the conduct of prayer and Bible reading and various issues regarding the protection of religious liberty in the public schools. More than half the states have, at some point, permitted or required prayer and Bible reading in public schools. Prior to 1962, at least 12 states and the District of Columbia required Bible reading. The typical attitude of the courts was that the Bible and general prayer were not sectarian in nature and their use did not violate constitutional religious guarantees.249 That the Bible was not sectarian was even reflected in statute; the North Dakota legislature had observed that [T]he Bible shall not be deemed a sectarian book. It shall not be excluded from any public school. It may be the option of the teacher to read in school without sectarian comment, not to exceed ten minutes daily. No pupil shall be required to read it nor be present in the schoolroom during the reading thereof contrary to the wishes of his parents or guardian or other person having him in charge.250
The practice of releasing public schoolchildren during regular school hours for religious instruction first began in the United States in Gary, Indiana, in 1914. Since then, the Supreme Court has had before it two cases involving release time. The first was the McCollum case in 1948,251 in which pupils were released to attend religious instruction in the classrooms of the public school building. Students who did not want to participate were not released but were required to leave their classrooms and go to another part of the building to pursue their secular studies. The Supreme Court held that this “release time” program violated the First Amendment of the Constitution. In 1952, the Supreme Court was once again called upon to test the constitutionality of “release time.” In this case, a New York statute permitted pupils to leave the school building and grounds to attend religious centers for religious instruction.252 Students who did not wish to participate in such services stayed in their
classrooms, and no supervision or approval of their activities was required. The Supreme Court found that this statute did not violate the doctrine of separation of church and state. The Court pointed out that although the Constitution forbids the government to finance religious groups and promote religious instruction, the First Amendment does not require governmental hostility toward religion. From this decision, it is clear that the Supreme Court does not prohibit some cooperation between schools and churches, but the nature and degree of the cooperation are important; if they exceed certain reasonable limitations, the relationship will violate the Constitution.
Released Time for Religious Instruction on Public School Premises Is Unconstitutional
Illinois ex rel. McCollum v. Board of Education of School District No. 71, Champaign County, Illinois Supreme Court of the United States, 1948. 333 U.S. 203, 68 S. Ct. 461.
Mr. Justice BLACK delivered the opinion of the Court. This case related to the power of a state to utilize its tax-supported public school system in aid of religious instruction insofar as that power may be restricted by the First and Fourteenth Amendments to the Federal Constitution. . . . Appellant’s petition for mandamus alleged that religious teachers, employed by private religious groups, were permitted to come weekly into the school buildings during the regular hours set apart for secular teaching, and then and there for a period of thirty minutes substitute their religious teaching for the secular education provided under the compulsory education law. The petitioner charged that this joint public-schoolreligious-group program violated the First and Fourteenth Amendments to the United States Constitution. The prayer of her petition was that the Board of Education be ordered to “adopt and
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
enforce rules and regulations prohibiting all instruction in and teaching of all religious education in all public schools in Champaign District Number 71 . . . and in all public school houses and buildings in said district when occupied by public schools.” . . . Although there are disputes between the parties as to various inferences that may or may not properly be drawn from the evidence concerning the religious program, the following facts are shown by the record without dispute. In 1940 interested members of the Jewish, Roman Catholic, and a few of the Protestant faiths formed a voluntary association called the Champaign Council on Religious Education. They obtained permission from the Board of Education to offer classes in religious instruction to public school pupils in grades four to nine inclusive. Classes were made up of pupils whose parents signed printed cards requesting that their children be permitted to attend; they were held weekly, thirty minutes for the lower grades, forty-five minutes for the higher. The council employed the religious teachers at no expense to the school authorities, but the instructors were subject to the approval and supervision of the superintendent of schools. The classes were taught in three separate religious groups by Protestant teachers, Catholic priests, and a Jewish rabbi, although for the past several years there have apparently been no classes instructed in the Jewish religion. Classes were conducted in the regular classrooms of the school building. Students who did not choose to take the religious instruction were not released from public school duties; they were required to leave their classrooms and go to some other place in the school building for pursuit of their secular studies. On the other hand, students who were released from secular study for the religious instructions were required to be present at the religious classes. Reports of their presence or absence were to be made to their secular teachers. The foregoing facts, without reference to others that appear in the record, show the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education. The operation of the state’s compulsory education system thus assists and is integrated with the program of religious
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instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment (made applicable to the States by the Fourteenth) as we interpreted it in Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504. . . . To hold that a state cannot consistently with the First and Fourteenth Amendments utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not, as counsel urge, manifest a governmental hostility to religion or religious teachings. A manifestation of such hostility would be at war with our national tradition as embodied in the First Amendment’s guaranty of the free exercise of religion. For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable. Here not only is the state’s tax supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through the use of the state’s compulsory public school machinery. This is not separation of Church and State. The cause is reversed and remanded to the State Supreme Court for proceedings not inconsistent with this opinion. Reversed and remanded.
CASE NOTE Released Time. Courts upholding the discretionary power of boards of education to provide released time programs: People ex rel. Lewis v. Graves, 245 N.Y. 195, 156 N.E. 663 (1927); People ex rel. Latimer v. Board of Education of City of Chicago, 394 Ill. 228, 68 N.E.2d 305 (1946); Dilger v. School District 24 CJ, 222 Or. 108, 352 P.2d 564 (1960). Some decisions indicated parents had the
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right to have children excused or released from school for religious purposes: Lewis v. Spaulding, 193 Misc. 66, 85 N.Y.S.2d 682 (1948), appeal dismissed, 299 N.Y. 564, 85 N.E.2d 791 (1949); Gordon v. Board of Education of City of Los Angeles, 78 Cal. App. 2d 464, 178 P.2d 488 (1947); Perry v. School District No. 81, 54 Wash. 2d 886, 344 P.2d 1036 (1959).
Released Time for Public School Students to Attend Religious Classes Off Public School Grounds Is Constitutional
Zorach v. Clauson Supreme Court of the United States, 1952. 343 U.S. 306, 72 S. Ct. 679.
Mr. Justice DOUGLAS delivered the opinion of the Court. New York City has a program which permits its public schools to release students during the school day so that they may leave the school buildings and school grounds and go to religious centers for religious instruction or devotional exercises. A student is released on written request of his parents. Those not released stay in the classrooms. The churches make weekly reports to the schools, sending a list of children who have been released from public school but who have not reported for religious instruction. This “released time” program involves neither religious instruction in public school classrooms nor the expenditure of public funds. All costs, including the application blanks, are paid for by the religious organizations. The case is therefore unlike McCollum v. Board of Education. . . . Appellants, who are taxpayers and residents of New York City and whose children attend its public schools, challenge the present law, contending it is in essence not different from the one involved in the McCollum case. . . . The New York Court of Appeals sustained the law against this claim of unconstitutionality. . . . It takes obtuse reasoning to inject any issue of the “free exercise” of religion into the present
case. No one is forced to go to the religious classroom and no religious exercise or instruction is brought to the classrooms of the public schools. A student need not take religious instruction. He is left to his own desires as to the manner or time of his religious devotions, if any. There is a suggestion that the system involves the use of coercion to get public school students into religious classrooms. There is no evidence in the record before us that supports that conclusion. The present record indeed tells us that the school authorities are neutral in this regard and do no more than release students whose parents so request. If in fact coercion were used, if it were established that any one or more teachers were using their office to persuade or force students to take the religious instruction, a wholly different case would be presented. Hence we put aside that claim of coercion both as respects the “free exercise” of religion and “an establishment of religion” within the meaning of the First Amendment. . . . We would have to press the concept of separation of Church and State to these extremes to condemn the present law on constitutional grounds. . . . We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here. . . . In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. Here, as we have said, the public schools do no more than accommodate their schedules to a program of outside religious instruction. We follow the McCollum case. But we cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion. Affirmed.
CASE NOTES 1. Shared Time. “Dual enrollment,” or “shared time,” is an arrangement between a public school and a private school by which the shared use of the public school facilities is provided for public school teachers or students. A pupil may be a part-time student in a public school while attending a nonpublic school part time. 2. The U.S. Court of Appeals, Tenth Circuit, has held that provisions in a released time program in which students attended churchrelated seminaries and received public school credit for classes that were “mainly denominational” in content were unconstitutional. Also unconstitutional was a procedure whereby the public school bore the burden of gathering the seminary’s attendance slips. Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981). 3. In a case where parents of a nonpublic school student filed suit to compel a public school district to enroll their child in a band
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class, the Michigan Supreme Court held that (1) nonessential elective courses offered to public school students must be offered to resident nonpublic school students on a sharedtime basis and (2) provision of nonessential elective courses to resident nonpublic school students on a shared-time basis does not violate the Establishment Clause where sharedtime instruction is conducted on public school premises. Snyder v. Charlotte Public School District, 421 Mich. 517, 365 N.W.2d 151 (1984).
VOLITIONAL EXERCISES The voluntariness of the exercise, whether it was Bible reading or prayer, was thought to be an important factor, as evidenced by this type of legislation. Proponents of religious exercise generally relied upon voluntariness, tradition, and the nonsectarian nature of the Bible as the primary defenses of the practice. In 1962, however, the U.S. Supreme Court in Engel v. Vitale253 found a New York Regents prayer unconstitutional, and a year later held both prayer and Bible reading offensive to the First Amendment even though the defendants claimed that the exercises were voluntary and the Bible was nondenominational. This result could probably have been anticipated, since the position established by the Court in McCollum in 1948 indicated that neither the nature of the religious instruction nor the voluntariness of the exercise was a valid defense. In McCollum, Justice Frankfurter stated: That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school’s domain. The law of imitation operates, and nonconformity is not an outstanding characteristic of children. The result is an obvious pressure upon children to attend. . . .254
Likewise, the nondenominational nature of a prayer was found to be no defense when the issue was raised in Engel. The Court explained that neither the fact that a prayer is denominationally neutral nor the fact that it is voluntary can serve to free it from the limitations of the Establishment Clause of the First Amendment. According to the Court: The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by
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the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not. . . .255
RELIGIOUS EXERCISES The result of Engel, Schempp, and Schempp’s companion case, Murray,256 in 1963 was that religious exercises in the public schools are clearly unconstitutional. Neither state, nor school, nor teacher can hold religious services of any type in the public schools. The Court did point out, however, that the study of the Bible as part of a secular program of education for its literary and historic values would not be unconstitutional. In 1980, the Supreme Court in Stone v. Graham257 followed the precedents of Schempp and Murray in holding unconstitutional a Kentucky statute that required the posting of the Ten Commandments in each public school classroom. In spite of an avowal by the state that the posting was premised on a secular legislative purpose, the High Court said that no legislative recitation of a supposed secular purpose could deny that the Ten Commandments are a sacred text of the Jewish and Christian faiths.258
SILENT MEDITATION During the past few years, a plethora of school prayer cases has been decided by the courts. Legislatures have passed statutes permitting voluntary prayer in public schools, 259 state constitutions have been changed,260 challenges have been made to prayers at football games261 and graduation exercises, and there have been cases in which teachers have maintained that the Free Exercise Clause of the First Amendment permits them to conduct prayers in the classroom.262 The U.S. Supreme Court in 1985 held in Wallace v. Jaffree263 that a period of silence for meditation or voluntary prayer in the public schools is unconstitutional. The Court ruled that the purpose of the legislative enactment was not secular and therefore violated the Establishment Clause. In 1984, the people of West Virginia voted to amend the state constitution, permitting public schools to designate time at the beginning of the day for student contemplation, meditation, or prayer. A federal court ruled that the “prayer amendment” failed all three aspects of the Lemon test and therefore violated the Establishment
Clause of the First Amendment. The court, in referring to the “Prayer Amendment,” said it was “a hoax conceived in political expediency . . . perpetrated upon those sincere citizens of West Virginia who voted for this amendment to the West Virginia Constitution in belief that even if it violated the United States Constitution, ‘majority rule’ would prevail.”264
STUDENT-INITIATED RELIGIOUS SPEECH Religious speech in public schools is not banned by any constitutional provision, and no federal or state court has ever prohibited religious speech unless the exercise of such speech results in the use of the school as a sectarian forum to inculcate religion. Students may speak about religion and engage in religious activities so long as religion is not advanced or sponsored by the public school.265 “What is crucial is that government practices not have the effect of communicating a message of government endorsement or disapproval of religion.”266 State employees cannot prescribe prayer, conduct Bible reading, or lead, participate in, or endorse prayer or religious exercises during curricular or extracurricular events.267 Nothing in the Constitution implies that the public schools should be “cleansed” of all religious expression268; only state-promulgated or endorsed religious expression must be excluded. The government cannot prefer disbelief over belief, or belief over disbelief. “The First Amendment requires only that the State tolerate both, while establishing neither.”269 Genuinely student-initiated religious speech or prayer is valid and must be permitted.270 Religious speech is protected speech, and, of course, the public schools cannot censor its content.271 Yet, even genuinely student-initiated prayer or religious speech may constitute state action and thereby be unconstitutional if the state participates in or supervises, encourages, suggests, or requires the speech.272 Teacher participation in religious speech brings the state into play because teachers are employees and thereby constitute arms of the state. In Mergens273 and Edwards,274 the Supreme Court observed that the Equal Access Act expressly prohibits teacher participation in religious exercises for the very good reason that it avoids the problems of the “students’ emulation of teachers as role models.”275 Thus, religion is
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
not foreclosed from schools. Students can pray, read the Bible, and conduct whatever religious rites, rituals, or ceremonies, no matter how conventional, heretical, or pagan, so long as the activity or event is not under the supervision and oversight of the school and it is held at a reasonable time, place, and manner, as pertains to all other student speech in school.276 Supervision or oversight that is merely custodial is not constitutionally objectionable; however, if school supervision or oversight crosses the line and becomes endorsement, encouragement, or participation, then the boundaries of constitutionality have been exceeded.277 The right to engage in student-initiated prayer or religious rites is not, however, without limit. Of course, as aforementioned, reasonable restrictions, in keeping with freedom of speech conditions as to time, place, and manner, can be placed on the student’s religious activities, but importantly a student cannot use the school as a pulpit to conduct missionary work or use the “machinery of the state as a vehicle for converting his audience.”278 Public schools are not required to permit religious proselytizing. As observed in Lee v. Weisman, proselytizing speech is inherently coercive.279
PRAYER AT GRADUATION AND EXTRACURRICULAR ACTIVITIES Insistence by various groups that religious exercises be included in the public schools has assumed many shapes and definitions over the years. Those advocating more religious exercises in the schools maintain that the prohibitions of the Free Exercise Clause apply only to the classroom and do not prevent religious exercises in ancillary activities, such as commencement exercises, baccalaureate services, and related school events. The U.S. Supreme Court has, however, not drawn definitive lines between curricular and extracurricular activities. The Supreme Court in Lee v. Weisman280 invalidated prayer at high school graduation ceremonies conducted by clergy. In this case, the school principal had invited a rabbi to offer prayers at high school graduation. The principal had, as a precaution, provided the rabbi with guidelines to ensure that the prayer was nonsectarian and could be defended as a “public prayer.” The Court rejected the argument that the prayer was a kind
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of “nonsectarian prayer” legitimately conveyed by the state to advance a “civic religion.” The Court said that although some common ground of moral and ethical behavior is highly desirable for any society, for the state to advance a JudeoChristian religious doctrine under the mantle of some preconceived civic religious motivation is clearly in conflict with the religion clauses. The Court explained the intent of the religion clauses of the First Amendment to mean that “religious beliefs and religious expression are too precious to be either proscribed or prescribed by the state.” The Court gave substantial weight to what it called “coercive” pressure, which, though subtle, nevertheless can create great discomfort for students who do not believe in the particular brand of religion that is being visited upon them. Less than a year after Weisman, the U.S. Supreme Court remanded a student-initiated prayer case, Jones v. Clear Creek Independent School District,281 to the Fifth Circuit. The Fifth Circuit distinguished Jones from Weisman because the prayer in Jones was student initiated and student led; therefore, the Fifth Circuit concluded that there was no violation of the Establishment Clause. The rationale was, of course, that voluntary, student-initiated prayers do not imply government endorsement of religion and are therefore not unconstitutional. This reasoning was not convincing to the Supreme Court. As a result of conflicting lower court interpretations, the U.S. Supreme Court took up the issue of student-led, student-initiated prayer at public school extracurricular events in the case of Santa Fe Independent School District v. Doe,282 and in following the rationale in Lee v. Weisman, the Court concluded that such practices were unconstitutional as violative of the Establishment Clause. The Santa Fe school district had tried various devices to circumvent the Supreme Court precedents that eliminate sectarian religious influences in the public schools. The Supreme Court held that a carefully contrived procedure whereby a student elected as the high school student council chaplain would deliver a prayer over the public address system at football games was a veiled attempt to advance the religious beliefs of a heavily conservative Baptist community that controlled the school board
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FIGURE 5.1
Church and State
Religion and Public Schools
policy. The school board policy was challenged by a Catholic and a Mormon student, both alumni, and their mothers. The Court in reinforcing the secularization of the public schools held unequivocally that the school’s defense, maintaining that the policy constituted a secular activity, and not a sectarian one, was a “sham” whose true intent was to perpetuate a previously invalidated school prayer policy. Justice Stevens, writing for the majority of the Court, held that the district’s claim that the invocation was private student speech, and not public speech, belied the fact that the message was religious in nature and was conducted under the auspices of the public school itself. Thus, Santa Fe joins a rather consistent array of precedents that enforce the secularization of the public schools. This no-nonsense position taken by the Court in secularizing the public schools is dramatized by the contrast with the Court’s position in Agostini and Helms, where the Establishment Clause is loosely interpreted to permit public funds to be channeled to sectarian schools, which in turn may use those funds to advance
particular spiritual beliefs. The Establishment Clause appears to be solid on one front but amazingly porous on the other.
State-Enforced Bible Reading and Prayer in the Public Schools Are Unconstitutional
School District of Abington Township v. Schempp and Murray v. Curlett Supreme Court of the United States, 1963. 374 U.S. 203, 83 S. Ct. 1560.
Mr. Justice CLARK delivered the opinion of the Court. Once again we are called upon to consider the scope of the provision of the First Amendment to the United States Constitution which declares that “Congress shall make no law respecting an
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
establishment of religion, or prohibiting the free exercise thereof . . . ” These companion cases present the issues in the context of state action requiring that schools begin each day with readings from the Bible. While raising the basic questions under slightly different factual situations, the cases permit of joint treatment. In light of the history of the First Amendment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws requiring them are unconstitutional under the Establishment Clause, as applied to the States through the Fourteenth Amendment. The Facts in Each Case: No. 142. The Commonwealth of Pennsylvania by law, 24 Pa. Stat. § 151516, as amended, Pub. Law 1928 (Supp. 1960) Dec. 17, 1959, requires that “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.” The Schempp family, husband and wife and two of their three children, brought suit to enjoin enforcement of the statute, contending that their rights under the Fourteenth Amendment to the Constitution of the United States are, have been, and will continue to be violated unless this statute be declared unconstitutional as violative of these provisions of the First Amendment. They sought to enjoin the appellant school district, wherein the Schempp children attend school, and its officers and the Superintendent of Public Instruction of the Commonwealth from continuing to conduct such readings and recitation of the Lord’s Prayer in the public schools of the district pursuant to the statute. . . . No. 119. In 1905 the Board of School Commissioners of Baltimore City adopted a rule pursuant to Art. 77, § 202 of the Annotated Code of Maryland. The rule provided for the holding of opening exercises in the schools of the city, consisting primarily of the “reading, without comment, of a chapter in the Holy Bible and/ or the use of the Lord’s Prayer.” The petitioners, Mrs. Madalyn Murray and her son, William J. Murray III, are both professed atheists. Following unsuccessful attempts to have the respondent school board rescind the rule, this suit was filed for mandamus to compel its rescission and cancellation. It was alleged that William was
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a student in a public school of the city and Mrs. Murray, his mother, was a taxpayer therein; that it was the practice under the rule to have a reading on each school morning from the King James version of the Bible; that at petitioners’ insistence the rule was amended to permit children to be excused from the exercise on request of the parent and that William had been excused pursuant thereto; that nevertheless the rule as amended was in violation of the petitioners’ rights “to freedom of religion under the First and Fourteenth Amendments” and in violation of “the principle of separation between church and state, contained therein.” The rules, as amended, provide as follows: Opening Exercises. Each school, either collectively or in classes, shall be opened by the reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord’s Prayer. The Douay version may be used by those pupils who prefer it. Appropriate patriotic exercises should be held as a part of the general opening exercise of the school or class. Any child shall be excused from participating in the opening exercises or from attending the opening exercises upon the written request of his parent or guardian. Applying the Establishment Clause principles to the cases at bar we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. . . . The trial court in No. 142 has found that such an opening exercise is a religious ceremony and was intended by the State to be so. We agree with the trial court’s finding as to the religious character of the exercises. Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause. . . . [I]n No. 119, and the State contends (as does the State in No. 142) that the program is an effort to extend its benefits to all public school children without regard to their religious belief. Included within its secular purposes, it says, are the promotion of moral values, the contradiction to the materialistic trends of our times, the
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perpetuation of our institutions and the teaching of literature. The case came up on . . . a petition which alleged that the uniform practice under the rule had been to read from the King James version of the Bible and that the exercise was sectarian. The short answer, therefore, is that the religious character of the exercise was admitted by the State. . . . The conclusion follows that in both cases the laws require religious exercises and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. . . . Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, “it is proper to take alarm at the first experiment on our liberties.” Memorial and Remonstrance against Religious Assessments. . . . It is insisted that unless these religious exercises are permitted a “religion of secularism” is established in the schools. We agree of course that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” Zorach v. Clauson. . . . We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively, as part of a secular program of education, may not be affected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.
Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority’s right to free exercise of religion. While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs. . . . The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. Applying that rule to the facts of these cases, we affirm the judgment in No. 142. In No. 119, the judgment is reversed and the cause remanded to the Maryland Court of Appeals for further proceedings consistent with this opinion. It is so ordered. Judgment in No. 142 affirmed; judgment in No. 119 reversed and cause remanded with directions.
CASE NOTE Before the Engel and Schempp cases, many decisions were rendered by state courts that found that morning religious activities did not violate constitutional or statutory provisions. Some of these were Hackett v. Brooksville Graded School District, 120 Ky. 608, 87 S.W. 792 (1905); Donahoe v. Richards, 38 Me. 379, 61 Am. Dec. 256 (1854); Moore v. Monroe, 64 Iowa 367, 20 N.W. 475 (1884); Billard v. Board of Education of City of Topeka, 69 Kan. 53, 76 P. 422 (1904); Knowlton v. Baumhover, 182 Iowa 691, 166 N.W. 202 (1918); and McCormick v. Burt, 95 Ill. 263 (1880). The following state courts held that religious exercises offended their constitutions: State ex rel. Weiss v. District Board, 76 Wis. 177, 44 N.W. 967 (1890); State ex rel. Freeman v. Scheve, 65 Neb. 853, 91 N.W. 846 (1902); People ex rel. Ring v. Board of
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard FIGURE 5.2
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Education of District 24, 245 Ill. 334, 92 N.E. 251 (1910); Herold v. Parish Board of School Directors, 136 La. 1034, 68 So. 116 (1915); State ex rel. Finger v. Weedman, 55 S.D. 343, 226 N.W. 348 (1929).
State Statute Requiring Posting of Copy of Ten Commandments in Walls of Each Public Classroom Is Violative of Establishment Clause
Stone v. Graham Supreme Court of the United States, 1981. 449 U.S. 39, 101 S. Ct. 192.
PER CURIAM. A Kentucky statute requires the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the State. Petitioners, claiming that this statute violates the Establishment and
Free Exercise Clauses of the First Amendment, sought an injunction against its enforcement. The state trial court upheld the statute, finding that its “avowed purpose” was “secular and not religious,” and that the statute would “neither advance nor inhibit any religion or religious group” nor involve the State excessively in religious matters. The Supreme Court of the Commonwealth of Kentucky affirmed by an equally divided court. We reverse. The statute provides in its entirety: (1) It shall be the duty of the superintendent of public instruction, provided sufficient funds are available as provided in subsection (3) of this Section, to ensure that a durable, permanent copy of the Ten Commandments shall be displayed on a wall in each public elementary and secondary school classroom in the Commonwealth. The copy shall be sixteen (16) inches wide by twenty (20) inches high. (2) In small print below the last commandment shall appear a notation concerning the purpose of the display, as follows: ‘The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.’
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(3) The copies required by this Act shall be purchased with funds made available through voluntary contributions made to the state treasurer for the purposes of this Act. 1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky.Rev.Stat. § 158.178 (1980).
This Court has announced a three-part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally the statute must not foster ‘an excessive government entanglement with religion.’
If a statute violates any of these three principles, it must be struck down under the Establishment Clause. We conclude that Kentucky’s statute requiring the posting of the Ten Commandments in public schoolrooms had no secular legislative purpose, and is therefore unconstitutional. The Commonwealth insists that the statute in question serves a secular legislative purpose, observing that the legislature required the following notation in small print at the bottom of each display of the Ten Commandments: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” The trial court found the “avowed” purpose of the statute to be secular, even as it labeled the statutory declaration “self-serving.” Under this Court’s rulings, however, such an “avowed” secular purpose is not sufficient to avoid conflict with the First Amendment. . . . The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day. See Exodus 20:1–11; Deuteronomy 5:6–15.
This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause. It does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions, for the mere posting of the copies under the auspices of the legislature provides the “official support of the State . . . Government” that the Establishment Clause prohibits. Nor is it significant that the Bible verses involved in this case are merely posted on the wall, rather than read aloud as in Schempp and Engel, for “it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment.” We conclude that § 158.178 (1980) violates the first part of the Lemon v. Kurtzman, test, and thus the Establishment Clause of the Constitution. The petition for a writ of certiorari is granted, and the judgment below is reversed. It is so ordered.
CASE NOTES 1. In 2005, the U.S. Supreme Court rendered two opinions further clarifying the constitutionality of displays of the Ten Commandments on public sites. In one of the cases, the Supreme Court, with Justice Souter writing for the majority, ruled that a McCreary County, Kentucky, display of the Decalogue violated the Establishment Clause because evidence indicated that the purpose was to advance religion. The Court noted that the facts indicated that as in Stone v. Graham, the Ten Commandments was on display alone and was not a part of a secular display of historically important documents imparting some social, moral, and secular purpose. The Court stressed the importance of integrating the Commandments with a secular theme of other documents in order to prevent the interpretation that the government’s purpose was solely to advance
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
religion. In this case, the county government had by resolution required placement of the Commandments in a gold frame alone in a high traffic area of the county courthouse. As in Stone v. Graham, the Supreme Court concluded that evidence “supported the common sense conclusion that a religious objective permeated the government’s action.” McCreary County, Kentucky v. American Civil Liberties Union, 545 U.S. 844, 125 S. Ct. 2722 (2005). 2. In a companion case to McCreary County, rendered by the Supreme Court on the same day, a Texas display of the Ten Commandments was upheld as constitutional. The facts differed from McCreary County in that in the latter instance the Ten Commandments had been on display on the 22 acres surrounding the Texas State Capitol building among 17 monuments and 21 historical markers commemorating the “people, ideals, and events that compose the Texas identity.” The monument had stood on the site for 40 years and had been donated to the state by a national social, civic, and patriotic organization. The Court observed that the fact that the Decalogue had been there for 40 years and was among other historical memorials indicated that the Decalogue was intended as a part of American history and heritage. In holding that the Texas display did not offend the Establishment Clause, Chief Justice Rehnquist observed that the Nation’s Capital is replete with friezes and statutes and references to the Ten Commandments, including the Chamber of the U.S. House of Representatives, the Courtroom of the Supreme Court, the exterior of the Supreme Court building, Library of Congress, and the Lincoln Memorial. According to the Court, these displays in Washington, D.C., recognize the role of the Decalogue in America’s heritage and, likewise, in the Texas State Capitol, and even though of religious basis, have undeniable “historical” secular meaning as well as religious significance. The difference in this Texas case and the two Kentucky cases, Stone and McCreary County, is that the purpose and intent in Kentucky was directly religious. Moreover, the Court noted that in Stone the placement of the Ten Commandments was in every classroom, the text of which, “confronted elementary school students every day.” VanOrden v. Rick Perry, Governor of Texas, 545 U.S. 677, 125 S. Ct. 2854 (2005).
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3. The Establishment Clause is not violated by a Las Cruces, New Mexico, public school district logo showing three crosses. The logo was also used by the city as a historical reminder of graves that marked the sites of Spanish colonial and Mexican period massacres in the area. The U.S. Court of Appeals, Tenth Circuit, 2008, noted the unique history of the area and concluded that an objective observer would not understand the logo to be a religious symbol. Weinbaum v. City of Las Cruces, New Mexico, 541 F.2d 1017 (10th Cir. 2008). 4. In 2009, the U.S. Supreme Court inserted a new twist into the Ten Commandments and forum analysis. The twist is that no prior decision of the Court has addressed the application of the Free Speech Clause to a government entity’s acceptance of a private entity’s donated placement of a permanent monument in a public park. Although a public park is considered to be a traditional open forum, the question arises as to whether a monument placed there is private speech or public speech. The Supreme Court in Pheasant Grove City, Utah v. Summum, held that it is actually public or government speech and as such is not subject to scrutiny under the Free Speech Clause which applies only to private speech. The Court cited Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217, 120 S. Ct. 1346 (2000) which held that “A government entity has the right to ‘speak for itself’” and Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 115 S. Ct. 2510 (1995), where the Court held that government “is entitled to say what it wishes.” Government, of course, is not unlimited in what it says, for example, violating the Establishment or Free Exercise clauses by advancing religion, but a government entity is not required to permit a private person or entity, to capture public space and implicitly represent that its private message is that of government. Pheasant Grove City, Utah v. Summum, ___ U.S. ___, 129 S. Ct. 1125 (2009). 5. In 2010, the Kentucky Ten Commandments saga continued, this time in Grayson County, where a Reverend Chester Shartzer requested that the Ten Commandments be placed on the Grayson County Courthouse wall as a part of a “Foundations of American Law and Government Display.” The display includes the Mayflower Compact, the Declaration of Independence,
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Magna Carta, etc. The Reverend Shartzer in deposition said his reason for requesting the display and supporting his motion before the Grayson County Fiscal Court was, thus: I simply said, ‘I was on my way up here, and I seen a stop sign. . . . If I had went straight, I’d have went over a bank. . . . Some people will not be more interested in the Declaration of Independence than a fly. Neither are they the Ten Commandments, but they’re signs, . . . they’re about turning right. . . . I’d like my kid to hear somebody say, ‘you oughtn’t to kill somebody,’ . . . I said, ‘That sign was put up for me. It’s a road sign. I’m just wanting to put a road sign in the courthouse . . . for young people to see where the heritage of America is’ —‘how it’s embedded in my heart, and I want it in other hearts.
The Fiscal Court voted to permit the display and the Reverend installed it. The U.S. Court of Appeals, Sixth Circuit, upheld the display, observing that the county did not adopt the donor’s purpose, nor did the display indicate a religious purpose of the county. The court cited Croft v. Governor of Texas, 562 F.3d 735 (5th Cir. 2009) that had held that references to avowedly religious acts such as “prayer” do not, by themselves, indicate a religious purpose. The Sixth Circuit, thus, concluded that the Ten Commandments included with other documents do not provide evidence of a predominately religious purpose. American Civil Liberties Union of Kentucky v. Grayson County, Kentucky, 591 F.3d 837 (6th Cir. 2010). See also: distinguished in ACLU v. McCreary Co., Kentucky, 607 F.3d 439 (6th Cir. 2010).
State Statute Authorizing a Period for Meditation or Voluntary Prayer Violates the Establishment Clause
Wallace v. Jaffree Supreme Court of the United States, 1985. 472 U.S. 38, 105 S. Ct. 2479.
Justice STEVENS delivered the opinion of the Court. At an early stage of this litigation, the constitutionality of three Alabama statutes was questioned:
(1) § 16-1-20, enacted in 1978, which authorized a one-minute period of silence in all public schools “for meditation”; (2) § 16-1-20.1, enacted in 1981, which authorized a period of silence “for meditation or voluntary prayer”; and (3) § 16-1-20.2, enacted in 1982, which authorized teachers to lead “willing students” in a prescribed prayer to “Almighty God . . . the Creator and Supreme Judge of the world.” . . . [T]he narrow question for decision is whether § 16-1-20.1, which authorizes a period of silence for “meditation or voluntary prayer,” is a law respecting the establishment of religion within the meaning of the First Amendment. . . . On August 2, 1982, the District Court held an evidentiary hearing on appellees’ motion for a preliminary injunction. At that hearing, State Senator Donald G. Holmes testified that he was the “prime sponsor” of the bill that was enacted in 1981 as § 16-1-20.1. He explained that the bill was an “effort to return voluntary prayer to our public schools . . . it is a beginning and a step in the right direction.” Apart from the purpose to return voluntary prayer to public schools, Senator Holmes unequivocally testified that he had “no other purpose in mind.” . . . In its lengthy conclusions of law, the District Court reviewed a number of opinions of this Court interpreting the Establishment Clause of the First Amendment, and then embarked on a fresh examination of the question whether the First Amendment imposes any barrier to the establishment of an official religion by the State of Alabama. After reviewing at length what it perceived to be newly discovered historical evidence, the District Court concluded that “the establishment clause of the first amendment to the United States Constitution does not prohibit the state from establishing a religion.” In a separate opinion, the District Court dismissed appellees’ challenge to the three Alabama statutes because of a failure to state any claim for which relief could be granted. The court’s dismissal of this challenge was also based on its conclusion that the Establishment Clause did not bar the States from establishing a religion. The Court of Appeals consolidated the two cases; not surprisingly, it reversed. . . . Our unanimous affirmance of the Court of Appeals’ judgment concerning § 16-1-20.2 makes it unnecessary to comment at length on the District
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
Court’s remarkable conclusion that the Federal Constitution imposes no obstacle to Alabama’s establishment of a state religion. Before analyzing the precise issue that is presented to us, it is nevertheless appropriate to recall how firmly embedded in our constitutional jurisprudence is the proposition that the several States have no greater power to restrain the individual freedoms protected by the First Amendment than does the Congress of the United States. . . . Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Mohammedism or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects—or even intolerance among “religions”—to encompass intolerance of the disbeliever and the uncertain. As Justice Jackson eloquently stated in Board of Education v. Barnette: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
The state of Alabama, no less than the Congress of the United States, must respect that basic truth. When the Court has been called upon to construe the breadth of the Establishment Clause, it
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has examined the criteria developed over a period of many years. Thus, in Lemon v. Kurtzman, . . . we wrote: Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, . . . finally, the statute must not foster ‘an excessive government entanglement with religion.’ . . .
It is the first of these three criteria that is most plainly implicated by this case. As the District Court correctly recognized, no consideration of the second or third criteria is necessary if a statute does not have a clearly secular purpose. For even though a statute that is motivated in part by a religious purpose may satisfy the first criterion, . . . the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion. In applying the purpose test, it is appropriate to ask “whether government’s actual purpose is to endorse or disapprove of religion.” In this case, the answer to that question is dispositive. For the record not only provides us with an unambiguous affirmative answer, but it also reveals that the enactment of § 16-1-20.1 was not motivated by any clearly secular purpose—indeed, the statute had no secular purpose. The sponsor of the bill that became § 16-1-20.1, Senator Donald Holmes, inserted into the legislative record—apparently without dissent—a statement indicating that the legislation was an “effort to return voluntary prayer” to the public schools. Later Senator Holmes confirmed this purpose before the District Court. In response to the question whether he had any purpose for the legislation other than returning voluntary prayer to public schools, he stated, “No, I did not have no other purpose in mind.” The State did not present evidence of any secular purpose. . . . The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every student’s right to engage in voluntary prayer during an appropriate moment of silence during the school day. The 1978 statute already protected that right, containing nothing that prevented any student from engaging in voluntary prayer during a silent minute
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of meditation. Appellants have not identified any secular purpose that was not fully served by § 16-1-20 before the enactment of § 16-1-20.1. Thus, only two conclusions are consistent with the text of § 16-1-20.1: (1) the statute was enacted to convey a message of State endorsement and promotion of prayer; or (2) the statute was enacted for no purpose. No one suggests that the statute was nothing but a meaningless or irrational act. . . . The Legislature enacted § 16-1-20.1 despite the existence of § 16-1-20 for the sole purpose of expressing the State’s endorsement of prayer activities for one minute at the beginning of each school day. The addition of “or voluntary prayer” indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the Government must pursue a course of complete neutrality toward religion. The importance of that principle does not permit us to treat this as an inconsequential case involving nothing more than a few words of symbolic speech on behalf of the political majority. For whenever the State itself speaks on a religious subject, one of the questions that we must ask is “whether the Government intends to convey a message of endorsement or disapproval of religion.” The well-supported concurrent findings of the District Court and the Court of Appeals—that § 16-1-20.1 was intended to convey a message of State-approval of prayer activities in the public schools—make it unnecessary, and indeed inappropriate, to evaluate the practical significance of the addition of the words “or voluntary prayer” to the statute. Keeping in mind, as we must, “both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded,” we conclude that § 16-1-20.1 violates the First Amendment. The judgment of the Court of Appeals is affirmed. It is so ordered.
CASE NOTES 1. In 2009, the Illinois legislature tried its hand at circumventing the Establishment Clause by mandating that school districts institute the practice of observing a period of silence each day. The law provided that the period
of silence could be for prayer or reflection. A U.S. District Court in Illinois held the act unconstitutional as violating the “secular purpose” test of Lemon. The court observed that the act would probably have been permissible if it had been prescribed for only a period of reflection, without the reference to a prayer option. The court concluded that there was no clear secular purpose and the stated purpose was a “sham.” Sherman v. Township High School District 214, 594 F. Supp. 2d 981 (N.D. Ill. 2009). In drawing its conclusions, the federal court in Illinois followed the rationale of the U.S. Court of Appeals, Eleventh Circuit, that upheld a Georgia statute that authorized or permitted teachers in public schools to “conduct a brief period of quiet reflection,” for not more than sixty seconds, for the purpose of silent reflection on the anticipated activities of the day. Since there was no explicit or implied purpose for state-encouraged prayer, the statute passed constitutional muster. Bown v. Gwinnett County School District, 112 F.3d 1464 (11th Cir. 1997).
2. In an attempt to circumvent Wallace v. Jaffree, the Virginia legislature enacted a “minute of silence.” The statute required the local school board to have a daily observance of one minute of silence in each classroom. The Fourth Circuit distinguished this from Jaffree, holding that the purpose was secular. In applying the Lemon test, the court stated: “We conclude that the statute has at least two purposes, one of which is clearly secular and one of which may be secular even though it addresses religion. Where it permits students to pray it is only accommodating religion, which “is itself secular.” Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2000). 3. The Louisiana legislature in 1976 passed legislation to permit “. . . school authorities to allow students and teachers to observe a ‘brief time in silent meditation’ at the beginning of each school day.” In 1992, the Act was amended to allow a “brief time in silent prayer or meditation.” Then in 1999, it was amended again, deleting the word silent. The U.S. Fifth Circuit Court of Appeals ruled “this case is virtually identical to Wallace v. Jaffree.” The amendment sponsor stated that the amendment was to allow verbal prayers in schools. The court stated: “The plain language and nature of the
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
1999 amendment as well as the legislators’ contemporaneous statements demonstrate that the sole purpose of the amendment was to return verbal prayer to the public schools. This purpose runs afoul of the Establishment Clause and the Louisiana statute at issue here is therefore unconstitutional.” Doe v. School Board of Ouachita Parish, 274 F.3d 289 (5th Cir. 2001).
Nonsectarian Prayer at School Graduation Is Unconstitutional
Lee v. Weisman Supreme Court of the United States, 1992. 505 U.S. 577, 112 S. Ct. 2649.
Justice KENNEDY delivered the opinion of the Court. School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provisions the Fourteenth Amendment makes applicable with full force to the States and their school districts. . . . Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June 1989. She was about 14 years old. . . . Acting for himself and his daughter, Deborah’s father, Daniel Weisman, objected to any prayers at Deborah’s middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah’s class. . . . It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled “Guidelines for Civic Occasions,” prepared by the National Conference of Christians and Jews. The Guidelines recommend that
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public prayers at nonsectarian civic ceremonies be composed with “inclusiveness and sensitivity,” though they acknowledge that “[p]rayer of any kind may be inappropriate on some civic occasions.” The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian. . . . The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which “establishes a [state] religion or religious faith, or tends to do so.” . . . The State’s involvement in the school prayers challenged today violates these central principles. That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, . . . and that choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent. . . . The potential for divisiveness is of particular relevance here though, because it centers around an overt religious exercise in a secondary school environment where, as we discuss below, subtle coercive pressures exist and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation. The State’s role did not end with the decision to include a prayer and with the choice of clergyman. Principal Lee provided Rabbi Gutterman with a copy of the “Guidelines for Civic Occasions,” and advised him that his prayers should be nonsectarian. Through these means the principal directed and controlled the content of the prayer. . . . It is a cornerstone principle of our Establishment Clause jurisprudence that “it is no part of the business of government to compose official prayers for any group of the American
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people to recite as a part of a religious program carried on by government,” . . . and that is what the school officials attempted to do. . . . The First Amendment’s Religious Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. . . . These concerns have particular application in the case of school officials, whose effort to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject. Though the efforts of the school officials in this case to find common ground appear to have been a good-faith attempt to recognize the common aspects of religions and not the divisive ones, our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students. . . . And these same precedents caution us to measure the idea of a civic religion against the central meaning of the Religious Clauses of the First Amendment, which is that all creeds must be tolerated and none favored. The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted. The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position. We turn our attention now to consider the position of the students, both those who desired the prayer and she who did not. . . . As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. . . . We recognize, among other things, that prayer exercises in public school carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. . . . What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the
nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. . . . It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it. . . . The injury caused by the government’s action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and the intrusion of the religious exercise cannot be refuted by arguing that these prayers, and similar ones to be said in the future, are of a de minimis character. . . . There was a stipulation in the District Court that attendance at graduation and promotional ceremonies is voluntary. Petitioners and the United States, as amicus, made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term “voluntary,” for absence would require forfeiture of those intangible benefits which have
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts. The importance of the event is the point the school district and the United States rely upon to argue that a formal prayer ought to be permitted, but it becomes one of the principal reasons why their argument must fail. Their contention, one of considerable force were it not for the constitutional constraints applied to state action, is that the prayers are an essential part of these ceremonies because for many persons an occasion of this significance lacks meaning if there is no recognition, however brief, that human achievements cannot be understood apart from their spiritual essence. We think the Government’s position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of Deborah’s classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformation compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands. . . . We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure social isolation or even anger may be the price of conscience or nonconformity. But, by any reading of our cases, the conformity required of the student in this case was too high an exaction to withstand the test of the Establishment Clause. The prayer exercises in this case are especially improper because the State has in every practical sense compelled attendance and
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participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid. . . . For reasons we have stated, the judgment of the Court of Appeals is Affirmed.
School District’s Policy Permitting Student-Led, Student-Initiated Prayer at Football Games Violates the Establishment Clause
Santa Fe Independent School District v. Doe Supreme Court of the United States, 2000. 530 U.S. 290, 120 S. Ct. 2266.
Justice STEVENS delivered the opinion of the Court. Prior to 1995, the Santa Fe High School student who occupied the school’s elective office of student council chaplain delivered a prayer over the public address system before each varsity football game for the entire season. This practice, along with others, was challenged in District Court as a violation of the Establishment Clause of the First Amendment. While these proceedings were pending in the District Court, the school district adopted a different policy that permits, but does not require, prayer initiated and led by a student at all home games. The District Court entered an order modifying that policy to permit only nonsectarian, non-proselytizing prayer. The Court of Appeals held that, even as modified by the District Court, the football prayer policy was invalid. We granted the school district’s petition for certiorari to review that holding. . . . Respondents are two sets of current or former students and their respective mothers. One family is Mormon and the other is Catholic. The District Court permitted respondents (Does) to litigate anonymously to protect them from intimidation or harassment. . . . [In August the school passed a policy] which was titled “Prayer at Football Games,” . . . It authorized two student elections, the first to
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determine whether “invocations” should be delivered, and the second to select the spokesperson to deliver them. [The policy] contained two parts, an initial statement that omitted any requirement that the content of the invocation be “nonsectarian and nonproselytizing,” and a fallback provision that automatically added that limitation if the preferred policy should be enjoined [by the court]. On August 31, 1995, according to the parties’ stipulation, “the district’s high school students voted to determine whether a student would deliver prayer at varsity football games. . . . The students chose to allow a student to say a prayer at football games.” . . . A week later, in a separate election, they selected a student “to deliver the prayer at varsity football games.” . . . The final policy (October policy) is essentially the same as the August policy, though it omits the word “prayer” from its title, and refers to “messages” and “statements” as well as “invocations.” It is the validity of that policy that is before us. . . . We granted the District’s petition for certiorari, limited to the following question: “Whether petitioner’s policy permitting student-led, studentinitiated prayer at football games violates the Establishment Clause.” . . . We conclude, as did the Court of Appeals, that it does. . . . The first Clause in the First Amendment to the Federal Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Fourteenth Amendment imposes those substantive limitations on the legislative power of the States and their political subdivisions. . . . In Lee v. Weisman, . . . we held that a prayer delivered by a rabbi at a middle school graduation ceremony violated that Clause. Although this case involves student prayer at a different type of school function, our analysis is properly guided by the principles that we endorsed in Lee. . . . These invocations are authorized by a government policy and take place on government property at government-sponsored schoolrelated events. Of course, not every message delivered under such circumstances is the government’s own. We have held, for example, that an individual’s contribution to a governmentcreated forum was not government speech. . . . Although the District relies heavily on Rosenberger
and similar causes involving such forums, it is clear that the pregame ceremony is not the type of forum discussed in those cases. The Santa Fe school officials simply do not “evince either ‘by policy or by practice,’ any intent to open the [pregame ceremony] to ‘indiscriminate use,’ . . . by the student body generally.” . . . Rather, the school allows only one student, the same student for the entire season, to give the invocation. The statement or invocation, moreover, is subject to particular regulations that confine the content and topic of the student’s message. . . . Granting only one student access to the stage at a time does not, of course, necessarily preclude a finding that a school has created a limited public forum. Here, however, Santa Fe’s student election system ensures that only those messages deemed “appropriate” under the District’s policy may be delivered. That is, the majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. . . . In Lee, the school district made the related argument that its policy of endorsing only “civic or nonsectarian” prayer was acceptable because it minimized the intrusion on the audience as a whole. We rejected that claim by explaining that such a majoritarian policy “does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront.” . . . Similarly, while Santa Fe’s majoritarian election might ensure that most of the students are represented, it does nothing to protect the minority; indeed, it likely serves to intensify their offense. Moreover, the District has failed to divorce itself from the religious content in the invocations. It has not succeeded in doing so, either by claiming that its policy is “one of neutrality rather than endorsement” or by characterizing the individual student as the “circuit-breaker” in the process. Contrary to the District’s repeated assertions that it has adopted a “hands-off” approach to the pregame invocation, the realities of the situation plainly reveal that its policy involves both perceived and actual endorsement of religion. In this case, as we found in Lee, the “degree of school involvement” makes it clear that the pre-game prayers bear “the imprint of
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Supreme Court’s Secularization of Public Schools: A Bifurcated Standard
the State and thus put school-age children who objected in an untenable position.” . . . The District has attempted to disentangle itself from the religious messages by developing the two-step student election process. The text of the October policy, however, exposes the extent of the school’s entanglement. The elections take place at all only because the school “board has chosen to permit students to deliver a brief invocation and/or message.” . . . The elections thus “shall” be conducted “by the high school student council” and “[u]pon advice and direction of the high school principal.” . . . The decision whether to deliver a message is first made by majority vote of the entire student body, followed by a choice of the speaker in a separate, similar majority election. Even though the particular words used by the speaker are not determined by those votes, the policy mandates that the “statement or invocation” be “consistent with the goals and purposes of this policy,” which are “to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.” . . . In addition to involving the school in the selection of the speaker, the policy, by its terms, invites and encourages religious messages. The policy itself states that the purpose of the message is “to solemnize the event.” A religious message is the most obvious method of solemnizing an event. . . .Thus, the expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy. The results of the elections described in the parties’ stipulation make it clear that the students understood that the central question before them was whether prayer should be a part of the pregame ceremony. We recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of various occasions so as to mark those occasions’ significance. But such religious activity in public schools, as elsewhere, must comport with the First Amendment. The actual or perceived endorsement of the message, moreover, is established by factors beyond just the text of the policy. Once the student speaker is selected and the message composed, the invocation is then delivered to a large audience assembled as part of a regularly scheduled,
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school-sponsored function conducted on school property. . . . In this context the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration. . . . Regardless of the listener ’s support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval. . . . Most striking to us is the evolution of the current policy from the long-sanctioned office of “Student Chaplain” to the candidly titled “Prayer at Football Games” regulation. This history indicates that the District intended to preserve the practice of prayer before football games. The conclusion that the District viewed the October policy simply as a continuation of the previous policies is dramatically illustrated by the fact that the school did not conduct a new election, pursuant to the current policy, to replace the results of the previous election, which occurred under the former policy. Given these observations, and in light of the school’s history of regular delivery of a student-led prayer at athletic events, it is reasonable to infer that the specific purpose of the policy was to preserve a popular “state-sponsored religious practice.” . . . The District next argues that its football policy is distinguishable from the graduation prayer in Lee because it does not coerce students to participate in religious observances. . . . One of the purposes served by the Establishment Clause is to remove debate over this kind of issue from governmental supervision or control. We explained in Lee that the “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere.” . . . The two student elections authorized by the policy, coupled with the debates that presumably must precede each, impermissibly invade that private sphere. . . . the District’s decision to hold the constitutionally problematic election is clearly “a choice attributable to the State.” . . . The District further argues that attendance at the commencement ceremonies at issue in Lee ”differs dramatically” from attendance at high school football games, which it contends “are of
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Chapter 5
Church and State
no more than passing interest to many students” and are “decidedly extracurricular,” thus dissipating any coercion. . . . Attendance at a high school football game, unlike showing up for class, is certainly not required in order to receive a diploma. . . . There are some students, however, such as cheerleaders, members of the band, and, of course, the team members themselves, for whom seasonal commitments mandate their attendance, sometimes for class credit. The District also minimizes the importance to many students of attending and participating in extracurricular activities as part of a complete educational experience. As we noted in Lee, “[l]aw reaches past formalism.” . . . To assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football is “formalistic in the extreme.” . . . The constitution, moreover, demands that the school may not force this difficult choice upon these students for “[I]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to
