a.
Who should make decisions regarding education and schools?
a. Pierce v. Society of Sisters
i. Quintessential case of educational decision making
ii. Court held that the state can regulate schools, inspect, supervise and examine the schools, the teachers
and pupils, can require that children of certain age attend some school, that teachers be of good moral
character and patriotic disposition, studies “essential to good citizenship” be taught and that nothing
against the public welfare be taught
1. States hold that the necessity of schooling for all children is b/c of the need for
a. Consistency
b. Integrate the population so that all may live and work together
c. Assure that every child receives an adequate education
d. Indoctrination of moral and patriotic values
iii. Court also held that the state is not the only one who had decision-making power over children. “Child
is not a mere creature of the state, those who nurture him and direct his destiny have the right, coupled
with the high duty, to recognize and prepare him for additional obligations”
1. Parents have a say and part to play in raising of the children
iv. Pierce Compromise - State can require children attend school, but cannot require which school to
attend
1. Courts use the 14th Amendment to reach decision
a. Private schools are deprived their property interest w/o due process
b. Parents are deprived their liberty interests w/o due process
b. Farrington v. Tokushige
i. Court struck down excessive regulations of foreign language schools
ii. Schools were in addition to “regular” schools, so the needs of the states were being met
1. The brief suggests a xenophobic intent on the part of the state
2. Was really an extracurricular activity
a. Regulation of extracurricular activities is not a matter for the state b/c while state can
have its say in education, it cannot monopolize it
c. Meyer v. Nebraska
i. Similar as Farrington
ii. NE had penalties for teachers who taught any language except English to students under the high
school level
iii. Court held that this regulation interfered with the instructor’s right to teach (his profession) and the
parent’s right to encourage such learning in their students. While the court recognized the state’s
desire to foster the American spirit and develop a “homogenous people with American ideals” this
regulation “did violence to both the letter and spirit of the Constitution”
d. Religion v. Education
i. Wisconsin v. Yoder (1972)
1. Amish family challenged the compulsory schooling law b/c they believed that education after
high school was against their religion (b/c of the exposure to the outside world) and that an
Amish child was better prepared for their future life if they were schooled at home after 8th
grade.
2. Challenged compulsory education law on 1st (Free Exercise Clause) and 14th Amendment
claims
3. State claimed that they had a responsibility to create a self sufficient individual who could
participate in society
4. Court developed a balancing test to resolve such issues.
a. The State’s issues balanced against the fundamental rights and interests and tradition
interests of parents with respect to the religious upbringing of their children, so long
as they “prepare them for additional obligations”
b. Court held here that while the regulation did not facially prevent the Amish from
practicing their religion, it interfered in their development of their religion – as
judged by the Amish culture and make up of their religious beliefs.
c. Child’s interests not discussed in the balancing test
i. Majority says it is only the parents who are being arrested in violation of the
regulation so the child has no rights to argue here
ii. What if child does not wish to continue in Amish lifestyle, but has not been
prepared for such life b/c of lack of schooling? (Concurrence)
e.
f.
5. Distinguished from Prince v. Mass. b/c in Prince the mother had child sell religious materials
on the street, in violation of child labor laws and claimed religious reasons. Court in Yoder
pointed to the harmful possibilities in Prince that are absent in Yoder.
6. The Court voiced second thoughts for Yoder in Employment Div. Of Oregon v. Smith
a. Scalia stated that the Court had never held that a person’s religious beliefs exclude
him from compliance w/ an otherwise valid law prohibiting conduct that the state is
free to regulate.
b. Distinguished Yoder, calling it a hybrid case of religious freedom and parental rights
ii. Fellowship Baptist Church v. Benton
1. Private religious schools wanted to be excluded from state education regulation laws
proscribing that records, teacher certification and other reporting requirements were allowed.
2. Court held that the state could require such regulation
3. Distinguishes Yoder, saying there is a fine line between the Establishment and Free Exercise
Clause and that Yoder is a narrow exclusion, not met here.
iii. Ohio v. Whisner
1. State imposed intrusive regulations on religious run schools, such as student testing
2. Court held that these regulations were too intrusive
iv. Court has held in other cases that Yoder exceptions cannot be used for exclusion from health and
safety regulations or where there is a “threat of harm”
Home schooling
i. Pros of home schooling
1. Socialization outside a patriarchal culture
a. Possibility for forced socialization for home schooled children outside of the home
i. Opt in opportunities at local schools
b. Reduces risks of children bullied, marginalized and discriminated against in an open
environment
2. Parental Choice
a. Schools may be unable to meet the needs of children, parents should have the option
to provide an alternative
ii. Cons of Home schooling
1. Socialization
a. Stevens v. Bongart holding that the most important function of school is to introduce
student to modern civilization. School more important than just teaching the facts.
Need to have a well developed program to be allowed to home school
2. Free Exchange of Ideas
3. Exposure to other adults
4. Public supervision function of schools
a. Watch for child abuse, neglect, etc
5. Administrative burdens to regulate all home schooling
6. Children with more intensive needs may not have them met in home schools
iii. In Re Charles held that if parents were to homeschool their children, they had a responsibility to show
adequate program (similar to that of private schools), must meet state standards, if regulated schools
had to say why, parents were to be given an opportunity to revise, school has to show where the
program failed.
State Regulation of Private Schools
i. Pierce held that states can impose reasonable regulations on private schools, such as curriculum
requirements
ii. Runyon v. McCrary
1. Public and private schools cannot engage in racial, gender or other forms of discrimination
2. Used contract theory (through 13th and 14th) that the entering of a private contract can be
protected from discrimination and therefore private schools cannot prevent certain people
from entering into contracts with the school for education if otherwise accepted.
3. In response to this ruling schools can however,
a. Change the admissions criteria to include testing or other requirements which may
“hide the discrimination”
b. May require students to be members of the church
c. May encourage home schooling, where parents can discriminate
iii. Brown v. Dade Christian School
1. School officials claimed it was against their religion to have a desegregated school b/c there
was a severe religious belief against interracial marriages, which would end to a loss of
salvation.
2. Court held that if it was a part of the religion it was minor and therefore outweighed by the
anti-discrimination rules.
a. Is this violation of Free Exercise if court determines what your religion holds?
iv. Ohio Civil Rights v. Dayton Christian Schools
1. School did not review the contract of a pregnant teacher b/c religious beliefs held that
mothers should remain home with children. Teacher had signed an agreement to follow the
“biblical chain of command” and so school wanted no court involvement
2. The court held that an investigation could be held w/o interfering with Free Exercise clause. If
such a religious belief is found, then the court will leave the school alone.
g. Vouchers
i. Zelman v. Ohio
1. Any school district in Ohio that did not meet minimal acceptable performance standards
qualified for voucher program. Cleveland was only district to do so. Of the schools that
children could choose from, 82% were religious schools and 96% of participating students
chose a religious school
2. Court looks to see if the law has the effect or purpose of advancing or inhibiting religion.
a. Court said it is clear that the purpose of the program was to promote education and
address the issues in Cleveland. Used a sliding scale, targeted to aide poorest.
b. Court found that there was no advancement or inhibition of religion with this
program b/c it was the parents who chose where to send the children, not the state or
the schools. It is the parents who receive the aid, not the private religious schools.
Program was “neutral” towards religion.
3. Court discussion
a. O’Connor likens it to medicare at religious hospitals
i. Hospitals don’t teach religion
b. Souter, in dissent, questions the amount of aid to the schools and sees that as the
problem
i. Who would decide what too much is?
c. Thomas, in concurrence, emphasizes race issues and glosses over constitutional
matters
ii. Pros
1. Encourages competition between schools which will cause failing school to “fix itself”
2. Allow poorer families to use vouchers for private schools
3. Give choice to parents instead of being stuck in one school
4. There is no accountability for private schools who receive vouchers (currently)
iii. Cons
1. The number of children who receive and use vouchers will not make enough of a difference
in public schools to cause “competition”
2. Public money goes to private schools
3. Poor students left behind
4. Middle class parents leave the system and take their support w/ them
5. Will cost tax payers more money b/c the public schools will not get better, so it will need to
be paid twice – for vouchers and schools
6. There will still be failing schools
7. Private schools may be forced to meet public school requirements
h. Federal Control of School Systems
i. Leave No Child Behind
1. Federal gov’t helps to fund education so feel it should have a say in such matters
2. Program with required standards for schools and students to meet or else a loss of federal
funding. Problem is states determine what is a failing school.
3. Testing requirements used to “ensure proper use of funds”
a. However this is not how such tests are meant to be used
b. Will penalize students
c. Only hurt those students who need it most
4. Students allowed to transfer to other schools if their school is considered “failing”
a.
b.
c.
d.
e.
i.
First year of program, no one was taking advantage of such options
Those who are leaving are the middle class families who are the life blood of schools
Those left behind are still being left at a failing school
Title I money leaves with students
If student leaves for private schools, there is little accountability for the education at
such schools
Duty to Educate
i. Peter W case
1. Student sued for educational malpractice
2. Held that could not do so b/c there was no ruler to measure what was quality education and
not “duty to educate”
a. So many different ways to quantify a quality education
b. So many other factors involved
i. Not is not easy to point to one reason that a child was not educated properly
c. Do new testing requirements equal a duty?
3. A Pandora’s box for litigation would be opened
4. Courts have allowed contract actions against private schools for not fulfilling contractual duty
j. Private Control of Public Schools
i. Drawbacks of private control
1. Loss of local control
2. No rigid standards for performance
3. No clear way to evaluate the outcome
a. Because private corporations want to show improvements will often target those
right below the standards set to be able to show improvement. That leaves those
students who are far below the acceptable level in that same place.
ii. NY Times reported that parents of students in Edison schools gave them higher scores than parents of
students in public schools
iii. Dawson v. East Side Union H.S.
1. School had a partnership with Channel One to provide in classroom cable news that featured
advertisements between broadcasts. Schools were given the equipment and programs for free
in exchange for the captive audience
2. Two problems in case
a. Is it right to allow students to be used as captive audience?
b. Who should decide? This case was a battle between school board and superintendent
c. Court held that if an opt out option was offered for students that the programs w/
advertisements were ok. Court said that the advertisements were incidental to the
learning.
k. Socialization of Schools
i. Key question is whether school boards, legislatures and administrators should have exclusive control
of the socialization process within schools or whether it should be left for parents, students and
teachers and what sort of rights all have in the process
1. “Battle for hearts and minds of future generation”
2. May be one key reason that parents chose private schools for their children to guarantee that
they have a certain socialization
ii. Courts have held that when challenging an action of the school it must be a state action
1. Rendall-Baker must be state action
2. Powe suggests that 90% of involvement is enough for state involvement
iii. Wallace v. Jaffree
1. Alabama statute for prayer in school or moment of silence
2. Supreme Court used the Lemon test to determine
a. Purpose of state action (must be secular)
b. Effect of state action (cannot enhance or inhibit religion)
c. Entanglement involved with the law
i. Failure under any one prong is death
3. Court found that the purpose of the state action (as seen in the legislative history) was to bring
school prayer back and was therefore killed the statute
4. Unlike in Zelman where the court highlighted the choice element here the choice to opt out of
prayer was not considered to be a choice b/c of the stigmatizing value of refusing to pray
l.
5. Question of Entanglement and Establishment Clause
a. When does stopping one religion become the Establishment of another (O’Connor’s
concurrence)
iv. Lee v. Weisman
1. Prayer at graduation
2. Court held that it was unconstitutional even if the student could opt out
a. Student would be endorsing the prayer simply by being there
b. Would be forced to choose to listen to the prayer or not attend graduation
c. Would be coercion by the state to make her listen to such
i. Court focuses in on coercion – where does this fit with Lemon test?
ii. Blackmun’s concurrence says that coercion is significant but not necessary
3. Scalia’s dissent worries that this could open the door to claims for any sort of psychological
distress of students from state actions
v. Edwards v. Aguillard
1. Creationist Act in LA forbade the teaching of evolution unless accompanied by instruction of
creation science
2. Court looked to first prong of Lemon, purpose
a. Found that legislative history said that it was secular for allowing teaching freedom.
Was a mention of religion by one senator. However, LA allowed for the teaching of
creationism before this act so that it was up to the teacher’s academic freedom what
to teach and the language of the act did not seem to have teachers in mind. Court
found that it violated the Establishment Clause
3. Scalia’s dissent concerned with the academic freedom of the students
a. Claims that the Lemon test should not be applied objectively
b. Believes that Lemon should invalidate a statute only when it was developed with an
entirely religious purpose
vi. Smith v. Bd. of School Commissioners of Mobile County
1. Challenged the use of textbooks b/c of establishing “secular humanism”
2. Court says that it is not a religion and even if it was there was not a showing of establishment
in this case
a. Without determining if secular humanism is a religion it is difficult to see how court
interprets something to be neutral or establishing a religion
vii. Mozert v. Hawkins County Board of Education
1. Born Again Christian parents were upset by the books that their students were reading in
class. At first there was an opt out program but found to be too difficult b/c of not so many
students needed it and required a dual curriculum
2. Court of Appeals found that it was not a problem for the students to read such books b/c there
was no need to accept the views, only be able to discuss them in an academic manner. Didn’t
inhibit free exercise. (If there was a violation of FEP, must be valid state interest.)
a. Court distinguished Yoder saying that Yoder’s parents had a much greater need for
their children to be excluded from education b/c of it being a way of life. Here the
materials merely made the parents unhappy.
b. Kennedy sees it as being a burden on free exercise but that it is balanced by the needs
of the states
i. Avoiding disruptions of class
ii. Preparing students for life
iii. Allowing opting out would create religious divisiveness
viii. West Virginia State Board of Education v. Barnette
1. Court held that compelled saluting of the flag was unconstitutional but did not specify
whether it was against the freedom of speech or the Free Exercise
a. Free Speech includes the right not to speak
2. Concurrence - Words under coercion hold no meaning
3. Dissent - Establishment Clause says that one cannot allow exceptions for every religion
Control of Curriculum
i. Board of Education v. Pico
1. Board removed books from the school library b/c of the belief that the content was “antiAmerican, anti-Christian, anti-Semitic and just plain filthy.”
2. Court split with no majority
3. Plurality
a. The right to receive info is part of 1st amendment and the removal of such materials
is a violation of the right, especially in the school library
i. Marketplace of ideas
b. Board has a role in the decision making but the students retain rights too (II-A)
c. Wants to examine what
4. Blackmun
a. Joins the plurality except that believes that the board should have final say in what’s
right not the students (no II-A)
5. Dissent
a. Believes that the court is usurping local control from the school boards
b. Powell says that the ideas themselves are not precluded, simply their inclusion in the
library
ii. Crosby v. Holsinger
1. School mascot was offensive to some students
2. Court held that school could curb controversial speech even if it limits student expression
a. Could perhaps be looking for a good faith reason for the school to limit the free
expression of the students.
iii. Hidden Curriculum
1. Socialization
a. Hair , dress, creating “good citizens”, etc
2. Develops, evolves, etc. Often only developed when it is violated
3. Teachers as role models (Sexuality, Pregnancy)
4. Students as role models
5. Is this forwarding certain ideas instead of fostering an open marketplace of ideas?
a. the pledge as political orthodoxy or inculcating patriotism
m. Student Speech
i. Tinker v. Des Moines Independent Community School District
1. Students wore black arm bands to school to protest the Vietnam war
2. Court held that students had free speech rights and that they could exercise them so long as
they were not disruptive in their exercise. Speech was political in nature.
a. No clear cut test as to what causes disruption; Hecklers or just student speech. How
great a disruption?
1. end of class or change in topic (American history in math class)
3. Majority states that schools are there to inculcate American values and that includes the rights
of all Americans
4. Dissent (Black) says students are there to learn, not teach
ii. Bethel School District v. Fraser
1. Student made speech during pep rally containing sexual comments
2. Court held that the speech was not allowed despite being protected for adults. Schools are
special situations and b/c the administration has special needs to run an orderly school, there
are special rules.
3. Applying the Tinker test, the speech was disruptive
a. Courts may again be looking for good faith on the part of the schools. In Tinker it
was attempting to censor silent speech that they may have found to be against their
beliefs. In Fraser the speech was much less protectable.
iii. Hazelwood School District v. Kuhlmeier
1. Students wanted to publish stories in the school newspaper about teen pregnancy and divorce
in student’s families. School wouldn’t allow the publication b/c of the questionable topics
2. Court held that b/c the paper was an official publication of the school, the administration
could control what was published b/c it would cause a school to affirmatively promote student
speech. The school could therefore control what was being published.
3. Dissent held that the students were taking a course in journalism and therefore the students
should be allowed to learn the entire civics lesson including freedom of press.
iv. Cary v. Board of Education
1. After language arts curriculum review books previously taught were removed. Teachers filed
suit claiming their first amendment rights were being impinged upon.
2. Court found – it was stipulated to – that the books were not removed to b/c they were obscene
and it was not an attempt to keep any political views from the students.
3. While teachers do retain their constitutional rights within the classroom their rights must be
balanced against the needs of the state
a. Teachers must be allowed to use their freedoms within the confines of what the board
believes is best for the students
4. Here there were almost 1300 other books available within the curriculum for teachers to be
able to teach so the teachers were not being unfairly restricted in their rights.
5. Board has ultimate decision making authority and teachers cannot try to overcome this
authority
n. Access to School Facilities
i. Board of Education Westside v. Mergens
1. High school denied a school religious group from holding meetings on the grounds or having
school club status.
2. Court held that the school could exclude if all of the other clubs were curriculum related. If
they were only tangentially related to curriculum, it is not enough to exclude and a open
forum is created
a. Here such clubs as scuba club, Welcome to Westfield, etc created a open forum and
the religious club must be allowed
3. Court held that the Equal Access Act applies to elementary and secondary schools.
a. Does not violate Establishment clause b/c Widmar held that Equal Access does not
violate the Lemon test b/c they are incidental benefits only. Equal access neither
approves or negates a religious.
4. Dissent questions allowing such clubs in a place where students are compelled to attend.
Worried about peer pressure to join groups.
a. Also questions “non-curriculum” and concerned with allowing any political or
religious group to have a club.
ii. Ambach v. Norwick
1. NY refused to employ teachers who were aliens and eligible for naturalization, but refused to
apply.
2. Court held previously in Sugarman that a state could define when citizenship was a
requirement for employment.
a. In this case it was important to inculcate the values of America into students and
therefore citizenship could be a requirement.
i. Teachers as role models
ii. The people of NY backed this by voting for the school board
o. Teacher’s Right of Expression
i. Pickering v. Board of Education
1. Court held that it was a balancing test between the interest of the teacher commentating on
matters of concern versus the interest of running the school effectively
a. Absent of false statements knowingly or recklessly made by the teacher, a teacher’s
right to speak on the issues cannot be grounds to dismiss.
p. Due Process in Schools
i. New Jersey v. T.L.O
1. Student brought into principal’s office and her person was searched. Sued for unreasonable
search and seizure
2. Court held that schools do not have to hold up to the same standards as criminal
investigations for the Fourth Amendment. No probable cause is needed to search students in
school, instead a reasonable test – instructing schools to use common sense and reason.
a. Because of the special situation that schools are in and the great burden that such
requirement would bring the school, the higher standard is not required.
i. Arguments for this view
1. Safety issue within schools
2. Parents entrust their children to these schools
ii. Against
1. Students are compelled to attend school and once there, their rights
are removed
ii. Board of Education v. Earls
iii.
iv.
v.
vi.
1. Mandatory drug testing for students involved in extracurricular activities.
2. Court held that such testing was permissible.
a. The majority found that the minor intrusion on privacy and the many safeguards in
place in the system were outweighed by the safety needs of the school.
b. Rejected the individualized suspicion standard of TLO b/c it was concerned that
certain groups of students would be targeted for testing.
3. Dissent found little safety threat and great privacy intrusions in the process – as well as
deterring students from activities proven to discourage drug use.
a. Ginsberg saw it as a symbolic ruling against drugs in school
4. It is difficult to reconcile the ground covered between TLO and Earls – from individualized
reasonable suspicion to required testing for certain groups
Board of Regents v. Roth
1. Untenured teacher was not reinstated at the end of the year. Claimed that he lacked procedural
due process
2. Court held that in due process claims, need to look for the nature of the interest at stake and
whether it is within the Due Process protection of liberty or property
a. Here there was no liberty interest b/c he was not precluded from finding another job
b. No property interest b/c he wasn’t tenured and therefore had no property to lose
3. Dissent held that every one has a property interest to a gov’t job unless it can be shown
otherwise
4. The second part of the Due Process test – not reached in this case – is if there is a protectable
interest, what process is due?
a. The real question is what is trying to be achieved – protection of procedural rights or
a certain outcome?
Goss v. Lopez
1. Suspension of students and question of procedural due process.
2. Court looks to the Due Process test
a. Here the property interests in educational benefits temporarily denied and the liberty
interest in reputation of the student is not so minor as not to need constitutional
protections, no matter how minimum the protections are.
i. The property interest arises from the compulsion of having to attend school
and therefore have a right to attend school and an education
b. Court finds that a rudimentary notice and “hearing” on the suspension is needed
i. Hearing can be a discussion between disciplinarian and the student regarding
the charges
1. needed to protect against mistake and unfair punishment
ii. Anything more would be too great a burden on the schools
3. Dissent claims that this opens the door to judicial intervention in places where the schools
should have control
4. Can distinguish Roth in the fact that Roth chose to sign a contract that lacked tenure, while
students have no choice in attending school or the terms on which they attend
Ingraham v. Wright
1. Paddling in schools, does it violate due process rights?
2. Court had previously found that corporal punishment was a justifiable balance between the
child’s interest in personal security and the traditional view that such punishment may be
sometimes needed in schools.
a. Adding procedural safeguards would be too great a burden on schools.
b. Unlike suspensions, the student may have alternative recourses for unfair
punishment, including tort litigation.
3. Dissent
a. Tort litigation is not appropriate safeguard in this situation b/c it can only be used
after the punishment
Board of Curators of Univ. of Missouri v. Horowitz
1. Medical student was removed b/c of faculty recommendation. Appealed
2. There was a long appeal process, including a probationary period following the first
unsatisfactory finding
3. Court found that if there was an interest to be protected, that the student was given whatever
process was due.
4. Court respected that the decision of who was worthy of a place at the medical school was a
scholarly decision, not one that should be subject to judicial review.
a. Again shows that education holds a less stringent due process review than discipline.
vii. Owasso Ind. School District v. Falvo
1. School allowed students to grade each other’s tests. Challenged on the basis of FERPA
2. Court interpreted language of FERPA
a. “Maintained” – tests are not maintained by the schools
b. “A person acting for” is not a student, but a teacher or other employee
3. Correcting tests can be a reteaching method
4. Requiring otherwise would impose a huge burden on the school
viii. Gonzaga Univ. v. John Doe
1. B/c of comments overheard by a professor, Doe was denied a teaching certificate. Sued under
FERPA for damages.
2. Court held that there is no private right to sue under FERPA.
a. Doe argues a private benefit creates a private right. The court says no, there must be
an unambiguously conferred right to grant a right of action. The text must be phrased
in terms of the person benefited.
b. Court feared a slippery slope or schools being constantly fearful and placing all sorts
of unneeded safeguards to protect against suits.
q. In Loco Parentis
i. Jain v. State
1. Student killed himself, parents sued claiming that he had previously admitted to wanting to
kill himself and that under FERPA exceptions and the duty to prevent harm, they should have
been informed
2. Court held that the language of FERPA is permissive not mandatory and that there was no
duty b/c such is only created when one puts another in a worse position. None was created in
this case and therefore no duty.
ii. Coghlan
1. 18 y/o rushing a sorority. Attended parties where school chaperones were present. Became
intoxicated and severely injured herself.
2. Court holds that because the school assumed the duty by placing chaperones at the party,
there was a duty to prevent the underage drinking and injuries.
a. Because the sorority placed a “guardian angel” with the girl, they too assumed a duty
and were held liable.
iii. Knoll
1. Hazing incident on campus resulting in severe injuries
2. Court held that when there is previous knowledge and the court should have knew what was
going on, there is liability.
a. When the incident occurs on premises, there is premise liability.
b. Equal Educational Opportunity
a. Race and Segregation
i. Brown v. Board of Ed.
1. Strikes down separate but equal. B/c of the necessity of education and the stigma imposed on
children of color being forced to attend separate (lesser) schools, need to get rid of the system
a. Also violation of 14th Amendment, despite the lack of explicit language regarding
education
ii. Brown v. Bd of Ed (II)
1. Implementation of Brown I
2. Schools must make a prompt and reasonable start at full compliance. “all deliberate speed”
Local federal courts will oversee the implementation of desegregation plans
iii. Green v. County School Board
1. Board implemented a school choice program that required affirmative action on the part of
the student to change schools.
2. Court held that it was not just the students that must be completely desegregated. Created the
Green factors that include faculty, staff, transportation, extracurricular activities and facilities.
3. School must show that is making a good faith effort and have integrated schools to show for
it. Must make an effort and not place all of the burden on parents and students
iv. Swann v. Charlotte-Mecklenburg Board of Education
v.
vi.
vii.
viii.
ix.
1. District used a geographic region plan with optional transfers
2. Court asks four questions
a. To what extent should quotas be used – should be a starting point only
b. Should single race schools be eliminated – need close scrutiny to examine such a
situation
c. What are the limits on rearrangement of school districts – need to keep the end in
mind. Pairing may be ok
d. What are the limits on transportation – no specific limits but need to take into
consideration the burdens placed on children.
3. The court may suggest a causal connection between school district’s past discrimination and
present pattern of segregated schools.
4. After this and Green there is a presumption against single race schools
Keyes v. School District #1
1. District sued claiming that their actions in redistricting, school site selection and the
neighborhood school policy created segregated schools
2. To prove de jure segregation, only have to show that it exists within a school district where a
dual system is compelled or authorized by statute at Brown v. Bd of Ed and then there is a
duty to remove all state imposed segregation
a. Not present here
3. De facto segregation was created through gerrymandering, mobile schools, etc.
a. Where there is proof that authorities have systematically segregated a substantial
portion of the school, it is likely that a dual system is present.
b. A neighborhood school system is not enough to create de facto segregation, but there
is much more here.
Miliken v. Bradley
1. B/c of de facto segregation, district tried to involve other districts in the remedy
2. Court held that this could not be done unless it could be proven that the other districts
contributed to the segregation. School district lines cannot be ignored. Remedy cannot exceed
violation.
a. Local control is important to the schools and should not be taken away
b. Court later found in Lindell v. Board of Ed that if the state is found to cause the
segregation, an entire state overhaul would be required.
3. Dissent said that if there is segregation, any method should be used to correct
4. Milliken II held that although the unconstitutional racially discriminatory pupil assignment,
the remedies could go beyond reassignment of students. Allowed reading programs, in service
training for teachers, etc to try to undo the inequities caused by the dual system.
Board of Education of Oklahoma City v. Dowell (1991)
1. Court held that desegregation decrees are not intended to operate in perpetuity
2. To determine if unitariness has been achieved, Court held a two part test
a. Has the board complied in good faith with the desegregation decree since it was
entered? Have the vestiges of past discrimination been eliminated to the extent
practicable? (Looks to Green factors to determine if there are still vestiges)
3. If determined that the system is unitary, Π have the burden of showing that any increase in
segregated schools is due to intentional actions taken by the school board subsequent to
achieving unitary status
Freeman v. Pitts
1. Court held that schools can achieve partial unitary status by meeting certain Green factors. If
done so, judicial oversight can be removed for those factors.
a. What to be able to return school to local control as soon as possible
b. Commitment to desegregation, shown in the fixing of some factors, shows good faith
of school district
Missouri v. Jenkins
1. District court ordered schools to increase teacher salaries and spend more money on remedial
programs to meet state levels for test scores
a. Wanted to make the district a quality school district to attract others into the district,
effecting an interdistrict remedy, without order other districts to do anything
2. USSC said that the purpose of the proposed remedy was not to remedy segregation but to
make it a quality school district. This is beyond the court’s scope.
a. Maintains that courts should look to the Freeman factors
3. Thomas concurrence
a. Holds that just because a school is single race does not make it inferior. Segregation
is only a problem when it perpetuates discrimination. Seems to suggest that there
should be a time limit on the court’s control over schools
x. Washington v. Seattle School District No. 1
1. Tried to use a state law to desegregate
2. Court held that it failed b/c it used the racial nature of the issue to define the gov’t decision
and imposed burdens on minorities. Also removes decision-making power from local boards.
a. B/c it refused busing or other methods of desegregation, the court found that this
action encouraged violations of civil rights.
xi. Wessman v. Gittens
1. Examination school looked to etnicity as part of admissions. Some more qualified students
rejected from school so minority students could attend.
2. Court used strict scrutiny.
a. Compelling interest – undue past discrimination? Court says that there is no showing
of why racial balancing is necessary here. Mere fact that there was once segregation
is not enough
b. Narrowly Tailored – too broad to show that this system would fix the wrongs
claimed by the state. The students the plan claims to aid are not helped.
3. Court rejects the plan
xii. Grutter case
1. Michigan admissions using race as a factor to achieve “critical mass” at schools
a. Powell strict scrutiny standard. Diversity is a compelling interest. Brennen used
intermediate scrutiny.
b. Disparate Impact on Race
i. Tracking tends to affect students along race lines, disportionally keeping students of color out of the
higher level classes
1. Students in low level tracking classes offer face lower expectations, larger classes, less
experienced teachers, less rigorous curriculum, stigmatizing, and basic repeated activities
ii. Lemon v. Bossier Parish School Board
1. Students were assigned to schools based on the scores of tests. The scores fell along race
lines.
2. Court ruled that this was simply another way to segregate schools, especially since the
program was adopted one semester after unitary system was achieved.
iii. Hobson v. Hansen
1. Tracking program used within schools. Most students never left their tracks. Little movement
in system and little checking on mistakes in system. Superintendent said some students are
blue collar
2. Court ordered the system eliminated.
a. Found racially specific effects. Found it could be a self-fulfilling prophecy.
Stigmatizing.
i. This program was adopted immediately following Brown, never being used
before and so it could have been racially motivated to accomplish
segregation.
b. Court could be more concerned with the difference in educational opportunity for the
students, not so much about race. Not wanted two educational systems of varying
quality.
i. May be concerned with the lack of procedural protections in place for the
assignment of students within the system.
iv. Larry P. v. Riles
1. IQ testing used to place students in special education programs. Disportionately placed
students of color in the special education programs.
2. Court holds that there is a prima facie case that the tests have a discriminatory effect and the
defendants have the burden to show that the discriminatory effect is necessary for the
educational result.
v. Standardized testing
c.
1. Unclear what standard should be used to determine if tests have a rationally disportionate
result
a. Depends on the use of the tests – to properly track students or hurt students
b. Is there a racial discriminatory purpose? Hard to determine
c. Do the tests cover material that students will be exposed to?
2. Debra P case
a. Court said that the school had to wait until all students who were part of the
segregated system graduated before using the test. For new students who went
through the unitary system, the tests were valid.
3. Can a due process challenge be brought against the testing practice?
a. Property interest in diploma
b. Liberty interest in being placed in proper track
i. Being compelled to attend school
vi. Fuller v. Decatur Public School Board of Ed.
1. B/c of fight at football game and the zero tolerance policy, students were expelled. Claimed
they were denied constitutional rights and that it was racially motivated. Claimed disparate
impact.
2. Courts held that the statistics showing more students of color were punished is not enough to
rid itself of the zero tolerance policy. Couldn’t show that white students were treated
differently.
Gender
i. Mississippi University for Women v. Hogan
1. Male wants to attend all female nursing school
2. Court uses intermediate scrutiny to determine if there is an Equal Protection Clause violation
by the operation of a single sex state school. Says that there is no governmental need for this
program b/c there is no discrimination of women in nursing.
ii. US v. Virginia
1. VMI all male military school. Claimed it was necessary b/c of the teaching method. Created a
program for women that was not the same.
2. Court said the gov’t had to show that there were important governmental reasons for the
policy and that the justification must be real not hypothesized.
a. Gov’t claimed benefits for students and diversity of program
i. Court said there was no proof that the benefits would not be the same if
school was co-ed.
b. Claimed that they could not modify the program.
i. Court said that they could and that not all women would succeed but all men
don’t either.
c. No real justification to keep women out.
3. The court uses only intermediate scrutiny b/c there are inherent differences between men and
women
iii. Force v. Pierce City
1. Girl wants to play high school football
2. Used the framework in MS Univ. of Women to look for important gov’t justification for the
exclusion.
3. Court did not find that any claim of the state worked. Girls can play
iv. Title IX
1. Proportionality is not required but recommended and often used as a standard to avoid suits
and show good faith in trying to equalize opportunities for students
a. Is easy to compare as well
2. Connection to Equal Protection
a. Davis argues that it is under the Spending Clause
b. Hogan says that the Civil Rights act and 14th Amendment
3. Has exception for single sex schools
a. Why not used in VMI? B/c it is a statute and constitution (14th Amend) always
trumps and VMI was a violation of 14th
v. Pfeiffer v. Marion Center Area School District
1. Knocked up NHS student
2. Court said that the school had the right to kick her out for breaking the honor code, but said
that evidence showing a double standard must be allowed in and if such a double standard
was found, then unwed mothers could not be excluded. TITLE IX, unequal treatment of the
sexes
vi. Chipman v. Grant County School District
1. Same as Pfeiffer. Court points out that intentional discrimination is not needed and school has
the burden to show that the actions are a reasonable necessity.
vii. Sahrif by Salahuddin v. NY State Education Dept.
1. NY state does scholarships using SAT scores only.
2. Court finds this denied female students equal opportunity to receive state merit.
a. State was trying to measure high school achievement and SAT doesn’t do that.
b. Uses rational basis analysis not intermediate scrutiny
i. This is a facially neutral law. Not clear if intermediate applies to disparate
impact b/c USSC has held that for sex discrimination there must be intent.
But laws must be rational, even if there is no intent to discriminate.
viii. Davis v. Monroe County Bd of Ed
1. Student on student sexual harassment by classmate. School did not take action to remedy.
Suit under Title IX
2. Court holds that if there is “deliberate indifference” in the school’s inaction when they have
actual knowledge of the harassment and that it deprived the victim of educational opportunity.
ix. Nabozny v. Podlesny
1. Openly gay child harassment by male students. School aware. Sued under §1983 alleging that
the school violated his rights to equal protection.
2. Court holds that there must be evidence that the school acted with a nefarious discriminatory
purpose. The school must then show that they did not discriminate or at least satisfied the
heightened scrutiny for gender discrimination.
a. Found that there was a Equal Protection Claim on the basis of gender
d. Difference
i. Sometimes separate education is needed to address differences.
ii. Lau v. Nichols
1. No additional help for students who did not speak English
2. Court finds under Civil Rights Act, which banned discrimination on the basis of race, color or
national origin. Includes that schools must ensure that children of these groups receive
education which is generally received by other students in system.
3. It is clear that when on group does not speak English, they are precluded from effective
education and remedies are needed. School is to apply correct remedies.
iii. MLK Elementary v. Michigan Bd of Ed
1. Parents wanted students to see Black English as a language barrier
2. 20 USC §1703 requires that students with a language barrier must receive education to help
overcome such
3. Court held that there is no limit set on what a language barrier is, so the facts so be examined
to see if educational opportunity was denied b/c of the language.
iv. Castaneda v. Pickard
1. Parents claimed the program used to overcome language barriers was inadequate
2. Court says that there was a program in place to aid the students in overcoming the barriers.
a. Court is unsure if Lau still applies b/c Washington v. Davis held that discriminatory
intent not just impact is needed. However, there is no intent language in §1703
b. Holds that to determine if a valid attempt to aide the students has been made the
court must examine the record to look for the soundness of educational theory upon
which the program is based, see if the practices are reasonably calculated to
implement the educational theory, is it a sound practice to alleviate the barriers, is
there an effort to make the program work and if after a period of time the program
has not worked, the school must change.
i. Here the court finds the program ok and states that except under certain
circumstances the court should review educational decisions
v. Phyler v. Doe
1. Can undocumented children be denied education?
2. Court says no it is a violation of 14th amend.
Can’t punish children for actions of parents
Education is crucial to society.
Can’t call any group “less worthy” of education
This does not protect school resources, immigration regulations or improving the
state of education.
3. Court uses a reasonable basis b/c education isn’t a fundamental right
League of United Latin American Citizens v. Wilson
1. Prop. 187 denied public education to undocumented students and required policing by the
schools
2. Court held that cannot regulate immigration b/c it is solely a federal power and b/c it violates
the Equal Protection Clause.
Mills v. Board of Education
1. School precluded special education students from attending public schools
2. Court held that constitutional rights must be afforded to all people despite the financial
burden.
a. Balancing the state’s interest in saving money versus the future cost of caring for
uneducated children and found that even with a shortage of funds it was in the best
interest of society to educate.
3. Cannot exclude a child unless a proper alternative is provided, with a constitutionally
adequate hearing and periodic review of the child’s status
4. Free and suitably public education will be provided to all children regardless of disability.
5. This case leads to the codification of IDEA
a. IDEA requires that full educational opportunity, free public education, IEPs and to
the extent possible. States can require more.
Southeastern Community College v. Davis
1. Does §504 of Rehabilitation act forbid physical requirements on admissions to clinical
training programs?
2. Court holds that it only forbids the only reason for exclusion from being one’s handicap.
However, physical requirements can be reasonably used.
a. Here the disability precluded her from being a proper nurse, so ok.
Board of Education v. Rowley
1. Deaf student wanted interpreter to maximize educational requirement.
2. Court holds that statute only requires access to education, no specific level of education.
Looks only for meaningful access to education. Assuming that if the schools follow all
procedural guidelines in the statute, the schools will achieve a proper end.
Roncker v. Walter
1. Wanted to take child who needed extra supervision out of mainstream classes
2. Court held that Act does not require mainstreaming of all students but requires that it be
provided to the maximum extent appropriate, with a preference for mainstreaming.
a. If additional services can be provided to students so that they can maintain
mainstream classrooms, it should be done.
Hartmann v. Bd of Ed.
1. School wants to place student in self contained class but parents wanted him to remain
integrated
2. DeVries sheld out three times when mainstreaming is not required
a. When child will receive no educational benefit
b. When any marginal benefit received from mainstreaming is substantially outweighed
by those in segregated classes
c. When the child is a disruptive force in the regular classroom
3. Court held that the school’s judgment should be trusted in most cases and it appeared that
they had made an appropriate effort to keep child in a mainstream classroom.
Honig v. Doe
1. Stay put provision requires that students remain in their current placement pending reviews of
proposed change.
2. Court held that there is a presumption in favor of current placement and the parents and
school could agree to move the child w/o all of the requirements. School is not precluded
from using usual procedures to remove students who pose a safety concern for others.
3. Discipline cannot be for more than 10 days b/c then it triggers a program change.
a.
b.
c.
d.
vi.
vii.
viii.
ix.
x.
xi.
xii.
e.
School Finance
i. Is it possible to provide equal opportunity for all students?
ii. What should be looked at?
1. Inputs
a. Should there be equal resources across the state? Nationally?
2. Outputs
3. District Power Equalizer – towns getting money based on how much effort they are willing to
put in (how high their tax) not just how much $$ can raise
4. What is the best way to remedy?
a. Equality or adequacy?
iii. Serrano v. Priest
1. CA case. CA financial system relied on property taxes and therefore great disparities in
districts
2. USSC has previously held that in cases involving financial issues there needs to be a
reasonable relationship between the system and a legitimate state purpose, but also held that
suspect classifications and fundamental interests use strict scrutiny
3. Court says wealth is a suspect classification b/c there is no fair or logical reason. B/c of the
importance of education in society, it is a fundamental right.
4. There is no compelling state interest to continue the current financial system.
iv. San Antonio v. Rodriguez
1. Federal case.
2. Court held that wealth is not a suspect class b/c not discussing individuals. Even if education
is a fundamental right, these children are not being denied it.
a. After this all financial matters were dealt through state courts
v. Brigham v. State
1. Vermont funding system. VT has a constitutional amendment for education
2. Court holds that it is clear that there is inequality here and that under Education and Common
Benefits clause, it needs to be fixed.
vi. Robinson v. Cahill
1. NJ financial system.
2. Court refuses to use Equal Protection b/c too complicated. Uses other constitutional – NJ
requires “thorough and efficient education” Looking at the unequal inputs, the court sees the
need to fix it
vii. Rose v. Council for Better Education
1. KY constitutional mandate for efficient education
2. Looking at outputs the court determines that there is a duty to reestablish a new system of
schools, perhaps a uniform tax rate. (adequacy)
viii. Abbott v. Burke
1. Municipal overburden causes the districts that need the most educational aid have the least
resources to work with. Something needs to be done to try to equalize educational
opportunity.
ix. Hobson v. Hansen
1. There can be financial differences between two schools in the same district.
2. Court found that remedies were needed to focus on per pupil expenses, teacher salaries and
benefits.
Standard of review
- Strict Scrutiny – fundamental interests and suspect classifications. Looks for compelling state interest and that the
action is narrowly tailored to fit the interest
- Intermediate Scrutiny – classification must serve important governmental objectives and the discriminatory means
must be substantially related to the achievement of the objectives
- Reasonable Basis – needs reasonable relationship between objective and system.
Newdow
This is not a USSC case and has not been decided in the USSC but applies all of the USSC tests to the matter. No clear
determination as to what the court would use today.
- Lemon – three prong test (traditionally used)
o Secular purpose
o Principle or primary effect that neither advances nor inhibits religion
 Will the challenged governmental action be perceived by adherents of the controlling dominations
as an endorsement and by the non-adherents as a disapproval
o Must not foster excessive governmental entanglement with religion
- Endorsement test – (from Lynch. O’Connor collapses first two Lemon prongs)
o Cannot send a message to non-participants that they are outsiders, not full members of the community and
show that insiders are favored members of community.
- Coercion test (first used in Lee v. Weisman and relied on solely there)
o Cannot “coerce anyone to support or participate in religion or its exercise or act in a way which establishes
a state religion, religious faith or tends to do so”
o Does not need to be a required part of a violation b/c would make the Free Exercise Clause a redundancy