Education Law

AuthorJeffrey Lehman, Shirelle Phelps

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The body of state and federal constitutional provisions; local, state, and federal statutes; court opinions; and government regulations that provide the legal framework for educational institutions.

The laws that control public education can be divided into two categories: those written exclusively for schools and those pertaining to society in general. Federal statutes regarding the education of children with disabilities are an example of the former, and Title VII (CIVIL RIGHTS ACT OF 1964, §§ 701 et seq., as amended, 42 U.S.C.A. §§ 2000e et seq.), a federal statute that covers employment in schools and elsewhere, is an example of the latter. Much of the litigation, legislation, and debate in education law has concerned nine main issues: student speech and expression; searches of students; the separation of church and state; racial SEGREGATION; the education of disabled children; EMPLOYMENT LAW; employee SEXUAL HARASSMENT and abuse of students; instructional programming; and the financing of public education.


Throughout United States history, government, in one form or another, has expressed an interest in education. Indeed, this interest predates the American Revolution by more than 100 years. In 1647, the General Court of the Colony of Massachusetts Bay passed the Old Deluder Satan Act. Section 2 of that act provided that "when any town increased to one hundred families or households, a grammar school would be established with a master capable of preparing young people for university level study." The Massachusetts Bay Colony was not unique in its concern for education: Other colonies also gave unrestricted aid through land grants and appropriations of money. Both forms of support were adopted later by the CONTINENTAL CONGRESS and the CONGRESS OF THE UNITED STATES.

The first measure enacted by the federal government in support of education came when the Continental Congress passed the Ordinance of 1785, which disposed of lands in the Western Territory and reserved section 16 of each congressional township for the support of schools. Two years later, the same Congress passed the NORTHWEST ORDINANCE, which was the first policy statement by Congress with respect to education. Its third article recognizes knowledge as being essential to good government and to the public welfare, and it encourages happiness of mankind, schools, and the means of education.

These early acts by the colonies, and support from the federal Congress, forged a partnership in public education that continues to this day.

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This partnership has thrived despite the absence of any explicit reference to education in the Constitution. The legal authority for the intrusion of the federal government into education is based on an interpretation given to the GENERAL WELFARE Clause of the Constitution, which reads, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises to pay the Debts and provide for the common Defence and general Welfare of the United States" (art. I, § 8).

The TENTH AMENDMENT to the Constitution provides the basis in legal theory for making education a function of the states. It reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Although this amendment does not specifically direct the states to assume the responsibility for providing education, its effect has been no less. Each state constitution provides for the establishment of a statewide school system. Some state constitutions define in detail the structure for organizing and maintaining a system of public education; others merely accept that responsibility and delegate authority for its implementation to the state legislature. The U.S. Supreme Court and the state courts have consistently ruled that education is a function of the states.

Student Speech and the First Amendment

In the mid-twentieth century, the U.S. Supreme Court began to recognize that children do not give up their constitutional rights as a condition of attending public school. The Court acknowledged that the public school is an appropriate setting in which to instill a respect for these rights. Freedom of expression is perhaps the most preciously shielded of individual liberties, and the Court has noted that it must receive "scrupulous protection" in schools "if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes" (West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 [1943]).

The Court also has recognized that schools function as a "marketplace of ideas" and that the "robust exchange of ideas is a special concern of the First Amendment" (Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 [1967]).

Nevertheless, the right to free expression can be restricted. As Justice OLIVER WENDELL HOLMES JR. noted, FREEDOM OF SPEECH does not allow an individual to yell "Fire!" in a crowded theater when there is no fire (SCHENCK V. UNITED STATES, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]). A determination that specific conduct communicates an idea does not ensure constitutional protection. The judiciary has recognized that defamatory, obscene, and inflammatory expression may fall outside the protections of the FIRST AMENDMENT. More-over, the U.S. Supreme Court has acknowledged that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings" (Bethel Sch. Dist. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L.Ed. 2d 549 [1986]). Accordingly, students' rights to free expression may be restricted by policies that are reasonably designed to take into account the special circumstances of the educational environment.

It was not until 1969 that the U.S. Supreme Court specifically addressed the scope of students' freedom of expression in public schools. Its landmark decision in this area, TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), often is referred to as the MAGNA CHARTA of students' rights. Tinker arose from an incident in which students were suspended for wearing black armbands to protest the VIETNAM WAR. Concluding that school authorities had suspended the students for expression that was not accompanied by any disorder or disturbance, the U.S. Supreme Court ruled that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."

For almost two decades, lower courts interpreted the Tinker mandate broadly, applying it to controversies involving a range of expressive activities by students, school-sponsored and otherwise. Although Tinker has not been over-turned, the Court limited the application of its principle in the late 1980s and early 1990s, beginning with the 1986 decision of Bethel School Dist. 403 v. Fraser. In Fraser, the Court upheld disciplinary action taken against a student for using a sexual metaphor in a nominating speech during a student government assembly. The Court recognized that the inculcation of fundamental values of civility is an important objective of public schools and that a

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Tinker v. Des Moines addressed the scope of students' freedom of expression in public schools. The case arose from an incident in which students, including Mary Beth and John Tinker (pictured), were suspended for wearing black armbands in protest of the Vietnam War.


school board has the authority to determine what manner of speech is inappropriate in classes and assemblies.

Two years after Fraser, the Court affirmed the right of a school principal to delete two pages from the school newspaper because of the content of articles on DIVORCE and teenage pregnancy (Hazelwood v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 [1988]). The Court acknowledged school authorities' broad discretion to ensure that expression appearing to bear the school's imprimatur is consistent with educational objectives. Further, the Court expansively interpreted the category of student expression that is subject to CENSORSHIP as that which occurs in school publications and in all school-sponsored activities. In both Hazelwood and Fraser, the Court indicated that school authorities could determine for themselves the expression that is consistent with their schools' objectives.

Although many questions remain unanswered concerning the application of the First Amendment guarantee of free speech in the unique forum of the public school, the law does seem to be settled in the following areas:

School officials may discipline students whose speech or expression materially and substantially disrupts the educational environment (Bethel School Dist. 403 v. Fraser).

School administrators may reasonably regulate the content and distribution of printed material at school (Hazelwood School Dist. v. Kuhlmeier).

The Equal Access Act (Pub. L. 98-377, Title VIII, Aug. 11, 1984, 98 Stat. 1302 [20 U.S.C.A. §§ 4071 et seq.]) requires a school to permit religious student groups to meet during non-instructional time if the school permits other extracurricular groups to meet in the same or a similar manner (Board of Education v. Mergens, 496 U.S. 226, 110 S. Ct. 2356, 110 L. Ed. 2d 191 [1990]).

School officials have far more...

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