Fall 2003 #3. The Constitutionalization of Education.

Author:Conference Remarks by Kermit V. Lipez, U. S. First Circuit Court of Appeals

Maine Bar Journal


Fall 2003 #3.

The Constitutionalization of Education

Maine Bar JournalFall 2003The Constitutionalization of EducationConference Remarks by Kermit V. Lipez, U. S. First Circuit Court of AppealsHaving reviewed the program for this conference, I can see that you are covering much ground. Your subjects are timely and important. I applaud all of you for the attention that you give to the critical links between education and law. Certainly, in my work as a judge, I am reminded constantly of those links because of court challenges to decisions that teachers or school administrators have made in carrying out their educational responsibilities. Those challenges draw on familiar sources: the common law, state and federal statutory law, state constitutions, and, of course, our federal constitution.

For me, as for many others, that last source of law is the most intriguing of all. We are justly proud of our traditions of local control over education. Yet in our system of federal supremacy the federal constitution is a large presence in our local school systems, with its majestic generalities gaining content through the crucible of litigation. Some scholars have referred to this process as the constitutionalization of education. Without any claim to originality or completeness, I would like to discuss that process with you briefly this afternoon by revisiting some familiar terrain involving the rights of students and the authority of school officials, while offering a few observations along the way.

We lavish great attention and resources on our children, believing in our responsibility to help them prepare for their own adulthood, and entrusting them with our hopes for the future. We rely primarily on three institutions for this preparation: the family, religious institutions and, for most of our children, our public schools. The family is our private domain, shielded from an overreaching government by doctrines of privacy that have developed over time. Our places of worship are also protected from the heavy hand of government. Indeed, that separateness of government and religion, whatever the details, is one of the fundamental premises of our social order. With our public schools, however, there is no separateness. There, the hand of government is everywhere. Our schools are funded by taxpayer dollars. They are administered by government employees. They must comply with a bewildering array of state and federal laws that affect curriculum choices, the allocation of resources and the focus of teacher time and energy.

The pervasiveness of law in our public schools reflects, in part, our uneasiness with their hold on our children. Teachers might impart values we dislike or allow others to do so. They might fail to identify and respond to the special needs and talents of our children. School administrators might sanction them unfairly and hence imperil their futures. Teachers and administrators might fail to protect them from physical harm or might allow other students to intimidate them. Through law, we try to control what happens to our children in our public schools. There are many examples of this dynamic.

One evening several years ago, my youngest daughter described at the dinner table an unsettling experience from her day at school. As she and several of her classmates were walking through the hallway to a classroom, they noticed that a muscular young man in their class, who always wore tee shirts to display his bulging biceps, now sported a large swastika tattoo on one of those biceps. My daughter and her friends were taken aback. They knew of the young man's troubled history. They had already been uneasy in his presence because of his volatile conduct. The swastika deepened their uneasiness and, because of its hateful history, made them angry. Deciding that they would be unwise to confront the young man themselves, they went to a school administrator to discuss their concerns. He listened to their account respectfully and then told them there was nothing he could do. The young man was exercising his constitutional right of free expression. In the absence of some kind of disruptive behavior, the girls in the school would have to respect his right.

I told my daughter that response was simplistic. Contacted by a number of concerned parents, the school administrator soon learned that he could take action without violating the Constitution. Within days the young man was walking through the school halls with his bulging biceps and swastika tattoo covered by a long-sleeved shirt. Our venerable federal constitution, elaborated through litigation over time, had provided the text for the resolution of this small incident in a small school in Maine.

This scenario - students testing the limits of free expression in the public school setting, and the resulting constitutional debate - repeats itself time and again. Several months ago there was a story in the New York Times about a Michigan high school junior who was sent home from school for wearing a tee shirt with a picture of President Bush and the words "International Terrorist" printed on it. According to the Times article, upon returning home, the young man "went on the Internet to reread a Supreme Court case from 1969, Tinker v. Des Moines, that supported students' freedom of expression. Then he called the Dearborn High School principal to talk about his constitutional rights. And then he called the news media."1

This young man was a school principal's nightmare: provocative, smart, determined, media-savvy, and ready to invoke that memorable declaration of Justice Fortas in Tinker: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate."2 Indeed, the Times reported that the young man focused on the Tinker case in his talk with the school principal. The young man offered this account of the...

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