Guide for first year law students/Education law

From Wikiversity

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Contents 1 Law and Education 1.1 Section One: The Debate Over School Choice 1.1.1 I. MARKETIZATION OF SCHOOLS 1.2 Section Two: Compulsory Schooling and Public/Private Pluralism 1.2.1 I. THE REQUIREMENT OF COMPULSORY EDUCATION 1.2.2 II. EXCEPTIONS AND ALTERNATIVES 1.3 Section Three: Freedom of Belief and Expression 1.3.1 I. SOCIALIZATION AND INDIVIDUAL RIGHTS 1.3.2 II. BUT WE HAVE TO RUN A SCHOOL 1.4 Section Four: Discipline 1.4.1 I. ENFORCING RULES, DEALING WITH VIOLENCE 1.4.2 II. DUE PROCESS AND ISSUES OF PUNISHMENT 1.5 Section Five: Equality 1.5.1 I. EQUALITY AS A GOAL IN EDUCATION 1.5.2 II. RACIAL EQUALITY 1.5.3 III. IMMIGRANTS AND NON-CITIZENS 1.5.4 IV. LANGUAGE 1.5.5 V. GENDER 1.5.6 VI. DISABILITY AND THE EMERGENCE OF SPECIAL EDUCATION RIGHTS 1.5.7 VII. ECONOMIC CLASS AND SCHOOL FINANCE INEQUALITIES 1.5.8 VIII. ABILITY AND ACHIEVEMENT 1.6 Section Six: Religion 1.6.1 I. IN PUBLIC SCHOOLS 1.6.2 II. IN PRIVATE SCHOOLS 1.7 Section Seven: School Choice 1.7.1 I. CHARTER SCHOOLS 1.7.2 II. SCHOOL CHOICE

[edit] Law and Education

• A. This class covers four major movements in education law:
  • 1. Compulsory schooling/common school movement. Seems past – but it’s very much alive. Home schooling; preschools; shared experiences. Liberty/compulsion, discipline/order
  • 2. Civil rights/equal/education movement. Race, gender, disability, language, class, citizenship, sexual orientation. What happens to goals of equality as we move on?
  • 3. Standards movement. Compulsory testing, high-stakes standardized tests (focus of many lawsuits). Content-based standards for what students should be learning. Centralization of the locus of control
  • 4. Choice movement. Mayor Schundler – school choice is the civil rights movement of this generation. Is that true?
• B. Education may be the only entitlement program – but will it continue to be an entitlement? Country has been transformed by Brown, but schools are more segregated now than they were. Dramatic results of mass social movements to change the law have had their effect on education, but have they worked?

[edit] Section One: The Debate Over School Choice

[edit] I. MARKETIZATION OF SCHOOLS

• A. Winerip, “Schools for Sale” – case study in Jersey City of charter schools. Charters are free and open to any child who lives within the school district where the charter is located. They receive public funds per student that are withdrawn from public schools
  • 1. Charters still have richer students since parents have to seek them out. Public schools, even when improving, may have unattractive class sizes
  • 2. Magnets were another option, but don’t offer wholesale control. Charters save money by cutting teacher wages. Charters also may not keep themselves open to scrutiny if they have problems
• B. “Parental Choice: Breaking the Public School Monopoly” – the public favors a system that allows parents to choose. Encouraging competition is popular, and the best way to accomplish this goal is to encourage a wide variety of schools and give parents vouchers
  • 1. Pierce held that parents have the right to choose private education, and the public is becoming disenchanted with secular education. Monopoly is also wrong and schools should have incentives to succeed. Vouchers can make most schools better
  • 2. Critics say that the amounts of money required will be staggering. Also, we’ll lose a sense of the common school and undermine public schools. Creation of special schools will lead to resegregation. Without public schools, we’ll lose the great equalizer and will decrease principles of citizenship
• C. Glazer, “Some Problems in Acknowledging Diversity” – a civil society is a realm of nonprivatized collective action that is voluntary and persuasive. The issues of today (homosexuality) seem to resist resolution. If children are raised in distinctive schools, schools with greater social capital will improve and schools will be affected by the culture of the parents who choose them. Values and practices of the communities may affect achievement
• D. Friedman wanted experiment with school choice. Magnet schools became popular in the 1970s, and they’re still part of the public school system. Mainly, these schools sought to promote desegregation. Now, over half of all states have charter schools. It varies considerably, but generally, charter legislation is adopted at state level and allows for profit-taking by entrepreneurs who are given funds. States vary on how much they free charter schools from requirements imposed by law (managerial control of hiring and firing, curriculum, recognition of teachers’ unions, due process). Still an open question whether they’re deemed public or private entities
• E. The biggest experiment in school choice is paid for by vouchers. Cleveland and Milwaukee have the most extensive programs, where they allow parents to take vouchers and opt out. Zelman allowed the use of vouchers on religious schools. But right now, a tiny number of children have this option
• F. Other legislation provides exit options for failing schools. It’s not defined where those children will move to, however. Scholarships are also becoming an avenue for attendance at private schools
• G. Minow – political coalitions for school choice are remarkable. Depending on the question, 40% to 70% of Americans prefer school choice. This movement also seems to run counter to the movement for standards. The choice movement wants decentralization of power over curriculum, teacher recruitment, and training. But maybe taken together, the two constitute rejection of top-down or bottom-up power structures. Instead, you get data about results and create structures that elevate contributions of the front-line worker, rejecting rigid rules. This movement is an example of “democratic experimentalism,” or “new governance”
• H. School choice raises an enormous set of pluses and minuses. It could skim good students, teachers, and families away from mainstream of public education; alternatively, it could open up access to quality education for students who have never had this access. Good schools determine high property values, and the rich can choose good schools. There are huge startup costs for new schools. Every community has at least one good school – but can’t scale up and have an entirely good system. Why not? Schools contract with companies for profit – what’s the link between schools and private enterprise? Some industries have developed programs to teach students to become employees
• I. Within a public system (charter schools), what should the state DOE require as basic elements for a group of entrepreneurs before giving them a charter? What should they have to promise? Should teachers be certified or unionized? Admissions open or selective? Requirements for:
  • 1. Curriculum: aligned with state standards?, citizenship requirements, possibility of portfolio review
  • 2. Teachers: possibly… Strong leadership, formal education and experience in teaching could be required. All principals and teachers have to be certified (a point of dissension); maybe unionize; maybe certification doesn’t equal quality
  • 3. Compliance: public disclosure required of personnel and curriculum, non-profit?, process of goals/evaluation, open meetings and books? But maybe accountability is different. Discrimination? Race (probably not), gender?, sexual orientation?, special education?
  • 4. Freedoms: discipline, uniforms
  • 5. Individual -> school -> system, three levels for which requirements may look different

[edit] Section Two: Compulsory Schooling and Public/Private Pluralism

[edit] I. THE REQUIREMENT OF COMPULSORY EDUCATION

1. A. The “Pierce Compromise” and Its Implications for Education Governance

• 1. Background – in every state, American children are legally obliged to attend school or receive minimum level of instruction in the home. Symbolic stage, from 1850-1890, led to compulsory schooling but laws were poorly enforced. Bureaucratization stage, beginning around 1900, led to growth in school systems’ size and complexity. Now, we appear to be in a stage of rejection of bureaucratization
• 2. Gutmann, “Democratic Education” – advances theories for determining the purposes of education
  • a. The family state – advanced by Plato. The idea that state authority over education is necessary for establishing a harmony between individual virtue and social justice. However, the state must have wisdom and meet the moral convictions of its citizens, and probably will have different conceptions of what is good
  • b. The state of families – Locke’s idea that parents are the best protectors of their children’s future interests. Strongest argument against this is that children are members of family and state, so neither should have exclusive control. Welfare of children may not be best defined by freedom of parents
  • c. The state of individuals – Mill’s idea that the state should be totally neutral while giving opportunity for choice. Neither parents nor the state should shape children’s moral character
  • d. A democratic state of education – states, parents, and professional educators all have important roles to play in cultivating moral character. This won’t guarantee supremacy of any of the three states, but will support the value of each in perpetuating conceptions of the good life. Partial prejudice may be valuable, but education should not repress anyone or discriminate
• 3. What are the justifications behind and rights implicated by compulsory schooling?
  • a. #1 justification at time of institution: cultural inclusion and Americanization
  • b. Citizenship and democracy
  • c. Economic needs: consumer protection, human capital. The growth of unions stopped child labor and made adult labor more expensive
  • d. Prevent juvenile delinquency
  • e. Rights trenched upon: parental rights in educating children (or choosing not to educate them); the child’s right to sell labor (child labor laws passed at the same time). Family farm still exempted from compulsory schooling laws
• 4. Pierce v. Society of Sisters (1925) [10]
  • a. Oregon passed an act requiring every parent of a child between age of 8 and 16 to send the child to a public school. Plaintiffs ran private schools and sued to protect their property. The law was passed during rise of religious suspicion and distrust of Catholicism. Oregon said that it sought to assimilate foreigners. Opponents argued that it abridged freedoms of schools, teachers, and finally, students and parents
  • b. Issue – was the requirement of public school attendance a Constitutional violation?
  • c. McReynolds, for majority – compulsory public schooling unreasonably interfered with liberty of parents to direct the upbringing and education of children under their control. The child is not the mere creature of the state. But the state can still require children to be educated, and may enter the field of education. Fourteenth Amendment protects these schools from destruction of their property in this way (so it’s substantive due process, Lochner-type reasoning)
  • d. The Supreme Court permitted the state to supervise private schools and teachers. The crucial interests to Guttman are students’ individual interest in education and inculcation of common set of democratic values. But Levinson says Pierce went too far – it cut down freedom of admission and curriculum in public schools. Do parents belong to the state?
  • e. Current impact of Pierce
    • i. Minow says that we won’t break down stratification as long as we have public and private schools. Her suggestion is that we should abolish all public schools and just permit the state to watch over private schools. We could use private vendors to enforce the standard of compulsory education. However, segregation based on race and class may not be addressed by the abolition of public schools. Is there going to be enough supply in certain areas where it’s not economically viable? Minow would provide public funding to private schools. The state might have to create a price ceiling to prevent schools from raising prices above subsidized prices
    • ii. On the other hand, maybe Pierce is standing in the way of a full and total commitment to public schools. The major defense of Pierce has to do with goals of pluralism and religious freedom – Catholic schools vs. Protestant-based public schools (although Catholic schools have moved away from religion and maybe private schools will become more secular and committed to the common school). However, Pierce won’t be overturned – it’s foundational to law of schools even though it is based on the 14th A’s due process clause. Court barely seemed to care about freedom of the parents
    • iii. Pierce has been recaptured by those who cared about religious freedom and more recently by those in favor of reproductive freedom rights. One reason the privacy right has been justified as the new Lochner-ing
    • iv. Minow – the parallels between the time of Pierce (1920s) and the current day are striking. Who is responsible for educating children in a diverse constitutional democracy? Pierce determines how much scope each party should have, and sets considerable scope. It embraces plural pathways for education and development, yet subtly constrains pluralism by requiring quality and ambition
  • f. The due process interest has been abandoned, so interests of private schools may be diminished. Pierce may be a First Amendment case – the family is empowered to make these decisions with regard to religion or speech. The limitation, Yudof says, may be a restriction on government expression of its own ideals
• 5. Consequences if you don’t abide by compulsory education laws – parental neglect proceedings, children’s truancy. Is there a duty of service that corresponds with a child’s duty to attend? In 1960s, movement against compulsory education laws; went nowhere, but home schooling movement may be a new version of this.
• 6. Some say that we should abolish compulsory education because it requires it of all. The state’s interest in shaping political or social attitudes may be illegitimate
• 7. There’s also a debate as to whether we should require attendance up to age 18. Should it be expanded downward to 3- or even 2-year-olds? Difference as well between laws on the books and laws as enforced – schools are happy to push kids out
• 8. Arguments for starting kids earlier – these are most influential years for children, so maybe we should equalize things by forcing young children into school. Problems – resources (Head Start isn’t fully funded), and maybe parent’s interest is stronger in shaping and caring for their child. Is there a Constitutional dimension to this question as well as a policy question?

1. B. Educational Governance and the Law

• 1. Federal, State, and Local Authority over Educational Decision Making
  • a. Traditionally, state and local educational agencies have assumed principal responsibility for delivering educational services
  • b. After World War II and Sputnik, the federal government became more active in shaping educational policy. After Civil Rights Act of 1964, legislative and executive became more activist in defining rights. This slowed under Reagan, who cut equal-opportunity programs
  • c. “ESEA: The Office of Education Administers a Law” – new educational demands, most notably the baby boom, created a need for federal intervention. This interest manifested itself in financial grants, civil rights acts, poverty legislation, and liberalization of church-state relations. The Elementary and Secondary Education Act of 1965 passed, creating standards and accountability for schools
  • d. “Goals 2000: Educate America Act” – Goals 2000 sought to create systemic reform. Congress attempted to structure a uniform national curriculum, providing grants for states that go along with the plans. Goals 2000 allows the federal government to influence every public school
  • e. Later, Clinton and Bush sought more accountability via student achievement testing. High-stakes tests have been the most controversial application
  • f. “The Legal Foundation of Public Education” – state legislature has law-making power over public schools. Generally, it delegates to subordinate agencies (school boards). School districts are still accountable and are governed by a chief state school officer. Legislature can govern election of local school boards and give them exclusive decision-making authority
• 2. Commercials in the Classroom
  • a. Dawson v. East Side Union High School District (Cal. App. 1994) [987]
    • i. Whittle Communications provided 10 minutes of current events coverage and 2 minutes of commercials on its “Channel One.” It also gave schools expensive equipment in exchange for agreements to show the broadcast. The Superintendent of CA sued one district to prevent it from showing Channel One
    • ii. Issue – was the advertising an impermissible infringement on student rights?
    • iii. The noncurricular advertising was incidental to the valid educational purpose. It wasn’t wholesale or intrusive enough to merit a ban. Advertising as part of the school day was not per se impermissible
    • iv. However, student viewing had to be voluntary. Students are effectively confined, but the power to decree compulsory education is not absolute. Students had to be able to opt out in order to protect their constitutional rights, because the purpose behind compulsory attendance was missing with regard to the commercials

[edit] II. EXCEPTIONS AND ALTERNATIVES

A. 13% of children are educated outside of public schools, 2% are home schooled B. Public Policy and the Constitution 1. Wisconsin v. Yoder (1972) [23] a. Wisconsin Amish sought to keep children out of school after they completed the eighth grade, despite compulsory requirement of education until 16 years of age. Parents were charged and convicted of violating the law b. Issue – did Amish had to be excepted from the application of the statute under the Free Exercise Clause? c. Burger, for majority – Amish values and way of life had been clearly established, and decision to keep kids out of school was religiously motivated. Amish had record as law-abiding members of society. Higher education contravened religious practices of the faith and the state’s interest in these one or two years of education was not strong enough to overcome the burden. No harm to the child could be inferred and state did not have power to override the fundamental interest of the parents d. Three conceptions of parent-child-state relationship. Yoder is the perennial example of the parental rights view – parents control children, and state is outside that relationship (P/C)S parental rights (C/P)S children’s rights (S/C)P child protection

e. Douglas, dissenting in part – right of the children should matter, and they should be heard in the Wisconsin courts. Also, the emphasis on the “law and order” record of the Amish was irrelevant i. Douglas’s option involves the state, as all do. But in his, the state asks the children what they want. It isn’t in control of the children; it should ask them what they want. The answer to Douglas – children are in a state of custody, regardless. Ask these children who have spent 14 years in Amish school whether they want to go against their parents and go to a school that is portrayed in their household as a threat to their community? Is that a choice? ii. If free exercise of religion is what these children are offered – Amish religion does not have choice. Then even asking the kids to make a choice is a violation of the free exercise of religion of the children iii. What’s undermined if these kids go to public high school? They are forced to rely on technology, they don’t get manual labor training, it could undermine parental authority. There’s a real jeopardy to parents and kids’ religious freedom, and Douglas’s alternative isn’t good enough to prevent it f. Minow’s Yoder analysis i. Is there a burden? (a) Question 1 – does state action burden religious liberty? (i) The test of tolerance in America may be if there’s room for people who want to withdraw. But what if pocket of antiliberalism fails to educate its children to become part of the community? What if it’s a Taliban cell? Practices that resist globalization? How antithetical to values can a pocket be and receive toleration? The Amish fit perfectly with our ideals – some might say they prepare self-reliance better than our schools do. This makes the case easy – as does the fact that the Amish are just asking for an exception to compulsory education statutes. In free exercise cases, religious groups can ask for a bubble of noninterference or can manifest a desire to spread ideas (b) Question 2 – what exactly is burdened? (c) Question 3 – is the burdened interest sincere (or perhaps “core”)? ii. Is burden justified by compelling state interest? (a) Possible interests: preparing kids for citizenship; training children for the workforce (b) What was the value of these two years of high school? Court says not much. But maybe it’s asking the wrong question (kids have been isolated all along, so maybe these two years would be really valuable). The citizenship issue drops out, and the ability to earn a living is emphasized. These kids know menial skills, so they can make a living. Jefferson said that the farmer would figure strongly in the American story, and Court is still supporting farming (c) No one else has come under a Yoder-type exception. Muslims – what if they have to miss one day out of five for rest? They have another option – start more schools. But then they don’t benefit from public education. Schools must also comport with compulsory schooling requirements. Some states are strict and some are laissez-faire 2. Prince v. Commonwealth of Massachusetts (1944) [37] – used by the Yoder court as a charter of the rights of parents to direct the religious upbringing of their children. But Prince covered a case where a mother made her kid sell religious literature. Yoder distinguishes as preventing harm to child from entrance into harsh world of commerce 3. Troxel v. Granville (2000) [37] – interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the court 4. Free exercise balancing test may have gone out the window – right of parents to direct education might have to be included with religious violation to get standing for exception (see Employment Division, Dep’t of Human Res. v. Smith). The state may adopt a facially neutral law without consideration of burden, except where hybrid or multiple rights are implicated (religion + parental liberty – Yoder). C. State Regulation of Nonpublic Schools 1. Mechanisms for enforcement of compulsory schooling requirement vary across states. Some require certification, some only approval and some only minimal evidence that schooling takes place. 2. Fellowship Baptist Church v. Benton (8th Cir. 1987) [44] a. Iowa had requirements that private school principals file annual reports with the local school districts listing pupils’ names, ages, names of teachers. Also required “equivalent instruction” to that in the public schools, certification, and determined that parents in Baptist schools weren’t entitled to Amish exception b. Issue – did the requirements overly burden the schools’ exercise of religion c. Court holds that religious beliefs didn’t require separation from society so that minimized burden of requirements (even though plaintiffs believed that exclusive right to educate belonged to the church). Requirement of equivalent instruction might have been too vague but Iowa later promulgated standards to define this 3. State v. Whisner (Ohio 1976) a. Ohio imposed regulations on religious schools. They required inspection, a school day with 4/5 of the time allocated to secular subjects, conformity to the Board’s policies, and community cooperation b. Issue – could Ohio regulate the religious schools to this extent without violating Free Exercise Clause? c. Court holds that these minimum standards oversteps the bounds of reasonable regulation for a religious school. The control of course times unduly burdened the free exercise of religion because it required secular subjects that couldn’t be taught religiously. Also, the schools did not have to conform to Board policies and cooperate with the community 4. Kentucky State Board v. Rudasill (Ky. 1980) [54] – plaintiffs successfully attacked rules about non-religious teaching of secular curriculum 5. City of Sumner v. First Baptist Church of Sumner (Wash. 1982) [55] – held that rules governing health, fire, and safety couldn’t be enforced if they would close down the church-operated school (WTF???) D. Home Schooling 1. Yoder jump-started the home schooling movement. Before Yoder, no states permitted home schooling to satisfy compulsory education – now, all do. Some are more stringent than others. As the reading suggest, three groups take advantage of home schooling: 1) religious; 2) anti-establishment (hippies); 3) anti-school. Increasingly, home schooling is composed of groups and other offerees. Are these networks of parents charter schools? Do they qualify for vouchers? 60% of home-schooling parents don’t have college degrees. How do parents establish credentials? What happens to the child’s socialization? 2. Home schooling hypos. 5 – Aryan Ph.D.s. How, as a school superintendent, would you respond? The public school could try to challenge the quality and content of education – here, the kids won’t be learning certain values. This raises a hint of the problem of content regulation in public schools 3. Hammons, “School at Home” – home schooling has captured a surprising amount of positive attention. It seems like home schoolers have better standardized test scores despite similar resources. It seems to thrive in two-parent families where one parent stays home 4. “Augmenting a Home-School Education” – home schooling has little accountability, so it’s weird that it’s gaining acceptance as testing standards increase

[edit] Section Three: Freedom of Belief and Expression

[edit] I. SOCIALIZATION AND INDIVIDUAL RIGHTS

A. The Socialization Dilemma 1. If America is to survive, we have to educate each new generation in American values. So who can limit the educational effort and who can determine its content? 2. Individual rights are only generally Constitutionally protected from state action, so private schools can control teacher and student behavior in ways denied by private schools. Actions of principles and teachers may be actions of the state, but if their school isn’t public, it doesn’t matter B. Religious, Political, and Moral Socialization 1. Sectarian Socialization a. Place of religion in the public schools evaporated in 1960s with prohibitions on school prayer. Some claim that secular humanism now dominates the schools. Moments of silence were required and educators called for religious material in history and literature 2. Nonsectarian Socialization a. Yudof, “Library Book Selection” – ideal education requires location of a point positioned between critical reflection and grounding in society’s contingent characteristics. Children are autonomous but are members of groups. Power of government to control education may allow it to destroy government by consent. b. PICO – is school obliged to expand the range of viewpoints when it buys or removes books from the library? Court holds that it can’t remove books just for political reasons. The quaint case of Meyer v. Nebraska, where a ban on teaching of German was struck down, now may become more relevant with banning of multilingual education. Multiculturalism – whose viewpoints must be included? c. In Mozert, a parent objected to use of a particular textbook in a class. The Sixth Circuit refused to allow parent to pick and choose textbooks that child would use and study d. West Virginia Bd. of Educ. v. Barnette (1943) [189] i. West Virginia required a flag salute and wouldn’t excuse children who didn’t want to participate. Some Jehovah’s Witnesses refused to salute ii. Issue – was the requirement of a salute in this case a violation of the Free Exercise Clause? iii. Jackson, for majority – students should not be compelled to express an opinion. It doesn’t matter what their religious views are, compelled speech is wrong. The Bill of Rights protects against this majoritarian control iv. Frankfurter, dissenting – overbroad reading of religion clause; with all this free exercise, they’ll be able to do whatever they want! An act requiring profession of religion is bad, but an act requiring political commitment is OK v. Minow – this case asks whether a school can compel freedom of the mind. Socialization is a justification for compulsory schooling, but is it permissible? After Gobitis, Justices change their mind; now, it looks like they might not come out this way. Of course schools can prescribe what is orthodox (what is the truth of American history) and test students on this. Court’s confidence that we can treat children just like adults has seemed to disappear e. Court hasn’t decided the constitutionality of hair and dress codes in schools. Students cannot be penalized for pregnancy, but what teachers do may come back to haunt them under immoral behavior provisions. The issue of homosexual teachers also hasn’t been decided C. Opening the School to Alternative Ideas 1. Student Speech a. Tinker v. Des Moines Independent Community School District (1969) [225] i. Students wore black armbands and were asked to remove them. When they didn’t, they were suspended. School authorities passed the policy two days before the wearing and it only covered armbands ii. Issue – could the school restrict the wearing of the armbands without violating the First Amendment? iii. Fortas, for majority – students in school have fundamental rights that don’t just embrace classroom hours. School wasn’t disrupted, and free speech means that risk of disturbance must be undertaken. First Amendment rights win over school’s desire to avoid discomfort iv. Minow –Tinker is most easily defined as a First Amendment case, although equal protection could apply. The Tinker test measures students’ fundamental interest against schools’ interest in minimizing disruption. Conduct that “materially disrupts” school or the learning of others is not immunized – this suggests there must be an incident. But another passage states that the record didn’t show facts that would allow officials to forecast disruption; this is a more generous test for school officials v. What is a substantial disruption? Alternatives: anything that distracts from learning in class; threatening of other students; disagreements between students? Brennan’s theory of pedagogy – schools should teach people to think by exposure to a marketplace of ideas. What’s the best way to teach value of public debate and discourse? Schools aren’t public forums. Teachers set rules for civility in the classroom and it’s awkward to lay the First Amendment on the schools. The most intriguing dimensions of Tinker – school spaces outside of the classroom may be important, and maybe there should be more room for free speech in those settings. Students’ lives are spent in schools vi. Can students have demonstrations? Does Tinker offer a framework for answering that question? Outside of school, there would be time, place, and manner restrictions. Tinker students aren’t even talking here vii. Black’s dissent – questions the notion that students have rights. He says you lose constitutional rights of expression in the schools. Meyer had to do with right of teachers to pursue professions viii. When do you become a rights-bearer? Zimring’s learning-permit theory – maybe you need practice with your rights before you start to exercise them. We don’t have one age of legal majority or even a national standard for different domains. What’s the right metaphor for the school? Police or parent? ix. Tinker discusses rights of teachers – what are their rights to free speech in the schools? Bigger or smaller? At the time of Tinker, a teacher was suspended for wearing the black armband. Not an easy case, but he finally was told that he could return. So looks like teacher’s free speech rights can be more limited b. The current standard is whether speech activities materially and substantially interfere with operation of the school, or if school officials can reasonably forecast substantial disruption c. Who can wear religious jewelry? Students? Teachers? Now, students can, but it’s not clear that teachers can d. Minow hopes that Barnette is still good law; Tinker is a very flexible standard. It should not be based on reactions, I say – that’s just viewpoint discrimination. But Tinker continues to instruct schools on students’ rights. What do they do and what should they do? Might advise school to be more restrictive of speech to avoid viewpoint problem. School administrators want decisions made before situations arise D. Uniforms 1. Schools have embraced uniforms as a means to create pride and discipline in schools. 70% of principals said that uniforms could cut down on violence. The ACLU opposes them as an infringement on freedom of expression 2. Nancy Murray – uniforms are on the wrong track. A school also may try to prevent on and off campus speech. There’s a question as to whether students have diminished First Amendment rights at home. Schools should be safe places, but we shouldn’t treat students as threats 3. Alison Myhra – when regulations are designed to inculcate good taste, then use Tinker’s substantial disruption standard. If regulation is not directed at expressive components, then a regulation is permissible if it withstands O’Brien scrutiny 4. Hypo: public school board decides to adopt mandatory school uniforms for all students and specifies what they look like – they include a woven image of the American flag in the school uniform. Prefatory paragraph explains that the uniforms are intended to advance a sense of unity, civic values, and patriotism as well as promote a sense of community, inclusion, and order within the schools a. Students object: A on grounds that his religious decision prevents him from wearing non-religious symbols, B objects because fashion is life and freedom of expression is interfered with, C objects on political grounds because wearing of woven flag implies support for American foreign policy b. What arguments can you make? A – exception granted, following quite naturally from Barnette and Wooley. B – is what you wear a fundamental liberty protected by substantive due process? This is an open question. Can the school come up with a strong enough compelling interest? The interest might be to create uniformity, stop differentiation among groups: but kids still find a way to appear different. High test scores associated with uniforms might be enough. C – the theory that Barnette stands for a kid’s freedom of the mind; but isn’t education dedicated to shaping the child’s freedom of the mind?

[edit] II. BUT WE HAVE TO RUN A SCHOOL

A. The Line of Children’s Rights Cases 1. Expansion of children’s rights a. Brown – 1954 b. In re Gault – 1967 – successful challenge to juvenile courts’ failure to give constitutional due process protections c. (-) Ginsburg – 1967 – programming restrictions on lewd and obscene language during family time upheld d. Tinker – 1969 – part of the accelerated rise of the rights of minors e. (-) McKeever – 1971 – Court split on the right to a jury in juvenile court, so no right was given f. Goss – 1975 – students have a right to a hearing before suspension. Courts aren’t “enclaves of totalitarianism” g. Planned Parenthood – 1976 – struck down restrictions on abortions. Any child “old enough to get pregnant is old enough to make the decision.” Carey – 1977 2. The tide turns. 1979 marked the beginning of a decline in the rights of minors. This historical shift has been hard for schools to deal with. Making sense of this pattern: drop children out of the consideration, cultural change, different Justices on the court a. Parham v. J.R. – 1979 – parents can commit child to a mental institution without any process. Right to process was satisfied by combination of parental decision and independent evaluation of admitting physician b. Bellotti v. Baird – 1979 – minors may be treated differently from adults and states may require parental consent or a court order to permit an abortion c. H.L. v. Madison – 1980 – parental notification could be required d. Schall v. Martin – 1984 – preventive detention of juveniles permitted; children don’t have right to freedom e. Fraser – 1986; Hazelwood – 1989; Hodgen – 1990 B. Offensive Student Speech 1. Bethel School District No. 403 v. Fraser (1986) [234] a. Fraser delivered innuendo-laden speech for school political candidate at a school assembly. The school disciplined him by suspension b. Issue – did the First Amendment prevent discipline for the giving of the speech? c. Burger, for majority – use of offensive forms of expression does not have to be permitted even though student was giving a political speech. The speech was insulting and could have been damaging to 14-year-olds, especially given the reaction of mimicry d. The dissent says no new test was required and that Fraser’s speech could have been prohibited without it. Is this case a departure from Tinker? The most charitable Tinker test – these are facts that would have led school officials to forecast 1) a substantial disruption; 2) material interference with the rights of other students. Could also have a test for vulgarity or civility. Questions of notice, etc. that were moot by the time the Court heard it, but the Court really wrote a sloppy opinion. Minow says you better notify about the punishments for violating restrictions on vulgarity C. Student Newspapers 1. Hazelwood School District v. Kuhlmeier (1988) [239] a. Principal directed that two pages of the school paper (Spectrum) containing stories on pregnancy and divorce should be removed b. Issue – did the principal’s action violate the First Amendment? c. White, for majority – first, Spectrum was not a public forum. Issues had to be reviewed by the principal, and students received grades and academic credit for participation. Thus, the regulation of the contents only had to be reasonable. Principal could decide whether to disseminate speech on potentially sensitive topics – topics that might advocate irresponsible conduct or would associate the school with any position other than neutrality on matters of political controversy d. Brennan, dissenting – First Amendment means that you can’t censor student expression that neither disrupts classwork nor invades the rights of others. Also, this censorship was not narrowly tailored e. Minow – Hazelwood is like and unlike the prior cases. It does deal with sex (Fraser) but not vulgarity. This, is a school-sponsored activity, unlike Tinker. The election in Fraser was part of a school-sponsored program, and implicitly school can have tighter control. Tinker seems to favor symbolic speech, and here pure speech seems to be disfavored. The majority just uses a reasonableness standard where the curriculum is involved f. Could look at it as just an exercise of control by a publisher – but here, government has created the forum for speech and can’t restrict speech in it. And if we didn’t allow the principal control of editorial content, doesn’t this become compelled government speech? The best you’ll get is that it’s a limited public forum and the government has to set some limitations. The school faced a potential libel suit if the parents were upset about how they were portrayed, and had to be concerned about its potential liability. Do the pregnant girls have the same need of protection? School could use a disclaimer; but that might not protect the parents of these kids that were talked about in the divorce story. Pierce and Yoder cannot be overemphasized – protect the parents g. Kids don’t have a long-term view. The school should protect these young journalists from a possible libel suit. Speech in a curricular activity can be restrained, it seems. The First Amendment still applies but decisions must only be reasonable. If activity is non-curriculum related, then we might be left with Tinker. The principal did let an article on contraception squeeze through – possible viewpoint discrimination (unknown whether this is allowed) 2. Minow’s First Amendment Test a. First Amendment does govern schools b. But greater latitude for authorities? i. Facts/reasonable forecast of: (a) Substantial disruption or material interference with school activities (b) Interference with rights of others ii. Vulgarity/civility iii. Curriculum c. Viewpoint discrimination may be allowed (inculcation of values) D. Access to School Facilities 1. Board of Educ. of Westside Community Schools v. Mergens (1990) [261] a. Equal Access Act forbade schools that maintained a limited open forum from denying use of the forums to the groups based on the content of the speech. Westside allowed school clubs but denied a request for a Christian club b. Issue – did school violate the Equal Access Act and the First Amendment? Or would permitting the club violate the Establishment Clause? c. O’Connor, for majority – limited open forum existed where noncurriculum related student groups were permitted to meet on school premises during noninstructional time. Westside had noncurriculum related student groups (chess & scuba) so it had opened the door for a Christian club d. Kennedy, concurring – it will seem like the school is endorsing the religious club by permitting it to operate. But coercion is the test, and that won’t happen here e. Marshall, concurring – the school should avoid endorsement by refusing to regard its clubs as a mechanism for defining and transmitting fundamental values f. Stevens, dissenting – Congress can’t have meant that if a school sponsors a chess club, a scuba club, or a French club, that it has to open its doors to every religious, political, or social organization, no matter how distasteful its views 2. Hypo: on-campus distribution of three underground newspapers permitted. Left-wing, right-wing, humor & arts. Students want to distribute a religious underground newspaper. Must this be permitted? 3. Hypo 2: Brookline, MA school attempts to celebrate diversity by hanging flags, purchased by students, to represent the home countries of various students (and Puerto Rico – d’oh!). Some students want to hang a flag of Palestine, while other Israeli students object and threaten to burn the flag. Gotta love diversity! Forecast disruption because student wants to burn the Palestinian flag. Can upset students have a veto power? Legal options? What’s feasible? I say take them all down 4. Columbine mosaic case – healing ritual, but you can’t put up tiles that are religious or offensive (too bad for the bloody skull tile). There’s a possible convergence between freedom of speech and the Establishment Clausex

[edit] Section Four: Discipline

[edit] I. ENFORCING RULES, DEALING WITH VIOLENCE

A. Legalization of Dispute Resolution in Public Schools 1. Courts, legislatures, and administrative bodies have contributed to the “legalization” of dispute resolution in the public schools. There’s a question whether the due process clause of the Fourteenth Amendment requires prior enactment of disciplinary rules in order to assure that students have notice. Courts have declined to apply vagueness doctrine to school rules B. Gathering Evidence 1. New Jersey v. T.L.O. (1985) [308] a. A teacher saw T.L.O. smoking and then took her to the principal. She gave her purse; he opened it and found cigarettes and rolling papers. Then he looked more closely and found marijuana and drug-dealing letters b. Issue – does the Fourth Amendment apply to searches by school officials? c. White, for majority – searches and seizures must be reasonable. Schools don’t need warrants or probable cause; instead, the search must just be reasonable. The search wasn’t the result of a “hunch”; instead, it was a common-sense conclusion and there was a reasonable suspicion 2. Vernonia School District 47J v. Acton (1995) [317] a. School district authorized random urinalysis drug testing of student-athletes b. Issue – did drug-testing regimen violate Fourth and Fourteenth Amendments? c. Scalia, for majority – student-athletes didn’t have a legitimate expectation of privacy, and subject themselves to regulation. The degree of intrusion depends on the manner in which production of the urine sample is monitored 3. Discussion problem – kids leave books and supplies in desks at each of six daily classes. When $50 turns up missing from teacher, surprise desk check turns it up. Does kid have reasonable expectation of privacy? When sharing desk with five other students? C. Zero-tolerance plans – kicking students out immediately for dangerous behaviors. Others wanted schools to draw children in, not throw them out. Zero-tolerance policy was adopted in reversal of long tradition, and teachers used it for any behaviors that disrupted class D. Adams, “Status of School Discipline and Violence” – violence and ineffective discipline are perennial problems. But harms from institutional policy are not examined. For example, possession of a gun is not a violent act – but maybe a climate of fear that forces kids to bring a firearm is a form of violence. Disciplinary means, like ISS and medicalization, have been adopted to attempt to control violence. To reduce school violence, focus resources on problem schools and cutting school size. Disciplinary procedures should be clearly specified and fair E. DeMarco, “Suspension/Expulsion” – schools have been militarized, and must get smaller. Giving control to police officers means that teachers will abandon responsibility. Fraser, “Student Discipline from the Perspective of the School Attorney” – these decisions are just made because there are so many demands on a principal’s time. Schools must maintain a safe environment. Instead of defending rights of kids, parents should focus on changing behavior

[edit] II. DUE PROCESS AND ISSUES OF PUNISHMENT

A. Procedural Due Process 1. Constitutional language – Fourteenth Amendment: “nor shall any State deprive any person of life, liberty or property without due process of law.” Fifth Amendment provides similar federal protection 2. Procedural protections are intended to secure individuals against arbitrary governmental action. This generally means a hearing conducted with a neutral fact-finder 3. Kirp – due process hearing is popularly thought more fair than any alternative mode of decisionmaking. Teachers and students both desire hearings to prevent dismissal or suspension. These are supposed to protect rights of individuals as well as generating good outcomes 4. Tribe – due process can be an intrinsic as well as an instrumental good. Intrinsic – right to interchange and consultation about one’s future; instrumental – ensuring that rules of conduct are accurately followed B. The Development of Constitutional Doctrine 1. The two-part legal test of constitutional due process a. Is there a liberty or property interest? (don’t need to worry about deprivation of life) i. Liberty interests most often have their source in the U.S. Constitution. The two most common examples are reputation and freedom from bodily restraint or intrusion (a) Reputation. Roth, Horowitz, Loudermill. If a student is suspended or expelled, or an employee is dismissed for cause, the action carries a stigma. But to raise issue of procedural due process, need more than just reputational harm (b) Freedom from bodily restraint or intrusion. Ingraham ii. Property interests typically have their source in state law. Compulsory education laws (Goss v. Lopez), state personnel procedures, contracts (Roth) b. If so, how much process is due? Supreme Court has identified three broad factors (Mathews v. Eldridge) i. The individual’s stake in avoiding an erroneous deprivation ii. The state’s interest in deciding the matter promptly and efficiently iii. The likelihood that a more elaborate hearing will produce a more accurate decision 2. Board of Regents v. Roth (1972) [327] a. Roth was hired as an assistant professor. He completed one-year term and was informed that he would not be rehired. He had no tenured rights to re-employment b. Issue – was Roth’s job a liberty interest or a property interest such that due process was required? c. Stewart, for majority – Roth did not have a constitutional right to a hearing on the decision not to rehire him where he had no tenure rights, and no right to a statement of reasons. The interest was not within the Fourteenth Amendment’s protection of liberty and property. State did not base nonrenewal on immorality, so Roth’s good name wasn’t at stake (if it were, due process would require a hearing). For property interest, individual must have legitimate claim of entitlement d. Marshall, dissenting – every citizen who applies for government job is entitled to it unless government has a reason to deny it. Procedures will eliminate some of the arbitrariness of government decisions on hiring 3. Perry v. Sindermann (1972) [333] – companion case to Roth. University in this case created a binding understanding of continued employment even though no contract covered it a. Court later retreated from this in Bishop v. Wood, which used state law (not unwritten common law) in deciding that no procedural due process applied b. Paul v. Davis – harm to reputation was not a deprivation of liberty. Due process is required where there is harm to reputation if it is accompanied by a tangible detriment 4. Goss v. Lopez (1975) [337] a. Ohio law provides for free education to all children. The Code also permits principals to suspend individuals or expel them. Expelled pupils could appeal to the Board of Education, but suspended students could not b. Issue – were suspended students denied due process of law because they weren’t given a hearing? c. White, for majority – the students plainly had a legitimate claim of entitlement to a public education. Since Ohio chose to extend that right, it could not withdraw it on grounds of misconduct “absent fundamentally fair procedures to determine whether the misconduct had occurred. The interest in a public education was a property interest and couldn’t be taken away without adherence to Due Process Clause d. At a minimum, students facing suspension must be given some kind of notice and afforded some kind of hearing. The timing and content of notice and hearing will depend on accommodation of conflicting interests. For temporary suspensions of up to 10 days, student must be given oral or written notice of the charges against him, and if he denies them, an explanation of the evidence against him and an opportunity to present his side. If presence poses an ongoing threat or continuing danger, then student may be immediately removed and hearing should follow as soon as practicable. Longer suspensions may require more formal procedures e. Powell, dissenting – this decision opens avenues for judicial intervention in operation of public schools. The deprivation of 10 days of school does not have constitutional dimensions 5. Ingraham v. Wright (1977) [346] a. Florida statute permitted corporal punishment. A couple of students were paddled and were injured fairly seriously b. Issues – did corporal punishment violate Eighth Amendment prohibition of “cruel and unusual punishment” and did Due Process Clause require prior notice and opportunity to be heard before paddling? c. Powell, for majority – corporal punishment dates back to the colonial period and may be imposed if it’s necessary for the proper education of the child and for the maintenance of group discipline. The Eighth Amendment doesn’t even cover it d. Corporal punishment implicates a constitutionally protected liberty interest, but common law remedies are adequate to give due process. School authorities may be liable in damages or, if malice is shown, criminal penalties. Corporal punishment must be reasonable, and imposing additional administrative safeguards “might reduce risk of error marginally, but would also entail a significant intrusion into an area of primary educational responsibility e. White, dissenting – damages don’t give the individual opportunity to present his side before he is deprived of liberty. A hearing is required before the deprivation 6. Questions of whether Goss requires cross-examination, counsel, rules of evidence, or a transcript C. Federal Legislation and State Statutes 1. Federal Educational Rights and Privacy Act (FERPA) provides that parents (or students over 18) have right of access to school records and a right to request amendment to the record if information is false, violates right of privacy, or violates other rights. If parents and authorities are unable to agree about amendment, student and parents are entitled to a hearing. School district may be liable under § 1983 for FERPA violation. Act requires “full and fair” hearing, including notice; right to present evidence and cross-examine witnesses; and right to an attorney or other representation 2. State statutes may also show the influence of Goss, giving lots of procedures for student to get fair hearing or meet with other officials D. Implementing Due Process Protections 1. § 1983 has been used to prod school officials into enforcing constitutional rights. In Wood v. Strickland (1975), the Court declared that only bad faith violations of “basic, unquestioned constitutional rights” would result in liability of school officials. These rights, under Harlow v. Fitzgerald, must be “clearly established statutory or constitutional rights of which a reasonable person would know” 2. The court has also restricted damage awards to compensation for “actual injury,” instead of the value of the constitutional rights (Carey v. Piphus) E. Exclusionary Disciplinary Measures 1. African-Americans constitute 16.9% of school population, but 32% of all suspensions. Whites are 66% of students and 50% of those suspended. Racially disproportionate use of exclusion policies has been challenged 2. Fuller v. Decatur Public School Board of Education School District 61 (C.D. Ill. 2000) a. Students were involved in a violent fight in the stands at a high school football game. They were later expelled for two years. Students presented statistics showing that majority of students expelled (82%) were African-American b. Issue – did the statistics prove that the board’s expulsion decision violated equal protection? c. A federal court’s role in school discipline is very limited. The law is clear that a claim of racial discrimination and violation of equal protection cannot be based upon mere statistics standing alone (Armstrong). The students failed to show that any similarly situated Caucasian students were treated more harshly 3. The Office for Civil Rights might be able to enforce Title VI even if only disparate impact is shown. But if racial or ethnic minority students are more likely to be identified as misbehaving, proving different treatment will be difficult. Maybe cultural differences between black students and white school officials make the difference, or maybe school administrators have poorly specified expectations and rules that allow bias

[edit] Section Five: Equality

[edit] I. EQUALITY AS A GOAL IN EDUCATION

A. What, if anything, should the concept of equality mean in application to schools? 1. Absent the current law, it could just be compulsory schooling – a theory that everyone is entitled to an education. Minow suggests that this is a minimal definition of equality. Equality could mean equal outcomes in: performance, progress. Or could mean equal inputs: teacher salaries, school resources. Contrast between input and output measures – are there real signs of equality that we could look to? Does equality mean same $ per capita – or more $ for students who are more expensive to teach? Does equality take meaning from a concept of sameness or from an awareness of differences? 2. Betsy Levin, “What is Equal Educational Opportunity?” The different definitions could be: a. Equal access to a minimum level of education – simply making available to the kids in each state a basic level of school services, probably via a minimum per pupil expenditure level b. Equal access to an equal education – all children have the identical programs, books, teachers, services, and facilities. The platter is there and they can take what’s on it c. Equal treatment by compensating for inequalities in background – giving disadvantaged students additional resources d. Equal educational outcomes – look to performance standards and tie resources to them 3. Levin’s standards for measuring whether the opportunity is equal a. Input standards – negatively, measuring the dollars that go into the system and refusing to allow them to be a function of per pupil property wealth. Affirmatively, requiring dollars or resources to be allocated on the basis of complete equality b. Outcome standards – negative, don’t allow academic achievement to be a function of the socioeconomic status of students. Affirmative, become concerned with general fairness or equality c. Taxpayer equity standard – equal tax rates should produce equal dollars per pupil, regardless of district’s property wealth B. Minow, “Making All the Difference” 1. Our jurisprudence differs from foreign countries in that they treat equality as simply a matter of logic. If two children are alike, they treat them alike. If they are unlike, you should treat them differently. Or you could say that a demonstration that people are different doesn’t tell you what to do at all – if you treat them as different, you may reemphasize their difference and lose the fact that they are inherently equal. We embrace an equality of inputs, while other countries emphasize an equality of outcome 2. Rowley case – girl was profoundly hearing-impaired. Her parents placed her in a mainstream school, and she was provided with an amplifier. She was good at lip reading, but only heard 2 out of 3 words that were spoken. Her parents sued under act covering students with disabilities for a specialized education plan and an interpreter. Dist. Ct. said act called for accommodation, but required least restrictive setting. So interpreter wasn’t permitted because it would make her too different. Ct. App. said that Dist. Ct. was wrong, but she didn’t need to get 100% of what was spoken. Supreme Court said not everybody can meet 100% of their potential, so her shortfall should be just the same as everyone else’s. But how to examine potential of a child? The Court concluded that Amy Rowley was progressing – she was a B student and was getting some benefit from the educational program, and didn’t deserve any further education. Minow says no; should have been some accommodation. But it’s expensive to have a full-time interpreter 3. So what’s the solution? Put the class in sign language. The theoretical idea is not to treat Amy Rowley as the problem. Don’t treat her as different from anyone else; class is about in-class interaction and student expression to the teacher as well. The problem is relationships between Amy and other students, not just the student with a disability 4. Dilemma of difference – does treating people the same make people more different? Or does treating them differently stigmatize them? Pushing disabled students in while pulling ESL students out. Can’t treat kids who don’t understand English the same – they won’t understand the class. But pulling them out will create stigma 5. What if you pull every kid out once in a while? Can you minimize the trauma? Maybe kids learn sign language and gain from that. But when is the curriculum abandoned in favor of accommodation? And what differences count? The law has recognized some – are they the right ones? Accepting this and taking it to its endpoint, every student is different. But we just use the one-size-fits-all theory for education C. Intent versus Effect Standard for Title VI and Private Rights of Action 1. Title VI, 42 U.S.C. § 2000d, prohibits discrimination on the basis of race, color, or national origin in federally aided programs 2. Lau v. Nichols (1974) [474] – school system’s failure to provide English language instruction to Chinese-speaking students denied them a meaningful opportunity to participate in educational program and violated Title VI. Discrimination was barred which had the effect even though no purposeful discrimination was present 3. Guardians Association v. Civil Service Commission (1983) [474] – Court confronts whether plaintiffs have to prove intent to discriminate under Title VI after Bakke. Five say they don’t, but three of those say that only if regulations incorporate effects standard it will be OK despite Bakke’s command (two say Title VI covers discriminatory impact) 4. Alexander v. Sandoval (2001) [475] a. Applicant for a driver’s license challenged Alabama policy of only administering the examination in English b. Issue – was there a private right of action to enforce disparate impact standards under Title VI? c. Scalia, for majority – Title VI directly reaches only instances of intentional discrimination. Regulations may validly proscribe disparate impact activities, but only under § 602 (the effectuating provision). Therefore, there was no congressional intent to create a private right of action under Title VI (despite Lau, etc.) d. Minow says this changes the definition of equality – only the DOJ can bring lawsuits under Title VI. Practically speaking, these cases aren’t going to be brought. A procedural decision with an enormous substantive impact

[edit] II. RACIAL EQUALITY

A. From Brown to Desegregation Remedies 1. Brown v. Board of Education (1954) – a culmination of three distinct stories. Slavery, culmination of opposition to race-based dehumanization, and American law (role of federal judiciary) 2. Black codes (Jim Crow) laws were passed after Civil War. They were intended to control movements of blacks who left where they had been working. Then, the Freedmen’s Bureau demanded that the federal government enforce the 13th Amendment and override state authority. The 14th Amendment passed as a response to this pressure. Questions of the scope of federal power to enforce the 14th A arose. Then 1866 and Reconstruction – but still, Jim Crow. Where schools existed, they were all racially segregative. Supreme Court held that Louisiana could not adopt a law that required racial desegregation on railroad cars – couldn’t do this because of commerce clause (1869) 3. Plessy v. Ferguson (1896) a. Louisiana had a statute that required separate railroad cars for blacks and whites. Homer Plessy, 1/8 black, tried to get on the white car and was prevented from doing so. He was arrested and challenged his conviction under the Equal Protection Clause b. The Court finds no violation of privileges and immunities, rendering that clause the nullity it remains. On the equality point, the Court says the 14th Amendment can’t have been meant to mean enforced commingling “on terms undesirable to either.” The 14th Amendment requires political, not social equality. Laws that permit segregation don’t imply inferiority – it’s just the construction people choose to place on it c. Court mentions that most common instance of state segregation is separate schools, and those were permissible in Massachusetts pre-Civil War (Roberts v. City of Boston). Boston was one of the few cities to provide public schools for blacks. Sarah Roberts’ father sued to send her to a nicer school that was closer. Shaw writes that equal protection can vary by circumstance – looks like the difference dilemma that Minow brought up. But then Mass. legislature overturned that result and banned the practice d. Harlan dissented in Plessy – after the Civil War, the South saw terrorism against blacks. The purpose of the law was discrimination 4. African-American opposition to Plessy was strong. Booker T. Washington advocated self-reliance and uplift, while W.E.B. DuBois said this was inadequate – he wanted organization and aggressive action for growth. In 1905, had a meeting and the Niagara Movement began. It adopted a program calling for voting rights and the “highest and best” of human training. It wanted to gather facts about the disparate expenditures in black versus white schools and the disparate quality of instruction. Charles Hamilton Houston and Thurgood Marshall – active in NAACP 5. American law at this point protected private property. But the composition of the Court changed, and the NAACP’s cases made their way up a. Gaines – law school applicant in Missouri. State tried to pay for him to go to out-of-state school; Court said no way b. Sipuel – Oklahoma said there weren’t enough blacks to start a law school. NAACP argued that separate but equal wasn’t possible; Court says that Oklahoma could create a separate school, which it did by roping off basement rooms in the state house c. Sweatt v. Painter – UT was restricted to white students. Texas started an expensive new university, but this wasn’t enough. The new school couldn’t meet the standards met by UT. This was the pivotal precedent for Brown – the opportunity to engage and exchange with classmates could not be duplicated 6. Brown v. Board of Education (1954) a. The NAACP then turned to elementary schools. One supporter of this policy says segregation was thought to be the evil, not racism. What was the NAACP seeking? Money for education; elimination of remaining badges; colorblindness? b. The plaintiffs sued four school districts across the country alleging that separate schools were constitutionally unequal under Equal Protection Clause c. The case initially came up in 1951. Frankfurter was worried that if Court stated the principle, its legitimacy would be called into question. Four were ready to find violation, Reed was opposed, and others were unclear. Chief Justice Vinson knew election year was coming, and so Frankfurter set the case for reargument d. Questions – what did Congress mean by 14th Amendment? How does it affect schools? What should Court do if it finds a violation? Vinson then had a heart attack. Earl Warren was appointed. Thought the case was easy given the line of precedents. Question was how to get a unanimous opinion – and he did it e. The Court found the history inconclusive. But then, stated that if schools were separate, there was no equality. Took it as a given that schools were being financially equalized. Worth highlighting: equal protection analysis; historical interpretation of 14th Amendment given up; startlingly bold statement of education as an interest. Children can’t survive without education; and where state has undertaken to provide it, it must do it on equal terms. Does Brown overrule Plessy or simply apply it? In field of public education, separate but equal has no place. Didn’t explicitly strike it down. Fn. 11 – the social science footnote 7. Then, the question of remedy. Brown II states that school boards shall implement Brown I with “all deliberate speed.” The Court remands for application of equitable principles. Defendants, then, have the burden to show reason for more time taken. So defendants could frame the remedies in the trial courts and it was an invitation to delay. Miniscule progress for 10 years. Then Civil Rights Act and the movement for it 8. Green v. Virginia – school board came up with freedom of choice plan. Blacks and whites each chose their separate schools, and NAACP challenged. Court, frustrated, says this plan doesn’t work – plans must work and work now 9. Swann v. Charlotte-Mecklenburg – after 16 years, approved use of busing. Court says burden is on the district to act and show that actions were non-discriminatory. Desegregation plans must be reasonable and effective B. End of an Era? 1. Brown’s accomplishments: it committed federal judicial responsibility to the desegregation of schools. It was the most public and dramatic recognition of social meaning of racial oppression. It allowed intent and effect to converge in the area of racial segregation of schools. It launched process of judicial supervision at trial court level. It involved both North and South in desegregation. It elevated to status of constitutional law the importance of education (although no fed. Constitutional right to education) 2. Differing theories of Brown: courts would end stigma and badges of inferiority. Pragmatic theory – green follows white. Desegregation would produce equality. Social integration was a goal in and of itself – access to diverse peers 3. Some made arguments for all-black schools or all-Hispanic schools – Derrick Bell. Separate institutions may protect black kids from low expectations of teachers, etc. Or just accept segregation and demand money (DuBois) 4. Keyes v. School District No. 1 (1973) [389] a. Case dealt with Northern segregation in Denver, which never operated under a mandated legal system of segregation. Instead, the school board intentionally forced segregation b. Reasoning behind the decision – why is Brown different? There’s a burden on the plaintiffs to show de jure segregation that was intentional. If there’s segregation in one little area, you can still cure the problem across one whole district. Maybe, however, the coincidence of class and race creates segregation – there’s no racial discrimination. But in a complex political system, decisionmakers can base decisions on race with regard to one neighborhood c. Brennan’s view – if there’s a decision about one school that’s racially motivated, that affects the entire district’s student body because of the limited number of school placements. Brennan makes it a procedural proof rule – if intentional discrimination is shown as to one school, it’s presumed to affect the entire district. Defendant can rebut this presumption. Why does Justice Powell want a more expansive view – eliminating intent of the school boards? Maybe he thinks what’s good for the South is good for the North too. But once North became the target, the policies changed and people opposed court action d. There’s no problem with plans based on class 5. Washington v. Davis (1976) [397] – can use effects as a supporting fact in determinations of discrimination, but disparate impact is not enough by itself to violate equal protection 6. Milliken v. Bradley (1974) [399] a. Detroit inner city schools were segregated as a result of de jure policies in the inner city school district. The suburbs had never had a segregative policy b. Issue – could the district court order busing into the inner city from the suburbs to cure the segregation? c. Burger, for majority – white flight is not enough to merit a remedy. An intradistrict wrong cannot be solved by an interdistrict remedy, so even if one school district created segregated districts, you can’t seek to remedy that via busing d. Minow – were boundaries drawn to reflect racial residence? Explain why Milliken can be distinguished from Keyes. Crucial distinguishing line is that actor is the local school district, and the other acting districts didn’t do anything. But was drawing of these lines discriminatory? And isn’t entire state of Michigan a defendant here? Many cities and towns predate the state, even though they become creatures of state. Function of schools was traditionally a function of local governments. Could be a much more simple way to describe state’s role – it’s setting content standards, establishing financial equalization, and controlling federal funds 7. Milliken II – could you order a resource allocation from Michigan for the purpose of improving Detroit schools? Remedy can reach beyond the district if you’re not talking about moving kids around 8. Missouri v. Jenkins – District Court raised KC taxes 100% to create better resource allocation. But court could issue an order to the taxing body directing it to levy a tax. What’s the distinction? Legislature would have ability to tailor the tax to the broad view. Probably wouldn’t come out the same way now because of Eleventh Amendment cases 9. Dowell, Spangler, Jenkins – school boards must create unitary status, and then the burden of Brown is removed. When does a remedy end? In many cities, there were judicial orders mandating desegregation. Plaintiffs could still show that desegregation was not increasing, but Court approved termination of judicial supervision. Schools are creatures of local control and it’s time to return them. A reasonable time has been spent on a remedy. The harm justifying the remedy was the dual school system, and now there’s a unitary system. Fulfillment can be demonstrated by proving good faith compliance with the decree (intent not results), elimination of vestiges of past discrimination. Just comply with initial order, remedy past, and you’re home free 10. Separate is inherently unequal. Toss that out. Stigma. Gone too. Green follows white. May still be around (if resource allocation has to be achieved). Integration disappears as a goal. Residential segregation rears its head. How can a plaintiff in an ongoing case achieve a remedy for new segregation? Put on new evidence of discriminatory intent 11. Brown has made de jure segregation impermissible and changed the discussion about what education stands for. So maybe it’s not a total failure. May lead us to more fundamental questions of class, money, etc. Also aided the civil rights movement and the country changed C. Current Issues 1. Limits on Remedies Other Than Pupil Reassignment a. Missouri v. Jenkins (1995) [430] i. District Court took control of Kansas City school district’s desegregation in 1977 after finding intradistrict violation. It ordered capital improvements, magnet schools, and salary assistance even though the condition of the facilities might not have been traceable to unlawful segregation ii. Issues – had the Kansas City school district achieved unitary status and did the District Court exceed its constitutional authority when it granted salary increases? iii. Rehnquist, for majority – District Court’s program sought to create a school district that was equal to or superior to surrounding school districts in order to create “desegregative attractiveness.” But the orders had to serve as proper means to the end of restoring the victims of discriminatory conduct to the position they would have been in the absence of that conduct and their eventual restoration of “state and local authorities to control of the school system.” This system of administration used academic goals (higher test scores) that were unrelated to desegregation iv. O’Connor, concurring – where segregative effects were contained within district boundaries, there was no justification for an interdistrict remedy. She says it’s been 18 years since the lawsuit already – but Ginsburg, dissenting, says there’s only been court control of the situation for 10 years v. Thomas, concurring – a racial imbalance does not itself establish a violation of the Constitution. Thomas gives a very distinctive spin to the question; he says integration doesn’t matter. All-black schools aren’t inferior, and the sociology behind Brown is faulty. The legislative official statement of segregation was the problem, and when the message is not official, it becomes a new kind of discrimination that courts shouldn’t deal with. The issue isn’t really race, it’s resources. Is there a reallocation of the power behind decisionmaking? If there’s a majority-minority school system, and majority runs everything, that’s a problem 2. Limits on Voluntary Actions by School Boards to Reduce Segregation a. Washington v. Seattle School District No. 1 (1982) [444] i. Seattle board decided to eliminate racial imbalance via extensive use of busing and mandatory reassignments. Seattle residents then managed to pass a statewide initiative that forbade racial busing and redefinition of attendance zones ii. Issue – did the initiative violate the Equal Protection Clause? iii. Blackmun, for majority – this measure used the racial nature of the issue to define and constrain governmental decisionmaking. The provision may be neutral on its face, but was effectively drawn for racial purpose. This measure also interferes with school boards’ power, lodging authority and a new and remote level of government iv. Powell, dissenting – this is an intrusion into the structure of state government. The state created these subdivisions and it has latitude to change them b. Crawford v. Board of Education of Los Angeles (1982) [447] – permitted a similar initiative, but one that only prevented the state courts from using busing to remedy state-created rights 3. Affirmative Action a. In Bakke, Powell sets the minimum that other four Justices agreed to. The case struck down, in the absence of violations, racial set-asides. Dicta in Powell’s opinion, however, recognized the value of diversity as an educational purpose, saying that colleges can use race as a plus factor in admissions. All affirmative action cases have been decided in the shadow of this opinion. In Hopwood, the Fifth Circuit struck down an admissions policy to UT Law that used diversity as a factor on the basis that diversity is not a compelling state interest b. Wessman v. Gittens (1st Cir. 1998) [449] i. Boston operates examination schools that require standardized tests for admission. Half of seats are allocated on the basis of score, but the rest are assigned on the basis of flexible racial guidelines. The school required percentages of allocation ii. Issue – did the school’s admissions policy violate the Fourteenth Amendment? iii. The committee sought to argue that diversity was a compelling interest justifying these race-based classifications. Under a strict merit-selection approach, blacks and Hispanics would have made up 15-20% of admissions, so the need wasn’t that acute. Also, the school couldn’t show a vestige of past discrimination iv. Dissent – the school district demonstrated a strong basis of evidence for a conclusion that the effects on achievement were linked to past discrimination. There was a long history of discriminatory acts by the school district c. Texas has instituted a 10% plan to shake up admissions by a criteria other than race. But this plan works because the schools are racially segregated, and it’s predicated on race. Does 10% plan work for graduate or secondary education? d. Grutter v. Bollinger (tbd 2003) i. The case involves the question of undergrad admissions vs. law school admissions. The undergrad adds points for certain characteristics (band, alumni child, in-state, race). The law school, meanwhile, uses race as a plus factor and argues that racial diversity is an integral part of the curricular program. Based on the critical mass necessary to support student participation, admissions process has in mind a range of numbers of admits. The Sixth Circuit permitted the law school program; then the cases were consolidated and are before the Supreme Court. The opinions and arguments in the Court of Appeals were unbelievably nasty ii. Questions raised: (a) Is diversity a compelling state interest that warrants classification based on race, and are these programs narrowly tailored? (b) Is the history of intentional discrimination relevant to this case at all? (c) Can a university adopt an admissions criteria that addresses societal discrimination? (d) Are schools different from other institutions with regard to these situations? (e) Can the Court decide what the functions of schools are? What does compelling mean? Does any of this relate to K-12 education? iii. Minow thinks courts aren’t good at deciding the purposes of other entities. But they can hear expert testimony and view statistics. So they can just decide them like they do other issues – resolving and adjudicating based on factual and expert views. What should be compelling? Let’s break out of ways of thinking about doctrine and tests. This isn’t doctrine as science – does it move you? How important is all this stuff? 4. State Innovation in the Face of a Declining Federal Commitment a. Sheff v. O’Neill (Conn. 1996) i. The Connecticut constitution contained provisions providing for free education and equal protection. Integration was dropping and the plaintiffs challenged the failure to integrate ii. Issue – did the racial and ethnic isolation violate the Connecticut constitution? iii. The Connecticut constitution contains an affirmative obligation to implement the fundamental right to education. The constitutional violations came from the state’s knowledge of the isolation and the failure to fix the school districts. Integration, says the court, would have positive benefits for kids and society as a whole iv. Dissent – this is a mandate to provide a remedy for de facto segregation, and the legislature and executive won’t be able to comply with it because there’s no principle articulated for fixing it. This decision invalidates Connecticut’s municipality-based school system v. Question – if Connecticut acts to fix this, will it be violating the federal Constitution? vi. Minow says this case may not be totally disappointing – and shows how state courts are central when it comes to equal education rights 5. Federal Legislation Prohibiting Discrimination on the Basis of Race a. Title IV, § 2000c-6 – parents can petition the United States to sue if their kid was deprived of equal protection by a school board or if they were denied admission to a public college because of race b. Title VI – “no person shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The application of this is institution-wide 6. Derrick Bell, “And We Are Not Saved” – the Court should have focused on giving blacks money and control, instead of putting them in white schools 7. Belk v. Charlotte-Mecklenburg Board of Education (4th Cir. 2001) [s222] – found that Charlotte had achieved unitary status and could use race in admissions to magnet schools when they were intended to end segregation

[edit] III. IMMIGRANTS AND NON-CITIZENS

A. Minow’s flashpoint issues: parents, information about the system, payment for the education, placement, how to teach them, assimilation, stigma, trauma B. The Dilemmas of Americanization 1. Olsen, “Made in America” – Americanization has three pieces: academic marginalization and separation, requirements to become English-speaking (despite the odds) and drop native languages, and insistent pressures to take one’s place in racial hierarchy. To become American, you must lose your identity but also must accept your place at the bottom. English is the means for all this 2. Plyler v. Doe (1982) [670] a. Texas revised its education laws to prevent use of state funds for the education of children who weren’t legal immigrants and also permitted school districts to deny admission to these kids b. Issue – did the legislative denial of education for undocumented immigrants violate the Equal Protection Clause? c. Brennan, for majority – the Fourteenth Amendment applies to everyone, even “illegal aliens.” People get equal protection because they’re in a state’s territorial jurisdiction – and Yick Wo says due process and equal protection are coextensive. Minow says the federal government is in charge of immigrants, however, so maybe states don’t have jurisdiction d. On the second question, the Court says the state should not impose disabilities on these minor children because it does not “comport with fundamental conceptions of justice.” Is this a class of people that deserves intense protection under the Equal Protection Clause? Court says no – despite discrete and insular minority status, and deprivation because they can’t vote. But their class is mutable; with proper paperwork, they become legal immigrants. Children become adults, so that’s mutable too. Minow says there’s a good argument that kids of undocumented immigrants are an unprotected class. Due process argument as well: deprivation of life, liberty, or property e. The Court doesn’t find that education is a fundamental interest. Yet, the Court says education has a fundamental role – but Court can’t raise education to a fundamental right or else we’d be in the court all the time f. “In light of these countervailing interests,” the statute can’t be rational because the state can’t show a “substantial” goal. The Court seems to use a rationality test with real bite – remember Moreno and the hippies? There are lots of concurrences; the Justices can’t even agree on what level of scrutiny to use. The reasons that Texas might want to have this law – deterrence, avoid giving benefits to those who didn’t pay for them. Would a state need numbers for how many immigrants come for a kid’s education? Looks that way, so if Minow ran a state, she would come in with factual evidence g. Rehnquist, dissenting – this is an “unabashedly result-oriented approach.” You can’t get any sort of test out of this, because it’s rational for a state to decide that it doesn’t want to provide benefits for people who are here illegally. If you have no right to be there, Texas denies you government services, and that is permissible. Minow says that the majority’s failure to explain this case properly leaves the door open for the dissent to make its strong points about political decisionmaking h. Closing thoughts on Plyler – doesn’t appear at all in treatment of the detainees. No funny business about legality, but that spirit isn’t guiding the Administration. Overlapping classes of undocumented individuals and immigrants – fear and otherness around current security issues will raise another dimension 3. Proposition 187 – California mandate that public schools cannot admit children who are not citizens. The schools are to kick the kids out and send them to their home countries in ninety days from date of notice. Prop. 187 was a cliffhanger. Equal protection or due process arguments would have lost out despite Plyler – but see Romer v. Evans. But preemption created grounds to strike down deprivation portions of the proposition 4. League of United Latin American Citizens (LULAC) v. Wilson (C.D. Cal. 1995) [681] a. Plaintiffs sued alleging that Proposition 187 was preempted by federal law b. The court decides that the federal government has exclusive control over immigration. Therefore, the classification, notification and reporting provisions of the initiative were preempted by this federal control. The denial of the benefits conflicted with the Court’s decision in Plyler and so was also preempted 5. In postsecondary school, do Plyler/LULAC apply? Whatever’s fundamental about education seems to stop before you get to college. Postsecondary education allows choice and freedom, so you’re not really an innocent political group. No state has guaranteed a right to post-secondary education 6. Suarez-Orozco, “Perspectives on Immigration” – barriers to academic success are access to public education (fears of enrollment), access to comprehensible instruction (ESL is underutilized), language and handicapping conditions, access to extracurriculars, and documentation of previous educational experience. School choice won’t fix these problems and kids can even be disadvantaged by public school choice. LEP (limited-English-proficient) students need affirmative steps to address their linguistic needs 7. “Newcomer” schools – specialized schools with extra resources created for immigrants. Is there a separate but equal problem? Perhaps if the schools are better for the kids than normal schools would be, there’s no problem – but schools may not be better, and may become permanent instead of transitional. Could you ever have these schools here, given Brown? Thomas, Fordice might suggest yes 8. Reporting of foreign students to the INS is required by universities and colleges. There’s no obligation to report undocumented students – will there soon be? Does state have obligation to educate young detainees? If a minor is in federal custody, is there an obligation to provide education? It would seem that way

[edit] IV. LANGUAGE

A. Disagreements: what works? Why? What are we trying to accomplish? B. Purposes – acculturation into American way of life; learning English; giving children equal educational benefit; social skills; helping the economy; making students self-sufficient; promote pride in the home nation. This is a huge issue in other countries – indigenous people have languages, Switzerland requires knowledge of three languages. Children who have fluency in more languages can abstract out from one world that we’re all used to C. Legal Responses 1. The Office for Civil Rights (OCR) extended the nondiscrimination provisions of Title VI to NEP and LEP students. It required classification of a student’s primary language and adoption of programs that helped the student. These programs could be transitional bilingual education, bilingual-bicultural education, or multilingual-multicultural education 2. Congress also passed the Equal Educational Opportunity Act, which punished failures to take appropriate action to overcome language barriers and triggered when the school’s program had the effect of excluding linguistic minority students, regardless of whether officials acted with discriminatory intent 3. Lau wasn’t assigned – it’s probably not good law anymore. Lau interpreted Civil Rights Act’s Title VI in light of claim that failure to accommodate Chinese kids was impermissible. Chinese kids were denied a meaningful opportunity to participate in the educational program 4. Is bilingual education required? Lau made it look like it was statutorily required, but now, we’re not sure. It’s also hard to meet this requirement. Students come from many different places – NYC has 160 different languages represented in the school system. Immersion becomes the preferred strategy because that’s all you can do D. Castaneda v. Pickard (5th Cir. 1981) [642] 1. The Raymondville School District operated a bilingual education program for all students, assessing their ability when they entered school. After the third grade, they did not offer a bilingual education program – instead, they just used Spanish-speaking teacher aides and provided assistance via a learning center operated at each school. The plaintiffs sued alleging that these educational programs were educationally deficient and that the district violated Title VI and the EEOA 2. Issue – did the Raymondville program fail to develop students such that the Acts were violated? 3. The programs were not deficient such that they violated Title VI. HEW had developed the Lau guidelines as a suggested compliance plan (discriminatory impact of plans is prohibited), but they should not be given great weight because Raymondville wasn’t intentionally discriminating against Mexican-American students (as newly required by Bakke). To determine the responsibility, the court had to: examine carefully the evidence of the soundness of the educational theory, see whether programs and practices were reasonably calculated to implement that theory, and determine whether the program failed to overcome language barriers 4. The programs had not failed to meet their obligations. The district could emphasize English and sacrifice other elements of the curriculum before the third grade. However, the district was required to improve teachers’ ability to teach bilingually and to use standardized Spanish-language achievement tests E. Amselle, “Bye-bye to Bilingual Ed?” – scholars have clashed about whether English-only instruction is harmful or not. Bill Bennett says the goal of any method should be fluency in English, but some say that students may benefit more from learning in their own languages F. Rossell and Baker, “The Educational Effectiveness of Bilingual Education” – educational alternatives are submersion (sink-or-swim, placing LEP students in regular English classes with English-speaking children); English as a Second Language (ESL) instruction for one to two periods a day, pulling kids out of regular classes; and structured immersion, where the instruction is in the language being learned but the teacher speaks the kids’ language as well. In transitional bilingual education (TBE), students are taught to read and write in the native tongue, and subject matter is also taught in the native tongue. The second language is taught for a small portion of the day, until progress is made and English teaching increases. Bilingual maintenance, a variation, also keeps kids learning their original language as well. Results are mixed on the effectiveness of TBE – this article says it pretty much does nothing G. Greene, “A Meta-Analysis of the Effectiveness of Bilingual Education” – Rossell and Baker’s studies don’t even meet their own criteria, and native language instruction is useful H. Moran, “Bilingual Education, Immigration, and the Culture of Disinvestment” – the new federalism, delegating discretion to state and local education agencies to fashion instructional programs for NEP and LEP students, doesn’t necessarily lead to deterioration of classroom instruction for these kids. Local districts may be better able to assess parental values about English acquisition and native language fluency. But in California and New York, this delegation has not mitigated ideological conflict over the role of English nor enhanced experimentation. These controversies have taken on racial overtones, and there has been little commitment to investing substantial resources in education of immigrant children I. Lew, “Bilingual Education and Resegregation” – state school systems have difficulty promoting bilingual education programs while maintaining racially integrated classrooms. The segregation of bilingual children occurs in-school as opposed to in-district, but can be equally as harmful. The best way to combat this is to remain committed to both; means could be to maximize and monitor integration time and involve students in the process via student councils J. California passed Prop. 227, which attempted to forbid bilingual education. However, the schools still give waivers to students who desire instruction in native languages. Meanwhile, Massachusetts voted to end its current approach to bilingual education K. Minow – if you imagine a legal challenge disturbing a state law that forbids bilingual education, you would have to use Plyler and Romer – rationality with real bite. This law could also take away academic freedom, because courts and legislatures perhaps should not second-guess individuals who know better. In Meyer v. Nebraska, a ban on instruction in German was struck down as a violation of teachers’ rights and parents’ guiding of children’s education. Some parents really want this option of bilingual education, so cutting down on it might be unconstitutional. This is a policy issue totally up for grabs in the states L. This topic offers a lens onto the entire subject of law & education. People have turned to many different avenues of law to affect which educational method is utilized. Federal Constitution, state statutes, state referendum, teacher certification; every means has been tried. Question: why is this so contested? Why does this issue generate such enormous debate? Maybe a threat to English from Spanish; a question of resource allocation; backlash against immigration

[edit] V. GENDER

A. Issues of Gender 1. The case method allegedly addresses 4 skills: diagnosis, analysis and interpretation, generation of policy options, and making judgments. Garvin says law school spends most of its time on #2, while KSG focuses on #3. HBS spends its time on #4 2. Benefits of single-sex education: girls gain higher self-esteem, academic (but not social) satisfaction is higher, and polarization of subject preferences (science and math) becomes less strong. Researches know far less about boys in single-sex education 3. Littleton, “Reconstructing Sexual Equality” – in Reed v. Reed, the Court finally started to break down separate sexual spheres ideology. This breakdown has meant a rejection of only some natural differences between sexes. Feminists have two approaches to equality – a symmetrical model and an asymmetrical one a. The symmetrical vision splits into 1) assimilation – the notion that women are or could be just like men. The most popular version for the courts; and 2) androgyny – pick a mean between women and men and treat them equally there. Difficult to conceive of because it would require massive social change b. The asymmetrical approaches include 1) special rights model – affirming differences and giving special rights for special needs of women; 2) accommodation – using differential treatment of biological differences and equal treatment for social difference; 3) acceptance – recognizing and attempting to deal with biological and social differences (Gilligan); and 4) empowerment – claiming that subordination of women to men has designed the differences between sexes (MacKinnon) 4. AAUW, “How Schools Shortchange Girls” – instructional materials contain sex bias via exclusion, subordination, stereotyping, and isolation of women. Males also receive more teacher attention than do females; they demand more attention and teachers solicit their opinions more. Girls would also benefit from more connective learning styles 5. Sommers, “The War Against Boys” – the AAUW report is misdirected. Boys are resented, even though girls outshine boys in school. Boys are held back, drop out, and don’t get into college. Gilligan’s assertions about different voices have been shown to be untrue. The AAUW study was also politics dressed up as science B. The Search for a Constitutional Standard 1. Reed v. Reed (1971) – applied a standard of review less differential to the state than mere rationality. In Frontiero v. Richardson (1973), a plurality of the Court was willing to equate gender with race for the purposes of equal protection. The Court announced its presently applied standard in Craig v. Boren (1976), saying that “classifications by gender must serve important governmental objectives and be substantially related to achievement of those objectives.” This is a form of intermediate scrutiny 2. Frontiero argued that sex and race were immutable and that women faced similar discrimination to minorities. Rossi disagrees, saying that women are evenly distributed and also are a numerical majority 3. Can separate ever be equal? Maybe the resources aren’t the same. But also, the prestige and peer interaction in the school might not be the same. How can a girls’ school rival a legendary and historic boys school? Offer the same classes, but that might not change attitudes 4. United States v. Virginia (1996) [556] a. VMI was a single-sex institution designed to produce “citizen-soldiers” via an “adversative method.” Virginia attempted to keep VMI single-sex by creating an alternative leadership program (VWIL) for women at Mary Baldwin that emphasized teamwork. Some women, however, still sought to attend VMI b. Issue – did the creation of the alternative program meet Virginia’s Fourteenth Amendment obligations? c. Ginsburg, for majority – VMI would be affected by coeducation, but this was not an “exceedingly persuasive justification” for the gender classification. Single-sex education affords pedagogical benefits, but VMI wasn’t established to take advantage of these benefits. If some women would benefit from VMI, the problems that their presence would introduce are not enough to justify the exclusion. VWIL also was not VMI’s equal in resources or history d. Rehnquist, concurring – Virginia does not win because VWIL is distinctly inferior, just as in Sweatt e. Scalia, dissenting – VMI was a great tradition and introduction of women will destroy its adversative method f. Minow – when asking what a comparable opportunity is and whether it must always be offered, the best authority is VMI and Hogan. Virginia did establish another school, but that wasn’t good enough. This is supposed to be intermediate scrutiny, but “exceedingly persuasive justification” would seem to come right up to the edge of strict scrutiny. This case doesn’t really answer whether a comparable opportunity can be provided because it doesn’t answer separate but equal. VMI at least signals that there will be a searching inquiry. Can the comparable alternatives to single-sex classes be coed classes? You could use either symmetrical and asymmetrical concepts of equality. The question is what the single-sex class is trying to remedy C. The Legislative Framework 1. After the No Child Left Behind Act, the DOE announced its intent to expand educators’ flexibility to establish single-sex classes and schools. What legal constraints should guide new regulations? Why did they do this? The Leave No Child Behind Act told the DOE to look into the law and issue its current understanding. There have been many comments submitted but we don’t know if the agency is gearing up or not – if it is, it must issue proposed regulations for notice-and-comment. The agency did try to figure out its latitude by asking for comments on the Supreme Court’s constitutional interpretation. It asked whether the school district should explain the benefits of single-sex education; whether co-ed alternatives are comparable; whether any classes should never be single sex; whether single-sex opportunities should be voluntary 2. Title IX (20 U.S.C. § 1681) – “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal assistance” a. Lots of exceptions – religious, military training, or traditionally single-sex schools, Boys State/Girls State, father/son and mother/daughter activities (if you have each) b. HEW (now DOE) regulations provide further exceptions. Minow says that agencies are the workhorse of the government, and do things that each of the three branches can do. Did Congress give the agency the power to legislate like this? The DOE exceptions are: 1) gender separation in bodily contact in PE activities; 2) separate classes when teaching sexuality; 3) exceptions drawn in favor of affirmative action or remedial action; 4) single-sex instruction in a classroom or school if a comparable opportunity is given to members of the opposite sex – a single-sex school for them too c. Also, equal athletic opportunity shall be provided for members of both sexes. Equalization at the college level has been of special concern. Schools are required to disclose participation rates and financial support. Title IX has led to a scaling down of opportunities for men, not a scaling up of opportunities for women. In its most practical form, many liberal arts colleges have cut football. Why should they spend the same amount if there’s a differential level of interest? Does a school that offers a sport for men have to have it for women? This statute has also tended to push women’s athletics into the mold of men’s athletics – competitive, not just enjoying your body, etc. Should the teams just be coed and based on ability? (I think this would be crazy) 3. Sexual Harassment a. Alexander v. Sandoval may affect the bringing of all of these cases (I think it definitely forecloses Title IX private rights of action) b. The Court recognized a private right of action under Title IX in Cannon v. University of Chicago (1970) for both employment and education. Franklin v. Gwinnett County Schools (1992) held that a student could sue for money damages based on sexual coercion and abuse by a male teacher c. Gebser v. Lago Vista Independent School District (1998) [598] i. Gebser, a high schooler, became her teacher Waldrop’s sexual partner. Other students had complained about Waldrop’s comments; the principal talked to the parents at a meeting but didn’t tell the superintendent. The school didn’t have a formal anti-harassment policy or a grievance procedure. Waldrop and Gebser were caught having sex and her mom sued the school district ii. Issue – could the school district be held liable in damages under Title IX’s implied right of action? iii. O’Connor, for majority – damages cannot be recovered unless an official of the school district who has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct. Here, the judicially created nature of the remedy gave the court latitude to create a remedy. Where recipients were unaware of discrimination, the focus on “protecting” individuals from harassment was not as strong. The authority’s failure to respond must be an official decision not to remedy the violation iv. Stevens, dissenting – the Court disregards agency law; Waldrop was aided in committing the tort by the existence of the agency. Title IX was meant to provide effective protection, and this remedy won’t do it d. Davis v. Monroe County Board of Education (1999) [608] i. The plaintiff’s daughter was allegedly the victim of a prolonged pattern of sexual harassment by a fellow fifth-grade student. The mother reported the incidents, as did the child. Despite the principal’s knowledge, the assaults continued for four months ii. Issue – could the school be liable for damages because of student-on-student discrimination? iii. O’Connor, for majority – the school’s decision to remain idle in the face of student-on-student harassment was its own misconduct. The school could still be liable where they were deliberately indifferent to sexual harassment by students, of which they had actual knowledge, that was so severe, pervasive, and objectively offensive that it deprived the victims of access to educational opportunities or benefits. Peer harassment is less likely to result in liability than teacher harassment, however iv. Kennedy – the school’s failure to respond was not discrimination by the school. The discrimination had to be controlled by the school; also, it’s hard to say this was harassment and that it denied Davis the benefits of an education just because she got depressed e. In light of these two opinions, lower courts are confused about how aggressive to be. In Nabozny, the Seventh Circuit extends the principle to same-sex harassment under the Constitution, holding that equal protection was denied because a boy is being treated unequally. Some kids are really afraid to go to school because of badgering about sexuality – is litigation the best way to change this? Do all students have the right to avoid abuse? Sure, but no federal law protects people from jeopardy, so you’ve got to use state tort law and that law provides immunities (what about rational basis?). Minow’s worried that these command-and-control devices generate rigid rules so that school administrators can just say they did what was necessary

[edit] VI. DISABILITY AND THE EMERGENCE OF SPECIAL EDUCATION RIGHTS

A. Establishing a Legal Conception of Equality for the Disabled 1. The strict rules against sexual harassment in schools in the previous section expose the problem of crude legalization of schools. This has also occurred with special education – over 3,000 cases filed under the federal statute. This area of education law is tied up with general societal treatment of people with disabilities. At first, kids with disabilities were exempted from compulsory education or even forbidden from coming to school 2. Criticisms of treatment as of 1970: the severely handicapped, who are generally classified as ineducable, need more even when they are included in schools. The mildly handicapped, meanwhile, are misclassified because of failed data or disputes over data gathering. Minority children are disproportionately found to be mildly handicapped (up to 250% more likely). The programs appear educationally ineffective, and too readily become permanent 3. Minow – after Brown, some victories for kids with disabilities were negotiated but there weren’t any full judicial victories 4. Mills v. Board of Education (D.D.C. 1972) [688] a. The District of Columbia did not provide publicly supported education for 18,000 of 22,000 “exceptional children” and also excluded them or transferred them without due process. The DC Code required instruction in public or private school unless a kid was totally unable to profit from specialized education b. Issue – did the DC Code and the Constitution require these children to be provided with adequate public education or placement in a private school? c. In Hobson v. Hansen, Skelly Wright held that the Constitution provided a right of “equal educational opportunity.” The Constitution and the DC code required a publicly-supported education for these “exceptional” children, and the failure to do so could not be justified by the claim that there were insufficient funds. The District had to provide an education suitable to all of these children 5. Pennsylvania Association for Retarded Children (PARC) v. Commonwealth (E.D.Pa. 1972) [692] – required Pennsylvania to provide education and presumed that placement in a public school class was better than in a specialized class and that a specialized class was better than nothing. The first “right to education” case for the disabled B. The Federal Statutory Framework 1. The Rehabilitation Act, § 503, is the analog of the 1964 Civil Rights Act. It protects against discrimination “solely by reason of … handicap.” Federal regulations require “an appropriate education” and define that as one “designed to meet individual education needs of handicapped persons as adequately as the needs of nonhandicapped persons (34 C.F.R. § 104.33(b)(1)(i)) 2. Congress has specified a broad set of rights for disabled students via the Individuals with Disabilities Education Act (IDEA; previously named the Education for All Handicapped Children Act or EAHCA). This legislation codifies Mills and PARC but is also much more specific. IDEA is the last still-standing statutory creation of rights that doesn’t have a monetary cap. Many have tried to shift students onto the disability provision rather than putting them on Medicaid 3. Minow – elements of the statute that make it interesting: a. FAEC – free appropriate education required. A zero-reject principle; no exclusion. This principle has enormous consequences for school discipline. Suspension/expulsion proceedings are far more elaborate than required in Goss or Lopez b. Non-discriminatory evaluations. Students are entitled to fair evaluations of whether they have a disability. If they do, the school has to come up with a method for identification, evaluation using multi-disciplinary teams (cognitive, behavioral, physical) including the parents’ input, and parents can secure outside evaluations c. Appropriate education – team assessing a student must develop an IEP (individual education plan). This plan is to be tailored to the student and is to grow from the individualized assessment. Identify outcomes, set up a procedure for review of student progress. This review could trigger creation of a new IEP d. Least-restrictive environment (LRE). It’s the pretty radical idea that students with disabilities have a right to be educated a