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 public 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 as close as possible to the mainstream classroom. This language comes from the civil commitment area. The basic idea of inclusion – disabled students go to the same classroom as non-disabled double would go to. If you need an aide, you get one; if you need to be pulled out for special instruction, fine. Then the next best option – use the same building e. Access to the general curriculum. Conception is defined by the idea that even someone totally separated should get the same curriculum as everybody else. What does this mean for kids with severe cognitive impairments, for whom learning means tying their shoes or using the bathroom? f. Procedural due process. This stars with formulation of IEPs, continuing with parents’ ability to appeal placement in hearings up to the state level and then challenge in federal court g. Parental and student participation 4. The IDEA defines a learning disability as “a disorder in one or more of the basic psychological processes” involved in learning a. This definition is exclusionary, used when we cannot explain poor performance on the basis of low IQ or non-neurological factors. There’s a great deal of misclassification, but since both EMR (educable mentally retarded) and the learning disabled receive individual plans, there are no real consequences – just stigma 5. Originally, was thought that federal government would fund a lot of IDEA, but now it looks like an unfunded mandate 6. What kind of program is this? It seems like the opposite of language cases because of individualization; could be like affirmative action, giving special accommodations to those who suffered past “disability.” It could also be analogized to civil commitment, where the government gets involved in the placement of people in mental facilities. In the context of civil commitment, because there’s a stigma and a possible loss of freedom, due process attaches – even giving a right to treatment. Confinement against someone’s wishes is such a jeopardy that a benefit must be returned. Minow would suggest that this is a mirror image; diagnosis with a disability can be stigmatizing, and if a different, more restrictive placement occurs then the student has to get a benefit out of it 7. This scheme also gives experts an enormous role because they do the gatekeeping and the naming. They’re also deeply involved in naming the remedy. Part of the valuation is to identify students’ strengths as well as their weaknesses. Some parents push for classification as LD because of all the cash, the benefits, and an explanation for why they’re not doing well. Parents are the linchpin of special ed – if they’re not present, or if parent advocacy group isn’t filling in for them, then special ed may fail 8. Board of Education v. Rowley (1982) [704] a. Amy Rowley had minimal residual hearing and could read lips. Amy’s IEP provided that she would be educated in a regular classroom and given tutoring. Her parents also wanted a permanent interpreter because she would miss about 60% of what was said. They sued for the change b. Issue – did the IDEA require the provision of an interpreter so that Amy could receive a “free appropriate public education”? c. Rehnquist, for majority – the statute doesn’t prescribe the level of education to be accorded. Therefore, the Act only imposes the obligation that handicapped children “receive some form of special education.” The Act does not require that the services maximize each child’s potential “commensurate with the opportunity provided other children.” The IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Amy already performs better than the average kid in her class, so she doesn’t need an interpreter d. White, dissenting – the Act details specialized instruction, and Amy needs to be given an equal opportunity to learn if that is reasonably possible. The Act gives a right to a “full educational opportunity” 9. “Medical services” are not required under the Act. The DOE passed a regulation that read this exception narrowly – a nurse or layperson doesn’t provide “medical services.” The Court has been more strict in this regard – schools had to provide catheterization (Tatro) and continuous assistance to a student who was dependent on a ventilator to breathe (Cedar Rapids) 10. Florence County School District Four v. Carter (1993) [712] – the Court addressed the question of whether parents who send their kids to private school can obtain reimbursement from the responsible public agency. It found that the parents could be reimbursed as long as the school provided a proper education. The public school could avoid this burden by putting together an appropriate IEP 11. The IDEA, after Smith v. Robinson (1984) [712], is the exclusive avenue for raising claims about the provision of “free appropriate public education” for disabled children. Plaintiffs can’t use the Rehabilitation Act or § 1983 (although the use of § 1983 is still debated) C. The Inclusion Debate 1. Minow – special education has an integrative impulse. Minnesota believes in including everybody – kids in comas, etc. Reason: it will improve the student’s ability to engage socially. This was one of the motivating concepts behind special ed, but 1997 Amendments shifted importance to access to instruction 2. Underidentification is not as scrutinized, but that’s also a problem. Classroom management styles can have an impact on who gets identified 3. Dupre, “Disability and the Public Schools: The Case Against ‘Inclusion’” – the racial model should not be used in education of disabled kids. Many children have overwhelming learning problems that don’t just disappear when they are included in regular classroom communities. The ultimate result of the desegregation movement was to confuse the goal of legal equality and group success 4. Gartner and Lipsky, “Beyond Special Education: Toward a Quality System for All Students” – kids in special education environments suffer from small expectations for behavioral and academic performance. The unitary system requires adaptations in society and in education. The “least restrictive environment” concept does not cover the services and supports that people need to succeed. Common schooling requires full integration 5. Honig v. Doe (1988) [725] a. Doe’s IEP identified him as a student who had difficulty controlling his impulses and anger. He assaulted another student at his developmental school and the school tried to expel him. Doe sued the school trying to force resumption of his placement in the developmental school. The IDEA contains a “stay-put provision” that requires a school to keep a kid in his current educational placement pending completion of review proceedings b. Issue – in the face of the “stay-put” provision, may school authorities unilaterally exclude disabled kids for dangerous or disruptive conduct growing out of their disabilities? c. Brennan, for majority – parental participation in IEPs is critical under the Act. Congress meant to strip schools of the unilateral authority to exclude emotionally disturbed students. However, the school can still use disciplinary measures – and where a student poses an immediate threat to the safety of others, officials may temporarily suspend him for up to 10 school days. District courts can also enjoin the child from attending school 6. Congress responded to Honig by authorizing districts to suspend students for 10 days or place them in an interim alternative educational setting that still provides curriculum. Students can’t be put there unless they bring weapons. Suspensions can’t amount to a pattern that accumulates to more than 10 days, and interim placement should not exceed 45 days. For this to apply, the misconduct must be a manifestation of the disability D. Losen and Orfield, “Racial Inequity in Special Education” – minority children all too often experience inadequate services and isolation from their nondisabled peers. They also are overclassified. States should shift their focus toward how they can improve opportunity for all students, disabled or no, instead of just trying to accommodate student problems SPECIAL EDUCATION REGULAR EDUCATION 1. Focused on individual student goals and achievement ---Individually negotiated educational programs (ensuing that everyone’s needs are met) 1. Focused on group instruction ---One size fits all (purpose of schooling is socialization – not about meeting everyone’s needs) ---Political winners determine the size 2. Parental empowerment ---Significant parental involvement in program development and evaluation (experts, not elected school boards) 2. Community empowerment ---Political decisionmaking (collision with the special education focus on parents’ voice) ---Taxpayer (not parent) focus 3. Legal accountability ---Costs secondary to outcomes ---Parents given significant ability to enforce rights in court ---Significant judicial review 3. Political accountability ---Costs as important as educational outcome ---Limited judicial review 4. Federal focus and locus of control 4. State and local focus and center of control

[edit] VII. ECONOMIC CLASS AND SCHOOL FINANCE INEQUALITIES

A. The Problem and the Constitutional and Statutory Frameworks 1. Kozol, “Savage Inequality” – equity doesn’t necessarily mean equal funding. Equal funding for unequal needs is not equality. Yet kids with greater needs are getting less money. The inner-city schools can’t afford good teachers, while the suburban schools feed off suburban money and refuse to redistribute school funding. Against equalization – is it unfair to let suburbanites spend a little more if they have it? But the “minimum” assurance of education is devalued by unequal funding 2. “Concepts of School Finance Equity” – fairness in financing runs headlong into our localized property tax system of funding. We have to decide whether we’re focusing on inputs (money) or outputs (learning outcomes). Does provision of an equal educational opportunity mean that all students have an equal chance to succeed? What if schools don’t matter half as much as parental resources and involvement? a. Horizontal equity – equally situated children should be treated equally. How to identify “equally situated” students? You can use groups of general education, at-risk, and special education students. With inputs, this is easy to apply, but this isn’t easy with outputs b. Vertical equity – differently situated children should be treated differently. You can identify groups of students who differ in their needs and give them different resources. This takes into account differences among pupils and outputs – but we don’t know how many more resources kids need c. Adequacy – an ex ante or ex post idea. Ex ante, adequacy is the level of resources necessary to meet absolute (not relative) standards. Ex post, you could require adequate outcomes at any number of levels 3. Studies still disagree as to whether there’s a clear link between spending and student achievement. Some studies do show a clear link between spending and student achievement. But gains may also result from parental provision of resources 4. Interdistrict Inequalities a. Reformers argued that a financing scheme had to apportion funds according to the needs of students in order to satisfy the Fourteenth Amendment. But they also suggested that flat dollar equality or equal dollars would be permissible. Another alternative = equal tax rates yielding equal dollars b. Using the state sales tax or income tax as a substitute for property tax revenues might not be acceptable politically. It could also just create disparities among states c. Alternative methods of distributing resources: 1) full state funding alternatives with no local contribution; 2) partial state funding alternatives with state aid distribution formulas that permit local contribution; 3) redrawing the districts to ensure approximately equal wealth; 4) full state funding with funds directly to the schools; 5) some variety of family voucher system 5. Fiscal Neutrality in the Courts a. The initial school finance cases that led to Serrano and Rodriguez had a theory about wealth neutrality. This was a theory that education shouldn’t be a function of parents’ or neighbors’ economic resources. In 1973, Supreme Court overturned the Fifth Circuit’s finding of unconstitutionality under federal equal protection doctrine – Rodriguez. Wealth is not a suspect class. The Court also says it’s rational to use these vastly imbalanced schemes because it supports local government. So now, litigants use state constitutions to seek these remedies 6. Equity Litigation in the 1990s a. Many states have changed their educational systems as a result of this litigation – the possible heir to the desegregation period, Minow says b. The second wave of school finance litigation pursued remedies from the explicit provisions in 48 state constitutions of a right to an education. 30 say “thorough and efficient;” 8 say “general and uniform;” 10 say “general or uniform” c. Brigham v. State (Vt. 1997) [804] i. Vermont’s constitution contained provisions requiring schools in each town and an equal protection clause ii. Issue – did the Vermont constitution require elimination of the local property tax system of funding schools? iii. The correlation between spending disparities and taxable property wealth was well established. These disparities also yield less educational resources and teacher training. Substantial funding differences significantly affect opportunities to learn iv. In Vermont, the right to education is integral to the government. There is no legitimate governmental purpose behind the gross inequities in educational opportunities. Minimal adequacy isn’t even enough; the funding must be reasonably equal v. Results – Vermont now has a statewide property tax and property-rich districts lose a lot of their funds to poor school districts d. Edgewood and the Texas application of fiscal neutrality i. Al Kauffman – litigated the Edgewood case on school funding. Victory in Edgewood, he says, was lucky – their winning issue was not the one they started out with. This case started in state court, filed in 1984. Had to get over the findings of the Rodriguez case; filed on EP theory and efficiency of education (Texas const. – legislature must make suitable provision for efficient schools) theory. The efficiency theory was that this system wasted money ii. Edgewood I – they won before the Texas Supreme Court in 1989. Kauffman’s goal was to provide the information that a court favorable to their cause would use in its decision. The court utilized the efficiency ground, resulting from a 700 to 1 ratio between the richest and poorest district’s property value. All districts had to have equal access to similar revenues and similar tax rates. 40 of the states have system similar to Texas’s, which relies mostly on local property tax. For an efficient system, the state had to provide equal rights to students within the system, says one judge (later thrown out of office). There had to be a close correlation between the tax effort and the educational resources in each district iii. Edgewood II – summer of 1990. The legislature put a lot more money into the system but didn’t deal with the source of inequality. State Sup. Ct. holds that this is, yet again, a waste of the state’s resources. Some districts (like Highland Park) had $1M in property per student, while others (Edgewood) had $20,000 per student. 50:1 disparity. Highland Park – 99% white, while Edgewood – 2% white iv. Edgewood IV – legislature created recapture of the wealthiest districts’ tax dollars and the court accepts that plan. Some argue against this, calling it “dumbing down” all districts and a “Robin Hood” plan v. The composition of the court has changed and now there are nine Republican justices. Rich school districts sued again in Edgewood V – we’ll see what happens e. Analyzing the Texas figures i. Rodriguez – a federal housing project was built across tracks from San Antonio. San Antonio got the railroad tracks and Edgewood got the projects. Santa Gertrudis district had Kingsville separated out in the corner. Kingsville had a $1.05 tax rate and $3,000/student, while Santa Gertrudis was a tax haven with a $.10 rate with $10,000/student. Protecting the oil wealth. Dallas’s Highland Park an isolated island with $.50 tax rate and $6,000 per student. Dallas had $1.10 tax rate and $5,000 per student

v. The state wanted to allow districts to have more if they chose to have a higher tax burden. Adequacy theories might have a better grounding in the state constitution because they require a certain quality of education. Theories: 1) equal yield; 2) equal expenditure; 3) adequacy vi. In a system that weighted funding based on the costs of educating children, how much would be provided to different schools?

f. Kauffman says that litigation has a positive effect in equity cases (achieving more equity, getting more money into the system as a whole). In winning adequacy cases, more duties are imposed on the state to set standards, monitor and enforce. Some also increase money in the system. In every case, public and judicial understanding of school finance is greatly increased 7. Adequacy Arguments a. Many have even become dissatisfied with the equity approach because it leaves children at the whim of local voters. Some used adequacy as an alternative way to frame school finance cases. This question returns the focus to pedagogical concerns b. Adequacy is a dramatic shift – the third wave of school finance litigation. It gives voice to outcome measures: testing, civics education, physical facilities. What areas require adequacy? Facilities; class size; reading; early education. And funding – so we’re back into that debate. This kind of work seems to be one of the few growth industries in the law for social change – but the adequacy alternative has created huge disappointment in states that have accepted it c. Robinson v. Cahill (N.J. 1973) i. New Jersey used a local property tax system. Its constitution guaranteed equal protection and a “thorough and efficient system of free public schools” ii. Issue – did the unequal funding violate the state rights of equal protection and education? iii. The statutory scheme had no apparent relation to the mandate for equal educational opportunity (which isn’t expressly in the NJ Const.). The relief had to be prospective, and New Jersey had to pass a new financing system iv. Results – the state legislature didn’t adopt a new system until 1975. But the legislature couldn’t fund the scheme, so eventually the NJ schools were shut down by court order. The litigation continues d. Rose v. Council for Better Education, Inc. (Ky. 1989) [819] i. The Kentucky constitution required an “efficient system of common schools throughout the state” ii. Issue – did the efficient education requirement require a proper and adequate education for every child? iii. Kentucky’s Supreme Court held that Kentucky needed to meet standards of adequacy. This activist decision required the goal of provision of sufficient skills to children. The skills dealt with communication skills, political and governmental knowledge, the arts, wellness, and academic or vocational training. The schools would be monitored to ensure that waste wasn’t present iv. This case was the first to find an entire state school system unconstitutional because it did not provide an adequate education to its students. It also offered a new definition of adequacy that focused on student capacities B. Policy and Strategy Debate Over School Finance Reform 1. Options restated a. Wealth neutrality (taxpayer equality, equalizing the tax effort and the yield of education). Wealth of a district shouldn’t determine quality – it should be willingness to tax b. Equal per-pupil expenditure. Problems: weighted for different qualities? Special needs? Cost of living in particular areas? c. Adequacy – equality requires answers to difficult questions and may be just a means for adequate education. State courts have been reluctant to tell schools how to operate. But a change that makes adequacy attractive – legislatures have passed school reforms and courts can use those as benchmarks for determining constitutional right to education. But even adequacy cases are tremendously disappointing – look at Kentucky litigation (Rose) and the persisting differences in outcomes. Massachusetts case has also disappointed as courts deferred to legislative reform. New Jersey – only in 2001 did poor districts start getting money and there’s still a widespread view that nothing has changed 2. Discussion – which of these theories would we support as members of a public interest group? a. We have to ask these questions: what are the unintended consequences of acceptance of these views? What assumptions should be challenged in each of these theories? Are courts competent to announce and enforce a remedy under any of these theories? b. Our group would go for equal per-pupil expenditure. Assumptions we’re making – betterment through education. Education is a state function, with local control over discipline, facilities. People will pull kids out of school and then vote to keep taxes low. The statewide control will make these people more powerful. Schools also won’t be able to experiment. There’s no incentive to have property taxes at the high-end. Could we outlaw private schools? Then adequacy would be great c. Are courts competent to enforce this? There are cognizable standards in the state constitutions 3. Assumptions of the system a. Property tax is the major means for funding schools. Maybe this should change (retirees, rich are against raising these taxes). Income tax might be a better alternative, but some say no. Lottery; excise tax; sales tax; but aren’t all these regressive? Maybe set a flat rate for property tax and do it statewide; then the state gets to spread the distribution around b. This is also based on assumptions about wealth – that some districts are wealthy and some aren’t. But if you’re a very poor state, then the assumption isn’t really true. Could then seek whole state reform (Kentucky) instead of cross-class integration (Texas) 4. The likelihood of success of these arguments a. Adequacy gives courts that looks pretty vague, but when it comes to the remedy, it’s as problematic as the other two. Maybe equality plays a role in adequacy – but it’s easier to show what an inadequate school is. The costs of adequacy are much lesser, but Enrich argues that we lose the moral high ground of absolute standards and promise results that look relatively meager b. Wealth neutrality allows supplementation and doesn’t present specter of the poor asking for more and more. The wealth neutrality is a political scheme implemented after court decides it’s necessary. The options are a Robin Hood alternative or a cap on wealthy district spending. The Texas case is an example of the recurring evaluation of the legislative plan c. The arguments for equal per-pupil distribution must be modified, Minow says. Some kids need more money than others. Likelihood of success – looks justiciable on its face, but then gets messier when you start including kids’ needs. The state or possible litigants would need to set some baseline measure for how much money is spent on the kids. Even equalizing per kid may create different schools in rich counties as opposed to poor counties because of the cost of obtaining good teachers, community resources. This alternative will be incredibly difficult for a court to announce. Teacher salary makes a difference, as does class size. Equal expenditure doesn’t alter all of this C. The Problems of Large Urban Districts 1. Urban districts can have higher than average property wealth, but may face higher costs for non-educational public services, a higher proportion of special-needs kids, and higher prices or wage rates 2. Abbott v. Burke (N.J. 1990) [828] a. New Jersey, after Robinson, required a minimum level of educational opportunity. Financing had to support the system and give poorer disadvantaged students a chance to compete with relatively advantaged students b. The new act failed in this aspect, because funding and spending disparities were worse than they were at the beginning. The constitutional deficiency here was limited to the poorer urban districts. They faced “municipal overburden” – a higher tax levy for public services. Therefore, tax increases to support education were impossible politically. The quality of education in poorer urban districts was also terrible c. The standard – the State must assure that educational expenditures in poorer schools are substantially equivalent to those of more affluent suburban districts, and must address special disadvantages of poorer urban districts d. After six decisions, the Court hasn’t yet approved of a total plan for curing this problem D. School Finance and School Choice 1. Hybrids across these alternatives are going to be likely – to make sure that something is enforceable and to combine aspiration with practicality. The unintended consequences of pushing people into private schools ties us into the school choice issue 2. Given this issue, isn’t the next logical step vouchers? This step gives students a right to a share in state funds. Vouchers give the individual school control over financial decisions – the money comes in and the school decides how to spend the money 3. An unintended consequence of this school finance movement is that it added more support for school choice. People claim rights to public payment for involvement in private schools. Schools can also leverage private dollars by access to public bonds. Private schools are exempt organizations and donors receive a charitable deduction – a huge subsidy to private schools. We must put public aid to private schools on the table when thinking about equalization E. The Right to a “Free” Public Education” 1. School districts rely on student fees to keep their programs intact. Half of the recent cases challenging textbook fees have been unsuccessful – but maybe you have to provide them free to indigent parents. It usually depends on the state’s constitutional guarantee of free education 2. Sometimes districts even invalidate fees for extracurricular activities under free education guarantees F. School Finance and Race 1. One theory of school finance litigation is that it arose out of disillusionment with the progress of desegregation. Sheff v. O’Neill linked poverty and race. The Conn. Court didn’t decide how disparate impacts would require intervention, but did combine the education clause and the segregation clause of the Conn. constitution 2. Powell v. Ridge (3rd Cir. 1999) [851] a. Plaintiffs alleged that funding policies discriminated against minorities in violation of Title VI b. Issue – did underfunding of predominantly minority districts cause a disparate impact on minority students such that Title VI was violated? c. The Third Circuit holds that the disparate payments to non-white schools could violate Title VI. Therefore, plaintiffs could survive summary judgment. However, they need to show that the disparate impact falls on an individual, which may be more difficult to prove d. And after Sandoval, they won’t have a private right of action

[edit] VIII. ABILITY AND ACHIEVEMENT

A. Ability Grouping and Interactions with Class, Race, Gender, Language and Disability 1. Tracking is usually meshed with grouping by ability  it’s more accurate to think about it as achievement grouping. Tracking connotes placement with lasting implications, or labeling. This tracking can have a permanent aspect. Alternative schools can also be forms of tracking 2. Tyack – tracking was originally aimed at giving possible dropouts “civic and social relationship” instruction and vocational training. The grouping was supposed to eliminate differences for these “defective children.” In the 1930s, attacks began on homogenous grouping as undemocratic. These attacks pushed for means of identification other than IQ tests. Minow – after WWII, tracking decreased. But after Brown and Sputnik, tracking increased and was a method used to circumvent the mandates of desegregation. 3. The problem with low-tracking is the stigma associated with it. This stigma is true for both students and teachers. Also, tracking is a matter of status. Low-tracking also affects outcomes – students don’t leave and are expected to drop out at a higher rate. Use of a low track can also be a form of punishment 4. There’s mixed research on the benefits of high tracking. A majority of teachers would say they like tracking – it’s easier. Issue of boredom often comes up. This is a pedagogical question – how to challenge all students? Teachers will teach to the middle or the low end because that’s where the needy students are. At Harvard Law, why not take top 5% and give them more access to professors, etc.? 5. Today’s tracking system – Gifted & Talented participation: 10% of Asian-Americans, 7.6% of white, 3% of blacks, 3.7% of Hispanics. Whites and Asians are proportionally overrepresented, while African-Americans and Hispanics are underrepresented 6. Racial Discrimination and Ability Grouping a. School sorting has significant racial consequences. The proportion of minority students assigned to special programs for the educable is two to three times greater than their proportion of the school-age proportion. Low scoring whites are placed in higher tracks, while high scoring blacks are placed in lower tracks. There’s plenty of subjectivity in placements: test bias, teacher bias, efficacy of placements. Tracking can also be based on behavior control b. If the mechanisms of classification are racially biased, if the programs don’t meet special needs, or if the classification scheme is disguised segregation, than racial overrepresentation becomes a problem c. Lemon v. Bossier Parish School Board (5th Cir. 1971) [489] i. Students were assigned to one of two schools on the basis of CAT scores ii. Issue – did the assignment plan violate the previous court orders for desegregation? iii. Testing may not even be a basis for student assignments. But the school system has only been unitary for one semester, so this doesn’t even raise the issue of the validity of the testing. The school district can’t employ testing until it has operated as a unitary system for several years iv. What’s the basis here – discriminatory purpose, or discriminatory impact? Minow – if you have a policy and practice with a long history of intentional discrimination, then disparate impact could be a proxy to show that the discrimination continues 7. Ability Grouping and Equal Educational Opportunities a. Critics assert that classifications diminish educational opportunity. Kids receive fewer resources, programs could restrict educational potential, and some programs could stigmatize kids b. Hobson v. Hansen (D.D.C. 1967) [490] i. Judge Skelly Wright holds that ability grouping as practiced in D.C. is a denial of equal educational opportunity to the poor and blacks, violating the Fifth Amendment ii. Tracking is supposed to be flexible and tailored to each individual student, maximizing educational potential and correcting deficiencies. But in D.C., at least 85% remain at the lowest achievement level through no fault of their own. Kids are denied permission to cross-track and can’t qualify for more advanced courses. The tests used to track kids measure their background and environment against a standardizing group of white middle-class kids iii. The system must decide whether a student’s deficiencies are true or only apparent and they can’t do this. The track system is a system of discrimination founded on socioeconomic and racial status, and must be abolished iv. On appeal, the D.C. Circuit narrowed the holding to say it was as applied in Washington schools. But that was because of discriminatory impact, and now you have to show purposeful discrimination (with rare exceptions; Gomillion and Yick Wo) c. The rigidity of the D.C. system is true in other systems. High-ability students in minority schools may actually have fewer opportunities than low-ability students in white schools, though. They have unequal access to valued science and math teachers, says the Rand Corporation d. Stigma – adverse classifications make kids feel dumb and become a self-fulfilling prophecy. But The Bell Curve says that differences in IQ scores are not environmental. One study found that misclassification is rampant under these tests – does this pose a constitutional problem? e. Larry P. v. Riles (9th Cir. 1984) [507] i. California had two programs for the mentally retarded: an “educable mentally retarded” (EMR) program and a “trainable mentally retarded” (TMR) program for kids with more severe disabilities. The EMR program was viewed as a dead-end program. Black children were significantly overrepresented ii. One problem with standardized tests – testing companies have never considered designing a test to eliminate disparities in scores between races. Tests and evaluation procedures under the [IDEA] had to be free of racial bias. These tests had a discriminatory impact on black kids, and under Title VI, the schools couldn’t show educational necessity. EMR is also not a benefit for these kids because of stigma and the dead-end nature iii. Minow – Title VI prohibits discrimination based on race, and the Dept. of Education has interpreted to find discriminatory effect under its regulations. Their test is borrowed from employment law (Griggs) – look to see whether there’s a facially neutral policy that has a negative significant impact. Then the burden shifts to the school district to show an educational necessity. A lot of times, schools didn’t really have a good reason for racially segregative classrooms iv. But there’s very little now available to these individuals under these regulations – you have to use OCR because of Alexander v. Sandoval. And OCR won’t issue findings about disparate impact under the Bush administration f. Alfie Kohn, “Only For My Kid” – parents of honors students don’t want changes that help out kids who are struggling. The idea of heterogeneous classrooms is extremely unpopular. Honors parents want their kids to win and other kids to lose; they want to create a competitive environment. “Mothers who perceived themselves as liberals … became far more passionate in dismissing these very ideals when it came to the advantages they thought their own children should receive” g. Kahlenberg, “Rethinking the Process of Classification” – let’s give a tiny class bump for kids when we’re making tracking decisions. We should not use race because then we have low expectations for upper-middle class blacks h. Alternatives to tracking – a lot more than simply eliminating it. You could de-track teachers’ mentality so they believe that all kids have potential. Also, teachers need to be aware of how they communicate low expectations. You need to make sure that kids have notice of the prerequisites for moving on to higher levels of progress so they have a chance to move up. You could also eliminate prerequisites altogether. Politicians can sell de-tracking by allowing more individualized instruction, but that’s harder to teach i. Minow says a lot of this is about good teaching. Maybe bad teachers are placed in the lower tracks – but if we see that, and don’t make the political assessment that good teachers are needed there, then tracking’s effect is negative B. Standardized and High-Stakes Testing and Inequality 1. Federal funding dropped during the 1980s, but in the 1990s, federal policymakers again exerted influence. Congress enacted Goals 2000 in 1994. Goals 2000 embraced “systemic reform,” with a focus on uniformity and efficiency. Congress wanted to structure a voluntary uniform national curriculum and create national educational standards. The policies in Goals 2000 allowed the federal government to influence every public school. A problem with this: the resulting homogeneity could chill experimentation and educational reform. But states had financial incentives to participate 2. Title I of the No Child Left Behind Act requires that schools taking money make adequate yearly progress on reading and math tests. This is profoundly anti-tracking because it requires that all students live up to certain standards. Otherwise, the state can come in and close the school down. This has added accountability for student progress. This is a fascinating process of centralization in the federal government around the question of what children should be learning. You also have to validate the test 3. In some respects, this is every civil rights attorney’s dream. Can you go to court to enforce this accountability? No, because these rights just look precatory (Congress just wants the states to do these things). States want more alternative schools to deal with students who struggle academically – the most extreme form of tracking. So much new legislation is test-based  TX has a minimum competency exam that’s a bubble test  schools may use their budgets to teach to the test, but it’s not a high quality of education if you’re teaching to the test. There are also lots of games to be played with who takes the test 4. State Regulation and the Quest for Excellence a. Kentucky and Texas have implemented standards testing as part of a comprehensive reform package b. Kentucky – the Kentucky Education Reform Act (KERA) is driven by assessment. The statute directed student outcomes in communication, math, community, and problem solving. It requires performance-based tests that aren’t multiple-choice. Kentucky can also review the validity of content that’s being taught in class c. Texas (“The Gold Star State”) – legislators rewrote the Texas Code to put an emphasis on performance and deemphasize telling teachers how to teach i. Texas schools must reach a set of absolute benchmarks to improve their standing, and the benchmarks don’t vary across districts. Schools must also achieve passage rates for racial and economic subgroups or else they risk being labeled “low performing.” The TEA decentralized schools, helps schools to identify weaknesses, and allowed schools to increase political involvement ii. The benchmarks are still rather low, and the system ignores the performance of special-ed and LEP students (so schools may want to define more kids under these categories). It also requires passage of a 10th-grade test for students to graduate. The Rand Corp. also released a study concluding that the Texas scores were inflated by teaching to the test and narrowing the curriculum d. Minow – the No Child Left Behind Act and the Texas reforms create accountability at school and student level, rewarding principals for how much they brought up the bottom scores (not really present in the federal bill). They require testing every year, which is a boon to the testing industry. Statewide progress objectives are created, and districts that don’t meet progress goals are subject to state action. It’s not clear how school choice will affect the testing. The effect has been a flurry of testing around the country. There’s little additional money into the system, but the system has given more flexible use of previously pigeonholed funds 5. The Impact of High-Stakes Testing on Racial and Ethnic Minorities a. How did we get from the notion of accountability of the schools to the notion of high-stakes testing for students? The best face Minow can put on it is that unless there are consequences for students, no one will take these requirements seriously. “If you build it, they will come.” Support for schools will follow from student penalties. Otherwise, this becomes a cruel measure – when the schools fail, you penalize the students b. Who or what does high-stakes testing affect adversely? i. Racial desegregation? Integration? Resource equity? Results? Once upon a time, there was a struggle to desegregate schools. Many people who have embraced the standards-and-testing movement claim to be pushing for resource equity while they’ve given up on desegregation. Is it possible to recast this as a desegregation effort to raise teachers’ expectations across racial groups? ii. Non-citizens and immigrants who show up later in the schooling process – is the high-stakes approach fair to them? What about the testing routine? There’s a concern that if you don’t include these groups, there’s no incentive to teach them. New York split it up and accommodated ESL in all but the English test, then let people pass. Will people accept that diploma? iii. English language learners iv. Gender – people threw tests out when girls didn’t do as well v. Disability. You could fail to identify people who need to be identified – but could also identify kids who don’t need it. Tests are used for diagnosis. Should disabled kids get a different test? A standardized one? vi. Economic class/poverty/financial equality – equity? A lot of what we’ve discussed here converges with the adequacy strand of the school finance discussion c. Legal Challenges to High-Stakes Testing i. Minow says you can raise the question of due process, because students didn’t have notice. You could also show racial disparities in the fail rates and argue that the tests are racially discriminatory (mere impact isn’t enough, though). The DOE also won’t enforce impact theories ii. Findings of current intentional discrimination have been rare, especially recently iii. If the tests preserve or carry forward past racial discrimination, then they may be impermissible, and these claims remain viable in some communities iv. Under Title VI’s disparate impact standard, legal liability may arise if the tests aren’t validated (for example, Fordice said the ACT could not be the sole basis for admission because even the ACT designers didn’t want that to happen) v. High school graduation tests have been challenged successfully under the due process clauses. School officials may have to give prior notice, and tests must fairly measure what students have been taught. Debra P. v. Turlington (M.D. Fla. 1979) held that schools shouldn’t punish the victims of past discrimination for deficits created by an inferior educational environment. The Florida system had to wait until it had a unitary district before it could impose high-stakes tests vi. Elul, “Standardized Testing and Education Reform” – equal protection challenges to student accountability policies won’t succeed unless education is recognized as a fundamental right or the plaintiffs can show discriminatory intent. Title VI is the best way of challenging these (note again that OCR won’t do it though) 6. Scholarships and School Admission Standards a. Sharif v. New York State Ed. Dept. (S.D.N.Y. 1989) [592] i. New York State relied solely upon the SAT in awarding prestigious state merit college scholarships. Female students sought to use the prohibition of sex discrimination to challenge the state’s reliance on standardized tests ii. Issue – did the state violate Title IX and equal protection by solely using the tests to award scholarships? iii. Using grades and SATs weighted equally, the state gave women substantially more scholarships. The SAT underpredicts the academic performance of females in college, and ETS advises against exclusive reliance upon the SAT. The sole use of the SAT had a disparate impact on women, and this discriminatory effect was impermissible under the Title IX implementing regulations. The state can’t show educational necessity to justify the sole use of the SAT – and the SAT isn’t reasonably related to the goals in question so this fails the rational basis test too (but don’t they just want to save resources?) iv. Note Sandoval’s possible impact on this as well – would OCR bring this suit? ‘Cause if they don’t, individuals can’t bring it (in my opinion)

[edit] Section Six: Religion

[edit] I. IN PUBLIC SCHOOLS

A. Sectarian Socialization 1. Today’s focus is on religion in public schools. We should think historically about this and currently, since there are 116 cases in district courts and courts of appeals. This area has as much to do with the equality portion of the course as well as with the socialization and parental rights portion. Religion has become much more like interest-group participation, using the language of inclusion and exclusion, and has moved away from coercion and freedom. These are litigative strategies 2. The public school system of instruction was worked out as a compromise between Protestant groups. Instruction in values, while rooted in Christianity, would not be religious. It’s impossible to separate the history of schooling from the history of religion. The first public schools were funded to help children to read the Bible. Attempts to read the First Amendment in the context of public schooling is futile because the Bill of Rights was passed long before public schools. To the extent schools did exist back then, they were tied to religious instruction. The First Amendment also only applied to the federal government. Under the historical analysis, religion and public schooling aren’t incompatible. But in the last 50 years, the Supreme Court announced doctrines that reflected and shaped a secularization of American society. The decisions moved religion into a private sphere. This privatization of religion came after embarrassing battles over evolution—fought in schools (the Scopes monkey trial). Jerry Falwell then brought religion back into the public sphere a. The First Amendment has two religion clauses: the Establishment and Free Exercise Clauses. For Free Exercise: i. Old style of analysis (a) Did a government official or program burden an individual’s religiously motivated conduct? If so, strict scrutiny triggered (b) Did the government have a compelling state interest to do so? (c) Did the government use the least restrictive means available in pursuing its compelling interest? Or could the individual be granted an exemption or accommodation? ii. Employment Div. v. Smith (a) Is the allegedly burdensome law a law of general applicability? Is it neutral in form and application? (b) If so, does it have a rational basis? (c) If so, no accommodation is required 3. If a person needs an accommodation so that they can practice their religion, how is that not an establishment? Four views: 1) vigorously enforce the separation of church and state, and keep free exercise strong (Justice Brennan). 2) be weak on both of these issues. Don’t create your own church, but have God all over the place. On free exercise, don’t worry about accommodating a lot of people. This is a majoritarian view (Justice Scalia). 3) strong Establishment, weak Free Exercise (allergic to religion view; Justice Stevens). 4) weak Establishment, strong Free Exercise (religious diversity and support – Michael McConnell) 4. Abingdon School District v. Schempp (1963) [124] – Pennsylvania could not require recitation of the Lord’s Prayer even if kids could absent themselves. The Establishment Clause requires neutrality and prohibits this use of the machinery of the state to practice beliefs 5. Wallace v. Jaffree (1985) [127] a. Alabama authorized a 1-minute period of silence in public schools for meditation, and later amended the statute to provide for “meditation or voluntary prayer.” It also enacted a statute that authorized teachers to lead willing students in prayer b. Issue – did the “moment of silence” statute violate the First Amendment? c. Stevens, for majority – of course, the authorization of prayer is invalid. But the moment of silence statute was enacted with the purpose of returning prayer to the public schools and so was also invalid. The amendment of the statute to include prayer demonstrated an express desire to do so d. Powell & O’Connor, concurring, assert that some moment-of-silence statutes are constitutional e. Rehnquist, dissenting – the wall of separation isn’t constitutionally required. The Alabama legislature should be able to endorse prayer 6. Walter v. West Virginia Bd. of Educ. (S.D. W. Va. 1985) – a Jewish kid was pressured by other students after he read a book during a moment of silence. Did this make prayer during the moment of silence involuntary? 7. Lee v. Weisman (1992) [143] a. Providence permitted principals to invite members of the clergy to offer invocation and benediction prayers b. Issue – did including clergy members in graduation violate the Establishment Clause? c. Kennedy, for majority – attendance at graduation ceremonies was voluntary. But the involvement with religious activity was pervasive in this case, because the principal controlled the content of the prayers. There also are heightened concerns with protecting freedom of conscience from coercive pressure in the public schools 8. Evolution and creationism have also led to debates about establishment. In Epperson v. Arkansas (1968) [149], the Court held that Arkansas could not pass a law banning the teaching of evolution in its classrooms because fundamentalist conviction was the reason for the law 9. Why are we in the turmoil that we’re in? After the evolution cases, laws mandated the balanced treatment of evolution and creation. There was a series of challenges to secularization of public schools – the secular should not dominate over others. This view was advanced in litigation over balanced treatment acts 10. Mozert v. Hawkins County Bd. of Educ. (6th Cir. 1987) [173] a. The Hawkins County schools taught critical reading. The critical reading program in these schools used a Holt reading program that included stories about mental telepathy and magic. The district required every student in the schools to read the series and attend classes using them b. Issue – did required reading of the Holt series violate the religious plaintiffs’ right to free exercise? c. First, the court examines whether this was a burden. Students were forced to read objectionable material, but the material was never presented as fact. Proof that students had to do more than read or discuss the readings might violate Free Exercise because of compulsion, but this wasn’t present in this case d. A concurring judge wrote that the burden was justified by a compelling state interests. Schools need to teach kids about complex and controversial social issues e. Boggs, concurring – the refusal to make accommodations was the cause of this saddening decision. Plaintiffs object to the overall effect of the series, and these books affect their lives. But school boards may set curricula bounded only by the Establishment Clause, and don’t need to show a compelling interest for violating free exercise rights f. Minow – the burden was exposure to corrupting ideas. The fact that these kids have to read about different ideas conflicts with their principle that the only truth is Biblical. This case should remind us of Yoder. There, the compulsory attendance was argued to create a burden on religious exercise because it caused a questioning of religious ideals g. If you require the government to understand this worldview and recognize a burden, this could compromise the Establishment Clause. The Court of Appeals does not allow exemptions here for the kids. The criticism is that the most concerned parents will now pull their children out of public schools altogether 11. Congress passed the Equal Access Act in 1984, providing that secondary schools couldn’t discriminate among extracurricular groups on a basis of religion, politics, or philosophy if they had established a “limited public forum” 12. Good News Club v. Milford Central School (2001) [s616] a. Milford, an elementary school, refused to allow the religious Good News Club to use school facilities b. Issue – did the refusal violate the Free Exercise Clause, or was the school required to deny access in order to avoid violating the Establishment Clause? c. Thomas, for majority – Milford had opened its limited public forum to “activities that pertained to the welfare of the community.” The Good News Club served this function, and Milford engaged in viewpoint discrimination when it excluded the Club. The Club wouldn’t be coercive because there was no government sponsorship of the activity and the Club met after school, with parental permission required to join up d. Souter, dissenting – the Good News meetings are evangelical services of worship. This use of school property leaves an elementary school student unable to distinguish from school instruction and this religious instruction e. Minow – if every other group can come in except the religious ones, that violates the equality of those groups. This was held to be viewpoint discrimination; and the Court rejects the Establishment Clause problem. The activities were after-hours, and parents had to opt them in (but what if parents use this as a form of daycare? Then, could you have an as applied challenge?). Groups will also be differently positioned when it comes to their comfort level in dealing with the government. We are in the midst of a sea change in dealing with these questions 13. Real Problems a. Issues: from the first day to graduation. Is there a ceremony when the child enrolls in school, involving prayer? Historically, yes. The Pledge of Allegiance is read in schools. The school calendar’s inclusion of religious holidays could also provide problems. If it doesn’t accommodate people on this basis, is that a problem of Free Exercise? This is largely resolved informally. But what if school holds a test while kids are gone for Ramadan? In teaching kids about Thanksgiving, are the Pilgrims part of the story? Religion’s role in history and literature may also cause Establishment Clause problems. Religious teachings and the dress code for gym class can conflict. Does school lunch need to accommodate students’ religious dietary restrictions? What about a dress code that forbids headgear, necklaces, etc.? What if a student is disciplined for wearing a ceremonial sword? Finally, graduation – can there be a prayer at graduation? b. Clergy in the Schools program – maybe provide secular counselors, also make sure clergy represent every possible student belief. This could also be a one-time special event; the function of schools doesn’t usually include this, but here, we’ve got a crisis. You could send a letter to parents telling them it’s a one-time event – communication could be crucial. Weisman – the more you control the clergy, the worse it gets. Should you make it secular and hide the religious nature of the clergymen? c. The Supreme Court says that student-led prayer violates the Establishment Clause where the school places its decisionmaking power behind the action. But some students may want a “spontaneous” prayer (example: one student takes the mic at an awards ceremony). If the school shuts it down, is it violating Free Exercise? If the school doesn’t allow anyone to have the microphone, then they could have a viewpoint discrimination problem – they did it because of the religious speech. But truly student-organized prayer seems permissible, and a school that tries to prevent this may be in trouble d. A public school makes its facilities available for use by an evangelical group and teachers distribute permission slips in class. You’ve got possible coercion, with other kids signing up. What if it’s in a sealed envelope going home to the parents? As legal counsel to the school, I would try to maintain major control over extracurricular clubs. But if we were going to do this, I’d try to make rules for neutral application of the standards for distribution. Why not just refuse to allow teachers to distribute permission slips? Maybe only school-sponsored events get permission slips e. A kindergarten student responded to an environmental project by making a poster of Jesus praying. The school told the kid that he didn’t answer the question and wouldn’t display the poster. Viewpoint discrimination. You might also want to worry about proselytization if the school puts it in a different place. Nothing in religion mandates drawing the poster, so Free Exercise is not infringed (but maybe your religion requires you to deal with all of these questions from a religious viewpoint) f. A third-grade class reads a story about Ganesh and his origins. A Roman Catholic child’s parents object on the ground of religious coercion. Does the type of religion affect this distinction? O’Connor’s reasonable observer – we don’t know whether they’re in the majority or the minority. Are they Justice Scalia or Justice Brennan? Christian groups say there’s room in the schools for everything but Christianity. I think this is also a problem for the Hindis because their religion is being treated as a folktale or a myth rather than as religious material. There’s a pedagogical question: what’s the lesson? Is it diminishing Hinduism, just saying that we’ve got it all covered now that we’ve read this little story? What about Greek mythology? g. Sikh minister comes into class to teach yoga. TM also causes a lot of cases. Is teaching of yoga or TM religious indoctrination? This also serves a secular purpose – lots of people exercise and use yoga. I think religion can be used for an educational purpose. But if yoga’s like praying in the Sikh religion, then maybe it is an Establishment Clause problem. O’Connor’s test could apply here – most observers would see this as not problematic. You don’t have to take a survey – or do you? Are you going to say the minority’s not reasonable?

[edit] II. IN PRIVATE SCHOOLS

A. Providing Aid to Private Schools 1. When can government resources be made available to private schools? There’s a tax exemption for religious institutions which are non-profits. You don’t have to pay taxes, and most states follow the 501(c)(3) definition. Donations to your organization are tax-deductible by the person who makes the donation. Religious schools are deeply benefited by the non-profit organizational exemption. Bob Jones – held that a tax exemption could be withheld because of racially discriminatory policies that conflicted with public policy 2. Other areas of aid: state tax-exempt bonds available to non-profits; tax policies allowing individual parents to deduct educational expenses. More controversial: distinction between indirect and direct aid. Direct aid = resources to religious schools, indirect aid = benefit to a private person that ends up helping the school (or vouchers) 3. Under the Establishment Clause, the Supreme Court came up with a bizarre set of decisions that were hard or impossible to justify. Lemon caused a lot of these problems. Textbooks were OK, but maps made available equally weren’t OK. Bus transportation was fine. Etc. etc. This was all direct aid – the government paid instead of the schools B. Pre-Zelman Establishment Clause Analysis 1. The prevailing (but challenged) test: Lemon v. Kurtzman – the state must avoid sponsorship, financial support, and active involvement in religious activity by satisfying three prongs: a. Does the state’s action have a secular purpose? If not, it fails b. Is the primary effect of the state’s action secular or instead assistance to secular institutions or activities? If nonsecular, then it fails. But if the aid to religion results from the direct private choices of individuals, in a neutral program, there is no defect c. Does the state action produce an excessive entanglement of state and religion? If yes, it fails 2. Alternative tests: not a majority view a. Endorsement: Justice O’Connor proposes to replace Lemon with an inquiry into whether an objective observer of the challenged law would view it as an endorsement of the religious activity or as giving a government imprimatur on that activity; if not, there is no defect b. Delegation test: Justice Souter (sometimes) asks whether governmental power has been turned over to religion or to religious bodies. Kiryas Joel; Grendel’s Den c. Noncoercion: the establishment clause prohibits only that aid which has as its motive or substantial effect the imposition of religious belief or practice, or coercion in some way. This merges with Free Exercise. This is a pre-Bill of Rights approach (Connecticut made an individual choose between use of the city Bible and no testimony) d. As applied challenges: Bowen v. Kendrick. The operation of a counseling services law made it look like the Establishment Clause was violated 3. Mueller v. Allen (1983) [102] a. Minnesota allowed taxpayers to deduct educational expenditures, and didn’t limit it to non-sectarian institutions b. Issue – did the tax break violate the Establishment Clause? c. Rehnquist, for majority – just because a program aids religious institutions in some manner, it doesn’t violate the clause. Schools can lend secular textbooks. A decision to defray educational cost has a secular purpose, and the deduction results from private choice. The state still didn’t permit deductions for religious books and materials 4. Zobrest v. Catalina Foothills School Dist. (1993) [s690] a. Zobrest asked for a sign-language interpreter, as mandated by IDEA, in his Roman Catholic high school b. Issue – did the Establishment Clause prohibit the school district from providing the interpreter? c. Rehnquist, for majority – the government would not be perceived as sponsoring school activities if it provided this service. The Court decided that the program is neutral and permissible (even though the Constitutional question really wasn’t appropriately raised). The task of a sign-language interpreter is different from that of a teacher or a sign-language counselor d. Blackmun, dissenting – we shouldn’t even pass on this Constitutional question. But this assistance to the educational function of the school necessarily entails governmental participation. This application of IDEA is constitutionally forbidden – the teacher will inculcate religion by passing on the religious messages 5. Agostini v. Felton (1997) [110] a. Congress channeled funds to local area schools to provide for education of the poor. Under Aguilar, schools could not send teachers into religious schools to teach secular subjects b. Issue – should Aguilar’s prohibition of publicly funded secular teachers in religious schools be overturned? c. O’Connor, for majority – New York City can provide supplemental, remedial instruction to disadvantaged children on a neutral basis in sectarian schools. However, certain safeguards should be present to ensure that the arrangement isn’t a symbolic union between church and state d. Minow – why did the Court reach this decision? A majority said that we shouldn’t presume that the public services grant presents a symbolic union between church and state. If the aid was distributed by neutral and secular criteria, then it doesn’t violate the Establishment Clause e. Breyer – it’s not enough to say that neutrality is enough. This gives the religious school money that it can now spend on religion. So this government money will have the effect of advancing religion. But Minow says that most religious schools haven’t been able to pay for students with disabilities, so this additional money isn’t replacing money the religious schools would have spent 6. There are five votes on the Court now for the idea that direct support is permissible even if the aid goes to a pervasively religious institution (even if only paying for neutral aspects). Four now say who cares? 7. Mitchell v. Helms (2000) [119] – Congress could provide federal aid to schools to allow them to implement innovative assistance (computer) programs for special-ed kids a. O’Connor and Breyer find that computer funds have to be made available to public and private schools, even though they’re still worried about pervasively religious institutions. They think there’s more than just neutrality. The idea of diversion of public funds to religious education goes against prior cases b. What makes a school pervasively religious? It’s undecided. What if there’s no mention of religion in the classroom, but they require you to go to Mass? BC tries to weave religion into the classroom – is this what pervasively religious means? What about symbolism? It’s OK in hospitals that are publicly funded, as is the use of chaplains. But those are indirect funds 8. Religious eligibility to be served and employment are at issue right now. Title VII exempts religious institutions from discrimination bans. But if the government pays directly to support students going to a school, can a school still discriminate? It’s not letting them do their thing privately – maybe it’s funding private discrimination. But maybe it’s the same thing as Title VII. The trend in these cases is toward neutrality. Where the Court is divided is as to whether neutrality is sufficient C. Indirect Aid to Religious Schools 1. Indirect aid – tax deductions, third-party payments, and vouchers. One refinement about vouchers is that the government produces a list of approved programs S 2. Zelman v. Simmons-Harris (2002) [s650] a. An Ohio program provided vouchers to students who wished to choose public or private schools and tutorial aid to those who wished to remain enrolled in the District. Both religious and nonreligious schools could participate in the scheme. 96% of the students participating in the scholarship program were enrolled in religious schools b. Issue – did the voucher program violate the Establishment Clause? c. Rehnquist, for majority – the program had a secular purpose. It was neutral toward religion, and government aid reached religious institutions only via private choice. Participation of all district schools and adjacent public schools was invited by the program, and private schools received only half the assistance. The high percentage of religious school participation was caused by the structure of the private schooling system d. Stevens, dissenting – this is use of public funds to pay for indoctrination of thousands of children e. Souter, dissenting – vouchers are giving these private schools a whole lot of money under the current system. Real private choices don’t exist. Also, these provisions risk introducing “corrosive secularism” into religious schools f. Minow – as the majority and O’Connor indicate in Zelman, indirect aid is OK. Tax deductions that are generally available are fine; Medicaid is OK; the GI Bill paying for seminary; all fine. The individual breaks the circuit between the government and the institution. Pretty clearly, it’s constitutional g. Has the Court changed the doctrine? The Chief Justice doesn’t cite Lemon. He just ignores it and refers to Agostini – a direct aid case that refused to use the entanglement prong of Lemon. O’Connor says that the Court is doing Lemon h. Minow says the dissents were completely disingenuous as to the level of choice that was available to the parents. They didn’t look from the viewpoints of the parents, which is what the majority and O’Connor did. But maybe the dissenters have it technically right – the only schools available in the voucher program are these parochial schools i. Breyer’s concerned about religious divisiveness in society. We never really mentioned this in class – but if you go back to the debates over adoption of the Constitution, the Framers wanted to keep religion out of public life. This is why wars in England took place, and the colonies had confrontations over religion. Let’s not fight over public resources. Breyer’s modern and secular concern is that unless we have schools that socialize people from different religions, we suffer j. Minow would ask, would the effect of this jeopardize the Constitutional fabric of society? Will the effect on democracy be a problem? The major effect is the erosion of the common school – Minow says nobody cares about this except her. She says the Constitution should be about the preconditions of liberty and equality 3. What can we glean about factors that should remain a worry? Minow says that the schools can’t discriminate on the basis of religion, and lots of schools wouldn’t abide by this provision of the program. This is not addressed. Religious hospitals can discriminate on the basis of religion and refuse to give abortions. Can schools discriminate in employment? Mormon school could fire janitor who didn’t go to church – is this level of discretion permitted in schools receiving public funds. The state constitutions may also restrict grants of public dollars to sectarian institutions. Does this contravene the federal Constitution? Maybe the exclusion of religious schools from neutral plans is viewpoint discrimination or a violation of equal protection 4. Policy: should vouchers be adopted? a. Even if you don’t think so, basing a decision on policy can’t impact the constitutionality much because you want to just leave these decisions to the legislature. The majority has a lot of policy inherent in it, because it talks about the poor quality of Cleveland schools. The creation of Catholic schools was a reaction to the idea of Protestantizing America. Protestants agreed to school curriculum, while the Catholics got left out b. The voucher movement has at least three sources. Economists; movement to improve education for low-income kids; coalition between religious groups and others in favor of American pluralism. The majority is right to locate this case in the area of charter schools and magnet schools. Economists might not like charter schools and magnet schools because they’re still too public and suffer from the burdens of public schools (teachers’ unions, etc.). If you open up markets, new providers arise c. What about statewide testing for schools that receive vouchers? For good public policy, could make standardization of tests a string attached to voucher benefits d. 31 cities are using some form of vouchers or scholarships. There’s a variety of different curricular experiments going on, but the failure to standardize tests is creating experimental problems e. What if 40% or 60% of kids go to religious schools? How will this affect the character of our polity? If people are segregated along religious lines, would we need to worry about the health of our democracy? England, Australia, Netherlands have funded religious schools. Kids from different religions are enrolled in these schools because of conceptions about social networks – and the Netherlands is the most secular country in the world. Some supporters of religion want vouchers kept away because they think it will dilute religious values. One hell of a gamble if you like or don’t like religion

[edit] Section Seven: School Choice

[edit] I. CHARTER SCHOOLS

A. Private companies have been involved in public education for a long time. They produce textbooks, supplies, construction, special education schools B. Education has resisted the development of scalable structured instruction programs in which teachers are given more guidance and standard plans. Success for All, though, is a new plan that may be one of these. The controversial area is comprehensive school management. Philadelphia has an initiative for private school management 1. Criticism: private for-profit corporations won’t care about the kids. But if the schools offer an inferior product, the customers will abandon you. What is public schooling? Is it that it’s free? That it’s available to all? Why are we so protective of public schools overseen by political school boards, when it’s failing so many kids? 2. Test scores of kids have flatlined. We’re not gaining traction, despite a staggering increase in public education. This data can be challenged, but Wilson thinks it’s sophisticated enough. Schools that have done better – Wesley Elementary, which adopted Direct Instruction, has kids in the 80th percentile despite poverty. KIPP, in the South Bronx, uses the Knowledge is Power program. This program has astonishing success. It has a very long school day, with kids coming in on Saturday. The question of scale: can we do this for tens of thousands of students? C. Obstacles to reforming the current system – it’s designed toward meeting the needs of employees. It has an intense focus on seniority and job security. It’s a compliance machine – people are focused on the astonishing requirements from lawyers. Current schools also use ineffective curricular methods 1. Can an exclusive franchise solve these problems? Would a market dynamic create a press for performance that would bring all schools up in performance? Wilson uses percentile rankings to show that if you can bring up the percentiles 5% every year, kids will have better outcomes D. The First Wave of Privatization 1. The BU/Chelsea Partnership – the University took the school over but didn’t win the crucial governance advantages. They were in the same role as the superintendent. So they were powerless to take the critical actions. But they recruited good superintendents and built new facilities. After 10 years in the partnership, the school was still the lowest scoring district in the state. The percentile gains were low – 1.3%, but that’s still a difficult gain. But taking into account demographics, this district is adding value 2. Educational Alternatives – implemented the Tesseract Plan. The political resistance was tremendous and performance declined. They did promise to transform the school district, but they didn’t have the tools to do anything different E. The Second Wave of Privatization Initiatives 1. Contract schools and charter schools. Contract schools are not completely private. Instead, a group of organizations entered into a consulting agreement with a public school. They could advise the people in charge but weren’t in charge themselves 2. Charter statutes vary widely across the states. These schools have high accountability for results but have a tremendous amount of authority in controlling staffing (writing job descriptions, hiring and firing) and controlling budget. The charter holder signs on with an education management organization (EMOs) – a complicated arrangement fraught with problems F. 3,000 charter schools – a very small percentage of kids. Is this going to get us anywhere fast enough? One of the problems with charter schools is that there’s a shortage of talent. People don’t want to go through this complicated organization G. A paradox of ownership – if these schools are about innovation, why are they all doing the same thing? H. Edison Schools enrolls about 80,000 students in 150 schools. It operates in urban poverty areas. It’s got a tremendous amount of capital, but the stock has fallen. KIPP (Knowledge is Power) – the Gap owners are trying to replicate this middle school model. Sabis – actually had experience overseas. k12 – virtual schooling at home that allows community between kids 1. What happened with Edison? It administers two kinds of tests. Norm-reference tests take your raw score and compares it with all other test takers nationally. If you go up percentile-wise toward 50%, you’re catching up to the average kid in your grade. Edison is outperforming other schools. Criterion-reference tests require a certain passing threshold. The question is whether you fail or pass. Edison Schools have shown a 4% higher pass rate. They’re adding value to the child’s education. Parent satisfaction in the Edison Schools is very high. Sabis sustains traction in the higher grades even though their elementary performance isn’t that great I. What can we learn from these experiments? School design – the school must be efficient. We want schools to take our resources and get good results. The design must also be scalable. Areas of innovation: more time on task. Governance advantages. Strength of belief in the system. Curriculum, pedagogy, and instructional products. Assessment (not endless testing, but…). Collective bargaining agreements aren’t inherited. (but if charter schools become more prevalent, will the teachers’ unions then step in and prevent them from gaining?) 1. EMOs are taking business managers like those at Stanford, who are in the school of ed but are working closely with the business school 2. Minow – why has Edison been kicked out and how do we ensure longevity of these programs? Are these like the dot-coms? The focus was too much on growth. Now traditional measures of value are in vogue – is it profitable now, not five years from now? In the non-profit sphere, there may be more alignment because philanthropists could be willing to put money in for the long term 3. The business model requires capital, but there’s been a lack of that for school buildings. The companies don’t have credit. There have been statutory caps on charters and contracts are difficult to enforce. The big for-profit corporation can’t really sue little school boards. We need more sophisticated education agencies to enforce contracts J. Culture and schools – many of these schools haven’t been attentive to culture. You have to have discipline and many of these schools open up and are completely chaotic. Lessons learned – your culture has to explicitly teach good behavior. You have to have clear, predictable, and fair standards for misbehavior. KIPP explicitly teaches skills and habits to realize aspirations. These kids say they’re going to be doctors and lawyers because the school has transformed their concept of their future K. How can disadvantaged parents be perfect choosers? Any product on the shelf will do a decent job, because the choosers have spoken in toto. The schools that totally don’t work will be known L. Are special education rules a problem? Wilson says no. But it will be harder to deal with if you can’t amortize the kids over the system. M. Issues with the charter school presentation – how we measure the test results; what happens to kids who don’t get in; how committed we are to the free market model; why the schools aren’t making money; what the EMOs actually do. KIPP doesn’t handle renting of facilities; it just runs the educational process

[edit] II. SCHOOL CHOICE

A. Assumptions Behind a Commitment to School Choice 1. Competition will lead parents and guardians to produce a dynamic of accountability 2. Parents and guardians will have access to reliable information about distinctions between programs 3. Successful schools will grow in enrollment and failing schools will shrink in enrollment or will close 4. Competition will cut through the burdensome bureaucracy that has affected school reform 5. Competition is well suited to the goal of education and will improve education 6. Competition will promote pluralism, desirable teaching methods 7. All other forms of school reform have failed and this is necessary even though it endangers the common school mission a. Attacks on these assumptions: parents’ activeness in this sphere will be widely distributed (but maybe we just need a critical mass); you could have shifting but not substitution. Schools won’t shut down soon, because there’s not enough capacity in a good school, and many people are wedded to neighborhood schools. Keeping a school small is a successful strategy in school reform. You can’t scale up a successful product in school reform. But maybe you redistribute students across the schools making class sizes more even b. Minow only finds #7 to be plausible. She prefers charter schools because experimentation is worth trying. There’s a lot of information out there that leads to success. But experimentation needs to retain public strings to the public money. Isn’t it interesting that school choice became an argument when desegregation and mainstreaming became prevalent? Is it just white parents with non-disabled kids wanting to pick the peer groups for their kids? Hopefully not, but these public strings should include continuing commitments to integration. There should also be a shared curriculum (Zelman – you can’t teach intolerance). If it’s public dollars, we should use public values B. What are the transitional problems and what problems run to the core? C. 2 Models of School Reform 1. Market/Choice with Tests & Standards (1980-present) a. The number of kids who are affected by choice is small, but tests and standardization affects all kids. We’re going to have to deregulate, but the question is what form that deregulation should take if we still need standardized results 2. The Rights-Based Model of Educational Reform (1954-1980) a. Brown is the exemplar of this, copied by advocates for girls, disabled kids, ESL kids. The rights model generated judicial management of the schools – and judicial pronouncements about the interests inherent in education. Due process and hearings are rights-based reform as well b. These two models have different time periods, but may overlap. The market/choice model may be a response to the rights-based model. We have to put these two models side by side and ask what happened to the earlier commitments to individual rights and equality when choice and standards took over D. Predictions About Current Developments 1. Short-term “Transition Problems” a. We’ll have to train teachers to administer tests and teach preparation for tests. Some will get it faster than others. If people learn the new system, then we won’t have this problem any more. Securing facilities for charter schools is also a short-term problem b. Charter schools may also have trouble defining governance procedures. Schools have to create a climate of trust and respect, with manageable workloads for those in charge c. They need to gain a stable financial base. Who has the staying power to see reform all the way through? You need an institutional commitment and financial stability. Maybe being concerned with scaling up loses the centrality of interpersonal connections. How do we compare the success of charter schools to other schools? Only 1% of students are impacted by choice, but the 1% has an influence on the 99% because it creates competition and a need for standards to measure differences d. Those starting charter schools are often isolated from others e. They have trouble projecting attractive public images f. Student diversity may also be absent or may be a source of tension g. Charter schools may also have trouble covering multiple grades. A K-1 program is not a school 2. Enduring Risks a. What are the predictable problems with choice and standardization? Lots of kids are going to be stuck in failing schools for a long time – the shift will not be quick. Choice will exacerbate the impact of a lack of parental involvement – since kids who don’t have strong advocates will be separated out. Some kids will be worse off than they are now b. Could create a generation of lab rats – with children the subject of experimentation. But every public system has one successful school – how do you spread success and scale it up? But it’s not that these schools are doing something amazing with regard to education – the features necessary for success are out of their control. Class size, parental involvement, etc. c. One school, Juanita Hills in Milwaukee, failed – and when kids switch schools, they’re set back big time. Was it worth it to have this resounding failure when other schools succeeded? There’s an absence of reliable comparable data. Maybe the testing services will work out ways of comparison or maybe external analysts will critique the schools and give information d. How about the risk that choice schools will skim off the top? Maybe force random, non-discriminatory admissions – the start of possible regulation of choice schools (but what about “benign” discrimination?). But you may still want to have elite examination schools. Should a religious school not be allowed to prefer or restrict admission to students who are members of that religion? What happens if they have to admit everyone? Does the character of the religious school change (if not, Establishment problem; if so, Free Exercise problem)? But that’s what they did in Cleveland. Vouchers and charters may provide different amounts of money and may determine the character of the schools e. Special needs kids may suffer in charter schools because you can’t spread out their cost. In the reading, there’s a debate in the literature about the effect on charter schools of the IDEA. Jay Heubert’s article says that the IDEA and other provisions apply to private companies running charter schools. Charter schools may not be part of the local school district, so they don’t fall under the definition of the LEA – therefore, each individual school building must ensure compliance with the IDEA. This is a much higher burden on the individual charter school because each one has to accommodate disabled kids (they can’t consolidate them in one school). Wong’s note – individual schools aren’t responsible, so disabled kids need to use § 504 of the Rehabilitation Act, which prohibits exclusion. Minow, not surprisingly, thinks Jay Heubert is right 3. A public good contains positive and negative externalities. Its benefits and burdens are non-exclusive  we can’t confine them to the person who paid for the good. Public goods do not lend themselves well to markets because of the free rider problem. Education may not entirely be a public good, but ensuring education for some is a benefit to all in society. Failures to educate also hurt all in society 4. Public education also has distinct purposes in a democratic society. We may doubt the origins and motives, but there is still a crucial reliance on schooling to promote civic engagement and make democracy work. People need to get a self-educating capacity in order to participate in democracy E. Public/Private Issues – “State Action” – Public Policies re: Private Choices 1. What ends up happening to disabled kids under vouchers? Strings will be attached to public dollars, and we need to figure out which ones apply to which choice schools. Does the existence of public funding create state actors? Due process rights against private schools just because funding comes from public sources – there’s a private school in Mass that helps disabled kids and gets 98% of its funding from the public. Baker – the Supreme Court rules that this school is private. The state action requirement is very strict – just public function or just public funding (even almost all the money) is not enough. But if this was a private police department, maybe that’s a traditional public function 2. Title VI attaches to any institution that receives public dollars. Whether these are public or private issues won’t be decided as a matter of law – it will be decided via argument F. What should be the mission of public education? 1. The equality movement pursued equal opportunity or quality opportunity on an equal cases. But it also wanted to promote commonality and engagement in the community 2. The choice and standard movement could be the natural heirs – we’re trying to hold every child to the same standard and ensure that every kid is getting opportunity. But this is a heavy emphasis on quality, not on social integration. We should still worry about how unregulated choice could undo commitments to equality. In a choice system, if you allow all-boys schools, comparable opportunities must be available (is that single-sex)? This is massive school reform like we haven’t seen in 30 years. 3. Choice has created possibility, and this is good. More people are committed to education now than have been in the past. This is also the end of business of usual – it’s not going to pass, especially if it means high expectations for every kid. But we risk abandoning a commitment to equality and free quality education for all children. Let’s not make schools private – let’s build innovation into a public system. We want to make all schools the kind that give every kid a fighting chance to succeed. We should build competition into the public system, promoting both equality and quality.