Education law reflects the interests of many different parties in schools; the interests of parents, students, the communities in which the parents and students live and the teachers who work in schools. Furthermore, education law serves important national goals. Both federal and state law impacts education as education is one of government’s most important services to individual citizens.
From one perspective, education is an important service the government provides (in the case of public schools) or regulates (in the case of private schools). Parents rely on schools to help prepare their children for adult life and careers. Their children, who are the students at schools, rely on the education government provides and regulates to give them the knowledge and abilities they will need for their adult lives and careers.
From another perspective, however, government involvement in schooling is not merely a benefit to families, but also imposes burdens on them. This most directly manifests itself in the burden of mandatory attendance in school. Parents who do not send their children to school can be punished and truant children can be forced to go to school.
Communities rely on government’s provision and regulation of education to allow them to persevere. The students of today will be the fully participating members of the community in the future. Finally, of course, the teachers at the school have a significant stake in the way the school is organized and run, including the terms and conditions of the teachers’ own employment at those schools.
Sources of Education Law
In one of the most famous decisions the Supreme Court ever decided, Brown v. Board of Education,[1] the Court stated that “today, education is perhaps the most important function of state and local governments.” In the United States, education traditionally has been considered primarily a function of state governments, and even within states much of the control of education is given over to local school boards. Every state’s constitution mandates a public-school System, making provision of education a fundamental obligation of the state.[2] The languages of state constitutions vary, so the exact extent of that obligation varies, but all states provide public education as a matter of right.
Though each state also exercises a great deal of control over the basic curriculum of the schools, funding mechanisms for the schools and other important matters, many of the important details are left to local school boards, typically elected locally. Recent decades have seen increased state oversight and increased state limits placed on the independence of local boards, but local school boards still exercise a great deal of authority.[3]
Under our federalist system, traditionally, the federal government had very little involvement in education. This is reflected in the fact that many state constitutions make education a fundamental obligation for state governments, but the federal constitution does not mention education at all. Furthermore, in 1973, the United States Supreme Court ruled that education is not a fundamental right that the Fourteenth Amendment to the U.S. Constitution protects.[4]
Although there is no federal constitutional right to education, the federal government has come to play an increasing role in regulating education.
The U.S. Supreme Court recognized, in the famous Brown v. Board of Education decision, that education is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship.
Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him adjust to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity to an education.”[5]
Although it is not recognized as a federal constitutional right, given the significance of education there is a federal constitutional right to have the laws providing education treat all equally.This was the basis for the decision to desegregate schools in the Brown decision, and also the basis for a number of statutes intended to provide equal educational opportunities for all children irrespective of race, religion, sex and disability. There also is a strong federal interest in providing states with assistance in meeting the states’ own obligations to provide public education.
Compulsory schooling
The interests of the many stakeholders in education are reflected in the now-universal compulsory schooling laws. Not only is government required by law to provide public education as a service to students and their parents,[6] but the parents, by law, are required to send their children to school, and those children are required by law to attend.[7] This obligation shows that education is intended for the benefit of the entire community, not just the individual families and children.[8]
In every part of the United States, there are laws making education compulsory up to a certain age, usually sixteen.[9] On the other hand, though the states are required to provide a public-school opportunity, families are not required to send their children to public schools. Families can meet their compulsory education requirements by sending children to private schools. Nearly a century ago, the Supreme Court held that mandating that parents send their children to public schools “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”[10]
Still, the same Supreme Court decision also recognized that states have the power to reasonably regulate all schools.This includes the power to inspect schools at any time, supervise and examine them and to ensure that teachers are properly qualified.[11] The states further have the power to require that “certain studies plainly essential to good citizenship must be taught, and that nothing be taught that is manifestly inimical to the public welfare.” Therefore, states have the power to exercise considerable oversight concerning what is taught in private schools, and by whom. At its most basic, the state’s power is to mandate that students attend school for a certain number of hours, for a certain number of days each year, from a certain minimum age (for example, the age of six or five) until a maximum age (often, sixteen) and that they learn from a state-approved curriculum from a state-approved teacher or teaching platform.
The state also can allow students to be home schooled or to attend a new variation that has arisen in recent decades, a form of home schooling that is assisted by a private online educational provider.This last form of schooling is called “cyber schooling.”[12] These processes, too, can be and are regulated by the state.
Exemptions from Compulsory Schooling
Given that the state has the power to mandate schooling, this necessarily means that, in some way, it restricts the liberty of families to make their own choices about the educations of their children. While states can force parents to educate their children, some liberty interests are considered so significant that they have mandated some exemptions from schooling.
The primary reason families have been allowed exemption from compulsory education is based on the First Amendment’s protection of religious expression. In Wisconsin v. Yoder, the Supreme Court held that Amish children could not be required to attend school past the eighth grade because their parent’s fundamental right to freedom of religion outweighed the state’s interest in compulsory education.[13] The Court developed a three-part test for deciding when religious interests outweigh state interests in compulsory education. First, it asked whether the religious beliefs in question were sincerely held. Secondly, it asked whether state law did, in fact, seriously burden those beliefs. If the answer to both those questions is yes, the Court balanced the state’s interests against the free religious exercise interests of the parents.
Families also have liberty interests in controlling the curriculum of schooling. About a century ago, in Meyer v. Nebraska, the Supreme Court struck down a Nebraska statute that forbade private schools from teaching in a language other than English.[14] The purpose of the statute was to ban teaching in German and the teaching of German as a foreign language due to the intense anti-German feeling that arose during World War One. This statute affected many local parochial schools, which often taught students in German. The Court stated that, though the state has a great deal of power to set standards for education in order to “improve the quality of its citizens,” the individual retains certain fundamental rights which include the right to learn and speak languages other than English. Though not written as a First Amendment case, the Court in recent years has suggested the Meyer decision could be understood as protecting rights of free speech and expression.[15]
Meyer limited the power of the state to restrict educational offerings. It is not permissible to force students to give up a language or to bar them from learning other languages. That same rationale can be extended to allowing students to learn other subjects as well that might not be within the scope of the state’s mandatory curriculum. Certainly, states cannot ban private religiously oriented schools from teaching religion classes. For example, parochial schools run by a local Roman Catholic diocese can teach the doctrines of the Catholic Church.[16] However, the state does have the power to require certain subjects be taught even if the private institutions would rather teach other extra material.
To take the facts of Meyer, while the state may not forbid teaching in German, it certainly could mandate that a student be required to learn English and take examinations that show a proficiency in English. Moreover, some states have mandated that all instruction in public schools be in English, although under Meyer that cannot be required in private schools and in home-schooling.[17] While many argue that English-only laws are not good educational policy, there does not seem to be any serious argument that they are unconstitutional.
State Assistance to Private and Parochial Schools
States can and do mandate that students attend school for a certain period of time during certain specific years of their lives and can and do mandate certain core curricular standards. However, students must be allowed to actually do their schooling outside of the public schools, in private schools or home schooling. Many states do more than allow private schools, however; some provide affirmative assistance to them. For example, Pennsylvania law dictates that if a school district provides free busing to public school students, it may also provide that same free transportation service to students at a nonpublic school if the school is not operated for profit.[18] In practical terms, this largely means that Pennsylvania parochial school students attending schools run by the Roman Catholic Church are provided transportation in school buses paid for by the local public school districts.
Such assistance to private schools is the other side of the coin from the question of whether states are required to allow private schools to serve as the means for students to meet the states’ compulsory education requirements. Especially when the private school is affiliated with a religious organization and includes religious instruction in the curriculum, there have been efforts to challenge that assistance as a violation of the First Amendment’s prohibition on the establishment of religion.
The Supreme Court’s decision in Lemon v. Kurtzman established a test for how much and what kind of state support is permissible for private religious schools.[19] The test contained three parts. The state law at issue must have a secular purpose; its primary effect must “neither advance nor inhibit religion;” and it must not lead to “excessive government entanglement with religion.”[20] The test is not easily applied, however, and for the last half-century where to draw the line has never been clear. On the one hand, the first Pennsylvania statute providing free busing to parochial school students has been found to pass the test in Lemon, because providing transportation to students to get to school does not entangle the state in the religiously-oriented portion of the curriculum during the day.[21] On the other hand, state laws that provided supplemental pay to teachers in parochial schools when they taught state-mandated secular subjects have been struck down because they require the state to become involved in monitoring what is and is not religious education, and thus are too “entangled” with religion.[22] In another application of the Lemon test, a local school district policy requiring intelligent design to be taught as an alternative to evolution was found to fail the first prong of the three-part test, as it was intended to advance religion rather than a scientific theory.[23]
In particular, controversy has surrounded proposals that the government provide so-called “vouchers” to parents of school age children; that is, public money is given to families to spend at private schools to pay tuition in those schools.The voucher idea is quite hotly disputed on policy grounds, but no question about whether vouchers to private schools are constitutionally permissible has been raised in cases where the private school is not religiously affiliated. In 2002, the U.S. Supreme Court decided in a 5-4 decision that even voucher programs that paid for tuition at religiously-affiliated private schools were constitutionally permissible because the school voucher program did not directly encourage or inhibit religion. This was, in part, because the aid was given to parents rather than to the schools, and it was the parents’ choices, not the government’s choices, that may have in some way advanced religion.[24] This appeared to overrule an earlier Supreme Court decision that found that a program that provided tax credits and tuition reimbursements failed the second prong, as these were seen as advancing the religion taught in those schools;[25] yet the Court did not claim to be modifying or changing the underlying Lemon test.
In our next module, we’ll focus on school curricula and who controls what children are taught in schools.
[1] Brown v. Bd. Of Educ., 347 U.S. 483, 493 (1954).
[2] “Constitutional obligations for public education,” https://www.ecs.org/wp-content/uploads/2016-Constitutional-obligations-for-public-education-1.pdf
[3] Donald Uerling and Robert O’Reilly, “Local Control of Education,” Public Policy Center, University of Nebraska (1989), at http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1031&context=cpar
[4] San Antonio v. Rodriguez, 411 U.S. 1 (1973).
[5] 347 U.S. at 493.
[6] See footnote 2, supra.
[7] National Center for Education Statistics, Table of state compulsory education law, .
[8] Brown v. Board of Education, 347 U.S. at 493 (“Education… is the very foundation of good citizenship.”)
[9] National Center for Education Statistics, Table of state compulsory education law, https://nces.ed.gov/programs/statereform/tab5_1.asp
[10] Pierce v. Society of Sisters, 268 U.S. 510 (1925).
[11] U.S. Department of Education, “State Regulation of Private Schools,” https://www2.ed.gov/admins/comm/choice/regprivschl/regprivschl.pdf
[12] http://www.educationplanner.org/students/preparing-for-school/college-prep/cyber-school-students.shtml
[13] Wisconsin v. Yoder, 406 U.S. 205(1972).
[14] Meyer v. Nebraska, 262 U.S. 390 (1923).
[15] Troxel v. Granville, 530 U.S. 57 (2000) (Kennedy, dissenting).
[16] Pierce v. Society of Sisters, 268 U.S. 510 (1925).
[17] For example, Arizona has an English-only education law, enacted in 2000, but which appears on its way to repeal. https://www.azmirror.com/2019/03/13/bill-to-repeal-arizonas-english-only-law-moves-forward/.
[18] 24 Pa. Stat. § 13-1361.
[19] 403 U.S. 602 (1971).
[20] 403 U.S. 602.
[21] McKeesport Area School District v. Pennsylvania Department of Education, 446 U.S. 970 (1980).
[22] 403 U.S. 602.
[23] Kitzmiller v. Dover Area School District,400 F.Supp. 2d 707 (M.D. Pa. 2005)
[24] Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
[25] Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973).