There is no judicially recognized federal constitutional right to education, as the United States Supreme Court held in San Antonio Independent School District v. Rodriguez.[1] Moreover, as far as the federal Constitution is concerned, states have no obligation to provide schooling to anyone, although many state constitutions do create such obligations. What the federal Constitution does require is that, to the extent states do provide public educational services, they must do so fairly and give students equal access. The Constitution and many federal statutes can be used to enforce the fairness and access requirements.
Equal Protection and Education
The Fourteenth Amendment to the U.S. Constitution states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” [2] This clause, known as the equal protection clause, forbids improper classifications between people, though, of course it does not (and cannot) prohibit all legal differentiations between people. Laws make all sorts of distinctions and treat different people differently for good and valid reasons. For example, children under 16 are usually subject to compulsory school attendance rules, while those over that age are not. Most classifications are subject only to rational basis review, which means that government classification and differing treatment is allowable as long as it is rationally related to a legitimate government interest.[3]
However, laws that differentiate based on “suspect” classifications, such as race, religion and national origin, are subject to strict scrutiny, which means that they are permissible only if they are “narrowly tailored” (which means the only or least restrictive way necessary) to further a “compelling governmental interest.”[4]
There are also “quasi-suspect” classifications, such as those based on gender, that are subject to “intermediate scrutiny,” which means that the classification be “substantially related” to an “important” government interest.[5]
The equal protection clause applies to all government decisions about education, and so states may not make distinctions between students unless the distinction stands up to the appropriate level of scrutiny. So, a state regulation that differentiates based on age or income would be subjected only to rational basis review, while educational classifications based on race or national origin would be subject to strict scrutiny. Applying equal protection, courts have struck down government policies that discriminate between students because of their race, sex and national origin.
Probably the most well-known and significant Supreme Court decision on equal protection in education was the landmark 1954 case, Brown v. Board of Education of Topeka.[6] For nearly a century after the Civil War, many states (including states that were not part of the Confederacy) had segregated public school systems, providing separate schools for white students and black students. This practice had been defended under the doctrine of “separate but equal.”[7] In Brown, while the Supreme Court refused to repudiate the concept of “separate, but equal,” it found that, in public education at least, separate was inherently unequal. Thus, state laws creating and maintaining racially segregated schools violated equal protection.[8] This decision meant that segregation mandated by law or policy was unconstitutional.
A year later, in Brown II,[9] the Court convened to dictate remedies to enforce its ruling. The Court found that it would be impractical to completely dismantle state educational systems and rebuild them overnight, and instead ordered that the schools be desegregated with “all deliberate speed.” That began decades of lawsuits over when and how to desegregate school systems around the country. Even after explicit policies mandating segregation were outlawed, policies and practices persisted that had the practical effect of continuing racial segregation. In 1968, the Supreme Court held that states and local school districts had an affirmative duty to eliminate the vestiges of past racial discrimination “root and branch.”[10] In that case, Green v. County School Board, the Court listed several factors, often called the Green factors, that school authorities must consider to ensure that they had racially integrated schools: student assignments, faculty, staff, transportation, extracurricular activities and facilities.[11]
The Court also held that while segregation arising from policies intended to have the effect of segregating races was unconstitutional, segregation that occurred because of private choices, like people’s decisions to move to racially segregated neighborhoods, was not unconstitutional.[12] Further, once school districts were found to be integrated, previous efforts to consciously balance the racial composition of the school system would have to cease.[13]
The Equal Educational Opportunities Act of 1974 added statutory language that reinforces the constitutionally mandated ban on all intentional racial segregation and also segregation on the basis of national origin. [14]
Other Classifications in Public Schools
Educational classification based on the students’ sex, including setting up separate schools for boys and girls, is subject to intermediate scrutiny. Under this level of scrutiny, the Supreme Court has held that students of one sex may not be kept out of educational services provided for the other sex, such as publicly supported nursing schools (which some states once barred men from attending)[15] or state-run military schools (where some state schools had barred women).[16]
On the other hand, gender-segregated public schools are constitutionally permissible, as the “separate but equal” concept that was struck down by Brown as applied to race, has been held to be a tenable paradigm with respect to gender. In fact, there are quite a few gender-segregated public schools in operation. One recent survey found 283 public single-gender schools in the United States.[17] If these schools offered certain kinds of programs only to one sex or the other, however, it is probable that the courts would strike this down for the same reason as the Supreme Court struck down efforts to keep men out of nursing schools and women out of military schools. While efforts to challenge all single-sex education in public schools have failed, at least one case appeared, before it was settled, likely to succeed in challenging single-sex assignments that were not totally voluntary.[18]
Classifications in education based on immigration status have been examined using inconsistent standards, though the Supreme Court appeared to apply intermediate scrutiny in at least one case.[19] It can be assumed that state restrictions on the rights of immigrant children, undocumented or not, will be carefully examined by courts to determine whether there is appropriate justification. The Supreme Court has held that schools may not adopt measures intended to prevent immigrants, even undocumented immigrants, from attending school. The school, for example, may not demand proof of legal resident status for all children, but may seek proof of residence in the district. Moreover, immigrant children, documented or undocumented, have the same obligation to attend school as citizens and permanent residents if they are of the age required to attend school.[20]
Some have argued that public school policies that treat rich and poor students differently, or that have an unequal impact on rich and poor students, violate the equal protection clause.[21] For instance, some public schools, even in states that explicitly state in their state constitutions that public schools are to be free, impose fees to participate in sports or extracurricular activities. Such fees may have the effect of making it financially impossible for children from families of limited means to participate in these activities.
However, as wealth is not a suspect classification, policies that affect the wealthy and the poor differently are subject only to rational basis review, the most lenient standard. Under that standard, the Supreme Court has found that school fees for extracurricular activities are constitutionally permissible, since they are rationally related to a legitimate government objective, which is trying to provide these opportunities on limited budgets.[22] In fact, even fees for bus transportation to and from school were found acceptable because of the state’s justification that busing was expensive in rural areas and needed to be subsidized by fees to be practical.[23]
Equal Educational Opportunity Under Title IX
There are several federal statutes intended to ensure equal educational access. These statutes include protecting students from exclusion due to gender, national origin, and language. One of the most important is popularly known as “Title IX.”
The Education Amendments of 1972, adding Title IX to the Civil Rights Act of 1964, declares that “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 financial assistance.” [24] Public schools and universities in every state receive federal aid, and thus Title IX applies to them. Title IX also applies to private universities which receive federal assistance in one way or another (such as Pell grants and federally insured Stafford loans). One significant way in which Title IX affects education is school athletics. While distinctions are allowed for contact sports,[25] and schools may provide separate boys’ and girls’ teams for each sport,[26] no person can be otherwise excluded from equal athletic opportunities.[27]
Title IX also extends to prohibiting sexual harassment of students. This includes harassment by the school or its employees and harassment by other students when the school does not do enough to prevent or stop the harassment. Institutional tolerance of sexual harassment of a student by other students can also subject the school to liability for damages in a civil lawsuit.[28] The Department of Education’s Office of Civil Rights interprets Title IX to impose liability on a school district if (1) the harassment was severe, pervasive, or persistent; (2) school officials knew or should have known of the harassment; (3) the school’s response failed to stop the harassment; and (4) the harassment interfered with the student’s education services.[29]
Compliance with Title IX requires: First, dissemination of a notice of anti-discrimination policies and procedures; second, the identification of a Title IX coordinator, and finally, adoption and implementation of complaint and grievance procedures. The Office of Civil Rights also emphasizes that schools should provide “training for administrators, teachers, and staff and age-appropriate classroom information for students . . . to ensure that they understand what types of conduct can cause sexual harassment and that they know how to respond.”[30]
At one time, the Department of Education’s Office of Civil Rights considered harassment of a student due to sexual orientation to be a form of discrimination forbidden by Title IX. However, in 2017, the Office of Civil Rights issued a guidance letter stating its view that Title IX does not prohibit discrimination on the basis of sexual orientation.[31] The courts have not definitively accepted this view, and some courts have found sexual orientation discrimination to also be covered by the sex discrimination provisions in Title VII of the Civil Rights Act of 1964, which address employment discrimination.[32]
In May 2016, The Office of Civil Rights also provided a guidance document that held that Title IX protection extended to transgender students.[33] However, the Office of Civil Rights also withdrew that guidance in February of 2017.[34]
In addition, the Department of Education has promulgated regulations that prohibit discrimination against students on account of their marital status or pregnancy.[35] Schools may require pregnant students to obtain medical certification that it is safe for them to participate in certain school activities, but otherwise, schools may not bar students from any educational activity just because the student is married or pregnant. Furthermore, the school must make any reasonable accommodations necessary to allow pregnant students to participate in educational activities.[36]
Required Accommodations for English as a Second Language Students
In addition to Title IX, the Civil Rights Act of 1964 protects students against other forms of discrimination, including discrimination based on race, color or national origin.[37] In Lau v. Nichols, the Supreme Court held that this protection against national origin discrimination means that schools must provide English language instruction to non-English speaking students.[38] Under Lau, public schools are required to provide an adequate English language bridge for non-English speaking students to allow them the opportunity to benefit from instruction that is given in English.
The Equal Educational Opportunities Act of 1974 addressed English as a second language students. The Act requires each state “to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional program.” [39] Interpreting that Act, the Supreme Court held that the state could not simply claim lack of funding as an excuse not to provide such programs. Furthermore, the Court stated that, in crafting the program, student outcomes, rather than school funding priorities, should guide the decision-making process.[40]
On the other hand, the Court cautioned that states have a great deal of latitude in crafting ESL programs and criticized the earlier proceedings in the lower courts for failing to consider all the state’s reasons for its actions.The Court also declined to provide any specific tests to be applied to the state’s decisions.[41] In later proceedings in the lower courts in that same dispute following the Supreme Court’s decision, the Court of Appeals for the Ninth Circuit found that the ESL program in Arizona did not comply with the Equal Educational Opportunities Act because it did not provide sufficient funding for ESL programs.[42]
In Castañeda v. Pickard, the Court of Appeals for the Fifth Circuit created a test against which to measure ESL programs.[43] While it’s binding only in that Circuit, the Department of Education’s Office of Civil Rights called the Castañeda decision “seminal” and has urged that its test be followed.[44] Under this test, an acceptable program for English-language learners must meet three criteria. First, the program must have a curriculum that is recognized by experts in the field. Second, the program must use methods that are effective in carrying out the curriculum. Third, the program must be reviewed after its implementation to determine whether it has proven successful in helping to overcome language barriers. If not, the program must be changed. The Castañeda court also held that students learning English as a second language should be able to receive the rest of the school’s educational opportunities regardless of any language barriers.
[1] 411 U.S. 1 (1973).
[2] U.S. Constitution, amendment XIV.
[3] Federal Communications Commission v. Beach, 508 U.S. 307 (1993).
[4] Adar and Constructors v. Peña, 515 U.S. 200 (1995).
[5] Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982).
[6] 347 U.S. 483 (1954).
[7] See Plessy v. Ferguson, 163 U.S. 537 (1896).
[8] 347 U.S. at 495.
[9] Brown v. Board of Education, 349 U.S. 294 (1955).
[10] Green v. County School Board, 391 U.S. 430 (1968).
[11] Id.
[12] Milliken v. Bradley, 418 U.S. 717 (1974); Board of Education v. Dowell, 498 U.S. 237 (1991).
[13] Dowell,498 U.S. 237.
[14] 20 U.S.C. § 1701.
[15] Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982).
[16] United States v. Virginia, 518 U.S. 515(1996).
[17] https://www.edweek.org/ew/section/multimedia/single-gender-public-schools-in-5-charts.html
[18] Doe v. Wood County Board of Education, Civil Action No. 6:12-0CV-04355, S.D. W.Va., settlement discussed in https://www.realcleareducation.com/articles/2014/04/22/ed_law_briefly_opt-out_v_opt-in_for_single_sex_education_949.html
[19] Plyler v. Doe, 457 U.S. 202 (1982).
[20] Id.
[21] See, e.g., the petitioner’s claims in Kadrmas v. Dickinson Public Schools, 487U.S. 450 (1988).
[22] Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988).
[23] Id.
[24] 20 U.S.C. § 1681
[25] 34 C.F.R. § 106.34.
[26] 45 C.F.R. § 86.41.
[27] Id.
[28] Franklin v. Gwinnett, 503 U.S. 60 (1992).
[29] See Davis v. Monroe Cty. Bd. of Educ.,526 U.S. 629 (1999)
[30] <https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/sex.html>
[31] <https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf>
[32] See, e.g., Zarda v Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018); Hively v. Ivy Tech Community College,853 F.3d 339 (7th Cir. 2017).
[33] U.S. Dept. of Education, “Examples of Policies and Emerging Practices for Supporting Transgender Students”, May 13, 2016, https://www2.ed.gov/about/offices/list/oese/oshs/emergingpractices.pdf
[34] https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf
[35] 34 C.F.R. §106.40.
[36] Id.
[37] 42 U.S.C. §2000d.
[38] 414 U.S. 563 (1974).
[39] 20 U.S.C. § 1703(f).
[40] Horne v. Flores, 557 U.S. 433 (2009).
[41] Horne v. Flores, 557 U.S. 433 (2009).
[42] Flores v. Arizona, 516 F.3d 1140 (9th Cir. 2008).
[43] Castañeda v. Pickard, 648 F.2d 989, 1009-10 (5th Cir. 1981).
[44] <https://www2.ed.gov/about/offices/list/ocr/ell/edlite-glossary.html>.