EDUCATION LAW A basic description of laws pertaining to education in the United States: Kids have to go to school, but it can

be public or private. Parents can supplement their childrens education, but if a parents desire to control his childs education conflicts with the state, the state is almost always going to win. The government can regulate all education, public and private, to achieve an educated population. If youre really religious and youre faith historically does a good job of educating children, you can take your children out of school. The state can ensure private schools do a decent job. The state cannot give the appearance that it is promoting religion in schools. There are some tests for what constitutes appearance. The state cannot indoctrinate students with political ideology, but it can test them on ideology. Teachers can search students if they have the slightest reason. Teachers can hit students but if they hit them hard enough they can be sued. If a student gets kicked out of school for more than a couple weeks, you have to tell him why and hear his side of the story. School boards set the curriculum and teachers cannot deviate. Teachers are incredibly important so we can refuse to hire illegal immigrants. Teachers cannot say anything about the school that would really stir things up at the school, even if its true. Teachers cannot say anything about the school that he knows or should know is false. If a teacher has been working for the school for a while, the state cannot fire him without telling him why and hearing his side of the story. Every state defines a while differently. Schools must have desegregated students, faculty, administration, facilities, transportation, extracurricular activities, and student academic achievement. If one of these is not desegregated, the court can tell the school what it must do. Affirmative action is ok, but you can only pick groups that have been discriminated against and you cannot let them in solely because of their race. If a school that takes federal money intentionally discriminates against students, they can sue the school. If the school effectively but not intentionally discriminates and the Department of Education has a rule against that, then the DOE can withhold funds, but parents cannot sue the school. But, parents can sue the DOE and get them to withhold funds. A disabled student cannot be totally excluded from school or discriminated against solely because of his disability. Schools have to create individualized educational programs for every disabled student and if the parents dont like the program they can appeal in court. The program must provide some educational benefit, basic accommodations necessary for the student to learn, and mainstreaming to the extent possible without subjecting other students to danger or disruption. Overview

Sub DP - Direct childs upbringing The issue is whether the policy violates the right, established in Pierce, of parents to control the upbringing of their children. The primary counterweight is also established by Pierce, and that is the authority of the state to reasonably regulate all education and to require attendance of students within a certain age range. In Duro, the Court specifically held that A state has a compelling interest in compulsory education, in order to prepare citizens to participate effectively and intelligently in our political system and to prepare individuals to be self-reliant and selfsufficient participants in society. Duro: Cannot remove students from school unless the state can be assured that they are receiving education designed to make them productive Tokushige: prohibits the state from denying parents the right to control the upbringing of their child by closely regulating after-school programs Meyer: banning an entire field of study, such as a language, is without reasonable relation to any end within the competency of the State. Further, the right of parents to engage a teacher to instruct their children are within the liberty guaranteed under the 14th Amendment Goff: rational basis for state authority to control education (absent a free exercise claim)

Free Exercise and compulsory attendance The issue is whether the policy violates the Free Exercise principle within the 1st Amendment. The state would argue that Pierce gives it the right to reasonably regulate all education [as well as specific precedent]. The parents would argue that they have a valid Free Exercise claim under Yoder. They would claim that (1) they have a religious belief (not a philosophical belief); (2) which they hold sincerely; and (3) which is substantially burdened by the policy. They will then claim that the burden outweighs the level of state interest, but this depends on whether their alternative provides their children with comparable education. Smith: neutral, generally applicable laws do not violate the free exercise clause; Hybrid exception in cases like Yoder that involve free exercise and an additional right, then apply a Yoder analysis (not Smith). This has huge implication for education law cases, because almost all should be hybrids in this context. Prof: As long as the states not singling out a religion for disadvantage, its ok. Says all the other cases are hybrid cases.

Sub DP - Direct childs upbringing (by regulating secular private schools) The issue is whether the regulation of private schools in this manner exceeds the authority stated in Pierce for the state to reasonably regulate all education, public and private, and unduly infringes on the substantive due process right of parents to control their childs upbringing, also established by Pierce. None of the following cases are necessarily authoritative no SCOTUS precedent in this area; remember though that Pierce compromise allows some reasonable regulation of all schools. Benton: allows states to regulate equivalent instruction through teacher certification and student accountability Goff: can require standardized testing in private schools; rational basis for state authority to control education (absent a free exercise claim) b/c impossible to run school if every decision can be challenged by strict scrutiny. See also Herndon. Whisner: cannot mandate 100% of private schools curriculum; Although educational standards were facially neutral, they unduly burdened the parents' free exercise rights because they interfered with the school's ability to devote time to the teaching of religious subjects. N.C. regulation of private schools - N.C.G.S 115C-547 to 565 Establishment clause in public schools keeping religion out of schools The issue is whether this policy is valid under the Establishment Clause. The EC is analyzed under a number of rubrics, but still principally through Lemon, which prohibits state action that does not have a plausibly secular purpose, has

the effect of principally advancing or inhibiting religion, or excessively entangles government with religion. This case potentially implicates all three prongs. Jaffree: plausible secular purpose for a moment of silence; introduces the endorsement test McCreary: cannot be a sham reason Weisman: cannot allow group religious practice during official school functions b/c of indirect coercion Sante Fe: cannot allow group religious practice during official school functions even when students control most of the content and procedure Aguillard: cannot add religiously motivated curriculum, i.e., creationism, b/c it fails Lemon (lacks a clear secular purpose) and the endorsement test by advancing the religious belief that a supernatural being created humankind. Legislative history also indicates religious motive. Mozert: cannot subtract material for religious reasons, i.e., critical thinking readers; Schools are very important, and some public schools offend some people deeply. Cannot ban topics offensive to religion (secular humanism); secular education does not violate free exercise of religion; compelling interest in learning complex moral and social issues; narrowly tailored b/c no other way to teach these issues than by discussing them. Van Orden: can allow passive religious monuments; can consider the nature of the monument and our Nations history. Nyquist: govt cannot give money directly to private schools, even for non-educational purpose, b/c the effect will be to advance the mission of some religious schools Muller/Zelman: can allow tax deductions/vouchers principally for private school tuition b/c its being given to everyone and sub DP outweighs. Extensive Lemon analysis. Davey: can prohibit use of state funds from going to religious schools; this does not unconstitutionally singled out religion for unfavorable treatment without being narrowly tailored to achieve a compelling state interest (i.e., the establishment of religion by funding devotional degrees) and the exclusion of such funding placed a relatively minor burden on the student. Agostini: religious schools can receive supplemental remedial education so long as safeguards exist In case we get a judge that wants to complete the courts move away from Lemon and adopt a different test, there are two other versions of the EC test that should be considered. The first is the endorsement test which comes from OConnors concurrence in Jaffree and holds that no state actor (to include public schools) can act such that a reasonably objective observer would conclude the state was advancing or impeding religion. This test is decidedly more flexible then Lemon because it incorporates the view, popular with Rehnquist, Scalia, and by some accounts Madison, that the separation between church and state makes room for some accommodation of religion (i.e., religious monuments not placed prominently before a captive audience - Van Orden). The third test the court may use is the coercion test that comes from Weisman and prohibits religious practices in public schools that carry a particular risk of indirect coercion. This test is based largely on the susceptibility of youth to peer pressure and the threat of conformity to a religious belief just for the sake of getting along. It may seem on the facts that this test would not apply because it requires granting the premise that the issue in question is a religious practice, but to the extent that it may be religiously motivated, the court may be concerned that students with alternate or even opposing religious views may simply accept the practice. 1st and 14th Political inculcation of students and power to prescribe political curriculum The issue is whether this policy violates the students 1st Amendment protection against political indoctrination at school, or whether it is permitted by the states authority, asserted in Pierce, to reasonably regulate education. Barnette: violates 1st Amendment to force children to declare a political belief, i.e., saluting the flag, b/c it invades their personal sphere of intellect; under the 14th, freedom of speech can only be violated if to prevent grave and immediate danger to interests which the state may lawfully protect; can teach history that tends to inspire political beliefs; can require political beliefs be taught and tested, but cannot require shows of affirmative belief. Pico: cannot ban curriculum simply because they dislike the ideas 1st amendment right to learn; can ban b/c of vulgarity of inappropriateness

Turnipseed: racial discriminatory motivations for the suppression of ideas violates 1st Amendment Herndon: can mandate student activity outside of school that serves rational education interest Pierce right (to control your childs upbringing) is fundamental, but it gets rational basis review for practical reasons (see also Goff) Pierce is extended by Monteiro: allows schools to require students learn material that may be offensive to some as long as it has intrinsic educational value as determined by the school board. N.C.G.S. 115C-81(g): state can set up a curriculum encouraging good citizenship 1st Student speech and due process The issue is whether the policy violates the students 1st Amendment right to freedom of speech. The primary test in this area comes from Tinker, which holds that students do not lose their constitutional rights at the schoolhouse door (schools are not enclaves of totalitarianism), but allows schools to prohibit student speech that will substantially and materially interfere with instruction. Fraser: or when it is obscene and impedes the schools mission of inculcating values of decency. Morse: even when student speech is ambiguous, if it hints at illegal/immoral activity, schools can regulate; even if speech is not on school grounds Holsinger: when prompted by educational concerns, school officials have the discretion to remove a symbol that bears the schools stamp of approval Hazelwood: alternate test: allows schools to regulate school forums (i.e., student newspapers) if there is a valid educational reason. Mahaffey: Defendants' regulation of Plaintiff's speech on the website without any proof of disruption to the school or on campus activity in the creation of the website was a violation of Plaintiff's First Amendment rights. *At odds with Morse. Brandt: We must be precise about the right that the plaintiffs sought to vindicate by protesting. It is the right to an explanation by the school for how the election to pick an official eighth-grade T-shirt was conducted. We do not think eighth graders have such a right. For the school to hold an election for class T-shirt and rig the results, as the plaintiffs suspect happened, is probably not a recommended educational practice, but it is not an infringement of any legal right Prohibiting children from wearing to school clothing that contains inappropriate words or slogans places appropriately broad limits on the school authorities' exercise of discretion to maintain a proper atmosphere. Tighter limits, expressed in precise rules, would prevent them from responding to novel challenges well illustrated by the present case The existence of discretion implies a license to make mistakes. Freedom from unreasonable search/seizure The issue is whether the policy violates the students protection under the 4th Amendment against unreasonable searches and seizures. The primary test in this area comes from New Jersey v. TLO, which holds that students do not lose their 4th Amendment rights at the schoolhouse door, that students do have legitimate expectations of privacy on school grounds, and that school officials, unlike parents, cannot claim immunity for conducting searches. However, TLO lowers the constitutional bar for school officials by not requiring a warrant, or probable cause to conduct a search. Rather, the legality of a search of a student depends only on the reasonableness, under all the circumstances, of its initiation (grounds for believing search will turn up any evidence of any school violation: personal observations, reliable hearsay, criminal profiles, unprovoked flight) and scope (the measures adopted must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction). The dissent, however, makes a strong argument that basing the reasonability of a search on any school violation standard is dangerously broad. What constitutes reasonable suspicion has been expanded twice: Vernonia: can conduct suspicionless, nonindividualized searches if narrowly tailored to address a particular concern; circumstances may limit privacy interest and invasion Earls: can conduct suspicionless, preventive searches as long as a widespread social problem exists and there is some evidence it exists at the school

Due Process - Student discipline The issue is whether the student was deprived of his 5th Amendment guarantee of due process. Pierce grants schools the authority to reasonably regulate the educational environment. However, any time life, liberty, or property is restricted, due process is owed. Goss holds that a student's entitlement to a public education is a property interest protected by the Due Process Clause (protection against arbitrary deprivation of liberty). Goss: cannot suspend student for 10 days without providing some due process (notice, explanation of evidence, and an opportunity to explain); lots of analysis Ingraham: can issue corporal punishment without pre-due process because civil law covers excessive use and it would overly burden its use; Post-due process is available - sue for battery Fraser: general prohibitions on conduct are not unconstitutionally vague (denying due process by denying notice), as long as the sanction is not too drastic. Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. 1st Teacher speech (curriculum) The issue is whether the teacher was deprived of her 1st Amendment right of freedom of speech when she advocated for a change in the curriculum. Tinker holds that teachers do not lose their constitutional rights at the schoolhouse door, but Hazelwood allows the principal and school board to regulate curriculum in a reasonable manner when the regulation has a valid educational purpose. Additionally, Cary v. Board of Education holds that teachers have some rights under 1st, but school board and principal can set curriculum and prohibit teachers from using certain books, even when the motivation is purely political. Boring: any part of the school curriculum, i.e., a play, does not present a matter of public concern and can be regulated by the school for any valid educational reason Garcetti: speech made strictly in course of duty, i.e., whistle blowing, is not protected But these are limited by Parducci, which may be an outlier: principal cannot prohibit a text unless it will cause a material and substantial disruption especially when the prohibition is not a ban but an ad hoc determination Right to teach Norwick holds that public school teachers serve a government function and certain regulations, i.e., alienage, are therefore constitutional. 1st Teacher speech (citizen) First we must examine whether her speech was protected by the 1st amendment given her status as a citizen, absent any additional protection which may be afforded by her position within the school. Tinker holds that teachers do not lose their constitutional rights at the schoolhouse door, and Cary v. Board of Education specifically holds that teachers have some rights under 1st. So the burden is on the state to prove her right to free speech should be restricted in this case. The relevant test for when state agencies, such as schools, have this authority is provided by Connick, Pickering, and Sullivan. Under Connick, if the comment touches on a matter of public concern (or a significant portion of the speech was public concern Cox) then it may receive some degree of protection under the 1st amendment. Under Pickering, the next question is whether the comment was false or substantially correct. If it was false, we must determine whether it was knowingly or recklessly false. If it is true, or not knowingly/recklessly false, then, under Sullivan, we arrive at a final balancing test: if making that fact public undermines the bosss efficient operation or the superior/subordinate relationship (harmony of workforce), then it is not protected.

Brennans dissent in Connick urged the Tinker test instead (speech protected unless school has reason to believe it will cause a substantial and material disruption), fearful that the Connick/Pickering test would chill important speech by government employees about their agencies. Echoed in Parducci. Cox: criticism of the superintendent's administrative style a matter of public concern; no evidence that the teacher's criticisms introduced discord into otherwise harmonious relations with her colleagues, affected her teaching, or aggravated her relationship with the principal; pretext rejected. Boring: any part of the school curriculum, i.e., a play, does not present a matter of public concern and can be regulated by the school for any valid educational reason Due Process Firing/sanctioning teachers The issue is whether the teacher was deprived of due process in violation of the 5th Amendment. The government has the obligation to provide process before it deprives a person of life, liberty, or property. A person has property if they have a reasonable expectation of continued possession (Roth teacher on a one year contract can be fired without any process because there is no property right because there was a short-term, certain end date). If there is a property interest, determining how much process is due before it can be rescinded is governed by Matthews test: weigh the interests of individual against the interests of the government and the value of additional process. This is a very flexible test - ex: Homar. Under NC law, teachers can be fired for immorality. Upheld in Barringer (the immorality prong is not insufficiently vague (thereby depriving petitioner of fair notice) when the act is obviously immoral). 115C-325(e)(1) [Grounds for dismissal of career employees] i. (a) Inadequate performance ii. (b) Immorality iii. (c) Insubordination iv. (d) Neglect of duty (neglect of duty to be a role model) v. (e) Physical or mentally incapacity vi. (f) Habitual or excessive use of alcohol or controlled substance vii. (g) Conviction of felony or crime of moral turpitude (Barringer involved a misdemeanor only) viii. (h) trying to overthrow govt o For your first 3 years, board can renew you as a teacher at the end of the year and can do so or not as long as there is a rational basis (but cannot be a political decision). If they want to fire you in the middle of the year, you have the same protections as a tenured teacher. But at the end of the year, only rational basis. Fourth year you become a tenured teacher. Personnel file: can only use info from their file that is less than three years old (some exceptions).

Desegregation synopsis The issue is whether the policy violates the right to equal protection as applies to desegregation. Trending up: Brown ordered schools to desegregate with all due speed. Green held that without progress in six scholastic areas, desegregation cannot be present in that system, thus a constitutional violation, and then the school board has an affirmative duty to end racial segregation root and branch. Swann held that district courts had the power to order certain desegregation remedies if it felt them necessary. Keyes held that even if theres no statute establishing racial segregation, if the state engages in practices showing an intent to discriminate, then it has violated Brown and the court has full power to act (opens the door for litigation outside of the south). Trending down:

Milliken held that if the bad actor is confined to a single district, an intra-district remedy is all that is appropriate. Dowell emphasizes that returning local control is one of the objectives of judicial supervision. Creates unitary status under which discrimination would have to be intended, not merely effected, by district policy. To reach unitary status, must show good faith compliance with the federal courts decree and that all vestiges of discrimination have been eliminated to the extent practical. Freeman held that courts can de-supervise districts incrementally, as they meet the Green factors. Court recognizes that private factors might upset racial balance; however, 14th Amendment doesnt reach private action. Adds a third prong to Dowell test: Will releasing one factor from supervision drive choices in other areas in the future, directly or indirectly (by private choice)? In Jenkins, the Court reminds district courts that the remedy cannot be broader than the problem and it added another factor to the six Green factors: low performance of students due to segregation (as opposed to socioeconomic status, etc.). Seattle: No compelling interest to rely on racial classification in a nonindividualized, mechanical way as a decisive factor, and racial imbalance in the schools is not unconstitutional by itself. The current test: Schools must have desegregated students, faculty, administration, facilities, transportation, extracurricular activities, and student academic achievement. If one of these is not desegregated, the court can tell the school what it must do to fix that factor. Affirmative Action Grutter: racial classifications get strict scrutiny, but diversity is a compelling government interest in the university context. Gratz: Because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment. Class-based desegregation Wake County's twin emphasis on the socioeconomic composition and the academic performance would not appear to raise any significant Equal Protection Clause issues, unless shown to have been adopted as a mere pretext for continuing racial assignments. Distinctions based upon students' socioeconomic status or their academic performance are normally not subject to "strict scrutiny" by the federal courts. Title IV (AG can sue for desegregation) Allows the US Attorney General to litigate to enforce Brown, but has a lot of constraints: first, parent must complain in writing to the AG [if complaint is about college the complaint must relate to admissions], then the AG has to investigate to decide if its a meritorious claim, then the AG has to certify that the individual cannot bring suit himself, then the AG has to determine that the suit will help desegregation, then the AG has to give notice to the school board so that they have time to comply Title VI (Anti-discrimination rules tied to federal funding) Prohibits programs/activities receiving federal financial assistance from excluding, denying benefits, or discriminating on the basis of race, national origin, or color. Federal agencies can promulgate regulations that have the force of law and can then withdraw money from entities that receive federal funds if we decide they violate 601. There are 9 steps that must happen. This allows agencies to dictate what it means to deny benefits under a program. Lau barred policies that have a discriminatory effect. Guardians held that 601 only barred policies that have a discriminatory intent, but that 602 barred both. Sandoval held that private plaintiffs can sue under 601, but only after a showing of intentional discrimination; and regulations under 602 may prohibit discriminatory impact, but there is no private right of action to enforce these regulations (in other words, only the agency can enforce regulations under 602). Litigants suing for discriminatory effect still have one possible option: sue DOJ to get them to enforce.

Sandoval (which applies to Title IX and Title VI) holds that parties can bring private rights of action based upon a school's discriminatory intent. Federal agencies can still bring proceedings to cut off federal funding based upon the disparate impact of a school's actions/regulations. Castaneda created a three-part assessment for determining how bilingual education programs would be held responsible for meeting the requirements of the Equal Education Opportunity Act of 1974: The bilingual education program must be based on sound educational theory; The program must be implemented effectively with resources for personnel, instructional materials, and space.; After a trial period, the program must be proven effective in overcoming language barriers/handicaps. Under Cavazos, absent a clear congressional direction to the contrary, private parties CANNOT bring a suit against OCR to compel the agency to enforce the statutes. The Supreme Court does not have a holding on point, but the 4th Circuit held that Title VI does not create a right to compel agency enforcement (Glendening): Our interpretive task is a narrow one, limited solely to determining whether Congress intended to create the private right of action appellants assert. The text of the statute does not suggest an affirmative answer to that inquiry, and the structure of the statutory scheme points to the negative. Title VI creates a two-pronged attack on discrimination by federal funding recipients: direct action against those recipients by private parties and action by funding agencies to secure voluntary compliance or to terminate funds altogether. Aggrieved individuals can mobilize the latter remedies by petitioning the agency. We do not think Congress intended those same individuals to circumvent that very administrative scheme through direct litigation against federal agencies. Equal Protection - Education and the Disabled I hate my students IEP. What now? Mills held that it is an equal protection violation to totally exclude disabled children from schools. The Rehabilitation Act says that federally funded organizations cant discriminate against otherwise qualified handicapped people solely by reason of his handicap. Limited by Davis (can take handicap into account for specific qualifications). IDEA creates an affirmative entitlement for handicapped children to a full educational opportunity and free appropriate public education. It also requires an individualized educational program, a plan for specifically designed instruction to meet the unique needs of handicapped children. An IEP team is assembled and parents have a right to be on the team. If parents disagree with the teams final proposal, parents are entitled a due process hearing to challenge IEP in front of an administrative hearing officer [people who propose/oppose plan can talk]; then an administrative appeal; then an appeal to a fed. dist. ct. They are also entitled to mediation, which may be a more cost effective option before resorting to measures that would require counsel. In addition to arguing the disability diagnosis, here are some arguments parents can make on appeal: Rowley clarifies what it means for a child to receive appropriate education. Two-part test: Has the school complied with IEP and has the IEP provided some education benefit? So IDEA never promises maximum feasible education (i.e. fulfillment of full potential). IDEA promises not only special education but also related services. What are related services? Irving held that school must provide catheterization for child who can only go 3 hours without it. Garret interpreted a DOE regulation that excluded schools from having to provide medical services to only exempt them from providing the services of a doctor (if nurse or layperson could do it, then its required). In Roncker, the ct stressed the importance of mainstreaming. Hartmann created a three part test to determine when to mainstream: If no educational benefits in mainstream classroom, maybe place him in special classroom; If the educational benefit from the special classroom is very small over the mainstream classroom and there is social

benefit from being in mainstream classroom, this favors the mainstream; Disruption to other students education. Honig held that schools can remove dangerous/disruptive students without any reconsideration of his IEP for up to 10 days. 1997 IDEA Amendments: If special ed kid brings gun to school, can place him in alternate setting for up to 45 days different from what his IEP says Gender discrimination: Title IX and 14th amendment Craig held that, under the 14th, gender discrimination gets intermediate scrutiny important gov ends & substantially related means. VMI specifies that ct is looking for an exceedingly persuasive justification (i.e., all male draft). Sharif held that there must be educational necessity for testing that has a disparate impact on the sexes overturned by Sandoval (so I guess the discrimination must be intentional). The constitutional standard is higher than Title IX, which only bars gender discrimination for schools receiving federal funds. Some big exceptions: Private undergrads dont have to comply for admissions; Religious institutions exempt for religious reasons; Military institutions exempt; State institutions that have been traditionally single sex. (But do all of these exceptions survive the constitution standard?) Athletics under Title IX: Force held that Title IX permits a school to keep girls off athletic teams in contact sports. Pregnancy under Title IX: Pfeiffer held that Title IX bars discrimination on pregnancy, but allows discrimination based on factors highly correlative with pregnancy (i.e., the immorality of premarital sexual activity - they can do this for immorality b/c of Fraser. Constitutional as long as both genders were treated similarly with regard to premarital sex, the pregnant student could properly be dismissed from the NHS because "regulation of conduct of unmarried high school student members is within the realm of authority of the National Honor Society given its emphasis on leadership and character." Chipman:

School finance movement Priest: difference in educational outcomes does not get strict scrutiny because poverty is not a suspect class and education is not a fundamental right. This kills the school finance movement at the level of federal constitutional law, but the movement is revived at the level of state constitutional law because so many states, like NC, include an education clause. Leandro: NC constitution requires general and uniform equal education opportunity, but local municipalities have the right to set their tax rates and can provide funding for their schools. Hearings were held and Judge Manning decides they were not receiving a sound, basic education largely because many children were not reaching level 3 on end of grade testing. He also found there were many children were not coming to school ready to learn, and the school district owes those children readiness for learning and therefore some at-risk children are entitled to pre-k.

Plato

Source of Authority State

Goal Teach the individual virtue the good Justice

Locke/Aquinas

Family

Mill

Neutral Educators

Gutmann

Amalgam of 3

Liberty theory every person is entitled to liberty so long as it doesn't interfere detrimentally to others No one will care more about their child than their parents Parents know you best, they love you most therefore they should have the authority over your education goes hand in hand with liberty Focus on individual Need people not predisposed to any direction so they can teach children the skills to become any kind of individual they want to be Purpose of education is to create democratic participants To equip citizens to participate meaningfully in the democratic process Theoretically, the state in the twentieth century is the people Everyone has a role to educate children We are making the choices in the society Education cannot repress all reasonable thought must educate you in ways that have not been thought of before EVERYONE must be a part of the education system

Strengths If we don't educate people in this manner leads to social discord If someone does know what this good is social harmony Parents know what is best for their children and can reach them

Weaknesses Different notions of what good was and different educational policies Not everyone will agree Lack of time, resources Not all parents have the best interests of their children

In principle, like Plato, sounds like a good idea.

Unclear how to strike that balance what does it mean to have non-repressive education? Who finds the neutral educators and how does it all play out?

I.
I.

A Framework For Public Education

Philosophical Foundations and Early Jurisprudence A. Why do we educate children? 1. Socialization 2. Civic duty 3. To create good moral citizens 4. To replenish tax base 5. Job training 6. To encourage common values 7. To further social equalization 8. To learn some base of knowledge B. Two kinds of objectives 1. Regarding the individual 2. Regarding larger, social goals C. Family State (Plato) 1. View that the state should be responsible for teaching children a. Parens patriae: the state is the father or guardian for minors 2. Goal: Creating a harmonious state where the aspirations of individuals and the collective society work together 3. Criticism: Different people have different views on what good is D. State of Families (Locke and Aquinas) 1. Places educational authority exclusively in parents, thereby permitting parents to predispose their children through education to choose a way of like consistent with their familial heritage a. Locke if the state is committed to the freedom of individuals, then it must cede educational authority to parents whose freedom includes the right to pass their own way of life onto their children b. Aquinas parents have a natural-born right to teach their children 2. Criticism: Parents cant be counted on to equip their children w/ the intellectual skill necessary for rational deliberation 3. Prince v. Massachusetts (US 1944): Court clearly enunciated the power of the state in upholding a MA child labor law in 1943 under which a parent was convicted of contributing to the delinquency of a minor. The parent had continued to force the child to work and would not permit the child to attend school, in spite of the law. a. Court The family itself is not beyond regulation in the public interest . . . acting to guard the general interest in a youths well-being, the state as parens patriae may restrict the parents control by requiring school attendance, regulation or prohibiting the childs labor and in many other ways. b. The case makes it clear that the state can require all children to attend school in spite of parental objection. i. Pierce, however, guarantees a parental right of liberty that permits parents to chose whether their children attend public or private schools. E. State of Individuals (John Stuart Mill) 1. A neutral educator should be responsible for teaching ideal authority is one that maximizes future choice w/o prejudicing children towards any controversial conception of the good life. Gives children their own choice, to be educated in their own way.

2. Criticism: Its alright for a state to have its own values which might be different from anothers, even if they arent the very best values a. Two limits to this, though: i. Nondiscrimination all educable children must be educated; cant leave anyone out ii. Non-repression prevents state from using education to restrict rational deliberation of competing conceptions of the good life/society F. Democratic State of Education balance of the above 1. Responsibility of education should be shared b/w state and parents 2. Educational authority must be shared among parents, citizens, and professional educators, even though such sharing doesnt guarantee that: a. Power will be wedded to knowledge b. Parents wont pass their prejudices onto their children c. Education will be neutral among competing conceptions of the good life 3. The broad distribution of educational authority supports the core value of democracy: conscious social reproduction in its most inclusive form. a. Recognizes value of parental education in perpetuating particular conceptions of the good life b. Recognizes value of professional authority in enabling children to appreciate and evaluate different/unfamiliar ways of life c. Recognizes value of political education in predisposing children to accept those ways of life that are consistent w/sharing the rights and responsibilities of citizenship in a democratic society (think civic duty) 4. Aids children in developing the capacity to understand and to evaluate competing conceptions of the good life and good society 5. Purposes of public education: (1) the attainment of knowledge; (2) socialization 6. State cant require attendance solely in public schools. a. Pierce v. Society of Sisters (Lochner Era, US 1925): Court finds that Oregon law mandating compulsory public school is an unconstitutional (14th Amend.) interference w/ the liberty of parents to direct the upbringing and education of children under their control. i. Also could find abridgement of 1st Amend. religion and speech; EP violation to discriminate against Catholic schools ii. BUT this liberty interest is limited Court recognized that State does have significant authority to limit parents control No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that certain studies plainly essential to good citizenship must be taught. G. The Pierce Compromise 1. State can make education compulsory, can regulate education; but parents can choose private school a. State has constitutionally recognized authority to compel all children to go to school w/in its police power (to be educated in a manner that the state thinks appropriate) b. State has the authority to reasonably regulate all schools, including conditions, teachers, evidence of good citizenship and good character, can require some subjects be taught and others not be taught (p. 11) c. On the other hand, there is a parental right (liberty interest under 14th DPC) parent has the right to choose non-public education [not an absolute right, because a parent generally cannot choose to not send her child to school at all]

2. Troxel v. Granville (US 2000) a. Plurality opinion concluded that in light of this extensive precedent, it cannot now be doubted that the DPC of the 14th Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. II. Compulsory Schooling and the Yoder Exception A. Free Exercise Claims 1. The Free Exercise Clause protects 2 basic interests: "The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires." It also relates to a right in "the performance of (or abstention from) physical acts." 2. A violation of the Free Exercise Clause is predicated on coercion, a factor not critical where an Est. Clause claim is made. a. To demonstrate an infringement on free exercise rights, a person must show "the coercive effect of the [state] enactment as it operates against him in the practice of his religion." b. Coercion of religious practices may be direct or indirect i. More often occurs in a context of some governmental action or policy that has an indirect, but detrimental effect on the exercise of religion 3. Among other restrictions, the government may not: a. Compel affirmation of religious belief; b. Punish the expression of religious doctrines it believes to be false; c. Impose special disabilities on the basis of religious views or religious status; or, d. Lend its power to one or the other side in controversies over religious authority of dogma. B. Wisconsin v. Yoder (US 1972): Court held that Amish children could not be compelled to attend high school even though they were w/in the age range of WIs compulsory attendance statute. 1. Something distinctive about what parents here want versus parents in Pierce state says what Amish want is no school, which is different from Pierce, which was about what kind of school. State says here the choice is not to go to school at all; it is not about choosing the type of education a child gets. a. Here, the case loses BUT 2. Essence of claim under the Free Exercise Clause a. Factual basis of parents argument was that if my child goes to school, then she will be exposed to things contrary to the Amish way of life here is where you go beyond Pierce b. Their belief was that higher learning was against their core religious beliefs and went beyond what could be acquired in K-8 schools developed values that alienated their children from God salvation was at stake 3. Why allow an exception? a. Because religion is such a basic freedom, state must show that universal compulsory education past 8th grade is a compelling state interest b. Here, the state interest was not enough to justify severe interference with the Amishs religious freedom i. Amish secondary education had enabled the Amish to function effectively in contemporary society 4. States arguments a. This is conduct, not belief i. Court says the action vs. belief distinction no longer invariably decides. There are circumstances in which the free exercise rights of action trump the state. b. This is a facially neutral statute that simply says you must go to school i. Court says that distinction is not enough c. Best argument compelling govt interest

All Pierce says is that there must be reasons for regulations. We want children to b/c good citizens these are people who are going to be participating in our democracy and thus must be well educated. Also, we dont want them to be freeloaders; we want them to be self-sufficient. It is a compelling interest that all people be adequately educated about their world and are able to make reasoned decisions. ii. Amish response: even if these are compelling interests, an addl two years isnt going to make a significant difference. The education our kids are getting at home fulfills the goal of the state in creating good citizens. 5. Douglas Dissent: Worried that nobody is taking the children into account what if the kids decide later in life that they want to leave and havent been properly educated through 12th grade? C. Yoder Test for Free Exercise Claims: Balancing the individuals religious interests against the public interests of the state (private interest vs. state interest) 1. Private interest (3 things required for prima facie case): a. (1) Religious belief i. Court stresses the ancientness of Amish religion ii. It cant be your way of life, must be your religion (but doesn't need to be one that is formally recognized) iii. A mere philosophical interest is insufficient to qualify here (Burger says this isnt Walden or Thoreau) b. (2) Sincerely held c. (3) States law places a substantial burden on the exercise of the religious interest i. Amish did this by saying that high school would jeopardize their childrens salvation ii. NOTE: this is where most claims will win or lose (courts don't often inspect the first two prongs closely) iii. EXCEPT if Endangers health and safety of child OR has significant potential social burdens d. Private interest must be proved before you weigh the state interest 2. Burden then shifts to State to show: a. Compelling governmental interest; AND i. Normally Pierce right to educate kids in the state b. Narrowly tailored means i. No other way to accomplish interest than what states already doing c. In Yoder, the interests were: i. Self-sufficiency of children [prepare for life] ii. Citizen ship [lay down foundation for voting] iii. Empowering child *allowing childs interests to come through; maybe she isnt interested in Amish way of life] Court is very split over this issue; White and Douglas were very concerned about trapping the children into a culture they didnt want to be in iv. Court held two proposed state interests as clearly insufficient in Yoder: Belief/action Court dispensed with the notion that this law was okay n/c it only regulated Amish action (not belief) Neutrality fact that WI did not single out the Amish in making the law is D. AMISH EXCEPTION: NOTE Yoder only applies to HYBRID CLAIMS 1. Employment Division v. Smith (US 1990): Court held that laws that are neutral with regard to religion do NOT trigger strict scrutiny. A state could outlaw the use of peyote even for

i.

religious purposes and deny unemployment benefits to those who had lost their jobs for misconduct arising from such use. a. Court held that neutral, generally applicable laws do not violate the First Amendment Free Exercise Clause. Laws just cant single out religious objectives or a particular group. The First Amend. will bar application of a neutral, generally applicable law to religiously motivated action, only where a claim based on the Free Exercise Clause is made in conjunction with other constitutional protections. i. Scalia: We dont impose a heavy burden on the state. We arent going to weigh burdens anymore. If the state has a facially neutral statute [one that is generally applicable and not motivated by discriminatory motives, then there is no Free Exercise violation. b. Yoder analysis only applies to hybrid claims where there is both: i. (1) A free exercise claim; AND ii. (2) Some other type of constitutional claim/addl right Parental right under Pierce c. When you have a hybrid claim, you have a right to demand a higher standard i. If we are talking about a religious on behalf of school-aged child, this gets rational basis review under Smith, BUT if there is both the right of the parent to support the upbringing of her child PLUS free exercise, then you have more. How much more not certain. 2. RECAP: a. Facially neutral law AND generally applicable rational basis b. Free exercise PLUS Pierce parental claim strict scrutiny c. NOT neutral AND generally applicable strict scrutiny E. Cannot remove students from school unless the state can be assured that they are receiving education designed to make them productive; Compelling interest in compulsory education 1. Duro (NC): A state has a compelling interest in compulsory education, in order to prepare citizens to participate effectively and intelligently in our political system and to prepare individuals to be self-reliant and self-sufficient participants in society. a. Compared to Yoder: The Duros, unlike their Amish counterparts, are not members of a community which has existed for three centuries and has a long history of being a successful, self-sufficient, segment of American society. Furthermore, in Yoder, the Amish children attended public school through the eighth grade and then obtained informal vocational training to enable them to assimilate into the self-contained Amish community. However, in the present case, Duro refuses to enroll his children in any public or nonpublic school for any length of time, but still expects them to be fully integrated and live normally in the modern world upon reaching the age of 18. 2. *How to distinguish these two cases: Theyre answering the question: what do we do when freedom of religious practice conflicts with the governments compelling interest in ensuring its citizens are adequately educated? Basically, if you take your religion very, very seriously and will provide a substitute education that is reasonably sufficient, then ok. III. Beyond Pierce and Yoder: The Right to Homeschool Children A. Background 1. All states now allow parents to home-school their kids, but there is a great difference from state to state in the regulations a. Most states have enacted statutes explicitly permitting homeschooling if certain conditions are met, including coverage of certain subjects and a minimum amount of hours. b. The remaining states have court decisions interpreting their states compulsory education laws as permitting homeschooling, or their state departments of education have adopted procedures for approval of home schools.

B. The Source of the Right 1. Care and Protection of Charles (MA 1987): Parents want to homeschool kids. Neither has a college degree; mom has a GED. Parents refuse to provide documentation for their level of education, or to assure school district that they will spend a certain amount of time on subjects, or to allow school district to monitor kids progress and assess kids as it sees fit. Court concludes that homeschooling is permitted under the relevant MA statute interprets private to include homeschooling. a. While the court assumed that parents have a basic right to direct the upbringing of children under the 14th Amend., it said that this right is not absolute the state has a compelling interest in well-educated citizens. Thus, the Court upheld a fair number of regulations of homeschooling. i. Relevant considerations in regulation can be: Curriculum Competency of parents School hours and days Materials used Right of state to assess and test b. Here, the court said that the superintendent or school committee may properly require periodic standardized testing of the children to ensure educational progress and the attainment of minimal standards. C. The Scope of the Right 1. Disputes that we see today are disputes about the scope of regulation and how much we can require of parents who are homeschooling their kids. 2. Combs v. Homer-Center Sch. Dist. (3rd Cir. 2008): Parents of home-schooled children argue that complying with the reporting and review reqs of PAs compulsory education law was a violation of their free exercise of religion. They maintained that God gave the family exclusive jurisdiction over the education of their children (they are making a hybrid claim). a. Court Concluded that Meyer, Pierce, nor Yoder supported their parental rights as framed in the case. The states reporting requirements did not limit or interfere w/the limited parental right to choose the means of complying w/the compulsory education law by selecting a mode of schooling. Court said that even if it were to apply the more generous pleading approach of other circuits to hybrid claims, the parents here had failed to offer an independent parental rights claims. i. PA Law neutral and of general applicability = rational basis review (Smith) ii. No valid hybrid-rights claims here, so no SS (if it were to use this approach) 3. Right of Home Schoolers to Attend Selected Public School Classes a. Swanson v. Guthrie (10th Cir. 1998): Parents requested that school district allow their child to take music and science classes at the local public school. School district denied request. Parents claimed that this burdened their right to free exercise of religion and discriminated against Christian home-schooled students. Note that this is NOT a hybrid claim. i. Court Court found for school, saying that policy prohibiting part-time attendance was facially neutral and of general applicability, and, thus, did not violated the FE Clause. Court agreed that parents had constitutional right to direct childs education, but this right was limited. Parents had no right to pick and choose which courses their children will take from public school. 4. Certification for Homeschooling a. Prevailing view appears to be that states can require instructors at home schools to meet the qualification stds as long as the requirements encroach as little as possible on religious beliefs.

5. Testing Requirements for Homeschooling a. State requirements that children in home schools be tested as a means to monitor their educational progress serve as a legitimate state interest and will be upheld so long as the statutes and regulations are not vague and are reasonable. IV. State Regulation of Private Schools A. Background 1. Today, a parent's right to choose a private education is reflected in the statutes of all fifty states. The compulsory school attendance laws typically specify private education as an alternative or exception to public school attendance requirements. 2. It is also well-established that states have the power to regulate private schools. Based on the "high responsibility for education of its citizens, [a State] may impose reasonable regulations for the control and duration of basic education." (Yoder) a. The state's interest in an informed and self-sufficient citizenry capable of participating in a democratic society is generally cited to support the regulation of private schools. 3. However, the right to regulate is not without limitations. a. Minimum: States can regulate equivalent instruction in private schools and various accountability measures b. Too far: Mandating the vast bulk of the curriculum B. Early Cases 1. Cannot ban entire fields of study; Sub DP right to direct childs upbringing; Teachers right to teach a. Meyer v. Nebraska (US 1923): Court struck down a NE law prohibiting any instructor, either in a public or a private school, from teaching in a language other than English. i. The Court took this action because of the arbitrary interference from state officials of the right of parents to control their childs education and the language instructors right to engage in his profession. The statute was arbitrary because it bore no relationship to a legitimate state purpose and violated the DPC of the 14th Amendment. Doesnt serve and reasonable purpose of the state teaching students another language isnt in any way harmful. 2. Cannot effectively deny right of parents to educate children outside of school a. Farrington v. Tokushige (US 1927): HI legislature had passed a law strictly regulating hours, textbooks, and curriculum of schools that taught in the native language of the students. In striking down this law, the Court was indicating that this amount of regulation of private schools was unreasonable and that parents had the right to exercise control over how their children were educated without restrictions that were unrelated to any rational state goal. C. Legal Challenges to Regulations 1. Can mandate teacher certification and student accountability a. Fellowship Baptist Church v. Benton (8th Cir. 1987): COA held that states interest in ensuring that children are taught by well-qualified teachers is a legitimate purpose that outweighs religious schools objections to teacher certification and reporting requirements. i. Private schools must file annual reports and its teachers must be certified and provide equivalent instruction. ii. Not a substantial burden on private interests under Yoder, so there is no need to articulate the states interest or conduct a balancing test. Even if found to substantially burden, it is outweighed by the states interest

b. Note: Appears the COA is deciding for the group what constitutes a burden on their religion for them. 2. Cannot mandate 100% of a private schools curriculum a. State of Ohio v. Whisner (OH 1976): OH SC applied Farrington in a constitutional challenge to the states minimum standards governing nonpublic schools. The court determined that the standards were "so pervasive and all-encompassing that total compliance with each and every standard by a non-public school would effectively eradicate the distinction between public and non-public education, and thereby deprive these appellants of their traditional interest as parents to direct the upbringing and education of their children. b. BUT SEE: Kentucky State Board v. Rudasill (Ky. 1979): KY SC held that the free exercise clause of the state constitution does not prohibit the legislature from compelling attendance at some school, but this clause and Section 5 as a whole do prohibit the state from certifying teachers in nonpublic schools and from prescribing what textbooks are to be used in schools. i. The state constitutional provision stated in part: nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed. The court noted that this provision was more restrictive on the state than the Free Exercise Clause of the US Constitution. In examining the debate at the constitutional convention at which the provision was adopted, the court found the intent of this provision was to allow parents to choose any school for their children as a matter of conscience. ii. The court found nothing wrong with the state mandating that private schools have instruction in several branches of study as was required of public schools, but it would not allow the state to require the same instruments of education, certified teachers, and state-approved texts used by private schools. Although educational standards were facially neutral, they unduly burdened the parents free exercise rights b/c they interfered w/ the schools ability to devote time to the teaching of religious subjects. 3. Can require standardized testing; Rational basis for state authority to control education (absent a free exercise claim) a. Goff: Despite the state courts holding in Whisner, no federal court has similarly suggested that wholly secular limitations on private school education implicate a fundamental right warranting strict scrutiny. i. OH requires standardized tests for all schools (private included); private schools say this limits their discretion over the curriculum because they have to teach towards the test. ii. Plaintiffs argue that Pierce right lets them decide what to teach students in private schools iii. Court applies rational basis to Ps Pierce claims; because these tests just covered the basics (math, etc.) and because the tests didnt dictate every hour of the day like in Whisner iv. Despite the fact that Pierce right can be regulated, it is still fundamental (similar to abortion, which can also be regulated) v. Rationale for rational basis: impossible to run school if every decision can be challenged by strict scrutiny. Cant have parents challenging decision to teach or not teach past participles etc.; strict scrutiny would be a field day for litigation 4. Application of Health, Safety, and Zoning Rules to Church-Operated Schools a. City of Sumner v. First Baptist Church of Sumner (Wash. 1972): Wash. State SC upheld a challenge to zoning and building code regulations by a private church-operated school. Majority agreed that financial constraints prevented the school, which was

housed in the basement of the church building, from meeting the Citys building code and zoning ordinance. i. Hybrid Rights Argument FE claim PLUS some other constitutional claim = SS Court said that the practical effect of enforcing the ordinances would be to close down the church-operated school, which would deny church members the right to guide the education of their children by sending them to their church operated school, a fundamentally and constitutionally protected right... o Note that the court says that direct impact has never been a requirement, and thus rejected the Citys argument that the regulations did not constitute a burden on the free exercise of religion b/c it did not directly impact a fundamental tenet of the church. It was not against a fundamental tenet of the Amish to send their children to high school; it was the incidental effects of that requirement that the Amish believed to be detrimental to their faith and hence violative of their First Amendment rights. Court also said that it was not able to determine that the City used the least restrictive means of achieving its compelling interest. o Here, the compelling interest was assumed to be the safety of the children, but the City only established that it had a building and zoning code in which the church did not comply. b. Dissent: not persuaded that this case is analogous with Yoder i. Ps in Yoder were left with no choice there was no way in which the demands of the state (compulsory education to age 16) could be met w/out a violation of a religious tenet ii. Here, on the other hand, no bar of any kind has been raised against establishing and conducting a religious school Just b/c a church is operating the school and asserting First Amend. protections does not mean that children suddenly do not need to be protected less Cant just assert financial inability and claim violation of religious liberty c. **IT IS IMPORANT THAT THE STATE SHOW THE LEAST RESTRICTIVE MEANS IS THERE SOMETHING ELSE IT COULD HAVE DONE TO MEET THE COMPELLING INTEREST THAT IS LESS OF A BURDEN? D. The challenge to state legislators in regulating private schools, then, is to draft legislation that: 1. Respects the fundamental right of parents to direct the education of their children; 2. protects the state's interest in an informed citizenry but avoids interference with religious beliefs unless compelling interests are at issue, and then only in the least restrictive manner; and 3. avoids comprehensive regulation of private education that would deprive parents of any choice in education.

II. Religion and Moral Values in Public and Private Schools

I. History of Religion in Schools A. Pre-WWII 1. Protestant compromise schools instruct pupils in common values on which Protestant sects agreed, but instruction wouldnt be taught in religious context 2. Push for protestant values leads Catholics to establish parochial schools B. Post-WWII: 1. Engel v. Vitale (US 1962): Court holds daily prayer used in NYC classrooms as an invocation at the beginning of the school day unconstitutional under the Establishment Clause of the First Amendment 2. Abington Sch. Dist. v. Schempp (US 1963): Court declares daily Bible readings and recitation of the Lords Prayer by the students to be violation of the Establishment Clause. Justice Clark reviewed the history of the clause that led to a standard of government neutrality toward religion and the relation of the establishment clause to the free exercise clause that guaranteed the right of all to choose their religions without state coercion. (Unlike the free exercise clause, however, coercion need not be a factor in establishment clause cases.) a. No defense that students were permitted to absent themselves from participation upon request from parent b. No defense that practices were relatively minor encroachments government must maintain strict neutrality c. Court reiterated that this decision did not forbid objective study of the Bible in school for its literary or historic qualities as part of a secular education d. Finally, Court rejected idea that the free exercise clause gave members of the majority religion the right to have their school devotionals: While the free exercise clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs. 3. Lemon v. Kurtzman (US 1971): See test below. Court held unconstitutional RI state aid to religious schools for non-secular educational materials. C. The First Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

II. Establishment Clause Background A. The overriding theme is that the Establishment Clause requires neutrality with respect to religion. 1. According to the Supreme Court, "[w]hile the Establishment Clause's concept of neutrality is not self-revealing, our recent cases have invested it with specific content: the State may not favor or endorse either religion generally over nonreligion or one religion over others." B. Everson v. Board of Edu. (US 1947): Court considered the validity of a NJ statute authorizing boards of education to reimburse parents of parochial school students for money expended by them for the bus transportation of their children to and from school. 1. Court Upheld the statute, finding that the legislation merely helped parents get their children, regardless of their religion, safely and expeditiously to and from school a. While a state could provide transportation only to children attending public schools, the Est. Clause does not prohibit a state from extending its general state law benefits to all its citizens without regard to religious belied. b. The First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary." Quite simply, "[s]tate power is no more to be used so as to handicap religions than it is to favor them." 2. The court also provided its first comprehensive statement regarding the impact of the Est. Clause. It observed that it means at least this: a. Neither a state nor Federal Government can set up a church.

b. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. c. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or a disbelief in any religion. d. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. e. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. f. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. III. Establishment Clause Standards A. The Lemon Test ask whether any religious indoctrination that occurs in the school could be reasonable attributed to governmental action 1. Lemon v. Kurtzman (US 1971): Court struck down a state program providing aid to religious elementary and secondary schools (reimbursement for teachers salaries, textbooks, and instructional materials in specified secular subjects). A challenged government program is constitutional if it satisfied the following three-prong test (Burger): a. (1) Statute must have a plausibly secular legislative purpose; i. STOP HERE if the statute does not have a clearly secular purpose ii. Includes looking at legislative intent/purpose However, a statute, by its terms, may declare that it serves a secular purpose. In the absence of anything that undermines such a stated legislative intent, it will be accorded appropriate deference. iii. Does not require that a statute or action have exclusively secular objectives A secular objective may well exist and be promoted even though a statute or action is motivated in part by a religious purpose The fact that some incidental benefit may result to religious organizations or be consistent with a religious purpose does not in and of itself violated the Est. Clause A religious purpose, also, may give way to a valid secular objective iv. Secular purpose must be bona fide and sincere rather than merely a sham b. (2) Statutes primary or principal impact/effect must be one that neither advances nor inhibits religion; and i. Requires neutrality with respect to religion Court has said it certainly means at the very least that the govt may not demonstrate a preference for one particular sect or creed Irrelevant that a practice may be non-denominational or non-sectarian, because "the individual freedom of conscience protected by the first amendment embraces the right to select any religious faith or none at all." ii. Impact irrespective of intent Empirical test what happened as a result of what was done iii. Does not absolutely bar any religious effects "A law protecting a valid secular interest is not invalid as one 'respecting an establishment of religion' merely because it also incidentally benefits one or more, or all, religions, or because it incidentally enhances the capability of religion or religious institutions to survive in society." The Supreme Court has recognized that government aid may be constitutional although it directly aids the educational function of religious schools, and even the placement of public employees on parochial school grounds will not inevitably result in the impermissible

effect of state-sponsored indoctrination or constitute a symbolic union between government and religion. Traversing the line between valid and invalid government aid requires that the aid be neutral and allocated on factors unrelated to religion. Where indirect aid is involved, at issue is whether beneficiaries have a "true private choice" among religious and nonreligious organizations when determining the organization to which they will direct that aid. c. (3) The state or action must not foster an excessive government entanglement with religion i. While religion and govt must interact at some points while co-existing in society, the concern here is that they do not so overlap and intertwine that people have difficulty differentiating b/w the two. ii. To determine whether there is excessive entanglement, the Court has examined: the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship b/w the government and religious authority. iii. The Court has also considered: the character of the institutions benefits (e.g., whether the religious institutions were predominantly religious), and the nature of the aid that the State provided (e.g., whether it was neutral and non-ideological) iv. Interaction b/w church and state is inevitable and an ebb and flow of Est. Clause jurisprudence has tolerated some level of involvement between the two. Shortly after that ruling the Supreme Court held that while the First Amendment was intended to prohibit any governmental assistance, including use of public schools for religious instruction, it was not designed to prevent mere accommodation of sectarian needs. Thus, the Supreme Court subsequently ruled that permitting voluntary attendance in classes of religious instruction during regular school hours at public school premises constituted impermissible government assistance of religion, while permitting students to leave the public school during regular school hours to attend religious instruction elsewhere was simply an accommodation of religious interests. 2. Criticisms of the Lemon Test a. Lemon is problematic because it provides little more than a constitutional signpost to be followed or ignored in a particular case as the predilections of justices may dictate. b. The call has been made to frame a principal for constitutional adjudication that is not only grounded in the history and language of the first amendment, but one that is also capable of consistent application to the relevant problems. c. Rather than a comprehensive replacement of the test, it is more appropriate to recognize that no single test or criterion will always apply. The test has been flanked by other standards that supplement its use. 3. School Prayer and Moments of Silence: Basic question: Whether the period of silence that is set aside in school is motivated to promote religion or simply have the students sit quietly for a few moments and think about something, anything? a. During School: Wallace v. Jaffree (US 1985): AL legislature enacted a statute authorizing a period of silence for meditation or voluntary prayer in all AL public schools. Sponsor of statute had stated purpose was to return voluntary prayer to public schools. i. Court said this obviously doesn't constitute a secular legislative purpose and therefore fails the first prong of the Lemon test. ii. Here, there was really damming legislative history

4. 5.

6.

7.

b. But see Brown v. Gilmore (4th Cir. 2001): Upheld VA statute that provided for moment of silence at the beginning of the school day. Enacting a statute solely for religious purposes is quite different from merely protecting every students right to engage in voluntary prayer during an appropriate moment of silence during the school day. School choirs most courts uphold religious music performed in school choirs b/c a substantial amount of choral music is religious in nature. Cannot require teaching creationism; Cannot ban evolution (no secular purpose under Lemon) a. Epperson v. Arkansas (US 1968): Court declares AR anti-evolution law unconstitutional under the Establishment Clause b/c AR selected from an entire body of knowledge something that is thought to conflict with religion. Clearly motivated by religious purpose and fails first from under Lemon. b. Edwards v. Aguillard (US 1987): LA statute required that states public schools to give balanced treatment to creation science and evolution science if evolution is taught (optional), school must also teach creation science. Court held that the Act is facially invalid as violative of the Establishment Clause because it lacks a clear secular purpose and thus fails the first prong of Lemon. i. The act impermissibly endorses a religion by advancing the religious belief that a supernatural being created humankind. ii. The legislative history demonstrates that the term creation science, as contemplated by the state legislature, embraces this religious teaching. The Acts primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. iii. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, it violates the First Amendment. c. Boger says the Court is looking at actual purpose, not stated purpose; strict scrutiny of intent (very searching inquiry, looks ay prior legal history); cant advance religion over non-religion, but some accommodation of religion is okay (Yoder) Cannot ban topics offensive to religion (secular humanism) a. Mozert v. Hawkins Co. Bd. of Educ. (6th Cir. 1987): Board of Education adopted a standard reading curriculum from Holt series. Born again Christian objected to the curriculum b/c of depictions of magic, science fiction and imagination, which supposedly violated their religion. Court held no Free Exercise violation when students arent required to affirm/deny a belief or engage/refrain from a practice prohibited by their religion. No unconstitutional burden on Ps religion found. i. Compelling interest: Teaching students about complex and controversial social and moral issues is essential for preparing public school students for citizenship and self-government. ii. Narrowly tailored: Several witnesses for appellants testified that in order to develop critical reading skills, and therefore achieve appellants' objectives, the students must read and discuss complex, morally and socially difficult issues. The exact status of the test outside the funding context is not clear. a. Lower courts still commonly apply the test in other than parochial school aid cases as one of several alternative tests they apply to analyze constitutionality of government action challenged under the Establishment Clause. b. Moreover, the Supreme Court has used the test in recent years in cases involving schoolsponsored religious activity such as football prayer.

B. Endorsement Test most lenient of tests?

1. Derived from OConnors concurrence in Jaffree a. Under this modification, the issue is whether the government intends to convey a message of endorsement of disapproval religion and whether the effect of the challenged practice is to endorse religion so as to send a message to non-adherents that they are outsiders, not full members of the political community and a message to adherents that they are insiders, favored members of the political community. b. This test precludes govt from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. 2. Two-pronged test asks whether disputed government action has the purpose or effect of endorsing religion a. It essentially combines the purpose and effect prongs of Lemon under a single endorsement standard, while dropping the independent inquiry into entanglement i. Focusing on the evil of govt endorsement or disapproval of religion makes clear that the effect prong of the Lemon test is properly interpreted not to require invalidation of a govt practice merely because it in fact causes, even as a primary effect, advancement or inhibition of religion...What is crucial is that the government practice not have the effect of communicating a message of government endorsement or disapproval of religion. ii. It somewhat narrows Lemon, by prohibiting only governmental actions that rises to the level of endorsement or disapproval of religion, beyond mere advancement or inhibition 3. Test contains both subjective and objective inquiries into government action a. At the purpose prong, courts look to whether the governments subjective intent was to endorse religion. i. Wallace v. Jaffree: the Court held that a schools practice of opening classes with a prayer had the unconstitutional purpose of religious indoctrination. b. At the effects prong, courts then make an objective inquiry into whether, irrespective of governments actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. i. This objective inquiry theorizes a reasonable observer whose sensibilities are determined by the *collective+ social judgment but who at the same time possess knowledge of the text, legislative history, and implementation of the *government action+... ii. As this type of analysis illustrates, the reasonable observer standard supposes extraordinary factual knowledge, such that the court can use any facts in the record to judge whether the challenged government action could reasonably be perceived as government endorsement of religion. 4. Borden v. School District (3rd Cir. 2008): Although students may voluntarily engage in prayer at public school events under some circumstances, teachers can be barred from participating if their involvement suggests school sponsorship or endorsement. C. Coercion Test Probably requires strict neutrality 1. Prohibits religious practices in public schools that carry a particular risk of indirect coercion. a. This test is based largely on the susceptibility of youth to peer pressure and the threat of conformity to a religious belief just for the sake of getting along. 2. Under this test, the govt does not violate the Establishment Clause unless it: a. (1) Provides direct aid to religion in a way that would tend to establish a state church, or (2) coerces people to support or participate in religion against their will. i. Under this test, the govt would be permitted to erect such religious symbols such as the Nativity scene standing alone in a public school or other public building at Christmas. 3. Prayer at Graduation Ceremonies: Lee v. Weisman (US 1992): RI school practice is to invite local clergy to give invocation at public school graduation. Principal selected clergyman and

provided him with guidelines to follow in the composition of public prayers for civic ceremonies and advised him that the prayers should be nonsectarian. a. The Court held that this was an unconstitutional coercion of religion. i. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the State may no more use social pressure to enforce orthodoxy than it may use direct means. b. Coercion standard not necessary but certainly a strong argument for a violation of the Est. Clause. Children are more impressionable by adults and peer pressure and not able to leave if offended or not wanting to participate. 4. Student-Led Prayer a. Santa Fe Independent School District v. Doe (US 2000): the Court invalidated a school policy in part because of its history. The policy allowed students to deliver a brief invocation before high school football games, but an examination of the policys history showed that it strongly encouraged students to deliver a religious message. The court used the Weisman coercion test. i. For some students, such as cheerleaders, members of the band, and the team members themselves, attendance at football games is mandated, sometimes for class credit The constitution demands that schools not force on students the difficult choice b/w attending these games and avoiding personally offensive religious rituals. IV. State Aid to Private Religious Schools A. Intro 1. Yes: a. Indirect payment, even if facilitates religious purpose (tax deductions) b. Supplemental remedial education to children in private schools c. Sign language instruction in private schools 2. No: a. Direct payment, even if for secular purpose (repairs) 3. Test: a. What would the objective observer thing (not direct or indirect)? b. Many of these issues turn on the second prong of Lemon. B. When Government Aid is Okay: Pretty much for everything but direct money to private schools for operating expenses 1. Direct grants okay if for a secular purpose a. Ex: Direct grants to parochial schools to administer and grade standardized tests i. Lemon: (1) secular intent; (2) primary effect to get kids to read at grade level. Neither advances nor inhibits religion b/c teaching reading/writing doesn't have anything to do w/religious objectives of the school. 2. Can provide supplemental remedial education to children in private schools so long as safeguards exist a. Agostini v. Felton (US 1997): Under Title I, fed. funding went to parochial schools to provide supplemental remedial instruction to disadvantaged children using public school teachers. i. Public school employee on private school grounds isnt necessarily a violation of establishment clause. Court refused to believe that teacher would be influenced by religious surroundings. ii. A federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards such as those present here.

Accordingly, Aguilar is no longer good law (see Zobrest decision, holding that a sign language teacher could come into the schools because the teacher was a passive tool like a hearing aid; also court no longer held that direct aid to religion was always invalid). iii. Court also notes that it has abandoned the notion that all govt aid that directly aids the educational function of private religious schools is necessarily invalid Witters (US 1986): Court held that Est. Cl. did not bar a state from giving a tuition grant to a blind person wishing to go to a religious college in order to one day get a religious job Obviously grant would go to religion; but because recipient chose this for himself court had no problem Grants were available generally to all people; money given directly to students, who chose what to do with the money themselves b. Mitchell v. Helms (US 2000): Thomas for the majority said we have pared the Lemon factors, thereby reducing the effects of the excessive entanglement test clearing the way for the distribution of public funds to parochial schools. 3. Can take interpreter to private school a. Zobrest v. Calif. Foothills Sch. Dist. (US 1993): Court ruled that deaf student could bring his state-sponsored interpreter w/him to Catholic School. Reasoned that interpreter is more like an instrument (a hearing aid) than a teacher. i. Govt programs that neutrally provide benefits to a broad class of citizens defined w/out reference to religion are not readily subject to an Est. Cl. challenge just b/c sectarian institutions may also receive an attenuated financial benefit. 4. Tax deductions/Vouchers to parents okay a. Muller v. Allen (US 1983): MN statute allows tax deduction for certain education expenses from taxes limited to actual expenses from tuition, textbooks, and transportation (w/caps on $ amts). Not a violation of Est. Cl. i. Lax application of Lemon: Secular purpose YES State attempting to defray cost of educational expenses regardless of the type of school o Plus, Court is deferential to legislature in area of taxes vs. direct grants or payments to private schools Primary effect of advancing sectarian aims of nonpublic schools NO only one of many possible deductions and available to all parents, including those who go to public school No excessive entanglement ii. Here, parents are making the choice; the state is not paying schools directly. The state isnt endorsing religion as much here as if it were giving to the school itself. Also the court might be sympathetic to parents of non-public school students using rights under Pierce. b. Zelman v. Simmons-Harris (US 2002): OH Scholarship Program (voucher program) distributed tuition grants to low-income parents in Cleveland to any nearby school. No public schools chose to participate. In 99-00, 96% of children receiving vouchers enrolled in religious schools. i. Court held that this program does not offend the Establishment Clause. Muller, Witters, and Zobrest thus make clear that where: o a governmental aid program is neutral with respect to religion o provides assistance directly to a broad class of citizens, who in turn o give that aid to religious schools o wholly as a result of their own independent private choice o THEN, the program is not a violation of the Estab. Clause.

ii. Here, money goes directly to parents who make the choice and shows an overall trend that the current court is more confortable with money eventually going to religious institutions C. When Govt Aid is Unconstitutional 1. No direct grants to religious schools for general operation a. Unconstitutional under the Establishment Clause maintenance and tuition reimbursement provisions violated the Est. Cl. b/c their effect, inevitably, was to subsidize and advance the religious mission of sectarian schools i. Lemon: (1) Primary secular purpose? Yes advance education; keep children from flooding public system (2) Principal/primary effect? Problem you are using tax money to pay a religious school directly. FAILS SECOND PRONG. 2. Separate school district unconstitutional a. Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet (US 1994): Enclave of Hasidic Jews educate their children separately from public schools, but cant provide educ. to their disabled children. These children experienced trauma from being integrated in modern public schools. NY State legislature created separate school dist. for Hasidic Jews w/ special needs. i. Court says the law goes beyond accommodation by singling out a particular religious sect for special treatment. ii. Court did not use Lemon framework used Neutrality Test: Establishment and Free Exercise Clauses compel state to pursue a course of neutrality toward religion V. Political Socialization: Individual Conscience vs. the Obligations of Citizenship A. General Rules: 1. The forced statement of belief by the state violates the First Amendment (Barnette) a. Except to prevent grave and immediate danger 2. Schools may require students to salute the flag but must allow objecting students to opt out of this civic ritual 3. School districts in general have the authority to tell its employees what they may and may not say in the classroom in order to further the school districts mission 4. Neither schools nor teachers may support partisan politics one way or the other; generally includes abortion, war, etc. a. Can teach history that tends to inspire political beliefs b. Can require political beliefs be taught and tested 5. Schools do not have absolute discretion to remove any book they want cant remove books simply b/c they disagree with them. B. Students don't have to say Pledge/Salute 1. WV State Bd. of Educ. v. Barnette (US 1943): The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools. All teachers and pupils were required to honor the Flag; refusal to salute was treated as "insubordination" and was punishable by expulsion and charges of delinquency. a. Court Court geld that Freedom of Speech includes freedom from being coerced to state a political belief and requiring flag salute is forcing a statement of belief on Jehovahs Witnesses. Overrules Gobitis (1940), which held school could compel flag salute. b. Problem here is that teaching patriotism through forcing students to say the pledge isnt narrowly tailored enough. It is not unconstitutional for a state to encourage patriotism by requiring them to learn the pledge, but you cant make them profess it. Here, the

students are not merely made acquainted with the pledge so that they may be informed as to what it is or even what it means. i. Ps refusal to participate in the ceremony does not interfere with or deny rights of others to do so ii. Censorship or suppression of expression of opinion only allowed where presents a clear and present danger iii. Way to win the hearts and minds of our children is not to coerce them 2. What is okay? a. School can tell you information and test you on it (can require understanding), but it cannot require showings of affirmative belief b. It is constitutional to require patriotism in the curriculum i. It would be permissible for the state to adopt an anti-Chinese policy in schools ii. Think back to WWII when US argued that its way (not Hitler/Japan) was the best iii. Policy considerations may weigh against adopting such a policy, but it would be constitutional to do so in the name of patriotism 3. NOTE: This is a Free Speech Case, not Free Exercise fact that they have a religious objection to the pledge wasn't even considered C. Can mandate student activity outside of school that serves rational education interest 1. Herndon v. Chapel Hill-Carrboro Bd. of Educ. (4th City. 1996): CH-C Schools required that students do 50 hours of community service as a condition of graduation. Students/parents sue school board, alleging the requirement: (1) violated students right to freedom from involuntary solitude, personal liberty and privacy; and (2) parents constitutional right to direct upbringing/education of their children under Pierce. a. Court Community service requirement does NOT violate constitutional rights i. (1) Students Rights involuntary servitude comes from 13th Amend. and slavery, which doesn't even compare here. Freedom from compulsory charitable service isnt among the rights the court has recognized. ii. (2) Parents Rights no religious issue here, so right to raise children from Pierce, Meyer, and Tokushige only get RB analysis. Schools policy is a reasonable regulation doesnt infringe on parents right to control their childrens education. D. N.C.G.S. 115C-81(g): Civil Literacy 1. Local boards required to order the teaching of the nation's founding and related documents during high school (Decl. of Ind., Constitution and its amendments, and the most important of the Federalist Papers) 2. Also allowed to put up documents (Const., Justinian Code, 10 Commandments) 3. No content-based censorship of history where there are references to religion (where historical docs have religious implications) 4. The main point of this statute is that state can set up a curriculum encouraging good citizenship a. Boger notes that most challenged curriculum are upheld by the courts, even if the cases we look at imply otherwise E. Schools do not have absolute discretion to remove books from libraries right to receive information 1. Bd. of Educ. v. Pico (US 1982): School board removed certain books from school libraries because it found them inappropriate for student reading. Court finds First Amendment violation. a. Court In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. i. Plurality opinion: There is a right to information (i.e., the 1st Am. right of free speech also includes a right to learn/listen)

ii. Schools do not have absolute discretion to remove books from libraries. iii. The School Board rightly possesses significant discretion to determine content of their libraries, BUT that discretion may not be exercised in a narrowly partisan or political manner. b. Motivation Test: Motive of the Board in removal is key once you put books in, you cant take them out without sound educational reason i. If Board intended to removal to suppress certain ideas with which they disagreed UNCONSTITUTIONAL In Pico, the evidence showed that the board did not employ regular and unbiased procedures in reviewing the books as to their educational suitability In fact, they had been removed solely b/c they had been placed on a list of objectionable books by a conservative organization of parents ii. If Board removed the books because they were pervasively vulgar, obscene or educationally unsuitable No right violated 2. Loewen v. Turnipspeed (N.D. Miss. 1980): MS Textbook Purchasing Board refused to approve a textbook for use in public schools b/c it was too concerned with racial matters and too controversial. a. Dist. Ct. This criteria is not justifiable for rejecting book. The controversial racial matter was a factor leading to the books rejection, and thus the authors had been denied their constitutionally guaranteed rights of freedom of speech and the press. b. NOTE: Seems like an outlier case would think the Board would have discretion over the curriculum

II. Religion and Moral Values in Public and Private Schools

I. History of Religion in Schools A. Pre-WWII 1. Protestant compromise schools instruct pupils in common values on which Protestant sects agreed, but instruction wouldnt be taught in religious context 2. Push for protestant values leads Catholics to establish parochial schools B. Post-WWII: 1. Engel v. Vitale (US 1962): Court holds daily prayer used in NYC classrooms as an invocation at the beginning of the school day unconstitutional under the Establishment Clause of the First Amendment 2. Abington Sch. Dist. v. Schempp (US 1963): Court declares daily Bible readings and recitation of the Lords Prayer by the students to be violation of the Establishment Clause. Justice Clark reviewed the history of the clause that led to a standard of government neutrality toward religion and the relation of the establishment clause to the free exercise clause that guaranteed the right of all to choose their religions without state coercion. (Unlike the free exercise clause, however, coercion need not be a factor in establishment clause cases.) a. No defense that students were permitted to absent themselves from participation upon request from parent b. No defense that practices were relatively minor encroachments government must maintain strict neutrality c. Court reiterated that this decision did not forbid objective study of the Bible in school for its literary or historic qualities as part of a secular education d. Finally, Court rejected idea that the free exercise clause gave members of the majority religion the right to have their school devotionals: While the free exercise clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs. 3. Lemon v. Kurtzman (US 1971): See test below. Court held unconstitutional RI state aid to religious schools for non-secular educational materials. C. The First Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

II. Establishment Clause Background A. The overriding theme is that the Establishment Clause requires neutrality with respect to religion. 1. According to the Supreme Court, "[w]hile the Establishment Clause's concept of neutrality is not self-revealing, our recent cases have invested it with specific content: the State may not favor or endorse either religion generally over nonreligion or one religion over others." B. Everson v. Board of Edu. (US 1947): Court considered the validity of a NJ statute authorizing boards of education to reimburse parents of parochial school students for money expended by them for the bus transportation of their children to and from school. 1. Court Upheld the statute, finding that the legislation merely helped parents get their children, regardless of their religion, safely and expeditiously to and from school a. While a state could provide transportation only to children attending public schools, the Est. Clause does not prohibit a state from extending its general state law benefits to all its citizens without regard to religious belied. b. The First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary." Quite simply, "[s]tate power is no more to be used so as to handicap religions than it is to favor them." 2. The court also provided its first comprehensive statement regarding the impact of the Est. Clause. It observed that it means at least this: a. Neither a state nor Federal Government can set up a church.

b. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. c. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or a disbelief in any religion. d. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. e. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. f. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. IV. Establishment Clause Standards A. The Lemon Test ask whether any religious indoctrination that occurs in the school could be reasonable attributed to governmental action 1. Lemon v. Kurtzman (US 1971): Court struck down a state program providing aid to religious elementary and secondary schools (reimbursement for teachers salaries, textbooks, and instructional materials in specified secular subjects). A challenged government program is constitutional if it satisfied the following three-prong test (Burger): a. (1) Statute must have a plausibly secular legislative purpose; i. STOP HERE if the statute does not have a clearly secular purpose ii. Includes looking at legislative intent/purpose However, a statute, by its terms, may declare that it serves a secular purpose. In the absence of anything that undermines such a stated legislative intent, it will be accorded appropriate deference. iii. Does not require that a statute or action have exclusively secular objectives A secular objective may well exist and be promoted even though a statute or action is motivated in part by a religious purpose The fact that some incidental benefit may result to religious organizations or be consistent with a religious purpose does not in and of itself violated the Est. Clause A religious purpose, also, may give way to a valid secular objective iv. Secular purpose must be bona fide and sincere rather than merely a sham b. (2) Statutes primary or principal impact/effect must be one that neither advances nor inhibits religion; and i. Requires neutrality with respect to religion Court has said it certainly means at the very least that the govt may not demonstrate a preference for one particular sect or creed Irrelevant that a practice may be non-denominational or non-sectarian, because "the individual freedom of conscience protected by the first amendment embraces the right to select any religious faith or none at all." ii. Impact irrespective of intent Empirical test what happened as a result of what was done iii. Does not absolutely bar any religious effects "A law protecting a valid secular interest is not invalid as one 'respecting an establishment of religion' merely because it also incidentally benefits one or more, or all, religions, or because it incidentally enhances the capability of religion or religious institutions to survive in society." The Supreme Court has recognized that government aid may be constitutional although it directly aids the educational function of religious schools, and even the placement of public employees on parochial school grounds will not inevitably result in the impermissible

effect of state-sponsored indoctrination or constitute a symbolic union between government and religion. Traversing the line between valid and invalid government aid requires that the aid be neutral and allocated on factors unrelated to religion. Where indirect aid is involved, at issue is whether beneficiaries have a "true private choice" among religious and nonreligious organizations when determining the organization to which they will direct that aid. c. (3) The state or action must not foster an excessive government entanglement with religion ii. While religion and govt must interact at some points while co-existing in society, the concern here is that they do not so overlap and intertwine that people have difficulty differentiating b/w the two. iii. To determine whether there is excessive entanglement, the Court has examined: the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship b/w the government and religious authority. iv. The Court has also considered: the character of the institutions benefits (e.g., whether the religious institutions were predominantly religious), and the nature of the aid that the State provided (e.g., whether it was neutral and non-ideological) v. Interaction b/w church and state is inevitable and an ebb and flow of Est. Clause jurisprudence has tolerated some level of involvement between the two. Shortly after that ruling the Supreme Court held that while the First Amendment was intended to prohibit any governmental assistance, including use of public schools for religious instruction, it was not designed to prevent mere accommodation of sectarian needs. Thus, the Supreme Court subsequently ruled that permitting voluntary attendance in classes of religious instruction during regular school hours at public school premises constituted impermissible government assistance of religion, while permitting students to leave the public school during regular school hours to attend religious instruction elsewhere was simply an accommodation of religious interests. 5. Criticisms of the Lemon Test a. Lemon is problematic because it provides little more than a constitutional signpost to be followed or ignored in a particular case as the predilections of justices may dictate. b. The call has been made to frame a principal for constitutional adjudication that is not only grounded in the history and language of the first amendment, but one that is also capable of consistent application to the relevant problems. c. Rather than a comprehensive replacement of the test, it is more appropriate to recognize that no single test or criterion will always apply. The test has been flanked by other standards that supplement its use. 6. School Prayer and Moments of Silence: Basic question: Whether the period of silence that is set aside in school is motivated to promote religion or simply have the students sit quietly for a few moments and think about something, anything? a. During School: Wallace v. Jaffree (US 1985): AL legislature enacted a statute authorizing a period of silence for meditation or voluntary prayer in all AL public schools. Sponsor of statute had stated purpose was to return voluntary prayer to public schools. i. Court said this obviously doesn't constitute a secular legislative purpose and therefore fails the first prong of the Lemon test. ii. Here, there was really damming legislative history

7. 8.

9.

10.

b. But see Brown v. Gilmore (4th Cir. 2001): Upheld VA statute that provided for moment of silence at the beginning of the school day. Enacting a statute solely for religious purposes is quite different from merely protecting every students right to engage in voluntary prayer during an appropriate moment of silence during the school day. School choirs most courts uphold religious music performed in school choirs b/c a substantial amount of choral music is religious in nature. Cannot require teaching creationism; Cannot ban evolution (no secular purpose under Lemon) a. Epperson v. Arkansas (US 1968): Court declares AR anti-evolution law unconstitutional under the Establishment Clause b/c AR selected from an entire body of knowledge something that is thought to conflict with religion. Clearly motivated by religious purpose and fails first from under Lemon. b. Edwards v. Aguillard (US 1987): LA statute required that states public schools to give balanced treatment to creation science and evolution science if evolution is taught (optional), school must also teach creation science. Court held that the Act is facially invalid as violative of the Establishment Clause because it lacks a clear secular purpose and thus fails the first prong of Lemon. i. The act impermissibly endorses a religion by advancing the religious belief that a supernatural being created humankind. ii. The legislative history demonstrates that the term creation science, as contemplated by the state legislature, embraces this religious teaching. The Acts primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. iii. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, it violates the First Amendment. c. Boger says the Court is looking at actual purpose, not stated purpose; strict scrutiny of intent (very searching inquiry, looks ay prior legal history); cant advance religion over non-religion, but some accommodation of religion is okay (Yoder) Cannot ban topics offensive to religion (secular humanism) a. Mozert v. Hawkins Co. Bd. of Educ. (6th Cir. 1987): Board of Education adopted a standard reading curriculum from Holt series. Born again Christian objected to the curriculum b/c of depictions of magic, science fiction and imagination, which supposedly violated their religion. Court held no Free Exercise violation when students arent required to affirm/deny a belief or engage/refrain from a practice prohibited by their religion. No unconstitutional burden on Ps religion found. i. Compelling interest: Teaching students about complex and controversial social and moral issues is essential for preparing public school students for citizenship and self-government. ii. Narrowly tailored: Several witnesses for appellants testified that in order to develop critical reading skills, and therefore achieve appellants' objectives, the students must read and discuss complex, morally and socially difficult issues. The exact status of the test outside the funding context is not clear. a. Lower courts still commonly apply the test in other than parochial school aid cases as one of several alternative tests they apply to analyze constitutionality of government action challenged under the Establishment Clause. b. Moreover, the Supreme Court has used the test in recent years in cases involving schoolsponsored religious activity such as football prayer.

D. Endorsement Test most lenient of tests? 1. Derived from OConnors concurrence in Jaffree

a. Under this modification, the issue is whether the government intends to convey a message of endorsement of disapproval religion and whether the effect of the challenged practice is to endorse religion so as to send a message to non-adherents that they are outsiders, not full members of the political community and a message to adherents that they are insiders, favored members of the political community. b. This test precludes govt from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. 2. Two-pronged test asks whether disputed government action has the purpose or effect of endorsing religion a. It essentially combines the purpose and effect prongs of Lemon under a single endorsement standard, while dropping the independent inquiry into entanglement i. Focusing on the evil of govt endorsement or disapproval of religion makes clear that the effect prong of the Lemon test is properly interpreted not to require invalidation of a govt practice merely because it in fact causes, even as a primary effect, advancement or inhibition of religion...What is crucial is that the government practice not have the effect of communicating a message of government endorsement or disapproval of religion. ii. It somewhat narrows Lemon, by prohibiting only governmental actions that rises to the level of endorsement or disapproval of religion, beyond mere advancement or inhibition 3. Test contains both subjective and objective inquiries into government action a. At the purpose prong, courts look to whether the governments subjective intent was to endorse religion. i. Wallace v. Jaffree: the Court held that a schools practice of opening classes with a prayer had the unconstitutional purpose of religious indoctrination. b. At the effects prong, courts then make an objective inquiry into whether, irrespective of governments actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. i. This objective inquiry theorizes a reasonable observer whose sensibilities are determined by the *collective+ social judgment but who at the same time possess knowledge of the text, legislative history, and implementation of the *government action+... ii. As this type of analysis illustrates, the reasonable observer standard supposes extraordinary factual knowledge, such that the court can use any facts in the record to judge whether the challenged government action could reasonably be perceived as government endorsement of religion. 4. Borden v. School District (3rd Cir. 2008): Although students may voluntarily engage in prayer at public school events under some circumstances, teachers can be barred from participating if their involvement suggests school sponsorship or endorsement. E. Coercion Test Probably requires strict neutrality 1. Prohibits religious practices in public schools that carry a particular risk of indirect coercion. a. This test is based largely on the susceptibility of youth to peer pressure and the threat of conformity to a religious belief just for the sake of getting along. 2. Under this test, the govt does not violate the Establishment Clause unless it: a. (1) Provides direct aid to religion in a way that would tend to establish a state church, or (2) coerces people to support or participate in religion against their will. i. Under this test, the govt would be permitted to erect such religious symbols such as the Nativity scene standing alone in a public school or other public building at Christmas. 3. Prayer at Graduation Ceremonies: Lee v. Weisman (US 1992): RI school practice is to invite local clergy to give invocation at public school graduation. Principal selected clergyman and

provided him with guidelines to follow in the composition of public prayers for civic ceremonies and advised him that the prayers should be nonsectarian. a. The Court held that this was an unconstitutional coercion of religion. i. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the State may no more use social pressure to enforce orthodoxy than it may use direct means. b. Coercion standard not necessary but certainly a strong argument for a violation of the Est. Clause. Children are more impressionable by adults and peer pressure and not able to leave if offended or not wanting to participate. 4. Student-Led Prayer a. Santa Fe Independent School District v. Doe (US 2000): the Court invalidated a school policy in part because of its history. The policy allowed students to deliver a brief invocation before high school football games, but an examination of the policys history showed that it strongly encouraged students to deliver a religious message. The court used the Weisman coercion test. i. For some students, such as cheerleaders, members of the band, and the team members themselves, attendance at football games is mandated, sometimes for class credit The constitution demands that schools not force on students the difficult choice b/w attending these games and avoiding personally offensive religious rituals. VI. State Aid to Private Religious Schools A. Intro 1. Yes: a. Indirect payment, even if facilitates religious purpose (tax deductions) b. Supplemental remedial education to children in private schools c. Sign language instruction in private schools 2. No: a. Direct payment, even if for secular purpose (repairs) 3. Test: a. What would the objective observer thing (not direct or indirect)? b. Many of these issues turn on the second prong of Lemon. B. When Government Aid is Okay: Pretty much for everything but direct money to private schools for operating expenses 1. Direct grants okay if for a secular purpose a. Ex: Direct grants to parochial schools to administer and grade standardized tests i. Lemon: (1) secular intent; (2) primary effect to get kids to read at grade level. Neither advances nor inhibits religion b/c teaching reading/writing doesn't have anything to do w/religious objectives of the school. 2. Can provide supplemental remedial education to children in private schools so long as safeguards exist a. Agostini v. Felton (US 1997): Under Title I, fed. funding went to parochial schools to provide supplemental remedial instruction to disadvantaged children using public school teachers. i. Public school employee on private school grounds isnt necessarily a violation of establishment clause. Court refused to believe that teacher would be influenced by religious surroundings. ii. A federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards such as those present here.

Accordingly, Aguilar is no longer good law (see Zobrest decision, holding that a sign language teacher could come into the schools because the teacher was a passive tool like a hearing aid; also court no longer held that direct aid to religion was always invalid). iii. Court also notes that it has abandoned the notion that all govt aid that directly aids the educational function of private religious schools is necessarily invalid Witters (US 1986): Court held that Est. Cl. did not bar a state from giving a tuition grant to a blind person wishing to go to a religious college in order to one day get a religious job Obviously grant would go to religion; but because recipient chose this for himself court had no problem Grants were available generally to all people; money given directly to students, who chose what to do with the money themselves b. Mitchell v. Helms (US 2000): Thomas for the majority said we have pared the Lemon factors, thereby reducing the effects of the excessive entanglement test clearing the way for the distribution of public funds to parochial schools. 3. Can take interpreter to private school a. Zobrest v. Calif. Foothills Sch. Dist. (US 1993): Court ruled that deaf student could bring his state-sponsored interpreter w/him to Catholic School. Reasoned that interpreter is more like an instrument (a hearing aid) than a teacher. i. Govt programs that neutrally provide benefits to a broad class of citizens defined w/out reference to religion are not readily subject to an Est. Cl. challenge just b/c sectarian institutions may also receive an attenuated financial benefit. 4. Tax deductions/Vouchers to parents okay a. Muller v. Allen (US 1983): MN statute allows tax deduction for certain education expenses from taxes limited to actual expenses from tuition, textbooks, and transportation (w/caps on $ amts). Not a violation of Est. Cl. i. Lax application of Lemon: Secular purpose YES State attempting to defray cost of educational expenses regardless of the type of school o Plus, Court is deferential to legislature in area of taxes vs. direct grants or payments to private schools Primary effect of advancing sectarian aims of nonpublic schools NO only one of many possible deductions and available to all parents, including those who go to public school No excessive entanglement ii. Here, parents are making the choice; the state is not paying schools directly. The state isnt endorsing religion as much here as if it were giving to the school itself. Also the court might be sympathetic to parents of non-public school students using rights under Pierce. b. Zelman v. Simmons-Harris (US 2002): OH Scholarship Program (voucher program) distributed tuition grants to low-income parents in Cleveland to any nearby school. No public schools chose to participate. In 99-00, 96% of children receiving vouchers enrolled in religious schools. i. Court held that this program does not offend the Establishment Clause. Muller, Witters, and Zobrest thus make clear that where: o a governmental aid program is neutral with respect to religion o provides assistance directly to a broad class of citizens, who in turn o give that aid to religious schools o wholly as a result of their own independent private choice o THEN, the program is not a violation of the Estab. Clause.

ii. Here, money goes directly to parents who make the choice and shows an overall trend that the current court is more confortable with money eventually going to religious institutions C. When Govt Aid is Unconstitutional 1. No direct grants to religious schools for general operation a. Unconstitutional under the Establishment Clause maintenance and tuition reimbursement provisions violated the Est. Cl. b/c their effect, inevitably, was to subsidize and advance the religious mission of sectarian schools i. Lemon: (1) Primary secular purpose? Yes advance education; keep children from flooding public system (2) Principal/primary effect? Problem you are using tax money to pay a religious school directly. FAILS SECOND PRONG. 2. Separate school district unconstitutional a. Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet (US 1994): Enclave of Hasidic Jews educate their children separately from public schools, but cant provide educ. to their disabled children. These children experienced trauma from being integrated in modern public schools. NY State legislature created separate school dist. for Hasidic Jews w/ special needs. i. Court says the law goes beyond accommodation by singling out a particular religious sect for special treatment. ii. Court did not use Lemon framework used Neutrality Test: Establishment and Free Exercise Clauses compel state to pursue a course of neutrality toward religion VII. Political Socialization: Individual Conscience vs. the Obligations of Citizenship A. General Rules: 1. The forced statement of belief by the state violates the First Amendment (Barnette) a. Except to prevent grave and immediate danger 2. Schools may require students to salute the flag but must allow objecting students to opt out of this civic ritual 3. School districts in general have the authority to tell its employees what they may and may not say in the classroom in order to further the school districts mission 4. Neither schools nor teachers may support partisan politics one way or the other; generally includes abortion, war, etc. a. Can teach history that tends to inspire political beliefs b. Can require political beliefs be taught and tested 5. Schools do not have absolute discretion to remove any book they want cant remove books simply b/c they disagree with them. B. Students don't have to say Pledge/Salute 1. WV State Bd. of Educ. v. Barnette (US 1943): The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools. All teachers and pupils were required to honor the Flag; refusal to salute was treated as "insubordination" and was punishable by expulsion and charges of delinquency. a. Court Court geld that Freedom of Speech includes freedom from being coerced to state a political belief and requiring flag salute is forcing a statement of belief on Jehovahs Witnesses. Overrules Gobitis (1940), which held school could compel flag salute. b. Problem here is that teaching patriotism through forcing students to say the pledge isnt narrowly tailored enough. It is not unconstitutional for a state to encourage patriotism by requiring them to learn the pledge, but you cant make them profess it. Here, the

students are not merely made acquainted with the pledge so that they may be informed as to what it is or even what it means. i. Ps refusal to participate in the ceremony does not interfere with or deny rights of others to do so ii. Censorship or suppression of expression of opinion only allowed where presents a clear and present danger iii. Way to win the hearts and minds of our children is not to coerce them 2. What is okay? a. School can tell you information and test you on it (can require understanding), but it cannot require showings of affirmative belief b. It is constitutional to require patriotism in the curriculum i. It would be permissible for the state to adopt an anti-Chinese policy in schools ii. Think back to WWII when US argued that its way (not Hitler/Japan) was the best iii. Policy considerations may weigh against adopting such a policy, but it would be constitutional to do so in the name of patriotism 3. NOTE: This is a Free Speech Case, not Free Exercise fact that they have a religious objection to the pledge wasn't even considered C. Can mandate student activity outside of school that serves rational education interest 1. Herndon v. Chapel Hill-Carrboro Bd. of Educ. (4th City. 1996): CH-C Schools required that students do 50 hours of community service as a condition of graduation. Students/parents sue school board, alleging the requirement: (1) violated students right to freedom from involuntary solitude, personal liberty and privacy; and (2) parents constitutional right to direct upbringing/education of their children under Pierce. a. Court Community service requirement does NOT violate constitutional rights i. (1) Students Rights involuntary servitude comes from 13th Amend. and slavery, which doesn't even compare here. Freedom from compulsory charitable service isnt among the rights the court has recognized. ii. (2) Parents Rights no religious issue here, so right to raise children from Pierce, Meyer, and Tokushige only get RB analysis. Schools policy is a reasonable regulation doesnt infringe on parents right to control their childrens education. D. N.C.G.S. 115C-81(g): Civil Literacy 1. Local boards required to order the teaching of the nation's founding and related documents during high school (Decl. of Ind., Constitution and its amendments, and the most important of the Federalist Papers) 2. Also allowed to put up documents (Const., Justinian Code, 10 Commandments) 3. No content-based censorship of history where there are references to religion (where historical docs have religious implications) 4. The main point of this statute is that state can set up a curriculum encouraging good citizenship a. Boger notes that most challenged curriculum are upheld by the courts, even if the cases we look at imply otherwise E. Schools do not have absolute discretion to remove books from libraries right to receive information 1. Bd. of Educ. v. Pico (US 1982): School board removed certain books from school libraries because it found them inappropriate for student reading. Court finds First Amendment violation. a. Court In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. i. Plurality opinion: There is a right to information (i.e., the 1st Am. right of free speech also includes a right to learn/listen)

ii. Schools do not have absolute discretion to remove books from libraries. iii. The School Board rightly possesses significant discretion to determine content of their libraries, BUT that discretion may not be exercised in a narrowly partisan or political manner. b. Motivation Test: Motive of the Board in removal is key once you put books in, you cant take them out without sound educational reason i. If Board intended to removal to suppress certain ideas with which they disagreed UNCONSTITUTIONAL In Pico, the evidence showed that the board did not employ regular and unbiased procedures in reviewing the books as to their educational suitability In fact, they had been removed solely b/c they had been placed on a list of objectionable books by a conservative organization of parents ii. If Board removed the books because they were pervasively vulgar, obscene or educationally unsuitable No right violated 2. Loewen v. Turnipspeed (N.D. Miss. 1980): MS Textbook Purchasing Board refused to approve a textbook for use in public schools b/c it was too concerned with racial matters and too controversial. a. Dist. Ct. This criteria is not justifiable for rejecting book. The controversial racial matter was a factor leading to the books rejection, and thus the authors had been denied their constitutionally guaranteed rights of freedom of speech and the press. b. NOTE: Seems like an outlier case would think the Board would have discretion over the curriculum

III. Institutional Order vs. Student (and Faculty) Expression in the Public Schools
Student Speech and Freedom of Expression Note: Freedom of Speech = Fundamental Right Strict Scrutiny Overview: (1) Vulgar or plainly offensive speech conveying no political message may be prohibited without showing disruption or substantial interference with school work (Bethel) (2) School- sponsored speech may be restricted when the limitation is reasonably related to legitimate educational concerns (Hazelwood) (3) Speech that is neither vulgar nor school-sponsored may only be prohibited if it causes a substantial and material disruption of the schools operation or a reasonable forecast of disruption (Tinker) o Test (Tinker): Does the speech materially and substantially interfere with: (1) the opposition of the school, (2) other students rights (3) school work and discipline Do Students have First Amendment Rights at (or near) School? Schools Authority to Maintain (and inculcate the values of) Physical and Educational Order Can prohibit speech that will substantially and materially interfere with instruction Tinker v. Des Moines Indep. Cmty. Sch. Dist. (US 1969): Students suspended for wearing black armbands to protest Vietnam. o Court Violation of 1st Amendment. In absence of specific showing of constitutionally valid reasons to regulate speech, students are entitled to freedom of expression of their views. Wearing armbands falls within 1st Amendment as symbolic speech. o In wearing armbands, students were quiet and passive. They were not disruptive and did not impinge upon the rights of others. o 1st Amendment rights are available to students and teachers o Tinker Test: School can only limit student speech if school shows that they can o (1) Reasonably forecast that students engaging in the forbidden conduct will cause: More than a mere vague apprehension of undifferentiated fear In other words, the school must have reasonable apprehension of some trouble, meaning the school must have some evidence that a material and substantial interference will occur Are these fighting words? Are you going to provoke your audience? It matters how fight-prone your audience is. Totality of circumstance and prior incidents can be considered Totality of circumstances and prior incidents can be considered o (2) A material (qualitative) and substantial (quantitative) interference with Operation of school (education), Rights of other students, School work and discipline/order o Materially = this goes to whether it affects the schools processes (i.e. operation, other students rights, school work/discipline, see above) o Ex: a tussle in class might me material, while a similar fight on the playground might not o Substantially = this does to the size of the disruption o Ex: someone telling you your armband looks crummy is not substantial; a fistfight over the armband sending many to the hospital is substantial

Can prohibit obscene conduct in school, even if not outside school, because the inculcation of the values of decency are legitimate educational tasks; The prohibition is not too vague, as long as the sanction is not too drastic; Supplements Tinker (substantial and material disruption OR obscene conduct) Bethel Sch. Dist. No. 403 v. Fraser (US 1986): High school senior gave speech nominating classmate for student council filled with sexual innuendo but not obscenity. o Court School officials did not violate the 1st Amend. by punishing the student for a campaign speech that was considered lewd. Offensive conduct can be regulated absent a specific school policy notifying students in advance of regulation if it is lewd, indecent, or plainly offensive. o Under the First Amendment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school. It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. The inculcation of these values is truly the work of the school, and the determination of what manner of speech is inappropriate properly rests with the school board. o There is no merit to respondent's contention that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech would subject him to disciplinary sanctions. Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. The schools disciplinary rule proscribing "obscene" language and the pre-speech admonitions of teachers gave adequate warning to respondent that his lewd speech could subject him to sanctions. o Court distinguished vulgar/lewd speech from the political speech protected in Tinker o Because this was a school-sponsored activity, the school had the right to punish the risqu content of the students speech o Tinker Framework Material interference/disruption? o Work of the School? Yes goal is to teach children to be respectful of others, understand social norms, etc. Student government is an educational purpose. o Rights of other students? Yes Berger says there is a right to be free from hearing sexually charged, offensive speech. o Discipline and order? Yes caused students to hoot and holler, takes away from attention of the purpose of assembly. o Other Notes o Think of the setting here it was a forum to speak before the entire student body Doing this in front of the entire school probably changes the calculus. If he was doing it in the locker room, probably not as big of a deal. o Probably could not have expelled him court might have had a DP problem with that o Rule: If the student is speaking under the auspices of the school, you can hold the student to a higher standard. Prof views this as an amendment of Tinker. o The Court was sure to note that a necessary part of this inculcation is teaching tolerance for divergent political ideas [like those in Tinker] o But the Court also made clear that the political messages from Tinker were distinguishable from the sexual messages here

Can regulate content in an educational setting in a reasonable manner but only when the regulation has a valid educational purpose; Not using Tinker - school newspapers are not public forums part of curriculum Hazelwood Sch. Dist. v. Kuhlmeier (US 1988): Principal deletes two articles from school newspaper for fear of identifying anonymous people. o Court Held that students 1st Amendment rights were not violated. Educators do not offend student expression by exercising editorial control over school-sponsored activities (newspaper, yearbook, theater, etc) as long as there is a reasonably related pedagogical concern. o The school newspaper here cannot be characterized as a forum for public expression. The school officials in this case did not deviate from their policy that the newspaper's production was to be part of the educational curriculum and a regular classroom activity under the journalism teacher's control as to almost every aspect of publication. The officials did not evince any intent to open the paper's pages to indiscriminate use by its student reporters and editors, or by the student body generally. Accordingly, school officials were entitled to regulate the paper's contents in any reasonable manner. o Educators do not offend the 1st Amend. by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. o School-sponsored student publications arent solely determined by the reqs of material and substantial disruption from Tinker o Public forum: spaces owned by government (streets); govt has a hard time limiting speech in those areas (no content-based restrictions) o Limited public forum: govt may decide whether free speech applies; if so, they get same rights as public forum; this is not a public forum case, this is an educational activity so the school can regulate content in a reasonable manner but only when the regulation has a valid educational purpose. Even when student speech is ambiguous, if it hints at illegal/immoral activity, schools can regulate Morse v. Frederick (US 2007): At a school-sanctioned and school-supervised event, petitioner Morse, the high school principal, saw students unfurl a banner stating "BONG HiTS 4 JESUS," which she regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, Morse directed the students to take down the banner. When one of the students who had brought the banner to the event refused, Morse confiscated the banner and later suspended him. o Court Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the 1st Amendment by confiscating the pro-drug banner and suspending Frederick. o Frederick's argument that this is not a school speech case is rejected. The event in question occurred during normal school hours and was sanctioned by Morse as an approved social event at which the district's student-conduct rules expressly applied. Teachers and administrators were among the students and were charged with supervising them. Frederick stood among other students across the street from the school and directed his banner toward the school, making it plainly visible to most students. Under these circumstances, Frederick cannot claim he was not at school. o The Court agrees with Morse that those who viewed the banner would interpret it as advocating or promoting illegal drug use, in violation of school policy. o A principal may, consistent with the 1st Amend., restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. In Tinker, the Court declared, in holding that a policy prohibiting high school students from wearing antiwar armbands violated the 1st Amend., that student expression may not be suppressed unless school officials reasonably conclude that it will "materially and substantially disrupt the work and discipline of the school".

The Court in Fraser however, upheld the suspension of a student who delivered a high school assembly speech employing "an elaborate, graphic, and explicit sexual metaphor" Analyzing the case under Tinker, the lower courts had found no disruption, and therefore no basis for discipline. This Court reversed, holding that the school was "within its permissible authority in imposing sanctions . . . in response to [the student's] offensively lewd and indecent speech." Two basic principles may be distilled from Fraser: o First, it demonstrates that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings." Had Fraser delivered the same speech in a public forum outside the school context, he would have been protected. In school, however, his 1st Amend. rights were circumscribed "in light of the special characteristics of the school environment." (Tinker) o Second, Fraser established that Tinker's mode of analysis is not absolute, since the Fraser Court did not conduct the "substantial disruption" analysis. Subsequently, the Court has held in the 4th Amend. context that "while children assuredly do not 'shed their constitutional rights . . . at the schoolhouse gate,' . . . the nature of those rights is what is appropriate for children in school" (Veronia), and has recognized that deterring drug use by schoolchildren is an "important -- indeed, perhaps compelling" interest. The "special characteristics of the school environment," and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse. Tinker test isnt met, but with the Fraser add-on it might be; probably not Hazelwood (public forum)

The Extent and Limits of Student Expression: Of Clothing, Leaflets, and Off-Campus Speech Viewpoint Discrimination Barr v. Lafon (6th Cir. 2008): Court ruled that a TN high school could forbid displaying the Confederate flag as part of its dress code. The ban is constitutional b/c of the disruptive potential of the flag in a school where racial tension is high and serious racially motivated incidents, such as physical altercations or threats of violence, have occurred. SCOTUS declined to grant cert on this case Off-Campus Student Speech and Conduct Doninger v. Niehoff (2nd Cir. 2008): Court held that public school officials did not violate students First Amend. rights by preventing her from running for senior class secretary in response to a blog entry highly critical of those officials that she posted from home during non-school hours. Court ruled that remarks created a foreseeable risk of substantial disruption at the HS and that the student was not entitled to a preliminary injunction reversing a disciplinary action against her As the Supreme Court cautioned years ago, *t+he system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and we are not authorized to intervene absent violations of specific constitutional guarantees. o Because schools have a responsibility for teaching students the boundaries of socially appropriate behavior, offensive speech that would receive full constitutional protection if used by an adult in

public discourse may, consistent with the First Amendment, give rise to disciplinary action by a school.

Do Teachers Have First Amendment Rights? States can legally deny teacher certification to persons who are not citizens because teachers serve a government function Ambach v. Norwick (US 1979): NY law prohibited aliens from teaching in public schools unless they showed an intent to become a citizen (or if there was a severe shortage of teachers); two highly qualified aliens who did not intend to become citizens challenged this law on equal protection grounds. o Court Teachers serve a governmental function, thus a classification based on alienage in this context is submitted to rational basis review. o Alienage is given different scrutiny in different contexts Non-governmental functions (ex: welfare benefits) Strict scrutiny Governmental functions This means that the job is important to the nature of how we govern ourselves (i.e., definitional choices of who we are and how we operate) o Note that this will usually be limited to legislative, judicial and executive policy decisions o So a toll booth operator, who doesn't make these choices, could not be based on basis of alienage; but director of transportation, who does make these sorts of decisions, could be based on alienage Rationale for treating teaching as a governmental function: The role of public education and the degree of responsibility/discretion teachers possess in fulfilling that role Teaching goes to the heart of representative government o Preparing individuals for citizenship o Preserving societal values o Inculcating fundamental values necessary to maintenance of political system Plus, teachers have wide discretion in way material communicated o Bring personal quality to achieving goals, sets example o This applies to all teachers, not just civic teachers Some may criticize this rationale Some subjects arent about citizenship at all (Spanish lady could teach Spanish better) Also teachers dont really have that much control over the curriculum anyway Teachers cannot knowingly or recklessly make false statements; Teacher's interest as a citizen in making public comment must be balanced against the State's interest in promoting the efficiency of its employees' public services Pickering v. Board of Edu (US 1968): School board fires teacher for writing in a newspaper a letter criticizing the Board's allocation of school funds between educational and athletic programs. o Court The teachers firing was unconstitutional under the 1st Amendment. Absent proof of false statements knowingly or recklessly made by a teacher, a teachers exercise of his right to speak on issues of public importance may not furnish the basis from dismissal from public employment. Freedom of speech, while not absolute in all circumstances, is nevertheless sufficiently strong to require the state to show a compelling state interest in order to over come a teachers right to speak out on issues of public concern.

Pickering Test for Teachers Speech: o False Statements (1) Is the subject of the speech a matter of public concern? (Connick) Matter of public concern = relating to any matter of political, social or other concern to the community Determined by subject of comment, not forum Matters of public concern: o A criticism of the curriculum would be a matter of public concern (Cox) o Speaking out at a school board meeting regarding the tenure of another teacher o Letter of complaint written by teachers to a state education agency concerning school districts delay in implementing a federal program Not a matter of public concern: o Speech involving private concerns involves a relatively low std of proof by the state to justify dismissal state can easily sustain by showing minimally that the exercise of speech can be reasonably believed to undermine authority, disrupt decorum, or harm working relationships If NO No right for teacher to speak What isnt a matter of public concern? o Individuals interest o Employment matters o Speaking pursuant to your official duties court will look behind job title to see what true duties are Detrimental to the actual operation of the schools? o (2) If YES BALANCING TEST Teachers interest as a citizen to speak VS. If a statement is true gives more weight to teachers interest If a statement is false o Is speech deliberately false? (knowingly or recklessly) If YES State interest will outweigh teachers If NO Negligent speech is probably protected by 1st Amend. The weight may be slightly more in teachers favor. States interest in promoting efficiency of the public service it performs through its employees Does making that fact public undermine the bosss efficient operation? Does it undermine the superior/subordinate relationship (harmony of workforce)? Extensive burden on part of state to justify denial state must clearly demonstrate that denial was necessary in order to prevent substantial interference If greater knowledge of inside matters weighs more for state Close working relationship o Does the school employee have the kind of close working relationship with the board and superintendent, which require personal loyalty and confidence for the employee to carry out his functions? o Ex: Superintendents secretary probably cant talk shit about him and be protected o But see Cox 8th Cir. found no close working relationship, even though the teacher reported to the principal Reputation interest Cohesion during work If YES NOT protected (Sullivan)

Although, even if teachers statements were true or negligently/innocently false, teacher may lose; still must balance against govts interests *govt will win if its interest is very important+

**Keep in mind that courts have reflected a strong belief that b/c of their sensitive position in the classroom, they must be held for certain activities both internal and external to the school. Thus, even when an issue of public concern is at stake, a school district or other govt agency may restrict speech of an employee if it is detrimental or disruptive to the school community. SCOTUS explains that there is a difference b/w free speech applied to govt as an employer as opposed to govt as sovereign. Govt control over the speech of its own employees can be more restrictive than over speech of the public in general.** The pursuant to duty test Court Adds a Threshold Analysis to the Balancing Test; First Amendment does not apply to speech made in the course of duty Garcetti v. Ceballos (US 2006): Public employees making statements pursuant to their official duties are not speaking as citizens for First Amend. purposes, and the Constitution does not insulate their communications from employer discipline. Court distinguished b/w protected citizen speech and unprotected employee speech Before this case, the court applied the two-part Pickering-Connick test, but Garcetti creates an addl threshold hurdle that most Ps will have a hard time clearing o After Garcetti, the importance of the information is not relevant Many employees have spoken out on matters of public concern even rank corruption in the workplace but if the speech can be classified as official, job-duty speech they have no First Amend. protection. High school teacher does not have First Amendment right to make in-class curricular decisions regarding selection of books and methods of instruction Evans-Marshall v. Board of Edu. (6th Cir. 2010): Evans-Marshall, a high school language arts teacher was the subject of parent complaints to the school board about books she had assigned, as well as certain teaching methods. Following a series of negative performance evaluations, the superintendent recommended non-renewal of her contract. When the school board approved this recommendation, EvansMarshall sued the board and individual officials, alleging retaliation for exercising her free speech right to select class materials. Court Court ruled unanimously that "[t]eachers have no First Amendment free-speech protection for curricular decisions they make in the classroom." o The court said a public employee must meet three requirements to state a valid First Amendment retaliation claim: Court says Evans-Marshall satisfied the 2-Part Pickering balancing test (1) the employees speech must involve a matter of public concern; and (2) the interests of the employee, as a citizen, in commenting upon matters of public concern, must outweigh the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees; and BUT she could not clear the third hurdle (3) the employees speech must not be made pursuant to her official duties. (Garcetti) o Court said her admission that she made her curricular and pedagogical choices in connection with her official duties as a teacher doomed her retaliation claim Court acknowledged that while other federal circuits had not applied Garcetti to teacher in-class speech, but it pointed out that all circuit courts considering similar questions have found teachers speech to be unprotected

The common thread through all of these cases is that, when it comes to in-class curricular speech at the primary or secondary school level, no other court of appeals has held that such speech is protected by the First Amendment. Court also rejected argument that Garcetti expressly reserved the question of a public secondary school teachers right to academic freedom to be decided another day o While conceding that the Court in Garcetti did indeed reserve the question of academic freedom, and Souters dissent suggested teachers enjoy academic freedom protected by the First Amendment, it emphasized that these were limited to teachers at public colleges and universities. Universities occupy a special niche in our constitutional tradition and the constitutional rules applicable in higher education do not necessarily apply in primary and secondary schools, where students generally do not choose whether or where they will attend school. (Court citing PICS v. Seattle) Even to the extent academic freedom, as a constitutional rule, could somehow apply to primary and secondary schools, that does not insulate a teachers curricular and pedagogical choices from the school boards oversight, as opposed to the teachers right to speak and write publicly about academic issues outside of the classroom. *I+t is the educational institution that has a right to academic freedom, not the individual teacher. (Court citing Borden) School Disciplinary Proceedings: Do Students have Fourth Amendment Rights at School?

Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Court has ruled that students have a right to privacy which is protected by the 4th Amendment, and this right cannot be invaded unless the intrusion can be justified in terms of the schools legitimate interests. However, the right is not absolute but is subject to reasonable school regulation within the bounds of reasonable suspicion. o Students in the school environment have a lesser expectation of privacy than the general population (TLO and Vernonia) The right of privacy itself is predicated on 2 factors being present: o (1) Whether the person in question exhibited an actual (subjective) expectation of privacy, and o (2) whether the expectation of privacy be one that society is prepared to recognize as reasonable. In order to give an individual procedural DP as required by the 4th Amendment, 3 factors must be present: (1) Fair notice; (2) Opportunity to be heard; and (3) Hearing is conducted fairly Exclusionary Rule Makes illegally obtained evidence inadmissible in a judicial proceeding SCOTUS has left open the question of application of the rule in school settings Students can sue for violation of privacy or civil rights under 1983 but this is subject to good-faith immunity Teachers are bound by the 4th Amendment but need only pass a reasonable suspicion standard (grounds for believing search will turn up any evidence of any school violation) for violating legitimate privacy rights of students via search.

Searches with Suspicion Reasonableness applies to initial justification and scope of search New Jersey v. TLO (US 1985): High school teacher sees TLO and another girl smoking in bathroom, violating school rule. TLO hands over purse to principal. Principal searches top purse finds cigarettes and rolling papers which prompts more thorough search of purse. Then finds marijuana, drug paraphernalia evidence TLO was selling. Stuff turned over, TLO charged in juvenile court. Court Court established the prevailing precedent regarding school searches and seizures, holding that the 4th Amendment does apply to schools, and in order for searches to be constitutionally valid, reasonableness must prevail. o Rule: Searches of public school students backpacks, notebooks, other belongings, outer clothing and pockets are generally allowed if they are based on reasonable suspicion under all circumstances of the search. o Must balance the students legitimate expressions of privacy and personal security vs. the schools need for effective methods to maintain order and discipline. Reasonable Test for School Searches & Seizures: o (1) Was the action justified at is inception? Was the motivation for the search reasonable in light of the information obtained by school officials? Reasonable at the outset o personal observations o reliable hearsay o criminal profiles o unprovoked flight Justified if: the school has reasonable grounds for suspecting that a search will reveal evidence that the student has violated/is violating a school rule of the law. o (2) Was the search, as actually conducted, reasonably related in scope to the circumstances which justified the interference in the first place? Measures adopted for the search must be: Reasonably related to the objectives of the search Not excessively intrusive in light of the age/sex of the student and nature of the infraction Application of reasonable suspicion to TLOs facts: o Vice principals initial search of students purse was reasonable (based on smoke in the bathroom) o VPs second search was equally reasonable (upon finding rolling papers, reasonable person would know these are indicative of drug use) Problem: the reasonable suspicion standard only applies to school officials (including school security); the probable cause standard applies to police at school o But police/security/teachers usually do all the searches together now so what standard applies? Dissent: o Probable cause standard should not be thrown out No probable cause to continue searching after cigarettes were found b/c suspicion of marijuana possession at the time was based solely on the presence of the papers o Any school violation standard too broad Preferable standard would permit teachers and school administrators to search a student when they have reason to believe that the search will uncover evidence that the student is violating the law or engaging in conduct that is seriously disruptive of school order, or the educational process (vs. the majority view that a search is justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school)

Safford Unified Sch. Dist v. Redding (US 2009): Principal questions student he suspects has Ibuprofen and is giving it to other students, which student denies. Student lets principal search belongings and finds nothing. Principal then orders female admin. to strip search student down to bra and underwear. No pills found. Issue: Whether 4th Amendment prohibits public school officials from conducting strip search of student suspected of possessing & distributing Rx drugs on campus in violation of school policy. Court Search is UNCONSTITUTIONAL. Ruling made it clear that the, while the court seriously frowns on strip searches of students, those have not been forbidden totally; it depends, in other words. o Rule: Searching students inner clothing, resulting in exposure of their bodies, will be extremely difficult though not impossible to justify under the Constitution. o Only applies to future searches Court says there has been enough confusion about what the Constitution meant for strip searches that school officials could not have been expected to know they were invalid, so they have qualified immunity. The Courts immunity decision, however, was applied only to three specific school officials. The Court said it was not deciding whether the school district had any liability, leaving that to lower courts to examine. Court also elaborated on difference b/w what police need to suspect before they may search vs. what school officials need o Police may search only if what they know creates a fair possibility or a substantial chance that a search will turn up evidence of a crime. o School officials, by contrast, may search if what they know creates only a moderate chance of finding evidence of wrongdoing that is, evidence of violating school rules, such as a ban on having drugs (even medicines). Application to the facts using the TLO Reasonableness Test: o Reasonable at inception? Yes Court found that officials had the authority to search students backpack and outer clothing o Reasonable in scope? No In terms of the strip search, the Court turned aside the school officials claim that they actually did not see any part of the girls breasts and pelvic area. The constitutionality, it said, does not depend upon who was looking and how much was seen. Moreover, there was no evidence to suggest any indication of danger to other students, nor any reason to suppose that student was carrying pills in her underwear. o What the student was required to do that had constitutional significance, Souter wrote, was to expose her private areas to some degree, and that kind of search is categorically distinct under the Constitution. In order to justify that kind of intrusion, the Court then said, school officials must have some evidence that the drug or other item they suspect is being hidden by the student is dangerous in terms of its power or quantity, and must have some reason to suppose that the forbidden item is hidden in a students underwear. Court concluded that school officials lacked both those kinds of information in this search, saying: We think that the combination of these deficiencies was fatal to finding the search reasonable. o The wording that it was the combination that made this search invalid seemed to suggest that, if one of the factors was present but not the other, the search might not have violated the Constitution for example, if the drugs were dangerous enough, but officials had no specific reason to think they would be hidden in underwear, a strip search might still have been valid. At least, perhaps, the Court meant to indicate that it was not deciding whether the presence of only one factor would allow the search. The validity of future strip searches may have to be resolved on a case-by-case basis.

Suspicionless Searches Can conduct suspicionless, nonindividualized searches if narrowly tailored to address a particular concern; Circumstances may limit privacy interest and invasion Vernonia Sch. Dist. v. Acton (US 1995): School drug culture taking over school. School policy authorized random drug urinalysis of student athletes, based on the fact that they were leaders. Each athlete was tested at start of season, and then subject to random testing thereafter. Issue: Court in TLO held schools do not need probably cause, but in that case it was an individualized policy. This is a blanket policy. Court Drug policy constitutional; not unreasonable search & seizure o This decision is not limited to the case facts if school has reasonable explanation like a drug problem, they can conduct suspicionless searches that arent too invasive No real privacy invasion (1) Being on a sports team involves sacrificing privacy and subjecting yourself to regulation (2) Urinalysis testing involves the same sacrifice of privacy as using a public restroom Invasion justified Narrowly tailored to student athletes because of particular concern about sports injury Three-Part Balancing Test for Suspicionless Searches o Students reasonable expectation of privacy and Students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy. o the intrusiveness of the search against Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are negligible no different than normal locker room/bathroom. o the nature and immediacy of the governmental concern and Program is to combat drug problem among student athletes, who were more at risk of immediate physical harm from doing drugs while playing sports. o the efficacy of the policy in addressing that concern Drug testing effectively addresses the issue of making sure school athletes don't do drugs the least intrusive means (i.e., drug testing on individualized suspicion of drug use) is not required by the Fourth Amendment. Can conduct suspicionless, preventative searches as long as widespread social problem exists and there is some evidence that it exists at the school Bd. of Educ. v. Earls (US 2002): Mandatory random drug testing for students involved in all extracurricular activities. Respondents argue that because children participating in nonathletic extracurricular activities are not subject to regular physicals and communal undress they have a stronger expectation of privacy than the Vernonia athletes. Court Students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes. o Also, the distinction Respondents tried to make was not essential in Vernonia, which depended primarily upon the schools custodial responsibility and authority. The invasion of students' privacy is not significant, given the minimally intrusive nature of the sample collection and the limited uses to which the test results are put. o Note: Probably cant use testing results to invoke school, academic, curricular, disciplinary measures, or to provide evidence in a criminal proceeding. Results must be kept confidential. The need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Given the nationwide epidemic of drug use, and the evidence

of increased drug use in the citys schools, it was entirely reasonable for the School District to enact this particular drug testing policy. Searches in schools Tiers of Protection Fourth Amendment o Protects against unreasonable searches and seizures o Requires probable cause for a warrant Tiered set of protections o Warrant: So judicial branch must get involved Obtained from magistrate, who must agree that there is some probable cause warranting the search o Probable cause: This exists when known facts/circumstances are sufficient to warrant a person of reasonable prudence to believe that contraband or evidence of crime will be found To use the probable cause standard alone, there must be some practicality keeping the police from obtaining a warrant If the police seize evidence without probable cause, it will be dismissed under the exclusionary rule o Reasonable suspicion: In public school setting, practical interference deemed necessary based on the facts Must be reasonable in its inception Must be reasonable in its scope Reasonable suspicion is a lower standard than probable cause, but its unclear how much lower The requirement of reasonable suspicion is not a requirement of absolute certainty: sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment. I would argue that reasonable suspicion requires less facts school officials are allowed to make more inferences Profs example o Gang members wear blue if theyre selling drugs o Johnny wears blue o Probably no probable cause o Reasonable suspicion probably does exist Balancing test: Legit/Reasonable expectation of privacy Intrusiveness of the search Interest of the school Procedural Due Process: After What Prior Notice and/or Opportunity to be Heard May the School Act to Discipline or to Sanction? Procedural DP Two-Part Test: (1) Is there a protected interest? Life, liberty or property? o Education isnt a fundamental right. But if state law establishes a public education system that all children have the right to attend, this is a property interest and the state cannot selectively deny education w/out procedural DP. (2) How much process is due under the circumstances? o Matthews v. Eldridge Test Factors weighed: Individual interest Private interest that will be affected by the official action

Interest in retaining their property Injury threatened by the official action States interest Costs and administrative burden of the addl process The interests of the govt in efficient adjudication Risk of error Given the process being sought in the particular circumstances

Teacher Dismissal The 14th Amendment requires an opportunity for a hearing if a property or liberty interest is jeopardized Board of Regents v. Roth (US 1972): Roth was a non-tenured college professor hired to teach for one year at a state university. During that year he made comments against the university officials. He was not rehired for the next year, and no reason was given. State law provided that no reason need be given. Court Found that Roth had not been deprived of his property or liberty interests and was not entitled to PDP. The 14th amendment protections apply only to liberty and property. Although Roths employment was important, it does not fall under the nature of liberty or property. The failure to rehire Roth was only one employment prospect for one year, and it did not damage his reputation. He was still free to seek other work. Roth has not shown that his failure to be rehired was based on his criticisms. It is also not a property interest because Roth, by his employment contract, does not have any legitimate entitlement to the employment. o Ask: (1) What is the NATURE of the interest at stake? Liberty Arises if charges are made against an individual that might seriously damage his standing and associations in his community. May be found where the institution stigmatizes the individual, damaging his good name or reputation. o If a school district makes charges that would implicate guilt of dishonesty ort immorality, it gives rise to a liberty interest. A charge of dishonesty or immorality would damage ones good name, reputation, honor, or integrity, and if such were leveled against a teacher, then a hearing to refute the charges would be required. o A liberty interest arises if a school district places a stigma upon the teacher that forecloses his or her freedom to pursue employment opportunities in the teaching profession. Property Not created by Constitution; stem from independent source such as state law. Property interests of teachers may be established: (1) by tenure statute; (2) by contract, or (3) if the individual has a legitimate and objective expectation of re-employment. o May be established by state statute, policies, rules, or regulations Including a faculty handbook, for ex (see Perry) o May be gained by either direct or de facto obligations (2) If within the 14th Amendments protection of liberty and property, then you weigh Contrast with Perry v. Sinderman (US 1972): Court held that a professor, teaching at an institution that didn't have a tenure system, might nonetheless have a legitimate claim of entitlement to job tenure, entitling him to procedural DP protection. o This case makes it clear that property interests are created by reasonable expectations, fostered by the government, of continued employment or of receipt of a benefit. Non-tenured teachers and stigma-plus claims May be entitled to PDP for stigma-plus claims o Occurs where P teacher alleges denial of DP b/c of loss of reputation that is coupled with the deprivation of a more tangible interest (like the denial of public school employment of which many in the community are aware)

To prevail w/one of these claims, teacher who is not rehired must show 3 elements to show deprivation of a DP interest (2nd Cir): o (1) School district made stigmatizing statements that call into question Ps good name, reputation, honor, or integrity o (2) Stigmatizing statements were made public o (2) Stigmatizing statements were made concurrently with, or in close temporal relationship to , Ps dismissal from the teaching position

Applying the Constitutional Standard (see hypos on p. 371) School Discipline Generally DP Rights of Students Cannot suspend student for 10 days without providing some due process (notice, explanation of evidence and an opportunity to be heard) Because: Students entitlement to a public education is a property interest protected by the Due Process Clause (protection against arbitrary deprivation of liberty) Goss v. Lopez (US 1975): OH law gave no PDP for students facing suspensions up to 10 days in cases of misconduct (all that was required was parental notification); suspended children challenge regulation, saying it should provide more process (hearing). Same law gave PDP rights to students facing expulsion. Court Violation of 14th Amendment student was denied DP. o What are the protected interests? Property: for procedural DP purposes, a child has a property right in education. Liberty: interest in protecting your reputation although suspension is temporary, total exclusion from educational process is a serious event in the life of a suspended child. o How much process is due? Oral or written notice of the charges against student If the student denies the charges, the school must explain to him the evidence it has against him; also must give the student an opportunity to present his side of the story [informal] Court says it will not require hearings to allow student to get counsel, to confront/cross examine witnesses, or to call his own witnesses (but hinted that w/more severe punishments, right to counsel or cross-examine may be required) o Argument for more process for suspensions Potentially biased principals This process is just formalism (predetermined outcome) o Argument for less process Strong interest of administration to maintain discipline/order [esp. post-Columbine] So, DP requires for a 10-day or more suspension that the student be given oral or written notice of charges against him and an opportunity to present his side of the story, which can be in the form of an informal meeting with the student. For longer suspensions, more formal procedures will likely be required. Immediate Temporary Suspensions Goss held that students whose presence (1) imposes a continuing danger to persons or property; or (2) constitutes an ongoing threat of disrupting the academic process, may be immediately removed from school. But, if suspended longer than 10 days, must be given short notice, with more formal proceedings to follow. What Goss doesn't cover o Does not tell us what procedure is required for suspensions more than 10 days that dont cause expulsion o Court also notes that there may be unusual situations, although involving only a short suspension, *requiring+ something more than the rudimentary procedures Dissent: laments that federal courts are getting involved in discipline when this matter is best left to the discretion of good principals and teachers

Exam note: for student discipline question, run through regular procedural DP analysis; BUT Goss tells you what to put in on some parts (i.e. clears up there are property/liberty interests) o NOTE: Govts interests in the Matthews test may be much stronger than before in a postColumbine world o NOTE: Consider whether DP Is due for extracurricular activities More on DP Before Spankings and/or Other Corporal Punishment?

N.C.G.S. 115C-390: Teachers may use reasonable force in the exercise of lawful authority to restrain or correct pupils and maintain order. o Shall not be administered in a classroom with other students present and in the presence of another teacher. o Students must be informed beforehand what type of conduct generally results in corporal punishment. o Student must be informed of the reason beforehand. o Parents must be notified. Can issue corporal punishment without pre-due process because civil law covers excessive use and it would overly burden its use; Post-due process is suing for battery Ingraham v. Wright (US 1977): FL law/local school bd. regulation allows corporal punishment for discipline; students here challenged the use of corporal punishment against them, saying that it violated 8th Amendment [cruel/unusual] and 14th Am. [PDP] Court Rejects 8th Amendment argument says that protection against cruel and unusual punishment is properly confined to those convicted of crimes. In terms of PDP: o Is there a protected interest? Court agrees that there is a liberty interest in freedom from bodily restraint and protecting bodily integrity o What process is due? In view of low incidence of abuse, the openness of our schools, and the commonlaw safeguards that already exist, the risk of error that may result in violation of a schoolchilds substantive rights can only be regarded as minimal. So kids can get remedy if the paddling is excessive in a trial afterward. This means that if you feel youve been wronged, you sue in a tort action afterwards; you don't get a hearing before a paddling Court says the fact that teacher knows she could be sued will afford enough protection NOTE: teacher will be protected if it is a good faith mistake o Court is reluctant to step in here b/c public school teachers/administrators were privileged at common law to inflict corporal punishment reasonably necessary for the education and discipline of the child Court is basically deferring to school authorities on this issue NOTE: Goss and Wright dont challenge the punishment itself they challenge the process involved in punishment o So if you get a question about corporal punishment or any other excessive punishment, note that the relevant issue is process o Challenges to punishment itself (p. 392)

More on DP Before Academic Sanctions? Bd. of Curators of the Univ. of Missouri v. Horowitz (US 1978): Medical student claimed that her dismissal from school b/c of poor clinical performance deprived her of her liberty interest by impairing her opportunities to continue her medical education or be employed in a medically related field. Issue: Does the dismissal of a student from a state educational institution constitute a deprivation of liberty or property, as protected by the 14th Amendment? Court "Assuming the existence of a liberty or property interest in this case, respondent has been awarded at least as much due process as the Fourteenth Amendment requires. The school fully informed respondent of the faculty's dissatisfaction with her clinical progress and the danger that this posed to timely graduation and continued enrollment. The ultimate decision to dismiss respondent was careful and deliberate. These procedures were sufficient under the DPC of the 14th Amendment. o Court says there is a difference b/w failure of student to meet academic standards and violation of valid rules of conduct, and, that in the case of academic dismissal, less stringent procedural requirements are required. Compare situation in Goss, where the schools decision to suspend the students rested on factual conclusions that the individual students have participated in demonstrations that had disrupted classes, etc. The requirement of a hearing, where the student could present his side of the factual issue, could under such circumstances provide a meaningful hedge against erroneous action. Here, the decision to dismiss the student was based on academic judgment of school officials and is a more subjective and evaluative one than the typical factual questions presented in the average disciplinary proceeding. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative Disciplinary Context vs. Academic Context o Value of hearing in disciplinary context outweighs any resulting harm to the academic environment belief that disciplinary proceedings in which the teacher must decide whether to punish a student for disruptive or insubordinate behavior may automatically bring an adversary flavor to the normal student-teacher relationship o BUT the same conclusion does not follow in the academic context court said it did not want to enlarge judicial presence in academic community and thereby risk deterioration of the many beneficial aspects of the faculty-student relationship Regents of the University of Michigan v. Ewing (US 1985): Issue was whether university officials acted arbitrarily in violation of a students due process rights when a faculty board dismissed him from a program without granting him an opportunity to retake a medical board examination that he failed. Court Court assumed, without so holding, that Ewing had a constitutionally protected property interest, but nonetheless it held that he had not been denied due process. o Court noted the judicial deference to academic professionals on matters regarding academic decision (vs. disciplinary decisions) it had granted in Horowitz Ewing stands for the proposition that in matters regarding academic program decisions, courts examine whether university officials, in this case via the faculty, exercised their professional judgment in a fair and impartial manner after careful and deliberate consideration. If so, and absent other events, the courts generally defer to the facultys academic judgment and refuse to find violations of students substantive due process rights. o PDP does not require a formal hearing but only that defendants decision be careful and deliberate under Horowitz. See notes on p. 398

IV. Educational Access, Equity & Adequacy

The post-Brown judicial and legislative campaign to end racial segregation in public schooling. First, an era of expansion, and then an era of limitations.

Equal Protection Clause of the Fourteenth Amendment Nor shall any state deprive any person of life, liberty or property, without due process of law (DP Clause); nor deny to any person the equal protection of the laws (EP Clause) Early Efforts NAACP legal campaign o Demands equality in segregated schools o Eventually challenged Plessy Plessy v. Ferguson o Separate but equal facilities does not violated the EPC Brown v. Board o Court presented with evidence of inequality and the inherent inequality of segregation o A short, powerful, legally enigmatic opinion o Doesn't tell us how to desegregate; doesn't even tell us what desegregation is Brown II: The Scope of Relief o Addresses the remedial challenge o Hands the problem to the federal district courts to determine in individual situations how relief was to be afforded o With all deliberate speed Heavy resistance VA closes school system to avoid desegregation 98 Congressmen call Brown illegal; call for Warrens impeachment Mass demonstrations Civil Rights Act of 1964 o Title IV Allows the US Attorney General to litigate to enforce Brown o Title VI No discrimination on basis of race Empowered DOE to withhold federal funds from school district that continued to discriminate based on race Elementary & Secondary Education Act of 1965 o Requires schools to comply to get money The Peak of Desegregation 5th Circuit decided en banc what must be done in every district in the circuit An aggressive posture ending de jure segregation Good faith desegregation efforts not enough; Court wants results Schools have an affirmative duty Remedial goals made clear end racial identifiability Green v. County School Board (1968): Previously the school system had two schools, segregated by decree; after Brown, the school adopted a freedom of choice plan, but informal pressure kept the schools segregated. Court Held that Brown not only forbid segregation but also gave schools an affirmative duty to desegregate if suffered from de jure segregation to bring about unitary, nonracial system of public education (i.e., merely opening white schools to blacks is not enough; must take affirmative steps)

Schools must make progress towards integration in 6 areas: Student assignment (composition of student body) Faculty Administration Facilities Transportation Extracurricular activities Without progress in these areas, desegregation cannot be present in that system (and thus a constitutional violation) If there has been a constitutional violation, then the school board has an affirmative duty to end racial segregation root and branch Court no longer interested in good faith efforts to end desegregation; Court is only focused on results

De jure and De facto Segregation Rule: only if there has been a constitutional violation (de jure segregation) are the equitable powers triggered Goal: eliminate all vestiges of state-imposed segregation De Facto segregation based on private individual decisions are outside of the jurisdiction of the courts Gave courts the authority to order desegregation remedies Desegregation may be ordered to a metropolitan-wide district (even through busing) Swann v. Charlotte Mecklenberg Bd. of Educ. (1971): Big school district--71% white, 29% black. Question is how far-reaching the districts desegregation plan can be. Here, Court attempts to establish what unitary meant and prescribe standards to be used by school authorities to disestablish dual school systems. Court attempted to delineate the scope of federal courts equitable powers to address segregated school districts. o scope of a district courts equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. o Where it is de facto segregation produced purely by private individual actions (no state action) then court does not have jurisd. and state does not have affirmative duty to redress Student assignments - quotas can be okay as a starting point De jure Segregation (Swann Analysis) Test: o There was a violation Prior statutory regulation or law existed (pre-1954) OR KEYES TEST (below) o Analytical Framework: Where it is possible to identify a white school or a negro school simply by reference to Green factors (racial composition of staff and faculty, the quality of school buildings, or the organization of sports activities), a prima facie case of violation of substantive constitutional rights under the RPC is shown Once a PF case is made, the burden is shifted to the school district to show that it is, with all deliberate speed, making efforts to remedy the segregation And the test of whether a plan will be approved is whether it is feasible, workable, effective and realistic District courts may require the following remedies: o To order assignment of teachers o Racial Quotas May use quotas as a starting point in the process of shaping a remedy But cannot demand permanent ratios o One-Race Schools There is a presumption against allowing a school board to retain one-race schools

When the school boards proposal plan for conversion from a dual to unitary system contemplates the continued existence of some school that are all or predominantly of one race, they have the burden of showing that such schools are not the result of present or past discriminatory action on their part and are genuinely non-discriminatory. o Gerrymander School Zoning Permissible device to overcome segregation Pairing, clustering and grouping of non-contiguous may also be validly required by the lower courts o Busing School district may order bussing/transportation although this may be inappropriate if the time or distance of travel is so great as to either risk the health of the children or to significantly impinge on the educational process. If the District Court finds that assignment of children to the school nearest their home would not produce effective dismantling of the dual system, they may order bussing as an appropriate equitable relief. District Courts may not require: o Any particular degree of racial balancing or mixing

Desegregation in Northern States De facto Segregation Desegregation may be ordered absent proof of statutes or constitutional provisions (de jure) that previously required it Keyes v. School District No. 1, Denver (1973): Case involved segregation in Denver. There had never been de jure segregation; however, the plaintiffs argued that there was evidence of racially discriminatory intent and gerrymandering of school district lines, notably the construction of a new, small elementary school in a predominantly black neighborhood. Issue is whether proven de jure segregation in one part of the community can be imputed to de facto segregation in the rest of the district. Court Even if there is no statute establishing racial segregation, if state actor engages in practices showing an intent to discriminate, then it has violated Brown and the court has full power to act. o The state automatically assumes an affirmative duty to effectuate a transition to racially nondiscriminatory school system. However, in states where dual systems of education do not exist, Ps must show that there was official purpose or intent to segregate. o A finding of intentionally segregative school board actions in a meaningful portion of a school system creates a presumption that the entire district is segregated This allows the district court to fashion remedies based on the entire district (opening the door for litigation outside of the South) Desegregation: Trending down If segregation crosses district lines, you cannot reach across districts unless lines were intentionally set up to further segregation Remedy must fit the scope of the violationno interdistrict remedy if there was no interdistrict violation Milliken v. Bradley (1977): Detroit is found to be guilty of intentional segregation within its district. Deliberate acts on the part of city officials to segregate the school. Also finds discriminatory action by the federal government and by the state of Michigan. However, by the time Detroit is trying to fashion a remedy, it's got a problem--all the white people have run away. District Court attempts to fashion an interdistrict remedy (i.e. bus kids out to the suburbs, bus suburban kids in). Court An inter-district remedy is only appropriate upon a showing of an inter-district problem o So if the bad actor is confined to a single district, an intradistrict remedy is all that is appropriate o An interdistrict remedy would only be allowed where Ps could prove that the racially discriminatory acts of one or more school districts (or the state) caused racial segregation in an adjacent district The ultimate goal is to return control of the schools to local control.

**TAKEAWAY: Inter-district remedies can be formulated only for those districts whose OWN POLICIES fostered discrimination, OR if a state law (as in the South) caused interdistrict segregation.**

No interdistrict remedy if there was no interdistrict violation BUT you can jointly hold the state and the district liable and provide compensatory education, extra teacher training, etc. Milliken II (1977): Court set out guidelines that must govern lower court consideration of remedial options. 3 Guidelines: o The remedy should be commensurate with the nature and scope of the constitutional violation. o The courts decree should be remedial in nature, fashioned as nearly as possible to restore the victims of discriminatory conduct to the position they would have occupied in absence of such conduct. o In formulating a decree, the courts must take into account the interest of the state and local authorities in managing their own affairs, consistent w/the Constitution. Compensatory Remedies o You can order addl financial remedies to fix co-D (State) has much more money and so this b/c the strategy o Remember you cant bring children across lines unless lines have been drawn with a racial intent this was hard to show b/c most of the lines drawn were town lines The end of desegregation (?) SCOTUS used the law powerfully and intrusively for over 30 years to override local and state governments Eventually the issue arose: how long should we allow district courts to keep school districts court orders to take affirmative steps to end the effects of segregation? (or, how do you put down a rattlesnake once youve picked it up?) A growing movement develops in SCOTUS to move from Swanns awkward and bizarre remedies to ensuring more local control in Freeman (by not requiring extreme measures) Basis for this change in philosophy: the effect of govt segregation diminishes over time (at some point, racially segregated attendance pattern no longer based on govt action but private factors o Significance of Unitary Status Declaration Challenging party will then have to prove intentional discrimination to bring another desegregation suit Returning to neighborhood schools is not by itself intentionally discriminatory Compare: while under court order, P need not show intent (just effect) So whether district is still under court order can have determinative effect, b/c burden is far different Defining Unitary Status Court emphasizes that returning local control is one of the objectives of judicial supervision Bd. of Educ. of Oklahoma City Pub. Schs. v. Dowell (US 1991): Court held that desegregation decrees were not meant to last for perpetuity, even if on-the-ground segregation continued in school districts that had previously been de jure segregated. Courts should engage in 2-part test to consider unitariness. DOWELL TEST for determining unitary status: o (1) Whether the Board has complied in good faith with the desegregation decree since It was entered; and BOP in the early days school district must disprove that and residual racial identifiability is its fault Over time, it has shifted the further in time from the constitutional violation, if you have complied in GF, the less likely that segregation is a result of school district discrimination (instead, may be housing segregation, parent choice, etc.) o (2) Whether the vestiges of past discrimination had been eliminated to the practicable extent. Court should look at 6 factors identified in Green

If both are met, district may be declared unitary, lifting federal court supervision and returning local control Once a district court has determined that the system is unitary, then Ps have the burden of showing that any increase in the segregated schools is due to intentional actions taken by the school board subsequent to its having been found unitary (i.e., must prove discrimination w/out existence of prior statute that required segregation at the time) *DOES NOT OVERRULE GREEN. Green factors still matterthey just want to see that youve eliminated the vestiges of discrimination to the extent possible.

Can de-supervise incrementally, as schools desegregate incrementally Freeman v. Pitts (US 1992): DeKalb county was under a court ordered desegregation decree; at some point, the district asked to be released; the district had not met all six of the Green factors (still had segregated faculty); district asks to be given unitary status (and thus released from the courts supervision) on all the other factors, and remain under supervision for the factor they had not yet met. Court Held that a school systems failure to achieve unitariness in some of the Green factors would not preclude a finding of unitariness in the other factors and that remedies should be limited to those factors not yet found to be unitary. o Rationale: returning local control is a worthy goal Court reiterates that court supervision has two goals: Ending racial discrimination Returning local control o Where resegregation is a product of private choices, it does not have constitutional implications. It is beyond the authority any beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. o As the de jure segregation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system. The causal link b/w current conditions and the prior violation is even more attenuated if the school district has demonstrated its good faith *W+ith the passage of time, the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish FREEMAN 3- PART TEST: o (1) Has there been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn? o (2) Have the vestiges of discrimination been eliminated to the extent practicable? o (3) Will releasing one prong from supervision drive choices in other areas in the future, directly or indirectly (by private choice)? May need to keep one prong that is unitary under supervision in case there is interaction [i.e. maybe staff problems are causing white flight; then you might keep supervision to ensure student population is ok] Scalia and Thomas dont buy into this last prong; this is Souters test in his concurring opinion, but Boger said it reflected the law

The remedy cannot be broader than the problem Missouri v. Jenkins (US 1995): In KC, there was an intra-district problem, but the court ordered an inter-district remedy (raising teacher pay to attract people who had left the system to come back in) Court Inter-district goal (attracting non-minority students to Kansas City schools) is beyond the scope of an intradistrict remedy o Court says the District Court is trying to do indirectly (impose an interdistrict remedy) what they couldn't do directly, relying on Milliken Also, the Court added another factor to the 6 Green factors: low performance of students

Court says that this cannot be used as a factor unless you can show that its due to segregation (as opposed to socio-economic status, etc.) o Severs the link b/w Constitutional violation and problem with the test scores o Low student performance does not justify continuance of district court order Theme of Dowell, Freeman, and Jenkins: SCOTUS signals that the time has come to end judicial oversight (absent a gross lapse on one of the Green factors) o Compare to Brown, which saw education as essential to society The EPCs Statutory Counterpart: Title VI of the CRA of 1964

Title VI Sec. 2000d. Prohibition against exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on ground of race, color, or national origin 601: No person in the United States 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. ***COA: Private parties can still bring suit, but only if they show discriminatory intent, not just effect. Can get compensatory but not punitive damages. 602: Federal agencies can promulgate regulations that have the force of law and can withdraw money from entities that receive federal funds. *** When government is looking to enforce compliance, look to the discriminatory impact even if there is no discriminatory intent. The Reach of Title IV Intent versus Effect o Lau v. Nichols (US 1974): Court held that a school systems failure to provide English language instruction to Chinese-speaking students denied them a meaningful opportunity to participate in the educational program offered by the school district and was thus a violation of Title IV. Discrimination is barred when it has the effect even though no purposeful design is present. Court stretches 601, saying that it reaches beyond intent and that you can challenge conduct by the state based on intent or effect Here, P entitled to win as a private party w/out any proof of intent and just effect o Guardians Assn v. Civil Service Commn (US 1983): Issue was whether the private Ps needed to prove discriminatory intent to establish a violation of Title VI. Rule: If suing under 601 must show proof of discriminatory intent If suing under 602 (and its regulations) Ps can get injunctive or declaratory (equitable) relief only (cannot get damages) o Significance: 602 (and its regulations) allows for liability for discriminatory effect and intent o Implication of limitation to injunctive relief in this case: police would only get their jobs back; would not get damages (back pay). In other words, cant force govt authority to pay unless it did something intentionally wrong, but can force it to change its behavior. Several justices said it should be the same either way under EPC or Title VI, you need proof of intent.

**No private right of action to enforce disparate impact regulations promulgated under Title VI Alexander v. Sandoval (US 2001): AL required that drivers license test be in English; P said this violated Title VI. This is based on Lau-like logic. It was easily proved that the drivers license rule had the prohibited effect of discriminating on the basis of national origin. Court (Scalia): Concluded that Congress only intended these regulations to be directly enforceable by the OCR, NOT by a private right of action. o 601: private Ps can sue under 601, but only after a showing of intentional discrimination o 602: regulations under 602 may prohibit discriminatory intent, but there is no private right of action to enforce these regulations. In other words, only the agency can enforce the regulations under 602. Prior to Sandoval o Individuals were allowed to bring lawsuits directly challenging violations of rights set forth in the fed regs implementing Title VI ( 602) Because these actions could be grounded in disparate impact, rather than discriminatory intent, they allowed for some claims that could not go forward under the 14th Amendment Impact of Sandoval o Cut back on the implied private rights of actions if statute does not require intent, there is no private right of action This applies generally Affects Title IX as well o Litigants suing for discriminatory effect still have one possible option: sue DOJ to get them to enforce Alternative course for future private actions? o 1983 Authorizes lawsuits against the govt or govt officials responsible for the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws. Actions brought under 1983 bypass the increasingly difficult implied right of action analysis The implementing regulations for Title VI may fall w/in the scope of 1983s protections Congress expressly intended 1983 to give civil rights Ps access to the direct judicial relief o Turn to Congress for legislation that would return Title VI jurisprudence to its pre-Sandoval state (this seems unlikely) Affirmative Action and Diversity In General Racial classifications may be used by states and school districts to remediate past legal segregation HOWEVER, if a school district has never had legal segregation of the races and then creates racial classifications for non-remedial purposes, such as diversity, then the courts will exercise strict scrutiny and require the rationale be compelling and that the policy be narrowly tailored to achieve the envisioned end. o Narrow tailoring of race policies requires that the school district show: (1) the efficiency of alternative race-neutral policies, (2) the planned duration of the policy, (3) the relationship, the numerical goal, and the percentage of minority group members in the relevant population, (4) the flexibility of the policy, and (5) the burden the policy places on innocent third parties o In applying these standards, the courts have increasingly rejected affirmative action policies in elementary and secondary education. Affirmative action does have a place in education but only in a highly individualized and holistic manner rather than a mechanical acceptance of certain groups and applicants. o Although race may be considered as part of the admissions process, the Constitution does not permit direct consideration of race.

Voluntary integration Issue would it be permissible for a school district to create diversity voluntarily simply because it likes it as a value? SCOTUS indirectly addressed this issue in dicta in Swann said that school districts on their own could set ratios of integration (but federal courts could not) The view of affirmative action that arose in the 1980s and later questions the Swann dicta indirectly o Adarand held that "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny." Stated otherwise, "such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests." o Remedying past discrimination: if the program is not remedying past discrimination, it is not narrowly tailored [remedy must be imposed against entities that have been shown to have previously engaged in discrimination; only people discriminated against can benefit] Later cases in the education context implied that diversity would not be a compelling interest Admissions Programs "strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context." In order for an affirmative action plan in education admissions to be narrowly tailored, courts will consider the following: o Where applicants compete for a limited number of spaces in a class or program, is there an individualized, holistic consideration of applicants? o Is there an absence of quotas? o Has there been a serious, good-faith consideration of race-neutral alternatives to the affirmative action program? o Does the plan ensure that no member of any racial group is unduly harmed? o Does the program have a sunset provision or some other end point? Goals of Affirmative Action The goals of affirmative action are traditionally "to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination." In the absence of discrimination against particular groups, affirmative action usually seeks to promote diversity at an educational institution. There is no question but that affirmative action may be utilized to eliminate the effects of prior discrimination. o Remedying the effects of past discrimination is a compelling interest. o These plans systematically identify sources of discrimination in an educational institution's admission policies, specify corrective measures, and provide for the development and maintenance of procedures for ongoing monitoring, evaluation, and modification of that plan. o Questions regarding the validity of affirmative action plans generally do not arise with respect to those judicially, legislatively or administratively imposed because of actual discrimination, but rather they arise for voluntary plans used to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, national origin or sex. The more difficult question is whether affirmative action is permitted in the absence of prior discrimination. o Providing a preference on the basis of race, color, national origin, or sex, must serve a compelling interest. o The Supreme Court has held that achieving student body diversity is such an interest at least in higher education. However, the program must be narrowly tailored to serve that interest. o Whether diversity is a compelling interest in elementary and secondary schools is less clear.

Quotas Prohibited Regents of the University of California v. Bakke (US 1978): Court held that where there has been no finding of past discrimination a preferential system of affirmative action that uses quotas constitutes unlawful reverse discrimination. Although the splintered Court rejected quotas, it did not prohibit race from being considered as a factor in admissions decisions. Powell cautioned that "the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin." o Thus, race or ethnic background may be deemed a "plus" but may not insulate the applicant from comparison with all other candidates for the available seats. Non-Competitive Preferences Prohibited Gratz v. Bollinger (US 2003): Court held that UMs admission practice of automatically awarding points to racial or ethnic minorities constituted a non-competitive preference that violated EPC, Title VI and 1981. Absent was any individualized consideration. It was accepted in Gratz, as implicit from Bakke, that consideration of race as a factor in admissions must serve a compelling government interest and be narrowly tailored to serve such an interest. o The "University's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program." o Lacking in the policy was any individualized consideration the result of the automatic distribution of 20 points was that virtually every qualified underrepresented minority would be admitted. Plus Factor Consideration Permitted to Achieve Diversity Grutter v. Bollinger (US 2003): Court held that the University of Michigan Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or 42 U.S.C. 1981. Powells Diversity Rationale in Bakke o Some 25 years after Bakke, the Supreme Court expressly "endorse[d] Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions," a view that no other Justice joined in when Bakke was decided. o Diversity, he recognized, is more than race or ethnicity. Race or ethnicity is only "one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." To further a compelling state interest, diversity necessarily "encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." o Rather than give a preference, under the Harvard plan "race or ethnic background may be deemed a 'plus' in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats." Stated otherwise, such "an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Moreover, "the weight attributed to a particular quality may vary from year to year depending upon the 'mix' both of the student body and the applicants for the incoming class." o What he called for was the "kind of program [that] treats each applicant as an individual in the admissions process." Diversity as a Compelling Interest o Court acknowledged the benefit of Michigan Law to "enroll a 'critical mass' of minority students" in "assembling a class that is both exceptionally academically qualified and broadly diverse."

This goal does not aim to simply assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, a clearly unconstitutional approach. o "Rather, the Law School's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce." o Justifications for deeming diversity compelling: Reduces stereotypes Encourages understanding Leadership must be open to all races (this is especially important in law school context for the court) Better prepares students for an increasingly diverse workforce, for society, and for the legal profession Military leaders say diverse officer corps need for national security Narrow-Tailoring Admissions Policy to Achieve Compelling Interest o Where drawing racial distinctions is permissible to further a compelling state interest, it is necessary that the means chosen be "'specifically and narrowly framed to accomplish that purpose.'" o Narrow tailoring in the context of admissions policies prohibits universities from insulating applicants who belong to certain racial or ethnic groups from the competition for admission "It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks." What universities may do, however, is to "consider race or ethnicity more flexibly as a 'plus' factor in the context of individualized consideration of each and every applicant." "Race-conscious admissions policies must be limited in time. The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." (OConnor)

Affirmative Action by Elementary and Secondary Schools PICS vs. Seattle School District (2007): Seattle and KY school districts adopted plans whereby, after considering place of residence and availability of space, assignments were made on the basis of race to ensure that schools were racially balanced. The Seattle district had never operated legally segregated schools and the Louisville district had been found to have achieved unitary status. Despite the plans, the use of racial classifications had minimal effect on the overall racial makeup of the schools. Court Held that the districts, which did not operate legally segregated schools, denied students equal protection by classifying students by race and relying upon the classification in school assignments. Once school systems achieve unitary status (or if they were never under court supervision), any attempt to classify students by race and use that for school assignments will be subject to strict scrutiny. o While not categorically finding that the diversity of an elementary and secondary school study body will never be a compelling interest, the plurality opinion went to great lengths to distinguish the interest sought to be served in that setting from higher education. Ultimately, though, the opinion concluded that unlike the use of affirmative action upheld in Grutter, "race is not considered as part of a broader effort to achieve 'exposure to widely diverse people, cultures, ideas, and viewpoints,'...; race, for some students, is determinative standing alone." Fatally, "[t]he plans are tied to each district's specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits" to be derived from a diverse student body. o The school districts did not establish a compelling interest in racial diversity since the plans relied on racial classification in a nonindividualized, mechanical way as a decisive factor, rather than a holistic approach. However described, the Seattle and Louisville plans did not seek diversity. They sought impermissible racial balancing which is not a compelling state interest.

Not only did the Seattle and Louisville districts fail to focus on each applicant as an individual but, instead, as a member of a particular racial group, but it did not consider alternative assignment plans that did not use express racial classifications. "Narrow tailoring requires 'serious, good faith consideration of workable race-neutral alternatives.'" o Diversity is a permissible goal of school districts if it is not simply pursued to mix the races, and if the policies used to promote diversity are narrowly tailored. The diversity policy of a school must be based on an amalgam, composite, or blend of related attributes calibrated to enhance learning experiences of students. While race and ethnicity can be considerations in that mosaic, they cannot be the raison detre nor the criterion on which the movement of students is based. o In short, constitutional policies must be narrowly tailored and designed to achieve their asserted goal of fostering educational and broader socialization benefits through a racially diverse learning environment. School districts cannot constitutionally justify policies that simply move children around based on racial classifications. Kennedy Concurrence o Made clear that he is not prepared to ignore the problem of even de facto resegregation in schooling o Sometimes race-based decision are okay, but not these o You can look at race as a component of the neighborhood, component of faculty and staff, but in this case, the lines were sloppily drawn o Diversity can be a compelling interest, but it really has to be narrowly tailored Show history of specific discrimination, with INTENT to discriminate Show how your policy will serve these interests without harming qualified others

Gender and schooling The modern origins of heightened judicial review: the permissibility of sex-segregated educational settings. In General Constitutional Basis o Equal Protection Clause Statutory Basis o Title IX of the Education Amendment of 1972 A person generally may not, "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." The Search for a Constitutional Standard Reed v. Reed (US 1971): Court struck down a statute b/c it gave preference to the male over the female such that it would violate the EPC. However, the Court did not elevate sex classifications to the special category of constitutional classes, such as race, requiring strict scrutiny. Craig v. Boren (US 1976): Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. This standard is far more demanding than the conventional equal protection standard (rational basis) but less rigorous than applied in the race cases (strict scrutiny). o Rational Basis: As long as the classification is rationally related to a permissible govt interest. o Strict Scrutiny: Burden is on the govt to show the classification is necessary to achieve a compelling state interest (there must not be less burdensome alternative for achieving the government objective).

Single-Sex Education Mississippi Univ. for Women v. Hogan (US 1982): Joe Hogan challenged the womens only admission policy after being denied into a nursing program solely on the basis of gender. The primary justification for maintaining the single-sex admissions policy was "that it compensates for discrimination against women and, therefore, constitutes educational affirmative action." Court Held that a womens only admissions policy is constitutional when it is supported by a significant government interest and is substantially related to the governmental objective. o Contrast with strict scrutiny, which requires narrowly tailored and least restrictive means to further a compelling government interest. o Court did not find the states argument persuasive "a State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification." Here, the State "made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field" either when MUW opened or currently. In fact, women have actually dominated the field of nursing and excluding males from nursing tended only "to perpetuate the stereotyped view of nursing as an exclusively woman's job." Court also found that the state had not shown that the sex-based classification was substantially and directly related to its proposed compensatory objective. "To the contrary, MUW's policy of permitting men to attend classes as auditors fatally undermines its claim that women, at least those in the School of Nursing, are adversely affected by the presence of men." The justifications for excluding males was found to have "fallen far short of establishing the 'exceedingly persuasive justification' needed to sustain the gender-based classification." Intermediate Scrutiny o Important governmental interest and substantially related means Suggests that govt wont be overly passive or active in this area Actual purpose Burden is on the state to show an exceedingly persuasive justification for the classification [one example of this might be an all male draft] (VMI) Classification must be applied free of fixed notions concerning the roles and abilities of males and females Archaic/overbroad generalizations can never be the basis for a gender classification (this is a means question) Real physical differences between the sexes are permissible Exceedingly persuasive is the current articulation for intermediate test United States v. Virginia (US 1996): VMI had admissions policy that categorically excluded women. There was a parallel womens program created to remedy any unlawful treatment of women resulting from the all-male programs admission policy. (Case NOT brought under Title IX because one of the many exceptions for Title IX is that it grandfathered in colleges that have always historically admitted only students of one sex) Court Concluded that VMI has shown no exceedingly persuasive justification for excluding women from the citizen-soldier training afforded by VMI. EP guarantees prohibit VA from reserving exclusively to men the unique educational opportunities VMI affords. o States justifications: (1) Single-sex education provides important educational benefits and the option of single-sex education contributes to diversity of educational approaches. Court Accepted that "[s]ingle-sex education affords pedagogical benefits to at least some students" and "diversity among public educational institutions can serve the public good." However, "VA has not shown that VMI was established, or has

been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the State." o "However 'liberally' this plan serves the Commonwealth's sons, it makes no provision whatever for her daughters. That is not equal protection." Rule: In cases of this genre, benign justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded. (2) The unique VMI method of character development and leadership training, the schools adversarial approach, would have to be modified were VMI to admit women. Accommodating women would destroy VMIs program. Court Women have gained entry into federal military academies and military forces. VAs fears cannot rank as exceedingly persuasive and the states great goal is not substantially advanced by categorically excluding all women from VMI. Ginsburg: State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed and substantially related to the achievement of those objectives. The justification must be genuine, not invented post hoc, and must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. But all of that is in the service of determining if the state offers an exceedingly persuasive justification for its system of gender line drawing. Remedial Considerations Parallel Institutions and Programs Court found the separate program to be "different in kind from VMI and unequal in tangible and intangible facilities." o At most, the state "created a VWIL program fairly appraised as a 'pale shadow' of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence." o The State "closed this facility to its daughters and, instead, has devised for them a 'parallel program,' with a faculty less impressively credentialed and less well paid, more limited course offerings, fewer opportunities for military training and for scientific specialization." o Beyond serious question, the VMI program "possesses to a far greater degree than the VWIL program those qualities which are incapable of objective measurement but which make for greatness in a ... school, including 'position and influence of the alumni, standing in the community, traditions and prestige." o The state had "not shown substantial equality in the separate educational opportunities the State supports at VWIL and VMI." In evaluating whether a separate program satisfies the requirements of equal protection, a "deferential analysis" is not to be used, "for 'all gender-based classifications today' warrant 'heightened scrutiny.' " o It is significant that under this standard the Supreme Court does not categorically find single-sex institutions unconstitutional. "The heightened review standard precedent establishes does not make sex a proscribed classification." Nevertheless, "[s]upposed 'inherent differences' are no longer accepted as a ground for race or national origin classifications." For a parallel program to satisfy constitutional muster, there must be some "exceedingly persuasive justification" for withholding a program from women. o Where such justification exists, the program must be shown to be of "substantial equality in the separate educational opportunities," both as to tangible and intangible considerations. Dissent: There are gender-based developmental differences that support VAs restriction.

Govt funded military schools for men are well rooted in the traditions of this country and should not be changed by politics-smuggled-into-law judicial decisions. Rational basis is the proper standard b/c women are not a discrete and insular minority unable to employ the political processes ordinarily to be relied on when they constitute a majority demographic. Boger: Under VMI approach to intermediate scrutiny, it looks like strict scrutiny. The precision with which a legislature needs to proceed: not much relaxation in the area of over/underinclusion. Court in VMI didn't allow the claim that only a relatively small number of women were burdened. Instead, Court insists that if there is one women who can meet the standards, then the state must have an exceedingly persuasive justification to include her. This sounds like the rule must me necessary, which means narrowly tailored a la strict scrutiny. Some say that intermediate scrutiny is on the way to becoming effectively the same as strict scrutiny.

Vorchheimer v. Sch. Dist. of Phila (3rd Cir. 1976): Court affirmed that neither Title IX nor the Constitution forbids a public school system from maintaining a limited number of single-sex high school in which enrollment is voluntary and educational opportunities are essentially equal. The ongoing vitality of Vorchheimer was cast into considerable doubt by VMI Gender discrimination and race discrimination as relates to affirmative action Hypo: legislation wants to pass a law benefitting a racial minority to account for historical, pervasive, societal discrimination and injustice; on the other hand, it wants to pass a law benefitting women for the same reasons. These two scenarios would be tested differently: racial program would get tested under strict scrutiny (Grutter must be necessary for a compelling state interest, and in order to support an affirmative action law it cannot be broad discrimination); gender program would be more likely to be upheld b/c the law would only have to meet intermediate scrutiny (prove important interest; prove program was substantially related to achieving it). This is paradoxical b/c the paradigm case for the 14th Amend. was protecting enslaved African Americans. Title IX and the 2006 DOE Regulations on Sex Discrimination in Educational Programs, Including Athletics Programs In General 1681: Enacted to prohibit sex discrimination in educational programs or activities receiving federal funds o 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 educational program or activity receiving Federal financial assistance Exceptions: o With regards to admissions: only applies to vocational schools, professional schools, graduate schools, and public undergrad schools (unless the college has traditionally and continually had a policy of admitting students of only one sex) i.e. doesnt apply private colleges, high schools, etc. o Religious schools controlled by religious organizations compliance would not be consistent with the tenets of the religion o Military schools whose primary purpose is the training of individuals for military service Remember that a policy may pass under Title IX but not under constitutional analysis re: VMI o Institutions traditionally and continually admitting only students of one sex But only for admissions Title IX still applies once students get inside the school 1682: How will the regulations be enforced? o If a violation is found, DOE must warn them and threaten to pull funding. Then, must have approval of the president to completely withdrawal funds. o Private COA: Allowed, but must show some discriminatory intent. 1987 Amendment

Closes loophole now entire institution of system is covered and not just the program receiving financial assistance. If federal aid is distributed to any part of a public school district, the entire school system is subject to compliance reqs. o Private schools are covered if they receive federal funding (most do). Regulations Implementing Title IX (C.F.R.s) o 106.21 Admission: No person shall on the basis of sex be denied admission or subjected to discrimination in admission o 106.22 Preference for Admission: Cant give preference to applicants for admission if the effect is to discriminate on the basis of sex in violation of 105.21 o 106.34: Must give equal access in course offerings, but does not prohibit splitting students on basis of sex in PE and sex-ed classes o 106.40: Cant discriminate on marital or parental status Cant even ask about marital or parental status on admissions material Cant discriminate against pregnancy Separate pregnant classes must be by students choice and must be comparable educational program Pregnancy treated as any other disability o 106.41 Athletics: No person shall be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by recipient, and no recipient shall provide any such athletics separately on such basis. Title IX has proven to be more a more potent and effective force than the EPC to challenge sex discrimination in the schools. o For ex, a rule of an athletic association may violate Title IX but not be offensive to the EPC (but can be vice versa too) Damages under Title IX o For the first 20 years, no money damages were available P could only requires that the federal funding be removed or suit could be filed under a private right of action o In 1992, SCOTUS allowed monetary damages for intentional violations of Title IX Athletics and Title IX 106.41 Athletics: No person shall be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by recipient, and no recipient shall provide any such athletics separately on such basis. o 106.41(b) Provides Exception: may sponsor separate teams for men and women where selection is based on competitive skill or when the activity is a contact sport. Exception from exception: Where an institution sponsors a team in a particular non-contact sport for members of one sex, it must allow athletes of the other sex to try-out for the team if, historically, there have been limited athletic opportunities for members of the other sex. Remedy is allowing opposite sex to try out, not create a new team BUT exception does not apply if single-sex sport is a contact sport Contact sports under the Title IX regulation include boxing, wrestling, rugby, ice hockey, football, basketball and other sports in which the purpose or major activity involves bodily contact. BUT once a school has allowed a member of one sex to try out for a team operated for the other sex in a contact sport, the school is subject to the general antidiscrimination provisions of Title IX and may not arbitrarily curtail or terminate the athletes opportunity to participate. o Equally effective accommodation also requires a college or university that sponsors a team for only one sex to do so for members of the other sex under certain circumstances. This applies to contact and non-contact sports. Ex: a separate team may be required if there is sufficient interest and ability among members of the excluded sex to sustain a team and a reasonable expectation of competition for that team.

Enforcement o Requirement of equal spending didn't work Policy Interpretation athletic interests and abilities of male and female students must be equally and effectively accommodated. A college or university is not required to offer particular sports or the same sports for each sex nor is it required to offer an equal number of sports for each sex. They have discretion in selecting the methods for determining the athletic interests and abilities of their students, as long as those methods are nondiscriminatory. Institutions must use methods that: o Take into account the nationally increasing level of womens interests and abilities o Do not disadvantage the underrepresented sex Opportunities to participate in sports must be substantially proportionate to respective student enrollment Look at participation rate of the sex in athletics to see if it is substantially below its enrollment rate Proportionate opportunities to participate if you have 1,000 seats on athletic teams and 9,000 males and 9,000 females enrolled, must have equal number of male and female seats on sports teams o What if there isnt sufficient demand from a gender? o Have you done surveys to show the student interest? Recruited opposite sex? Promoted sports team? Can show a history and continuing practice of program expansion, which is demonstrably responsive to the developing interest and abilities of the members of a previously underrepresented sex Must respond to the expressed interests of students capable of intercollegiate competition who belong to the underrepresented sex o Is the university trying to increase female sports programs? o Demonstrably responsive to student interest means finding out interests and responding to them Problems can arise if university is in a bad financial situation and cant expand Whether interests and abilities of the members of an underrepresented sex have been fully and effectively accommodated by present programs Ex: use survey and show that women are either on a team and or don't want to be on a team Must take into account team performance records of both male and female teams Title X Case Mercer v. Duke (4th Cir. 1999): Mercer claimed that Duke football coaches cut her from the team b/c she was a woman and treated her differently from male players; thus, the University violated Title IX. Court Held that once a university permits members of the opposite sex to try out for single-sex contact sports teams (it doesn't have to), it can no longer claim an exception under (b). Title IX will protect the athlete against discriminatory treatment. o Litigated exclusively under Title IX, so the court focused on the proper interpretation of the contact sports exemption o However, a constitutional challenge might look quite different (see Force below) EPC Case Force v. Pierce City R-VI School District (W.D. Mo 1983): 8th grader wants to try out for football team. School board refuses to let her try out because (1) safety; and (2) if they let her play, other girls would want to play. (no Title IX violation b/c football is a contact sport) Court Just b/c it isnt a Title IX violation to exclude girls from contact sports does not mean that Title IX mandates that schools must exclude girls from contact sports. Court finds that Force had been discriminated against solely on the basis of her gender in violation of EP.

The schools refusal to grant the girls request is a product of a gender-based classification, and thus to be survive EPC challenge it must meet the intermediate scrutiny standards outlined in Hogan First, ask if the school took action b/c of gender The party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an exceedingly persuasive justification for the classification. The burden is met only by showing at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. If the objective is to exclude or protect members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. If the States objective is legitimate and important, we next determine whether the requisite direct, substantial relationship between the objective and means is present. Holding: Court says states interests are important BUT the means are NOT substantially related to the stated objectives Govt Objective #1: Maximization of equal athletic educational opportunities for all students, regardless of gender The schools argument is that: (1) boys will outperform girls in sports, so same-sex teams allows girls to not get beat out by boys; (2) If the girl is allowed to tryout for football, then other girls must be allowed to and boys must be allowed to try out for volleyball; and (3) when this happens the boys will dominate volleyball and female participation will wither. Court This objective is legitimate, but it is not substantially related to the means taken of banning girls from the football team b/c it is hard to maximize opportunities for all by denying her opportunities. There is no womens football team so it doesn't achieve that end. Govt Objective #2: Maintenance of athletic educational programs which are as safe for participants as possible This again is a legitimate objective, but no substantially related b/c she was capable of playing. o Even if boys were less prone to injury than girls, this broad generalization could not be used to exclude females, who might be physically able to play. So if safety was really important, the means to achieve this cannot be based on outdated stereotypes of the weakness of girls, by banning all of them, but rather some sort of safety/physical ability test for all potential participants, even the boys (including the weak boys) Govt Objective #3: Compliance with Title IX and the regulations thereunder Title IX permitted, but did not require, an exemption for contact sports Title IX doesn't trump EPC if EPC prohibits discrimination, Title IX cant permit it Govt Objective #4: Compliance with the constitution and by-laws of the state high school Athletic Association Compliance with an athletic assocs rules can not be a basis for engaging in otherwise unconstitutional gender discrimination.

Difference between Title IX and EPC At one point, EPC required proof of intent but Title IX didn't After Sandoval, Title IX now requires discriminatory intent Females on Male Teams Exclusion of girls from contact sports in order to protect them from injury is not related to a government objective justifiable under the EPC

Assertion that physiological differences b/w males and females make it impossible for girls to equitably compete with males is not reasonable

Males on Female Teams Reasons against allowing men to try out (can probably prevent it under Title IX) o Would take away opportunities from females o Women have been historically discriminated against in sports they have had fewer opportunities than men. Purpose of Title IX is to give opportunities to women and to stop discrimination. o Acknowledgement that there are gender differences we should celebrate (speed, strength, etc.), but this is in constant tension w/giving full opportunity to women Courts have generally ruled it does NOT deny EP to refuse to allow males to compete on female teams o Legitimate and important objectives: To allow males to participate in female sports activities would crowd girls out of their own sports activities would defeat the schools purposes in creating opportunities to allow girls to participate in interscholastic sports Rule excluding males from female sports to promote safety and the preservation of interscholastic competition in HS athletics is reasonable BUT remember that gender classifications may be analyze under the more strict scrutiny standard if a state constitution is found to impose a more rigorous test than does the federal EPC o MA uses higher standard; court ruled male must be allowed to participate on girls team Student Pregnancy and Marital Status; Gender Biases in Scholarships and Admissions Standards Title IX 106.40 Regulations: (a) a recipient shall not apply any rule concerning a students actual or potential parental, family, or marital status which treats students differently on the basis of sex. (b)(1): 1. Recipient shall not discriminate against any student or exclude a student form class or extracurricular activities on the basis of pregnancy, childbirth, false pregnancy, termination of a pregnancy, or recovery from a pregnancy, UNLESS the student requests voluntarily to participate in a separate program. Pregnancy Schools are prohibited from discriminating against pregnant students based upon their marital status and cannot discriminate against a student because of childbirth, false pregnancy, or recovery from these conditions. A school is permitted to require a doctor's certificate from a pregnant student only if the school imposes the same requirement upon all other students with physical or emotional conditions requiring a physician's care. Participation in special schools or programs reserved or designed for pregnant or parenting students must be completely voluntary on the part of the student. Such programs or schools must be comparable to programs and schools offered to non-pregnant students. Schools must treat pregnancy as they treat other medical conditions. Health plans, medical benefits, and related services are to be provided to pregnant students in the same manner as services are provided to students with "other temporary disabilities." A pregnant student may be granted a leave of absence for as long as it is deemed medically necessary and at the conclusion of her leave must be allowed to resume the status she held when the leave began. Pfeiffer v. Marion Center Area Sch. Dist. (3rd Cir. 1990): Female student alleges she was dismissed from NHS b/c she was pregnant and thus a violation of Title IX. School argues she was not dismissed of b/c of her pregnancy but because she demonstrated a lack of character (principles of morality and ethics) and leadership (directly influences others for good conduct) when she engaged in premarital sexual activity.

Court While dismissing from NHS only girls who become visibly pregnant is prohibited by Title IX, prohibiting the participation of all students, both male and female, who engage in premarital sexual activity is permissible. o Regulation of conduct of unmarried high school student members is w/in the realm of authority of the NHS given its emphasis on leadership and character. This rule would never apply to males b/c they cant get pregnant and will never have to admit to it What about asking candidates to sign a pledge saying theyve never had sex? o However, the court is concerned that this is not the real reason there was evidence that a male student got girl pregnant and was not kicked out of NHS Court of appeals said this could be relevant if NHS counsel knew about pregnancy this goes to whether stated reason was pretext Although it may not be decisive, it may be relevant. Remands instructing district court to consider it.

NOTE: the following case was decided before Sandoval, when disparate impact claims were still allowed. This would no longer work. Chipman v. Grant Cty. Sch. Dist. (E.D. Ky 1998): 2 teenage girls told they could not be admitted to the NHS b/c they had become pregnant. School argues that they didn't base decision on pregnancy, but rather b/c they engaged in premarital sex. Disparate Impact Claim: 100% of females who got pregnant were kicked out, but no males were kicked out if he got someone pregnant, nor were any females if they had an abortion. School argued that they would also exclude other students, but none have ever come to their attention o Prima Facie Case: P must prove that the challenged policy has a substantial adverse impact on a protected group Here, is has been shown that statistically, 100% of pregnant girls are not admitted to NHS as a result of the policy o Burden Shifts to School District: Must show that the challenged practice is a reasonable necessity Ds have failed to articulate a LNDR for their policy Court says there are many alternative means to assess the character of candidates for membership by non-discriminatory criteria Post-Sandoval, this case would not survive there is no private right of action unless you can show intent. It cannot be inferred; it must be established. Title IX has been interpreted to require intent to discriminate, just like Title IV. Scholarship and School Admission Standards Sharif by Salahuddin v. NY State Educ. Dept. (S.D.N.Y. 1989): Class of female HS students filed an Title IX and EPC claim, seeking to halt NYs practice of awarding scholarships exclusively on the basis of SAT scores. Ps are not claiming intentional discrimination; rather, they claim that Ds practice of sole reliance upon SAT scores to award scholarships disparately impacts females. Court Found thatDs discriminated against Ps in violation of Title IX AND the EPC. o Title IX Claim: Court held that the use of standardized test scores in determining eligibility for scholarships violates Title IX regulations if it has both a disparate impact on students of one sex and is not justified by educational necessity, regardless of whether the school district intended to discriminate against members of that sex. Court says that Title IX regs, like the Title VI regs at issue in Guardians, prohibit testing practices w/a discriminatory effect on sex BUT remember Guardians held that a violation of Title VI itself requires proof of discriminatory intent To make out a prima facie case under Title IX: P must show that an educational practice, such as the use of standardized test cores in the institutions decisionmaking process, has a disparate impact on students of one sex.

Here, Ps demonstrated that the States practice of sole reliance upon the SAT disparately impacts young women through statistics and expert testimony. D then has burden to show an educational necessity must prove that their practices in question bore a manifest demonstrable relationship to classroom education Here, Ds failed to show even a reasonable relationship b/w use of SAT and recognition and award of academic achievement in HS. SAT was not designed to measure achievement in HS and was never validated for that purpose. P may prevail if she can show a feasible alternative existed that would have had a less discriminatory impact but still would meet educational goals of institution Less discriminatory alternative found when using SAT & GPA combo EPC Claim: Court finds that P have also established likelihood that they will succeed on their EPC claim o RATIONAL BASIS REVIEW: must be rationally related to a legitimate government interset Here, the classification of scholarship applicants solely on the basis of SAT scores violates the EPC b/c this method is not rationally related to states goal of rewarding students who have demonstrated academic achievement. The use of SAT as a proxy for HS achievement is too unrelated to the legislative purpose of awarding academic achievement in HS to survive even the most minimal scrutiny. Even though this is a lenient standard, the State cannot rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. o Classification/RB Review Classification evaluation based on SAT scores (for a purpose the test was not intended to be used) This classification does NOT involve gender and requires RB review Violation of EPC b/c it caused a disparate impact due to classification (gender was not the classification) This is why the girls won because court addressed classification of SAT scores, not male/female classification *** Court decisions have since rejected disparate impact claims under Title IX o ***This case is pre-Sandoval, so you could bring a Title IX claim without showing discriminatory intent. You would not be able to do this today. Ethnic and Language Differences: the Changing Obligations of Public Schools to their Children

Bilingual Education Act of 1968 Grant-in-aid program designed to promote research and experimentation on how best to meet the needs of non-English-proficient (LEP) students The Rise of a Statutory Entitlement Lau v. Nichols (US 1974): Suit was brought by non-English speaking Chinese students seeking relief against the unequal educational opportunities which are alleged to violate the 14th Amend. and Title VI of the CRA. Court Did not address the EP argument (and thus whether non-English speakers are a suspect class) and held that the school district violated Title VI. o Rule: Title VI bans discrimination based on the ground of race, color, or national origin Language deficiency is a proxy for race, ethnicity and national origin Where inability to speak and understand the English language excludes national originminority group children from effective participation in the educational program offered by a school district, the school district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.

Court says it seems obvious that Chinese-speaking minority students receive less benefits than English-speaking majority from the school district which denies them a meaningful opportunity to participate in the educational program. Take away: Schools must do something to provide English language assistance to students having limited English proficiency. o The Castaneda case (below) states that courts ruling in this case (that Title VI is violated by merely a disparate impact, and not a discriminatory intent) was overruled by the Bakke case, and the new rule is thus: Title VI, like the EP clause, is violated only by conduct animated by an intent to discriminate and not by conduct which, although benignly motivated, has a disparate impact on persons of different races. Note the regs to Title VI allow a claim to be brought for disparate impact, but this claim can only be brought by the AG, no private right of action of disparate impact.

Equal Educational Opportunities Act of 1974 1703(f): No state shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin (proxy for ESL) by . . . (f) the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in the instructional program; Does not require proof of intentional discrimination: o Of critical importance, the Acts protections are triggered when the schools program has the effect of excluding linguistic minority students, regardless of whether the officials acted with discriminatory intent. Violation of EEOA if deny equal education opportunity: o (1) the denial of educational opportunity was on account of race, color, sex, or national origin; and o (2) the educational agency failed to take action to overcome language barriers that are sufficiently severe so as to impede a students equal participation in instructional program Act gives districts considerable leeway to define appropriate action to overcome language barriers fight over what is appropriate action and courts defer (see Castandea) MLK Jr. Elem. Sch. Child. v. MI Board of Edu. (E.D. Mich 1978): Issue is whether speakers of Black English can seek relief under Title VI. Court held that Black English counts as a language barrier severe enough to impede equal participation by students in education on account of race. What doesn't work here: o 14th Amend. EPC post-Washington v. Davis, it requires intent to discriminate o Title VI post-Sandoval, it has since been interpreted to require proof of intent under 601 EEOA Claim o No intent o Appears to be available when the school board has failed to take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs How does Court make the leap? o By acknowledging that the legislative history does not say more whatever language barriers may exist o This is not about granting relief at this point but whether it can go forward Castaneda v. Pickard (5th Cir. 1981): Group of Mexican-American children claim that the bilingual education and language remediation programs offered by the school district are educationally unsound and that its failure to alter or improve these programs places the district in violation of Title VI and the EEOA. Is RISD in violation of Title VI? o Rule: Under Lau, a school district violates Title VI only if it failed to provide any English language assistance to students having limited proficiency. o Rule: Title VI is violated only by conduct animated by a discriminatory intent and not by a benign motive that has a disparate impact.

Holding: Clearly, RISD is not culpable of such a failure b/c it has long provided a program of language remediation to its Spanish-speaking students. Moreover, whatever the deficiencies of RISDs program may be, we do not think it can be seriously asserted that this program was intended to discriminate against Mexican students. Is RISD in violation of 1703(f) of the EEOA? o EEOA 1703(f) No state shall deny equal educational opportunities to an individual on account of his or her race, color, sex, or national origin, by the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs. o Rule: Unlike Title VI, the EEOA does not require a discriminatory intent. o Issue: Whether Congress in enacting 1703(f) intended to go beyond the essential holding in Lau, that schools do something, and impose, through the use of the term appropriate action a more specific obligation on state and local educational authorities. o Holding: Yes. While Congress intended to leave state educational authorities a substantial amount of latitude in choosing the programs they would use to meet their obligations under the EEOA, Congress also intended to insure that schools made a genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of their students and deliberately placed on federal courts the difficult responsibility of determining whether that obligation has been met. Three-part test for determining how bilingual education programs would be held responsible for meeting the requirements of the EEOA: o (1) The bilingual education program must be based on sound educational theory. There may be various theories proposed all school needs to say is that it has chosen one of possibly many sound educational theories that is in fact supported by credible people o (2) The programs and practices actually used by the school must be reasonably calculated to implement effectively the educational theory adopted by the school. Cannot just throw money at the problem Theory PLUS implementing the theory this is where you start to have problems It would not be fair to say that a school is taking appropriate action to remedy language barriers if, despite the adoption of a promising theory, the system fails to follow through with practices, resources, and personnel necessary to transform the theory into reality. o (3) The schools program, after being employed for a period of time to give the plan a legitimate trial, must produce results indicating that the language barriers confronting students are actually being overcome. Even if doing everything to implement the theory, it might not work

The Supreme Court Considers the Federal Statutory and Constitutional Obligation to ELLs Horne v. Flores (US 2009): AZ parents charged that the state had violated the EEOA by neglecting English language learner students. Background: federal district judge found that the states minimal spending on instruction for ELLs violated the EEOA. The state substantially changed its programs, increasing financing, reducing class sizes and moving from bilingual education to structured English immersion. The state public superintendent, Horne, asked to be released from court supervision. The 9th Cir. acknowledged that the state had made significant strides, but not enough to end the supervision. SCOTUS (Alito) Said lower courts should have been more flexible in evaluating the states improvements, esp. since federal court decrees in institutional reform cases had the effect of dictating state or local budget priorities. o Rather than applying a flexible standard that seeks to return control to state and local officials as soon as a violation of federal law has been remedied, the Court of Appeals used a heightened standard that paid insufficient attention to federalism concerns.

Alito said the appellate court also erred by looking narrowly at the schools compliance with the original judgment on financing, rather than looking broadly at whether their English language programs improvements had cured the problem. The federal equal-education law, he said, focused on the quality of education programming and services provided to students, not the amount of money spent on them. Case sent back to the lower court for further consideration of four changed circumstances that could warrant releasing the state from the earlier judgment: o the adoption of new teaching methods; o the enactment of NCLB; o structural and management reforms in Nogales; o and increased overall education financing. Dissent (Breyer): said that the lower courts correctly focused on AZs financing for ELLs b/c inadequate financing was the basis of Nogaless violation of federal law. o Appended a chart showing the high failure rates of Nogaless English language learners on state tests and emphasized the importance of ensuring their educational access. o The majority ruling risks denying schoolchildren the English language instruction necessary to overcome language barriers that impede their equal participation. o Given that 47 million Americans do not speak English at home, he said, I fear that the courts decision will increase the difficulty of overcoming the barriers that threaten to divide us. o The court may mean its opinion to express an attitude, cautioning judges to take care when the enforcement of federal statutes will impose significant financial burdens upon states, Breyer wrote. An attitude, however, is not a rule of law. The Impact on the EEOA o This decision makes clear that state and local officials enjoy considerable leeway in determining what qualifies as appropriate action under the EEOA. Not only must courts defer to educators views on what counts as a sound pedagogical theory, but they must also defer to judgments about the appropriate level of program funding. Moreover, judges cannot solely rely on achievement gaps b/w ELLs and their Englishspeaking peers to find a violation of the EEOA. The Modern Campaign to Provide Public Education to the Handicapped and Disabled The Rehabilitation Act and its Prohibition of Discrimination

Challenge of Educating Disabled Children There is a lot of variance in this group; each child has his/her own special needs/problems: e.g. emotional disturbances, learning disabilities, mental retardation, vision, hearing, etc. A lot of experts are needed to even identify these children (whereas race and gender problems are easily identifiable) Depending on the definition used, up to 35% of children are disabled Formerly schools would refuse to school these children (or fail to give proper services to children within the school) Eventually people began to realize that all children were educable litigation came to the federal courts to make sure they had access Equal protection violation to totally exclude disabled children from the schools Mills v. Bd. of Educ. (Dist. D.C. 1972): DC had a compulsory education statute, but didn't allow disabled children to attend school. No provision for alternative educational placement. Dist. Ct Total exclusion of disabled children from free public education violates the doctrine of equal educational opportunity (which is the equal protection clause in its application to public school education).

Rehabilitation Act of 1973 (Section 504) The Rehabilitation Act expresses a congressional commitment to nondiscrimination based on disability. The following case explores how far an educational institution must go in accommodating a disability to avoid a claim of discrimination. o Not as prescriptive as the IDEA o It is a refuge for parents who do not meet the IDEA definition Ex: child with cystic fibrosis or AIDS Advantages and Disadvantages IDEA has advanced procedural protections But 504 you can go right to court o Only used when school has been willful or reckless PA Assn for Retarded Children v. Commonwealth (E.D. PA 1972, pre-Mills): Generally regarded as the first right to education case concerning the disabled. Court held that exclusion of handicapped children was unconstitutional. o Required PA to provide a free, public program of education and training appropriate to the childs capacity, within the context of a presumption that, among the alternative programs of education and training required by statute to be available, placement in a regular public school class is preferable to placement in a special public school class, and placement in a special public school class is preferable to placement in any other type of program of education and training. Southeastern Community College v. Davis (US 1979): Issue is whether the Rehabilitation Act, which prohibits discrimination against an otherwise qualified handicapped individual in federally funded programs solely by reason of his handicap, forbids professional schools from imposing physical qualifications for admission to their clinical training programs. o Court The language of Section 504 does not compel officials at educational institutions to disregard disabilities or make substantial modifications to their programs in order to allow individuals with disabilities to participate. Section 504 requires only that otherwise qualified individuals with disabilities not be excluded from participation in federally funded programs solely because of their disabilities. An otherwise qualified individual with a disability was one who was able to meet all of a programs requirements in spite of the disability. Court also said that the program does not have any affirmative duty to assist the individual in overcoming his handicap. Only evenhanded treatment is required. Court also said that the program does not have to make substantial modifications in their programs to allow disabled persons to participate. So educational institutions do need to accommodate but you need not fundamentally alter the program (stop requiring clinical experience) or substantially lower the programs standards b/c college has right to guarantee the public/employers that its graduates are all equally qualified. NOTE: when working in this area, be aware that agencies make regulations (and that the interpretive notes for the regulations matter too).

Individuals with Disabilities in Education Act (IDEA) Codifies Mills (total exclusion of disabled children from public education violates the Constitution) and moves well beyond that case in the rights it affords to disabled children. o Access (Mills) + free and appropriate education It is the primary protection for handicapped children o Rehabilitation Act only used when school has been willful or reckless Definition of disability o Defines disabled children as those who are mentally retarded, hard of hearing, deaf, speech and language impaired, visually impaired, seriously emotionally disturbed, orthopedically impaired, autistic, traumatically brain injured, or otherwise health impaired. o In addition, the definition includes children with specific learning disabilities who require special education and related services. o The Act also requires the development of services for disabled students to ease their development into the world of the adult. Provisions for such transition services must be included in the IEPs of all students 16 years of age or older. Substantive Entitlements and Procedural Protections o This statute creates an affirmative entitlement for handicapped children *its not an antidiscrimination statute like Rehabilitation] o Two substantive entitlements created Full educational opportunity Free appropriate public education This includes special education and related services o It also requires an individualized educational program *IEP+, a plan for specifically designed instruction to meet the unique needs of handicapped children Process [including procedural protections]: Person is diagnosed as handicapped in some regard (either by parents drawing attention to school; or school identifying through testing) If child is found to be handicapped, an IEP is created by a team of people Membership of team varies - teachers, special education specialists, principal, psychologist, audiologist, etc. Parents can be on if they want [must be given notice that their child is being evaluated and must be told that they have a right to be involved] IEP team proposes a solution for how to solve the childs problem Could be as simple as giving a child a hearing aid Could be more complicated like in Rowley case Parents often disagree with the IEP plan they are entitled to a due process hearing; then Parents are entitled a due process hearing to challenge IEP in front of an administrative hearing officer [people who propose/oppose plan can talk]; then an administrative appeal; then an appeal to a fed. dist. ct. A recent SCOTUS opinion places the burden on parents when challenging the IEP o Deference to schools decision making Main point about the procedural protections A determined, well financed parent has a lot of room to litigate Often the threat of litigation will coerce the school into bending over backward to change the plan Appropriate education Board of Edu. v. Rowley (1982): Deaf student read lips well and did well in school; her IEP afforded her a tutor and a speech therapist; her parents challenged, asking for an interpreter in the classroom. Court Held that a free and appropriate education is provided when a student gets personalized instruction with sufficient support to allow the child to benefit educationally from that instruction. o The IDEA never promises maximum feasible education (i.e., fulfillment of full potential)

All that it promises is that a child will get educational services that giver her some educational benefit Making passing grades could qualify as showing educational benefit Two-Part Test: o (1) Has the school complied with the procedures set up in the act (i.e., parental notification, IEP team, etc.)? Federal courts are very strict on this o (2) Has the IEP created through this process been reasonably calculated to enable the child to receive some educational benefits? This is a pretty low burden, but it does require more than a de minimus educational benefit Statute shows a preference for mainstreaming [i.e. place handicapped children in regular classrooms to the maximum extent possible+ o Previously these children wouldnt have been in school at all or would have been stuck in special classes; theory for mainstreaming is that these children can benefit from being around non-handicapped children (and vice versa) o The circuit courts are split on when a child must be mainstreamed; the Supreme Court has not yet addressed the issue

Preference for Mainstreaming and the Least Restrictive Environment Roncker v. Walter (6th Cir. 1983): Severely mentally retarded 9 yr-old placed in school exclusively for mentally retarded children. Mother says child should be placed in a special education class in a regular school setting. Court Where a segregated facility is considered superior, the court should determine whether the services which make the placement superior could be feasibly provided in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate under IDEA. But see Hartmann v. Loudon Co. Bd. of Educ. (4th Cir. 1997): 11 yr-old autistic childs IEP team concluded he wasnt making progress in the regular classroom. IEP team proposed to place child in a class specifically structured for autistic children, which included special instruction and regular classroom time. The parents refused to approve the IEP, claiming that it failed to comply with the main-streaming provision of the IDEA, which states that to the maximum extent appropriate, disabled children should be educated with children who are not handicapped. Court IDEA encourages mainstreaming, but only to the extent that it does not prevent a child from receiving educational benefit. Court says IDEA does not grant federal courts a license to substitute their own notions of sound educational policy for those of local school authorities and their right to apply their professional judgment. o 4th Cir. says mainstreaming is a presumption, not an inflexible federal mandate o Placement of the child in the least-restrictive environment does not always mean that a regular classroom is the appropriate location for the child Mainstreaming NOT required where: o Child would not receive an educational benefit from mainstreaming into a regular class o Any marginal benefit from mainstreaming would be significantly outweighed by benefits which would feasibly be obtained only in a separate institutional setting o Child is a disruptive force in the regular classroom setting Here, child is not making any academic progress AND is a disruption Hartmann approach is the minority view Related Services and the IDEA Irving v. Tatro (US 1984): Court says that school must provide catheterization for child who can only go 3 hours without it 3 hours of education a day would not have been enough to derive an educational benefit

School said they didnt have to do this b/c it was a medical service; SCOTUS basically said that student would not be guaranteed a doctor, but if school nurse could do it, it was required [note: statutory holding, not Const.]

Cedar Rapids Cmmty Sch. Dist. v Garret (US 1999): Court interpreted a DOE regulation that excluded schools from having to provide medical services to only exempt them from providing the services of a doctor (if nurse or layperson could do it, then its required) this included full time medical assistance in this case, regardless of cost. Procedural Process under the IDEA The IDEA establishes numerous procedural safeguards to ensure that school districts develop instructional programs that are responsive to a childs needs. o What is critical is that parents have the right to be notified, to consent or dispute an identification or evaluation, and to demand a DP hearing. Individualized Education Plan o Must prepare once child has been identified as eligible o Typical IEP Sets out goals Steps school will take to met them Timetable for implementation Process for measuring progress o Must be evaluated at least every 3 years o Parents entitled to participated in developing the IEP If dissatisfied with any aspect or its implementation, they can request a DP hearing 2004 IDEA strongly encourages mediation The Due Process Hearing o Resolved by impartial hearing officer, whose decision is subject to appeal If conducted by local education agency, the outcome is subject to review by a state educational agency o Once administrative remedies have been exhausted, a party can seek judicial review in state or federal court Stay Put while pending, child must stay put in the current placement o Statute of Limitations 2004 reauthorization parents must demand a DP hearing w/in 2 years of they date they knew or should have known of the challenged action by the district o Though the substantive right to a free app. education belongs to the child, parents have a number of procedural rights under the IDEA: Right to notice regarding a districts actions to identify and evaluate a disability and to prepare and implement an IEP Must be notified of any proposed changes in the IEP At an IEP hearing, right to: Representation Hearing record Written findings of fact and decisions Present evidence Confront and cross-examine the witnesses Compel their audience The Right to Representation o Parents may use lay advocates, rather than lawyers to represent them o Winkelman v. Parma City School District (US 2007): Parents have a personal right to have their children appropriately educated, which means they can proceed in federal court pro se when bringing claims under the IDEA.

Rational Basis Burden on P The law must be rationally related to a legitimate state interest o Law almost always UPHELD Applies to: o Non-fundamental rights: Age (not suspect) Wealth (not suspect) Access to Public education Own pornography & other objectionable material but can ban sale Economic Rights Over & Under Inclusion allowed Rational Basis with Teeth Different from rational basis b/c court isnt just looking to see if theres any state interest. Looks at the real reasons that the state has offered this program and pokes holes in them all. Applies to: o Mentally ill o Homosexuals Strict Scrutiny Burden on State The law must be necessary to achieve a compelling state interest o Must be narrowly tailored to achieve the state interest There cant be a less discriminatory way to achieve the state interest in order to uphold the law. o Tolerates NO under or overinclusion Must have disparate purpose and disparate impact Law almost always STRUCK DOWN Applies to: o Fundamental Rights o Right to vote; sit on jury o Be a political candidate but not a residency req o Marriage o Procreation & Child rearing o Migrate interstate o Privacy Encompassing abortion, sex for consenting adults Any statutes falling into suspect class, even if not a fundamental right o Race o Ethnicity o National origin o Religion o Discrete and insular minorities (CP, Footnote 4) o Traits showing suspectness o Immutability unchangeable trait o Stereotypes o Political powerless, widespread discrimination - Gender Discrimination under Constitution Intermediate Scrutiny o Must be substantially related to important state interest o Some underinclusion okay o Must have disparate purpose and disparate impact o Purpose: To smoke out illegitimate motivations o Applies to:

Gender Illegitimate children Children of aliens access to education

APPLICATION OF STANDARDS OF REVIEW Laws that classify people into groups: Rational Basis o Over & underinclusion are tolerated o Hypothetical purposes are tolerated Test is satisfied even if the statutes defenders come up w/ a merely hypothetical objective that the legislature might have been pursing. Dont have to show that the object its pointing to was the one that actually motivated the legislature o Courts posture is deferential to political process Laws that facially classify on the basis of race and burden a racial minority Strict Scrutiny o Over & underinclusion are fatal o Focus is on the states actual purpose o Court shows little deference to the political process But see Korematsu Laws that are facially race-neutral, but disparately burden a racial minority Rational Basis (unless its 100% like Yick Wo) o Racially disparate effect, standing alone, does NOT suffice to raise to the level of strict scrutiny Proof of subject intent to impose a burden on account of race is also necessary in order to raise to the level of strict scrutiny o Types of evidence of discriminatory intent: Racial disparity Legislative history Deviations from ordinary practice Patterns of enforcement Other circumstantial evidence Laws that facially classify on the basis of race and benefit a racial minority Strict Scrutiny o Affirmative Action See below Laws that are facially race-neutral, but benefit minority Rational Basis o Ex: Setting aside spots in college class for food stamp kids Most likely these kids are black, but youre not basing the laws on race

Sound Basic Education in NC NC State Constitution Art. I, 15: Education. The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right. Art. IX, 2: Uniform system of schools: o (1) General and uniform system: The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools . . . wherein equal opportunities shall be provided for all students. o (2) Local responsibility. The General Assembly may assign to units of local government such responsibility for the financial support of the free public schools as it may deem appropriate. The governing boards of units of local government with financial responsibility for public education may use local revenues to add to or supplement any public school or post-secondary school program. For purposes of our Constitution, a sound basic education is one that will provide the student with at least: 1. sufficient ability to read, write, and speak the English language and a sufficient knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly changing society; 2. sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student's community, state, and nation; 3. sufficient academic and vocational skills to enable the student to successfully engage in postsecondary education or vocational training; 4. sufficient academic and vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society. Even though the NC Constitution requires that access to a sound basic education be provided equally in every district, the equal opportunities clause of Art IX, 2(1) doesnt require substantially equal funding or educational advantages in all school districts.