EDUCATION AND THE CONSTITUTION

Basic to any discussion of the role of courts in educational decision making is the primacy of education in American ideology. Americans believe that education is central to the realization of a truly democratic and egalitarian society. It is through education that the skills necessary to exercise the responsibilities of citizenship and to benefit from the opportunities of a free economy will be imparted, no matter how recently arrived or previously disadvantaged the individual. Thus courts are concerned with protecting access to education. Moreover, since decision making by those charged with the administration of public education is seen as one of the most significant areas of law in terms of its effects on the lives of individuals and groups in our society, courts are inevitably drawn into reviewing the legitimacy of those decisions.

Education is primarily a state function in large part delegated to local school districts; the federal government has no direct constitutional responsibility for education. Nevertheless, Congress has enacted laws providing federal grants-in-aid to state and local educational agencies, as well as laws protecting the civil rights of various categories of students. The constitutional authority for these statutes and their implementing regulations comes from Article I, section 8, clause 1, of the Constitution—the taxing and spending power—which has been interpreted to permit Congress to attach conditions to the receipt of federal funds. Constitutional authority for congressional civil rights mandates governing educational institutions may also lie in section 5 of the fourteenth amendment.

In the absence of federal legislation, are there constitutional constraints on the extent to which school authorities can control education and regulate the lives of students and teachers? Conversely, do students and teachers have the same constitutional rights as all citizens in our society, or are these rights limited within the school environment? The courts have acknowledged the importance of education to our democratic society and the importance of schools in preserving and transmitting the values—social, moral, or political—on which our society rests. The challenge is to inculcate those values without stifling the exercise of the freedom of expression, the freedom of religion, and other constitutional rights.

Until the middle of the twentieth century, education was almost the sole prerogative of school administrators and local boards of education. There were few legal constraints on school authorities and even fewer legal entitlements for teachers and students. Today various competing groups and individuals seek to control educational decision making—school boards, school administrators, teachers, parents, students, community leaders, minority groups, and federal and state agencies. Their struggles for control have often ended up in the courts. Since brown v. board of education (1954), the Supreme Court has decided cases involving nearly every major area of educational policy.

Whether states may constitutionally compel all children to be educated in state-run schools was resolved by the Supreme Court in pierce v. society of sisters (1925), which held that while the state may compel all children to obtain schooling, parents have a constitutional right to choose between public and private schools. Nearly fifty years after Pierce, however, the Court held that there are certain constitutional interests of parents and children that may outweigh the state's interest in compelling children to attend school. The Court, in wisconsin v. yoder (1972), emphasized that parental direction of the religious upbringing of their children is an important interest to be protected. Although education is important to our democratic society, the interest of the state in compelling two more years of education beyond the eighth grade was outweighed by the burden on the religious liberty of Amish parents. Only the dissent discussed the possibility that the child's interest might differ from that of the parent. In this perspective, Yoder seems not so much a case about the rights of children as a contest between parents and state over the power to inculcate values.

The state has a much greater role to play in selecting the curriculum and regulating what is taught in its own schools than it does in private schools. Education necessarily involves the process of selection; it also requires some degree of order to carry out the educational mission. However, as the Supreme Court noted in tinker v. des moines independent school district (1969), students (and teachers) do not "shed their constitutional rights … at the schoolhouse gate." Nevertheless, these rights may be circumscribed because of the "special characteristics of the school environment." The constitutional claims made on the courts with regard to schooling have been directed principally toward the protection of individual freedom and the attainment of equality. In the first instance, the countervailing factors are the stability and order of the educational enterprise; in the second instance, they center on differing conceptions of equality and the extent to which the educational enterprise is constitutionally obligated to respond to the equity-based claims of various groups absent a showing of intentional discrimination.

There has been much litigation regarding constitutional limitations on the inculcation of religious, political, and moral values in the public schools. The principal cases resolving the question of the proper place of religion in the public schools were decided in the early 1960s. In engel v. vitale (1962) the Supreme Court held that a nondenominational prayer written by the New York Board of Regents for use in the public schools violated the first amendment's prohibition of an establishment of religion. A year later, in abington school district v. schempp (1963), the Court struck down the practice of reading verses from the Bible and the recitation of the Lord's Prayer in public schools, holding that the state's obligation to be neutral with regard to religion forbids it to conduct a religious service even with the consent of the majority of those affected. Justice tom c. clark was careful, however, to distinguish between the study of religion or of the Bible "when presented objectively as part of a secular program of education" and religious exercises. In Stone v. Graham (1980), the Court held unconstitutional a Kentucky law that required that the Ten Commandments be posted on the walls of public school classrooms. The Court indicated, however, that the case would be different if the Ten Commandments were integrated into the school's curriculum, where the Bible could be studied as history, ethics, or comparative religion.

Although the extent to which religious socialization can be undertaken by school authorities has been sharply limited by the courts, the constitutional limits on political and moral socialization are less clear. West Virginia State Board of Education v. Barnette acknowledged the right of school authorities to attempt to foster patriotism in the schools, but held that the Constitution protects the right of nonparticipation in a patriotic ritual that, in effect, coerces an expression of belief. So too, the First Amendment appears to prevent the editing out of particular ideas with a view to prescribing orthodoxy in politics, religion, or other matters of opinion, but the removal of books and curricular materials from the school library may be permitted when it is done for educational reasons. In so holding, the plurality opinion in board of education v. pico (1982) recognized a limited right of students to receive information, at least in the context of removal of books from a school library, that was protected by the First Amendment.

The reverse side of the coin involves the extent to which parents have a constitutional right to exempt their children from being socialized by public schools to values to which they object. Absent a clear establishment clause claim, it is unlikely that parents can demand, on moral or philosophical grounds, that certain books or courses be excluded from the public school curriculum approved by school authorities. And absent a clear free exercise claim, it is also unlikely that parents can exempt their children from courses to which they may object, particularly as Pierce protects the option of sending their children to private schools if they disagree with the values being taught in the public school.

To what extent does the Constitution protect the right of free expression of students and teachers in the school environment? Complete freedom of expression is inconsistent with the schooling enterprise, which requires order and control. In Tinker v. Des Moines Independent Community School District (1969) the Court said that although an "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression," school officials could limit expression if they showed that "the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."

With regard to First Amendment protection for student organizations, the Supreme Court, in Healy v. James (1972), held that "associational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education." Nevertheless, because the denial of recognition of a student organization is a form of prior restraint, school authorities have a heavy burden of proving the likelihood of disruption. Although the college in the Healy case had denied Students for a Democratic Society access to campus facilities, various other student organizations were permitted such access. Thus, Healy might be read as concerned with equal treatment—that is, if a college generally permits student organizations access to its facilities, although it could exclude all such organizations, it may not exclude an organization based on the political or social views it espouses. (See also widmar v. vincent, 1981.)

May a teacher's right of expression be restricted in light of the special demands of the school environment? This question arises in a variety of contexts. Is the right of the teacher as citizen to free expression circumscribed by being an employee of the school system? Does the teacher as a professional have the right to determine course content, the selection of books, and the ideas and values to be presented in the classroom? Another question, not yet clearly resolved, is whether there is an independent right of academic freedom protected by the Constitution or whether that freedom is merely a corollary of the students' right to know.

The Supreme Court has never decided a case that squarely dealt with academic freedom in the classroom. Although keyishian v. board of regents (1967) noted that academic freedom is "a special concern of the First Amendment" and that "the classroom is peculiarly the " marketplace of ideas '," the case involved neither the classroom nor the teacher's right to choose the curriculum or to teach in any particular way. Justice hugo l. black, in his concurring opinion in epperson v. arkansas (1968), expressed a narrow view of the "academic freedom" protected by the First Amendment: "I am … not ready to hold that a person hired to teach school children takes with him into the classroom a constitutional right to teach sociological, economic, political, or religious subjects that the school's managers do not want discussed.… I question whether …"academic freedom' permits a teacher to breach his contractual agreement to teach only the subjects designated by the school authorities that hired him."

Although lower court decisions vary significantly as to whether "academic freedom" in the classroom is constitutionally protected, obiter dictum in the plurality opinion in Pico suggested that school authorities have unfettered discretion to inculcate community values through the curriculum. If this view prevails, the teacher would appear to have no unilateral right to dictate the lessons (especially value lessons) to which the student will be exposed. If the classroom is the vehicle for imparting values, it cannot also be an open "marketplace of ideas."

Other issues of "academic freedom" actually involve the extent to which the freedom of expression of teachers as citizens, outside the classroom, must be balanced against the interest of the state as employer. For example, the Supreme Court held in Pickering v. Board of Education (1968) that, "absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment." However, if the teacher's statements had been shown to have impeded his or her performance in the classroom or otherwise interfered with the regular operation of the schools, the speech might not be protected. And it is not clear whether protection would extend to teachers who voice their criticisms in the classroom.

The extent to which the Constitution constrains school authorities in the manner in which institutional rules and regulations are applied to students and teachers has been extensively litigated. Must certain procedures be followed before a student can be searched for evidence of the commission of a crime or a violation of a school rule, or before disciplinary action can be taken for failure to comply with institutional rules and norms?

A search made of private property is ordinarily held to be "unreasonable" under the fourth amendment if made without a valid search warrant. Even when the circumstances are such that courts have permitted warrantless searches, however (such as when necessary to prevent concealment or destruction of evidence), such searches usually require a showing of a probable cause. However, the Supreme Court, in balancing school authorities' "substantial" interest in maintaining discipline against students' legitimate expectations of privacy, has fashioned a less protective standard. In new jersey v. t.l.o. (1985) the Court held that a search by school authorities is constitutional when there are reasonable grounds for suspecting that the search will turn up evidence, and when "the measures adopted are 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." Moreover, there is no warrant requirement for school searches.

Important constitutional values are incorporated in our notions of procedural fairness. goss v. lopez (1975) held that state-created entitlements to a public education are protected by the due process clause of the Fourteenth Amendment; thus, the right to attend school may not be withdrawn on the ground of misconduct, absent fair procedures for determining whether the misconduct has occurred. However, having decided that some process is due, the procedural requirements in the school environment are minimal. In the case of a ten-day suspension of a student for disciplinary reasons, Goss required only that the student be given notice of the charges and an opportunity to explain his or her version of the story. Immediate removal from school may be justified in some cases even before the hearing. The hearing itself may simply be a brief meeting between the student and the administrator minutes after the alleged transgression. More stringent safeguards, however, may be required for deprivations of education significantly longer than the ten-day period involved in Goss. Just two years after Goss, the Court held, in ingraham v. wright (1977), that although the administration of corporal punishment for violating school rules implicated a constitutionally protected liberty interest, "the traditional common law remedies were fully adequate to afford due process." Thus, no advance procedural safeguards were constitutionally required. Because, according to the Supreme Court in board of curators v. horowitz (1978), academic grades and evaluations typically involve more subjective and evaluative judgments than do disciplinary decisions, the determination of "what process is due" turns on whether the disputed action is deemed to be academic or disciplinary in nature.

Yet another constitutional constraint on the public schools is embodied in the Fourteenth Amendment's equal protection clause. The assertion of an entitlement to a minimum educational opportunity, to equal access to the schooling process, or to a specified educational outcome seeks to impose an affirmative obligation upon public schools. The most fully matured and litigated definition of equal educational opportunity is the right of minority students to be free of racial discrimination. The principal issues have concerned the requirements for finding that the Constitution has been violated, and the scope of the remedy once a constitutional violation has been established. The courts have held that intentional actions of school authorities constitute de jure segregation and, in some cases, that intent to segregate can be inferred from actions that have the foreseeable effect of fostering segregation. The courts have also held that the lapse of time between past acts and present segregation does not alone eliminate the presumption of causation and intent. Courts have also coped with the question whether racial quotas or affirmative action to assist minorities who have been handicapped by past discrimination are unconstitutional, what are permissible remedial techniques (such as zoning, pairing of schools, or school busing), when a systemwide remedy is permissible and what proof is required before a systemwide remedy can be ordered, and whether a court may require that school district boundaries be reorganized in order to devise an effective remedy.

Some students seeking equal educational opportunity are asserting a right to be free of dicrimination on the basis of gender. However, most of the case law has developed under Title IX of the education amendments of 1972 and its implementing regulations, and few of these cases have been decided on constitutional grounds.

In craig v. boren (1976) the Supreme Court indicated that gender would not be treated as a suspect classification as is race, but as a category requiring an intermediate level of judicial scrutiny. Thus, a gender classification must serve important governmental objectives and must be substantially related to the achievement of those objectives before it can be upheld. mississippi university for women v. hogan (1982), involving the exclusion of males from MUW's School of Nursing, held that the state had failed to meet this standard. The state had argued that its single-sex admissions policy was designed to compensate for discrimination against women, but was unable to show that women had suffered discrimination in the field of nursing. For the majority, not only was the policy excluding males from the School of Nursing not compensatory, it tended "to perpetuate the stereotyped view of nursing as an exclusively women's job." The state also failed to show that the gender-based classification was substantially related to its purported compensatory objective. separate but equal educational offerings, if truly equal, and policies that are truly compensatory may still be constitutionally permitted in the case of gender.

Equal educational opportunity has sometimes been defined in terms of financial resources. The school finance reform movement of the early 1970s concerned inequalities in educational resources among school districts within a state. The issue in those cases was whether such inequalities were constitutionally impermissible. In san antonio independent school district v. rodriguez (1973) the Supreme Court held that because Texas's school finance system neither employed a suspect classification nor touched on a fundamental interest, the financing scheme must be assessed in terms of the rational basis standard of review. The Supreme Court's opinion distinguished differences among school districts from a state "financing system that occasioned an absolute denial of educational opportunities to any of its children." Those statements raise two related questions: First, under what circumstances, if any, is exclusion of a class of children from public schools constitutionally justifiable? Second, if absolute deprivation of an education is unconstitutional, can this principle be extended to certain children who, although attending public schools, are "functionally excluded?" plyler v. doe (1982) raised the first question and lau v. nichols (1974) the second.

In Plyler v. Doe the Court held invalid a state statute that permitted school districts to bar illegal alien children from public schooling. Lau v. Nichols involved non-English-speaking children who, even though they had the same access as other children to teachers and books, were "functionally excluded" because they could not understand what went on in the classroom where only English was spoken. The Court struck down this "functional exclusion" of students on statutory grounds.

Although students with limited English proficiency and handicapped students, like minorities or women generally, have sought equal treatment with respect to educational offerings, in some circumstances they have sought to impose affirmative duties on government to remove barriers to their opportunity to obtain an equal education—barriers that were not of the government's making. If they do not receive special treatment, the argument goes, they do not have an opportunity equal to that of others to take advantage of the education the government offers to all. The Supreme Court has not yet held that this latter approach to equal educational opportunity, focusing on an affirmative duty to provide special, additional services for certain groups, is constitutionally dictated; the only cases to come before the Court have been decided on statutory grounds.

cleburne v. cleburne living center, inc. (1985) suggested in obiter dictum that the handicapped are entitled only to application of the rational relationship standard to their equal protection claims. However, now that Plyler v. Doe has recognized the importance of education, perhaps the handicapped will receive some special solicitude for their claims to education. On the other hand, Plyler v. Doe involved the total exclusion of undocumented alien children from public schooling. Even in Rodriguez, the Court suggested that the total deprivation of education might be constitutionally impermissible. Thus, arguably, the total exclusion—or perhaps even the functional exclusion—of handicapped children from education would be unconstitutional, but there would be no constitutional violation in a state's failure to provide the special treatment and additional educational resources needed to bring them to the same starting line as other children.

Since Americans view education as of utmost importance to the maintenance of both their political and their economic systems, as well as to the well-being of the individual and his or her family, schooling is compulsory. The school is, on the one hand, the agency of government closest to the day-to-day lives of people and, on the other hand, the most inherently coercive. Thus courts have been concerned with the appropriate balance between individual liberties and societal interests as well as equal access to an education.

Betsy Levin
(1986)

Bibliography

Goldstein, Stephen R. 1976 The Asserted Constitutional Right of Public School Teachers to Determine What They Teach. University of Pennsylvania Law Review 124:1293–1357.

Hirschoff, Jon 1977 Parents and the Public School Curriculum: Is There a Right to Have One's Child Excused from Objectionable Instruction? Southern California Law Review 50:871–959.

Levin, Betsy 1977 Current Trends in School Finance Reform Litigation. Duke Law Journal 1977:1099–1137.

Van Alstyne, William W. 1970 The Constitutional Rights of Teachers and Professors. Duke Law Journal 1970:841–879.

Yudof, Mark G.; Kirp, David L.; Van Geel, Tyll; and Levin, Betsy 1982 Educational Policy and the Law. Berkeley, Calif.: McCutchan.