Education and the Constitution (Update)

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EDUCATION AND THE CONSTITUTION (Update)

Although the first compulsory attendance law was enacted in Massachusetts in 1852, public and private education were almost exclusively governed by state constitutional provisions and statutes until the 1920s. In three landmark constitutional decisions from 1923 to 1927—meyer v. nebraska (1923), pierce v. society of sisters (1925), and Farrington v. Tokushige (1927)—the Supreme Court affirmed the authority of the states to compel attendance at public or private schools. In so doing, however, it declared that the states may neither abolish private education nor regulate it so severely that private schools are effectively turned into public schools.

The "Pierce compromise," which recognized the role of the state in compelling school attendance, but preserved private alternatives, was premised on the economic rights of private schools, the recognition that there are constitutional limits on the states' legitimate authority to inculcate particular values and attitudes in children, and on natural law theories of the rights of parents to direct the upbringing of their children. Put somewhat differently, parents may choose to supplement the basic education provided by the state by relying on private schools, but governments have no constitutional obligation to pay for private education. Parents may choose a private school that reflects their religious, educational, and other values, but the state has the authority to regulate those schools reasonably to accomplish its legitimate socialization and citizenship objectives.

Meyer and its progeny have never been overruled by the Supreme Court, despite their reliance on now repudiated notions of substantive due process in the economic sphere, and they provide the foundation for all subsequent constitutional decisions in the education field. Only one narrow constitutional exception to compulsory attendance has been fashioned, in wisconsin v. yoder (1972), and this exception was for Amish students claiming that modern public high schools undermined their religious faith and practices. Furthermore, state courts, under federal and state constitutional provisions, have restrained state authorities from too closely constraining the operation of private religious schools.

Some modern commentators, however, believe that the "Pierce compromise" would rest more comfortably on first amendment grounds. The idea is that a state monopoly over elementary and secondary education would imperil democratic values as government agencies sought to establish an ideological conformity that would jeopardize the rights of adult citizens to formulate and express their own points of view, particularly with respect to matters of public policy. The underlying assumption is that indoctrination by the state may be as dangerous to freedom of expression as direct government censorship of what speakers may say.

The theme of Meyer and Pierce was carried forward in West Virginia Board of Education v. Barnette, decided by the Court in 1943. A majority of the Justices held that West Virginia could not constitutionally require its students to salute the American flag in violation of their personal beliefs. Justice robert h. jackson did not challenge the notion that public schools may seek to inculcate patriotic values, but he held that the compelled expression of belief was an unconstitutional means of achieving that end. Although the case involved Jehovah's Witnesses, the decision rested on the students' freedom of expression, not their right of free exercise of religion. ambach v. norwick (1979) reinforces the view that the key factual element in Barnette was the coerced declaration of belief. In Ambach, the Court held that a state may prefer American citizens to resident aliens in selecting teachers on the theory that citizens are more knowledgeable and effective in communicating American cultural and political values.

Two decades after Barnette, the Court, acting under the establishment clause of the First Amendment, declared in engel v. vitale (1962) and abington township school district v. schempp (1963) that the states and school districts may not require or sponsor school prayer. The Court, evidencing some skepticism as to whether such prayers ever might be genuinely voluntary, completely abolished sponsored prayer in public schools, even for students wishing to engage in such prayer. In effect, the Court treated the ban on establishing religion as a substantive limit on governmental expression in public schools. In reaching this result, the Court was at pains to distinguish between ritual indoctrination of religion and the study of religion as an academic subject.

But in the years after world war ii, the major concern of the federal courts was less the need to cabin state indoctrination than it was to vindicate the rights of African Americans and other groups to an equal educational opportunity. The landmark decision, of course, was brown v. board of education of topeka, a 1954 decision in which a unanimous Supreme Court declared that segregation of students by race in public schools violated the equal protection clause of the fourteenth amendment. Brown was elaborated on in a series of decisions—including green v. county school board of new kent (1969), swann v. charlotte-mecklenburg board of education (1971), keyes v. school district no. 1 of denver (1973), milliken v. bradley (1974), and Board of Education of Oklahoma City Public Schools v. Dowell (1991)—seeking to define unlawful segregation, to establish the legal framework for remedying past racial discrimination (including the constitutionality of continuing to rely on neighborhood assignment of pupils), to pass on the appropriateness of interdistrict remedies, and to define when a "unitary" or nondiscriminatory school system had been established. Much of the debate centered on what affirmative steps a school district must take, including the busing of children to more remote schools to achieve a racial balance, once a constitutional violation has been proven.

In the 1960s and early 1970s, a number of groups sought to be included under the umbrella of Brown, urging that they had been victims of discrimination in the public schools. For example, handicapped students argued that they could not constitutionally be excluded from public schooling, students from poor families urged that the District of Columbia allocated less money to schools in the poorer neighborhoods, and Asian American students, in lau v. nichols (1974), alleged that the absence of special instruction in English for students with limited proficiency in English functionally excluded them from a public education in violation of the equal protection clause. These lawsuits met with varying degrees of success.

The era of equal educational opportunity in constitutional litigation largely came to an end in 1973 with the Supreme Court's ruling in san antonio independent school district v. rodriguez (1973). Texas relied extensively on local property taxes to support public education, and students from poor districts, with low property values, alleged that the resultant distribution of funds discriminated against them in violation of the equal protection clause. In this context, the Court held that education is not a fundamental interest under the Fourteenth Amendment. Unless a particular group was the object of a suspect classification (that is, historically disadvantaged groups such as African Americans), the Court would not apply a rigorous standard of review to relative denials of educational opportunity, but would uphold educational policies that "bear some rational relationship to legitimate state purposes." The Court concluded that the state's interest in local control of education constituted such a legitimate purpose and that local financing was a rational means of achieving it. After Rodriquez, and with few exceptions outside the realms of race and alienage (e.g., plyler v. doe, 1982), equal educational opportunity claims were litigated under federal statutes enacted to protect particular classes of students (for example, the handicapped, students with limited English proficiency, and women) and under state constitutional provisions.

The modern era in constitutional litigation in the education field is dominated by the struggle for the hearts and minds of coming generations of citizens. The public schools have become the battlegrounds for essentially ideological wars. Under a variety of constitutional provisions, most notably the speech and religion clauses of the First Amendment, the Supreme Court has been asked to intervene to resolve disputes over Darwinism and creationism, fundamentalist Christianity and secularism, conservativism and liberalism, and feminism and advocacy of traditional roles for women. In addressing these divisive and controversial issues, the Court has tended to focus on the motivation of school authorities. If they make curricular and other choices in good faith and if they seek to advance educational objectives, then the decision is virtually insulated from judicial review. If, in contrast, they act to suppress a political ideology or to indoctrinate religious values in children, then their actions may violate the First Amendment.

By way of example, under wallace v. jaffree (1985), moments of silence are permissible only if their purpose, in context, is not to advance religion. Similarly, according to Edwards v. Aguillard (1987), a state may not require that theories of the origin of Homo sapiens contrary to Darwinism be taught if the decision is motivated by religious concerns. And federal appellate courts have held in Smith v. Board of School Commissioners (1987) and Mozert v. Hawkins County Board of Education (1987) that an emphasis on secular values in textbooks and courses is permissible so long as the impetus is not hostility toward religion.

The socialization perspective also yields insights into constitutional decisions involving students and teachers. In tinker v. des moines independent community school district (1969) the Supreme Court held that students may engage in expressive activity in public schools (wearing black armbands to protest the vietnam war) as long as their speech does not threaten a substantial disruption of or material interference with the schools' educational activities. In other words, students may not thwart the schools' ability to communicate, but subject to that caveat, they may express their personal points of view—even if they are inconsistent with those taken by school authorities, thereby reducing the schools' ability to indoctrinate students.

Under bethel school district v. fraser (1986), Tinker is inapplicable to vulgar student expression because limits on such expression are appropriate to schools' educational mission. Furthermore, according to the Court's decision in hazelwood school district v. kuhlmeier (1988), Tinker protects only the personal speech of students. When they participate in curricular activities—for example, as staff members for a school newspaper organized as part of a journalism course—they must conform to reasonable school policies on the content of the publication. Finally, 0a majority of the Justices have stated in board of education v. pico (1982) that library books may be removed from a school library if the books are pedagogically unsuitable or vulgar; they may not be removed because the school board wishes to suppress an ideology with which it disagrees.

A similar analysis may be applied to the academic freedom of elementary and secondary school teachers. If a school district insists on educational grounds that teachers assign particular books, then their academic freedom in the classroom has not been violated, according to a Tenth Circuit decision in Carey v. Board of Education (598 F.2nd 535, 1979). If, however, there is a systematic effort to suppress a type of book in order to exclude particular ideas or ideologies, then the school authorities have invaded the academic freedom of the teachers. Thus, for example, it is one thing to exclude books on Russian history because no courses on Russian history are offered or resources are limited; it is quite another thing to do so because the books discuss Marxist ideas.

The current constitutional standard seeks to distinguish between indoctrination and education. It is questionable whether such a distinction can be applied by federal courts in a principled and predictable manner. Schools stress many values: students are told that racial discrimination, drug abuse, and murder are wrong; they are told that democratic participation, civility, and honesty are right. Thus, the source of the distinction between indoctrination and education may lie more in the nature of the values being promulgated than in the process of communication.

Mark G. Yudof
(1992)