School Law All Stars: Two Successive Constellations
The first period of school law awarded rights to students and employees; the next period cut into those rights.
By Perry A. Zirkel
This year, marking the 40th anniversary of the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District (1969), is a good time for a reflective issue of the Kappan on school law. For this purpose, I assembled a balanced team of experts from both sides of higher education: education professors Nelda Cambron-McCabe and Martha McCarthy (with me being the third on this side) and law professors Jim Ryan, John Sanchez, and Mark Weber. Moreover, to keep the focus on moving theory into practice, I invited Lois Berlin, superintendent of Falls Church City (Va.) Public Schools and former president of the Education Law Association, to provide a practitioners’ perspective of the various contributions.
Although such categorizing and prioritizing is imprecise, I divided the territory into five areas -- students, employees, special education, church-state, and macro issues -- and asked the experts to provide us with the top 5 to10 legal developments and practical implications for their respective areas. Thus, I invited an all-star group of experts to pick the all-star legal developments for K-12 education in this country.
I gave the same challenge to myself, but I made two lists. The first charts the Court’s course from the Brown decision in 1954 to New Jersey v. T.L.O. in 1985. During that period, the Court generally moved in the direction of recognizing more rights for students and employees. In light of the trends in the volume and outcome of education litigation,1 the T.L.O. case marked a transition when the Court gradually began to reduce those rights. For each of those periods, I’ve selected the 10 cases that I believe were the most significant.
Any list, of course, is subject to question. There are inevitably honorable mentions.
Top 10 Education Decisions 1954-1985
Here is my top 10 for the first period, in chronological order:
1. Brown v. Board of Education (1954). Brown may be seen as the first-born of school law, although as Professor Ryan’s article shows, its scope is societal. Although the Supreme Court’s focus on individual issues did not take hold until 15 years later, the significance of Brown in terms of the role of the Supreme Court, the American dilemma of race, and the crucial function of the public schools is undeniable. As a matter of legal doctrine, Brown started to crystallize the Court’s framework for analyzing decisions concerning discrimination under the Fourteenth Amendment’s Equal Protection Clause.
2. Civil Rights Act of 1964. In discussions of legal developments, which often focus on only court decisions, this act is often neglected. However, this federal legislation, especially Title VI, which prohibited discrimination based on race and ethnic origin, and Title VII, which prohibited employment discrimination based on race, national origin, and religion, widened the scope and standards beyond the more limited reach of the Fourteenth Amendment’s Equal Protection Clause. The Civil Rights Act of 1964 set the stage for subsequent federal civil rights laws, such as those based on disability and gender.
3. Disability Laws of the Mid-1970s: P.L. 94-142 and Section 504. Section 504 of the Rehabilitation Act of 1973 was broad-based civil rights legislation modeled on Title VI, whereas P.L. 94-142 -- then called the Education for All Handicapped Children Act and now called the Individuals with Disabilities Education Act (IDEA) -- was funding legislation with detailed strings attached specifically to special education through grade 12. Both set the stage for a panoply of regulations, litigation, and further legislation concerning students and -- for Section 504 -- also employees with disabilities.
4. Tinker v. Des Moines Independent Community School District (1969). This landmark Supreme Court decision is famous not only for its student-friendly First Amendment expression standard of substantial disruption, but also its lofty dicta, including the reference to students’ and teachers’ constitutional rights not stopping at the schoolhouse gate.
5. Lemon v. Kurtzman (1971). Although, like desegregation, church-state issues have defied judicial resolution, I have chosen this one among many not due to the specific issue, which was incidental, but because it crystallized the framework of analysis called the tripartite, or "Lemon," test. McCarthy’s article deftly traces the further development of the Establishment Clause in relation to the schools.
6. San Antonio Independent School District v. Rodriguez (1973). This Supreme Court decision earned its place as a counterpart to Brown by applying the now crystallized two-tiered test under the Fourteenth Amendment Equal Protection Clause to effectively abstain from the central school finance issue of dramatic disparities among districts in terms of per pupil expenditures, deferring the matter to state constitutions, legislatures, and courts. Ryan’s article covers this issue in more detail.
7. Goss v. Lopez (1975). Although Rodriguez marked a step back, Goss represented continuing judicial activism, in tandem with Tinker, with regard to student’s individual constitutional rights. More specifically, ignoring Justice Powell’s dissenting opinion that called for a return to traditional judicial deference in routine school discipline, the majority interpreted the Fourteenth Amendment’s Due Process Clause to require specific procedures when suspending a public school students for one to 10 days.
8. Mt. Healthy School District v. Doyle (1977). Representing a cluster of Supreme Court First Amendment expression cases for public school employees that included Pickering v. Board of Education (1968) and Connick v. Myers (1983), Mt. Healthy distilled a multi-step test, or analytical framework, that was different from the corresponding student standard in Tinker and less protective of employees’ rights.
9. Board of Education v. Rowley (1982). Unlike the other Supreme Court decisions on this list, Rowley was a landmark statutory interpretation case. By judicially defining "free appropriate public education" in terms of procedural compliance and a reasonableness-based substantive standard, Rowley launched a long and ever-widening line of subsequent judicial interpretations of the IDEA. Weber’s article provides a fuller picture of this line of litigation.
10. New Jersey v. T.L.O. (1985). This decision served as an approximate turning point because, while it continued the Tinker majority’s movement of individual constitutional rights across the schoolhouse gate, T.L.O. also echoed the Tinker dissent’s emphasis on on giving school officials latitude when facing threats to the safety and security of public schools. The Court said the Fourth Amendment applies to public school searches but it also formulated a "reasonable suspicion" standard for such searches, which is less protective than the probable cause standard that applies to searches of adults.
Top 10 Education Decisions 1986-Present
For the more recent era, my top 10 are:
1. Hazelwood School District v. Kuhlmeier (1988). This decision furthered the trend toward limiting student rights that began in Bethel School District v. Fraser (1986). Hazelwood established a new category for student expression under the First Amendment -- school-sponsored expression. The Court ruled that school-sponsored expression can be limited, thus significantly reducing, without entirely reversing, Tinker.
2. Missouri v. Jenkins II (1990) and Missouri v. Jenkins III (1995). This pair of decisions qualified for the list merely as illustrations of a long line of Supreme Court decisions that gradually moved from the lofty spirit of Brown integration down to the harsh reality of post-Brown implementation. After trying to address the de facto segregation in communities, the courts lacked the capacity, or at least the commitment, to resolve more than de jure segregation in schools.
3. Americans with Disabilities Act of 1990 and ADA Amendments (2008). These congressional actions reflected a continuing and expanding societal commitment to protect individuals -- including students and employees -- with disabilities from discrimination. The ADA effectively extended Section 504 to private schools and other such organizations that don’t receive federal financial assistance but are larger than the mom-and-pop operation that is too small to engage in interstate commerce. The ADA amendments reversed the Supreme Court’s restrictive interpretations of the meaning of "disability" under Section 504 and the ADA, including the Court’s decisions in Sutton v. United Airlines (1999) and Toyota Motor Manufacturing v. Williams (2002).
4. Lee v. Weisman (1992) and Santa Fe Independent School District v. Doe (2000). These successive Supreme Court decisions rather remarkably concluded that clergy-led devotionals at public school commencement ceremonies and student-led devotionals at high school football games, respectively, violated the Establishment Clause. Nevertheless, the underlying criteria and the outer boundaries of these decisions are more fluid than fixed.
5. Vernonia School District 47J v. Acton (1995) and Board of Education v. Earls (2002). These two successive decisions marked the continuing erosion of students’ rights under the Fourth Amendment since the Supreme Court’s transitional decision in T.L.O. In these cases, the Court said the individualized reasonable suspicion standard didn’t apply to drug testing as a prerequisite for participating in interscholastic athletics specifically and in extracurricular activities generally.
6. Gebser v. Lago Vista School District (1998) and Davis v. Monroe County Board of Education (1999). On the stage it set in Franklin v. Gwinnett County Public Schools (1992), the Supreme Court established the standards for liability under Title IX for teacher-on-student and student-on-student sexual harassment, respectively, in these two successive decisions. This multi-step test has proven to be difficult in all but the most flagrant cases.
7. No Child Left Behind Act of 2001. The most comprehensive and controversial funding legislation for elementary and secondary education, NCLB introduced the school accountability standards of disaggregation, Adequate Yearly Progress, and highly qualified teachers. In addition, its more than 1,000 pages of legislation and regulation also addressed such varied topics as military recruitment, Boy Scouts, homeless children, persistently dangerous schools, gifted education, student surveys, school-prayer guidelines, and teacher liability protections.
8. Zelman v. Simmons-Harris (2002). In this decision, the Supreme Court held that a school voucher statute that provides parents a choice among private schools -- both secular and religious -- and public schools does not violate the First Amendment’s Establishment Clause. This ruling moved the controversy concerning school vouchers to litigation under state constitutions and the political process in state legislatures.
9. Morse v. Frederick (2007). In this decision, the Supreme Court revised the map of First Amendment student speech to marginalize Tinker, thus continuing the constitutional trend away from the students’ rights era. More specifically, the Court concluded that First Amendment protection did not extend to pro-drug student speech. As Cambron-McCabe’s article explains, a variety of other student freedom of expression cases have already surfaced in the lower courts.
10. Parents Involved in Community Schools v. Seattle School District No. 1 (2007). This decision serves as the latest counterpoint to Brown with regard to applying the Fourteenth Amendment’s Equal Protection Clause in favor of racial minority students. Here, the Court concluded that a public school assignment plan that accords preference to racial minority students is unconstitutional in the absence of preponderant proof that it is necessary to achieve racial diversity.
The all-star teams for the past and present eras were not without questionable exclusions. Among those that merit at least honorable mention for the first period were the Supreme Court’s early decision in West Virginia State Board of Education v. Barnette (1943) (flag salute), its companion cases in Board of Regents v. Roth (1972) and Perry v. Sindermann (1972) (Fourteenth Amendment procedural due process for public employees), its Free Exercise decision in Wisconsin v. Yoder (1972) (the Amish exception), its Establishment Clause decisions in Abington v. Schempp (1963) (school prayer) and Mueller v. Allen (1983) (tax deduction), and the enactment of Title IX in 1972 and the Equal Access Act in 1984.
For the more recent period, the following legal developments merit similar attention: the Supreme Court’s IDEA tuition-reimbursement decisions in Burlington School Committee v. Department of Education (1985) and Florence County School District Four v. Carter (1993), its FERPA decision in Gonzaga University v. Doe (2002), its Title IX decision in Jackson v. Birmingham Board of Education (2005), and perhaps most significant of this group -- as Sanchez’ article discusses -- its First Amendment public employee expression decision in Garcetti v. Ceballos (2006).
However, the most significant omission in any such list is that of the many significant but varying legal developments under state law. Issues that are the meat and potatoes of the operation of public schools, depending on the menu of the particular state, include, for example, school finance, collective bargaining, teacher tenure, and tort liability. As both the selection and omission show, the interaction between the judiciary and the legislature and among the federal, state, and local levels warrants careful attention.
Perhaps the most important practical lesson is to avoid the distorted and oversimplified perceptions promoted by the media and special interest groups concerning the effect of law -- especially the courts’ interpretation of the Constitution -- on education.2 Rather than a paralyzing fear, a selective approach is fitting in light of the current continuing swing of the judicial pendulum, with particular attention, for example, to church-state and special education issues. Finally, separating law from lore,3 prudent professionals should start with but not settle for legal compliance; the guiding standard is -- and should be -- best practice.
Notes
1. See, for example, William H. Lupini and Perry A. Zirkel, "Outcomes Analysis of Education Litigation," Educational Policy, May 2003, pp. 257-79; Perry A. Zirkel, "The ‘Explosion’ of Education Litigation: An Update," West’s Education Law Reporter 114, 1996, pp. 341-51. For studies limited to students, employees, or special education, see, for example, idem., "National Trends in Education Litigation: Supreme Court Decisions Concerning Students," Journal of Law and Education, April 1998, pp. 235-45; Anastasia D’Angelo and Perry A. Zirkel, "An Outcomes Analysis of Student-Initiated Litigation," West’s Education Law Reporter 226, 2008, pp. 539-51; Irene Gavin and Perry A. Zirkel, "An Outcomes Analysis of School Employee-Initiated Litigation," West’s Education Law Reporter 232, 2008, pp. 19-36; Perry A. Zirkel and Anastasia D’Angelo, "Special Education Case Law: An Empirical Trends Analysis," West’s Education Law Reporter 161, 2003, pp. 731-53.
2. See, for example, Perry A. Zirkel, "Paralyzing Fear? Avoiding Distorted Assessments of the Effect of Law on Education," Journal of Law and Education 35, 2006, pp. 461-96.
3. See, for example, Perry A. Zirkel, "The Law or the Lore?" Phi Delta Kappan 77, April 1996, p. 579.
PERRY A. ZIRKEL is the Robinson Senior Scholar in Educational Policy, University of North Florida, Jacksonville, Florida, on leave for the spring semester from Lehigh University. © 2009, Perry A. Zirkel
