EDUCATION LAW
The body of state and federal constitutional provi-
sions; local, state, and federal statutes; court opin-
ions; and government regulations that provide the
legal framework for educational institutions.
The laws that control public education can
be divided into two categories: those written
exclusively for schools and those pertaining to
society in general. Federal statutes regarding the
education of children with disabilities are an
example of the former, and Title VII (CIVIL
RIGHTS ACT OF 1964, §§ 701 et seq., as amended,
42 U.S.C.A. §§ 2000e et seq.), a federal statute
that covers employment in schools and else-
where, is an example of the latter. Much of the
litigation, legislation, and debate in education
law has concerned nine main issues: student
speech and expression; searches of students; the
separation of church and state; racial SEGREGA-
TION; the education of disabled children;
EMPLOYMENT LAW; employee SEXUAL HARASS-
MENT and abuse of students; instructional pro-
gramming; and the financing of public
education.
History
Throughout United States history, govern-
ment, in one form or another, has expressed an
interest in education. Indeed, this interest pre-
dates the American Revolution by more than
100 years. In 1647, the General Court of the
Colony of Massachusetts Bay passed the Old
Deluder Satan Act. Section 2 of that act provided
that “when any town increased to one hundred
families or households, a grammar school would
be established with a master capable of prepar-
ing young people for university level study.” The
Massachusetts Bay Colony was not unique in its
concern for education: Other colonies also gave
unrestricted aid through land grants and appro-
priations of money. Both forms of support were
adopted later by the CONTINENTAL CONGRESS
and the CONGRESS OF THE UNITED STATES.
The first measure enacted by the federal gov-
ernment in support of education came when the
Continental Congress passed the Ordinance of
1785, which disposed of lands in the Western
Territory and reserved section 16 of each con-
gressional township for the support of schools.
Two years later, the same Congress passed the
NORTHWEST ORDINANCE, which was the first
policy statement by Congress with respect to
education. Its third article recognizes knowledge
as being essential to good government and to the
public welfare, and it encourages happiness of
mankind, schools, and the means of education.
These early acts by the colonies, and support
from the federal Congress, forged a partnership
in public education that continues to this day.
This partnership has thrived despite the absence
of any explicit reference to education in the
Constitution. The legal authority for the intru-
sion of the federal government into education is
based on an interpretation given to the GENERAL
WELFARE Clause of the Constitution, which
reads, “The Congress shall have Power To lay
and collect Taxes, Duties, Imposts and Excises to
pay the Debts and provide for the common
Defence and general Welfare of the United
States” (art. I, § 8).
The TENTH AMENDMENT to the Constitu-
tion provides the basis in legal theory for mak-
ing education a function of the states. It reads,
“The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or
to the people.” Although this amendment does
not specifically direct the states to assume the
responsibility for providing education, its effect
has been no less. Each state constitution pro-
vides for the establishment of a statewide school
system. Some state constitutions define in detail
the structure for organizing and maintaining a
system of public education; others merely accept
that responsibility and delegate authority for its
implementation to the state legislature. The U.S.
Supreme Court and the state courts have consis-
tently ruled that education is a function of the
states.
Student Speech and the First Amendment
In the mid-twentieth century, the U.S.
Supreme Court began to recognize that children
do not give up their constitutional rights as a
condition of attending public school. The Court
acknowledged that the public school is an
appropriate setting in which to instill a respect
for these rights. Freedom of expression is per-
haps the most preciously shielded of individual
liberties, and the Court has noted that it must
receive “scrupulous protection” in schools “if we
are not to strangle the free mind at its source and
teach youth to discount important principles of
our government as mere platitudes” (West Vir-
ginia Board of Education v. Barnette, 319 U.S.
624, 63 S. Ct. 1178, 87 L. Ed. 1628 [1943]).
The Court also has recognized that schools
function as a “marketplace of ideas” and that the
“robust exchange of ideas is a special concern of
the First Amendment” (Keyishian v. Board of
Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d
629 [1967]).
Nevertheless, the right to free expression can
be restricted. As Justice OLIVER WENDELL
HOLMES JR. noted, FREEDOM OF SPEECH does
not allow an individual to yell “Fire!” in a
crowded theater when there is no fire (SCHENCK
V. UNITED STATES, 249 U.S. 47, 39 S. Ct. 247, 63
L. Ed. 470 [1919]). A determination that specific
conduct communicates an idea does not ensure
constitutional protection. The judiciary has rec-
ognized that defamatory, obscene, and inflam-
matory expression may fall outside the
protections of the FIRST AMENDMENT.More-
over, the U.S. Supreme Court has acknowledged
that “the constitutional rights of students in
public school are not automatically coextensive
with the rights of adults in other settings”
(Bethel Sch. Dist. 403 v. Fraser, 478 U.S. 675, 106
S. Ct. 3159, 92 L.Ed. 2d 549 [1986]). Accord-
ingly, students’ rights to free expression may be
restricted by policies that are reasonably
designed to take into account the special cir-
cumstances of the educational environment.
It was not until 1969 that the U.S. Supreme
Court specifically addressed the scope of stu-
dents’ freedom of expression in public schools.
