School Law for K-12 Educators

Concepts and Cases

Frank D. Aquila

• Publisher: SAGE Publications, Inc
• Year: 2007
• ISBN:
  9781506324180
• Edition: 1
• Topic: Education
• Subtopic: Education General

A practical, user-friendly approach to school law supported by carefully constructed information that is of immediate interest to classroom teachers, supervisors and school administrators.

Key Features

Maps out the court's decision-making process in an easy-to-understand format

Illustrates the key aspects of a legal issue through case-studies in every chapter

Explains complex cases with succinct case briefs that target legal laypersons and comprehensive chapter overviews that highlight important concepts

Encourages dialogue with accompanying discussion questions for each case brief and case study

Offers additional case briefs online at www.sagepub.com/aquilacasebriefs

Intended Audience: This book is designed for upper-level undergraduate and graduate students of school law and is a valuable resource for courses in school administration, supervision, and teacher education.

"I find this book to be a very well done, comprehensive text, with useful activities and exceptional case briefs" —Dr. Christine Villani, Southern Connecticut State University

"More than a comprehensive text, this is a reference work for any active school administrator. School Law for K–12 Educators will be found open on a desk more often than closed on the shelf." —Philip Huckins, New England College

"The greatest strength is presentation of facts, narratives, cases, in a concise format with discussion questions and topics" —Audrey M. Clarke, California State University, Northridge

"This comprehensive resource is thoughtfully designed with a focus on legal currency and relevancy. The case briefs enhance an already distinctive textbook." —Bradley Vance Balch, Indiana State University

"Well done book, comprehensive, and easy to read for educators. The most exceptional portion of this book are the case studies, and the exceptionally well done case briefs, excellent instructional tools." —Dr. Christine Villani, Southern Connecticut State University

Part I

Policy Issues

1

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School Desegregation

In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens . . . . Our constitution is color-blind, and neither knows nor tolerates classes among its citizens.

—John M. Harlan
Plessy v. Ferguson (1896)

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OVERVIEW

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Few would question that there is perhaps no single area of school law in which the federal court system, particularly the U.S. Supreme Court, has been as active in dictating policy and supporting change as that of public school desegregation. Essentially, the body of law that has developed regarding desegregation is concerned with rectifying discriminatory practices and violations of minority students’ equal educational opportunities. The legal basis underpinning school desegregation is the equal protection clause of the Fourteenth Amendment of the U.S. Constitution.

The famous dissent of the elder Justice Harlan in Plessy v. Ferguson (1896)¹ clearly states the constitutional basis, as well as the moral standard, that was later adopted in Brown v. Board of Education of Topeka (Brown I) (1954).² The slow development of the principle of racial equality from a minority and socially unacceptable dissenting opinion to a majority view has been ineradicably linked to public education. Possibly because racial injustice is most visible in our schools, the white racial discrimination that legally infected education and sustained segregation was the logical focus to remedy legally contrived discrimination.

Though the Court could establish in 1954 a doctrine of equality, full implementation of this doctrine was still a distant goal. The court system became inextricably entwined with this American dilemma. In trying to impede the racial prejudice that permeated the fabric of American society, the Supreme Court may have thought that it was only addressing state-created segregation. This was, of course, far from reality; the underlying issue of institutionalized private and social discrimination created chaos in our country, and it was played out in America’s public elementary and secondary schools. Using federal statutory and constitutional law, the Court created unitary school districts (school districts in which de jure forms of segregation were eliminated) while also trying to eliminate the vestiges of past discrimination.

This chapter demonstrates the evolution of judicial thinking from formal recognition to prohibition of discriminatory federal and state statutes. Also considered is how the courts addressed the more subtle prejudicial educational treatment of African Americans as the courts resolved to preserve individual rights and freedoms.

The doctrine of “separate but equal” was first enunciated in a pre-Civil War state court case, Roberts v. City of Boston (1849).³ Five-year-old Sarah Roberts was forced to walk past five nearby all-white elementary schools in order to attend Smith Grammar School, a school for African American children. Civil rights activist and later U.S. Senator Charles Sumner established that Smith Grammar was in poor condition. Sumner expounded many of the same arguments that eventually prevailed 100 years later. Using arguments that segregated schools were not equal and violated the Massachusetts Constitution, the court announced the separate but equal doctrine. Reflecting the racial attitudes of the times, this court unfortunately held that race was a legitimate segregating classification.

The Fourteenth Amendment was ratified in 1868. The second sentence of the third clause said, “Nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” Effectuating the meaning of these words would take many years. Its application was limited because the Fourteenth Amendment does not apply to private entities who choose to discriminate. Further, a Mississippi statute requiring segregated train cars was upheld because it applied only to in-state transportation. This circumvented the protections of the equal protection clause and legitimatized state-enforced segregation based on race. “Jim Crow” laws soon translated private discriminatory practices into state law through Southern reactionary judgments. The landmark case legitimatizing segregation was Plessy v. Ferguson (1896), which established the Roberts principle of “separate but equal” as the national standard. Separate but equal accommodations for the races were not unconstitutional because state legislatures had wide discretion in promoting peace and good order. Further, and not surprisingly, the courts also separated a Mongolian child from Caucasian children and required the child to attend a school for African American children.⁴

The National Association for the Advancement of Colored People (NAACP) began a legal initiative to overturn Plessy. The initial approach was to attack segregation when supposedly equal facilities were obviously inadequate. The first major case was Missouri ex rel. Gaines v. Canada (1938),⁵ which concerned a Missouri law prohibiting African Americans from entering the University of Missouri Law School. African Americans who did not want to go to a law school out of state had no available law school within Missouri. The court held that requiring a specific classification to attend an out-of-state law school and not providing an equivalent facility in-state resulted in an equal protection violation. This, of course, did not overturn Plessy, but merely distinguished (qualified) it.

World War II slowed the NAACP’s legal challenges. However, in 1950, a Texas case dealt with establishing an in-state law school. This was an attempt to address Gaines’s having precluded forcing African Americans to attend an out-of-state law school. The issue was how to provide an equal facility within a state. In Sweatt v. Painter (1950),⁶ the Court ruled that the law school that Texas built for African Americans would not be equivalent. The Court further ruled that the University of Texas Law School had to admit African Americans because a new law school could never be equivalent to a long-established state law school. Further, in a case released on the same day, McLaurin v. Oklahoma State Regents for Higher Education (1950),⁷ the Court held that the College of Education at the University of Oklahoma could not segregate within the college. McLaurin, an African American doctoral student, had been required to sit and study in an area designated for African Americans while in a classroom and other areas. These cases were combating segregation in higher education, but they did little, if anything, to address the issues in public elementary and secondary schools. Only a full-scale assault on the separate but equal doctrine could address these injustices.

Brown v. Board of Education of Topeka (Brown I) (1954)⁸ was the case that opened the door to confronting the racial discrimination that permeated American society. While it dealt with elementary and secondary education, it had even farther-reaching societal effects. First, Brown I opened the door to a tsunami of litigation in all areas of education. Before Brown I, an education law professor could say that she or he knew every decided federal case involving education, and could possibly be correct. To say that after Brown I is absurd. Second, the Brown I rationale has been used in various other arenas to deal with inequities. Probably the most litigious of these is special education, although litigation on behalf of non-English-speaking minority groups is significantly increasing. Brown I’s rationale and legal basis has especially supported those defending the rights of children with special needs.

Brown I was initially before the Court in December, 1952. Several justices felt that a 6–3 passage, as indicated by a straw vote, would have led to an even more contentious situation than that which resulted from the eventual 9–0 vote. A change in the chief justice and the retirement of another justice restructured the Court, and the timing was right. Brown I was actually a combination of five cases from Kansas, South Carolina, Virginia, Delaware, and the District of Columbia, which attempted to present the full range of possible arguments so the rationale for the Court’s decision would be clear even to those on the losing side—and so that alternative legislative approaches would be unsuccessful. In Brown I, the Court overturned the separate but equal doctrine, rendering it unconstitutional. Brown v. Board of Education of Topeka (Brown II) (1955) dealt with the appropriate remedy to make the plaintiffs whole, which required providing a unitary school district.⁹ Federal district court desegregation cases after Brown I rendered the verdict and devised the remedy in the same case. In Brown II, the Court ruled that desegregation must occur “with all deliberate speed.” Unfortunately, this standard was unenforceable because it was ambiguous. Little progress toward developing adequate remedies resulted in any states. District court judges fashioned remedies and maintained jurisdiction as plaintiffs tried to obtain a unitary status in the segregated school districts. Defendants simply refused to implement adequate remedies with deliberate speed. Finally after 15 years, in 1969, the Court completely discarded its “all deliberate speed” criterion for evaluating school desegregation and instead decided that “the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.”¹⁰ Even with this change, most desegregation efforts met with intransigence or resistance. Not surprisingly, there were over 100 districts still under federal district oversight at the beginning of the new millennium. This meant that federal district court judges were still effectively in charge of school district operation as it related to the implementation of a constitutional remedy to the violations found at trial. Of course, this number has drastically decreased as federal district courts find that school districts have eliminated the vestiges of prior segregation to the greatest extent practical.

Now that the decades have lessened the impact, many do not even realize the unrest and danger that our nation faced as it tried to deal with the implementation of the concept of equality. Discrimination permeated our society, and its poison was hard to eliminate. In 1958, President Eisenhower had to send in the National Guard and federal troops to ensure that African American children could enter a Little Rock, Arkansas high school. Dissenters used old Civil War arguments of nullification and interposition, among other tactics, in defense of their refusal to obey federal court orders. More blatantly, in the early 1960s in Prince Edward County, in the shadow of our national capital, the public schools were closed and private schools operated with state and county support. Sadly, while many of the legal issues have been adjudicated, the social issues underpinning school desegregation remain unresolved social ills.

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Case Study

Correcting an Inequity or Taxation Without Representation

After an extensive trial in your court, both the state and the largest urban school district in the state have been found guilty of committing numerous Fourteenth Amendment violations resulting in segregation in the urban school district. During the remedy phase, a desegregation plan was accepted and is being implemented. Over the past few years, you, as a federal court judge, have been monitoring the state and school district’s efforts to create a unitary school district. To implement the plan, large sums of money are needed to improve the school buildings and facilities as well as pay for general school expenses. The state has regularly paid its share of the desegregation costs, but the school district has failed to pass seven consecutive levies that were intended to pay for the school district’s share of the desegregation costs. The plaintiffs have filed a brief arguing that you, as a federal district court judge overseeing a school desegregation case, have the remedial power to order a tax increase to provide the funds necessary to implement a plan that will ensure that the plaintiff children are provided with sufficient resour...