31 Pages Posted: 9 Nov 2011 Last revised: 13 Dec 2011
Date Written: 2007
In recent years, countless private and homeschool students have been turned away from public school classes, extracurricular activities, and sports. Many of their parents have sued under the First and Fourteenth Amendments of the U.S. Constitution alleging free exercise, due process, and equal protection violations. However, these federal claims are seldom, if ever, successful. More often than not, the courts apply a rational basis review to judge the exclusion of these students, and this low standard of review almost predetermines an unfavorable outcome.
However, state law can support an alternative theory for contesting the exclusion of private and homeschool students from public school programs. Each and every state’s constitution guarantees certain educational rights, and those guarantees can provide a unique, textual basis to argue for rights apart from and beyond the federal constitution. State statutes can also provide a basis for these rights.
Today, there are millions of children who stand to benefit from equal access to public education. Arguably, the law and equity are on their side. The time has come to recognize their state constitutional and statutory rights to participate in public school programs on a part-time basis, and give every child the chance to have the best of both worlds — private and public.
Keywords: equal access to public education, equal access, public education, education, educational rights provisions, educational right, right, education is a fundamental right, nonpublic, nonpublic student, nonpublic school, public, public school, public school program, private, private school
Suggested Citation: Suggested Citation
Plecnik, John Thomas, Equal Access to Public Education: An Examination of the State Constitutional & Statutory Rights of Nonpublic Students to Participate in Public School Programs on a Part-Time Basis in North Carolina & Across the Nation (2007). Texas Journal on Civil Liberties and Civil Rights, Vol. 13, p. 1, 2007; Cleveland-Marshall Legal Studies Paper No. 11-235. Available at SSRN: https://ssrn.com/abstract=1956695