Education and the Constitution: Three Threats to Public Schools and the Theories That Inspire Them

74 Pages Posted: 28 Jun 2018

See all articles by Kenneth Townsend

Kenneth Townsend

Wake Forest University - School of Law

Date Written: August 30, 2015

Abstract

Educating America’s children is no easy task. In addition to well-known socio-political challenges involving funding, teacher morale, and parental involvement, among other things, public education faces a range of threats that concern core issues of school identity, access, and order. These serious, but occasionally overlooked, threats inhere in any system of government that attempts to balance private interests and the public good. Understanding these threats requires examining the historical, theoretical, and legal foundations of attitudes towards public education, in particular, and of the public sphere, in general.

After providing a brief history of public education in the United States, this article investigates the ways in which three particular theories of the liberal state — 1) neutralist; 2) aspirationalist; and 3) pluralist — conceive the purpose and purview of public education. I then demonstrate how these theoretical orientations are reflected in public education case law, revealing three distinct threats facing public schools:

1) Identity-based threats that arise when the distinctiveness of public schools, and the public sphere itself, is undermined;

2) Communitarian threats that develop when the influence of parents or other intimate associations stand between public schools and the education of students; and

3) Individualist threats that emerge when efforts to provide students the same expressive liberties as adults undermines the order of public school settings.

Even though judges rarely acknowledge the theoretical underpinnings of their decisions, those decisions emerge from particular theoretical contexts, and understanding those contexts will help policymakers, lawyers, and judges better appreciate the significant challenges facing public schools.

Keywords: constitutional law, education, public sphere, legal theory

Suggested Citation

Townsend, Kenneth, Education and the Constitution: Three Threats to Public Schools and the Theories That Inspire Them (August 30, 2015). Mississippi Law Journal, Vol. 85, 327, 2016, Available at SSRN: https://ssrn.com/abstract=3195433

Kenneth Townsend (Contact Author)

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States

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