101 Pages Posted: 26 Oct 2000
Over the course of the last century, and especially in the last forty years, the Supreme Court has resolved a broad array of constitutional claims that have arisen in the context of public elementary and secondary schools. In so doing, the Court has created a body of rules that govern the constitutional rights that students (or their parents) can legitimately assert against state and local education officials. The purpose of this Article is to study these education cases as a whole - to examine what one might call the Court's public schools jurisprudence.
What one finds lurking among these cases is an intriguing puzzle: some constitutional rights are explicitly limited in the school context, while others are either no different or are slightly strengthened within the school setting. Student free speech, Fourth Amendment, and due process rights are more limited in the school setting than they are outside of that setting. With regard to this group of rights, the Court has characterized the government as acting in a special capacity - that of educator - and has accordingly given education officials greater leeway to bend constitutional rights in order to achieve certain educational goals. By contrast, student equal protection rights to be free of racial and gender discrimination, or to benefit from affirmative action programs, at the moment appear to be no different within the school setting than they are outside of that setting. The same is true with regard to student free exercise rights. Students' Establishment Clause rights, finally, are, if anything, stronger than those possessed by citizens outside of the school context; put differently, the limitations on government support of religion are more stringent within public schools than outside of them.
The central question addressed by the paper is whether there is a unifying principle or theory that makes sense of the Court's decisions. After suggesting that a number of factors seem to play an influential role in the Court's decisions, including the ages of the students and the nature of the constitutional rights themselves, I will argue that the key factor to the cases is a distinction between two functions of education: academic and social. It appears that the more a particular policy has to do with the academic function of schools, the more likely it is that the Court will uphold the policy, even if it means truncating a constitutional right. The further a policy moves away from the core academic function of schools, the more likely the Court will apply traditional constitutional rules to judge the policy and strike it down. After demonstrating the traction of this positive theory, I offer a general and limited defense of the Court's approach, as well as attempt to answer possible critiques of the approach.
Suggested Citation: Suggested Citation
Ryan, James E., The Supreme Court and Public Schools. As published in Virginia Law Review, Vol. 86, No. 7, pp. 101-200, October 2000 (UVA School of Law, Public Law RPS version). Available at SSRN: https://ssrn.com/abstract=243519 or http://dx.doi.org/10.2139/ssrn.243519