The law and its influence on public school districts: Religion, free speech, and due process

Our nation’s success as a democracy, our self-interest in prosperity and the economy, and the safety and security of a peace-loving people all rest on our system of public education.

Cost-free schools in the U.S. open their doors to all children, providing a learning and social environment guided by, on one hand, community consensus locally and, on the other, nationally shared values of how our children should be taught and raised as Americans.  With the public watching and participating, each child has an opportunity for success no matter the circumstances of her or his family or the special needs.

To ensure that America’s public schools operate in this manner, students have legal rights based on constitutional principles and carefully balanced interests that are protected by our legal system. 

For public school districts, the law is a constant companion. In this series, The Center for Public Education takes a look at how the law works to serve its students and ensure that public education as whole continues to meet the unique and necessary role it plays in developing an educated citizenry. These briefs will guide readers through the thicket of laws weighing on our public schools. Each brief uses clear, simple language to provide information and perspective to the lay person about the relationship between the law and public education and how this system works together to reinforce the guarantees provided by the U.S. Constitution.

Key questions addressed in this series

While talk of accountability, testing, standards, and student achievement rightfully dominate the conversation about quality schooling, behind the scenes an invisible elephant weighs in: What will the law allow? In truth, public school officials must be ever mindful of legal considerations. From school funding to treatment of religion, from equity concerns to discipline, from curriculum possibilities to actions that might be prohibited, the law has a say—and a sway—over how school board members and educators approach their jobs.

Consider the law’s reach and influence:

  • Can a school district say “no” to a student who wants to pray during class time or to start a religious club?

  • Can students and educators bring to school and voice personal views on war, justice, or other hot-button issues?

  • Does the law grant unlimited discretion for school officials to perform locker searches or drug testing?  How far does zero tolerance go?

  • Are race, gender, or disability the “X-factors” in education? What must schools do to make sure everyone is treated equally?

  • School systems receive operating money by laws passed in state legislatures and Congress. What happens when funding is inadequate to get the job done?

  • What are the obligations of schools to equalize educational offerings and resources?  For example, what does the law say about how Advanced Placement courses are distributed, talented teachers deployed, buildings repaired, and new construction scheduled?

The stakes are huge. More than 48 million students, a whopping 90 percent of all school-aged children, learn in public school buildings.

Public education: The bedrock of American success

The clear mission of public schools is to provide an excellent education to every child enrolled—rich or poor, English speaking or not, of every race and ethnic background. Couple that with a duty to create schools that abide by the Constitution and that is what makes education one of the defining promises of American democracy.

What is dazzling about public education, then, is that it can be successful in an environment where laws buffet it with long lists of dos and don’ts, politicians make demands and sometimes lodge unfair characterizations, business leaders cast doubt on credibility and competency, and nervous parents worry that a kindergartener’s shapes on a page translate into whether their son or daughter will get into Harvard 12 years hence.

Each day, districts are beholden to a staggering list of laws, regulations, rules, and policies that motivate and control behavior. Federal, state, and local governments generate reams of expectations. Court decisions are unending. Requirements are highly complicated and ultimately determine what board members, employees, and students must do or are forbidden to do.

The cost of operating in such a restricted and continuously changing environment can be measured in time, money, and lost creativity. Indeed, educators often joke in private about the need to have an attorney on speed dial.

But while the rule of law can be a burden, it is also a unique gift. Public schools are taxpayer supported and government-run. They are therefore duty bound to uphold the U.S. Constitution and to comply with the dizzying array of laws and rules that come with that status.

Private and religious schools have far fewer legal obligations because they do not belong to the nation’s people. The public-private distinction is frequently overlooked but is a potent and defining legal difference worth pausing to examine. In some ways, the climate and character of public schools is defined by the legal footprint. Public schools

  • Must be fair to religion while avoiding devotion.

  • Must treat all children equally.

  • Must depend annually on state and federal laws to finance ambitious programs.

  • Must respect the freedoms that students and staff hold as American citizens.

By contrast, religious and private schools are not legally bound to be equal in admitting or educating students. Nor are there legal remedies for the wide financial disparity that separates high-spending and low-spending private schools. Private schools can sort applicants until they get the desired student body and they can write rules and policies that would be blatant violations of individual rights if done in tax-supported K-12 institutions.

Michael Resnick, associate executive director of the National School Boards Association’s advocacy effort, spoke on this topic in a 2004 Policy Research Brief. He said, “There are no other schools where the public interest in education is as deliberately and proactively represented, or as open to public scrutiny, as the public schools.”

Reflecting societies hopes, dreams, and fears

The idea of proactive representation and public scrutiny are reinforced when studying the rights, privileges, and protections endowed by the U.S. Constitution. In the last 30 years, schools have evolved into a battleground for legal and policy skirmishes on the most contentious moral and cultural issues in American life. School districts serve as a kind of mirror, reflecting society’s hopes, dreams, and fears. Why? The reason is obvious: Inside, impressionable youngsters are developing their values and moral compasses for the future.

In a typical school district, the Constitution presents a variety of challenges. Among the requirements:

The First Amendment: This amendment addresses the right of individuals to act on and express their religious belief and prohibits government from favoring religion. It also guarantees free speech, meaning clothing, jewelry, peaceful protest at appropriate times, and political expression are acceptable within schools and within limits.

The Fourth Amendment: This amendment addresses the right of individuals to be free from unreasonable searches and seizures by the government. Therefore, locker searches, drug testing, strip searches, drug-sniffing dog searches, and other investigatory measures could fall under its authority.

The Fifth Amendment: This amendment addresses “due process” and outlines the obligation of school districts to tell students and staff facing discipline two things: (1) what they are accused of and (2) that they have an opportunity to respond.

The Fourteenth Amendment: The “Equal Protection Clause” in this Amendment forbids school districts from treating people differently. In essence, this is a fairness compact that says schools must provide equal opportunities and equal treatment.

Schools are not only wholesome places in which children achieve academically and blossom into pre-teens, adolescents, and young adults. As government entities, school districts can sue others when they have been wronged, and can be sued as well.

Experts agree that lawsuits against school districts have increased in the last three decades. Among the reasons:

  • A more litigious society in which the law is seen as a first-resort means to get satisfaction.

  • A rise in organized special interest groups that seek to expand their agenda by notching wins in court.

  • A proliferation of laws and regulatory guidelines with unclear meanings that require court interpretation.

There are basically two sides of the legal equation when it comes to public school districts: compliance and prevention.

On the compliance side is the solemn duty to obey the law. In fact, most school board members take an oath in which they swear—as public officials—to uphold state and federal laws.

Boards of Education and administrators both are expected to stay aware and informed of what the law provides and then take steps to comply. This frequently involves a battery of attorneys with different areas of expertise and can include in-house counsel on the payroll, an outside law firm only, or a combination of the two.

Compliance is a fertile source of litigation. For example, if someone believes that a school district is violating a student’s right to free expression by requiring school uniforms, one way of challenging that is to file a lawsuit in federal court. Plaintiffs with a compliance lawsuit are generally claiming that the district has failed to meet its legal obligations in some way. The district, for its part, has to prove that the actions taken are justified and meet either the precise letter of the law or the intent.

Besides worrying about the Constitution, school districts also must fret about federal statutes, local initiatives, and statewide legislation. Compliance is a never-ending and meticulous task.

Prevention is the proactive steps school districts take to avoid a lawsuit. For example, when schools oust dodge ball from physical education classes or require parents to sign in triplicate, potential litigation could be the impetus behind such precautions.

By following a regimen of good policies and practices, attorneys say, a school district can reduce—but probably never eliminate—the number of lawsuits filed against it. And, being prepared with a strong answer can get the case dismissed at an early stage.

Education’s future

Of course, the one law that has had the greatest impact on public education since the turn of the century is the No Child Left Behind Act (NCLB). Passed in 2002, it is controversial because it:

  • Demands universal high achievement with few exceptions.

  • Measures accomplishment via standardized tests.

  • Represents the greatest federal involvement in local decision making in history.

The structure and operation of public schools are such that education has historically been a state function. In other words, the federal government has supported education through dollars, research, and encouraging words (known as the bully pulpit). NCLB went further, requiring tests at multiple grade levels, mandating parent involvement, addressing military access to school campuses, and imposing consequences (like allowing students to transfer out of schools labeled “in need of improvement”) for schools that fail to make Adequate Yearly Progress (AYP).

Each year, the United States grows more diverse religiously, ethnically, racially, socially, and culturally. In 1787 the Constitution’s framers could not have anticipated that such a conglomeration would occur in the 21st century. Still, its provisions laid the groundwork for problems and issues to be worked out peacefully under the rule of law and the benevolent hand of the courts.

Challenges to school policy and practice are sure to continue. As changes happen in the makeup of Supreme Court justices and as changes in society occur, schools and legal practice will change with it. Inevitably, it will be a learning process. Through this series of background briefs, we seek to shed light on things that are certain and to illuminate the uncertainties where they exist.

Religion and Public Schools
The Free Speech Clause
Fourth Amendment Search & Seizure and Fifth Amendment Due Process

Selected Resources

 Alexander, K. &  Alexander, D. (2001). American Public School Law [5th Ed.]. West Thomson Learning: Stamford, Conn.

Education Commission of the States

Resnick, M. A. (Spring/Summer 2004). Public Education-An American Imperative: Why public schools are vital to the well-being of our  nation. Policy Research Brief. National School Boards Association: Alexandria, Va.

Yudof, M. G.,  Kirp, D., Levin, B,  & Moran, R. (2001). Educational Policy and the Law [4th Ed.]. Wadsworth: Stamford, Conn.

This document was prepared by Edwin C. Darden for the Center for Public Education. Darden is an attorney, writer, and consultant specializing in school law and public policy.

Posted: April 5, 2006

Copyright 2006 Center for Public Education