A review of judicial precedent concerning an individual's right to a public education

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Title:
A review of judicial precedent concerning an individual's right to a public education under the United States Constitution
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viii, 282 leaves : ; 28 cm.
Language:
English
Creator:
McCarthy, Martha May, 1945-
Publication Date:

Subjects

Subjects / Keywords:
Right to education -- United States   ( lcsh )
Educational law and legislation -- United States   ( lcsh )
Genre:
bibliography   ( marcgt )
theses   ( marcgt )
non-fiction   ( marcgt )

Notes

Thesis:
Thesis--University of Florida.
Bibliography:
Includes bibliographical references (leaves 277-280).
Statement of Responsibility:
by Martha May McCarthy.
General Note:
Typescript.
General Note:
Vita.

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University of Florida
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 000163323
notis - AAS9675
oclc - 02745471
System ID:
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Full Text












A REVIEW OF
AN INDIVIDUAL


JUDICIAL PRECEDENT CONCERNING
'S RIGHT TO A PUBLIC EDUCATION


UNDER THE UNITED STATES CONSTITUTION










By

MARTHA MAY McCARTHY


A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL
OF THE UNIVERSITY OF FLORIDA
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE
DEGREE OF DOCTOR OF PHILOSOPHY







IIRITuIrncTrv nr I ARnTnA















ACKNOWLEDGMENT


sincere


Univer


gratitude


Florida


goes


(Educational


to Professor


Kern


Administration),


Alexander,


r whose


guid-


ance


tudy was


undertaken.


am extremely


appreciative


patient


upervi


research


valuabi


ugge


tion


riti


readings


manuscript.


am also


bted


Prof


essor


Forbi


Jordan


Univer


Florida


(Edu


national


Admini


traction ,


advice


encouragement


throughout


this


endeavor


efforts


received


an Education


Profess


sue my


lopment


doctoral


tudie


(EPDA)


llowship whi


Gratitud


enabled


goes


me to


Prof


pur-


essor


William Alexander


Prof


essor


Arthur


Lewi


Univer


Florida


(Curriculum and


instruction)


provided


moral


support


critiqued


ssertation


text.


Others


contributed


assi


tance


and/or


encouragement


include


Prof


essor


Lawrence


Knowl


Univers


Loui


vill


hool


Pro-


fessor


William Hu


Univer


of Loui


vill


(Department


Education);


Martin


McCullough


Frank


Rapl


Louisvill


pend


school


stri


attorn


Frank


Hilliard


Lawrence


Tweel,


Loui


ville,


Kentu









the completion of this work.


Also, Ms.


Elaine Buckley and Ms.


Deborah Pitts were most helpful


in expediting university logisti-


cal matters.


Special


thanks go to Ms


. Tena Lutz for her diligent typing of


the manuscript and her genial


attitude throughout the task.


addition, Ms.


Tessabell


Booker


Linda Col


and Ms.


Deborah


Logan


assisted in many ways


in the preparation of this dissertation.


Finally,


I would like to acknowledge the members of the fellow-


hip group,


"Educational


Resource Management


specialists,


" with whom


pent a year at the University of Florida in


1973-74.


I owe each


of the participants appreciation for their comradeship and unfailing

support.
















TABLE OF CONTENTS


Page


ACKNOWLEDGMENTS


DISSERTATION ABSTRACT


. vi


INTRODUCTION AND OVERVIEW OF THE STUDY


S . I I. 1


Purpose of th
Delimitations
Definition of
Justification
Procedure .
Overview of R


e Study ..
of the Study
Terms .
of the Study

remaining Chap


* . . .
4 a . .
* S S . .
a . . .
* . . . .
terms . . . .


GOVERNMENTAL INTERESTS IN EDUCATION


Education and a Democratic Nation .
State Purposes in Education . .
Parens Patriae and Compulsory Attendance


The State's


. . S S .
. S . .


Obligation to the Child


SUBSTANTIVE RIGHTS TO AN EDUCATION


Four
Liti
Liti
Evol
Bill
Impl
Adeq


EQUAL


teenth Amendment Due Process Guarantees .
gation Involving the Right to Attend Public School
nation Involving the Right to Appropriate Placement
ving Due Process Standard of Review . .
of Rights Guarantees and Education . .
ications of a Substantive Right to a Minimally
uate Education . . . . .


TREATMENT OF EQUALS


Standards for Reviewing Equal Protection of the Laws
Equal Protection and Racial Discrimination in Education
Equal Protection and Wealth Discrimination in Education
Education and Other Interests Compared and Contrasted .
Classifvinq Facts in Education . . .


. .
. .








Page


FINDINGS,


CONCLUSIONS,


OBSERVATION


"Janu


Findings a
Additional


SELECTED


Face


recedent"


. . 2


Conclusion


ervation


REFERENCES


VITA














Abstract of Dissertation Presented to the Graduate Council


of the University of Florida


in Partial


Fulfillment of the Requirements


for the Degree of Doctor of Philosophy


A REVIEW OF JUDICIAL PRECEDENT CONCERNING
AN INDIVIDUAL'S RIGHT TO A PUBLIC EDUCATION
UNDER THE UNITED STATES CONSTITUTION

by

Martha May McCarthy


June,


Chairman:


Major Departme


1975


Kern Alexander
nt: Educational Administration


A goal


of egalitarians,


seeking reform in public school


has been


to have education afforded constitutional


protection by the United States


Supreme Court.

tecting personal


The federal


judiciary has become more aggressive in pro-


rights and balancing them against governmental


interests;


hence,


lawsuit is now viewed as the most powerful means to initiate


changes in public schooling.


In the


1954 landmark desegregation decision,


the Supreme Court pro-


claimed that when a state provides public education it must be made


available to all citizens on an equal


basi


However, at the height of


prospects for massive judicially required school


reform,


supreme Court


declared in


1973 that education is


not afforded explicit or even implied









fourteenth amendment to ascertain the perimeters of the individual's


constitutional


relationship to education.


In analyzing the citizen's rights to education and the correspond-


ing duties placed on the state to provide such servi


surveys the judicial


, this study


posture toward the denial of education to students


for disciplinary reasons or due to


characteristic


such as marriage,


pregnancy


or handicaps.


It also focuses on


litigation involving dis-


criminatory school


practi


based on grounds such as race, wealth,


achievement, and


sex.


Since


'the right to education'


cannot be divorced


from the entire field of constitutional


law,


relevant non


-school


cases


are also discussed in tracing the evolution of standards used by the


Supreme Court to evaluate the


legality of state


legislation.


After reviewing constitutional


adjudication,


it i


a conclusion


that the Supreme Court is more inclined to protect th


individual


right to an education in


cases


of its absolute denial


than in situations


of its relative deprivation.


Although the Court ha


Constitution as affording protection to


'education'


not interpreted the


as an inherent right,


Supreme Court decision


leave uncertainty


as to whether the right to


an education i


guaranteed


as an implied personal


liberty under the due


process


lause.


Furthermore, judicial


enforcement of equal


protection


mandates in education has been irregular due to controversy over deline-


ating the nature of


tate intent


' required to establish unlawful


govern-


mental


discrimination.


........ -- -.... l -- .CJ- .2 i-L L LJ-L .....1 "


n .. ... LI A t"









reviving


process


analysis


search


'reasoned'


proach


evaluating


state


practice


that


will


result


appropriate


judi


protecting


individual


rights


without


rend


er ng


tate


lature


impotent.


doubt


philosophy


breach


among member


supreme


Court


accounted


part


seemingly


incon


tent


deci


appearance


that


right


an education


have


been


proclaimed


Court


then


later


repo


sses


Neverthel


cent


vel opment


regarding


constitutional


prot


section


'the


right


education


can b


viewed


optimi


tically


January,


1975,


supreme


Court


ruled


that


state-c


created


protected


property


right


education


cannot


denied


without


process


law.


Although


recent


full


impact


to be


real i


impli


action


reaching


indeed


encourage


ents


yond


claiming


thei


right


school


attendance


asserting


their


right


fair


procedures


ignment


quate


appropriate


instruc


tional


programs.


requirement


procedural


guard


when


tuden


' interests


impaired


state


lead


substantial


reform


in both


quality


equality


public


educational


opportunities















CHAPTER


INTRODUCTION AND OVERVIEW OF THE STUDY


The principle of universal


educational


opportunity is rooted in


the democratic process.


Compulsory


school


attendance coupled with in-


creasing financial


support for public school


Americans view education in

fare of both the individual


eminal


attests to the fact that


position which affects the wel-


and the state as a whole.


During the past


two decades the federal


courts have assumed a more prominent role in


ensuring that the individual's constitutional


rights are protected


and balanced against the interests of the state.


Hence,


litigation is


now viewed as a powerful


tool


to use in effecting educational


reform and


in delineating a doctrine to protect the rights of children.


At the present time, however,


the constitutional


statu


of a


person


right to a public education and of the corresponding obliga-


tions placed on the state in providing this opportunity remain


uncer-


tain.


Therefore, judicial


mandates will


be a crucial


interpretation of federal


force in


constitutional


having the future of public schools


in this country.


Purpose of the Study


The purpose of this study is to identify and analyze judicial










Delimitations of the Study


This study is not a review of legal


precedent concerning the


protection of an individual


with the public school


first amendment rights


Likewi


as they intersect


it is not the purpose of this


project to argue the unconstitutionality of racial,


sexual


or finan-


cial


discrimination in public education.


These topi


are felt to be


of utmost importance, but they are not the central


thrust of th


present


tudy.


Thes


issues are discussed only in relation to the


light they


shed on the question of whether an individual


has a constitutionally


protected right to a public education itself.


In addition,


this study is not concerned with public educational


policy under state constitutional


mandates and state statutes.


State


court deci


ions are reported only if they relate directly to the status


of education under the Federal


Constitution.


Definition of Terms


(1) Constitutional
by the Constitution and "
ference therewith."1


right:


A right guaranteed to the


o guaranteed a


to prevent


legi


citizen


lative inter-


Fundamental


interest:


which are the right to personal


to courts of


of the


justice;


laws; and to


free government.


Black


to due pro


A person


natural


liberty and property


cess


of law and to equal


uch other immunities a


A fundamental


Black


interest des


Law Dictionary (4th rev


are indi


rights, among


to free


access


protection


spensa


to a


ignates a right "of


. 1968).


Ballentine. Law Dictionary and Pronunciations


(1948).


- .






3



a character that it cannot be denied without violating those fundamental


principles of liberty and justice which
and political institutions."

(3) Procedural due process: Law


tration through courts of


justice


acco


lie at the base of all our civil


in the regular course of adminis-
rding to those rules and forms


which have been established for the protection of private rights.


essential


elements of 'due process of law'


opportunity to be heard,


and an impartial


are noti e of charges,
tribunal.


Substantive due process:


A protection against arbitrary


legislation, demanding that before the state can infringe upon a person's


life,


liberty or property,


it must have a valid obj


selected must have a real and substantial
to be attained.?


ective and the means


relation to the object sought


Justification of the Study


Tocqueville noted that all


America eventually become judicial


important social


issues.6


issues


observation is verified


in the field of education, as


litigation in this arena has increased


dramatically in recent years.


Prior to


1850, education was mainly


ignored by both federal


and state courts.7


Thus, practices at the


local


level were


left


largely unquestioned, whether or not they conflicted


with the Federal


Constitution.


From


1850 to


1950 education became


firmly


established as a state responsibility,8 and most


during this period took place in state courts.


Prior to


litigation

1954, slightly


3Powell v


Alabama


45, 67


(1932).


Black


, supra note


Supp.


5Sims v.
678, 682


of Educ.


(D.C. N.M.


of Indep. School


1971)


Dist.


, 329 F.


Tocquevill


Democracy in America 280 (rev.


1945).


nonorallv .1


Hnnan


ctinra nnt+


SChantpr


6A.
7

f


,









over


cases


involving education had been initiated in federal


courts.9


However, since


1954, well


over


1000


cases


concerning educa-


tion have been


litigated at the federal


level.


This


increasing reliance


on the federal judiciary is indicative of the growing public dissatis-


faction with th


efforts of the


legislative bodies to effect reform


in public education.


United States Court of Appeals Judge J


kelly Wright presented


the following rationale for the entry of the judiciary into a domain


h has traditionally been the sole prerogative of the state


legis-


latures:


It i


case


regrettable


of cou


court must act in an


rse,


area


that in deciding this


so alien to its expertise.


It would be far better indeed for these great


political


social


problems to be resolved in the political


other branches of government.


political


arena by


But these are social and


problems which seem at times to defy such resolution.


In such situation


a hand and accept its
where Constitutional


under our


tem,


responsibility t
rights hang in th


the judiciary must bear
o assist iD the solution
e balance. O


"egalitarian revolution"1 1


oupled with efforts to balance


state and individual


educational


interests ha


arena by constitutional


generated great controversy in the

adjudication concerning desegre-


gation


separation of church and state


13 school


financing,


14 and


"J. Hogan
1OHobson v


Smuck v.


supra note


.


Hobson


11See P.


Constitutional


Hansen,
408 F.


Kurl and,


at 7


2d 17


"Equal


Jurisprudence


(D.C


.401
. Cir


Educational


Undefined


, 519
1969


(1967)


Opportunity


" 35 U.


aff'd sub nom.

The Limits of


. Rev


. 583


(1968).


.r r


- -


I, .. .


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%A I


3r.-.


Aloo /inc/i\


T "r )I \


i/ FI y r^ rrl rj f 1 ^


Sir^ r'.,T











special


education.


However,


height


prospects


for massive


educational


reform


initiated


through


judiciary


hopes


were


dampened


supreme


Court


ruling


Antonio


Independent


School


District


Rodriguez.


Justi


peaking


Court


tated


Nothing
our historic


eement


that
and


"the


Court


dedication


with
grave


hold


today


public


onclu


ignifi


our society"


service


formed


cancer


cannot


in any way


education.


three


education


doubted.


tate


does


detract


panel


judg
both


determi n


s from
n complete
below
individual


importance


whether


must


under
is not


regarded


amo


Equal
na th


Cons


implicitly


as fundamental


Protection


right


itution.
so prote


aff


Clau
orde


ted.


for
se.


purposes


explicit


we find


. Education,


examination


protection


f course
under th
saying it


five


four margin


uprem


Court


held


that


educa-


tion


fundamental


interest


protected


Constitution


United


states.


However


Court


rule


poss1-


ability


that


failure


state


or school


to provide


an adequate


educa-


tion


children


could


violate


guarantees


fourteenth


amendment


lard


aptly


tated


"Opponent


public


school


equal i


action


plit


deci


Rodriguez


they


deliver


kout


ence


light


of Rodriguez


fundamentality


education


till


question.


There


little


doubt


that


supreme


Court


occupy


role


unfolding


drama


educational


reform


position


as "final


AF ,


M


S &


n I I *


I n


r


F 1


I


I


' *





_ __


I* I r A










arbiter


nature


limits


tate


power


under


Consti tu-


tion


supreme


Court


affords


cons


titutional


protection


individual


policies


right


practices


public


come


schooling,


candidates


then


being


state


brought


educational


before


courts


objected


judi


review.


study


therefore


tified


identify


legal


precedent


conc


earning


an individual


cons


titutional


relation


public


edu-


cation


ly analy


law,


individual


will


rights


asce


rtain


under


establi


what


courts


prin-


should


when


stent


aced


with


with


judicial


educational


precedent.


adjudication,


Thus,


they


an apprai


con-


can be made


power


court


order


change


the organization,


admini


traction,


programs


public


school


country.


Procedure


ally,


proc


dure


includes


searching


Supreme


Court


cases


federal


circuit


court


deci


sons


recent


federal


district


court


ruling


in an attempt


to identify


sources


precedent


concerning


individual


rights


publ i


education


Legal


reasoning


or rea-


soning


analogy


used


throughout


study


rule of


announce


as pr


involving


eced


similar


one case


tual


appli


situation.


review


able


second


include


supreme


case


Court


Coon


Clun


ugarma


Private


Wealth and


Puli


19.


Public


w_


I


l












deci


ions


that


have


established


principles


apply


education,


regard


whether


facts


cases


involve


school


matter.


Hence,


action


can be


compared


other


activity


which


being


challenged


courts


under


similar


constitutional


provision


ally


resources


used


ocate


cases


include


legal


card


atalog


period


Ameri


tem,


pard


Citation,


Ameri


Report


American


Juri


prud


ence


Corpu


ecundum.


After


locating


relevant


court


cases


original


source


used


fing


reporting


judicial


deci


ited


tudy.


Overview


Remaining


Chapter


succeeding


chapter


ssertation


exami ne


following


topi


Chapter


explores


governmental


interests


providing


public


education,


including


scuss


benefits


accrue


state


as a


result


public


school


Chapter


xamines


precedent


recent


development


con-


cerning


an individual


tantiv


right


an e


ucation


provided


tate.


Chapter


desc


ribes


judicial


requirement


conc


earning


'equal


treatment


equal


i and


resulting


obligation


placed


on the


tate


provide


qual


educational


opportunities


zens.


-l a


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4.


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Juri


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u*


*















CHAPTER II


GOVERNMENTAL INTERESTS


IN EDUCATION


Education is not a cloistered institution and can only be under-

stood in the context of its environment which it mirrors and in turn


influences.


In a nation of representative government


laws reflect


the beliefs


values


, and aspirations of the people.1


Thus,


following statement from th


Declaration of Independence sets a back-


drop against which to view the evolution of public education in the

United States:


We hold these
men are created equa


truths to be self-evident, that a
I, that they are endowed by their


Creator with certain unalienable Rights,


lI


that among


these are Life, Liberty and the pursuit of Happiness.


That to secure these rights


Governments are instituted


among Men, deriving their just powers from the consent
e dA HHA A


UoI LI


YuverIneu.


Education and a Democratic Nation


The relationship between an educated citizenry and the survival


of a democratic nation ha


this country.


been reiterated throughout the history of


George Washington made this recommendation in his


"Farewell Address":


Promote then


institution


In proportion a


as an obj


for the general


ect of primary importance,
diffusion of knowledge.


the structure of a government gives










force
public


o public
opinion


opinion,
should be


it is essential
enlightened.3


that


Likewi


Thoma


Jeff


erson


an e


early


champion


universal


educa-


tion.


sentiments


were


revealed


in t


statement


nation


expects


ignorant


free


state


civilization,


what


never was


never will


eral


Governm


nt and


action


early


as 1


eral


government


began


aiding


education


territories


endowing


school


with


publ i


land.


Northwest


Ordinance


tated


hool


means


education


hall


forever


encouraged


Al though


there


national


interest


education,


might


there


usurp


was also


powers


trong


individual


central i


states.


governm


Hence


that


Federal


titution


which


was ratified


not mention


education.


tenth


amendment


to th


titution


part


original


Bill


Rights


stat


Ime powers
Constitution


are rese
people.


rved


ot delegated
nor prohibit


states


to the


respect


tively


United


tate


o the State
or to the


via th


tenth


ndment


power


to provide


and maintain


public


school


became


rent


in the


sovereign


power


tate.


Often


judiciary


been


called


upon


larify


government


public


educational


arena.


tice


Harlan










in 1899 made the following comments concerning the state


authority


over public education:

Education is a matter belonging to the


respective states, and any interference


part of Federal


on the


authority with the management of


such schools cannot be justified except in the


case


of a clear and unmistakable


disregard of


rights secured by the supreme


More recently


law of the


, in Epperson v. Arkansas,


land.6

the United States Supreme


Court stressed that "Cj]udicial


interposition in the operation of the


public


school


restraint.''7


system of the Nation raises problems requiring care and


The Court emphasized that education is


controlled by the


states and further declared: "Courts

the resolution of conflicts which aris


do not and cannot intervene in


in the daily operation of


school


systems and which do not directly and


sharply implicate basic


constitutional


values.


Although the federal


judiciary will


ternal operations of the school


stake


not interfere with the in-


a constitutional


, during the past few decades the federal


issue is at


government has exerted


considerable


influence over public


school


through its capability to


distribute discretionary funds.


The taxing


clause


of the Constitution


confers upon Congress the power "[T]o


Imposts and Excises


lay and collect Taxes, Duties,


, to pay the Debts and provide for the common


Defense and general Welfare of the United States.


r


-r


- -I


- I


- -% a


Even though this


F lf I


flf%.mn.. n ar. I's4 nJ U .l.ar I / I1 L lVII) nl I JI ll l









clause historically has aroused much debate,


interpreted the provision


10 the Supreme Court


as giving Congress implied authority


to distribute tax moneys for educational


purposes.


Thus,


school


districts and state education agency


must adhere to federal


guide-


lines and regulations


in order to qualify for the receipt of federal


funds.

Education as a State Responsibility


Although there was no mention of education in the Federal


Con-


stitution,


was not true of state constitutions.


stitutional mandates,


as the following,


Many state con-


included explicit pro-


visions concerning public education:


The general
provide for the


assembly shall,


as soon


as practicable,


establishment and maintenance of a thorough


and uniform system of free public


state, wherein all


residents of the


schools throughout th


tate, between th


ages of six and twenty-one years may be educated
gratuitously.12


The legislature shall
intellectual, moral, scien


encourage the promotion of


Itific and agricultural


improve-


ment by establishing a uniform system of common school


and schools of a higher grade,


paratory


embracing normal


collegiate and university departments


, pre-
.13


The stability of a republican form of government


depending on the morality and intelligence
it shall be the duty of the legislature to


of the people,


establi


h and


Cases


10See K. Alexander, R. Corns, & W
and Materials 35-44 (1969).


McCann, Public School


Law:


11In Helvering v.


upheld the Social


Davi


619 (1937),


supreme Court


security Act and ruled that Congress could tax and


-- r -- i I










wherein tuition shall


open to all;


be without charge


and to adopt all


secure to the peopi
of education.14


suitabi


, and equally


means


the advantages and opportunities


Knowledge and learning


throughout a community
of a free government;


generally diffused


being essential


it shall


Assembly to encourage by all


tellectual, scientific
and to provide, by law


of Common


to the preservation


be the duty of the General


uitabl


, and agricultural
, for a general an


schools, wherein tuition shall


charge, and equally open to all.15


means, moral,


improvement;
id uniform system
be without


State constitution


made th


tate formally responsible for


public education but the early


isolation encouraged the


localism of the frontier and geographic


tate to surrender educational decision-


making to smaller and smaller political


subdivisions.


Coons et al


have asserted that in the early days education was thought to be the


"sphere of the individual


" and every governmental act relating to


education was viewed


as a possible intrusion.


State


leadership in


education was opposed by powerful

"passed the buck" to the "smalles


citizens, so the state


;t workabi


legislatures


unit for the task."16


Therefore,


the tradition of local


control


of public


education was im-


planted early in thi


nation'


tory


The initial


religious motive for providing public school


characterized by the Massachusetts deluderr Satan" laws of 1642 and


1647


, was gradually replaced in the states by political motives.17


14Constitution of


outh Dakota


Art.


VIII


Sec.


1_


B









Thus, by the mid-nineteenth century the state had begun to take a


greater interest in public


education.


The egalitarian spirit of the


frontier and Jacksonian democracy paralleled what has been referred


as the great American revival


in education.18


State coordination


of public schools gained momentum under the


leadership of men such


Horace Mann in Massachusetts, Henry Barnard in Connecticut, Calvin


Stowe in Ohio


, Calvin Wiley in North Carolina,


and John Breckinridge


in Kentucky.


The state courts


, accordingly


became more active in


affirming that the responsibility for public education resided with


the state and not with the


local


political


ubdivisions.


In 1909 the Court of Appeal


of Kentucky


early defined public


education as a state responsibility:


Education is not a


subject pertaining alone


pertaining essentially to a municipal


corporation


Whilst public education in this country is now deemed
a public duty in every state, and since before the first


federation was regarded


it has never been


of local


concern o


as a proper public enterprise,


looked upon
nly.19


as being at all


a matter


Similarly, t

stitution as

the state.20


he Supreme Court of Minnesota


placing


interpreted the state con-


responsibility for establishing public schools on


The court emphasized that the


legislature was granted


plenary powers over all matters concerning


school


except those re-


stricted by constitutional


provisions:


Recognizing the existence of a
interest in the matter of education,


limited local


court so


__










frequently has affirmed the doctrine that the maintenance
of the public schools is a matter of state and not of local


conce
at th


rn that it is un
ir AtIe 21


UU C


necess


ary further to review authority


State Purposes


in Education


The purposes of public education in thi


country traditionally


have been defined from the


to the general welfare of th


standpoint of the benefits which


state.


accrue


tate authority has been based


on an interest in ensuring that the individual


citizen would achieve


a minimum


level of education and thu


not become a burden to society


Garber has analyzed the purposes of the


by the reports of the


tate in education


debates and proceeding


as revealed


constitutional


conventions.


He has summarized th


major purposes of public


education


(a) protecting the politi


safety and well-being of the state,


(b) promoting the economic


elimination of evil


well-being of the state,


as crime and pauperism, and


) promoting the


(d) promoting


the well


-being of the individual


Protecting the


Political


Safety and Well


-being of the State


A distinguishing


of thi


characteristic of the philosophical


nation was that the government granted to the peopi


foundation


more rights


and privileges with their corresponding duties and obligations than any


nation previously had attempted to do.


The states


, therefore,


soon


realized that an educated citizenry would be essential


to governmental


well


-being,


since


the safety of the


tate hinged upon the manner in


i...k4. +ka nnnnl


I'


nfmnima 4- nren A p 1* ve. nk4-e 2n nFn #k^4T^ 4 A4-4ne


I


i










In 1902 the New Hampshire Supreme Court elaborated on the need


for universal


education


as a means of protecting th


well


-being of the


state.


The court observed that the primary reason for maintaining


public


school


was to create an intelligent citizenry "essential


stability of the


tate."24


The court


tressed that free schooling


furni


shed by the state was not so much a right granted to pupils as


a duty imposed upon them for the public good.


Although the court


recognized that most people viewed public


school


as beneficial


to the


students,


it emphasized that school


were also governmental means of


protecting the


tate from the consequences of an ignorant and in-


competent citizenship.26


In 1899 the Supreme Court of Tenn


essee


placed the importance of


establishing public


schools alongside the need for establishing


criminal


laws and courts to execute them.


The court explained that


criminal


laws further the interests of the state by preserving "the


peace, morals


good order


, and well


-being of society."


Likewise,


court concluded that the


object of public school


"is to prevent crime


by educating the


people


" and thus


ecure "a higher state of intelli-


gence and moral


. and well-being of society."


Similarly,


in an early Kentucky case,


which affirmed that the


locus of responsibility for public


schools resided with the state,


the court referred to public


education "as


forming one of the first









duties of a democratic government."29


"essential


In recognizing education as


to the preservation of liberty," the court emphasized the


high priority given to education by the American people:


If it i


to raise troops


essentially a prerogative of sovereignty


in time of war,


it i


prepare each generation of youth to di


of citizenship in time of peace


and wa


of the younger generations for civil
perpetuity of this government.30


equally so to
charge the duties
r. Upon preparation


duti


depends the


Promoting the Economic Well-being of the State


It i


generally accepted that public


education has a positive


effect on the total


economic growth of the nation and that increased


investment in education contributes to the rising standard of living.31


The education industry provides employment, produces servi


needed


by the total


economy


and contributes to th


Gross National


Product


(GNP)


as does


any other industry.


Thus, education can be considered


both a producer's and consumer's good.


When knowledge and


purpose
a lawyer


pose


of becoming a physician


Sa mechanic-


According to Johns:


kills are acquired for the


teacher, an engineer,


-or for any objective the major pur-


of which is to produce a material


education is a producer's good.
acquired to enrich one's own li
to use, enjoy, or appreciate ar


good that satisfi
summer's good.32


or non-material


good--


But when knowledge is
fe by increasing his capacity
ly material or non-material


human wants, education i


a con-


411,


29City of Louisville v.
412 (1909).
301d.


Commonwealth


, 134 Ky.


121 S.W.


31See R.


Johns,


"The Economics and Financing of Education,"


nlpeiannan Fdairation for the Future No.


at 198-202 (E. Morohet & D.


i









Economists have discussed the economic benefits of education in


terms of both individual


and societal


benefits.


Houthakker


, in 1959,


reported that high


school


education,


in addition to an eighth grade


education,


increased one


lifetime income 41 percent over the amount


received by persons with only an eighth grade education.33


Similarly,


in 1960, Miller estimated that high


school


education in addition to


eighth grade education increased lifetime income 43 percent.34


However,


neither of these researchers made allowances for differences in ability,


inherited wealth, or other such variabi


estimated that the above calculations


Therefore, Denison ha


should be discounted by 40 per-


cent in order to take into consideration the non-educational


factors


affecting one


the differential


income.


However, even when discounted 40 percent,


n lifetime income caused by different


levels of


education remain


significant.


Becker and Schultz used a different approach in computing the


value of education to the individual


by comparing the interest return


on financial


investments


in education with the interest return on


investment in the private sector of the economy


. They found the rate


of return for investments at all


level


of education to be higher than


the rate of return for similar investments in the private economy.36


Houthakker,


Statistics


February


"Education and Income,
, 1959, at 24-28.


" Review of Economics and


34H.
1939-1959,


Miller


"Annual


and Lifetime Income in Relation to Education


American Economic Review 50, December,


1960, at 962-86.


_ _C w










It is an easier task to measure the cash benefits of education


to the individual thar

benefits of education.


1 to measure the social


or indirect economic


However, Denison made a careful


growth rate of the GNP between the years


1929 and 1957


study of the


, analyzing both


positive and negative contributing factors.


He concluded that in-


creased inputs of education and knowledge accounted for


39 percent of


the total


growth of the GNP during that period.37


In addition, Denison


reported that education accounted for one-third of the difference


in United States per capital


income between 1925 and 1960.38


Fabricant


also has


suggested that investments in education


research


and develop-


ment


, and other intangible capital might account for much of the un-


explained annual


increase


in the national


product.39


Many social


benefits of education cannot be easily quantified in


dollars.


The educational


level


of one's neighbors


indirectly affects


his enjoyment of increased educational


has observed that the individual


benefits himself


education spill


Weisbrod


over to benefit his


neighbors,


fellow-workers


, and society in general


He has suggested


that these


external


benefits provide a sound rationale for compulsory


attendance


laws as well


as for public financial


support of education.


Also,


the increasing mobility of the American population and the fiscal


interdependence of various sections of the country cause educational


. Denison
nf a a


, supra note


A "t I l I *


-.. _


4afl fl VI IW In a'l' l' bnfl V. I I- I fl if'' *fI fl


St I I


__1__


I









decisions made at the


local


district


level


to have widespread effects


on the nation as a whole.41


Promoting the Elimination of Evils Such


as Crime and Pauperism


Researchers have shown that the crime rates and rates of

dependency on public welfare or private charity are substantially


greater among people who have


little educational


background than among


those with an adequate education.


It i


According to Johns:


difficult to make a valid estimate, but, as


one views the future


it is rea


sonabl


to predict that the


economic cost of failing to educate the population will


be far greater than would be the


inputs necessary to provide


financial


cost of the additional


t


quantity of education necessary for all


,he quality and
of the people.43


Education is viewed

achievement of social eq


as a route to social


ual ity.


mobility and to the


Although increased educational


opportunities cannot guarantee that the


le of poverty will


be broken,


universal


in thi


education i


a major hope for reducing social


country and increasing th


alternatives availabi


stratification


for each


individual.


Dewey has observed that a society marked off into separate


asses


needs to educate only its ruling cl


ass.


In contrast, however,


society that believes in equality


mobility, and progress


"must see


to it that its members are educated to personal


initiative and


adaptability. "44


Mann also saw public education


as the means to achieve social


equality in this nation.


"Education


" he declared in memorable words,










"beyond all other devices of human origin is


the great equalizer of


the conditions of men--the


balance wheel


of the social machinery. 45
of the social machinery.


It should be noted that some researchers have questioned the


ability of the public


school


to counteract the student's family back-


ground and remove traces of social


inequality.


Although these


researchers


have not dealt with the benefits to the individual


of education versus


no education


, they have explored the marginal


returns to the individual


of increasing either amounts of education or the


level


of expenditure


for education


Coleman


, in his famous report,


indicated that American


schools are remarkably uniform and thatht school


bring


little


fluence to bear on a child'


achievement that is


independent of his


background and general


social


context."46


Jencks went even further


with the assertion that the


school


budget


, facilities, program


teacher


haracteri


tics


have


little


impact on the variations in future


success among children.


Although the public


schools may not be abl


to eliminate poverty,


rime, and


social


inequality


some current researchers are refuting


the hypotheses accepted by Coleman and Jencks.


Walberg and Rasher


recently reported a high correlation between homicide rates and low


educational


achievement


They also found a significant correlation


45M.


Mann, Life and Works of Ho


race


Mann 668-69 (1868)


. Coleman et al


., Equality


of Educational Opportunity


(1966).


1llJ I -, V I ..I.-


A I' F -. CE 4W r


'I *









between resource inputs and student achievement.


Although the debate


may continue concerning the impact of schools on the future success of


students,


it cannot be contested that public schools have contributed


to the fact that the United States has one of the


rates and highest


lowest illiteracy


standards of living of any nation in the world.


Protecting the Well-Being of the Individual


Traditionally,


the interests and goals of the state have also


been those of the people.


Individual


liberty was to be protected and


guaranteed by public education.


An education was to enable an individual


to exercise fundamental


constitutional


rights.as well


as to obtain in-


come and status


The school


has been entrusted with aiding the student to develop


an independence of thought and freedom from the confines of conformity.


Dewey felt strongly that the school


should facilitate the integration


of the individual in

The school


Ito the complexities of American


the function


life:


. of coordinating


within the disposition of each individual


influences of the various social


One code prevail


he enters.


the street; a third,


fourth,


in the religious


the diverse


environments into which


in the family; another, on


in the workshop or store; a


association.


from one of the environments to another


to antagonistic pulls,


and is


into a being having different


emotion for different occasion
upon the school a steadying an

The state has at least two maj


As a person passes
, he is subjected


in danger of being split
standards of judgment and
s. This danger imposes
d integrating force.49


or responsibilities in protecting


the individual


interests


(wel


-being)


in public education.


First










neglect or abuse.


or parents


In addition,


' constitutional


the state must ensure that the child's


rights are not arbitrarily or unnecessarily


interfered with by restrictive


state


legi


lation.


The federal


courts


have recently been more attentive to the protection of th


individual


rights in the educational


arena.


Whereas the courts traditionally


deferred to educators, now they are delving more deeply into th


con-


stitutionality of educational


policy.


It has been judicially dec


lared


that a child does not shed his constitutional


rights at th


choolhouse


door.50

In ruling on the constitutionality of a West Virginia statute


requiring school


children to


salute the American flag and pledge their


allegiance,


that th


the Supreme Court overruled the


statute violated the individual


tate'


fundamental


interests and h


liberties.51


Court recognized that the freedom asserted by the students did not bring


them into conflict with the rights of other individual


or threaten to


disrupt the school


The sol


The Court further


conflict i


rights of the individual.


laborated:


between authority and
The State asserts power


to condition


access


to public


a prescribed sign and profess
to coerce attendance by punis


child.


latter


education on making
ion and at the same time
thing both parent and


tand on a right of


in matters that touch individual
attitude.52


elf-determination


opinion and personal


The Supreme Court further emphasized th


to protect the "constitutional


state


s responsibility


freedoms of the individual


if we are







23


not to strangle the free mind at its source and teach youth to discount


important principles of our government a


mere platitudes. ,"53


Thus,


interference


with a child's fundamental


liberti


must be weighed against


the state'


interest in providing universal


education for the well


being of the state as a whol


Parens Patriae and Compulsory Attendance


The doctrine of parents patriae came to the United States from

the English court of chancery where the chancellors of the king were


accountable for the general


protection of the infants in the kingdom.


The sovereign thus became responsible for the welfare of all


who might be abused,


children


neglected, or otherwise mistreated by their


parents.54


In this country,


the state has replaced the crown in the


area of child welfare.

The power of the state to override the interests of parents often


has been a controversial


issue.


Although basic public opinion generally


has endorsed state intervention in the family in instances of child


neglect,


the movement toward acceptance of compulsory


school


attendance


laws has met with some resistance.


aspirations of the people


In the early days of thi


reflected an agrarian


nation the


, immobile society.


Children were often needed to work on the farms


and the importance of


schooling was not perceived a


critical


to future


success in


life.


However


in the aftermath of the industrial


revolution the need










decreased for children to work on

achievement became a more crucial


family farm, and educational


factor in determining one's future


employment and income.55


Also, as


labor became organized and the


factory system expanded,


children came into competition with adults on


labor market.


Thus,


the movements toward requiring


school


attendance and


establishing child labor


laws paralleled and nurtured each other.


Although both of these interventions have


served to


limit the options


available to the individual,

health and future well-being


adult worker'


the primary motive has been for the

I of the child,56 with protection of the


position remaining a secondary purpose.


Massachusetts


establi


hed the first modern compulsory attendance


law in 1852, and by 1

compulsory attendance


920 all


other states had followed suit.57


statutes require


school


since


attendance and penalize


the parent for noncompliance,


parent i


charged with a duty both


to his child and to th


state.


The courts have often been asked to review the


legality of the


state's power to compel


school


attendance.


In most of th


litigation,


the interests of the state (in behalf of protecting the child)


prevailed over the interests of the parent un1


a fundamental


right


55K.


Alexander & K.F


. Jordan


, supra note 17, at 9.


56See


Wisconsin v.


Yoder,


406 U.S.


05 (1


where the Supreme


II


J~ __ I I











has been arbitrarily denied or the state has failed to demonstrate


least a rational


basis for its affirmative


action.


In an early per curiam opinion,


the Supreme Court made the


following


statement concerning the state


power to override the parent's


interests,


if necessary,


to ensure school


attendance:


It is to be remembered that the public has a
paramount interest in the virtue and knowledge of


its members, and that of s
of education belong to it.


control


is a natural


trict right,


business


* *The right of parental


but not an unalienabi


one.


It is not excepted by the declaration of rights out


of the subjects of ordinary


consequently remains
legislative power whi


legislation;


and it


subject to the ordinary
ch, if wantonly or inconveniently


used, would soon be constitutionally restricted, but


the competency of which, as the government i


stituted,


annot be doubted.


con-


The courts have consistently upheld broader state authority


over children's activities than over


like actions of adults


Prince v. Massachusetts,


legal


guardian of a 9-year-old child


was found guilty of contributing to th


delinquency of a minor by


permitting the child to


Jehovah'


Witnesses


publication


on a


public


street.


supreme Court was split by the


choice between


private rights and the state'


parents patria


but Justice


Rutledge, writing for the majority


stated that the guardian was


violating the Ma


ssachusetts


hild labor


laws.


Although the Court


accepted that the "sacred private interests"


involved in this


case


were fundamental


to a democracy


it ruled in favor of the societal








safeguarded from abuses


and given opportunities for growth into free


and independent well-developed men and citizens.


Justi


Rutledg


took the opportunity in Prince to elaborate on


the relationship between parental


rights and the state


s parents patriae


role:


But the family itself i


in th


public interest, a


not beyond regulation


against a claim of


religious liberty. And neither rights
of religion nor rights of parenthood are beyond


limitation.


Acting to guard the general


in youth's well-being,


may restrict the parent'


attendance,


labor


, and


the state


control


interest


as parents patriae


by requiring


regulating or prohibiting th


in many other way


not nullified merely because


claim to control


the child


hild


school
'S


. Its authority is
the parent grounds his


course of


conduct on


religion or conscience.60


In Ginsberg v.


New York,


the Supreme Court followed the Prince


decision and specifically confirmed broader power for the state to


regulate conduct of children than conduct of adults.61


Similarly,


in Ford v.


Ford


, the Supreme Court reiterated its commitment to


protect the infant from parental


abuse:


Unfortunately, experience
question of custody, so vital


and well-being, frequently
creation of the parents.62


hown that the


to the child


cannot be


happiness


left to the dis-


Therefore,


the power of the parent, even when "linked to a free


exercise claim,"63 may be


limited by the state if it appears that


59321
60Id


158,


165 (1944).


at 166-168.










parental decisions will jeopardize the health, safety, or future well-


being of the child.


In 1948 the Virginia Supreme Court commented


concerning the


tate's power to enforce school


attendance in the child's


interest, although it conflicted with the parent's religious beliefs:

Obviously, an illiterate parent cannot properly


educate hi


child, nor can he, by attempting to do so,


avoid his obligation to send it to a school.


of religious fervor he may entertain


No amount


in opposition to


adequate instruction should be allowed to work a


injury to his


reason, be


child.


Nor should he,


lifelong


for this religious


suffered to inflict another illiterate


itizen on hi


The issue of pupil


community or his state.64


vaccination often has surfaced the conflict


between parental


and state interests.


School


s, by


law, may require


school


age children to submit to vaccination against certain diseases


before they enter school.


The state's objective in requiring vaccination


as a prerequisite to school


attendance


is to provide for the general


health and continued well-being of all


children.


If not immunized,


students are not permitted to enter


school, and consequently parents


may be prosecuted for indirect violation of compulsory attendance


laws.6


Although compul


sory attendance


tatutes have been upheld


even


when conflicting with first amendment freedoms,


in some instances


affirmative state action concerning education has been invalidated when


infringing upon basi


personal


rights.


In Meyer v


Nebraska,


nA A a 4 tl A A t F fl lhf \n


nnl IIA flJ Jr


^ ^ I I


- n J-










the Supreme Court held that the.child's right to


learn


the teacher's


right to.teach, and the parents'


right to have the child taught could


not be interfered with by


legislative


restrictions concerning teaching


the German


language to children below the eighth grade.66


Also,


in Pierce v


. Soc


iety of


ters,


supreme Court held that


the state


right of parent


responsibility in providing education must yield to the


to provide an equivalent education in a privately


operated system.67

a public school fr


Thus,


Oregon statute requiring attendance in


om age eight to age


sixteen unreasonably interfered


with the interest of parents


in directing the rearing of their children.


The Supreme Court noted its high regard for the parent


trol


right to con-


his child:


The child is not the mere


state;


reature of the


those who nurture him and direct his destiny


have the right,


coupled with the high duty,


recognize and prepare him for additional


ob


ligationss.8


Recently,


tate of Wisconsin v


. Yoder,


the Supreme Court


held that Amish


children were exempted from compulsory attendance


requirements after reaching the eighth grade.


state's responsibility for educating its


The Court recognized the


citizens and its power to


reasonably regulate and control


length of basi


education.


Chief


Justice Burger even stated for the Court that providingig public


66362 U


300 (1923)


.


*










school


thel


ranks at the very apex of the function of a state."69


ess,


Never-


the Court declared that "a State's interest in universal


education, however highly we rank it,


is not totally free from a


balancing process when it impinges on other fundamental


interests

Court con


rights and


After analyzing the history of the Amish people,


luded that the compulsory attendance


laws forced Amish


children "to perform acts undeniably at odds" with their mode of life


and deep personal


Therefore


convictions.


supreme Court concluded that an additional


or two years of formal


high school


for Amish


children would do


little


to further the


tate'


interests in warding off ignorance


and creating


an educated citizenry.


limiting its deci


ion to Amish children,


Court emphasized:

It is one thing to say that compulsory education


for a year or two beyond the


when its goal
modern society


of education be


life in t


keyston


eighth grade may be necessary


is the preparation of the child for


life in


. ., but it is quite another if the goal
viewed as the preparation of the child for


he separated agrarian community that is the
of the Amish faith.72


The Court also stated that it was not trying to function


board or


as a school


legislature and cautioned other courts to move "with great


69406 U.
70Id. at
711d. at
72T, -.


205, 213 (1972).


ft










circumspection" in balancing th


religious


state's


legitimate interests against


claims for exemption from any educational


requirements.73


Justice


Dougl


dissented in part in this deci


ion because he


felt that the religious views of the child, whose parent was th


subject of the suit, were not given


efficient attention by the Court.


He fully concurred with the judgment for one of the defendants, whose


child had testified that her own religious


views were contrary to the


tate requirement of two years of high


school


education.


However


Justi


Douglas felt that the


case


should have been remanded back to


the lower court concerning the other defendants

ren could have had an opportunity to be heard .74


in order that th


child-


The State'


Obligation to the Child


The past two decades have witnessed stricter judicial


of state purposes when educational


scrutiny


legislation interferes with basic


civil


rights.


tate must have a rational


basi


and in some


cases


a compelling interest,


for action which deni


the individual


opportunity to


exercise his fundamental


rights.


Ease of admini


tration


or conservation of public fund


can no


longer be the sol


justification


for interference with personal


liberty


ies.


73Id. at


decision to Amish


Although the
children. the


supreme Court specifically


Court may be faced in the


limited its


near future


with claims that question the necessity for compulsory attendance beyond


the eighth grade


for any


children.


the recent report of the National


Thi
Commi


s is especially likely in view of
ssion on Reform of Secondary


SlirA mm'+4 in iahr rnminn r h HM2 + rmmniiln C) + nn n nnlMl


rP n


S+b +QrlnraM


Annr i +


r~\ rt i


I











Although the judiciary will


no doubt continue to balance state


and parental


interests


in reviewing educational


policy,


recently more


emphasis has been given to delineating the rights of the child himself


Thus,


the child i


becoming a more equal


partner in the interest triad,


instead of remaining in the background with either the state or parent


asserting interests in his behalf.


The courts are becoming more pro-


tective of the child'


right to know,76 to express,


and to freely


exerci


religious b


liefs


Prior to the 1950s,


political


public education was often viewed


privilege bestowed upon the individual


as a


by the state.


1926 the Virginia Supreme Court


espoused this philosophy in a case


challenging the reasonableness of a school


regulation:


it may be a restraint upon


infringement upon happiness


for the


inhibit a parent from sending his


liberty and an


legislature to


child to any school,


it is neither restraint nor infringement for the


Legislature to enact


laws


to debar a child from the


mere privilege of acquiring an education at the expense


of th


reasonable


state until


regulation


promoting efficient


s willing to s
enacted for th


and maintaining di


ubmit himself to all


purpose c
scipline.


[emphas


added


76See Meyer v
of Regents, 335 U.S
479 (1965).


. Nebraska, 265 U
. 589, 603 (1967)


390 (1923)
Griswold v.


; Keyishian v
Connecticut,


. Bd.
381 U.S.


U.S.


77See Tinker v.
503-7T969).


Des Moines


Indep.


Community School


Dist.,


78See Wisconsin v.
Bd. of Educ. v. Barnette


Yoder,
319 U


I


406 U


.V.


205 (1972)


West Virginia


624 (1943)


Whil


. w


S


.










However,


it can be argued that the compulsory nature of


education conflicts with the concept that public education is a


'privilege '


In a privilege relationship


, the recipient ha


option of accepting or rejecting the benefits involved


In the


instance of school


attendance, although the individual


has the option


of attending private or public schools, he does not have the alterna-


tive of entering the


labor market instead of going to


school


until


he reaches the age required by


law.


Thus,


new issues are surfacing concerning the state


respon-


sibility to the child in the domain of public education.


student's


Since the


liberty is curtailed by compulsory attendance, are there


benefits which the student can expect, or even demand,


as a result


of the extensive intervention of schooling in his


life


Does the


state have a duty to make educational


opportunities


available


to all


on equal

denial c


terms


Is compulsory education


if an individual


liberty?


itself an unconstitutional


Can a state decide to withdraw


totally from the public


educational


arena?


It is a contention throughout this study that the courts should


take a more active posture in

the obligations placed on the


litigating such issues and in defining


tate in order to justify mandatory


school


attendance


The remaining chapters explore the


legal


basi


for an individual


to assert hi


rights to a public education and the


circumstances under which equal educational opportunities must be















CHAPTER III

SUBSTANTIVE RIGHTS TO AN EDUCATION


For many years the individual


interests in public education


have been a part of and in tension with the interests of the state.


Since education is not mentioned in the Federal


Constitution,


individual must use the guarantees of the fourteenth amendment in


order to


challenge the police power of the state.


Section I of the


fourteenth amendment reads


follows


persons born or naturalized in the United States


subject to the jurisdiction thereof


the United States and of the
state shall make or enforce a


are citizen


state wherein they reside.


law which shall


abridge


the privileges or immunities of citizens of the United


State


nor shall


any state deprive any person of life,


liberty,


or property, without du


process


of law;


nor deny


to any person within its jurisdiction the equal
of the laws.


protection


The fourteenth amendment i


lative, judicial


designed to


or executive) which deni


limit state action


to citizen


(legis-


of the United


States equal


protection of th


laws or interferes with


life,


liberty or


property without due process of law.


In the Civil


Rights Cases in


1883,


supreme Court stated:


The first section of the Fourteenth Amendment i


hibitory in its character


It i


Individual


and prohibitory upon the


tate action of a particular character that i


invasion of individual


rights


-. 4- 1. .L .C 4- L* A ,,~, .L4.-7.. L d


s pro-
states.


prohibited


is not the subject
-A L A. -.-.1


lr ~~1 L ~~Alk~










Forkosch has referred to the first section of the fourteenth


amendment


as "probably the greatest single source of the rights of


persons and of limitations upon the states that exists


Constitution and all of the other Amendments.


in the entire


Since state action can


be found in many situations where governmental


involvement is


ubtl


the problem is not in searching for state action but in determining


whether the particular action i


constitutional


An individual'


constitutional


claim to a public education is based


upon guarantees afforded by both the due process and equal


clauses of the fourteenth amendment.

process generally concerns the fundame


protection


According to Coons et al., due

ntal fairness and "rationality of


tate'


treatment of an individual


" while equal


protection deal


with distinctions in the treatment of


asses


of persons by the state.4


if it is


establi


hed that the individual'


interest in education


is a constitutionally protected


'liberty'


or 'property'


right,


tate


cannot deny him


equal


access


to public school without due process of law.


protection clause, on the other hand,


is used to invalidate arbi-


trary


classifications in education which result in discriminatory govern-


mental


treatment of certain groups of students.


Due process guarantees


Forkosch


-3
See Marsh v
doctrine'). See


Af+4nn1


Constitutional


Alabama,


also H.


Horowitz,


(2d ed
(1946)


leading


IInA&v 'h, Crnonm ivf' n+'h lmonrdlm n+' l"


1969)


('public function


a21


rch for
Dou 9


'State
no (1ag47


I


,










as a basis for a constitutional


right to an education are explored in


this chapter, and the following chapter deals with the implications of


equal


protection mandates in public schooling.


Fourteenth Amendment Due Process Guarantees


The Supreme Court has recognized two aspects of constitutional due


process.


In substantive due process analysis


the courts examine state


action to determine whether the governmental


purpose is appropriate for


the exercise of governmental


power.5


legitimacy of legislative


'ends


depend


upon whether the affected interest is within the


constitutionally protected areas of


'life


, liberty or property


' which


cannot be impaired without an overriding public


interest.6


If the


validity of the governmental


interest i


not in question


then the


judi


iary must determine


that the means employed relate directly to


achieving the governmental


purpose.7


Procedural due process allows the state to deprive a person of


life,


liberty or property, but requires certain procedural


safeguards


to ensure fairness.


The minimal


standards of procedural


due process


which have been judicially recognized include (a) notice


to the individual


that h


about to be deprived of hi


life,


liberty or property


an opportunity to be heard, and


(c) a hearing that is conducted fairly.


supreme Court has acknowledged that due process of law does not


require a hearing in every possible


case


of governmental


interference


, (b)











with


private


interests.


1961,


Court


noted


that


determination


exac


process


procedure


required


in any


specific


situation


begin


with


an analy


prec


nature


governmental


tion


involved


as well


as of


private


interest


that


been


ected


ubstantive


governmental


Process


action


rtie


supreme


Court


that


"where


here


significant


encroachment


upon


onal


liberty


tate may


prevail


only


upon


showing


ubordinating


eres


compelling


ence


personal


liberty


involved


law mu


necess


ary,


not merely


rationally


related


accompli


hment


permi


ssible


tate


policy.


Al though


original


intent


fourth


eenth


amendment


prote


rights


Negro


race


again


scriminatory


action,


coverage


soon


nded


to other


groups.


1886


supreme


Court


used


fourtee


amendment


prot


right


oriental


right


corporations


economic


affair


Bickel


suggest


that


fourteenth


ndment


necessa


rily


intended


ermanency


so i


was design


expans


hanging


rcums


tances


Cafet


(1961);
1fl a.


Stanley


restaurant


Illinoi


Worker


I I 1 I -


886,


McElroy,
650 (197


I~. I -- *


- 4. IU| II


*


_ _J


i


I I


I


_ I *





3/


The courts have therefore.declared that the substantive aspect of


the term 'liberty'


includes other guarantees of the Bill of Rights and


protects the exercise of these rights against arbitrary state inter-


ference.


In Gitlow v.


New York,


supreme Court explicitly ruled:


For present purposes we may and do assume that freedom
of speech and of the press--which are protected by the
First Amendment from abridgement by Congress--are among


the fundamental


by the due pro


personal


cess


rights and liberties protected


clause, f the


Fourteenth Amendment from


impairment by the States.


similarly,


in Palko v.


Connecticut,


supreme Court held that the


individual


rights protected against federal


intrusion by the various


amendments "have been found to be implicit in the concept of ordered

liberty and thus through the Fourteenth Amendment become valid .


against the


states


Some justices have questioned the incorporation


of all


the Bill


of Rights under due process protection,


19 but the pre-


vailing view i


that explicit constitutional


guarantees are


hielded by


the fourteenth amendment from arbitrary state interference.

Implied Fundamental Liberties


There is more controversy concerning the protection afforded to


implied constitutional


liberties.


As early


1884, Justice Bradley


17268 U.S


296


(1940)


652


tate of Colorado,


sure rights)


(1924)


See


(first amendment religious


. 25 (1949)
Hogan, 378


Mally v.


o Cantwell
s freedom)


Connecticut


Wolf v.


(fourth amendment


(1964)


, 310


People of


each and


(fifth amendment


self-incrimination protections)


400 (1965)
Wainwright,


Pointer v.


(sixth amendment right to


. 335


(1963)


State of Texa


confront witne


sses


380 U


Gideon v.


(sixth amendment right to counsel


S f- -


II


J -


- r _^ k-


_ I ___ __









interpreted the term


'liberty'


to cover rights other than those stated


in the Constitution:

The right to follow any of the common occupation


life i


an inalienable right.


It was formulated as


under the phrase "pursuit of happiness"


in the Declaration


of Independence, which commenced with the fundamental


proposition that "all men are created equal,


are endowed by their creator with


rights;


that among these


pursuit of happiness


in the civil li

More recently, Justi


berty of th


Wysanki


life,


that they


certain unalienable


liberty,


is right is a
e citizen 2


and the


large ingredient


commented for the federal


district court


in Massachusetts:

Order can be defined properly only in terms of the


liberties for which it exists


liberty can be de-


fined properly only in terms of the ordered


in which it thrives


As Albert Camu


im


Rebel, order and liberty must find their
each other.21


society


plied in
limits


The
in


The term


'li berty'


is not defined in the Constitution, so the


Supreme Court has had to interpret its meaning.


Although judicial


debate


continues


and no comprehensive theory has been established for declaring


which interests come under the protective umbrella


as fourteenth amend-


ment


liberties


, general


consensus has been reached concerning the fun-


damentality of certain implied rights


The right to travel


has been judicially


sanctioned as a fundamental


right,


although it i


not explicitly


tated in th


Constitution.


early as


1849 Chief


Justice


Taney made the following observation con-


cerning the right to travel:


Fn al 1


fh nroat niirnncoc fnr which the Fedtral










common country.


We are all


citizens of the United


States; and, as members of the same community, must


have the right to pass and repass


of it without interruption
States.22


1964,


through every part


as freely


in our own


supreme Court recognized that freedom of travel


is a


constitutional


right, closely related to the rights of free speech and


association, which the


pelling interest.


tate cannot deny without demonstrating a com-


1966, Justice Stewart stated for the


majority in United States v.


Guest that the constitutional


right to inter-


state travel


"occupies a position fundamental


to the concept of our


Federal


Union."


He reasoned that the right to travel was not explicitly


mentioned in the Constitution because it was deemed so elementary and


"conceived from the beginning to be a n


necessary concomitant of the


stronger Union the Constitution created."24


In Shapiro v.


Thompson,


the Supreme Court held that the state pur-


pose of deterring the in-migration of indigents could not justify a


one-year residence requirement for receiving welfare benefits

regulation unconstitutionally infringed upon the individual's


travel


Quoting an earlier case,


Court noted that if a


as this

right to

law has


"no other purpose


. than to chill


the assertion of constitutional


rights by penalizing those

patently unconstitutional.


hoose to exercise


them,


then it (i


22Passenger Cases,


7 How.


(1849)


23Aptheker v.
S At


Secretary of State,


. 500, 505-06 (1964)


.J ,. -- -- S.. na 5 9 *' n. -- 1F rS F t


U K-


-





I ~


' J Jl -


Lr


I










The personal


rights of marriage and procreation have also been


judicially declared to be basic,


not specifically di


fundamental


scussed in the Constitution.


rights, although they are


In Skinner v.


Oklahoma


ex rel


. Williamson,


the Court held that state action di


crimi-


nating against procreation must be stri


tly scrutinized


marriageae


and procreation are fundamental


to the very existence and survival


the race.


More recently,


in Stanley v.


Illinois


, the Supreme Court


noted that the rights of fatherhood and family are "essential" and


"basic civil


rights of man."


Similarly,


in Eisenstadt v.


Baird


Court recognized that there is a right "to be free from unwarranted


governmental


intrusion into matters so fundamentally affecting a person


as the decision whether to bear or beget a


child."30


in Roe v.


Wade,


the Court emphasized the importance of procreation and its close


relationship to th


constitutional


right to vote in


recognized as receiving implied


right to privacy.31


tate elections has


constitutional


likewise been judicially


protection.


supreme Court


tated as early a


1886 that voting is "preservative of


other rights."33


In Dunn v.


Blumstein,


the Supreme Court invalidated


a durational


residency requirement for voting.


The Court concluded that


27See
out that Su


Loving v.


Virginia,


preme Court discuss


refer to heterosexual marriages.


been afforded to homosexual


28316 U.S.


(1967)


ions of the fundamentality of


Constitutional


9405 U


marriages


(1942)


It should be pointed


protection ha


645


'marriage'


not yet


(1972).


A A --









two personal


rights were affected by the statute:


"The right to travel


is merely penalized, while the right to vote is absolutely denied."34

The Supreme Court has recognized voting as a matter "close to the core


of our Constitutional


stem,"35 and has repeatedly emphasized the close


nexus between the


exerci


of the state franchise and the basic


ivil


and political


rights inherent in the first amendment.36


Another interest which the


courts have protected as a fundamental


liberty i


the right to criminal


appellate review.


In Griffin v.


Illinois


supreme Court held that judicial


legislation which discriminates against


asses


scrutiny is required of

of people concerning


access


to criminal


justice procedures provided by th


tate.37


In several


cases


the Court has recognized that


access


to criminal


appellate review


is closely associated with the procedural


process


rights guaranteed by the due


lause of the fourteenth amendment.


Although the Supreme Court ha


refused to rule on the issue


, several


lower courts have included the right to personal


appearance in the con-


text of the


'liberties


' protected by th


fourteenth amendment.


Breen v.


Kahl


the federal


district court


tated:


For the


state to impair thi


freedom [personal appearance],


in the absence of a compelling subordinating interest in


34405 U.


0


35Carrington v


, 341
Rash


380 U


, 96 (1965)


626-2
(1966


36See Kramer v. Un
9 CTT69); Harper v


).


ion Free


hool


. Virginia Bd.


Dist. No. 15, 395 U
of Elections, 383 U.


. 621,
663, 665









doing so, would offend a widely shared concept of human


dignity, would a


ssult personality and individuality,


would undermine identity and would invade human


'being'


Although


consensus has


been reached concerning the fundamentality


of the above rights


judiciary to date has failed to articulate def-


i.nite


criteria for declaring which personal


interests will


be afforded


constitutional


protection. 40


Justice


Goldberg asserted that in de-


iding which rights are fundamental


"judges are not


left at


large to


decide


cases


Snyder v.


light of their personal


Massachusetts,


and private notions.


the Court stated that the judiciary must


look


at the traditions and collective conscience of the people to determine


if a principle is "so rooted


[there]


. as to b


ranked as funda-


mental


Thus,


the Court must decide if the right involved "is of


uch a character that it cannot be denied without violating those


'fundamental


principal


of liberty and just


which


lie at the base of


all our civil


and political


institutions


Education as a Substantive Liberty


It cannot be contested that th


supreme Court has expanded the


meaning of 'liberty'


to include implied fundamental


rights in addition


39269 F


(7th Cir.


Supp


. 702, 706 (W.D


1969), cert. denied


398 U


. 1969), aff'd 419 F.
937 (1970) .7


2d 1034


40The terms 'r
jurisprudence to ir
degrees of judicial


right'


'interest'


idicate persona
protection.


demand or desire which human bein


seek to satisfy."


4 I a S


An interest which i


A =


l1


are found throughout educational


liberties which are afforded various


Pound has defined an interest as "a
gs either individually or in groups


protected by


a -


law is called a


-, -. -


, ,"43









to explicitly stated constitutional


afforded full


rights, and thus the Court has


fourteenth amendment protection against arbitrary state


interference to these


'implied liberties'


However


, the status of an


individual


substantive right to an education remains


less certain.


Those supporting the thesi


that the right to an education is an


implied,


constitutionally protected


'liberty'


emphasize the crucial


role that education plays in the modern state.44

Hogan has summarized the arguments set forth by the California


Supreme Court as to the indispensable role of education.


First,


education is


essential


to a democrat


society in order to preserve


the individual'


opportunity to compete


successfully in the economic


marketplace.


Secondly,


education is universally relevant.


Also, un-


like other governmental


services, public education extends over a


lengthy period of the individual


life.


In addition,


the public


school


attempts to mold a child'


personal


development in a fashion


chosen by the state, and is thus unmatched in the extent to which it


influences the youth of


society.


Finally, education is deemed so


important that the state has mad

particular district compulsory.4


The first


both attendance and assignment to a


supreme Court decision which addressed education and


its relationship to the fourteenth amendment was Meyer v. Nebraska in


1923.46


In thi


case a parochial


school


teacher was dismissed because


A









he violated a state statute which forbade the teaching of a foreign

language to students who had not successfully passed the eighth grade.


Although the Nebraska Supreme Court upheld the statute,


the United


States Supreme Court struck it down


as an arbitrary denial


of four-


teenth amendment


liberties.


In holding in favor of the teacher's


right to teach German, Justi

The American peopi


acquisition of knowledge a


McReynol d


have always


stated for the Court:

regarded education and


matters of supreme importance


which should be diligently promoted.


Practically, education of the young i


schools conducted by esp


themsel


thereto.


only possible in


ecially qualified persons who devot


The calling always ha


useful and honorable, essential,


fare.


indeed


been regarded a


, to the public wel-


His right thus to teach and the right of parent


to engage him so to instruct their children
within the liberty of the Amendment.47


we think, are


Thus,


in Meyer,


the Supreme Court afforded constitutional


protection


to the


'liberty to teach'


and the


'liberty to


learn '


Many


subsequent


cases have cited Meyer as precedent establi


hing that the right


acquire useful


knowledge'


is a due process


liberty.48


In the controver-


sial


abortion case of 1973,


the Supreme Court referred to the Meyer ruling


and noted in dicta that the personal


right to education has been deemed


"fundamental" and "implicit in the concept of ordered liberty."49


Shortly following Meyer,


statute which required all


the Supreme Court invalidated an Oregon


students of compulsory attendance age to go to


public school


This case, Pierce v.


Society of Sister


established the


precedent that the right to conduct private


school


and the right of parents










to send their children to private schools are among the due process


guarantees of the fourteenth amendment.


The Society of Sisters


argued that this


case


involved far more important rights than simply


the rights of private


school


s, namely,


the rights of parent


and of


children themsel


ves:


"Refl section


should soon convince the Court that


those rights, which the statute seriously abridges and impairs, are of


the very essence of per

writing for the Court,


liberty and freedom."51


recognized the power of th


Justice McReynolds,


state to regulate


education, but he stressed that there were more reasonable


and appro-


private means of satisfying the


tate interests than requiring all


stu-


dents to attend public


schools.


1927, a Missouri


tuition requirement for attending public


school


was attacked as unconstitutional


The Missouri


supreme Court h


Id that


the school must grant a diploma to a


student meeting all


other require-


ments for graduation:


The right of children between si
to attend public schools establi


and twenty years of age
hed in their district is


a fundamental right which cannot be denied except for the
general welfare.52


landmark desegregation


case,


Brown v.


Board of Education of


Topeka,


often cited to support the contention that citizens have a


substantive right to an education provided by the state.


In ruling that


'0268 U


. 518 (1925).


. .-L.


PeoDle v.


Stanley. 81


Colo.


276.


.L_ LI


V










segregation by


law in public school


violated the Constitution, Justice


Warren stated for the unanimous Court:


Today, education is perhaps the most important


function of state and local
the very foundation of good


it is doubtful


succeed in


days


expected to


tunity of an education.


governments.
citizenship.


It is


In these


that any child may reasonably be


life if he


is denied the oppor-


Such an opportunity


the state has undertaken to provide it


which must be made availabi


[emphas


is added]


to all


on


where


, is a right
equal terms.53


The constitutional


status of education was also addressed in Bolling


v. Sharpe which was handed down by the


supreme Court on the same day as


Brown.


In declaring segregation unconstitutional


in the schools


Washington, D.C., Justice Warren


laborated on the meaning of the term


'liberty':


Although the Court has not ass
"liberty" with any great precision,


umed to define
that term is


confined to mere freedom from bodily restraint


under


law extends to th


individual is
except for a p


full


Liberty


range of conduct which the


free to pursue, and it cannot be restricted
roper governmental objective.54


The Court explicitly stated that unequal


education created by


segregation


constituted an arbitrary deprivation of the student


' liberty in


violation of the du


Several


lower court


cess


lause.


have been more definitive than the Supreme


Court in asserting the fundamentality of education.


In Hobson v.


Hansen,


the Washington, D.C


personal


District Court found education to be a


right" and reiterated the Bolling ruling that equal


"critical

educational


_ I










opportunity


component


substantive


process


mandates


More


recently,


an Indiana


federal


court


referred


education


as a


"substantial


right,


impli


liberty


assurances


pro-


cess


lause.


1970,


California


superior


Court


claimed


that


right


receive


an education


inalienabi


right,


. a


fundamental


right,


legal


right,


peci


f property,


equal


greater


than,


other


tangible


property


rights


right


human


being


similarly


. Evans


federal


trict


court


made


lowing


laration


ruling


that


children


were


permanent


residents


Virgin


land


right


attend


public


school:


are here


so fundamental
a vibrant and


proudly


Fundamental
denied nor


expe
must


nditure
raise


spouse


dealing


as t
viable


with


an aspect


fittingly


republican


i.e.


rights
abridged


public


fund


guarantee


olely
funds
[empha


consid


form


twenti


ered
demo


unrestricted


because
for s


impl


uch


DU


the c
cracy,
public


titution


mentation
rDoses the


I I


century


corner
such


life


stone of
as we so


education.
be neither


requires
government


added


Manjares


ewton


California


supreme Court


observed


that


education


become


non o


useful


tence.


. 401
. Cir


. 1967),


nom.


Smuck


Hobson,


. 1969)


56Chandler


cited i
(1974).


south


Hogan


Bend
hool


Community S
. the Court


hool
. and


Corp


Public


Ind.
Int


1971)
erest


57Crawford


(Cal.


-I I i f


n r~ ir


uper
VOYP


Educ.


Feb.


I 1 I *-


frnm


I


"Minute Order"


Hogan,


I 11- I


-L I II I


C0P .1


Hnnan_


supra
Rnlp


note


2
45,


"Thp


SI I .II


w


r


SI









court held that the school


board's refusal


to author


transportation,


which resulted in the denial


of educational


opportunities to eight


children

In


, was arbitrary and unreasonable:

light of the public interest in conserving the


resources of young mind


examine any action of a public


, we must unsympathetically


body which has the


effect of depriving children of the opportunity to
obtain an education.60


, the New Hampshire federal


stated:


district court emphatically


"No authority is needed for the fundamental American principle


that a public school


citizens.


education through high school


Federal


is a basic right of


courts have also referred to education


"a pri


commodity"62 and "vital


. 3


indeed, basic to civilized


society."63


In the


school


finance case, Serrano v.


Priest,


the Califor-


nia Supreme Court made the most explicit statement concerning the


fundamentality of education:


"We are convinced that the distinctive


and priceless function of education in our society warrants,


indeed,


compel


our treatment of it


as a fundamental


interest."64


Whil


lower courts were continuing to rely on Meyer, Pierce, Brown,


and Boiling in asserting the fundamentality of education


, the Supreme


Court in


1973 appeared to go against the precedents


in these earlier


cases.


it had established


In Rodriguez, Justice Powell, writing for the


majority, stated that education "is not among the rights


afforded


explicit protection under our Federal


Constitution. "65


Nor did the Court


60Id.


Jft1










find any basis for giving education implied constitutional


protection.


In upholding the constitutionality of Texas'


financing scheme for public


school


Justice Powell


of education will


further declared that "the undisputed importance


not alone cause thi


Court to depart from the usual


standard for reviewing a State


social


and economic


legi


lation."66


Although the Court quoted the Brown decision at


length and cited


several


other ruling


which expressed an "abiding respect for the vital


role of education in a


free society,"


it was not moved to afford con-


stitutional


protection to education:


Nothing this Court holds today in any way detracts
from our historic dedication to public education. We are
in complete agreement with the conclusion of the three-


judge panel


below that the "grave


both to the individual


and to our


significance of education


society"


cannot be doubted.


But the importance of a service performed by the State does
not determine whether it must be regarded as fundamental


for purposes of examination under the Equal


Thus, by a one vote plurality,


Protection Clause.0/


the Supreme Court in Rodriguez declined


to draw education into the inner circle of constitutionally protected


rights.


Although this decision will


be used to support the contention


that the right to a public education is not constitutionally guaran-


teed,68 the Court
limiting the deci


ruling did not definitive


ion to the validity of Texas'


ly settle the issue.


public


school


financing


plan under the equal


protection clause,


the Supreme Court


left open the


possibility of a


ubstantive right to education being established in other


factual


situation


The Court actually hedged on the issue of whether


- a aI a m a-


#'"


* J I I










denying educational


opportunities to some students could cause


education


to be viewed as a fundamental


right that would receive constitutional


protection 69

Education as a Protected Property Interest


It can be argued that a more stable constitutional


right can be


established by judicial


declaration that the individual


interest in


education i


an implied du


cess


'liberty


However,


the Supreme


Court'


failure to take a definitive


stand on this


issue does not


eliminate the individual


laim to a right to an education under the


due process clause.


student still


can assert a


'protected property


right'


to a public education which cannot be denied by the state without


due process of law.

The Supreme Court has recognized that protected property interests


usually are "not created by the Constitution.


Rather,


they are created


and their dimensions are defined" by an independent source


as state


statutes.70


Thus, since the state has decided to provide


education and


has made school


attendance


mandatory,


the student has a


legitimate claim


of entitlement to a public education.


Through state constitutional and


statutory provi


ions,


69See Chapter


the state has created the expectation that citizens


text with notes


infra.


70Board of Regents v.


Roth


408 U


(1972)


In thi


case,


the Sunreme Court held that a nontenured teacher. who was not rehired bv










are entitled to the benefit of attending school, and this protected

property interest cannot be abridged without fair procedures.71


In several


Supreme Court decisions,


the Court has required pro-


cedural


due process because of the protected property right involved,


even though the interest in question has not been afforded explicit


protection by the Federal


Constitution.


For exampi


the Court has held


that when a state has established a welfare program,


expectation of a benefit which cannot b


it has created the


indiscriminately denied without


procedural


safeguard


Likewise,


the Court has ruled that state


employees have a


legitimate claim to continued employment and may not


be discharged without procedural


protections.


similarly,


in Morrissev


v. Brewer,


the Supreme Court held that due process must take place before


the state can revoke parole


since th


state has created the expectation


uch a right.74


tate,


through statutes and regulations, has


established a property interest on the part of the parolee which cannot

arbitrarily be denied without violating the fourteenth amendment.

In a recent Supreme Court decision concerning short-term student


suspensions,


the Court clearly announced that the state "is constrained


to recognize


a student's


legitimate entitlement to a public education


71See Perry v


. Sindermann


down by the Supreme Court on th


were sufficient ground


of entitlement to his position;


408 U
same


. 593


day a


(1972)
Roth.


which was handed


In thi


that the nontenured teacher had a


thus,


case,


there


legitimate


supreme Court ruled that he


claim


. _






52

as a property interest which is protected by the Due Process Clause."75


Justice White, writing for the majority in Goss v


. Lopez,


further elabo-


rated:


Having chosen to extend the right to an education to people
appellees' class generally, Ohio may not withdraw that rig


grounds
determine


|ht on


of misconduct absent fundamentally fair procedures to
e whether the misconduct has occurred.76


The Supreme Court


ruling in


Goss


is too recent for its impact to


be fully realized at thi


point.


However,


the Court


definitive


declaration that the


student has a state-created property interest in


public education that cannot be denied without procedural


due process


may have vast implications for future educational


it will


litigation.


encourage the courts to go beyond protecting the


Perhaps


student


'property right'


school


attendance


and begin requiring fair procedures


for pupil


placement in instructional


programs.


Furthermore,


this decision


may influence the judicial


posture in future education controversy


based on equal


protection ground


and may give students more confidence


in asserting their right to at


least minimal


benefits from their man-


datory school


experience


Litigation Involving the Right to Attend Public School


Courts have repeatedly emphasized the grave injury that


to the child who is excluded from public educational


an result


opportunities.77


75Goss


76Id.


cussion of thi


Lopez,


at 4183-84


43 U.S.L.W


. 4181, 4184 (U


text with note


case.


135,


infra,


. 22


, 1975).


for further dis-










Legal


controversies concerning the denial


of school


attendance to


selected students, either for disciplinary reasons or based on char-


acteristics such


as marriage or handicaps


are especially salient to


study


as these


cases


focus on the right to public education it-


self,


rather than on other constitutional


guarantees whi


h have been


infringed.


Married and Pregnant Students'


Rights to Education


The individual


right to attend public school


often been


addressed in


cases


involving married and pregnant students


n 1929


supreme Court of Kansas ruled that a


student could not be denied


an education because he was married:


[I]t is proper also to


see that no one within school


should be denied the privilege of attending


school


it is clear that the public interest demands expul
such pupils or a denial of his right to attend.78
added]


unless
ion of


[emphasis


However,


1957,


supreme Court of Tenn


essee


reached the oppo-


site conclusion concerning the right of married students to remain in


school. Th

detrimental


re school official


demonstrated that married students had a


influence on fellow students and the efficiency of th


school


for the few months after their marriage.


school


s, the court upheld the


regulation that required students to withdraw from school


the remainder of the term immediately following their marriage.


In spite of several


rulings to th


contrary,


the prevailing view is


that married


students must be granted the same right to attend


school









unmarried students.


In Board of Education of Harrodsburg v. Bentley,


the Kentucky Court of Appeal


held that the school


board could not make


marriage,


ipso fact,


the basis for denial


of the


student's right to


obtain an education.80


The court found the


exclusion of married


students to be arbitrary and unrelated to the


Similarly


school's asserted purpose.


Texas Court of Civil Appeals ruled that boards of education


could not deny admission to school


because


of a student's marital


status 81


since it has generally been accepted that a married student has the


right to remain in school,


the controversy


issue at present concerns


the married student's right to participate in extracurricular activities.

Traditionally, courts upheld regulations prohibiting married students


from participating in extracurricular activities on the basi


age marriages should be discouraged since they


that teen-


contributed to the school


dropout problem.


The Supreme Court of Utah in


1963 asserted that it


was not the rol


of the courts to rule on the wisdom or social desira-


ability of such regulations.


The court reasoned:


[S]o
and


long
so Ion


as th


as the


uniformly applied
relationship to t
as capricious,


rules


promote the objectives of the school


standards of eligibility are based upon


cl


assifications bearing som


reasonable


he objectives, rules will not be set agjde
arbitrary, or unjustly discriminatory.


Likewise, an Ohio regulation barring married students from participating


extracurricular activities was upheld by the common pleas court because


school officials demonstrated that married athletes were often in a position









to be idolized and copied by other students.


Thus,


the school's purpose


of attempting to discourage underage marriages justified the regulation.84


However, several


recent


cases


have challenged the traditional view


that married students could be denied parti


activity


ipation in extracurricular


and courts have held that married students should not be


discriminated against in public education.


early as


1960, a majority


of the justices on the Michigan Supreme Court voted against the


of a school


legality


board rule which excluded married students from participating


on the football


team.


The Attorney General


spoke on behalf of the


students


that the board's


action was punitive and resulted in humiliation of the


married students


However


lower court'


decision upholding the


regulation was allowed to stand purely on th


procedural


grounds that


the issue was moot since the plaintiff

In Davis v. Meek, an Ohio federal


had graduated.85


court invalidated regulations which


kept married students from participating in extracurricular activities.


The court noted that extracurricular activities


"are an integral


part" of


the total


school


program and that such regulations cut off married students


from a portion of the education which they have a right to receive in view


of the


landmark Brown decision.86


similarly, a Montana federal


court held


that th


right to attend


school


includes th


right to participate in extra-


curri


cular activities.87


84State


ex rel


Baker v


tevenson


189 N.E


. 2d 181


(Ohio C


. 1962).


85Cochrane v.


I.-.. *


of Educ.


of Mesick Consol


Srhnnl


nDit.


- 103 N.W.


-. -


.









In Holt v.


Shelton,


the federal


ourt held that school


regulations


preventing married students from participating in extracurricular ac-


tiviti


unconstitutionally infringed upon the student's right to marry


and right to attend -school


court observed that "it is strongly


arguably


that the right to an education i


, itself, more than a mere


right but a


'fundamental


right'


Likewise,


in a recent


exas


case,


the court of civil


appeal


invalidated exclusion of married students


from participation in extracurricular activities on the rationale that


once the state established such programs,


of students from participating without


would not exclude a certain

showing a compelling state


interest.90


School


regulations which deny pregnant students an education or


discriminate against pregnant students are also being questioned in the


courts.


1961


a school


rule in Ohio was attacked which required


students to withdraw from school


immediately upon knowledge of their


pregnancy.


The common pleas


court held that the regulation was not


arbitrary, but was a


and proper


exercise


of discretion" to safe-


guard pregnant students'


physical well-being from the "typical


rough-


and-tumble characteristic of children in high school


" with no motivation


to punish the child.91

Although some regulations have been upheld, at present it appears


that the courts will


scrutinize any regulation concerning pregnant


__










students unless a direct relationship can be shown to protecting the


girl


health92 or an alternative program more suitable to the student's


need


is made available.


1966, a school


rule in


Texas was attacked


which excluded married mothers from attending regular public school


sses.


The only alternative available to the excluded students was


to attend adult education


asses


which required a minimum age of


twenty-one.


Thus,


the teenage mothers were totally denied any educational


opportunity


for several


years.


exas


Court of Civil Appeal


invalidated the school


board policy and held that the students had a right


to an education furnished by th


state because they were of th


age for


which the state


upplied fund


for such purposes


A Missi


ssippi


federal


district court invalidated a


school


board


policy which denied school


admission to unwed moth


ers.


The court noted


the importance of education and ruled that students could not be excluded


from school


solely because they were unwed mothers, unless at a fair


hearing of the


school


board it was


hown that the students were so


lacking


in moral


character that "their presence in


school will


taint the educa-


tion of others."94


Similarly, a federal


district court in Alabama h


that the


school


board's reasons for


excluding pregnant students from school


1972 the Fifth Circuit Court of Appeal


upheld mandatory mater-


nity le
Comm'n,


!ave two month


459 F


Pnnllf int hnn1


2d
Rd


before delivery in


(5th Cir.


A7A F


1972).


9H 1Q0 (lth rir


hattman v.
also Cohen


Texas Employment
v. Chesterfield


1Q794


92i
In










were insufficient to deny the plaintiff's constitutional


right to obtain


an education.95


In the


leading deci


asserting that pregnant students must be


treated the same


as other students, Ordway v.


Hargraves,


Massachusetts


district court held that school


authority


could not


exclude


a pregnant,


unmarried student from attending regular high school


official


asses.


had proposed that Miss Ordway be allowed to use all


hool


school


facility


attend school


functions,


participate in senior activities,


and receive assistance from teachers in completing assignments.


However,


he was not to attend school


during regular


school


hours.


ince the


school


authorities were unable to demonstrate any educational


purpose or medical


reasons for this special


treatment,


the court held that Miss Ordway had


the right to attend


asses


with other children.


The court explicitly


stated:


It would


eem beyond argument that the right to receive a


public education i


Consequently,


a basic personal


the burden of


right or


justifying any


liberty.


school


rule or


regulation limiting or terminating that right is on the
school authorities.97 [emphasis added]


Denial of School Attendance in Student Discipline


Cases


The collision of th


police


power of the


tate with due process guar-


antees has also occurred in


cases


involving student suspension and expul


sion.


Traditionally, courts exercised limited review of


school


regulations


Snr


--









and disciplinary procedures, and students were seldom successful in

challenging regulation of their conduct.

In 1923 the Arkansas Supreme Court was called upon to review the


reasonableness of a school


rule forbidding students to wear transparent


hosiery,

Sellmeyer


low necked dresses, fa

, the court upheld the


ce paint, or cosmetics


school


In Pugsley v.


regulation and sanctioned the


expulsion from school


of an


18-year-old girl who insisted on wearing tal-


cum powder on her face.98


In Mississ


ippi, a regulation of a resident


agricultural


high school wa


upheld which sanctioned disciplinary measures


against student


who failed to wear a specified uniform at


school


and when


visiting public places within five miles of the


school


, even on Saturdays


undays.99


Massachusetts


Also, a school

1923 which e>


rule was upheld by the


cloudedd pupils from school


supreme Court of

because they were


found to have head li


The same year a female


Michigan student was


suspended for smoking and riding in a car with a young man,


and in


1931,

metal


a male


student in North Dakota was suspended for refusing to remove


leats from his sh


oes.


According to Yudof,


there were several


reasons for judi


hesitancy


to interfere with the administrative authority of school


off i


in these


early


cases,


First


tatutory provision


often granted local


school


boards


wide discretion in determining school


and regulations, so the courts


were not to "supercede the judgment of


elected offi


long


as the










discretion was exercised in good

exercise of power by the school


Secondly, any reasonable


authorities was usually upheld by the


courts, so the burden of proving that a particular rule was arbitrary


or capricious wa


clearly on the student.


Also, school


attendance was


thought to be a "privilege bestowed by the state," so the state could


attach whatever conditions it pleased.


Finally,


since


school authorities


were acting in place of the parents for a certain portion of the day,


they were entitled to the


same right


as parents to regulate the


children


conduct


Courts have made a quantum leap from the posture in thes


early


cases to the active protection of students


' rights espoused in


Tinker v.


Des Moines:


"Students in


school


as well


as out of school


'person


under our Constitution


They are po


assessed


of fundamental


rights whi


state must respect. "104


In Pugsley and similar


cases


during the


first third of the century,


the courts did not choose to apply the first


and fourteenth amendments and generally abdicated jurisdiction over the


internal


operation


of the school


Later the reasonablel


relationship"


test wa


employed by courts to evaluate school


policies, but this still


placed the burden of proof on the party attacking the action of school


authorities.


However


with


Tinker


a new era of students


' rights


. Yodof,
(1974).


"Student Discipline in


Texas Schools


& Educ.


103M
223


-nfl









has emerged, and now stricter judicial


scrutiny is being given to


actions of school officials.


Thus courts are


looking closely at the


extent to which the infringement is confined to the "legitimate public

interest to be served."107


The first


case


to delineate specific procedural


requirements for


students prior to


expul


ion or


lengthy suspension was Dixon v. Alabama,


a higher education c


ase.


Since Dixon referred


specifically to college


students who voluntarily were in

stricter standards of procedural


it could be presumed that even


due process would be required to pro-


tect the rights of students in public educational


institutions


since


they are compelled to attend


In Dixon,


the Fifth Circuit Court of


Appeal


declared that it "requires no argument to demonstrate that educa-


tion i


vital and,


indeed


basi


to civilized society."108


The appellate


court also emphasized that if the plaintiffs were denied


efficient


education,


enjoy


duti


they "would not be abl


life to the fullest, or to fulfill


and responsibilities of good


to earn an adequate


as completely


citizens.


livelihood,


as possible


,"109


The court in Dixon establi


hed the following requirementsfor pro-


cedural due process


prior to the expulsion of a


student for misconduct


First,


student


should receive written noti


of the charges against


him.


Also


, the


student i


entitled to a fair hearing,


"which gives the


Board or the administrative authorities of the college


an opportunity to










hear both sides in considerable


detail.


The specific circumstances


of each case


should determine the exact nature of the hearing, but the


student should at


least be given the names of the witnesses


against him


"and an oral


testifies.


or written report of the facts to which each witness

The student should have the opportunity to present hi


own defense against the charges


, including witnesses


in his behalf


Finally, a report of the proceedings

made and be available to the student


, findings, and results should be
110


In Madera v.


Board of Education


cond Circuit Court of


Appeal


held that students must be afforded procedural


process before


expulsion or removal


from the regular


school


program.


The court stated


that a guidance conference did not have to meet all


aspects of due pro-


cess


since it was not convened to make a final


determination concerning


the student.


Similarly,


in Slogin v.


Kaufman


the Seventh Circuit


Court of Appeals upheld the district court'


are facing expulsion must have th


ruling that


students who


opportunity to present their


case


an impartial


tribunal.


The district judg


presented the following


rationale for this


decision:


take notice


a period of time
obtaining academic
be, and often is
monetary fine or


criminal


proceeding


that in the present day,


substantial


suspension for


enough to prevent one from


redit for a particular term may well


in fact, a more


severe


sanction than a


confinement imposed by a court in a
g.113


a -


. I I -- -


__









In Breen v.


Kahl, a district court in Wisconsin invalidated student


suspensions based on the board's grooming policy, and the federal judge

made the following remarks concerning the importance of education:


I find that to deny a
grade male and a seventeen


ixteen-year-old


seventh


ear-old twelfth grade male


access


to a public


high


school


upon each of them irreparable


law i


notice of


adequate.


I mak


ocial, economic


in Wisconsin is to inflict
injury for which no remedy


e this finding by taking judicial
, and psychological value and


importance today of receiving a public education through
twelfth grade.1l4


The court also emphasized that when a school


board expel


a student,


is undertaking to apply the terrible organized force of the state, just


as surely


as it i


applied by the police,


the courts,


the prison warden


or the militia."115


1969 a federal district court in Michigan declared "that a record


of expul


ion from high school


constitutes a


lifetime stigma


"116


court


tressed that when such "drastic action"


is contemplated, school


officials must at


least provide the student the opportunity to plead his


case prior to the actual


expul


ion.


similarly,


in Givens v.


Poe,


the federal district court in North Carolina recognized that suspension or


expul


ion "deprives a


student of important rights and opportunities" and


explicitly stated that due process requires a hearing prior to "expul


114296 F.


Cir.


Supp.


1969), cert.


denied


115Id., 296 F.


, 704 (W.D


Wis.
937 (


1969)
1970).


aff'd 419 F. 2d 1034


(7th


. 707


t-.r.Dntnnn fl..l 4n C n C^^inn


1RQR I (F? f n


'3H C; c unn


* ,I J I ,,










or prolonged suspension from school.


"118


1972,


the Fifth Circuit


Appellate Court ruled that if students were suspended without proper


procedures, school


records had to be expunged of any reference to the


unlawful


suspensions.


The federal


trict court in New Hampshire used substantive due


process


school


grounds to invalidate the expul


intoxicated


sion of a student who arrived at


court concluded that the student would suffer


"psychological

claimed: "No


and mental


authority i


harm" from the expul


needed for the fundamental


ion and further pro-


American principal


that a public education through high


school


a basi


right of all


citizen


"120


similarly,


1974


, the Fifth Circuit Court of Appeals


held that serious disciplinary penaliti


could violate the "commands of


the fourteenth amendment."


Judg


Godbold, writing for appellate court


in Lee v. Macon County Board of Education, noted the personal


injury


resulting from


school


expulsion:


A sentence of banishment from th


insofar a


extreme penalty,


the institution ha


the ultimate puni


creasingly technological


school
ping a
life s


In Vail


local


educational


system


power to act,


hment.


society getting at


education is almost necessary for sur


child of


access


to educational


opF


sentence to second-rate citizenship.


In our in-
least a high
vival. Strip-


)ortunitv i
121


Board of Education of the Portsmouth School


District,


plaintiff high school


students had been repeatedly suspended for


'defiant


118346 F


Supp.


202,


in nrnnoacc fnr nwar fthro


03-205 (W.D.N.C
u/acvc hbfnro fh


litigation was


a crhnnl


hnard douicaA


C e1-









behavior'


Plaintiffs contended that the suspensions violated their


fundamental


right "to acquire useful


knowledge" based on the Supreme


Court'


ruling in Meyer v.


Nebraska.


They further alleged that school


attendance wa


constitutional


a protected interest because it was


right."1


"a state-granted


In balancing the asserted interests of the


school


official


in maintaining orderly


conduct and a


"moral


atmosphere"


against the interests of the students,


New Hampshire district


court


concluded that suspensions exceeding fiv


days would require a prior


hearing and other


elements of procedural


due process


However


suspensions


process


lasting


requires at


than five da


east an informal


the court stated that "due


administrative consultation" so


students can have the opportunity to plead their


case.


1974,


the Fifth Circuit Court of Appeal


definitively ruled that


a school


board regulation violated substantive due process guarantees


because it allowed students to be suspended from


school


because of the


of their parents.


The court stressed that since the children were


punished without being personally guilty,


is involved and substantive due process


"a cardinal


is applicable.


notion of liberty
"124 The court


concluded that the state demonstrated no compelling interest for its


encroachment upon the


liberty of the plaintiff


students.


In several


cases


involving


student


suspension and expul


ion,


courts have


taken the opportunity to


status of the individual


elaborate on the constitutional


s right to an education.


In Alexander v.










Thompson, a federal district court in California held that public


education is a


legal


right protected by equal


protection and due pro-


cess


guarantees of the Constitution and that


at minimum,


the denial


of public education cannot be arbitrary.


Likewi


In Crews v.


Clon


case


involving a school


grooming regulation,


the Seventh Cir-


cuit Court of Appeals held that the "state does


not possess an absolute


' right arbitrarily to refuse


opportunities such


as education in public


school


"126


In a Fifth Circuit student discipline


case


, the appellate


court recognized that education is a "fundamental


right of every


citizen"


and "plays an extremely significant role"


Although general


in modern society.


agreement had been reached that students were en-


titled to some degree of procedural


due process prior to expul


ion from


public


school


until


the recent Supreme Court ruling in Goss v.


Lopez,


many questions remained concerning the nature of di


sciplinary actions


which would require procedural


safeguards.


Standards across the country


have varied greatly concerning th


length of suspension permitted with-


out a hearing and the types of hearings employed


Williams,


In Black


the Fifth Circuit Appellate Court held that a ten-day


students v.


suspension


was of


substantial duration to require a due process hearing.


125313 F
126432 F


Supp.


1389


2d 1259,


(C.D


(7th Cir.


1970)


1970)


127Williams v.


Woods v.


Wright, 334 F.


4181


* -


128U.S.L.W.
-In


Dade County


2d 369 (5th Cir.


(U.S.


, 1975)


1964)


302 (5th Cir.


1971).


text accompanying notes


r Plln3 -' I tf ri *I I V *


9 In









Sullivan v.


Houston Independent School


District,


the T


exas


federal


dis-


trick court held that the school


board could not suspend any student for


longer than three day


without notice and a hearing.


However,


subsequent


litigation,


testing the enforcement of this policy,


Fifth Circuit Court of Appeal


process


ruled that under some circumstances due


was not required for suspensions of more than three days.


district court in Washington D.C.


adopted a stricter


standard and ruled


that a hearing must be held prior to the


suspension of any student for


a period in


excess


of two day


One district court has even ruled


that all


student suspension


, regard


of length,


must be preceded by


an evidentiary hearing.1


In contrast, however,


the district


ourt in


Colorado has upheld suspensions without notice or hearing


lasting up to


days.


With such diversity in standards,


it ha


been very difficult


for students to ascertain the perimeters of their rights to procedural


due process.


No doubt,


these circumstances encouraged the


supreme Court


finally to agree to deliver an opinion in a


case


involving


hort-term


student suspensions.


Goss v.


Lopez,


handed down by the


supreme Court on January


, 1975,


dealt with procedural


requirements necessary prior to student suspensions


of less than ten days


case


challenged an Ohio statute which


1071


130307 F
131333 F
(5th Cir
132Mills


(S.D


. Supp. 1149 (S.D
. 1973).


. Bd


of Educ.


.Tex
. Tex


348 F


. 1969)
. 1970)


Supp.


rev'd in part, 475 F


66 (1972)


S~I -


I-* .a I S. t. .. f I R I 'i


1 "- -.


_


C ftI


A


A


If. If 11









authorized school


boards to suspend students for disciplinary reasons


for up to ten days without notice of


charges or prior hearing.


Plain-


tiff students, who had been suspended during a period of racial


conflict


in the Columbus school


attacked the statute a


unconstitutional


under


fourteenth amendment due process guarantees.


The Supreme Court split


five to four in striking down the statute.


Justice White


, delivering


the opinion of the Court


, stated that the students were unconstitu-


tionally deprived of their property right to education without pro-


cedural


safeguards.


In defining the students'


protected property


interest in education,


the Court relied on the fact that state statutes


and regulations concerning education entitled citizens to expect certain


benefits.


Thus,


the Court concluded that the students had "legitimate


claims of entitlement to a public education" protected by the du


cess


pro-


clause of the fourteenth amendment.137


The Supreme Court further held that the students had a constitu-


tionally protected


'liberty interest'


in maintaining their reputation


free of


tigma, whi


h the suspensions without fair procedures violated.138


Although the state asserted that short-term suspensions were minor pen-


alties


, the Supreme Court agreed with the


lower court's reasoning that


"[i]f education is a protected liberty when


expul


sion is involved


then


it remains a


liberty when suspension occurs."139
liberty when suspension occurs.


136Id., 43 U


.L.W.


4182-84.


text accompanying note 71


supra.


137T at










In discussing the type of procedures required for


pensions,


hort-term sus-


the Court announced that the student should be given notice of


the charges, an explanation of the evidence against him, and an opportunity


to plead his


case:


"The


[due process]


clause requires at


least these


rudimentary precautions against unfair or mistaken findings of miscon-


duct and arbitrary exclusion from school.


"140


The Court


topped short'


of requiring counsel


for the student and a full-dress hearing with wit-


nesses, and thu

required. The

addressed solel


left some uncertainties


Court did emphasis

y to suspensions


as to the type of informal


however,


asting


hearing


that its decision was


less than ten days and that


longer


suspension


or expul


ions "may require more formal


procedures."141


analysis


of litigation involving procedural


requirements for


student disciplinary action has important implications for establishing


a constitutional


right to an education.


Since students have a state-


created property right to school


attendance, guaranteed by the due process


14043 U


.L.W


. 4183.


141Id. at 4187. Another student discipline case recently handed dow
by the Supreme Court involved the standard of proof necessary in order to


suspend a student.


It also raised th


bers who participated in unlawful


sonally for damages.


student


ssue


of whether school


board mem-


n


suspensions could be sued per-


The Eighth Circuit Court of Appeal


evidence presented against the students wa


pension and that th


it could be


Strickland v. In
186 (8th Cir. 19
935 (1974). On
four margin that


held that the


insufficient to warrant sus-


students could recover damages from board members if


hown that the board members failed to act in good faith.


low,
73),


348 F.
cert.


February
school


Supp. 244 (W.D.
granted sub nom.


25, 1975, th
board members


Ark.


supreme
could be


1972),


Wood v.


rev'd,


Strickland


485 F.
, 416 U


Court decided by a fiv


sued for damages


arted without anod faith and disreaarded the students'


cl earl v


if they
estab-









clause


fourteenth


amendment,


procedural


safeguard


quired


other


school


situations


addition


those


involving


stu-


dent


sciplin


example


erroneous


placement


pupil


nstruc-


tional


program


or denial


appropriate


ucational


opportunity


handi


apped


or other


asses


children


without


fair


procedures


declared


constitutionally


invalid


curre


emphas


on proce


dural


process


student


confirm


importance


educational


interest


itself.


After


process


evoked


only


when


governmental


action


threatens


deny


mental


individual


liberty


life


interest


' in


or property.


protecting


citi


reputation


'funda-


protect


property


interest


attending


school


are being


asserted


growing


body


national


litigation


which


hold


promise


judicially


required


reform


both


equality


quality


public


educational


opportunities.


Handicapped


Children


Right


Education


right


every


child


rece


minimum


educational


fits


furni


state


hildr


special


been


ation.


asse


More


rted


than


cases


seven


involving


million


handi


children


apped


cur-


rently


require


special


educational


servi


been


estimated


that


nearly


one million


children


either


excluded


from


public


educa-


tion


or d


enied


an e


ucation


uitabl


need


2 Th


Pres


Commi


ssion


on Mental


tardation


reported


n 1969


that


across


country,


S


I









as many


as 60 percent of school


age retarded children probably were not


receiving an education.


According to Dimond,


the constitutional


basi


for the claim that


every child has a right to at


least a minimum public education rests on


both due process and equal


protection grounds.


The exclusion of any


child from public schooling violates equal


state make


protection mandates when the


uch an opportunity available to other children.


the individual


protected property interest in attending public


school


guaranteed by the due process


lause,


violated when school


attendance


is denied to these children.


In addition, unfair placement pro-


cedures which stigmiti


the child violate


'liberty


' guarantees of the


fourteenth amendment.


rational


These


used in attacking scho


last two grounds are similar to the

ol practices concerning student sus-


pension and expulsion for di


plinary reasons.


The Supreme Court ruling in Rodriguez can be used to support the


contention that the state is required to provide at


least some education


for all


school age


children


In upholding the validity of Texa


' public


school


financing plan,


Justi


Powell


expl i


itly stated that the Court


was not dealing with the fundamentality of education in the context of


its total denial


Even if it were conceded that some identifiable
quantum of education is a constitutionally protected
prerequisite to the exercise of either right [voting


1A2










and free speech], we have no indication that the present


levels of educational


expenditure in


education that falls short.
argument might have if a Stat
occasioned an absolute denial


to any of its


children,


Texas provide an


Whatever merit appellees'
e's financing system


of educational


opportunities


that argument provides no basi


for finding an interference with fundamental
where only relative differences in spending


involved and where


charge


--as


fairly could be


rights
levels


is true in the present case--no
made that the system fails to


provide each child with an opportunity to acquire the


basi


rights
politic


minimal


skills n


ecessa


of speech and of full
1 nanroc cs 148


U I


ry for the enjoyment of the
participation in the


The Rodriguez majority also noted that in other


cases


where strict


judicial


scrutiny had been applied,


legislation was involved which


"deprived,


infringed, or interfered" with the exercise of some fundamental


right or


liberty.


However


exas


system of school


financing did not


serve to deny education to anyone, but was


"implemented in an effort to


extend public education and to improve its quality."149


The fact that


the benefits were distributed unevenly did not convince the Court that


the financing plan was unconstitutional.


Hence,


the Supreme Court at


least inferred that the total


denial


of educational


opportunity


to some


citizens might have been viewed


as deprivation of a fundamental


right or


liberty


In Pennsylvania, a class action on behalf of all


retarded persons


between the ages of six and twenty-one who were excluded from public


education was brought as a civil


rights action under the Civil


Rights


pl .\JG33









Act of 1871.


In a consent agreement,


the three-judge panel


held


that no such child could be denied admission to a public


or have his educational


of law.151


school


status changed without procedural


The parties agreed with the


program


process


expert testimony that all


mentally retarded persons were capabi


of benefiting to some degree


from an educational


program.


Thus


state was declared obligated


to place each "mentally retarded child i

education and training appropriate to th


n a free, public program of


child's capacity."152


The agreement in Pennsylvania Association For Retarded Children v.


Commonwealth included th


following points:


Established a


"zero reject"


system of free public education


and training for mentally retarded persons between the ages of six and

twenty-one years.


Provided that no child's educational


changed without notice


assignment could be


to the parents or guardians and the opportunity


for a hearing regarding the appropriateness


of the recommended change.


Established that every retarded child could benefit from an


educational


program regardless of the traditional


label


based on intel-


ligence quotients that had been applied to the child.


15042 U


videos:


Section


1981,


1983.


Section


1983 of Title 42 pro-


"Every person who, under color of any statute, ordinance,


regulation, custom,


causes


to be


or usage, of any State or


Territory,


subjects, or


subjected, any citizen of the United States or other person









Established that the mental


apply as a criterion for


apply to children entering special


age of a 5-year-old could only


children entering first grade and could not


lasses


Compelled parents to place retarded children between the ages


of eight and


eventeen in a


school


program.


Permitted parents to enroll


a mentally retarded child in


school


prior to age eight and to keep him in school


beyond the age of seventeen.


Made public preschool


children prior to age


programs availabi


to mentally retarded


ix wherever there were public preschool


pro-


grams for 'normal


' children.


Expanded the term 'brain damaged'


to include all mentally re-


tarded children.


Declared that a mentally retarded child could receive a mini-


mum of fiv


hours per week of homebound instruction and provided that


homebound instruction was considered th


least desirable


alternative


to a classroom situation and must be reevaluated not


than every


three months.


Required the retarded child to be placed in a public program


of education and training appropriate to th


tablished that placement in a regular


child'


capacity and


was preferable


to a special


ass,


and placement in a special


was preferable to any other type


of program.

11. Required the Department of Education within 30 days of the










12. Required the Department of Education to submit a plan for

the education and training of all mentally retarded persons by


February


, 1972 and to have implemented the plan by September


1972


A Washington, D.C


case


Mill


v. Board of Education


followed


the principal


established in the Penn


1vania agreement, and expanded


the right to an individually appropriate public


education beyond the


mentally retarded,


to all


other children alleged to be suffering from


mental, behavioral, emotional, or physical

Mills ruling was based on a constitutional


deficiencies.


issue,


since


it established stronger


legal


precedent than the consent agreement issued in Pennsylvania.


Judge Waddy ruled in Mills that the plaintiffs had a constitutional


right to an education based on the due process


lause of the fifth


amendment.


tated for the


ourt that not only were these


students


denied an equal


state


supported education while such opportunities were


provided to other children, but also some students were totally


excluded,


suspended, or reassigned to


special


asses


without procedural


safe-


guards.


The court definitive


ly held:


[N]o child eligible for a publicly
in the District of Columbia public


excluded from a regular public


school


supported education


school


hall


assignment


153Information Sheet distributed by Pennsylvania Association for


Retarded Children


ited in R.


White,


"Right to Education Civil Action


1


I,










such child is provided


educational


services suited to


. adequate alternative56
the child's needs. .


The court in Mills also stressed that the public interest in con-


serving funds could not justify the denial


of education to a certain


class


of students.


If sufficient funds were not available to finance


the needed


services and programs,


then the court reasoned that


available "fund


must be expended equitably in such manner that no child


is entirely excluded from a publicly


supported education."


Judge


Waddy also


tated that the inadequaci


of a state


tern of public


schools, whether caused by insufficient funding or administrative in-


effi


iency,


"certainly cannot be permitted to bear more heavily on the


'exceptional'


or handicapped child than on the


'normal


' child."158


Litigation Involving th


Right to Appropriate Placement


It cannot be contested that the total


denial


of public


educational


opportunities


to certain children can result in grave injury to the


individual


involved.


In addition, several


recent


cases


have


claimed


injury to the student due to erroneou


placement in instructional


pro-


grams that deny the pupil


educational


benefits to whi


entitled.


The compulsory nature of


cooling combined with the individual


'inherent


liberty'


tigma and his


to remain free from arbitrary governmentally imposed


'protected property interest'


in education forms the


basis for the individual


to assert a right to correct diagnosis and place-


ment in instructional


programs that offer him at


least minimal


educational


L~CJ J-~









Inadequate Placement Procedures as a Due Process Violation


The increasing diversity among


students in intelligence, back-


ground, and ability has encouraged school


authorities to


assify


students for placement in special


instructional


programs.


Most school


districts throughout the United States use


tandardized tests for pi


ace-


ment purposes at


least once from grades one through twelve,159


various other types of tests also are used to make such determinations.


Several


recent


cases


have alleged that children were being placed


erroneously in special


classes


or ability tracks


In Hobson v.


Hansen


the federal


district court invalidated the track system used in Wash-


inton, D.C.


, and agreed with th


plaintiffs that the envisioned flexi-


ability of the system was not evident since intertract mobility was


tremely


low.


Judge Wright announced that the court should guarantee


the adherence


to fair procedures in


assigning students to various pro-


grams, but that it was not the rol


of program suitabi


of the court to determine the type


for each child.160


In California, a group of black pupils who had been placed in


educable mentally retarded classes were


hown upon retesting to have


scores of 17 to


points above the


scores


they received when tested


school


psychol ogi sts.


In fact, children with normal


intelligence


were being placed and educated


as mentally retarded students.


The federal


district court concurred with the allegations that the students had been


rn










wrongly placed in classes for the mentally retarded


as a result of


culturally biased tests.


Furthermore,


erroneous placement doomed the


public dependency.


the plaintiffs claimed that


children to a


In a similar Boston case


indigent, and Spanish-speaking


fetime of illiteracy and

, 50 percent of the black,


children who had been placed in


special


asses


were found to be normal


upon reexamination by sound methods of


diagnosis


Tracking students or


turned, or


labeling them as retarded


low has been attacked in the courts


on the child in violation of the


'liberty


emotionally dis-


as creating a stigma


' guarantees of the due pro-


cess


clause


The Supreme Court ruling in Wisconsin v.


Constantineau


can be used to supply the


legal


precedent that procedural


fairness


necessary involving any state action which affixes a stigma on an in-


dividual.


In Constantineau,


the poli


posted a notice in all


retail


liquor establishments denying the sal


of liquor to Ms.


Constantineau


because of her


excess


ve drinking.


Constantineau was not given


notice or prior hearing concerning the police action.


Although the


at 13


infra, for a
163Stewart v


15. See Chapter
discussion of thi


. Phillips,


text accompanying notes


topic and equal


Civil Action No.


336-


protection mandates.


70-1199-F


(D. Mass.,


filed Oct.


1970)


quired by Feb.


(motion to dismi


, 1971).


A. Ab


denied and


eson,


ubmi


sion of plan re-


"A Continuing Summary of Pending


and Completed Litigation Regarding th
Number 7," Eric Reports, ED 085 930,


Education of Handicapped Children


November,


for a discussion


nf similar


Sit ina inn in nrnn oc


in nther cfatac


al n_ P


,-I-


FriAdman


162Id


.









facts of this case did not involve a


school


situation,


the rationale


is applicable:


The only i


ssue


present here i


w


of characterization given a person by


whether the
'posting'


label
, though


a mark of illness


to some,


to other


or badge of disgrace that procedural


uch a stigma


due pro


quires notice and an opportunity to be heard.


cess


We agree


with the district court that the private interest is


such that thQse requirements of procedural
must be met.'00


In both the Pennsylvania and Washington, D.


due process

C. cases involving re-


tarded children,


the courts determined that no


hild should be


labeled


or recommended for special


asses


without a


"constitutionally adequate


prior hearing and periodic review of the child'


tatus, progress and


the adequacy of any educational


alternatives.


,1 67


In holding that no


child could be suspended from public


education classes for more than two


days without a hearing, Judge Waddy further elaborated in Mills:


Not only are plaintiffs and their class


publicly supported


but many are s


denied the


education to which they are entitled,


suspended or expelled from regular schooling


or specialized instruction or reassigned without any prior
hearing and are given no periodic review thereafter. Due
process of law requires a hearing prior to exclusion,
termination or classification into a special program.168


It can be concluded that the student


protected interest in educa-


tion require


procedural


safeguard


prior to hi


assignment to


special


programs and further requires regular reevaluation of the student's


status.


Some courts have held that students'


records must be expunged


of statements made concerning


student placement in the absence of fair










procedures.


education'


Although procedural


, they can focu


safeguards cannot insure


public and professional


'quality


attention on the


entire system of delivering educational


services.


Dimond has remarked


that this "self-analysis forced upon public policy makers,


families, and students by procedural


teachers


fairness in the school classifi-


cation process


insures that school


will


begin to attend precisely to


real


rather than imagined needs


,"170


The Right to Suitable Instructional


Programs


If the


line of reasoning i


followed that the student's


'protected


property interest'


in education precludes school


authorities from


totally denying an education to the student, and the student's


liberty interest'


'fundamen-


in remaining free from arbitrary stigma requires


fair procedures


in placing the student,


then it can be deduced that the


student also has a constitutionally protected right to expect at


least


minimum educational


benefits to accrue from the


lengthy intervention of


schooling in his


life.


cases


enforcing the constitutional


right of


civilly committed mental


patients to receive adequate treatment can be


used as a


legal basis for thi


claim


as both civil


commitment and


compulsory education

In Martarella v


limit th

. Kelly,


e


liberty of the individual.


the New York district court ruled that New


York City youth


held in


long-term detention had a right to effective


treatment.


Judge Lasker presented the following rational









There


can be


general
whether


y, for
based


no doubt


those
on due


Eighth Amendment,


now been


deral


recogni
courts.


that
held
proc
or a


in
ess


e right to
noncriminal


, equal


prot


combination


Supreme


ourt


Court


of New


treatment,
custody


section or
them) has
the lower


York.


McClung


claimed


that


right


treatm


quid


involuntary


ivil


commitment.


further


contended:


only


there


right


treatment,


that


right


suffi


ient


substantive


force


allow


court


inquire


into


adequacy


treatment


analogy


can be


drawn


tween


ivilly


committed


patient


student


compelled


attend


school


patient


right


appropriate


treatment


tify


involun-


tary


confinement,


can be


argued


that


public


school


student


entitled


an appropriate


educational


experience


order


tify


compulsory


(perhaps


involuntary)


ndance.


Judge


Waddy,


Mills,


erved


school


that


under


"requiring


pain


parents


criminal


that


penalties


their


presupposes


children


that


attend


an educational


opportunity will


available


children.


"173


Wyatt


v. S


kney,


defendant


ought


prove


that


treatment


involuntary

definition


patient


mental


resolution


institution


court.


was not


an i


However


ssue


capable


plaintiffs


found


quite


standard


poss


develop


" and


children


"judi


court


young


cially


that


adults


was s


ascertainable


education


specifically


united


included


manag


need


as one o


"Not









minimum constitutional


tally ill.


standard


for adequate treatment of the men-


The court concluded that the educational


program must


be compatiblei


with the patient


mental


condition and hi


treatment


program


and otherwise be in the patient


s best interest."175


The district court in Wyatt al


of the hospital


recognized the punitive nature


ivilly committed patients if effective treatment


lacking


Adequate treatment


constitutionally required,


reasoned


the court,


because


in its absence,


"the hospital


is transformed into


a penitentiary. "176


Although it i


not the purpose of this study to


compare public schools to prisons


the analogy can be drawn that


when certain students are offered little more than custodial


care,


even though their attendance i


required,


school


experience can


become punitive and harmful


in nature.


In Rouse v


. Cameron


, the Washington, D.C


Circuit Court commented


concerning the treatment that must be provided for patients:


The hospital


will


cure or improve


need not


bona fide effort to do so.


pital


to show that initial


are made into the needs


how that th


treatment


>ut only that there is a
This requires the hos-
and periodic inquiries
Id conditions of the patient


with a view to providing suitable treatment for him,
kA L* 4 4L,4 |- *A A jj- +- 4-- r ni nrlA 1


d na t h a t t h e p ro g ram prov i ded s su i te o


IneCU .


The court also noted that the


lack of finality in scientific


judgment


"cannot relieve the court of its duty to render an informed decision."179


174325 F. Supp.
175Id.


, 785-86 (M.D


Ala.


1971)
176Id.


at 784.










In a Florida case, Donaldson v.


O'Conner


, for the first time a


former mentally ill


tionally deprived of hi


person was permitted to sue for being unconstitu-


liberty without receiving treatment.


court held for th


plaintiff and a


ssess


ed damages personally against


the superintendent of the hospital


and his treating physi


ian.


instructing the jury,


the court stated


person who i


a mental


hospital


involuntarily


does hav


to receive such individual


civilly committed to


a constitutional


treatment a


will


right
give him


a realistic opportunity tg be cured or to improve hi
t hav mtl n+tl 0 M


UI IICI IIImlll, I


Since at


UIIU I oIUn.


least some courts have ascertained manageable standards


to use in evaluating the adequacy of treatment for civilly committed


patients,


it appears conceivable that educators could develop


similar criteria for determining the adequacy of public educational


programs for pupil


Also, since


'right to appropriate treatment'


has been elevated to constitutional


status


by several


courts


per-


haps the judiciary will


follow


uit by requiring appropriate instructional


programs for all


students attending public school


Although students


are not yet


claiming an unconstitutional


denial


of their


liberty due to


180Civil Action No
Friedman, supra note 15
litigation.


. 1693


(E.D


Fla., Nov.


for further discu


ssion 4


, 1972). See P.
of 'right to treatment'


349 F.


Supp.


181t should be noted that in Burnham v.


1335 (N.D.


rejected the Wyatt rational
right to treatment. The co


1972)


Dep't of Public Health,


a federal district


ourt in Georgia


e and held that there was no constitutional
,urt further concluded that even if there were









compulsory schooling which does not provide adequate benefits to the


learner


, some students are asserting their right to an educational


program suited to their needs.


In a recent


case,


Chinese


students


claimed that the San Francisco


public


school


program fail


d to provide for the needs of the non-


Engli


h-speaking students in violation of the equal


of the Constitution and Section 601


of the Civil


protection clau


Rights Act of 1964.


Both the district court and the Ninth Circuit Court of Appeals rejected


the plaintiff


laim.


The court of appeal


recognized that each student


brought to


school


different advantages and disadvantages "caused in part


by social


economic, and cultural


background."


However,


the court


reasoned that simply becau

come by providing special


some of these


disadvantages could be over-


programs for the students,


the provision of


such services by the school

The appellate court further

However commendabi
might be for the School


remedial


educational


board was not constitutionally required.


laborated:

and socially desirable it
District to provide special


programs to disadvantaged


students in those areas, or to provide better clothing
or food to enable them to more easily adjust themselves


to their educational


tional


or s


tatutory basi


that these things be done.


However,


Appeal


environment, we find no constitu-


upon which we can mandate
184


the Supreme Court reversed the Ninth Circuit Court of


and held that the inadequate programs violated Section 601


the Civil


Rights Act of 1964.


The Court


1 early stated:


"Under these


state-imposed standards there is not equality of treatment merely by









providing students with the same facilities,


text books,


teachers,


and curriculum.


"1185


The Court al


acknowledged that "ba


English


kill


are at the very core of what these public school


teach," and that students "who do not understand English are effec-


tively foreclosed from any meaningful


education."186


The Court con-


cluded that requiring students to acquire English skill


on their own


before they can hope to make any progress


in school


"is to make a


mockery of public education."187


This case raised


several


relevant i


sues concerning the individual's


right to an education.


It went beyond th


mere right of the child to


be in school and addressed the suitability of the program to the needs


of the child.


light of this


case,


provision of little more than


custodial


care for some students (e.g., handicapped or non-English-


speaking children), which offers no minimal


benefit to the individual,


would be declared unacceptable


inferred that because education i


by the courts.


state-impose


The Supreme Court also

d, the program provided


must be relevant to the needs of the student in order to meet consti-

tutional mandates.

Evolving Due Process Standard of Review


A constant problem facing the Supreme Court has been the


search for


a constitutional

develop practical


test which would leave


legislatures the flexibility to


solutions to their problems while at th


same time


allow judi


intervention when necessary to protect the individual










rights from arbitrary governmental


action.


The Court has used both


due process


and equal


protection review in its attempt to balance


individual


interest


and governmental


power, but it has found neither


doctrine to be totally


satisfactory.


Substantive due process review was used widely during the first


third of the twentieth century, but it fell


into disrepute because


its connection with protecting business


practi


from state


legis-


lation.


By the


1960s, equal


protection review generally had replaced


substantive due process


However


even in


litigation concerning individual


, the recent disenchantment with the pitfall


of equal


rights.


protection


standards of review189 has caused the Court to revive the use of due


process to invalidate discriminatory state


legislation


Nowak ha


asserted that the reason for the return to due process


has been the


Court


failure to delineate clear criteria for evaluating


legi


nation


under the equal


protection


lause.


The due process analysis


used during the


last few terms by the


Supreme Court involves


the unconstitutionality of state action which


creates


'irrebuttabl


presumptions'


about individual


or c


asses


individuals.


If the presumption i


neither necessarily nor universally


true and concerns the protected areas of life,


liberty or property,


188Lockner v


New York,


198 U


45 (1905)


due process and application of the Lockner doctrine,


Presumption
S II 1


as an Alternative to Strict Scrutiny:


I 1


-1 I1


For a di


scussion of


see "Irrebuttable
From Rodriguez to


i t i i dI*tta .. I 2 I ~i I I I 4 I 'JA I I


1 I 7Ar J \


A










the individual


is denied due process of law when he is given no oppor-


tunity to disprove the presumption.


This type of due process analysis


emphasis


the procedural


safeguard


guaranteed to the individual, and


thus attempts to avoid some of the hazard


due process


associated with substantive


review. 192


A brief analysis of several


cases


, where the Supreme Court has


chosen to employ the due process


'irrebuttabl


presumption'


doctrine


in preference to equal


protection,


salient to thi


study for at


least two reason


the current judicial


First,


it supplies a framework in which to view


attempts to protect individual


interests from


arbitrary governmental


interference.


Secondly,


it allows comparisons


to be made between interest

doctrine and educational in


protected by the


terests


supreme Court using this


, thus providing an indicator of the


future scope of due process anal


is in establishing a constitutional


right to education.


Therefore


state


legislation concerning education


creates


'irrebuttable presumption


' about certain groups of students,


supreme Court may find the state action invalid without applying


equal


protection guarantees.


Litigation Involving


'Irrebuttabi


Presumptions'


As early a


1965


, the Supreme Court invalidated Texas


legi


lation


which deprived all

tions on the assun


ervicemen of the opportunity to vote in state


option that they were not bona fide residents.


legislation was held unconstitutional


because it forbade "a soldier ever










to controvert the presumption of nonresidence."193


The Court thus re-


quired the state to


assess


each serviceman's claim to residency on an


individualized basi


As with several


other


cases


invalidating


legis-


lation under the


'irrebuttable presumption'


due process doctrine,


tatute in thi


case


was al


declared repugnant on equal


protection


grounds.


In Stanley v


. Illinois the Supreme Court held that unwed fathers


were entitled to a hearing concerning their competency to have custody


of their children.


194 T


irrebuttable presumption that all


unmarried


fathers were incompetent to raise their children violated du


process


procedural


guarantees.


Although the Court admitted that perhaps most


unmarried fathers were unsuitable


parents


it could not assume that all


unmarried fathers


would belong in thi


category


Furthermore,


Court held that the state'


interest in economy could not justify the


unconstitutional


denial


of fair procedures for determining whether any


specific unmarried father was fit to have custody of his child.


In Vlandis v.


Kline the Supreme Court used the due process


lause


to invalidate a Connecticut statute which barred college students from

becoming in-state residents for tuition purposes if they were nonresidents


prior to application for admission


The Court concluded that students


193Carrington v


19405 U


10Q


Rash


308 U.S.


, 96 (1965).


645 (197









who became bona fide residents of the state after enrollment were


unconstitutionally denied procedural


safeguard


to ascertain their


residency status:


[I]t is forbidden by the Due Pro


deny an individual


cess


Clause


the resident rates on th


basi


of a permanent and irrebuttable presumption of non-


residence, when that presumption


is not nec


essa


rily


or universally true in fact, and when the


reasonable


determinati


case


tate has


alternative means of making the crucial
on.197


of United States Department of Agriculture v. Murry in-


evolved th


constitutionality of a statute which denied food stamps to


any household containing a member over


claimed


years of age who had been


as a dependent child by a taxpayer of an ineligible household.


Justice Dougl


stated for th


Court that the statute


created an irre-


buttabi


presumption which wa


often contrary to actual


fact.


Thus,


the plaintiffs were unconstitutionally denied the opportunity to disprove


the presumption that hou


were


seholds containing


likely to defraud the government.


18-year-old tax dependents

It should be noted that in a


case


decided on the same day


as Murry,


the Supreme Court used the equal


protection clause


to invalidate a federal


law which denied food


tamps


to any household containing an individual


unrelated to any other member


of the household.200


Although Justice Marshall


found th


classifications


used in the


cases


to be quite similar


a majority of the Court chose


to apply different doctrines for anal


in the two


cases.









supreme Court also used due process to strike down the con-


stitutionality of school


to take maternity


leav


board rules which required pregnant teachers

without pay several months before term.202


Justi


Stewart


poke for the majority in Cleveland Board of Education


v. LaFleur that the regulations created an irrebuttable presumption


that all


pregnant teachers were unable


to work after a


certain point in


pregnancy.


Although the


lower courts had decided the case on equal


protection grounds,

marriage and family


03 the Supreme Court held that decisions concerning


life are included in the due process guarantee of


'liberty


Criti


ism of the


'Irrebuttabl


Presumption'


Doctrine


The Supreme Court'


'irrebuttabl


presumptions'


revival


of due process


review, clothed in


not occurred without criticism.


Justice


Rehnquist, dissenting in LaFleur,


called the irrebuttabi


presumption


analysis


a step backward to the days of "ad ho


judicial determination."204


claimed that thi


type of anal


could invalidate


laws prescribing


age limits for voting, drivers

and mandatory retirement.205


' licenses,


of alcohol i


beverages,


Although Justice Powell


joined in the opinion of the Court in


Vlandis and


occurred in the result in LaFI


, he indicated concern about


202Cleveland Bd


of Edu


LaF1


414 U


(1974)


n'n1


*








the implications of the


'irrebuttable presumption


doctrine for legis-


lative power to operate by classification:


a matter of logi


it is difficult to


see the terminus


of the road upon which the Court has embarked under the


banner of
neverthel


selectively,


else


'irrebuttable presumptions


uses


If the Court


'irrebuttable presumption'


the concept at root often will


masquerading as a due pro


thing el


In hi


of course


cess


the Equal


dissent in Vlandi


reasoning
e something


doctrine. That some,
Protection Clause. 06


Kline, Chief


Justice Burger also com-


pared


'irrebuttabl


presumption'


review to equal


protection and voiced


his fears concerning the Court's revival


of due process analysis.


asserting that the Court was


engraftingg" the close judicial


scrutiny


test onto due process review


, he stated:


The doctrinal difficult


of the Equal


Protection Clause


are indeed trying, but today the Court makes an uncharted


drift toward complications for th


parable


in scope and ser


countering in the equal


Future Direction


Due Process Clause com-


iousness with those we are en-
protection area.207


for Due Process Review


In its search for the proper role between judicial


intervention and


abstention,


the Supreme Court will


no doubt continue to


trictly scru-


tinize


tate action, whether it is via the equal


protection clause or


the due process clause.


Even though some members of the judiciary fear


'irrebuttable presumption


doctrine,


in view of the current


206Id.


at 6


207412 U.S.
v. Pasadena Indep
where Judge Noel


(Powell


, 462
school


(1973)
Dist.,


objected to the


concurring)


(Burger,
326 F. S


C.J
upp.


use of due


., dissenting)
550, 565 (S.D


cess


. See Press
. Tex. 1971),


in reviewing the


II i 1 1 1-










controversy over equal


protection standards,


it seems


likely that due


process


will


continue to be revived.


Although Justice Marshall


stated a preference for equal


protection analysis


the similarity of the two doctrines and


, he recently noted


suggested that the


elements of


fairness


'irrebuttabl


should not be


presumption


so rigidly


' approach,


lassified.208


with its empha


Actually


on invalidating


unsubstantiated assumptions about


similar reasoning to the emerging equal


lasses of individuals, contains


protection standard of review


which focuses on striking down discriminatory governmental


assifications


based on neutral


criteria


as a person


tatus at birth.


Kurland has remarked that. due process analysis


is preferable to


equal


protection review in areas such a


education, where an attempt is


being made to "establish minimum


standards that are worthy of our society


or the society to which we aspire."210


According to Kurland,


the courts


should be guaranteeing a minimum


level


of education for all


rather


than mandating equal


universal


education


substandard opportunities.


, especially if equalityt


He has further


y' could mean

suggested that if


such educational


standards were established


could be made according to need


the distribution of services


.e., preferential


treatment in some


cases


, instead of according to equality of treatment.211


Due to th


philosophical


plit on the


supreme Court,


it is difficult


to make predictions concerning the Court


future direction in using due