Civil Law

Some Basics

Civil laws derive from four main sources: (1) statutes written by a legislature, either a state legislature or the U.S. Congress; (2) regulations created by local, state, and federal agencies, such as the state department of education; (3) common law based on court interpretations of specific cases; and (4) state and the U.S. constitutions. All state laws and regulations are subordinate to their state's constitutions, and no law or regulation may contradict the U.S. Constitution. Every state constitution contains an education provision, while the U.S. Constitution does not.

The vast majority of litigation in education law comes from civil law. State laws mandating school attendance, general curriculum content, and disciplinary practices as well as similar district regulations are examples of civil law. State laws outlawing bilingual education are another example of civil law. Federal legislation, such as the No Child Left Behind Act and the Individuals with Disabilities Education Act, are examples of civil law at the national level. Court cases, such as Brown v. Board of Education of Topeka (1954) and Lau v. Nichols (1954), are civil law actions.

Civil rights lawsuits, for example, have been an essential tool used by minority students to require that states provide them with educational opportunities equal to those provided to the majority White students in regular education. Minority groups, by themselves, do not have the votes necessary to pass legislation that will ensure that minority students receive quality schooling, if those laws are resisted by the majority White population. Nor are they able to stop discriminatory practices, if those practices are supported by [Page 167]the majority White population. Relying on the U.S. Constitution and the Civil Rights Act, civil rights lawsuits have helped these minority students improve their educational opportunities where legislative success would be unlikely or impossible.

Nevertheless, civil rights lawsuits, while necessary, have not been sufficient to effect substantive, lasting change by themselves. To improve the political, social, and structural aspects of schooling for minority students, protests and public education campaigns, as well as legislation, when possible, have been needed in addition to the legal victories.

Civil Lawsuits

In pursuing a civil lawsuit, plaintiffs have the burden of proving their cases against defendants. Plaintiffs will prevail if they can prove their cases by a preponderance of all of the evidence presented at trial. In numerical terms, plaintiffs win if there is more than a 50% probability that their claims are true. If not, the defendants win. This is a much lower burden of proof than in a criminal trial, where claims must be true beyond a reasonable doubt. In numerical terms, beyond a reasonable doubt is generally estimated to mean that there is at least a 95% likelihood that the prosecution's claims are correct. In a few tort claims, such as fraud, plaintiffs must prove their case with clear and convincing evidence, a standard between preponderance and beyond a reasonable doubt.

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