Overview of the Content

In light of the importance of its subject matter for both students and practitioners (whether educators or attorneys), the Encyclopedia of Education Law offers a compendium of information drawn from the various dimensions of education law that tells its story from a variety of perspectives. While the entries are arranged alphabetically, a Reader's Guide appears in the front of each volume immediately following the List of Entries. This guide organizes the headwords into the 17 subject areas listed below, with each entry listed in at least one thematic area.

• Biographies
• Collective Bargaining
• Concepts, Theories, and Legal Principles
• Constitutional Rights and Issues
• Curricular and Instructional Issues
• Educational Equity
• Governance Issues
• Litigation
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• Organizations
• Parental Rights
• Primary Sources: Excerpted U.S. Supreme Court Landmark Cases
• Religion in Public Schools
• Special Education and Rights of Disabled Persons
• Statutes and Treaties
• Student Rights and Student Welfare Issues
• Teacher Rights
• Technology

The entries in the encyclopedia include a number of anchor essays, written by leading experts in education law, that provide a broad and detailed examination of selected subjects. The topics of these essays include an analysis of Brown v. Board of Education of Topeka and the history of equal educational opportunity, an overview of key Supreme Court cases in education law, and discussions of free speech in public schools, religion in public schools, the Due Process Clause, and the Equal Protection Clause. Along with the anchor essays and other longer entries, the encyclopedia includes shorter, more focused pieces of varying lengths that are appropriate for its purpose as a general work.

Excerpts from U.S. Supreme Court Cases on Education Law

In addition, excerpts are included from 35 key cases that can serve as primary sources for research on public policy aspects of education law. Among the cases included are such far-reaching decisions as Brown v. Board of Education of Topeka, I and //, the cornerstone of the development of the Supreme Court's push for equal educational opportunities; Lemon v. Kurtzman, the Supreme Court's most important case on religion; Tinker v. Des Monies Independent Community School District, wherein the justices recognized the free speech rights of students; Pickering v. Board of Education of Township High School District 205, Will County, in which the Court upheld the rights of teachers to speak out on matters of public concern; and Franklin v. Gwinnett County Public Schools, wherein, for the first time, the Court applied Title IX in the battle to end sexual harassment in schools.

These case excerpts are preceded by brief summaries and have been edited to allow readers to focus on the key issue or issues addressed in the rulings. In keeping with the standard practice in law texts, all of the cases have been edited to remove the Supreme Court's internal citations. Most have been edited also for length; the presence of ellipses, either within the body of texts or on a separate line, indicates that material has been deleted. These edited excerpts, which are preceded by a one- or two-sentence summaries, enable the reader to identify basic information on the cases. The excerpts can also serve as a starting point for researchers who can then seek out the full texts for further information.

The case excerpts appear in alphabetical order among the other entries. The case titles are reproduced here as they appear in the United States Reports, which are the official records of the Supreme Court.

The Study of Education Law

When one first grapples with education law, it is worth keeping in mind that systematic inquiry in the law is a form of historical-legal research that is neither qualitative nor quantitative. In other words, education law is a systematic investigation involving the interpretation and explanation of the law in school settings. Moreover, legal disputes can begin with a single issue that has far-reaching implications. Perhaps the best example of how a legal controversy with massive social overtones has affected American life is the Supreme Court's 1954 decision in Brown v. Board of Education of Topeka, striking down segregation in American public schools.

Aimed to dismantle de jure segregation in public education, it can be argued that Brown was not resolved on the basis of the law alone, for the Court relied on research data from the social sciences in addressing the plight of the African American children who had been subject to segregation. Consequently, Brown served as the impetus for many systemic social changes in American society in a way that the parties may not have been able to anticipate. Perhaps the two most notable changes that Brown engendered in helping to ensure equity were the adoption of Title IX of the Educational Amendments of 1972 and of federal laws on the rights of the disabled.

Title IX not only led to equal opportunities for males and females in the arena of sports but also required [Page xxxiii]equal opportunities in other areas of education. The courts initially interpreted Title IX as protecting students from harassment based on gender and later expanded its scope to forbid harassment based on sexual orientation or preference. The impact of Title IX has been experienced in myriad ways in the world of K-12 schools and beyond. For example, in K-12 education, increasing numbers of women are assuming leadership roles in public school systems as principals and superintendents, and increasing numbers of women are contributing to scholarship about education generally and education law in particular, as reflected in the authorship of entries in this volume. Moreover, women not only make up a majority of undergraduate students on college and university campuses but have also seen their ranks increase dramatically in faculty and administrative roles in higher education.

Further, the enactment of three laws in particular-Section 504 of the Rehabilitation Act of 1973, the Education for All Handicapped Children Act (now the Individuals with Disabilities Education Act) and the Americans with Disabilities Act-have ensured greater participation by the disabled in all spheres of American life.

In attempting to make sense of the evolving reality known as the law, students of the law, however broadly defined—whether undergraduates, graduate students, K-12 teachers and administrators, faculty members, attorneys, or other interested parties—must learn to employ a timeline that looks to the past, present, and future for a variety of purposes. As reflected by many of the entries in this encyclopedia, the editor and contributors have sought to place legal issues in perspective, so that students of education law can not only hope to inform policymakers and practitioners about the meaning and status of the law but also seek to raise questions for future research in seeking to improve the quality of schooling for all. While the task of students varies from that of attorneys, who typically engage in legal research as a means of arriving at a deeper understanding of the issues confronting them so as to better represent the interests of their clients, because educators qua students often must serve as advocates for their own students, faculty, and staff, there is a common bond between all of those who employ education law for the betterment of the educational process.

Rooted in the historical nature of the law and its reliance on precedent, the study of education law requires students to look to the past to locate the authority governing the disposition of questions under investigation, whether drug testing, religion, or gender equity. This is so because the Anglo-American legal system is grounded in the principle of precedent or stare decisis, the notion that an authoritative ruling of the highest court in a given jurisdiction is binding on lower courts within its purview. Moreover, because the law, by its very nature, tends to be a reactive rather than proactive force, one that is shaped by past events that can help lead to stability in its application, its students need to learn to “think outside of the box” in applying the law to emerging issues such as the impact that technology is having on the educational process—both for good (such as virtual learning and access to information) and for ill (such as with regard to cyberbullying and stalking).

In light of the more or less reactive nature of law, when attorneys challenge adverse rulings or when researchers study emerging questions, they each look to see how past authoritative decisions have dealt with the same issue. If there is a case supportive of their respective points of view, then regardless of the role that individuals find themselves in, whether academicians, attorneys, or students, they can argue that it should be followed. However, if precedent is contrary to their positions, then its students will seek to distinguish their case by attempting to show that it is sufficiently different and inapplicable to the facts at hand, particularly when developing policies for new and evolving issues that impact the world of education. To this end, all students of the law, from undergraduates to senior professors and attorneys, must learn that because the law is an ever-changing reality, they must constantly be prepared to engage in research on new and emerging topics that will undoubtedly reshape schooling in ways that we cannot yet conceive.

Education Law and Sound Educational Policy

The centrality of education law as a tool for educational leaders, teachers, students, and attorneys as well as others interested in schooling is reflected in a [Page xxxiv]comprehensive, if somewhat dated, study conducted on behalf of the University Council for Educational Administration (UCEA), a consortium of leading doctoral degree-granting institutions in educational leadership. The survey revealed that with 87.5% of UCEA's members offering courses in education law (Pohland & Carlson, 1993), it is the second most commonly taught subject in the wide array of leadership programs. Moreover, as many universities offer a variety of graduate and undergraduate classes in education law (Gullatt & Tollett, 1997), it is likely to remain a crucial element in the curriculum, clearly indicating that as an applied rather than purely theoretical discipline, it is essential for educators at all levels.

The UCEA study and other indicators mean that those who are engaged in the study of education law must help clarify the meaning of the law so that it remains the valuable tool that it is. In particular, faculty members who teach education law can help by instructing students to focus on such basic concepts as due process and equity, essential elements in the development of sound policies. Put another way, as important as abstract legal principles or theories are, faculty members who specialize in education law must concentrate on ways to help students and practitioners to apply these concepts broadly rather than having them memorize case holdings apart from their applications in day-to-day, real-life situations. At the same time, students need to understand the law as a practical discipline that has genuine significance in their daily professional activities as educational practitioners.

The significance of education law presents a unique intellectual challenge to prepare practicing educators, whether they are board members, superintendents, principals, teachers, or students preparing to become teachers, to be more proactive. Those who work in the field of education law need to move beyond the reactive nature of the discipline and to use it proactively, as a tool to help ensure that schools meet the needs of all of their constituents, ranging from students and parents to faculty, staff, and the local community. Yet, the goal of making the law proactive is complicated, because most changes generated by education law typically occur only after a real case or controversy has been litigated or a legislative body has responded to a need that had yet to be addressed or resolved. In fact, Brown is a typical example of how the law can be seen as reactive insofar as there would not have been a need for Brown if the schools in Topeka had been meeting the needs of the African American students there.

Along with balancing the tension present between the proactive and reactive dimensions of education law, law classes for educators should not become “Law School 101.” Rather than trying to turn educators into lawyers equipped to deal with such technical questions as jurisdiction and the service of process, their courses in education law should provide a broad understanding of the law that will allow them to accomplish two important goals as follows:

First, classes in education law must teach educators how to rely upon their substantive knowledge of the law and where to look to update their sources of information, so they can develop sound policies to enhance the day-to-day operations of schools.

Second, classes in education law should provide educators with enough awareness of the legal dimensions of given situations to enable them to better frame questions for their attorneys to answer. To this end, educators must recognize the great value in making their attorneys equal partners not only in problem solving after the fact but also in developing responsive policies before difficulties can arise. Such a proactive approach is consistent with the notion of preventative law, wherein knowledgeable educators can identify potential problems in advance and in concert with an attorney can work to ensure they do not develop into crises. Further, when board members and educators select attorneys for their boards, they would be wise to hire individuals who have specialized practices in education law, thus avoiding potential lapses in critical knowledge and ensuring their advice has the most up-to-date perspectives on legal matters.

Education Law in the Future

Education law is a dynamic, invigorating, and intellectually stimulating discipline that is constantly evolving to meet the needs of today's schools. In light of the impact that the Supreme Court's judgments are [Page xxxv]likely to have on educators at all levels, one can only wonder what the justices will do with emerging topics such as student free speech in cyberspace, whether involving the use of Web cams or posting messages and videos on online sites including Facebook and YouTube, because the law cannot seem to keep pace with evolving technology. Given the legal and educational concerns that these issues will raise, all those interested in education law are charged with the task of developing and implementing policies to enhance the school environment for students, faculty, and staff.

In sum, as noted above, perhaps the only constant in education law is that as it evolves to meet the demands of a constantly changing world, it is likely to remain of utmost importance for all of those who are interested in schooling. In fact, the seemingly endless supply of new statutes, regulations, and cases speaks of the need to be ever vigilant of how legal developments impact the law. Insofar as the challenge for all educators is to harness their knowledge of this ever-growing field so that they can make the schools better places for all children, the contributors to the Encyclopedia of Education Law hope it will be of service to those who are seeking solutions not only for ongoing quests for educational equity but also to be prepared to address new and evolving issues as they emerge in coming years.

Postscript on Legal Citations

When reading case names, it is important to keep in mind that the party that files suit in a trial court is the plaintiff while the responding party is the defendant. However, as a case makes its way through the legal system, the names often change places. In other words, the party that loses at trial, and seeks further review, is listed first and is known as the appellant as the dispute makes its way up the judicial ladder. The responding party, regardless of whether the plaintiff or defendant at trial, is known as the appellee or respondent, and appears second. In addition, since case names can be lengthy, they are often abbreviated. Illinois ex rel McCollum v. Board of Education of School District No. 71, Champaign County is often listed as Illinois ex rel McCollum v. Board of Education, and further shortened to McCollum for convenience after the full title has appeared in a text. Locations (like “Topeka, Shawnee County, Kansas”) and articles (the, an, etc.) are often omitted to shorten a name.

Once readers become accustomed to their varying appearances, legal citations are actually fairly easy to read:

• The first number in a citation indicates the volume number where the case, statute, or regulation can be located.
• The abbreviation that follows refers to the book or series in which the material may be found.
• The second number refers to the page on which a case begins or the section number of a statute or regulation.
• The last part of a citation typically includes the name of the court, and the year in which a dispute was resolved.

Supreme Court cases, which occupy a central place in the encyclopedia, can be located in a variety of sources. The official version of Supreme Court cases is the United States Reports (U.S.). The same opinions appear in two unofficial versions, West's Supreme Court Reporter (S. Ct.) and the Lawyer's Edition, now in its second series (L. Ed.2d). The advantage of the unofficial versions of cases (and statutes, described below) is that, in addition to reproducing the entire text of the Court's opinions, publishers provide valuable research tools and assistance. In order to avoid unnecessary confusion, the encyclopedia refers to unofficial versions only when U.S. Reports citations are unavailable.

Consider the citation for Brown v. Board of Education of Topeka as an example: 347 U.S. 483, 74 S. Ct. 686,98 L. Ed. 873 (1954). The first number indicates that it is published in volume 347 of the United States Reports starting at page 483. Brown is also be located in volume 74 of West's Supreme Court Reporter, beginning on page 686, and volume 98 of the Lawyer's Edition, published by Lawyers Cooperative Publishing Company, starting on page 873. Of course, Brown was decided in 1954, as noted in parentheses.

Lower-level federal appellate cases are published in the Federal Reporter, now in its third series (F.3d). Cases that are not chosen for publication in F 3d are printed in the Federal Appendix (Fed. Appx.); these cases are of limited precedential value. Federal trial court rulings are in the Federal Supplement, now in its second series (F. Supp. 2d). [Page xxxvi]State cases are published in a variety of publications, most notably in West's National Reporter system. An abbreviated version of the court name appears with the date in parentheses for all but U.S. Supreme Court cases.

The official version of federal statutes is the United States Code (U.S.C.). Along with Supreme Court cases, West publishes an unofficial, annotated version of federal statutes, the United States Code Annotated (U.S.C.A.). The final version of federal regulations can be found in the Code of Federal Regulations. For example, the Individuals with Disabilities Education Act (IDEA)—20 U.S.C. §§ 1400 et seq.—cm be found in Title 20 of the United States Code, beginning at section 1400. Further, the IDEA'S regulations are located at 300 C.F.R. §§ 300.1 et seq., meaning that they are in Title 300 of the Code of Federal Regulations, starting at section 300.1. State statutes and regulations follow a similar pattern. As with cases, state statutes and regulations are published in a variety of sources.

Before they appear in bound volumes, most cases are available as slip opinions from a variety of loose-leaf services and electronic sources. Statutes and regulations are available in similar formats. State laws and regulations are also generally available online from each state. Legal materials are also available online from a variety of sources, a selection of which is listed here.

• Subscription Databases:
  • WestLaw
  • LexisNexis
• Legal Search Engines:
  • http://washlaw.edu
  • http://www.findlaw.com
• U.S. Supreme Court, Federal Courts, and Federal Government Sites:
  • http://supct.law.cornell.edu/supct (decisions of the U.S. Supreme Court)
  • http://www.supremecourtus.gov (official Web site of the U.S. Supreme Court)
  • http://www.uscourts.gov (U.S. Federal Judiciary)
  • http://www.whitehouse.gov (The White House)
  • http://www.senate.gov (U.S. Senate)
  • http://www.ed.gov (U.S. Department of Education)
  • http://thomas.loc.gov/home/bills_res.html (Library of Congress, Bills and Resolutions)

References