The Evolution of Education Litigation Before the Supreme Court

Educational malpractice claims have been brought to the Supreme Court under Constitutional, tort, contract, and property law. Educational malpractice claims under tort law requires a showing of negligence. Contract claims were based on the idea that a school's failure to provide a quality education is a breach of its contractual duty to the child. The connection between property and education was based on the idea that poor education was a type of property deprivation against children. Many of the major cases have been Constitutional claims which will be discussed in greater detail. In general because courts often feel they should "not entertain a cause of action in education negligence," most of these claims face a huge public policy hurdle.

As the face of citizenship in this country transformed rapidly in the late 19th and early 20th century, the issue of education has been in controversy before the Supreme Court numerous times. One of the earliest cases was Meyer v. Nebraska. In 1924, the Court struck down a statute that prohibited the teaching of foreign languages before the eighth grade. Specifically, an instructor in Zion Parochial School "unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of 10 years." The Nebraska Supreme Court had upheld the conviction stating:

The salutary purpose of the statute is clear. The Legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. To allow the children of foreigners, who had emigrated here, to be taught from early childhood the language of the country of their parents was to rear them with that language as their mother tongue. It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country.

The plaintiff challenged his conviction on the grounds that the statute infringed on his liberty guaranteed by the Fourteenth Amendment. The Supreme Court's Equal Protection analysis weighed the differing interests of the state and those of children and parents. It emphasized the importance of education in American culture. The Court noted: "The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted." Going as far as citing the Ordinance of 1787, the Court was clearly cognizant of not only the practical necessity of education but also its historical significance as it wrote: "'Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.'" The Court held that the state's interest in assimilating citizens did not outweigh the combined interests of parent wishing to direct the education of their children, teachers instructing, and children earning. The language acknowledging the right to receive education certainly gave legitimacy to the idea of a fundamental education interest even without an explicit holding as such.

Just one year later, the Supreme Court heard Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary v. Hill Military Academy. The Court struck down a compulsory education statute that required public school enrollment. Adopting the principles of Meyer but reaching a contrary decision, the Court found that the state could not compel students by statute to attend public schools. Such a demand violated the parental right to direct a child's education in a specific way. Moreover, had the Court upheld the statute requiring attendance at public school, it would be in the position of implicitly stating that individuals enjoyed a right to demand public education. As in Meyer, the right to education is considered a right held jointly by parents and children. Though the Court did not speak to whether students retained an individual right to education, the Court was consistent with Meyer in its regard for the importance of education. By striking down the compulsory stature requiring attendance at public schools, the Court planted its decision firmly in the belief that while the state may regulate schools and 'certain studies plainly essential good citizenship" education is so immensely important that public school need not be the only resource for education.

In Brown v. Board of Education, Justice Warren wrote for the Court that education is "the most important function of state and local governments... It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship." He concluded that education "is a right which must be made available to all on equal terms." The issue before the Court, however, was racial classification and did not specifically consider the right to education. The equality of access discussed in Brown can only be thought of in relative terms and does not guarantee a particular standard of education to children. In other words, Brown only means that when a state chooses to provide education, it must provide it on equal terms.

In 1973, the Supreme Court dismissed the possibility of the fundamental right to education in San Antonio Independent School District v. Rodriguez. Funding for public schools in San Antonio came largely from local property taxes and a supplementary state fund. The plaintiffs were from Edgewood Independent School District. The school district was among the poorest school districts in Texas. Another district, Alamo Heights, was one of the most affluent school districts, spent more on students because its property taxes were much higher. The poorer district spent an average of $356 a pupil whereas Alamo was able to spend an average of $594 per pupil. The Federal District Court had found the dual system of financing to be in violation of the Equal Protection Clause. The Supreme Court did not agree. The Court reasoned that there was no definable class of people. It wrote:

It has not been shown to discriminate against any definable class of 'poor' people or to occasion discriminations depending on the relative wealth of the families in any district. And, insofar as the financing system disadvantages those who, disregarding their individual income characteristics, reside in comparatively poor school districts, the resulting class cannot be said to be suspect.

The Court found that while the state system of funding was imperfect, the system bore a rational relationship to a legitimate state purpose. The Court went on to consider whether education is a fundamental right. The Appellees unsuccessfully contended that "the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively." In addition, the "'marketplace of ideas' is an empty forum for those lacking basic communicative tools." Hence, they argued that rights entitling an individual to communicate their views like speech or voting were effectively hollowed because uneducated individuals would lack the ability to properly exercise those rights. Notwithstanding these arguments, the Court responded that without explicit direction from the Constitution, naming education a fundamental right would go "'far toward making this Court a 'super-legislature.'" Despite its refusal to confer fundamental status, the Court noted in its opinion that, even if some identifiable quantum of education is arguably entitled to constitutional protection to make meaningful the exercise of other constitutional rights, here there is no showing that the Texas system fails to provide the basic minimal skills necessary for that purpose.

This language reveals the underpinnings of the Court's analysis in this case. The Court's conclusion together with the observation that Texas provided "an adequate base education for all children" suggests that had Texas not supplied an "adequate base," the statute might be unconstitutional. This language puts forth the idea that the holding of this case was dependent on Texas' ability to meet some minimal level of education that the Court itself has supplied. If, however, the San Antonio children had been denied that minimal level of education, it would not be impossible to see that the Court might have reached a different ending. Clearly, this begs the question of what constitutes a minimal level of education. Sadly, the Court did not entertain that issue. This reasoning in Rodriguez suggests that the Court may have left open the possibility to a fundamental right to education.

The most recent and confusing addition to the line of educational malpractice cases is Plyler v. Doe. In Plyler, the Supreme Court maintained its view that education is not a fundamental right. Yet, the Plyler Court struck down the Texas statute that denied free public education to the children of illegal immigrants using a heightened level of judicial review. The Court's analysis was not based on a notion of fundamental right to education. Rather, the legislation failed because the classification based on citizenship status did not further an important state interest and could not survive the Court's strict scrutiny analysis. It reasoned that if the state is to "deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest." The costs associated with denying children a significant tool in democratic society outweighed the state's interest in saving resources. It noted that the performance of public responsibilities including service in the armed service required education of citizens. Evoking the language of Brown, the Court articulated the understanding that "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."

Whether the Supreme Court has completely dismissed the fundamental educational right is uncertain. It is apparent that the Court is conscious of the importance of education as it will often evoke the history and legacy of Brown v. Board of Education. Time after time, the Court has alluded to the utility and import of educating American youth. Even though the Court has repeatedly said that there is no federal fundamental right to public education, this assertion does not appear to be without reservation. As recently as Plyler v. Doe, the Court reminded us of the possibility it also raised in Rodriguez-that where the state has undertaken to provide education, education must be made available to all. Moreover, the Court has shown that it is willing to apply a heightened scrutiny to analyzing issues of educational access. Clearly, the Court is cognizant of the vital necessity of education in the formation of responsible citizens.

Bibliography
Melanie Natasha Henry, No Child Left Behind? Educational Malpractice Litigation for the 21st Century, 92 Calif. L. Rev. 1117, 1119 (2004).

A plaintiff must show that: (1)defendant owed duty of care to plaintiff, (2) defendant breached the duty as a result of negligence, and (3) the plaintiff was proximately injured as a result. This type of claim peaked in the 1970s and 1980s but was generally ignored by the appellate courts.

Courts were cautious about imposing liability on schools. In one case, a New York court dismissed a contract liability case with the weak argument that "the claim must fail because of the public policy against educational malpractice." Torre v. Little Flower Children's Services, 474 N.E.2d.223, 224 (1984).

The "Act Relating to the Teaching of Foreign Languages in the State of Nebraska," was approved April 9, 1919 (Laws 1919, c. 249), stated: 'Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language than the English language. 'Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county
superintendent of the county in which the child resides. 'Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25), nor more than one hundred dollars ($100), or be confined in the county jail for any period not exceeding thirty days for each offense. 'Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval.' Id. at 396.

Meyer v. Nebraska, 262 U.S. 390, 400 (1923).

Pierce v. Society of Sisters of the Holy Name of Jesus and Mary v. Hill Military Academy, 268 U.S. 510 (1925).
Brooke Wilkins, Should Public Education Be a Federal Fundamental Right? B.Y.U. Educ. & L.J. 261, 274 (2005).
Approximately 22,000 students are enrolled in its 25 elementary and secondary schools. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960--the lowest in the metropolitan area--and the median family income ($4,686) is also the lowest. At an equalized tax rate of $1.05 per $100 of assessed property--the highest in the metropolitan area--the district contributed $26 to the education of each child for the 1967--1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state-local total of $248 Federal funds added another $108 for a total of $356 per pupil. In comparison, Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly 'Anglo,' having only 18% Mexican-Americans and less than 1% Negroes. The assessed property value per pupil exceeds $49,000, and the median family income is $8,001. In 1967--1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil. Id. at 13.
San Antonio Independent school District v. Rodriguez, 411 U.S. 1, 33 (1973)

Plyler v. Doe, 457 U.S. 221 (1982).
Plyler, 457 U.S. at 230.
In reaching its decision, the Court also discussed the consequences of having a large uneducated class, legal or illegal. The State argued that preventing illegal children from attending school deters them from staying in this country in addition to relieving financial stress on government. The Court responded: "Appellants suggest that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the boundaries of the State, and to put their education to productive social or political use within the State...The record is clear that many of the undocumented children disabled by this classification will remain in this country indefinitely, and that some will become lawful residents or citizens of the United States. It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation." Plyler, 457 U.S. at 223.