Table Of ContentCurrent Issues in
Education Policy
and the Law
a volume in
Educational Policy and Law
Series Editors:
Kevin G. Welner and Wendy C. Chi
University of Colorado, Boulder
Educational Policy and Law
Kevin G. Welner and Wendy C. Chi, Series Editors
Current Issues in Educational Policy and the Law (2008)
edited by Kevin G. Welner and Wendy C. Chi
Current Issues in
Education Policy
and the Law
edited by
Kevin G. Welner and Wendy C. Chi
University of Colorado, Boulder
and
Rrik Bergrud
Park University
Information Age Publishing, Inc.
Charlotte, North Carolina (cid:129) www.infoagepub.com
Library of Congress Cataloging-in-Publication Data
Current issues in education policy and the law / edited by Kevin G. Welner and Wendy C. Chi.
p. cm. — (Educational policy and law)
Includes bibliographical references.
ISBN-13: 978-1-59311-656-9 (pbk.)
ISBN-13: 978-1-59311-657-6 (hardcover)
1. Educational law and legislation—United States. I. Welner, Kevin Grant, 1963- II. Chi,
Wendy C.
KF4119.C87 2008
344.73'07—dc22
2007047729
ISBN 13: 978-1-59311-656-9 (paperback)
ISBN 13: 978-1-59311-657-6 (hardcover)
Copyright © 2008 IAP–Information Age Publishing, Inc.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted in any form or by any electronic or mechanical means, or by photocopying, micro-
filming, recording or otherwise without written permission from the publisher.
Printed in the United States of America
CONTENTS
Introduction vii
Wendy C. Chi & Kevin G. Welner
PART I:
NO CHILD LEFT BEHIND
1. Tipping the Balance: Examining the Federal-State Relationship
Through No Child Left Behind and the Future of
Public Education Governance
Vincent J.A. Badolato, Megan Bucholz, and Carol Drake 3
2. Reconsidering a Fundamental Right to Education in Light of
No Child Left Behind
August Ruckdeschel, Jennifer Sharp Silverstein, and Sara Rabin 25
PART II:
SCHOOL FINANCE AND ADEQUACY
3. Funding Public Schools: Striving for Substantive Adequacy
Susan Krebs, Sheri Tappert, and Adam Van Iwaarden 45
4. Breaking the Nexus: Four State’s Experiences With Reforming
School Finance to Increase Student Achievement for Students
From All Backgrounds
Jennifer Sharp Silverstein, Sara Anderson, and Brandy Chance 67
v
vi CONTENTS
PART III:
SCHOOL CHOICE
5. Parental Decision Making and Educational Opportunity
Holly Yettick, Emily Wexler Love, and Sara Anderson 99
6. Child in the Middle: Self-Determination and the Parent-State
Battle for Educational Control
Erik Bondurant, Sheri Tappert, and Holly Yettick 121
7. Charter School Liability
Meghan Callahan, Susan Krebs, and Erik Bondurant 135
PART IV:
REFRAMING EQUAL EDUCATIONAL OPPORTUNITY TODAY
8. Getting Back to Where We Started From: The Failure of
Proxy-Based Policies and a Possible Return to Plessy
Sara Rabin, Lauren P. Saenz, and Heather MacGillivary 153
9. Ending the DREAM of Plyler v. Doe: Examining Democratic
Participation and Educational Opportunity Through the
Language of Plyler
Emily Wexler Love, Megan Bucholz, and Brandy Chance 173
PART V:
STUDENT AND TEACHER RIGHTS IN SCHOOLS
10. Zero Tolerance Polices: A Precarious Balance Between School
Safety and Educational Opportunity for All
Heather MacGillivary, Michelle Medal, and Carol Drake 191
11. Seeking a State of Balance in Teachers’ Freedom of Speech:
Analyzing the Teacher Speech Tightrope and the Erratic Legal
Winds
Adam Van Iwaarden, Michelle Medal, and Meghan Callahan 219
12. Straddling the Wall: What’s Gained and Lost in the Supreme
Court’s Willingness to Allow More Fraternization Between
Church and State?
Lauren P. Saenz, Vincent J.A. Badolato, and August Ruckdeschel 241
Appendix: Definitions and Explanations of Key Terms 269
About the Contributors 273
INTRODUCTION
W. C. CHI AND KW. eGn. dWyE CL.N CEhRi and Kevin G. Welner
Education policy issues in the United States can be approached from a
variety of disciplinary perspectives, but the law holds a unique position.
Few if any disciplines are as fundamentally entwined with the history and
current status of our schools. This is particularly true as regards equal
access and equity issues—race, gender, sexual orientation, disability, lan-
guage-minority status, and social class. It is also seen in controversies
about religious freedoms, speech issues, due process, and sexual harass-
ment. Accordingly, a great many insights are to be found through a study
of the rich history of litigation and current legal challenges facing Ameri-
can K-12 schooling.
This book explores current educational policy issues through this legal
lens. Each of the chapters bridges issues of law and policy, illustrating
interactions and highlighting contexts. The key unifying theme among
them is an exploration of equal educational opportunity, which emerges
in an intriguing variety of different forms. Our authors examine, for
instance, recent activity in legal and policy arenas concerning the No
Child Left Behind Act (NCLB), school finance litigation, the school
choice movement, desegregation litigation, the Development, Relief, and
Education for Alien Minors Act (DREAM Act), and zero tolerance poli-
cies.
Current Issues in Education Policy and Law
pp. vii–x
Copyright © 2008 by Information Age Publishing
All rights of reproduction in any form reserved. vii
viii W. C. CHI and K. G. WELNER
Three topics of current import—NCLB, school finance, and school
choice—merited multiple chapters. The book’s first two chapters focus on
NCLB, examining it from the perspective of federalism and from the per-
spective of a fundamental right to education (FRTE). Chapter 1 explores
the increased federal role in education due to NCLB and the potential
changes of this role after the upcoming reauthorization of this law. The
authors analyze recent events such as litigation, hearing testimony, and
the 2006 midterm election results to consider how the reauthorization
may affect the federal role in education. Chapter 2 examines the relation-
ship between NCLB and the FRTE that is guaranteed to students in some
state constitutions. The chapter discusses the similarities and differences
between the concepts and examines how the two provisions interact. It
finds that NCLB may actually undermine the FRTE, describing, for
example, how NCLB’s emphasis on test scores can create unintended
incentives for pushing away low-achieving students, thereby threatening
these students’ FRTE.
School finance is similarly studied in two different ways. Chapter 3 uses
an adequacy lens, arguing that an adequacy focus falls short of achieving
what the authors call “substantive adequacy.” They present an innovative
and useful three-part test—questions that should be asked by any court
considering the constitutional soundness of a state finance system. Chap-
ter 4 studies four states’ experiences with school finance reform, focusing
on how they have (and have not) used school funding to “break the
nexus” between student background and achievement. To explore this
issue, the authors begin with recommendations from the National
Research Council. They then consider the states’ histories of litigation
and their current school finance systems, finding clear instances of
progress but a large gap between reality and the ideal.
School choice gets three separate looks. Chapter 5 analyzes the varia-
tion in the effectiveness of different parents in accessing educational
options, as well as the implications of this variation as school choice poli-
cies expand. The authors investigate some reasons why this variation
exists, such as differences in resources, education, social networks, and
familiarity with the English language. Chapter 6 examines how choice
increases parental options but does so at the possible expense of a child’s
right to self-determination. Specifically, the authors explore the contest
for control of the education of children, between the state, parents, and
child. Chapter 7 turns to a specific type of school choice: charter schools.
It explores the possible tension between charter schools and their autho-
rizers around issues of legal liability.
The following two chapters continue to build on the theme of equal
educational opportunity. Chapter 8 investigates the shift away from
desegregation, exemplified by—but by no means limited to—the
Introduction ix
Supreme Court’s recent decision striking down the voluntary school inte-
gration plans in Louisville and Seattle. The authors contend that while
public schools are nearly as racially segregated as in the days of segrega-
tion before Brown v. Board, this problem of segregation has taken a back-
seat to reforms focusing on accountability, choice, and academic
excellence. Chapter 9 examines the federal DREAM Act, which seeks to
provide opportunities for higher education and meaningful participation
in American democracy for undocumented students. It considers this
issue in the context of the Plyler v. Doe decision, where the Supreme Court
recognized the importance of providing undocumented aliens with access
to a free, public K-12 education.
The final section of the book presents analyses concerning the rights of
students and teachers in schools. Chapter 10 explores “zero tolerance”
legislation faced by students and weighs in on the ongoing debate about
the effectiveness of zero tolerance policies in schools. The authors argue
that any reduction of school violence is outweighed by the unintended
negative effects of zero tolerance, such as increased school suspensions
and expulsions, severe consequences for minor infractions, increased use
of punitive sanctions for minority students, and the school-to-prison pipe-
line. Chapter 11 examines freedom of speech for public school teachers
in light of a 2006 Supreme Court case called Garcetti v. Ceballos. The
authors discuss the confusion faced by teachers trying to determine the
boundaries of legally protected speech. Chapter 12 concludes the book
with an analysis of the evolving relationship between the church and state
in public education, discussing both positive and negative implications
for students. It examines the provision of public funds for religious pur-
poses, religious influences in the public school curricula, and other
related issues such as the flag salute controversy and religious displays in
public schools.
Together, these chapters paint a picture not just of legal challenges.
They also highlight the huge role that schools are asked to play in fur-
thering societal missions. Besides the obvious task of producing students
with skills and knowledge, the school system in the United States is called
upon to provide increasing levels of choice for parents, to balance local
control with federal mandates, to further democratic goals concerning
independent thought and self-actualization, to educate immigrants and
help bring them within the economy and democracy, and to avoid segre-
gation notwithstanding larger societal forces pushing in that direction.
Integral to all of this is the paramount goal of equality of opportunity—of
schools serving as the “great equalizer of the conditions of men, [as] the
balance wheel of the social machinery” (Mann, 1891, p. 251).
The law, as these chapters show, cannot guarantee that this last goal
will be achieved. Too often, in fact, it seems to push in the opposite direc-
