Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P9 pps

two-year stint as director of the Center for Law
and Education at Harvard University. Her
husband served as vice president of the
University of Massachusetts at the same time.
Upon their return to Washington, D.C., in
1973, Edelman created an offshoot of her
Washington Research Project, which she called
the Child ren’s Defense Fund.
Edelman’s CDF began as a small, nonprofit
organization interested in children’s issues and
funded entirely by private foundation grants. In
CDF’s early days, Hillary Rodham Clinton
worked as a staff attorney and later became a
member of the CDF board of directors. In 1999,
with a staff of 130 and a budget of $10 million,
CDF had grown considerably in size and stature
but remained committed to its original goal:
providing hope and social change for the poor,
neglected, and abused children in the United
States. CDF conducts research, drafts legisla-
tion, lobbies, and provides educational support
on issues affecting children. It has buttonholed
elected officials on issues including childhood
diseases and immunizations, homelessness,
CHILD ABUSE, education, and foster care. Edelman
lobbied for a national
CHILD CARE bill, increases in
Medicaid spending, and, of course, additional
spending for her cherished Head Start programs.
Edelman’s productivity and stamina are
legendary. In addition to lobbying, she gives an

average of 50 spe eches per year and has made
frequent appearances on popular talk shows.
Edelman has received more than 65 honorary
degrees and awards including t he Albert
Schweitzer Humanitarian Prize, the H. John
Heinz Award, and a MacArthur Foundation
Prize Fellowship. In 2000 President
BILL CLINTON
awarded Edelman the Presidential Medal of
Freedom, the nation’s highest civilian award.
Edelman is also a prolific writer; among her
books are Families in Peril: An Agenda for Social
Change (1987); The Measure of Our Success: A
Letter to My Children and Yours (1992), which
sold over 1.25 millio n copies and appeared on
the best-seller list; a children’s book titled Stand
for Children (1998); I’m Your Child, God: Prayers
for Children and Teenagers (2002); the children’s
book I Can Make a Difference: A Treasury to
Inspire Our Children (2005); and The Sea Is So
Wide and My Boat Is So Small: Charting a
Course for the Next Generation (2008).
In 1996 Edelman founded Stand for Chil-
dren, a grassroots organization that advocates for
children’s rights throughout the country with a
focus on early childhood education, after-school
programs, and health care. In 2000 the Chil-
dren’s Defense Fund took note of the fact that
presidential candidate
GEORGE W. BUSH had

adopted the fund’s slogan Leave No Child
Behind for his campaign. In early 2003 Edelman
accused the Bush administration of “waging a
budget war against poor children” based on
proposed tax cuts. The Children’s Defense Fund
later released a state-by-state report showing that
states experiencing fiscal crisis were making cuts
in vital child-care, early education, and after-
school programs.
As of late 2009, Edleman was writing a
weekly column, Child Watch, and a blog, both
carried by the Huffington Post. She continues to
serve as president of the Children’s Defense
Fund and its Action Council. As the country
debated health care, she continued to be the
voice for underserved children.
FURTHER READINGS
Igus, Toyomi, ed. 1991. Book of Black Heroes. Vol. 2: Great
Women in the Struggle. New York: Scholastic.
Edelman’s Huffington Post site. Available online at www.
huffingtonpost.com/marian-wright-edelman (accessed
September 24, 2009).
Stand for Children Web site. Available online at www.stand.
org (accessed September 24, 2009).
EDICT
A decree or law of major import promulgated by a
king, queen, or other sovereign of a government.
An edict can be distinguished from a public
proclamation in that an edict pu ts a new statute
into effect whereas a public proclamation is no

more than a declaration of a law prior to its
actual enactment.
Under
ROMAN LAW, an edict had different
meanings. It was usually a mandate published
under the authority of a ruler that commanded
the observance of various rules or injunctions.
Sometimes, however, an edict was a citation to
appear before a judge.
EDUCATION DEPARTMENT
Created in 1980, the U.S. Department of
Education (DOE) is the cabinet-level agency
that establishes policy for, administers, and
coordinates most federal assistance to educa-
tion. It is directed by the secretary of education,
who assists the president of the United Stat es by
WE MUST NOT, IN
TRYING TO THINK
ABOUT HOW WE CAN
MAKE A BIG
DIFFERENCE
, IGNORE
THE SMALL DAILY
DIFFERENCES WE
MAKE WHICH
, OVER
TIME
, ADD UP TO BIG
DIFFERENCES THAT
WE OFTEN CANNOT

FORESEE
.
—MARIAN WRIGHT
EDELMAN
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
EDUCATION DEPARTMENT 69
executing policies and implementing laws
enacted by Congress.
The Department of Education has six major
responsibilities: (1) providing national leader-
ship and building partn erships to address
critical issues in U.S. education; (2) serving as
a national clearinghouse of ideas on schools and
teaching; (3) helping families pay for college;
(4) helping local communities and schools meet
the most pressing needs of their students;
(5) preparing students for employment in a
changing economy; and (6) ensuring non-
discrimination for recipients of federal educa-
tion funds.
Department of Education
International Affairs
Office
Center for Faith-Based and
Community Initiatives
Office of Communications
and Outreach
Risk Management
Service
Office of the

Secretary
Office of the Under
Secretary
Federal Student Aid
Office of Vocational and
Adult Education
Office of Postsecondary
Education
WH Initiative on Historically
Black Colls & Univs Staff
WH Initiative on Tribal
Colleges and Universities
Staff
Office of the General
Counsel
Office of Inspector
General
Institute of Education
Sciences
Office for Civil Rights
Office of Legislation &
Congressional Affairs
Office of the Chief
Financial Officer
Office of Management
Office of the Chief
Information Officer
Office of Planning,
Evaluation and
Policy Development

Office of the Deputy
Secretary
Office of Safe and
Drug-Free Schools
Office of Innovation
and Improvement
Office of Special Education
and Rehabilitative Services
Office of English
Language Acquisition
Office of Elementary and
Secondary Education
WH Initiative on Educational
Excellence for Hispanic
Americans
Budget Service
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY PER-
MISSION OF GALE, A
PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
70 EDUCATION DEPARTMENT
Although the DOE functioning in 2009 has
existed for only a short time, its history dates
back to 1867, when President
ANDREW JOHNSON
signed legislation creating the first education

department as a non-cabinet-level, autonomous
agency. Within one year, the department was
demoted to the office of education because
Congress feared that it would exercise too much
control over local schools. Since the Constitu-
tion does not specifically mention education,
Congress declared that the secretary of educa-
tion and other officials should be prohibited
from exercising direction, supervision, or con-
trol over the curriculum, instructional pro-
grams, administration, or personnel of any
educational institution. Such matters are the
responsibility of states, localities, and private
institutions.
Over the next several decades, the office of
education remained small, operating under
different titles and housed in various govern-
ment agencies, including the U.S.
DEPARTMENT OF
THE INTERIOR
and the former U.S. Department of
Health, Education, and
WELFARE (later the U.S.
DEPARTMENT OF HEALTH AND HUMAN SERVICES).
Beginning in 1950, political and social
changes resulted in greatly expanded federal
aid to education. The Soviet Union’s success-
ful launch of the satellite Sputnik in 1957
resulted in an increase in aid for improved U.S.
education in the sciences. President Lyndon B.

Johnson’s War on Poverty in the 1960s involved
many programs to improve education for poor
people. In the 1970s these programs were
expanded to include members of racial minori-
ties, women, individuals with disabilities, and
non-English-speaking students.
In October 1979 Congress passed the
Department of Education Organization Act
(93 Stat. 668 [20 U.S.C.A. § 3508]), which
established the Department of Education as it
basically exists in the early 2000s. Since that
time, the DOE has continued to expand its
duties by taking an active role in education
reform. In 1983, the DOE published A Nation at
Risk, a report that described the deficiencies of
U.S. schools, stating that mediocrity, not
excellence, was the norm in public education.
This publication led to the development in 1990
of a long-range plan to reform U.S. education
by the year 2000.
Called America 2000: An Educational Strategy,
the plan had eight goals: (1) all children will start
school ready to learn by participating in preschool
programs; (2) the high-school graduation rate
will increase to at least 90 percent; (3) all students
will leave grades 4, 8, and 12 having demonstrated
competency in English, mathematics, science,
foreign languages, civics and government, eco-
nomics, art, history, and geography; (4) teachers
will have opportunities to acquire the knowledge

and skills needed for preparing students for the
twenty-first century; (5) students will be first in
the world in mathematics and science achieve-
ment; (6) every adult will be literate and will
possess the knowledge and skills necessary to
compete in a global economy; (7) every school
will be free of drugs, violence, and the unautho-
rized presence of firearms and alcohol; and (8)
every school will promote partnerships to
increase parental involvement in the social,
emotional, and academic growth of children.
Many of the goals of this educational
initiative were praised by some educators,
although the initiative was not without its
skeptics. Its proposals called for revolutionary
reforms in educational systems across the
United States at a relatively low cost. Propo-
nents of the program also claimed the program
would end complacency in the educational
systems, woul d allow employers to hire more
qualified teachers, and would dramatically
increase student achievement.
One aspect of the America 2000 program
was that federal spending on K-12 education
increased from over $9 billion in 1990 to almost
$18 billion in 2000. Nevertheless, the promise of
massive improvements in student achievement
never came to fruition. Mathematics and reading
scores only increased slightly from 1996 to 2000,
while proficiency in science actually decreased

during the same time period.
President
GEORGE W. BUSH pre mised much of
his campaign in 2000 on educational reform.
Among the more striking statistics he cited
related to the teachers in U.S. schools. For
instance, only about 40 percent of mathematics
teachers had studied math in college, while one-
fifth of the nation’s students in English classes
were taught by instructors who did not hold a
major or minor in English.
On January 8, 2002, Bush signed into
law the No Child Left Behind Act of 2001
(NCLB) (Pub. L. No. 107-110, 115 Stat. 1425
[20 U.S.C.A. §§ 6301 et seq.]). Supporters of
the act promised a major reform in national
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
EDUCATION DEPARTMENT 71
educational policy. The overall goal of the act
was to “ensure that all children have a fair,
equal, and significant opportunity to obtain
high-quality education.” Moreover, the act was
designed to allow children to achieve higher
proficiency on achievement tests and other
assessments.
The act requires every state to test students
in grades three through eight in mathematics,
reading, and science. Testing has been a major
issue among educators due in part to the anxiety
it causes among students. Moreover, many claim

that achievement tests are often flawed and that
they may disfavor minorities and low-income
children. Proponents of the act, however, point
out that testing is one of the few recognized
methods for measuring student abilities and that
standardized testing ensures that children are
not failing because they attend a failing school.
Additional provisions provide funding to
prepare and train teachers and principals. The
act also promotes use of scientifically based
reading instruction and stresses the importance
of using established instructional methods.
These provisions have likewise been subject to
criticism, as detractors claim that forcing
schools to adopt stringent educational models
inhibits development of effective methods by
individual teachers. Supporters note that many
independent efforts fail and that students suffer
from such failures.
Additional provisions of the No Child Left
Behind initiative focus upon safer schools,
including provisions that allow parents to
remove children from unsafe schools; improve-
ments of academic achievement of the disad-
vantaged; enhancements in language instruc-
tion; promotion of informed parental choices;
and flexibility and accountability in education.
By the time the Obama administration to ok
office in 2009, the strengths and deficiencies of
NCLB had become clear. Secretary of Education

Arne Duncan stated that the law had significant
flaws: It puts too much emphasis on standard-
ized tests, unfairly labels many schools as
failures, and does not account for students’
academic growth in its accountability system.
Most importantly, the law does not encourage
higher learning standards; it inadvertently
encourages states to lower standards. On the
positive side, NCLB highlights the achievement
gap in schools and focuses accountability on
student outcomes.
In the 1860s, federal education had a budget
of $15,000 and four employees to handle
education fact-finding. By 1965 the Office of
Education employed 2,113 employees and had
a budget of $1.5 billion. In 1995 the DOE
administered about $33 billion, or about 2 percent
of all federal spending, and had 4,900 employees,
making it the smallest cabinet agency.
The DOE elementary and secondary educa-
tion programs annually serve 15,000 local
school districts and almost 50 million students
attending more than 84,000 public schools and
24,000 private schools. Approximately 7 million
post-secondary students receive grant, loan, and
work-study assistan ce. From 1975 to 1995,
approximately 40 million students attended
college on student financial aid programs. An
additional 4 million adults received assistance
each year to attend literacy classes and upgrade

their skills to further their employment goals.
Although the nation spends about $500
billion per year on education for elementary to
post-secondary education, the federal govern-
ment contributes only 8 percent of that amount.
Federal funding helps approximately one of
every two students pay for post-secondary
education, and approximately four of five
disadvantaged elementary and secondary school
students receive special assistance.
Structure
The DOE is made up of the offices of a number
of administrative officials, including a secretary,
deputy secretary, and under secretary; seven
program offices; and seven staff offices. Report-
ing directly to the secretary are the deputy
secretary, undersecretary, general counsel, in-
spector general, and public affairs director. All
other staff offices and program offices are under
the jurisd iction of the deputy secretary.
Offices of the Secretary
The secretary of education advises the president
of the United States on federal education plans,
policies, and programs. The secretary directs
department officials in carrying out these pro-
grams and activities and serves as the chief
spokesperson for public affairs, promoting public
understanding of DOE goals and programs.
The secretary also performs certain federal
responsibilities for four federally aided corpora-

tions. The American Printing House for the
Blind in Louisville, Kentucky, distributes Braille
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
72 EDUCATION DEPARTMENT
books, talking books, and other educational aids
without cost to educational institutions for
blind people. Gallaudet University, in Washing-
ton, D.C., provides a liberal arts education for
deaf persons. The National Technical Institute
for the Deaf, a division of the Rochester
Institute of Technology, located in Rochester,
New York, provides educational programs that
focus on careers and are geared towards helping
hearing-impaired individuals o btain marketable
skills in a s ociety that i ncreasingly relies on
technology. H oward University, in Washington,
D.C., is a comprehensive university that offers
instruction in seven teen schools and colleges and
was e stablished primarily t o support African
American students.
The deputy secretary serves as the principal
policy adviser to the secretary on all major
program and management issues and is respon-
sible for the department’s internal management
and daily operations. The deputy oversees the
Executive Management Committee and the
Reinvention Coordination Council, coordinates
federal-state relations, and serves as acting
secretary in the secretary’s absence.
The undersecretary advises the secretary on

matters relating to program plans and budget.
Through the Planning and Evaluation Service and
the Budget Service, this officer directs, coordi-
nates, and recommends policy and administers
analytical studies on the economic, social, and
institutional effect of existing and proposed
policies, legislative proposals, and program
operations.
Program Offices
Bilingual Education and Minority L anguages
Affairs The Office of Bilingual Education
and Minority Languages Affairs funds pro-
grams designed to help persons with limited
English proficiency participate effectively in
classrooms and work environments in which
English is the primary language. This task is
accomplished through 14 grant programs and
one formula grant program, as well as through
contracts for research and evaluation, technical
assistance, and clearinghouse activities.
Civil Rights The
CIVIL RIGHTS Office enforces
federal statutes that prohibit discrimination
based on race, color, national origin, sex, age,
or handicapping condition in education pro-
grams receiving federal financial assistance.
Civil rights laws extend to a wide range of
educational institutions, including every school
district, college, and university as well as
proprietary schools, libraries, museums, and

correctional facilities.
Educational Research and Imp rovement The
primary function of the Office of Educational
Research and Improvement is to gather, ana-
lyze, and make available to the public statistical
and other types of information about the
condition of U.S. education. This work is
accomplished through the dissemination of
information and research findings about suc-
cessful education practices, student achieve-
ments, and nationally significant model pro-
jects. The office also supports a wide range of
research and development activities and pro-
motes the use of technology in education.
Elementary and Secondary Education The
Office of Elementary and Secondary Education
formulates policy for and directs and coordi-
nates activities relating to preschool, elemen-
tary, and secondary education. Grants and
contracts are awarded to state educational
agencies, local school districts, post-secondary
schools, and nonprofit organizations for com-
pensatory, migrant, and Indian programs; drug-
free programs ; other school improvement
programs; and impact aid, which compensates
school districts for the loss of property taxes for
students who live on federally owned property
such as military bases or Indian reservations.
Post-secondary Education The Post-second-
ary Education Office formulates policy and

directs and coordinates programs for assistance
to post-secondary institutions and to students
who need financial assistance to attend college
or a vocational training center. Financial aid
is awarded in the form of grants, loans, and
jobs. In addition, this office provides support
for institutional development, student services,
housing and facilities, veterans’ affairs, cooper-
ative education, international and graduate
education, colleges for African Americans,
foreign language and area studies, and innova-
tive teaching methods and practices.
Special Educational and Rehabilitation
Services The Office of Special Educational
and Rehabilitation Services supports programs
that help educate children with special needs,
provides for the rehabilitation of youths and
adults with disabilities, and supports research to
improve the life of individuals with disabilities
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
EDUCATION DEPARTMENT 73
regardless of age. Programs include support for
the training of teachers and other professional
personnel; grants for research; financial aid to
help states initiate, expand, and improve their
resources; and media services and captioned
films for hearing-impaired individuals.
Vocational and Adult Education Grant, con-
tract, and technical assistance programs for
vocational-technical education and adult edu-

cation and literacy are administered through the
Office of Vocational and Adult Education. This
office also works with the
DEPARTMENT OF LABOR
in administering the School-to-Work Opportu-
nities Initiative, which helps states and localities
design and build innovative systems to prepare
youths for college and careers.
Staff Offices
Assistant Secretary for Management The
assistant secretary for management provides
the deputy secretary with advice and guidance
on administrative management and is responsi-
ble for activities involving personnel, training,
grants and procurement management, manage-
ment evaluation, automated data proce ssing,
and other support functions.
Chief Financial Officer The chief financial
officer manages grants and contract services and
oversees financial management, financial con-
trol and accounting, and program analysis.
Assistant Secretary of Intergovernmental and
Interagency Affairs The assistant secretary of
intergovernmental and interagency affairs acts
as a liaison to state and local governments and
other federal agencies and oversees the ten DOE
regional offices.
Inspector General The inspector general
audits and investigates programs and operations
to promote their efficiency and effectiveness

and to detect and prevent
FRAUD, waste, and
abuse. This officer seeks to recover misused
federal funds through courts and administrative
procedures and, in cooperation with the
DEPARTMENT OF JUSTICE, prosecutes wrongdoers.
General Counsel As the chief legal adviser to
the secretary and other department officials, the
general counsel directs, coordinates, and recom-
mends policy for activities involving the prepa-
ration of legal documents and department rules
and regulations, including proposed or pending
legislation.
Public Affairs Director The public affairs
director, who reports directly to the secretary,
develops and coordinates public affairs poli cy
and serves as the chief public information
officer.
Assistant Secretary for Legislation and Con-
gressional Affairs The assistant secretary for
legislation and congressional affairs serves as the
principal adviser to the deputy secretary on the
DOE legislative program and congressional
relations.
FURTHER READINGS
U.S. Department of Education website. www.ed.gov
(accessed October 7, 2009.)
U.S. Department of Education. October 20, 1995. “How We
Help America Learn: A Summary of Major Activities.”
National Library of Education website. .

gov/NLE (accessed November 25, 2009).
———. 1994. National Education Goals Report. Washing-
ton, D.C.: Government Printing Office. .
gov/NLE (accessed November 25, 2009).
———. September 5, 1995. “U.S. Department of Education
Staff Organization.” U.S. Department of Education
website. (accessed November
25, 2009).
CROSS REFERENCES
Colleges and Univer sities; School Desegr egation; Schools
and School Districts.
EDUCATION LAW
Education law is the body of state and federal
constitutional provisions; local, state, and federal
statutes; court opinions; and government regula-
tions that provide the legal framework for
educational institutions.
The laws that control public education can
be divided into two categories: those written
exclusively for schools and those pertaining to
society in general. Federal statutes regarding
the education of children with disabilities are
an example of the former, and Title VII (
CIVIL
RIGHTS
Act of 1964 , §§ 701 et seq., as amended,
42 U.S.C.A. §§ 2000e et seq.), a federal statute
that covers employment in schools and
elsewhere, is an example of the latter. Much
of the litigation, legislation, and debate in

education law has concerned eight main issues:
student speech and expression; searches of
students; the separation of church and state;
racial segregation; the education of disabled
children;
EMPLOYMENT LAW; employee SEXUAL
HARASSMENT
and abuse of students; instructional
programming; and the financing of public
education.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
74 EDUCATION LAW
History
Throughout U.S. history, government, in one
form or another, has expressed an interest in
education. Indeed, this interest predates the
American Revolution by more than 100 years.
In 1647, the General Court of the Colony of
Massachusetts Bay passed the Old Deluder Satan
Act. Section 2 of that act provided that “when
any town increased to one hundred families or
households, a grammar school would be estab-
lished with a master capable of preparing young
people for university level study.” The Massa-
chusetts Bay Colony was not unique in its
concern for education: Other colonies also gave
unrestricted aid to local education through land
grants and appropriations of money. Both forms
of support were adopted later by the
CONTINENTAL

CONGRESS
and the CONGRESS OF THE UNITED STATES.
The first measure enacted by the federal
government in support of education came when
the Continental Congress passed the Ordinance
of 1785, which disposed of lands in the Western
Territory and reserved section 16 of each con-
gressional township for the support of schools.
Two years later, the same Congress passed the
NORTHWEST ORDINANCE, which was the first policy
statement by Congress with respect to education.
Its third article recognizes knowledge as being
essential to good government and to the public
welfare, and it encourages happiness of mankind,
schools, and the means of education.
These early acts by the colonies, and support
from the federal Congress, forged a partnership
in public education that continues to modern
times. This partnership has thrived despite the
absence of any explicit reference to education in
the Constitution. The legal authority for the
intrusion of the federal government into
education is based on an interpretation given
to the
GENERAL WELFARE clause of the Constitu -
tion, which reads, “The Congress shall have
Power To lay and collect Taxes, Duties, Imposts
and Excises to pay the Debts and provide for the
common Defence and general Welfare of the
United States” (art. I, § 8).

The
TENTH AMENDMENT to the Const itution
provides the basis in legal theory f or making
education a function of the states. It reads: “The
powers not delegated to the United States by
the Constitution, nor prohibited by it to the States,
are rese rved to the St ates respectively, or to the
people.” Although this amendment d oes not
specifically direct the states to assume the respon-
sibility for providing education, its e ffect has b een
no less. Each state constitution provides for the
establishment of a stat ewide school system. Some
state constitutions define in detail the structure for
organizing and m aintaining a system of public
education; others merely accept that responsibility
and delegate authority for its implementation to
the s tate legislature. The U.S. Supreme Court and
the state courts have consisten tly ruled that
education is a function of the states.
Student Speech and the First
Amendment
In the mid-twentieth century, the U.S. Supreme
Court began to recognize that children do not
give up their constitutional rights as a condition
of attending public school. The Court acknowl-
edged that the public school is an appropriate
setting in which to instill a respect for these
rights. Freedom of expression is perhaps the
most preciously shielded of individual liberties,
and the Court has noted that it must receive

“scrupulous protection” in schools “if we are
not to strangle the free mind at its source and
teach youth to discount important principles of
our government as mere platitudes” (West
Virginia Board of Education v. Barnette, 319 U.S.
624, 63 S. Ct. 1178, 87 L. Ed. 1628 [1943]).
The Court also has recognized that
schools function as a “marketplace of ideas”
and that the “robust exchange of ideas is
a special concern of the First Amendment”
(Keyishian v. Board of Regents, 385 U.S. 589, 87
S. Ct. 675, 17 L. Ed. 2d 629 [1967]).
Tinker v. Des Moines
addressed the scope of
students’ freedom of
expression in public
schools. The case
arose from an
incident in which
students, including
Mary Beth and John
Tinker (pictured),
were suspended for
wearing black
armbands in protest
of the Vietnam War.
CORBIS-BETTMANN.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
EDUCATION LAW 75

Nevertheless, the right to free expression can
be restricted. As Justice Oliver Wendell Holmes
Jr. noted,
FREEDOM OF SPEECH does not allow an
individual to yell “Fire!” in a crowded theater
when there is no fire (Schenck v. United States,
249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]). A
determination that specific conduct communi-
cates an idea does not ensure constitutional
protection. The judiciary has recognized that
defamatory, obscene, and inflammatory expres-
sion may fall outside the protections of the
FIRST
AMENDMENT
. Moreover, the Supreme Court has
acknowledged that “the constitutional rights of
students in public school are not automatically
coextensive with the rights of adults in other
settings” (Bethel Sch. Dist. 403 v. Fraser, 478 U.S.
675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 [1986]).
Accordingly, students’ rights to free expression
may be restricted by policies that are reasonably
designed to take into account the special
circumstances of the educational environment.
It was not until 1969 that the Supreme
Court specifically addressed the scope of
students’ freedom of expression in public
schools. Its landmark decision in this area,
Tinker v. Des Moines Independent Community
School District, 393 U.S. 503, 89 S. Ct. 733, 21 L.

Ed. 2d 731 (1969), often is referred to as the
Magna Carta of students’ rights. Tinker arose
from an incident in which students were
suspended for wearing black armbands to
protest the
VIETNAM WAR. Concluding that school
authorities had suspended the students for
expression that was not accompanied by any
disorder or disturbance, the U.S. Supreme
Court ruled that “undifferentiated fear or
apprehension of disturbance is not enough to
overcome the right to freedom of expression.”
For almost two decades, lower courts
interpreted the Tinker mandate broadly, apply-
ing it to contro versies involving a range
of expressive activities by students, school-
sponsored and otherwise. Although Tinker has
not been overturned, the Court limited the
application of its principle in the late 1980s and
early 1990s, beginning with the 1986 decision of
Bethel School Dist. 403 v. Fraser. In Fraser, the
Court upheld disciplinary action taken against a
student for using a sexual metaphor in a
nominating speech during a student govern-
ment assembly. The Court recognized that the
inculcation of fundamental values of civility is
an important objective of public schools and
that a school board has the authority to
determine what manner of speech is inappro-
priate in classes and assemblies.

Two years after Fraser, the Court affirmed
the right of a school principal to delete two
pages from the school newspaper because of
the content of arti cles on divorce and teen-
age pregnancy ( Hazelwood School District v.
Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L.
Ed. 2d 592 [1988]). The Court acknowledged
school authorities’ broad discretion to ensure
that expression appearing to bear the school’s
imprimatur is consistent with educational
objectives. Further, the Court expansively
interpreted the category of student expression
that is subject to
CENSORSHIP as that which occurs
in school publications and in all school-
sponsored activities. In both Hazelwood and
Fraser, the Court indicated that school authori-
ties could determ ine for themselves the expres-
sion that is consistent with their schools’
objectives.
The Supreme Court, in Morse v. Frederick,
551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290
(2007), extended the power of school authori-
ties to regulate speech. A principal may restrict
student speech at a school-supervised event
when that speech is reasonably viewed as
promoting illegal drug use. The student in
question displayed a banner reading “Bong Hits
4 Jesus” across the street from the school he
attended. Because he had been excused for a

school event, school officials could discipline
him for violating the school district’s anti-drug
policy. The Court reaffirmed Tinker and made
clear that schools had an “important, indeed,
perhaps compelling interest” in deterring drug
use by students.
Although many questions remain unan-
swered concerning the application of the First
Amendment guarantee of free speech in the
unique forum of the public school, the law does
seem to be settled in the following areas:
n
School offici als may discipline students
whose speech or expression materially
and substantially disrupts the educational
environment (Bethel School Dist. 403 v.
Fraser).
n
School administrators may reasonably reg-
ulate the content and distribution of
printed material at school (Hazelwood
School Dist. v. Kuhlmeier).
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
76 EDUCATION LAW
n
The Equal Access Act (Pub. L. 98-377, Title
VIII, Aug. 11, 1984, 98 Stat. 1302 [20 U.S.
C.A. §§ 4 071 et seq.])requiresaschoolto
permit religious student groups to meet
during non-instructional time i f the school

permits other extracurricular groups to
meet in the same or a similar manner
(Board of Education v. Mergens, 496 U.S.
226, 110 S. Ct. 2 356, 110 L. Ed. 2d 191
[1990]).
n
School officials have far more control and
flexibility in selecting and rejecting curric-
ular materials than they do in deciding
about library books and magazines (Board
of Education v. Pico, 457 U.S. 853, 853, 102
S. Ct. 2799, 73 L. Ed. 2d 435 (1982), 4 Ed.
Law Rep. 1013 [1982]).
n
School officials may make judgments on
the appropriateness of student speech in
school, based on the content of the speech,
when that speech is vulgar or otherwise
offensiveinnature(Bethel School Dist.
403 v. Fraser).
n
School officials may reasonably regulate
student speech and expression when its
exercise either intrudes on the rights of others
or is in some way inconsistent with a school’s
overall curricular mission (see Fraser).
Searches of Students and Lockers
The FOURTH AMENDMENT to the U.S. Constitution
provides that “the right of the people to be
secure in their persons, houses, papers, and

effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause.” This
provision is made applicable to the states
through the due process clause of the
FOUR-
TEENTH AMENDMENT
.
The Supreme Court has stated that the
BILL
OF RIGHTS
(the first ten amendments to the
Constitution) is applicable to children, even in a
classroom setting. To paraphrase the Court in
Tinker, students do not shed their rights at the
schoolhouse gates. Does the Tinker ruling
suggest that the Fourth Amendment protection
from unreasonable searches extends to public
schools? Must a principal obtain a warrant
before searching students or their lockers? Are
principals to be held to the “probable cause”
standard that is generally required by the Fourth
Amendment? These are important questions
because evidence of wrongdoing that is obtained
in an illegal search is generally inadmissible; that
is, it must be excluded from consideration at
trial. The issue of admissibility of evidence is
especially critical when school officials are
searching for drugs, alcohol, or weapons.
The U.S. Supreme Court addressed these

questions in 1985, in New Jersey v. T.L.O., 469
U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720. The
case involved a 14-year-old girl, T.L.O., and a
female companion, whom a teacher observed
smoking in the girls’ restroom in violatio n of
school rules. T.L.O. denied smoking on that
occasion and claimed she did not smoke at all.
The assistant principal opened T.L.O.’s purse
and found a pac k of cigarettes. While searching
the purse, he also discovered evidence of
marijuana possession, use, and sale. He then
called the police. T.L.O. subsequently admitted
her involvement in selling marijuana to other
students, but she sought to have the evidence
excluded in criminal court on the ground that
the search violated her rights under the New
Jersey Constitution and the Fourth Amendment
to the U.S. Constitution.
This issue was litigated at three levels in the
New Jersey courts and finally decided by the
U.S. Supreme Court. The Court held that
the assistant principal did not need a warrant
to search T.L.O. and that the reduced stan dard
of “reasonable suspicion” governs school
searches. The Court established a two-pronged
test of reasonableness: (1) the search must be
justified at its inception; and (2) as conducted,
the search must be reasonably related in scope
to the circumstances. The Court weighed T.L.
O.’s interest in privacy against the school’s need

to obtain evidence of violations of school rules
and of the law. The result tipped the scale in
favor of broad school discretion in searching for
contraband in students’ pockets, purses, and
lockers.
State and federal courts have expanded the
scope of T.L.O. since it was decided in 1985.
The reasonable-suspicion standard has survived
student challenges in searches of lockers, desks,
and cars in school parking lots.
A 1995 ruling by the U.S. Supreme Court
continued the erosion of students’ Fourth
Amendment rights that began with the T.L.O.
decision. In Vernonia School District 471 v.
Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed.
2d 564, the Court rejected a constitutional
challenge to a public school district’s random
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
EDUCATION LAW 77
urinalysis testing program for students who
participate in interscholastic athletics. In exam-
ining the “nature of the privacy interest” at
stake, the Court explained that public-school
children generally have diminished privacy
interests because they require constant supervi-
sion and control. Athletes further have their
privacy interests diminished, the Court wrote,
because they regularly undergo physical exams
and routinely experience conditions of “com-
munal undress” in locker rooms. The court held

that the district’s random testing program was
minimally intrusive because the program re-
quired urine collection under conditions that
were virtually identical to those that students
confront in public-school restrooms. Finally, the
Court found several goals of the school district
to be sufficiently compelling to justify random
testing: deterring drug use in schoolchildren,
maintaining the functi oning of the schools, and
protecting athletes from drug-related injury.
The Court’s ruling enabled school systems that
follow the procedures approved in Vernonia to
test student athletes randomly for drugs. It
remained unclear, however, whether school
districts may conduct drug testing of students
who are not involved in athletics.
Drugs are not the only items that are subject
to searches by schools, and searches are not
limited to high-school students. In Jenkins v.
Talladega City Board of Education, 115 F.3d 821
(11th Cir. 1997), the Eleventh
CIRCUIT COURT of
Appeals held that two eight-year-old girls who
were subject to two strip searches could not
recover under theories that the teachers who had
conducted the searches had violated state and
federal law. Both teachers, along with the
superintendent of the school district, were
protected by qualified immunity, which applies
when a state actor’s conduct does not violate

“clearly established statutory or constitutional
rights of which a
REASONABLE PERSON would have
known.”
The case arose when a schoolteacher in
Talladega, Alabama, suspected that two second-
grade girls had stolen money from a classmate.
The teacher, along with a guidance counselor,
subjected the girls to two strip searches in the
girls’ restroom at the school. Both searches
proved fruitless. The parents of the children
later brought an action alleging that the teachers
had violated the girls’ rights under the First
and Four teenth Amendments of the U.S.
Constitution, Title IX of the Education Amend-
ments of 1972 (20 U.S.C.A. § 1681), and
Alabama law. The U.S. district court for the
Northern District of Alabama granted
SUMMARY
JUDGMENT
in favor of the defendants, holding that
they were immune from the suit as state actors
acting within their official capacities.
Although a panel of the Eleventh Circuit
reversed part of the district court ’s decision, the
full court affirmed the dismissal of the case. The
CASE LAW governing these types of searches was
T.L.O., but the U.S. Supreme Court’s decision,
according to the majority in Jenkins, was not
defined clearly enough to put defendants on

notice that their actions were unconstitutional
or contrary to the law. For example, T.L.O. did
not clarify whether a search of a younger
student was more intrusive than one of an
older student; whether a search of a girl was
more intrusive than a search of a boy; or what
kind of infraction is serious enough to warrant a
strip search. Without this information, held the
Jenkins majority, the defendants could not have
known that their actions were unconstitutional.
They were, therefore, immune from suit.
Separation of Church and State
The First Amendment provides that “Congress
shall make no law respecting an establishment
of
RELIGION, or prohibiting the free exercise
thereof.” The First Amendment has been
incorporated into the Fourteenth Amendment
and applies to the states and their subdivisions.
The first provision is called the establishment
clause; the second, the free exercise clause. Thus,
the guarantee of religious freedom has a double
aspect. The establishment clause prohibits laws
requiring that anyone accept any belief or creed
or the practice of any form of worship. Courts
have relied on the establishment clause to nullify
numerous practices in public schools, such as
offering school-prescribed prayers in classrooms
and at commencement exercises, posting the Ten
Commandments in classrooms, requiring Bible

reading, displaying religious symbols, observing
moments of silence, studying scientific creation-
ism, and distributing Bibles.
The free exercise clause safeguards the
freedom to engage in a chosen form of religion.
Again, practices in the public schools have
produced a host of litigation on this clause of
the First Amendment. Parents with strong
religious convictions have brought numerous
suits alleging that a part of the science, health,
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
78 EDUCATION LAW