Molly A. Hunter *
Kathleen J. Gebhardt **
Since the 1600s in New England and at least the late 1700s more broadly, colonies, states, and the U.S. Congress have recognized the importance of educational opportunity to prepare children for the responsibilities of citizenship and the challenges of changing times. While a Massachusetts court decided the first litigation for fair school funding in 1819, the modern era of these cases began with decisions in California, New Jersey, and the U.S. Supreme Court in the early 1970s. An attempt to rely on federal equal protection for funding equity in San Antonio Independent School District v. Rodriguez led to the 1973 U.S. Supreme Court decision declaring that education is not a fundamental right under the federal Constitution.
* Director, Education Justice, The National Program at the Education Law Center.
** Executive Director, Children‘s Voices in Colorado; Plaintiffs‘ Lead Counsel in Lobato v. State of Colorado and Dwyer v. State of Colorado.
The authors thank Courtney B. Warren, Associate at Bryan Cave LLP, for research essential to this article.
Gerard Robinson *
Education in the United States is governed by principles of federalism that guide the constitutional relationships between our national government’s three branches and state governments. American federalism was an ideological break from the old ideas of sovereignty under the English governance model that took root in the Constitutional Convention in Philadelphia, which occurred from May 25 to September 17, 1787. On July 13, 1787, while delegates met in Philadelphia to strengthen the Articles of Confederation (later agreeing to abandon it for a Constitution), members of the Congress of the Confederation convened in New York City and enacted the Northwest Ordinance of 1787. It, along with a then prevailing ideology of encouragement, shaped the early foundation of the federal government’s role in state education.
* Resident Fellow at the American Enterprise Institute for Public Policy Research and former Secretary of Education for the Commonwealth of Virginia. Ed.M., Harvard University; B.A., Howard University; A.A. El Camino College. Many thanks for the thoughtful comments of the editors of the University of Richmond Law Review and Professor Kimberly Jenkins Robinson.
Kerrigan O’Malley *
Some judicial opinions are so iconic in their sentiment and pervasive in their reach as to become imprinted on the nation’s collective conscience. Such is the case with these words from Chief Justice Warren in the Supreme Court’s 1954 Brown v. Board of Education decision, holding that racially segregated educational facilities violate an individual‘s rights under the Fourteenth Amendment‘s Equal Protection Clause. In the broader context, these words represent an enduring aspiration that continues to inform policy and signals the need for course correction when legal or judicial discourse strays from equality principles.
Marilyn Armour *
Schools are beset with complex challenges in their efforts to educate students. The tough policies created to ensure safe learn-ing environments appear to be increasingly ineffective, generating racial disproportionality in discipline, academic failure, high dropout rates, and a clear school-to-prison pipeline. The drive to meet the standards on state or national tests have generated pressure-cooker classrooms with little time for students who need more attention or for addressing students‘ emotional or social needs. A growing number of sources suggest that some of these conditions are exacerbated by a lack of teacher preparation in student management, lack of training in culturally competent practices, and gaps in familiarity between students and teachers that reinforce okay-racial stereotypes. Much of this fallout predictably and disproportionately affects economically disadvantaged African American and Hispanic students.
* Director, Institute for Restorative Justice and Restorative Dialogue. Ph.D., School of Social Work, The University of Texas at Austin.
Meredith Johnson Harbach *
If you follow social media, you may have noticed the rash of reporting on battles over public school dress codes and their effects on and implications for girls. Complaints have been registered across the country, including here in Virginia. For example, in September 2014 at the Maggie Walker Governor’s School, administrators announced over the PA system that school officials would be performing a shorts-length spot check. Any girls found to be in violation of the rule would be forced to change; if ten girls broke the rule, all girls would be banned from wearing shorts for a day.
* Associate Professor, University of Richmond School of Law. Thanks to Kimberly Jenkins Robinson for helpful comments during the drafting of this paper, and to John O‘Malley for research assistance. I also thank John Hogan and the editorial staff of the Richmond Law Review for their excellent work on this piece during the editing process.
Jason P. Nance *
Over the last three decades, our nation has witnessed a dramatic change regarding how schools discipline children for disruptive behavior. Empirical evidence during this time period demonstrates that schools increasingly have relied on extreme forms of punishment such as suspensions, expulsions, referrals to law enforcement, and school-based arrests to discipline students for violations of school rules. For example, from the 1972–73 school year to the 2009–10 school year, the number of students expelled or suspended from secondary schools increased from one in thirteen to one in nine. Between 1974 and 2012, the number of out-of-school suspensions increased nationally from 1.7 million to 3.45 million. There is also substantial evidence that referrals to law enforcement and school-based arrests have significantly in-creased in recent years.
* Associate Professor of Law, Associate Director of Education Law and Policy, University of Florida Levin College of Law. I thank the participants of the University of Richmond Law Review’s Allen Chair Symposium on School Inequality for their helpful comments on this topic. I also thank Samanta Franchim, Anthony Kakoyannis, and Laura Liles for their outstanding research assistance. Finally, I thank the University of Richmond Law Review for organizing this symposium and for their editorial help.