The Edjurist - Information on School and Educational Law

So, for my scholarly post for the week, I am going to talk about my democratic vision for school law. I have been teaching school law for a few years now and I have been consistently struck by the idea that we education law folks are very good at teaching our content areas such as torts and contracts (I would argue we do the best job in all of ed. leader prep., but that might get me in a little trouble). However, in my experience, we are not so good at teaching about the law or providing a vision for why school personnel need to know about the law. Specifically, I do not think we are talking nearly enough about how democracy works, the school's role within democratic systems, and how the school code is nothing but a public articulation of their intentions for schools.

I've read a lot of school law texts and democracy is rarely, if ever, mentioned. I just did a quick scan of all the school law texts on my shelf and I didn't see the word democracy mentioned in any of their opening pages. This is very unfortunate in my opinion because we are failing to articulate the fundamental justification for our work.

So, if not some democratic rationale, you may ask, how do we currently justify legal education for school personnel? Well, there are a few different patterns. First, there is the "your gonna need this" tact ... consider Alexander and Alexander (1):

it is necessary for the school law student to be versed in certain fundamental concepts of the American legal system and to be able to apply this knowledge to situations that daily affect school operation.

Then, there is the fear tactic ... consider Underwood and Webb (vii):

Education is rife with laws, regulations, processes, and procedures. Educators are expected to know and act within all of these boundaries. Classroom teachers face a daunting array of legal responsibilities and confront myriad legal issues on an almost daily basis. ... America has become an increasingly litigious society. [Cite Stats on lawsuits and fear of litigation].

Of course, there is the fixing misunderstandings angle ... consider Thomas, Cambron-McCabe and McCarthy (xii):

Many teachers and administrators harbor misunderstandings regarding basic legal concepts that are being applied to education institutions. As a result, they are uncertain about the legality of daily decisions they make in the operation of schools.

A popular one these days is the "preventative law" argument that can supposedly save us all money ... consider Redfield (xii):

Understanding the law will help educational leaders in discerning current responsibilities as well as in predicting future responsibilities and liabilities. Such understanding can help educators and advocates in determining what is and is not a legal issue, when to appropriately consult legal counsel, and how to minimize conflict.

And, then there is sometimes a "its your responsibility" tact. Consider this single line, without any further articulation, from Russo (1):

"Public schooling in the United States is an instrumentality for carrying out a function that society agrees is a desirable one, the education of all children of all the people."

Then, the books all launch into the constitution, federalism, school boards, the judicial system ... and then into topical areas ... torts, church/state, special education, etc. And many go directly to largely caselaw with some followup analysis. All of the texts have a little more to say and admittedly I quoted only the parts most relevant for this entry, but none go over 1-2 pages of additional explanation about the nature of law in the representative, constitutional, liberal democracy that is the United States and the various states within it.

Now, all of those above quoted statements are absolutely right in my opinion and I do not disagree with any of those reasons. But, where do students understand democracy? Where is that chapter? An understanding of democracy is essential to leading public organizations in this country, yet we assume people come ready-made with such an understanding to our ed. law courses, do we not? We assume they understand that votes translate into representatives who propose ideas some of which are adopted and that this is the public's articulation of its intent. We assume they know why schools exist and how they exist and how, if we wanted to, we could stop their existence.

Consider Russo's quote above again, because that quote gets at the heart of what public education is. But, where is the next sentence? What society? How and when does society articulate that? Where and who is responsible for all this? And, how do those questions influence our understanding of law, policy, education, schools, employees, students? Yes, these questions are tied in with the legal framework, but how do we understand what the commerce clause is, not just what the commerce clause says? And how does all that influence the rationale behind providing educational law instruction to future educators?

So, since this post is too long already, here is a vision I would like to see be articulated more frequently for what school law is and why we need it. I would be interested in hearing your thoughts both pro and con as I have not fully articulated this yet myself, but it is an idea I have been playing around with for a couple years:

School leaders and other personnel are relegated the democratic responsibility to provide for the nation's future, i.e. it is one of our democracy's ways of ensuring its continued existence. Fundamentally, that is what the American people, including people in your local community, are asking of our schools and school employees are hired to carry out that fundamental mission in varying capacities. Education is merely an investment in our collective futures and school law is nothing more than an instructional manual toward that end. The laws related to schools are the rules by which we shape that future, as laid down by the existing citizens. We can make our classes more complicated than that if we want to, and I would suggest that good school law courses introduce elements of change and progress within those rules, but the rationale for instruction in school law is that simple and should be more fully articulated as such.