The Legal Balancing Act Over Public School Curriculum

The following is an article that was written in Phi Kappa Kappan, a professional journal for educators. It was written by Julie Underwood.

Determining the legality of school curricular policies requires courts to weigh the interests of states, districts, parents, and students.

Conflicts over the public school curriculum nicely illustrate our nation’s preference for balancing legal powers among multiple parties, including the state, the school district, parents, and others.

The state, in fulfillment of its authority, to regulate for the well-being of its residents, and in fulfillment of its obligation to create and maintain public schools, has the authority to impose limits and obligations on both local school districts and parents. In turn — and as long as they remain within those limits — school districts (typically controlled by locally elected boards) have the authority to make educational decisions for their schools, including decisions about the curriculum and methods of instruction, while parents have the right and responsibility to raise their children and control their upbringing. (At the same time, of course, teachers, students, professional associations, local interest groups, the federal government, and other stakeholders have their own ideas about the curriculum and try, in their own ways, to shape what gets taught in public schools.)

No one rule of law explains how to balance these interests. However, the courts generally favor efforts to expand access to knowledge, rather than efforts to restrict it. As stated by the U.S. Supreme Court in Keyishian v. Board of Regents (U.S. 1967), courts will not “tolerate . . . a pall of orthodoxy over the classroom.”

State authority

To carry out their responsibility to provide for the well-being of their citizens, states establish reasonable laws regulating behavior, and sometimes the state’s interest in protecting children can even override parental control. For example, this is the basis for laws that prohibit child labor and require school attendance.

Every state in the country has a compulsory attendance statute (though they vary somewhat in their age requirements and the exemptions they allow), and the courts have always upheld their right to compel attendance, ruling that the education of all citizens is vital to the welfare of the state and that the state has an interest in ensuring all children participate in an educational system. Still, the courts have set some limits on states’ authority in this area:

In Pierce v. Society of Sisters (U.S. 1925), the U.S. Supreme Court found a state law requiring parents to send their children to public (rather than private) schools to be unconstitutional.

In Wisconsin v. Yoder (U.S. 1972), the U.S. Supreme Court exempted an Amish family from the compulsory attendance statute for middle-school-age children because continued education ran counter to the family’s religious tenets and the parents provided alternative education outside the school.

States have some authority over curriculum as well, insofar as they often set minimum curricular requirements for school districts. However, the courts have ruled that this authority is bounded by the constraints set by both the federal and the given state’s constitution. For example:

In Meyer v. Nebraska (U.S. 1923), the U.S. Supreme Court found a state law prohibiting foreign language instruction in any school to be unconstitutional under the Due Process Clause as it was against the interest of private school foreign language teachers’ need for employment and parents’ desire for their children to learn foreign languages.

In Epperson v. Arkansas (U.S. 1968), an Arkansas statute that made the teaching of evolution in public schools illegal was held to be a violation of the Establishment Clause.

Similarly, in Edwards v. Aguillard (U.S. 1987), the U.S. Supreme Court found a Louisiana statute, which required the “equal treatment” of evolution and creation science in state classrooms, to be unconstitutional.

And in Gonzalez v. Douglas (D. Ariz. 2017), a federal District Court ruled that two Arizona curricular statutes banning ethnic studies courses were unconstitutional. The court found an Equal Protection violation in that there was evidence of racial animus in the creation of the statute, and it found Free Speech violations in that there was no legitimate pedagogical rationale behind the statute.

School district authority

Once enrolled in a school, children are subject to its reasonable rules and requirements, both curricular and disciplinary. For example, schools may require that students take controversial subjects, and students must comply with these requirements unless there is clear overriding interest, such as a health concern, disability, or violation of a family’s religious tenets.

The authority to determine the curriculum rests with the district, not individual teachers. Teachers, as employees, must carry out that curriculum and abide by any restrictions, and they do not have a right to use whatever teaching materials and methodologies they choose if this is contrary to school policy. The 6th Circuit Court of Appeals made this clear in Evans-Marshall v. Bd of Ed of Tipp City Exempted Village Sch Dist. (6th Cir. 2010), a case involving a high school English teacher who was dismissed for using classroom assignments and materials without following the appropriate steps for approval. The court stated, “Even to the extent academic freedom, as a constitutional rule, could somehow apply to primary and secondary schools, that does not insulate a teacher’s curricular and pedagogical choices from the school board’s oversight.” (See Under the Law, December 2017, for more detail on this issue.)

Of course, that doesn’t mean school districts can define the curriculum so narrowly that it violates students’ constitutional rights. For example, in Board of Island Trees v. Pico (U.S. 1982), the U.S. Supreme Court held that the school district could not remove books from the school library without a legitimate pedagogical reason. To do so would violate students’ free speech rights to access to information.

On the other end of the spectrum, there are also limits to what districts and schools can require children to study. For example, public school curricula, like state statutes, cannot violate the Establishment Clause. In Deal v. Mercer County Schools (4th Cir. 2018), an ongoing case from the 4th Circuit Court of Appeals, a family alleged that a long-standing “Bible in the Schools” class was unconstitutional as it was intended to inculcate a religion, not merely to teach about religion.

Similarly, in Doe v. Joplin School District (S.D. Mo. 2017), a federal District Court found the school’s use of a religious organization for field trips and curricular material on sex education to be a violation of the Establishment Clause because the Life Choices sex education program and the Victory Ministries abstinence-only program endorsed their Christian beliefs and entangled the district with these religious organizations.

Once districts and schools have defined a legally permissible curriculum, however, courts have given them broad discretion to implement it, even over community and parents’ objections. For example, school districts’ curricular decisions and policies have been upheld in a number of cases:

State ex rel. Andrew v. Webber (Ind. 1886) upheld a requirement that students attend music classes over parental objections.

Mozert v. Hawkins Board of Education (6th Cir. 1987) upheld the use of a required textbook in a basic reading series over an objection that it contained objectionable material.

Brown v. Hot, Sexy & Safer (1st Cir. 1995) upheld a school requirement that students attend an AIDS education assembly.

Herndon v. Chapel Hill-Carrboro City Board of Education (4th Cir. 1996) upheld a district graduation requirement of community service over an objection that it amounted to involuntary servitude.

Leebaert v. Harrington (2nd Cir. 2003) upheld a requirement of health and family life education classes over a parent’s claim that it was contrary to his right to raise his child as he saw fit.

Parker v. Hurley (1st Cir. 2008) upheld the use of a book in primary grades that portrayed diverse families, including a gay marriage, over a parental claim that they should have the opportunity to opt out their child.

And Brinsdon v. McAllen Ind. School District (5th Cir. 2016) upheld a classroom assignment requiring students to memorize and recite the Mexican Pledge of Allegiance and sing the Mexican National anthem as a part of a language exercise.

When facing objections to particular lessons or courses of study, many districts choose to make provisions for parents to opt students out of the given activity or unit. But in general, parents and children must comply with reasonable curricular rules.

No doubt, this balancing act can be a tricky one, but at least the broad parameters are clear: On one hand, the federal constitution has primacy; on the other, each state has the authority to create and control school districts and define their standards and curriculum. As long as these two principles are observed, the courts generally defer to educational decision makers, while preferring to expand, rather than contract, the body of knowledge presented within schools.

Citation: Underwood, J. (2019). Under the law: The legal balancing act over public school curriculum. Phi Delta Kappan, 100 (6), 74-75.

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