Mapping the Field of Legal Foundations of Education

• In Event: Educational Foundations: A Book Symposium

Abstract

The title of this volume, Legal Foundations of Education, might suggest a focus on the statutory frameworks states throughout the world have employed to establish, maintain, and regulate school systems and to require parents and guardians to enrol their children in approved educational programs. But this volume and its introductory chapter have a different focus, not least because we have been tasked with identifying and mapping the parameters of a particular field of practice or study.
Education law focuses on the laws and regulations that govern public and private schools, the regulation of curricular and instructional methods, teacher certification standards, teacher employment and labor relations, school safety issues, school funding, school discipline, and the rights and duties of students, teachers, other school personnel, and school administrators (Authors, 2021; Brown et al, 2019; Dayton, 2019). As both a field of practice and a field of study, education law developed in tandem with the judicialization of American education. While they may have analogues elsewhere, they are but shadows rarely discussed without reference to their US forms. Simply put, both education law and judicialization are products of an exceptional state and federal constitutional structure and of American jurisprudence since 1954.
The judicialization of American education is associated with the judicial review of administrative decisions by public school officials in lawsuits filed in the federal courts by or on behalf of students alleging due process and other Constitutional rights violations (Authors, 2021, p. 1). So defined, the judicialization of American education has been facilitated by a number of legal and social developments in the wake of Brown v. Board of Education (1954), including the ascription of limited constitutional rights to minors in public schools and other custodial contexts; the emergence of rights-supportive lawyers, law firms, interest groups, and mythologies; and the expansion of government agency liability and the ensuing proliferation of lawsuits under Section 1983 of the Civil Rights Act of 1871.
Outside the US, it is rare to find courses in education law widely taught in schools of education and in law schools, and rarer still to find large numbers of lawyers and law firms specializing in the field. American pre-eminence in the field owes much to the US Office of Economic Opportunity’s Legal Services Program, which provided legal resources to desegregate public schools, to address disparities in school funding, and to confront racial injustice in the punishment of students (Authors, 2021; see West & Dunn, 2009, pp. 5-6; Arum, 2003, p. 8).
Accordingly, in this volume, we review the legal foundations of education in the United States, focusing on state constitutional guarantees and federal constitutional and statutory rights frameworks. In this introductory chapter, we examine how the Brown decision ultimately contributed to unparalleled judicialization, to the founding of the Education Law Association, and to the emergence of education law as a quintessentially American field of practice and scholarly inquiry.

Author

• Jason Blokhuis, University of Waterloo