Prerequisites: None

Exam Type: No Exam

Despite the extensive documentation of educational inequality in the United States, federal courts have closed off federal constitutional solutions—and left the issues to state law. What should be the contours of state constitutional analysis? Students in this seminar will join in the effort to build state constitutional theories alongside experienced legal experts. The challenge is to devise theories well-grounded in text and history that respond to the range of contemporary challenges currently facing public schools, including the constraints that the Supreme Court has placed on voluntary efforts by school districts and universities to provide greater educational opportunities to students of color. The seminar will pursue theories aiming to 1) ensure that each student has access to a meaningful educational opportunity, including quality basic education along with a range of necessary supportive programs and services; and 2) revitalize a commitment to robust civic preparation as a means for bolstering our democracy in the context of students’ actual experiences and opportunities.

Supporting these goals are the resources of state constitutional texts, past litigated cases, and empirical evidence about the conditions and effects of American schools. Students will first consider prior state court litigation under state constitutions’ education clauses and what these cases have and have not accomplished under the general rubric of securing an “adequate education.” Some courts have established robust definitions of adequacy and used them as a basis for ordering increases in state funding for education and/or the development of more equitable funding formulas. While these advances have been substantial, few courts have ensured effective implementation of their remedies over time and most definitions of adequacy are no longer sufficient for meeting contemporary educational challenges. The seminar will explore what conceptual elements and remedial tools could narrow the gap between stated rights and actual enforcement.

Second, students will develop a legal framework for effectuating the critical role public schools have played historically as a pillar of American democracy. Today, many schools are failing to provide students with the knowledge, skills, and experiences necessary to participate in democratic self-government as adults. The seminar will ask whether a revitalized focus on civic preparation can address current challenges like the prevalence of misinformation, increasing political divisiveness, and the fraying of democratic norms. In addition, students will also consider whether the civics framework can support a focus on methods for promoting positive inclusive school environments for diverse student bodies, reducing racial isolation, and effectively engaging students and parents who may feel alienated from democratic institutions.

The central focus of the seminar will be to consider what kinds of state constitutional theories are conceptually and practically workable with the key criteria of securing meaningful educational opportunity and civic preparation for all students. What constitutes an education that prepares each student to function productively in contemporary society? Multiple current and pending state court litigations about educational adequacy, civic preparation, racial integration, and so-called “anti-DEI” or “anti-CRT” legislation will serve as practical case studies for considering the potential application of the legal theory we develop together.

Note: Students who completed Professor Gregory’s seminar, State Constitutional Litigation and Education Reform, in Spring 2024 cannot enroll in this offering for credit as the two offerings substantially overlap.