In this month’s Lead the Change interview Preston Green highlights issues, challenges and opportunities for scholars to use legal theories and tools to pursue educational equity. Green is the John and Maria Neag Professor of Urban Education at the University of Connecticut, where he is also a professor of educational leadership and law. The LtC series is produced by Alex Lamb and colleagues from the Educational Change Special Interest Group of the American Educational Research Association. A pdf of the fully formatted interview is available on the LtC website
Lead the Change: The 2023 AERA theme is “Interrogating Consequential Education Research in Pursuit of Truth” and charges researchers and practitioners with creating and using education research to disrupt institutionalized forms of discrimination. The call urges scholars to challenge traditional methods of inquiry in order to create increasingly useful, responsive, and equity-oriented research that can be used by schools to develop informed policies and practices to better support students. Where does research focused on the legal principles and ramifications of particular policies fit in with the call? With educational change more broadly?
Preston Green: Scholars, through their research and advocacy, can help bring about the passage of laws that cause schools to adopt equitable policies and practices. School desegregation is an example. Indeed, the most famous instance of the power of research is the expert social science testimony co-authored by Dr. Kenneth Clark, which the Supreme Court cited in Brown v. Board of Education (Legal Defense Fund, 2022). To this day, scholars are conducting research that identifies the benefits of school desegregation and the policies that bring about desegregation, even though the judiciary is less supportive.
“Scholars, through their research and advocacy, can help bring about the passage of laws that cause schools to adopt equitable policies and practices.”
Additionally, educational research can encourage the passage of laws that cause schools to cease classroom practices that disproportionately harm minority groups. For example, scholars have documented the disparate suspension and expulsion rates experienced by Black students and students with disabilities. They have urged policymakers to use the legal tools at their disposal to guard against the educational practices that create these disparities. This effort helped lead to the U.S. Department of Education’s Office for Civil Rights (OCR) issuing a Dear Colleague Letter in 2014 that provided guidance for implementing disciplinary policies that do not unduly impact Black students. Although the Trump administration subsequently rescinded this guidance, the Biden administration is considering its reinstatement (Belsha, 2022). The Biden administration also issued federal guidance advising school districts to protect the civil rights of students with disabilities (Belsha, 2022). Researchers can continue to provide support for the adoption of policies and laws at both the federal and state levels that cause schools to develop disciplinary practices that do not unduly impact Black students.
Similarly, scholars can conduct research and develop legal theories that will protect LGBTQ+ students from discriminatory treatment and harassment. Due in part to their research and advocacy, the OCR issued a notice of interpretation declaring that Title IX, the federal statute that forbids sex discrimination by schools, encompasses “discrimination based on sexual orientation and gender identity” (U.S. Department of Education, 2021). However, the Supreme Court’s recent ruling in Carson v. Makin (2022), which held that Maine could not prohibit parents from using tuition assistance funds for education at parochial schools, is very concerning for LGBTQ+ students, parents, and teachers. Scholars can continue to play a role in this ongoing fight against discrimination.
With respect to educational change more broadly, research based on legal principles can help policymakers adopt laws that protect students and communities. Educational privatization is illustrative. Supporters of privatization have asserted that educational reforms, such as school vouchers and charter schools, will help minority communities obtain educational outcomes that have proven elusive in the traditional public-school setting. However, in exchange for these educational benefits—which are not guaranteed—students and communities may forfeit constitutional rights and community resources (Green & Connery, 2022). This example shows that scholars must be sure to study the possible legal tradeoffs posed by any broad proposal for educational change.
LtC: Recently, there have been a rash of Supreme Court decisions that have fundamentally reshaped American society and schools including, but not limited to, women’s rights to bodily autonomy, guns, the use of public funds for religious schooling, and shifting rules regarding prayer in schools. Your work examines how law shapes education broadly and specifically. How might educational change scholars understand the impact of some of these rulings on the U.S. education system?
PG: Educational scholars should understand that the recent outbreak of Supreme Court decisions signals the Court’s willingness to reject decades of legal precedent. Legal precedent refers to the concept that court decisions serve as legal authority for deciding future cases with similar facts and issues (Legal Information Institute, 2020). Individuals and institutions come to rely on the protections and rights created by these decisions. Because of this reliance on precedent, many supporters of abortion were shocked by the Supreme Court’s Dobbs v. Jackson Women’s Health decision (2022), which overturned Roe v. Wade (1973). Justice Clarence’s Thomas’s concurrence, which declared that protections for birth control, same-sex intimacy, and same-sex marriage were also in danger, was even more stunning.
Similarly, the Court’s religion decisions this past term indicate that long-standing legal precedents in education are no longer safe. In Kennedy v. Bremerton School District (2022), the Court ruled that a school district violated the Free Exercise Clause by disciplining a public-school coach for praying after games in view of his players. Lupu and Tuttle (2022) explain that the Court’s decision ignored sixty years of precedent under the Establishment Clause, which gave schools the authority to police the “communication between a coach or teacher and those under their charge.” Instead, the Court implemented a rule requiring the Establishment Clause to be interpreted based on the historical understanding of the Founding Fathers. One can infer from this language that the Court might soon permit teachers to lead students in prayer (Lupu & Tuttle, 2022).
In addition to the concerns about LGBTQ+ discrimination discussed above, Carson v. Makin (2022) has major implications for charter schools. Charter schools are often defined as public schools that must operate in a secular manner. However, charter schools have many private characteristics, which could cause the Supreme Court to categorize them as a private school option. If the Court ruled this way, then states would have to provide funding for religious charter schools. Indeed, Justice Breyer raised this possibility in his dissenting opinion in the Carson case. States that disagree with this situation might respond either by capping the number of charter schools or dismantling this choice option altogether.
LtC: How can those educational scholars and practitioners who wish to take civic action against discriminatory legal precedent engage in such efforts effectively?
PG: Because of the solid conservative majority in the Supreme Court, it will be difficult for scholars and practitioners to challenge discriminatory practices in the federal courts. Therefore, they should also look to state law for protections. School finance litigation provides an example of this approach. After the Supreme Court ruled in San Antonio Independent School District v. Rodriguez in 1973 that the Equal Protection Clause permits school funding disparities created by local property taxation, plaintiffs then challenged school finance formulas through state courts. School finance scholars, educational historians, and legal theorists have provided the research that have helped attorneys push for increased resources for disadvantaged communities.
A school desegregation case, Sheff v. O’Neill (1996) also demonstrates how educational researchers can help litigators challenge discriminatory practices in state courts. After the Supreme Court ruled that de facto segregation – racial separation that is not caused by intentional governmental policies – did not violate the Constitution, the federal courts became a much less effective venue for combatting school segregation. Lead attorney John Brittain and his colleagues responded to this obstacle by convincing the Connecticut Supreme Court that de facto segregation violated the state constitution. Brittain supported this claim using expert testimony from educational scholars who showed the negative impact that school segregation had on Hartford’s urban schools.
LtC: What issues of law, education, policy, and change do you see as ripe for research in the coming months and years?
PG: One topic that is ripe for research is the relationship between race and school funding. Despite decades of school desegregation and school finance litigation, a report by the non-profit group EdBuild found that school districts serving predominantly nonwhite students received $23 billion less than white districts during the 2015–16 school year. According to the report, the average nonwhite district received $2,226 less than a white school district per student. Racial disparities remained even after controlling for wealth: Poor-white school districts still received around $1,500 more per student than their poor-nonwhite counterparts (cited by Green, Baker, and Oluwole 2021).
“Scholars and practitioners should also look to state laws for protections.”
Scholars have begun to explore the reasons for these disparities. Culprits include an array of local, state, and federal housing discrimination policies and practices over the course of more than a century (Baker, DiCarlo, & Green, 2022; Lukes & Cleveland, 2021). I sincerely hope that scholars help litigators develop legal strategies and policy solutions to tackle these disparities in the courts and through legislation.
Baker, B., DiCarlo, M., & Green, P. (2022). Segregation and school funding: How housing
discrimination reproduces unequal opportunity. Retrieved August 8, 2022 from https://www.shankerinstitute.org/segfunding
Belsha, K. (2022, July 19). Feds urge schools to reexamine discipline of students with disabilities, calling it ‘an urgent need.’ Retrieved September 1, 2022 from https://www.chalkbeat.org/2022/7/19/23270102/school-discipline-guidance-students-with-disabilities.
Carson v. Makin, 142 U.S. 1987 (2022).
Dobbs v. Jackson Women’s Health, 142 U.S. 2228 (2022).
Green, P., Baker, B., & Oluwole, J. (2021). School finance, race, and reparations. Washington and Lee Journal of Civil Rights and Social Justice, 27, 484-558.
Green, P., & Connery, C. (2022). Beware of educational blackmail: How can we apply lessons from environmental justice to urban charter school growth? South Carolina Law Review, 73, 643-74.
Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407 (2022).
Legal Defense Fund. (2022). A revealing experiment: Brown v. Board and the “Doll Test.” Retrieved September 1, 2022 from https://www.naacpldf.org/brown-vs-board/significance-doll-test/.
Lukes, D., and Cleveland, C. (l2021). The lingering legacy of redlining on school funding, diversity, and performance (Annenberg Institute EdWorkingPaper: 21-363).
Lupu, I. & Tuttle, R. (2022, July 26). Response, Kennedy v. Bremerton School District – A Sledgehammer to the bedrock of nonestablishment. George Washington Law Review On the Docket, https://gwlr.org/kennedy-v-bremerton-school-district-a-sledgehammer-to-the-bedrock-of-nonestablishment/.
Legal Information Institute. (2020). Precedent. Retrieved August 29, 2022 from https://www.law.cornell.edu/wex/precedent.
Roe v. Wade, 410 U.S. 113 (1973).
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
Sheff v. O’Neill, 678 A.2d 1267 (Conn. 1996).
U.S. Department of Education. (2021, June 16). U.S. Department of Education confirms Title IX
protects students from discrimination based on sexual orientation and gender identity. Retrieved September 1, 2022 from https://www.ed.gov/news/press-releases/us-department-education-confirms-title-ix-protects-students-discrimination-based-sexual-orientation-and-gender-identity.