Education Law Commons^™

The Fundamental Right To Education, Derek W. Black

Notre Dame Law Review

New litigation has revived one of the most important questions of constitutional law: Is education a fundamental right? The Court’s previous answers have been disappointing. While the Court has hinted that it might recognize some minimal right to education, it has thus far refused to do so.

To recognize a fundamental right to education, the Court would have to overcome two basic problems. First, the Court needs an originalist theory for why our Constitution protects education, particularly since the word education does not even appear in the Constitution. Second, the right to education implicates complex questions regarding its scope. Those …

Federal Aid To Religious Schools - Introductory Note, Joseph O'Meara

Journal Articles

The American people are confronted by a crisis of constitutional interpretation and educational policy, stemming from the Bishops' program for federal aid to parochial schools. As was to be expected, there has been much partisan clamor on both sides of the school-aid question but far too little rational discourse. That deficiency would be corrected if there were wide response to Monsignor Hochwalt's invitation: " . . . we'd like that whole question of whether we should or we shouldn't [receive financial aid from the federal government] and the constitutionality and desirability and all the rest of it to be discussed …

Religious Education And The Historical Method Of Constitution Interpretation - A Review Article, Robert E. Rodes

Journal Articles

Confusion Twice Confounded is sufficiently typical of a growing body of literature to warrant more extensive treatment than is usually accorded in a book review. It analyzes at great length the opinions in the Everson and McCollum cases and criticizes them in the light of the historical background of the First Amendment. Everson, it will be recalled, derived from the Founding Fathers the doctrine that the Constitution required a "wall of separation between church and state," which was not breached by public payment of transportation to and from parochial schools. McCollum used the test laid down in Everson to invalidate …

Church, The State, And Mrs. Mccollum, Clarence Emmett Manion

Journal Articles

On March 8, 1948 the Supreme Court of the United States decided in substance that this language prohibits the tax-supported city school systems of the State of Illinois from assisting and encouraging general religious instruction. Just how a constitutional restriction against specified congressional action can possibly impede the activity of a local Illinois school board is an inglorious mystery of modern constitutional construction.

In one way or another however, and for one reason or many, the Court decided eight to one that when the First Amendment says "Congress" it means, among other things, a local school board and when it …