HOW THE LAWYERS
TOOK OVER EDUCATION
I attended Catholic school for 13 years—first
grade through first year of college.
Very little law applies to Catholic schools.
U.S. Constitution does not apply.
Catholic school is an institution based on TRUST—
We have learned that there are pros and cons to
PUBLIC EDUCATION: THE EARLY, EARLY DAYS
In colonial days, private schooling was the norm.
Thomas Jefferson called for a system of public
schooling for 20 young boys who could not afford
He advocated this plan by saying that it would
enable them to “rake from the rubbish” 20
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EDUCATION, MORALITY AND RELIGION
From the beginning in America, education was
considered a moral enterprise, designed to
inculcate virtue as well as academic achievement.
In the early days a “moral enterprise” was also a
Public schools were overtly Christian and
Protestant. So was America.
In the 19 th Century, public education became
The emphasis on morality continued. Horace
Mann called for school board members to be
“sentinels” who should ensure that every teacher
is “clothed in garments of virtue.”
In the late 19 th and early 20 th Centuries, America
got considerably more diverse.
Some groups (most notably, Catholics) set up their
own system of education.
But many others crowded into public schools.
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Diversity has continued to increase exponentially.
The leadership of Texas public schools continues to
be overwhelmingly mainstream Christian in
religion, and conservative in values.
But the population is very diverse in religion and
THE LAW COMES TO THE PARTY
The first school law case I read: West Virginia State
Board of Education v. Barnette (1943).
Court rules that school cannot require Jehovah’s
Witnesses to recite the Pledge of Allegiance.
The message: Freedom of speech and of religion
will sometimes trump widely held values.
• In 1962, the Supreme Court struck down a state
law requiring the recitation of a prayer written by
the NY Board of Regents.
• In 1963, the Court struck down a Pennsylvania
practice of reading from the Bible and reciting the
Lord’s Prayer over the P.A.
• The message: public school is not a Protestant
Christian institution to which others are invited.
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RELIGIOUS VALUES: MORAL VALUES
These cases made it clear that the Constitution
prohibits public schools from promoting religious
practices and beliefs.
They do not prohibit public schools from
promoting moral values and the beliefs and habits
that underlie those values.
DOWN WITH TRUST: UP WITH LAW
Tinker v. Des Moines—kids acquire 1st
Amendment rights in school.
New Jersey v. T.L.O.—kids acquire 4 th Amendment
rights in school.
Goss v. Lopez—kids acquire the right to due
process, 14 th Amendment rights in school.
The notion that educators can be trusted to do
the right thing slowly erodes.
HERE COMES THE JUDGE
When relationships are based on law rather than
trust, the legal profession is playing on its home
There were no “school lawyers” in the 1950s.
Now we have the Council of School Attorneys, the
School Law Section of the State Bar and numerous
conferences and publications aimed at school
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Our special ed laws epitomize the movement from
trust-based education to law-based education.
Every aspect of special education is constrained by
legal requirements, process and paperwork.
Schools are held accountable through a legal
system of dispute resolution.
WHAT WE NEED IS BALANCE
A system that is based entirely on trust will
facilitate abuse of that trust. It will work well for
some, but not for all.
A system that is based entirely on law will lead to
paralysis, conflict, and resources spent on legal
disputes rather than education.
We need a sensible balance.
BALANCE: A GOOD EXAMPLE
We used to have a trust-based system of
protecting kids from educators who would sexually
It didn’t work so well.
We’ve put some sensible laws in place.
Problems persist, but we have made progress.
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THE BIG CHALLENGE
How do we maintain the notion that education is a
MORAL enterprise without making it a
My modest suggestions for this are on the next
WHAT THE COURTS HAVE NOT SAID
Not a single court case has struck down a school
district’s efforts to inculcate positive values, healthy
habits and strong character for students. Not one.
Schools CAN cultivate virtue.
Virtue is a MORAL term—not a religious one.
WHAT ABOUT POLICY?
What do you think of this?
“The following major ethical principles form a
philosophical judgment and define the moral duties
and virtues implicit in ethical behavior. The District is
committed to the principles of:”
See Next Slide!!
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Respect for others
Pursuit of excellence
Law abidance/civic duty
Leander ISD Policy AE Local
IT STARTS WITH YOU
‣But if you want to cultivate virtue in the kids, you
have to demonstrate it yourself.
‣You should be “CLOTHED IN GARMENTS OF
‣Horace Mann was right.
Walsh, Anderson, Gallegos, Green and Treviño, P.C.
P.O. Box 2156
Austin, Texas 78768
Phone: (512) 454-6864
Fax: (512) 467-9318
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The information in this handout was created by
Walsh, Anderson, Gallegos, Green and Treviño, P.C. It
is intended to be used for general information only
and is not to be considered specific legal advice. If
specific legal advice is sought, consult an attorney.
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