America Goes to School: Law, Reform, and Crisis in Public Education

By Robert M. Hardaway | Go to book overview

Chapter Seven
School Violence and the Crisis in Due Process

As documented in the previous chapters, the most important feature of quality education is a safe and disciplined learning environment. Without this essential feature, per capita expenditures, the quality of teaching, textbooks, and facilities amount to little. Unfortunately, however, it is in this most important area of education that American public schools have been deficient.

There are several explanations for their failure. First, the adoption of the Prussian system resulted in placing greater emphasis and reliance on administration and hierarchical control, and reducing the authority of the classroom teacher. Since it is in the classroom where learning actually takes place, the dissipation of classroom teacher authority has had disastrous consequences.

Second, courts having limited expertise in educational matters have applied constitutional principles in ways that have resulted in the denial of equal educational opportunity. The misapplication of constitutional principles is not, of course, only a recent judicial phenomenon. It will be recalled that in the Dred Scott decision, the Supreme Court called upon the sacred principle of due process to enshrine slavery as a constitutional right (on the theory that confiscation of a slaveowner's property was to take his property without due process of law in violation of the Fifth Amendment). This example of judicial perversion of sacred principles is recalled, however, only to make the point that the mere recitation of sacred words found in the Constitution can not serve as a substitute for sound constitutional analysis.

Nor in the judicial cases dealing with public education should use of the phrase due process be permitted to obscure the natural right of every child to an education that provides an opportunity to pursue success and happiness in society. There is a touch of irony in the fact that while that Supreme Court has applied the concept of due process to justify slavery as a constitutional right, the Constitution itself provides no citizen the right to an education. 1 Rather it has been incumbent on each individual state in the exercise of its police powers

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