100 Years of School Law

Abstract

history of Phi Delta Kappa International in its first 100 years reflects changes that were taking place in schools and in society at large during that time. Mr. Zirkel looks at how events of this period shaped evolution of school law. It usually takes 100 years to make a law, and then, after it's done its work, it usually takes 100 years to be rid of it. --Henry Ward Beecher AS PART OF centennial celebration of Phi Delta Kappa International, in January 2006 Kappan, Donovan Walling traced history of organization from its founding as three education societies in 1906-09 to present. Here I delineate parallel developments in school law in United States, divided into three approximate periods as defined by landmark dates from PDK's history. I. FOUNDING PHASE initial phase of PDK's history included founding of three education societies in 1906-09, their amalgamation in 1910, and publication of first issue of Kappan in 1916. This period was also essentially founding phase of school law. first school law texts appeared just before and after turn of century, and they reflected relative recency of compulsory education laws and earlier world of institutionalizing common schools and their legal boundaries. While these texts tend to tout enormous amount of litigation in school matters, (1) content of this case law shows an era very different from today in both quantity and quality of litigation. For example, in 1892 Irwin Taylor's text ended with a synopsis of school statutes in each state, but bulk of book consisted of alphabetical entries describing nearly 5,000 cases in courts--a clearly inflated estimate. Consider this excerpt from entry Women Voters, which synthesizes court decisions in Kansas and Illinois: Art. 2, [sections] 23 of Kas. Constitution, which provides that The legislature in providing for formation and regulation of schools, shall make no distinction between rights of males and females, does not confer upon females right to vote for school officers. Ill. Act 1891, authorizing women to vote for superintendent of schools, is unconstitutional in that regard. (2) Next, C. W. Bardeen's 1897 manual ascribes great importance to a decision of New York Department of Public Instruction that interpreted state's education code as, among other things, reserving exclusive authority to teachers for the method of imparting instruction ..., assign[ing] seats to scholars, [and] regulat[ing] order in which recitations of classes, pursuing different studies taught in school, are to be held. (3) My personal favorite, though, is this excerpt from a 1907 compilation of school laws by Pennsylvania's state superintendent of public instruction, setting forth one of basic duties of school boards: [T]he boards of school directors ... of each school district of this Commonwealth ... are hereby required at least once during each full school term ... to have taken out, removed and hauled away all excrement and waste matter from every out-house or water closet connected with or standing upon premises of every public school-house in Commonwealth. (4) Harvey Vorhees' 1916 text reminds us that application of establishment clause of First Amendment to states, including their public schools, is quite a recent development. More specifically, at time of his text, Vorhees observed that prevailing weight of judicial authority was that reading of Bible, repeating of Lord's Prayer, and singing of religious songs are lawful. (5) Similarly, Harry Trusler's rather scholarly compendium in 1927 observed that separate but equal applies to public schools for colored children and that school boards may refuse to employ a married woman as a teacher. …