BOULDER, CO (December 15, 2022) – In this month’s episode of NEPC Talks Education, Christopher Saldaña interviews Derek Black, professor of law and the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina School of Law, about the role of the law and litigation in educational policy debates about curriculum, school choice, and school funding. His areas of expertise include education law and policy, constitutional law, and civil rights.
Saldaña and Black begin this month’s episode with a conversation about how the courts might intervene in debates over teaching about race and gender in K-12 classrooms. Black explains that issues of discrimination in curriculum are difficult to litigate and that issues of race and gender are governed by different federal statutes. Nevertheless, Black notes the courts could be asked to weigh students’ right to learn about racism and gender identity as well as the free speech rights of teachers and students. He also points out that teachers could, for example, challenge anti-CRT or “anti-woke” laws on due process grounds, forcing courts to determine if state laws have overly ambiguous enforcement mechanisms.
Black explains that on the issues of school choice and school funding the U.S. Supreme Court’s decision in Carson v. Makin is likely to have nationwide implications for the policymaking that provides public monies to fund religious schools. Although the Supreme Court’s decision makes no comment on whether religious schools that receive public monies must abide by state anti-discrimination laws, those issues are almost certainly going to be litigated as states set funding policies post-Carson v Makin. In another instance of how court rulings shape education policy, a recent decision published by the North Carolina Supreme Court compels a recalcitrant state legislature to increase public funding for public schools to improve school quality. According to Black, the decision will have a consequential impact on K-12 school finance equity.
Black recommends stakeholders continue to consider how the courts can offer remedies for past harms and current injustices, but he argues stakeholders should not lose sight of the role of state policymakers. He believes that the most consequential decisions about public education happen in the state house. He encourages advocates of public education to lobby their state policymakers to legislate on issues of educational policy in ways that are just and fair.
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