While you may not come across it daily, the Equal Protection Clause (EPC) of the 14th Amendment is a big part of why our modern education system looks the way it does. By exploring how courts have applied the EPC in legal challenges to educational policies, we can understand how the law might view educational policies.

The EPC became law in 1868 after three-fourths of the states ratified the 14th Amendment. It requires that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws.” In other words, the EPC denies states the ability to discriminate without a legitimate governmental objective and is therefore crucial to the protection of civil rights. When school officials create policies that classify one group of students differently than another group of students, there may be equal protection concerns. For example, when Black students challenged state-sponsored racial segregation in public schools, the Supreme Court of the United States found that such laws and policies violated the EPC.

Legal Context: Different Levels of Scrutiny

When courts are faced with a legal challenge to an education policy and the plaintiff claims that the policy violates their rights under the EPC, the way the court analyzes the EPC claim will depend upon the kind of civil rights at issue in the policy. There are three levels of judicial scrutiny: strict scrutiny, intermediate scrutiny, and rational basis.

Race-based educational policies receive strict scrutiny, which requires the party that created the policy to show both a compelling governmental objective and that the classification is narrowly tailored to serve that interest.

Sex-based educational policies receive intermediate scrutiny; the school district or government that created the policy must demonstrate that the classification based on sex serves important governmental objectives and that the discriminatory means employed are substantially related to achieving those objectives.

The third level of judicial scrutiny is a rational basis, which requires a legitimate governmental objective with a rational relationship between the means and the ends. Classifications based on disability fall under rational basis review.

Thus, the EPC makes it more difficult for a school to make a race-based classification (strict scrutiny review) than a disability-based classification (rational basis review).

Classifications Based on Race

Brown v. Board of Education is the most well-known equal protection case addressing a race-based classification involving students. Since the case was decided in 1954, the EPC has been relied upon in various other cases involving allegations of racial discrimination. For example, seven Black students in Detroit recently argued that the EPC was violated when the state of Michigan denied them a basic education when their access to literacy was denied and when they experienced race-based discrimination. In this federal district court case, the students contended that their lower level of academic performance resulted from having unqualified teachers, dangerous facilities, and inadequate textbooks and other learning materials, which deprived them of a basic right to literacy. However, the Detroit students’ EPC claim failed because the court found that they did not demonstrate that school officials treated their schools differently from others in the state.

When educators claimed that they were not treated similarly under the district’s collective bargaining agreement, they alleged a violation of the EPC. In this case, the school district’s bargaining agreement stated that the teachers with the most seniority would not be laid off. They also agreed not to lay off a percentage of teachers of color that exceeded the percentage of teachers of color who were employed at the time of a layoff. This layoff provision was created to preserve the impact of a hiring policy that was established to increase racial diversity in the school district. The lower courts found for the school districts and upheld the hiring policy because they found the policy was a way to remedy societal discrimination. However, after reviewing the lower court’s decision, the U.S. Supreme Court reversed the ruling, finding that the layoff provision was not narrowly tailored enough to promote a compelling state interest in this policy, as required by the EPC.

Classifications Based on Sex

When public schools impose sex-based classifications, the EPC has also been invoked. Female plaintiffs alleged a violation of the EPC when they were treated differently in athletic programs and male plaintiffs argued that the clause had been violated when they were not permitted to join the school’s dance team. In one case, parents challenged a high school policy that required boys playing interscholastic basketball to keep their hair cut short. The 7th Circuit court found a violation of the EPC because this policy did not apply to girls playing basketball, and it found that the school district did not have justification for this sex-based classification.

In recent years, transgender students have alleged a violation of the EPC when they have not been permitted to use the restroom that aligns with their gender identity. In applying the EPC, courts reasoned that school officials did not have an important governmental reason—or an exceedingly persuasive justification—for denying students a restroom that aligned with their gender identity. Courts also found equal protection violations when school officials failed to address bullying or harassment against LGBTQ students and teachers.

Classifications Based on Immigrant Status

In addition to race- and sex-based classifications, the EPC has been examined in classifications based on immigration status. For instance, a Texas state law was challenged as a violation of the EPC because it permitted the state to withhold funds from local school districts if they chose to educate students who were undocumented immigrants. The Supreme Court ruled that this law severely disadvantaged students who were undocumented by denying them a right to an education. In striking down this law, the court did not find there was a substantial state interest in withholding funding from school districts that chose to educate students without documentation. The court reasoned that students who were undocumented should receive the free public education offered to all children within the state.

What the EPC Means for School Leaders

The EPC has played a significant role in school policies that address educational equity issues. School leaders should consider:

  • When developing and implementing policies and practices, be sure to have adequate justification for treating groups differently than others. The amount of explanation required will depend on the type of classification involved.
  • Follow data closely to examine how policies and practices disproportionately affect different classes of students. In doing so, be sure to address the disproportionality through policies and practices that keep the EPC in mind.
  • Understand that the EPC can be applied to other types of classifications, including disability and age-discrimination claims.
  • In diversity, equity, and inclusion initiatives, be thoughtful about EPC implications. When planning initiatives, be proactive in analyzing the impact of the EPC.
  • Cast a wide net for recruiting employees and ensure that the school district is an equal opportunity employer.

Séamus P. Boyce is a partner with Kroger Gardis & Regas LLP in Indianapolis, where he represents clients in education and public policy matters. Suzanne E. Eckes is a professor at Indiana University in Bloomington, IN. She is a co-author of Principals Avoiding Lawsuits and a past president of the Education Law Association.

References

  • Adams v. Sch. Bd., 968 F.3d 1286 (11th Cir. 2020).
  • Brown v. Board of Educ., 347 U.S. 483 (1954).
  • D.M. & Z.G. v. Minn. State High Sch. League, 917 F.3d 994 (8th Cir. 2019).
  • Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003).
  • Gary B. v. Whitmer, 957 F.3d 616 (6th Cir. 2020).
  • Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020).
  • Hayden v. Greensburg Cmty. Sch. Corp., 743 F.3d 569 (7th Cir. 2014).
  • Madison v. Morehouse Parish Superintendent, 2014 U.S. Dist. LEXIS 68659 (W.D. La. 2014).
  • Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).
  • Parker v. Franklin Cty. Cmty. Sch. Corp., 667 F.3d 910 (7th Cir. 2012).
  • Plyler v. Doe, 457 U.S. 202 (1982).
  • U.S. Const. amend. XIV § 1.
  • Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279 (D. Utah 1998).
  • Whitaker v. Kenosha Unified Sch. Dist. No. 1, 858 F.3d 1034 (7th Cir. 2017).
  • Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1985).