Amicus Curiae Brief — David Carson, as Parent and Next Friend of O. C., et al., Petitioners v. A. Pender Makin

NO. 20-1088

In the

Supreme Court of the United States

DAVID AND AMY CARSON,

AS PARENTS AND NEXT FRIENDS OF O.C., ET AL.,

Petitioners,

v.

A. PENDER MAKIN, IN HER OFFICIAL CAPACITY AS

COMMISSIONER OF THE MAINE DEPARTMENT OF EDUCATION,

Respondent.

__________________________

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF AMICI CURIAE

EDUCATION AND CONSTITUTIONAL LAW SCHOLARS

IN SUPPORT OF RESPONDENT

ARTHUR L. COLEMAN

EDUCATIONCOUNSEL

101 CONSTITUTION AVE., N.W.

WASHINGTON, DC 20001

(202) 841-3279

art.coleman@educationcounsel.com

DEREK W. BLACK

PROFESSOR OF LAW

ERNEST F. HOLLINGS

CHAIR IN CONSTITUTIONAL LAW

UNIVERSITY OF SOUTH CAROLINA*

1525 SENATE STREET

COLUMBIA, SC 29208

(803) 777-9652

blackdw@law.sc.edu

MICHAEL A. BROWN

COUNSEL OF RECORD

FOR AMICI CURIAE

NELSON MULLINS

RILEY & SCARBOROUGH

100 S. CHARLES STREET

SUITE 1600

BALTIMORE, MD 21201

(442) 392-9401

mike.brown@nelsonmullins.com

* For Identification Purposes Only

SUPREME COURT PRESS

♦

OCTOBER 29, 2021

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF THE AMICI CURIAE ....................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 3

I.

MAINE’S

JUDGMENT TO ENSURE NONSECTARIAN EDUCATION IN THE IMPLEMENTATION

OF ITS PUBLIC SYSTEM OF EDUCATION DOES

N OT WARRANT STRICT SCRUTINY REVIEW ........ 3

II. M AINE ’ S S TATE L AW A SSURING T HAT A LL

STUDENTS BENEFIT FROM A FREE PUBLIC

NONSECTARIAN AND NONDISCRIMINATORY

EDUCATION ADVANCES FUNDAMENTAL AND

COMPELLING INTERESTS THAT SHOULD NOT

BE OVERTURNED ............................................... 6

A. Public Education Is Central to Our

Nation’s History and the Function of

Our State Governments ............................. 6

B. Maine Discharges Its Public Function of

Providing Nonsectarian, Nondiscriminatory Education Opportunities for All

Its Students by Requiring That All

Participating Entities Comply with

Rules Essential to Its Public Function ...... 9

ii

TABLE OF CONTENTS – Continued

Page

C. Maine Is Entitled to Limited but Important Discretion When Making Policy

Judgments That Reflect Its Stewardship of Taxpayer Funds to Advance a

Quality Nonsectarian and Nondiscriminatory Education for All of Its Secondary

Students .................................................... 13

D. Maine’s Interest in Providing for a Nonsectarian, Nondiscriminatory Education to

All of Its Students Is Compelling ............. 18

CONCLUSION.......................................................... 21

APPENDIX. List of Amici Education Law Scholars

iii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Ambach v. Norwick,

441 U.S. 68 (1979) ......................................... 9, 21

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986) ..................................... 14, 16

Blount v. Dep’t of Educ. & Cultural Servs.,

551 A.2d 1377 (Me. 1988) ............................ 11, 18

Bob Jones Univ. v. United States,

461 U.S. 574 (1983) ........................................... 20

Brown v. Bd. of Ed. of Topeka,

Shawnee Cty., Kan., 347 U.S. 483 (1954),

supplemented sub nom.

Brown v. Bd. of Educ. of Topeka, Kan.,

349 U.S. 294 (1955) ........................................... 10

Connecticut Coal. for Just. in Educ.

Funding, Inc. v. Rell,

295 Conn. 240 (2010) ......................................... 13

Edwards v. Aguillard,

482 U.S. 578 (1987) ........................................... 19

Epperson v. Arkansas,

393 U.S. 97 (1968) ............................................. 19

Espinoza v. Montana Dep’t of Revenue,

140 S.Ct. 2246 (2020) .......................................... 5

Everson v. Bd. of Ed. of Ewing Twp,

330 U.S. 1 (1947) ............................................... 16

Fisher v. Univ. of Texas at Austin,

570 U.S. 297 (2013) ....................................... 14, 19

iv

TABLE OF AUTHORITIES – Continued

Page

Grutter v. Bollinger,

539 U. 539 U.S. 306 (2003) ..................... 6, 14, 19

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988) ........................ 13, 14, 15, 16

Lyng v. Nw. Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988) ............................................. 4

Mozert v. Hawkins Cnty Bd. Of Educ.,

827 F.3d 1058 (6th Cir. 1987)................................ 5

New Jersey v. T.L.O.,

469 U.S. 325 (1985) ............................................ 15

Norwood v. Harrison,

413 U.S. 455 (1973) ......................................... 4, 9

Parents Involved in Cmty. Sch.

v. Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) ................................... passim

People of State of Ill. Ex rel.

McCollum v. Bd. of Ed. of Sch.

Dist. No. 71, Champaign Cty., Ill.,

333 U.S. 203 (1948) ........................................... 17

Plyler v. Doe,

457 U.S. 202 (1982) ......................................... 6, 9

Regents of Univ. of California v. Bakke,

438 U.S. 265 (1978) ............................................ 19

Rose v. Council for Better Educ., Inc.,

790 S.W.2d 186 (Ky. 1989) ................................ 13

Runyan v. McCrary,

427 U.S. 160 (1976) ............................................. 20

v

TABLE OF AUTHORITIES – Continued

Page

San Antonio Indep. Sch. Dist.

v. Rodriguez, 411 U.S. 1 (1973) ..................... 6, 15

Sch. Dist. of Abington Township

v. Schempp, 374 U.S. 203 (1963) ...................... 19

Sch. Dist. of Abington Twp., Pa.

v. Schempp, 374 U.S. 203 (1963) ......................... 9

Sloan v. Lemon,

413 U.S. 825 (1973) ............................................. 4

Trinity Lutheran, Church of Columbia, Inc.

v. Comer, 137 S.Ct. 2012 (2017) .......................... 3

United States v. Lopez,

514 U.S. 549 (1995) ........................................... 10

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995) .......................................... 15

Washington v. Glucksberg,

521 U.S. 702 (1997) .............................................. 7

Wisconsin v. Yoder,

406 U.S. 205 (1972) ............................. 6, 7, 12, 13

CONSTITUTIONAL PROVISIONS

Ala. Const. art. VII, § 1 .............................................. 10

Ala. Const. art. XIV, § 256 ......................................... 10

Ariz. Const. art. XI, § 1 ............................................. 10

Ark. Const. art. XIV, § 1 ........................................... 10

Cal. Const. art. IX, § 1 .............................................. 10

Cal. Const. art. IX, § 5 .............................................. 10

Colo. Const. art. IX, § 2............................................. 10

vi

TABLE OF AUTHORITIES – Continued

Page

Conn. Const. art. VIII, § 1 ........................................ 10

Del. Const. art. X, § 1................................................ 10

Fla. Const. art. IX, § 1 .............................................. 10

Ga. Const. art. VIII, § 1 ............................................ 10

Haw. Const. art. X, § 1.............................................. 10

Idaho Const. art. IX, § 1 ........................................... 10

Ill. Const. art. X, § 1.................................................. 10

Ind. Const. art. VIII, § 1 ........................................... 10

Iowa Const. art. IX, 2nd, § 1..................................... 10

Iowa Const. art. IX, 2nd, § 2..................................... 10

Kan. Const. art. VI, § 1 ............................................. 10

Kan. Const. art. VI, § 6 ............................................. 10

Ky. Const. art. § 183 ................................................. 10

La. Const. art. VIII, § 1............................................. 10

La. Const. art. VIII, § 11........................................... 10

La. Const. art. VIII, § 13........................................... 10

Maine Const. art. VIII, Pt. 1, § 1 ............................... 10

Mass. Const. Pt. 2, Ch. 5, § 2 .................................... 10

Md. Const. art. VIII, § 1 ............................................ 10

Me. Const. art. VIII., p.1, § 1 ................................ 4, 10

Mich. Const. art. 8, § 1.............................................. 10

Mich. Const. art. 8, § 2.............................................. 10

Minn. Const. art. XIII, § 1 ........................................ 10

Miss. Const. art. 8, § 201 .......................................... 10

vii

TABLE OF AUTHORITIES – Continued

Page

Miss. Const. art. 8, § 206 .......................................... 10

Miss. Const. art. 8, § 206A ....................................... 10

Mo. Const. art. IX, § 1(a) .......................................... 10

Mo. Const. art. IX, § 3(a) .......................................... 10

Mo. Const. art. IX, § 3(b) .......................................... 10

Mont. Const. art. X, § 1............................................. 10

N.C. Const. art. IX, § 1 ............................................. 10

N.C. Const. art. IX, § 2 ............................................. 10

N.D. Const. art. VIII, §§ 1–4 .................................... 10

N.H. Const. Pt. 2, art. 83 .......................................... 10

N.J. Const. art. VIII, § 4 ........................................... 10

N.M. Const. art. XII, § 1 ........................................... 10

N.M. Const. art. XII, § 4 ........................................... 10

N.Y. Const. art. XI, § 1 ............................................. 10

Neb. Const. art. VII, § 1 ............................................ 10

Nev. Const. art. XI, § 1 ............................................. 10

Nev. Const. art. XI, § 2 ............................................. 10

Nev. Const. art. XI, § 6 ............................................. 10

Ohio Const. art. VI, § 2 ............................................. 10

Okla. Const. art. XIII, § 1 ......................................... 10

Okla. Const. art. XIII, § 1a ....................................... 10

Or. Const. art. VIII, § 3............................................. 10

Or. Const. art. VIII, § 4............................................. 10

Or. Const. art. VIII, § 8............................................. 10

viii

TABLE OF AUTHORITIES – Continued

Page

Pa. Const. art. III, § 14 ............................................. 10

R.I. Const. art. XII, § 1 ............................................. 10

R.I. Const. art. XII, § 2 ............................................. 10

S.C. Const. art. XI, § 3 .............................................. 10

Tenn. Const. art. XI, § 12 ......................................... 10

Texas Const. art. VII, § 1.......................................... 10

Texas Const. art. VII, § 3.......................................... 10

Texas Const. art. VII, § 5.......................................... 10

U.S. Const. amend. I .................................. 3, 16, 19, 21

U.S. Const. amend. IV .............................................. 14

U.S. Const. amend. XIV ...................................... 14, 16

Utah Const. art. 10, § 1 ............................................ 10

Utah Const. art. 10, § 2 ............................................ 10

Utah Const. art. 10, § 5 ............................................ 10

Va. Const. art. VIII, § 1 ............................................ 10

Va. Const. art. VIII, § 2 ............................................ 10

Vt. Ch. II, § 68 ........................................................... 10

W.Va. Const. art. 12, § 1 ........................................... 10

W.Va. Const. art. 12, § 12 ......................................... 10

W.Va. Const. art. 12, § 5 ........................................... 10

Wash. Const. art. IX, § 1 ............................................ 10

Wash. Const. art. IX, § 2 ............................................ 10

Wis. Const. art. X, § 3 ............................................... 10

Wyo. Const. art. 7, § 1 ............................................... 10

ix

TABLE OF AUTHORITIES – Continued

Page

Wyo. Const. art. 7, § 8 ............................................... 10

Wyo. Const. art. 7, § 9 ............................................... 10

STATUTES

Me. Rev. Stat. tit. 20-A, § 4722 ................................ 15

Me. Rev. Stat. tit. 20-A, § 6209 ................................ 15

Pub. L. 39-73, 14 Stat. 434, An Act to

Establish a Department of Education

(1867) ................................................................... 8

OTHER AUTHORITIES

Derek Black,

The Fundamental Right to Education, 94

NOTRE DAME LAW REV. 1059 (2019) .................... 7

Derek W. Black,

SCHOOLHOUSE BURNING: PUBLIC

EDUCATION AND THE ASSAULT ON

AMERICAN DEMOCRACY (2020) ............................. 7

Derek W. Black,

The Constitutional Compromise to

Guarantee Education, 70 STAN. L. REV. 735

(2018) .................................................................... 8

George Washington,

Annual Message to Congress,

December 7, 1796, “American History

from Revolution to Reconstruction and

Beyond, www.let.rug.nl/usa/

presdents/george-washington/annualmessage-1796-12-07.php. .................................. 7

x

TABLE OF AUTHORITIES – Continued

Page

Oliver O. Howard,

Commissioner Bureau of Refugees,

Freedman, and Abandoned Lands,

Circular No. 2 (May 19, 1865) ........................... 8

Thomas Jefferson to George Wythe,

August 13, 1786, Founders Online, https://

founders.archives.gove/documents/

Jefferson/01-12-02-0454. ...................................... 7

1

INTEREST OF THE AMICI CURIAE

As Amici Curiae, the Education and Constitutional

Law Scholars listed in the Appendix (the “Education

Law Scholars”) submit this brief in support of Respondent.1 They are scholars of constitutional and

education law who believe strongly in upholding a

proper role for courts in enforcing constitutional rights

where majoritarian democratic processes may have

caused violations of the rights of disfavored minorities.

At the same time, the Education Law Scholars recognize that the scope of judicial review is subject to

important limitations that protect the constitutional

separation of powers and ensure that courts do not

improperly intrude on other branches’ choices, and

instead allow for judicial review of the acts of legislatures, elected officials, and local administrators only

where doing so is appropriate to protect and vindicate the constitutional rights of the actual litigants

before a court.

The Education Law Scholars have been immersed

in the study of these core principles of judicial review

through their scholarship and teaching, particularly

as these principles relate to constitutional guarantees

concerning education. They seek to assist this Court

by explaining, in a historical, legal, and social science

1 The parties have filed blanket consents to amicus briefs. No

counsel for any party authored this brief in whole or in part;

and no persons other than amici or their counsel made any

monetary contribution to fund the preparation or submission of

this brief.

2

context, how these principles apply to the issues presented by this appeal.

SUMMARY OF ARGUMENT

This case involves the question of whether the

federal constitution requires the State of Maine to alter

its policy decision regarding how best to discharge

its state constitutional obligation in public education.

Plaintiffs seek to compel a material change in that

policy and require Maine to provide public funding to

private schools that infuse religious instruction as

part of their program. Maine is entitled to maintain

its longstanding policy regarding how best to create

and provide a system of education that satisfies its

context-specific objectives and state constitutional

obligations.

Maine’s policy should be upheld by this Court

because:

1.

Maine’s state education policy is an element of

an overall statutory regime designed to fulfill

Maine’s constitutional duty to provide a free public

nonsectarian and nondiscriminatory education

to all of its students. In Maine’s fulfillment of its

public duty to establish and support a public school

system that satisfies its educational interests and

reflects its geographic realities, Maine allows,

under narrow circumstances, private schools to

assist the state in executing its constitutional

obligation. Maine’s policy neither penalizes private

schools that are not otherwise eligible for participation, nor renders judgment regarding school

3

eligibility based on the status designation of private schools as sectarian. Thus, Maine’s policy is

not subject to strict scrutiny.

2.

Even were strict scrutiny applicable to Maine’s

state policy, the record reflects that Maine’s interest in providing a free public secular education

is both fundamental and compelling, in line with

historical precedent and this Court’s recognition

of the special role that states play in making policy

judgments regarding the delivery of a public

service upon which self-government and civil society rest. Maine’s core policy judgments embedded

in the design of its state-wide policy regarding

the provision of a free nonsectarian, nondiscriminatory public education to all students reflects the

complexities of policy-making in a unique context,

for which limited deference is appropriate.

ARGUMENT

I.

MAINE’S JUDGMENT TO ENSURE NONSECTARIAN

EDUCATION IN THE IMPLEMENTATION OF ITS

P UBLIC S YSTEM OF E DUCATION D OES N OT

WARRANT STRICT SCRUTINY REVIEW.

The Free Exercise Clause of the First Amendment

“protect[s] religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of . . . religious status.” Trinity

Lutheran, Church of Columbia, Inc. v. Comer, 137

S.Ct. 2012, 2015, 2019 (2017) (citations omitted). As

the state law challenged in this matter does neither,

it should not be subject to strict scrutiny review.

4

Maine’s policy with respect to limitations regarding

religious instruction involves the conditions upon

which its public system of education is designed,

which allows for the inclusion of private schools that

may assist in the execution of a public function in

light of its population patterns. Thus, this case is not

about the discharge of state-funded private benefits

to private parties, as with voucher programs in some

states. Rather, this case is only about the state’s

exercise of its constitutional and statutory obligations

in the provision of a free public education for all

students. See Me. Const. art. VIII., pt. 1, sec.1.

At core, plaintiffs in this case challenge the

conditions Maine has established as intrinsic to its

state-wide governance of curriculum and pedagogy.

In line with decades of this Court’s precedent, however,

plaintiffs are not entitled to compel the alteration of

the instruction that students are to receive as part of

Maine’s public system of education.

Indeed, plaintiffs in this case seek more than equal

access; they ask that this Court impose on state actors

the requirement that they integrate religiously intertwined education within the state sanctioned public

school framework. That action would run afoul of

this Court’s long-standing precedents. See, e.g., Lyng

v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,

440 (1988) (the Free Exercise Clause “is written in

terms of what the government cannot do to the individual, not in terms of what the individual can exact

from the government”); Norwood v. Harrison, 413 U.S.

455, 462 (1973) (parochial schools are not entitled “to

share with public schools in state largesse, on an equal

basis or otherwise”); see also Sloan v. Lemon, 413 U.S.

825, 834-35 (1973) (State may fund private secular

5

school but not religious private schools through tuition

reimbursement program without violating the Equal

Protection Clause). A “state need not subsidize private

education,” Espinoza v. Montana Dep’t of Revenue,

140 S.Ct. 2246, 2261 (2020), but that, in essence, is

the action plaintiffs impermissibly seek to compel in

this case. See also Mozert v. Hawkins Cnty Bd. of

Educ., 827 F.3d 1058 (6th Cir. 1987) (recognizing that

states must necessarily make decisions as part of

providing a system of education that will not be

satisfactory to all religious beliefs and practices).

Moreover, the state’s policy judgments regarding

the intrinsic design and operation of its single publicschool system penalizes no party based on its status.

Religious schools willing to deliver a nonsectarian

education in Maine may operate as part of the state’s

system of public education. Indeed, unchallenged evidence in the record establishes that the state determines compliance with the relevant state law with a

“focus . . . on what the school teaches through its curriculum and related activities, and how that material is presented.” Id. And, the inculcation of religion

into the private schools’ curriculum in this matter, as

well as their proselytization, is not in dispute. See.,

e.g., Jt. Stipulated Facts at ¶ ¶ 84-86, 95-96, 98, 118,

120, 144-147. Thus, the decision rule affecting the

state’s judgment to exclude the private schools from

funding eligibility is not “status-based discrimination

[that] is subject to ‘the strictest scrutiny.’” Espinoza

v. Montana Dep’t of Revenue, 140 S.Ct. 2246, 2257

(2020) (citations omitted).

6

II. M AINE ’ S S TATE L AW A SSURING T HAT A LL

STUDENTS BENEFIT FROM A FREE PUBLIC NONSECTARIAN AND NONDISCRIMINATORY EDUCATION

ADVANCES FUNDAMENTAL AND COMPELLING

INTERESTS THAT SHOULD NOT BE OVERTURNED.

A. Public Education Is Central to Our

Nation’s History and the Function of

Our State Governments.

Integral to the operation of our constitutional

republic, public education is not “merely some governmental ‘benefit’ indistinguishable from other

forms of social welfare legislation.” Plyler v. Doe, 457

U.S. 202, 221 (1982) (citing San Antonio Indep. Sch.

Dist. v. Rodriguez, 411 U.S. 1, 35 (1973)). To the contrary, education is a matter “of supreme importance

. . . . [serving] a fundamental role in maintaining the

fabric of our society.” Id; Grutter v. Bollinger, 539 U.

539 U.S. 306, 330–331 (2003) (similar).

From our Nation’s founding to the present, education has been deemed integral and essential to the

success of our republic. In Wisconsin v. Yoder, in fact,

this Court recognized:

Thomas Jefferson pointed out early in our

history, that some degree of education is

necessary to prepare citizens to participate

effectively and intelligently in our open

political system if we are to preserve freedom

and independence. Further, education prepares individuals to be self-reliant and selfsufficient participants in society. We accept

these propositions.

7

Wisconsin v. Yoder, 406 U.S. 205, 221 (1972).

In corresponding fashion, in his last annual

message to Congress, President George Washington

reflected the views of our Nation’s founders, for

example, urging that “a primary object of . . . a national

institution should be the education of our youth in

the science of government.” George Washington, Annual

Message to Congress, December 7, 1796, “American

History from Revolution to Reconstruction and Beyond,

www.let.rug.nl/usa/presdents/george-washington/

annual-message-1796-12-07.php. See also From

Thomas Jefferson to George Wythe, August 13, 1786,

Founders Online, https://founders.archives.gove/

documents/Jefferson/01-12-02-0454. See generally

Derek W. Black, S CHOOLHOUSE B URNING : P UBLIC

E DUCATION AND THE A SSAULT ON A MERICAN D EMO CRACY (2020) at Chapter 2.

That view of our Nation’s founders has remained

“deeply rooted in [our] Nation’s history and tradition,”

Washington v. Glucksberg, 521 U.S. 702, 720-21

(1997) (quoting other cases). During the period following

the Civil War, Congress “directly linked the ratification

of the Fourteenth Amendment to Southern states’

readmission to the Union, as well as to new commitments in their state constitutions to provide education.” Derek Black, The Fundamental Right to

Education, 94 NOTRE DAME LAW REV. 1059, 1063

(2019).2 During that period, Congress invested heavily

2 By the time of the Ratification of the Fourteenth Amendment,

“nine of ten states seeking readmission [to the United States] had

rewritten their constitutions to guarantee education . . .[recognizing

that] education was necessary for a republican form of government. Id. at 1067 (citations omitted.). See also Derek W. Black,

The Constitutional Compromise to Guarantee Education, 70

8

in education, devoting land and money, e.g. An Act to

Establish a Department of Education, ch. 158, sec. 1,

14 Stat. 434 (1867) (monitoring whether states were

satisfactorily implementing their education obligations);

and established the Freedmen’s Bureau, which heavily

supported the provision of education of formerly

enslaved persons and eventually facilitated the

transition of Bureau funded schools into state and

locally funded public education. See Freedmen’s Bureau

Act of 1865, ch. 90, 13 Stat. 507 (expanding education

funding throughout the South after the Civil War);

Oliver O. Howard, Commissioner Bureau of Refugees,

Freedman, and Abandoned Lands, Circular No. 2

(May 19, 1865) (explaining that the Bureau’s role

was to assist benevolent societies and “State authorities

in the maintenances of good schools (for refugees and

freedmen), until a system of free schools can be supported by the re-organized local governments”). Furthermore, as discussed below, all 50 states have constitutions that reflect their obligation to provide

public education to their citizenry. See n.4, infra.

Aligned with the reality that the “right to education is fundamental . . . to the structure of our constitutional system of government,” Derek Black, Freedom,

Democracy, and the Right to Education, 116

NORTHWESTERN UNIV. LAW REV. (forthcoming 2022)3,

this Court has recognized that public education is

essential: [1] to our democratic form of government,

STAN. L. REV. 735, 778-83 (2018) (detailing the terms of confederate

states’ readmission and the requirement of public education in

state constitutions).

3 The prepublication draft of this article is available at available

at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3920427.

The quote is at page 61 of that draft.

9

Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S.

203, 230 (1963) (Brennan, J., concurring) (education

is a “vital civic institution for the preservation of a

democratic system of government”); and [2] in transmitting values on which society rests, Plyler v. Doe,

457 U.S. 202, 221, (1982). In short, public education

is interwoven within our system of representative

government, which depends on an educated citizenry.

This Court’s precedents firmly demonstrate that

rather than raising Free Exercise issues, public school

systems are central to reinforcing the citizenship and

norms that lie at the heart of the Nation’s democracy.

Government has an affirmative obligation to provide

public education, which “fulfills a most fundamental

obligation of government to its constituency.” Ambach

v. Norwick, 441 U.S. 68, 76 (1979) (citations omitted).

It must do so on religiously neutral, nondiscriminatory

grounds. See Norwood v. Harrison, 413 U.S. 455, 469

(1973) (“discriminatory treatment exerts a pervasive

influence on the entire educational process.”).

B. Maine Discharges Its Public Function of

Providing Nonsectarian, Nondiscriminatory

Education Opportunities for All Its Students by Requiring That All Participating

Entities Comply with Rules Essential

to Its Public Function.

From our Nation’s founding to today, the special

role of education in our governmental system has

been continuously affirmed, reflecting the recognition

of a national imperative that is principally the responsibility of state and local governments. As this

Court has long recognized, public education is “perhaps

the most important function of state and local gov-

10

ernments.” Brown v. Bd. of Ed. of Topeka, Shawnee

Cty., Kan., 347 U.S. 483, 493 (1954), supplemented

sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349

U.S. 294 (1955); see also United States v. Lopez, 514

U.S. 549, 564 (1995) (recognizing the historical role

of states in public education.) Indeed, all states,

including Maine, provide for public education through

their own constitutions.4 See Me. Const. art. VIII, pt.

1, sec. 1. (establishing the state and local duty for the

“support and maintenance of public schools.”)

To assure that that all persons within specified

age limits “receive the benefits of a free public education.” Jt. Stipulation of Facts, ¶ 1, Maine law vests

4 All states provide for public education in their state constitutions. Ala. Const. art. XIV, § 256; Alaska Const. art. VII, § 1; Ariz.

Const. art. XI, § 1; Ark. Const. art. XIV, § 1; Cal. Const. art. IX,

§§ 1, 5; Colo. Const. art. IX, § 2; Conn. Const. art. VIII, § 1; Del.

Const. art. X, § 1; Fla. Const. art. IX, § 1; Ga. Const. art. VIII,

§ 1, ¶ I; Haw. Const. art. X, § 1; Idaho Const. art. IX, § 1; Ill.

Const. art. X, § 1; Ind. Const. art. VIII, § 1; Iowa Const. art. IX,

2nd, §§ 1, 3; Kan. Const. art. VI, §§ 1, 6; Ky. Const. § 183; La.

Const. art. VIII, §§ 1, 11 & 13; Maine Const. art. VIII, Pt. 1, § 1;

Md. Const. art. VIII, §§ 1, 3; Mass. Const. Pt. 2, Ch. 5, § 2; Mich.

Const. art. 8, §§ 1, 2; Minn. Const. art. XIII, § 1; Miss. Const.

art. 8, §§ 201, 206 & 206A; Mo. Const. art. IX, §§ 1(a), 3(a) &

3(b); Mont. Const. art. X, § 1; Neb. Const. art. VII, § 1; Nev.

Const. art. XI, §§ 1, 2 & 6; N.C. Const. art. IX, §§ 1, 2; N.D.

Const. art. VIII, §§ 1–4; N.H. Const. Pt. 2, art. 83; N.J. Const.

art. VIII, § 4, ¶¶ 1, 2; N.M. Const. art. XII, §§ 1, 4; N.Y. Const.

art. XI, § 1; Ohio Const. art. VI, § 2; Okla. Const. art. XIII, §§ 1,

1a; Or. Const. art. VIII, §§ 3, 4 & 8; Pa. Const. art. III, § 14; R.I.

Const. art. XII, §§ 1, 2; S.C. Const. art. XI, § 3; Tenn. Const. art.

XI, § 12; Texas Const. art. VII, §§ 1, 3 & 5; Utah Const. art. 10,

§§ 1, 2 & 5; Vt. Ch. II, § 68; Va. Const. art. VIII, § 1, 2; W.Va.

Const. art. 12, §§ 1, 5 & 12; Wash. Const. art. IX, § 1, 2; W.Va.

Const. art. 12, §§ 1, 5 & 12; Wis. Const. art. X, § 3; Wyo. Const.

art. 7, §§ 1, 8 & 9.

11

the “control and management” of public schools in its

state legislature, the Department of Education, its

commissioner, and the governing bodies of its “local

school administrative units” [“SAUs”]. See, e.g., Me.

Rev. Stat. tit. 20-A, §§ 2; 201; and 251-A.

Given the sparse population in many areas of

the State and the practical implications associated

with providing a public education for all of its students,

over half of Maine’s SAUs do not operate a public

secondary school. Those SAUs without a public

secondary school must fulfill their state obligations

in one of two ways: either by contracting with a

secondary school (a nearby public school or an approved

private school) for those services; or by paying the

tuition charged by the public or private school selected

by parents of students served. Me. Stat. tit. 20-A,

§§ 2701-02; 5204. In either instance, the point is to

ensure the provision of an education equivalent to

the public education the students are otherwise constitutionally entitled to in their district. Jt. Stipulated

Facts, ¶ 11.

Maine has designed its education system to

reflect its demographic reality, satisfy its constitutional

obligations, and advance educational goals of school

quality. See Me. Rev. Stat. tit. 20-A §§ 4502 (school

approval requirements); 4511 (accreditation requirements); see also Blount v. Dep’t of Educ. & Cultural

Servs., 551 A.2d 1377, 1381 (Me. 1988) (recognizing

Maine’s compelling public interest in educational

quality). This includes its legal interests and responsibility for assuring that all students within its

public school system have access to an education that

is neither impermissibly intertwined with religion nor

12

discriminatory. See, e.g., Jt. Stipulated Facts, ¶¶ 193,

196, and 201.

The uniqueness of Maine’s system—tailored to

serve its particular and unique interests—does not

obviate the fact that, like its sister states, Maine must

consider a wide array of factors and interests as it

seeks to provide quality educational opportunities for

all of its secondary students, just as “[e]xecutive and

legislative branches . . . for generations . . . have considered [a wide range] of policies and procedures” in

satisfaction of their policy and legal roles. Parents

Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551

U.S. 701, 789 (2007) (Kennedy J., concurring in part

and concurring in the judgment).

Maine’s public education system, reflective of its

particular state context and setting, is a product of

the State’s execution of its duty, through its elected

representatives, to assure that students have equal

access to a nonsectarian and nondiscriminatory

learning environment in which they may learn and

thrive. Wisconsin v. Yoder, 406 U.S. 205, 213 (1972)

(“[p]roviding public schools ranks at the very apex of

the function of a State.”); Parents Involved in Cmty.

Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 797

(2007) (Kennedy, J. concurring in part and concurring

in the judgment) (“This Nation has a moral and

ethical obligation to fulfill its historic commitment to

creating an integrated society that ensures equal

opportunity for all of its children.”).

13

C. Maine Is Entitled to Limited but

Important Discretion When Making Policy

Judgments That Reflect Its Stewardship

of Taxpayer Funds to Advance a Quality

Nonsectarian and Nondiscriminatory

Education for All of Its Secondary

Students.

This Court has long recognized that the particular

state and local policy decisions associated with public

education in America require a level of knowledge

and expertise that typically extend beyond the role of

federal courts. See Parents Involved in Cmty. Sch. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 797 (2007)

(Kennedy, J. concurring in part and concurring in the

judgment) (recognizing the “discretion and expertise”

of school officials); Wisconsin v. Yoder, 406 U.S. 205,

213 (1972) (citations omitted) (“There is no doubt as

to the power of a State, having a high responsibility

for education of its citizens, to impose reasonable

regulations for the control and duration of basic education.”); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.

260, 273 (1988) (recognizing that education is not

primarily the responsibility of federal judges); see

also Connecticut Coal. for Just. in Educ. Funding, Inc.

v. Rell, 295 Conn. 240, 306 (2010) (State must set

and supervise implementation of academic standards

and goals associated with constitutionally required

education); Rose v. Council for Better Educ., Inc., 790

S.W.2d 186, 216 (Ky. 1989) (State’s duty to provide

for education requires the State to implement, control,

and maintain the education system).

In matters in elementary, secondary, and postsecondary education, in fact, this Court has on repeated

occasions acknowledged the wisdom of tailoring the

14

application of constitutional rules to reflect the unique

context and interests present in cases involving public

education. In Parents Involved, in fact, Justice Kennedy

recognized the complexities of school assignment

decisions as the essential contextual factors that

could inform lawful school district judgments. Parents

Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551

U.S. 701 (2007) (Kennedy, J., concurring in part and

concurring in the judgment). See also Grutter v. Bollinger, 539 U.S. 306, 308 (2003) (conferring deference to

institutional judgments regarding mission-related aims

associated with the educational benefits of diversity);

Fisher v. Univ. of Texas at Austin, 570 U.S. 297, 298

(2013) (recognizing appropriate deference is properly

afforded to a university regarding the establishment of its goals when those mission-related diversity

goals reflect a “reasoned, principled explanation”

that is based on its “experience and expertise”); Fisher

v. Univ. of Texas at Austin, 136 S.Ct. 2198, 2208

(2016) (similar).

Correspondingly, in a range of constitutional

challenges implicating the First, Fourth, and Fourteenth Amendments, this Court has expressly infused

as part of its overall constitutional analysis the legitimate interests of school officials involved in setting

policy or pursuing practices affecting students. See,

e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,

271, 273 (1988) (authorizing educators to “exercise

greater control over [curricular-related] expression”

to assure that students learned “whatever lessons

the activity [was] designed to teach” and recognizing

the realm of authority for school officials to act on

“legitimate pedagogical concerns”); Bethel Sch. Dist.

No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (citations

15

omitted) (recognizing basis for school districts to

prohibit vulgar speech in light of the necessity of

“inculcat[ing] the habits and manners of civility”

associated with the “maintenance of a democratic

political system”); New Jersey v. T.L.O., 469 U.S. 325,

337 (1985) (integrating into constitutional analysis the

public schools’ substantial interest in maintaining

order and an educational environment in which

learning can take place). In sum, this Court has

recognized that constitutional rights “are different in

public schools than elsewhere: the ‘reasonableness’

inquiry [related to school officials’ actions] cannot

disregard the schools’ custodial and tutelary responsibility for children,” Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646, 656 (1995), just as mission-related

policy aims merit appropriate deference.

It follows, then, that Courts are obligated to

examine challenged state education policies “under

judicial principles sensitive to the nature of the

state’s efforts and the rights reserved to the states

under the Constitution.” See San Antonio Indep. Sch.

Dist. v. Rodriguez, 411 U.S. 1, 39 (1973).

Maine’s judgment regarding the design of its

unique secondary school system, including its prohibition on the use of public funds for religious purposes, is squarely within its authority relating to the

establishment of elementary and secondary policies.

See, e.g., Me. Rev. Stat. tit. 20-A, §§ 4722 (high school

diploma standards); 6209 (system of learning results

established). Moreover, the Court’s deference in this

area is arguably at its height as to such matters as

curriculum and the inculcation of civic values. As the

Court held in Hazelwood, the state has the authority

to exercise enormous discretion on matters of curri-

16

culum, including against competing First Amendment

claims by students. Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260, 271 (1988); see also Bethel Sch. Dist.

No. 403 v. Fraser, 478 U.S. 675 (1986) (holding that

the state could limit a students’ speech in school

sponsored activity when in the service of inculcating

civic values).

Maine’s policy judgment warrants discretion

afforded to states on curricular and related matters.

Maine’s requirement does no more than ensure that

the curriculum provided by private schools assisting

the state in discharging its public education function

does not run afoul of the curriculum the state mandates

in all SAUs. Indeed, state governments can seek to

fulfill their policy goals through secular means. Even

in the absence of a non-establishment mandate, they

may prioritize secular policies and operations out of

a concern that the alternative would succumb to religious preferences and invite religious divisiveness.

This is particularly true within the realm of education.

As Justice Jackson observed in Everson v. Bd. of Ed.

of Ewing Twp, 330 U.S. 1, 23-24 (1947) (Jackson, J.

dissenting), public schools are organized “on the

premise that secular education can be isolated from

all religious teaching so that the school can inculcate

all needed temporal knowledge and also maintain a

strict and lofty neutrality as to religion.”

As a result, “[t]o hold that a state cannot consistently with the First and Fourteenth Amendments

utilize its public school system to aid any or all religious faiths or sects in the dissemination of their

doctrines and ideals does not . . . manifest a governmental hostility to religion or religious teachings

. . . . For the First Amendment rests upon the premise

17

that both religion and government can best work to

achieve their lofty aims if each is left free from the

other within its respective sphere.” People of State of

Ill. Ex rel. McCollum v. Bd. of Ed. of Sch. Dist. No.

71, Champaign Cty., Ill., 333 U.S. 203, 211 (1948).

To preclude Maine from carefully considering

the mix of policy elements that must be evaluated

when developing policies that will assure nondiscriminatory, nonsectarian and quality school environments

for students would permit certain religious schools to

demand state funding despite non-adherence to educational standards, and to operate outside of the realm of

meaningful accountability. Maine would be left with

but two choices: exclude private entities from its education programs altogether lest it be required to fund

religious instruction, or include private entities but

lose control over the type of education those private

entities deliver. A state committed to nondiscriminatory, nonsectarian education would be inclined to opt

for the former.

Thus, the effect of depriving the state of its

policy discretion would not expand education or religious choice for anyone, but rather eliminate it. Were

a state to choose the later option, it would eviscerate

any credible systemic approach to quality education

and equally open to all and undermine long-recognized efforts by our “Nation’s schools [that] strive to

teach that our strength comes from people of

different races, creeds, and cultures uniting in commitment to the freedom for all.” Parents Involved in

Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 782

(2007) (Kennedy, J., concurring in part and concurring

in the judgment).

18

D. Maine’s Interest in Providing for a Nonsectarian, Nondiscriminatory Education

to All of Its Students Is Compelling.

Even if Maine’s policy that excludes schools that

infuse religious teaching into curriculum and pedagogy

is subject to strict scrutiny, this Court’s precedents

affirm Maine’s compelling interest in providing a free

public nonsectarian and nondiscriminatory education

to its students eligible for secondary education. Maine’s

policy is one designed to assure its students both

equal access and equal opportunity to curriculum

and instruction that is not inextricably intertwined

with religious teaching.

Grounded in the special position education serves

in our constitutional republic, this Court has recognized

on many occasions the compelling educational interests

integral to assuring that equal opportunity and

nondiscrimination are a reality for all students in

our systems of education. In Parents Involved in

Community Schools, for example, Justice Kennedy’s

controlling opinion on the issue recognized, in the

context of student assignment policies, that a “compelling interest exists in avoiding racial isolation” and

“achiev[ing] a diverse student population” so as to

“ensur[e] equal opportunity for all” students. Parents

Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551

U.S. 701, 797–798 (2007) (Kennedy, J. concurring in

part and concurring in judgment). See also Blount v.

Dep’t of Educ. & Cultural Servs., 551 A.2d 1377,

1381 (Me. 1988) (recognizing the State of Maine’s

interest in “the quality of education” as compelling).

Correspondingly, in a string of Court decisions

spanning decades, this Court has in higher education

recognized the compelling interests of postsecondary

19

institutions in pursuing the educational benefits of

diversity associated with (among other things)

improved teaching and learning and the inculcation

of enhanced civic values. See, e.g., Fisher v. Univ. of

Texas at Austin, 136 S.Ct. 2198, 2210, (2016); Grutter

v. Bollinger, 539 U.S. 306, 328, (2003); Regents of Univ.

of California v. Bakke, 438 U.S. 265, 315 (1978). In

short, educational institutions’ interest in ensuring

equal and high-quality education is sufficiently compelling to overcome challenges under strict scrutiny.

Likewise, this Court has recognized that the

state’s constitutionally recognized interest in avoiding

entanglement with religion advances core state

interests under the First Amendment’s Establishment

Clause. Reflective of this Court’s “particular[] viligan[ce]

in monitoring compliance with the Establishment

Clause in elementary and secondary education,”

Edwards v. Aguillard, 482 U.S. 578, 583–84 (1987),

states—and their officials responsible for providing

public elementary and secondary education to students

—may not:



Require Bible reading and the recitation of

the Lord’s prayer at the start of each school

day, Sch. Dist. of Abington Township v.

Schempp, 374 U.S. 203, 223 (1963);



Advance religion by promoting the teaching

of creationism, Edwards v. Aguillard, 482

U.S. 578, 593 (1987); or



Bar teaching evolution science because of its

conflict with certain religious views, Epperson

v. Arkansas, 393 U.S. 97, 109 (1968).

In combination, these educationally grounded

principles affirm the compelling nature of the State

20

of Maine’s interest in assuring that its students are

afforded a nonsectarian, nondiscriminatory, education.

See also Bob Jones Univ. v. United States, 461 U.S.

574, 604 (1983) (rejecting university’s free exercise of

religion claim in view of the government’s “fundamental, overriding interest in eradicating racial discrimination in education”); Runyan v. McCrary, 427

U.S. 160, 176 (1976) (citations omitted) (upholding application of a nondiscrimination law to a private school

that accepted only white students, recognizing that

“private discrimination” has “never been accorded

affirmative constitutional protections”).5

5 Although not central to the resolution of this case, the prospects

of private school discrimination—and corresponding violations

of federal and state laws—are evident in the record. Bangor

Christian Schools [“BCS”], one of the schools at issue in this

case, believes that God has ordained distinct and separate

spiritual functions for men and women, and men are to be the

leaders of the church (Jt. Stipulated Facts, ¶ 79), and teaches

children that the husband is the leader of the household (Jt.

Stipulated Facts, ¶ 102). Before a student is admitted, school

officials meet with the student’s family to explain BCS’s mission

and goal of instilling a Biblical worldview in BCS’ students (Jt.

Stipulated Facts, ¶ 86). The school also believes that a student

who is homosexual or identifies as a gender other than on his or

her original birth certificate would not be able to sign the

agreement governing codes of conduct that BCS requires as a

condition of admission (Jt. Stipulated Facts, ¶ 89). Temple

Academy [“TA”], another school included in the lawsuit, has a

written admission policy, “students from homes with serious

differences with the school’s biblical basis and/or its doctrines

will not be accepted” (Jt. Stipulated Facts, ¶ 155). A Muslim

family would have serious differences with TA’s biblical basis

and its doctrines (Jt. Stipulated Facts, ¶ 156). The school will

not admit a child who lives in a two-father or a two-mother

family (Jt. Stipulated Facts, ¶ 159). Similar to BCS, TA takes a

Biblical worldview that is present throughout its curriculum.

21

In fact, nondiscriminatory education open to all

is inherent to the very concept of public education. As

the Court in Amback v. Norwick recognized, public

education uniquely brings “diverse and conflicting

elements in our society . . . together on a broad but

common ground” Ambach v. Norwick, 441 U.S. 68, 77

(1979).6

CONCLUSION

First Amendment neutrality operates within and

is consistent with our constitutional regime and

structure regarding education; and, for the reasons

explained above, it should afford the State of Maine

breathing room to affirmatively promote its civic and

constitutional norms in its design of policies governing

the administration of its public school system. For

the foregoing reasons, amici respectfully request that

this Court affirm the judgment of the First Circuit

Court of Appeals in this case.

6 This Court in Ambach acknowledged the scientific recognition

of “public schools as an ‘assimilative force’ by which diverse and

conflicting elements in our society are brought together on a

broad but common ground . . . . necessary to the maintenance of

a democratic political system.” Id. at 77.

22

Respectfully submitted,

MICHAEL A. BROWN

COUNSEL OF RECORD

N ELSON M ULLINS R ILEY & SCARBOROUGH

100 S. CHARLES STREET

SUITE 1600

BALTIMORE, MD 21201

(442) 392-9401

mike.brown@nelsonmullins.com

ARTHUR L. COLEMAN

EDUCATIONCOUNSEL

101 CONSTITUTION AVE., N.W.

WASHINGTON, DC 20001

(202) 841-3279

art.coleman@educationcounsel.com

DEREK W. BLACK

PROFESSOR OF LAW

E RNEST F. H OLLINGS

CHAIR IN CONSTITUCIONAL LAW

U NIVERSITY OF S OUTH C AROLINA *

1525 SENATE STREET

COLUMBIA, SC 29208

(803) 777-9652

blackdw@law.sc.edu

COUNSEL FOR AMICI CURIAE

OCTOBER 29, 2021

* For Identification Purposes Only

App.1a

APPENDIX

LIST OF AMICI EDUCATION LAW SCHOLARS

THE FOLLOWING EDUCATION LAW SCHOLARS ARE

AMICI SUPPORTING THIS BRIEF:

Michelle Adams

Professor of Law

Yeshiva University Cardozo School of Law

Elise Boddie

Professor of Law

Rutgers Law School

Jack Charles Boger

Professor of Law

University of North Carolina School of Law

Kristine Bowman

Associate Dean and Professor

Michigan State University College of Education

David C. Bloomfield

Professor of Education Leadership, Law & Policy

Brooklyn College and the

City University of New Yok Graduate Center

John C. Brittain

Professor of Law

UDC David A. Clarke School of Law

Erwin Chemerinsky

Dean and Professor of Law

University of California, Berkeley School of Law

 Institutional Affiliation for Identification Purposes Only

App.2a

John Dayton

Professor and Department Head

University of Georgia, College of Education

Janet Decker

Associate Professor

Indiana University, Bloomington

School of Education

Suzanne Eckes

Professor

University of Wisconsin,

Madison School of Education

Lia Epperson

Professor of Law

American University Washington College of Law

Jonathan Feingold

Associate Professor of Law

Boston University School of Law

Aderson B. Francois

Professor of Law

Georgetown Law Center

Rob A. Garda, Jr.

Professor of Law

Loyola University New Orleans College of Law

Kathleen Gebhardt

Adjunct Professor

University of Colorado Law School

Sturm College of Law, University of Denver

Rachel Godsil

Professor of Law

Rutgers Law School

App.3a

Preston Green, III

Professor of Education Leadership and Law

University of Connecticut

NEAG College of Education

Steven K. Green

Professor of Law

Willamette University College of Law

Danielle Holley-Walker

Dean and Professor of Law

Howard University School of Law

Osamudia James

Professor of Law

University of North Carolina School of Law

Daniel Kiel

Professor of Law

University of Memphis School of Law

Robert Kim

Co-author of EDUCATION AND THE LAW

(5th Edition West Academic Publishing)

Christine Kiracofe

Professor of Educational Leadership

and Policy Studies

Purdue University College of Education

William S. Koski

Professor of Law

Stanford University School of Law

Maria M. Lewis

Associate Professor of Education

Pennsylvania State University

College of Education

App.4a

Daniel Losen

Director of the Center for Civil Rights Remedies

University of California, Los Angeles

Martha M. McCarthy

Presidential Professor

Loyola Marymount University

Julie Mead

Professor Emeritus

University of Wisconsin

Madison College of Education

Isabel Medina

Professor of Law

Loyola University, New Orleans College of Law

Raquel Muñiz

Assistant Professor

Boston College School of Education and Human

Development

David Nguyen

Assistant Professor

Indiana University-Purdue University

Indianapolis School of Education

Kimberly Jade Norwood

Professor of Law

Washington University School of Law

Gary Orfield

Professor of Education, Law,

Political Science and Urban Planning

University of California, Los Angeles

Graduate School of Education

App.5a

Myron Orfield

Professor of Law

University of Minnesota Law School

Mark Paige

Associate Professor

University of Massachusetts

Dartmouth College of Arts and Sciences

Wendy Parker

Professor of Law

Wake Forest University School of Law

Kimberly Robinson

Professor of Law

University of Virginia School of Law

Matthew Patrick Shaw

Assistant Professor of Public Policy,

Education, and Law

Vanderbilt Peabody College

Vanderbilt Law School

Theodore Shaw

Professor of Law

University of North Carolina School of Law

Benjamin M. Superfine

Chair & Professor of Educational Policy Studies

University of Illinois,

Chicago College of Education

Paul Tractenberg

Professor of Law

Rutgers Law School

App.6a

Julie Underwood

Professor Emeritus

University of Wisconsin

Madison College of Education

Joshua Weishart

Professor of Law

West Virginia University College of Law

Kevin Welner

Professor

University of Colorado

Boulder School of Education

Kimberly West-Faulcon

Professor of Law

Loyola Law School, Los Angeles

Erika K. Wilson

Associate Professor of Law

University of North Carolina School of Law*