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NEPC Talks Education: Discussing the Role of Law and Litigation in K-12 Education Policy

BOULDER, CO (December 15, 2022) – In this month’s episode of NEPC Talks EducationChristopher 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.

A new NEPC Talks Education podcast episode, hosted by Christopher Saldaña, will be released each month from September through May. 

Don’t worry if you miss a month. All episodes are archived on the NEPC website and can be found here.

NEPC podcast episodes are also available on Apple Podcasts and Stitcher, under the title NEPC Talks Education. Subscribe and follow!

The National Education Policy Center (NEPC), a university research center housed at the University of Colorado Boulder School of Education, produces high-quality information in support of democratic deliberation about education policy. We publish original research, policy briefs, and expert third-party reviews of think tank reports. NEPC publications are written in accessible language and are intended for a broad audience that includes academic experts, policymakers, the media, and the general public. Visit us at: