an individual’s informational privacy interests have been violated by a government actor. Most, however, use a balancing test that weighs the government’s interest in the invasion of informational privacy against the individual’s privacy interests. Furthermore, “case law is also murky as to whether the informational privacy right applies to government acquisition of personal information or whether it solely covers the further disclosure of such information” (p. 708).
At least three federal circuits have ruled that minors have informational privacy rights, but the implication of these rulings for public school students and their parents is not clear (Waldman, 2015). Do such rulings provide greater informational privacy rights to students and their families than afforded by federal public education laws (e.g., Family Educational Rights and Privacy Act of 1974)? In an older court case, a federal district court ruled that parents of schoolchildren have a right to be free from the invasion of family privacy by the school (Merriken v. Cressman, 1973). In light of contemporary concerns about the collection of extensive quantities of personally identifiable student information by schools and its disclosure to third parties (Reidenberg et al., 2013), future court decisions may provide new guidance on the appropriate balance between the school’s need for information about students and their families and the right of students and parents to be free from inquiry into matters in which the school does not have “a legitimate and proper” interest.
Freedom of Religion
The First Amendment also ensures the basic right to free exercise of religious choice, and, under the 14th Amendment, both Congress and the states are prohibited from passing laws “respecting an establishment of religion.” The First Amendment is the source of two types of church-school-state cases: those involving the use of public funds for parochial schools and those involving school policies or classroom procedures objected to on religious grounds. (For a discussion of cases involving school-sponsored prayer or other religious activities, see Russo, 2018.)
In general, court interpretations of the First Amendment suggest that the state is not allowed to provide funds directly to parochial schools. However, under the “child benefit theory,” the state may provide educational services (e.g., remedial instruction and school psychological services) for students attending parochial schools as long as those services directly aid the student, they are not used for the purpose of religious instruction, and there is no impermissible entanglement of church and state (Agostini v. Felton, 1997; Wolman v. Walter, 1977).
In 2002, the Supreme Court decided Zelman v. Simmons-Harris, a case concerning whether the First Amendment prohibition against Congress establishing a religion prevents a state from providing tuition monies to parents and allowing them to use that aid to enroll their children in a private school of their own choosing, without regard to whether the school is religiously affiliated. In a narrow 5–4 ruling, the Court held that such school voucher plans are constitutionally permissible, so long as the money that flows to the parochial schools results from the true choice of schools by parents.
In two recent cases, the current Court has shown even greater willingness to erase distinctions for available funding between public and religious schools. In the first case, Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Court held that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny” (p. 2015). At issue was participation in a program for playground improvement under which religious schools had been specifically barred.
In Espinoza v Montana Department of Revenue (2020), the Montana Legislature sought “to provide parental and student choice in education” (p. 2251) by enacting a scholarship program for students attending private schools. The program granted a tax credit of up to $150 to any taxpayer who donated to a participating “student scholarship organization” which then used the donations to award scholarships to children for tuition at a private school; however, religious private schools were excluded. The Court held that excluding qualified religious schools from its school scholarship program was a violation of the Free Exercise Clause of the First Amendment and therefore unconstitutional. “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious” (p. 2261).
STATUTES AND REGULATIONS
A second source of law in the U.S. legal system is statutory law. The U.S. government is composed of three parallel systems of government at the federal, state, and local levels, a form of government known as federalism (H. R. Turnbull & Turnbull, 2000). At the federal level, the Constitution is the basic law of the land. Congress is empowered to enact federal laws as long as they do not violate the U.S. Constitution. Similarly, each state has its own constitution and legislative body for enacting laws at the state level. State laws may not violate either state constitutions or the federal constitution.
Many countries have a nationalized school system operated by the central government (Hubsch, 1989). Under the 10th Amendment of the Constitution, Congress is forbidden from creating a nationalized school system. However, the U.S. Congress has the power to shape educational policy and practices by offering monies to states contingent on compliance with federal mandates. This is called categorical aid. Congress has passed two types of legislation that have had a dramatic impact on the public schools, antidiscrimination legislation and federal education legislation. Key federal statutes affecting the schools are highlighted in the paragraphs that follow.
Federal Education Legislation
Some federal education legislation is grant legislation; that is, funds are provided to states on the condition that schools comply with certain educational policies and practices. The Elementary and Secondary Education Act of 1965 and the Individuals with Disabilities Education Act, reauthorized and amended in 2004, are important examples of this type of legislation. Other federal education legislation stipulates that no federal funds will be made available to schools unless they adhere to specific educational policies and practices outlined in the law; the Family Educational Rights and Privacy Act of 1974 (FERPA) is an example of this type of legislation.
Elementary and Secondary Education Act of 1965
As noted previously, education generally has been regarded as a responsibility of state and local governments. The Elementary and Secondary Education Act of 1965 (ESEA; Pub. L. No. 89–750) was one of the first major federal programs to aid education. With the passage of ESEA, Congress accepted the proposition that although “education is primarily a state function … the Federal Government has a secondary obligation to see that there is a basic floor under those essential services for all adults and children in the United States” (Taft, 1965, p. 1450). A major thrust of early amendments of the law was to target funds more specifically for schoolchildren from economically disadvantaged backgrounds.
The most recent re-authorization of ESEA is the Every Student Succeeds Act (ESSA, Pub. L. No. 114–95), signed into law by President Barrack Hussein Obama in 2015. Its purpose is “to provide all children significant opportunity to receive a fair, equitable, and high-quality education” (Sec. 1001). ESSA authorizes federal funds for low-performing schools (defined as schools performing in the bottom 5 percent), for high schools where less than two-thirds of students graduate, and to improve educational outcomes for subgroups of children who chronically struggle to succeed at school (Sec. 111[c][4][C-D]). Funds are also targeted for literacy education, early childhood education, and for children who are English language learners, Native American, migratory, homeless, neglected, delinquent, or at risk for dropping out. In addition, some ESSA funds are provided as block grants to states. Of special importance to school psychology, these
