Taking a Closer Look at
Massachusetts Public School Expulsions: Proposing an Intermediate Standard of Judicial Review After
Doe v. Superintendent of Schools
"Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint."(1)
Introduction
The preceding quotation is particularly relevant in the context of public school expulsions. Although many courts have recognized that the right to education is a very important one,(2) most courts continue to analyze decisions affecting that right in an all-or-nothing approach. That is, some courts hold that education is a "fundamental right,"(3) and, therefore, decisions affecting one's fundamental right to a public education are subject to strict judicial scrutiny.(4) If characterized by the opening quotation, strict judicial scrutiny would be considered an example of judicial "care."(5) Other courts, however, hold that education is not a fundamental right,(6) and, therefore, decisions affecting one's non-fundamental right to a public education are subject only to the rational basis test.(7) If characterized by the opening quotation, the rational basis test would be considered an example of judicial "restraint."(8)
In Doe v. Superintendent of Schools,(9) the Massachusetts Supreme Judicial Court recently considered, in the context of a public school expulsion, whether the right to education is a fundamental right under the Massachusetts Constitution.(10) The Doe court held that the right to education is not fundamental,(11) despite the fact that the Massachusetts Constitution "`impose[s] an enforceable duty on the magistrates and Legislatures of this Commonwealth to provide education in the public schools for the children there enrolled.'"(12) According to traditional jurisprudence, legislation (or other state action) affecting non-fundamental rights is subject to the most lenient form of judicial review, the rational basis test.(13) The Supreme Judicial Court majority therefore applied the rational basis test in Doe and upheld a school committee's decision to expel a high school student for one year.(14)
Chief Justice Liacos of the Supreme Judicial Court dissented alone.(15) He would have held that one's right to an education guaranteed by the Massachusetts Constitution is a fundamental right.(16) Also according to traditional jurisprudence, legislation affecting a fundamental right is subject to strict scrutiny, the most stringent form of judicial review.(17) The Chief Justice thought that strict scrutiny of the expulsion decision was thus the appropriate standard to apply.(18) As the majority and dissenting opinions therefore illustrate, a great deal turns on the way a court characterizes the right to education. Indeed, the characterization of education as a fundamental or non-fundamental right essentially determines whether a court will exercise judicial "care" or judicial "restraint" when analyzing decisions, such as expulsion, which effect that right.
Like forty-seven other states, Massachusetts specifically enumerates the right to education in its constitution.(19) Thirty-two states, including Massachusetts, have considered whether the right to education is fundamental under their constitutions.(20) Of the thirty-two states that have considered the question, sixteen have indicated that the right to education is a fundamental right.(21) Thus, most of those states have strictly scrutinized state actions that infringe upon one's right to an education.(22) In Doe, Massachusetts joined fifteen other states when the Supreme Judicial Court declared that education is not a fundamental right under the Massachusetts Constitution.(23) Most of these states, including Massachusetts, subject infringements upon one's right to education to the rational basis test, the most lenient form of judicial review.(24)
In Part II, this Comment analyzes how individual rights are classified as fundamental or non-fundamental and the resulting impact that classification has due to the attendant levels of judicial review.(25) Part II then analyzes why the right to education has been classified as non-fundamental in the federal law under the United States Constitution,(26) as well as under sixteen state constitutions.(27) Part II also examines the reasoning of those states that have chosen to declare education a fundamental right under their constitutions.(28) Part II concludes with an analysis of Massachusetts' position on the right to education prior to the Doe decision.(29)
Part III discusses the Doe decision, including the factual and procedural background, the plaintiff's legal claim, and the majority and dissenting opinions.(30)
Part IV discusses the importance of the right to education, and the serious effect that a denial of that right can have upon society at large.(31) Part IV then examines, in the context of public school expulsions, the consequences of declaring the right to education fundamental or non-fundamental.(32) That is, Part IV illustrates that when the right to education is considered non-fundamental, courts generally prefer the interests of a safe school environment for all students over one particular student's right to an education.(33) In contrast, Part IV also illustrates that when the right to education is considered fundamental, a particular student's right to obtain an education is preferred over the discretionary interests of the school community at large.(34) Part IV then discusses how an area of compromise has evolved in the traditional standards of judicial review--the so-called "intermediate" standard--in response to the traditionally rigid, two-tiered approach.(35) Part IV also explores how some state courts, and the United States Supreme Court, have both applied the closer judicial scrutiny of the intermediate standard of review to certain non-fundamental, yet important substantive rights, including education.(36)
Finally, this Comment concludes in Part IV that the Supreme Judicial Court in Doe was correct in holding that the right to education is not a fundamental right under the Massachusetts Constitution, but incorrect in its application of the rational basis test to expulsion decisions.(37) This Comment will argue that the right to education, though non-fundamental under the Massachusetts Constitution, is an important substantive right deserving the closer judicial scrutiny of the intermediate standard of review.(38) That is because the intermediate standard of review best embraces the concept of both judicial care and judicial restraint.
Background
A. Fundamental and Non-Fundamental Rights
In the federal law, "fundamental" individual rights are those that are explicitly or implicitly guaranteed by the United States Constitution.(39) Conversely, "non-fundamental" individual rights are those that have no clear Constitutional roots.(40) Labelling individual rights fundamental or non-fundamental is significant because it directly determines how closely a court will scrutinize legislation or other state actions that infringe upon those rights.(41) As previously noted, when a court declares a right fundamental, that court will traditionally apply "strict judicial scrutiny" to state infringements upon that right.(42) On the other hand, when a court declares a right non-fundamental, that court will traditionally apply "rational basis" review to infringements upon that right.(43) Courts are reluctant to expand the list of implicit fundamental rights, however, because the judiciary "comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."(44) As a result, an "intermediate" standard of judicial review is sometimes applied by courts to infringements upon certain non-fundamental, yet important rights.(45)
1. The Standards of Judicial Review
a. Strict Judicial Scrutiny (Judicial Care)
Strict scrutiny of infringements upon fundamental rights requires that the state have a "compelling purpose" for the infringement upon the right (the "end" to be achieved by the state action), and that the means chosen by the state are narrowly tailored to achieve that purpose (the state's "means" of achieving its "end").(46) In deciding if the means are narrowly tailored to the end, courts generally require the state to demonstrate that its compelling purpose is served by the least restrictive alternative available.(47) If the court finds that the state does not have a compelling interest, or that there is a less restrictive means by which the state can achieve its compelling purpose, the infringement upon the fundamental right fails the strict scrutiny the court has given it, and is therefore found unconstitutional.(48)
Strict scrutiny is a very high constitutional hurdle, which few laws survive, because a court will almost always find a less restrictive means.(49) As renowned Constitutional law scholar Professor Gerald Gunther appropriately put it, "strict scrutiny is strict in theory but fatal in fact."(50)
b. The Rational Basis Test (Judicial Restraint)
The rational basis test, on the other hand, merely requires that the state have a "legitimate purpose" for infringing upon a non-fundamental right (the "end" to be achieved by the state action), and that the means chosen by the state are rationally related to achieving this end.(51) Courts generally defer to the Legislature under the rational basis test: as long as the state's means are not arbitrary or capricious, courts will presume both a legitimate purpose and rationality without requiring the state to demonstrate that the means chosen are the best possible.(52) Rather, the burden is upon the challenger to demonstrate that the law is arbitrary or completely unreasonable.(53)
Rational basis is a quite low constitutional hurdle: as Professor Gunther stated, rational basis is "minimal scrutiny in theory and virtually none in fact."(54) The reason for such a lenient form of judicial review for non-fundamental rights is that "the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations."(55)
c. The Intermediate Standard of Review
A new level of judicial review has gradually evolved that falls somewhere between the rational basis test and strict judicial scrutiny.(56) This so-called "intermediate" standard, also referred to as "heightened" or "closer" judicial scrutiny, requires that the state have an "important" purpose for its infringement (the state's "end"), and that the means chosen by the state are "substantially related" to achieving that important purpose.(57) Like strict scrutiny, the intermediate standard of review requires the state to clearly demonstrate the legitimacy of its means.(58) Like rational basis, however, the intermediate standard does not require that the state's means be the least restrictive alternative available.(59)
The United States Supreme Court has most often applied the intermediate standard to classifications based upon gender(60) or one's illegitimacy.(61) The Court has also applied the intermediate standard, however, to the non-fundamental, yet "important" right to education.(62)
B. The Right to Education in the Federal Law
In 1973, the United States Supreme Court considered, in San Antonio Independent School District v. Rodriguez,(63) whether the right to education was a fundamental right under the Federal Constitution.(64) In Rodriguez, the Court upheld a Texas school-financing scheme that allocated funds to school districts in proportion to property taxes paid by the residents in those districts; this resulted in large disparities in per-pupil allocations from one district to another.(65) The parents of several students in a less affluent district brought suit claiming that the disparities in the school-financing scheme violated the Equal Protection Clause.(66)
The Court held that education was not a fundamental right because it was not explicitly or implicitly guaranteed by the Federal Constitution.(67) Because education was declared non-fundamental under the Federal Constitution, the Rodriguez Court applied mere rational basis review and upheld the financing scheme.(68) In so holding, however, the Rodriguez Court acknowledged the importance of education in our society.(69) The Court stated: "Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that `the grave significance of education both to the individual and to our society' cannot be doubted."(70)
The United States Supreme Court's holding in Rodriguez--that education is a non-fundamental right because it is not explicitly or implicitly guaranteed by the Federal Constitution--implies that education might be deemed fundamental under a state constitution that does guarantee the right to education.(71) Although there is no explicit or implicit right to education under the Federal Constitution, forty-eight state constitutions have explicitly set forth such a right.(72) Indeed, a number of state courts have regarded the right to education as so important that they have declared it a fundamental right under their own constitutions.(73)
C. The Right to Education in Sister States
Massachusetts is but one of the forty-eight states that specifically enumerates the right to education in its constitution.(74) To date, thirty-two of these forty-eight states have directly or indirectly considered whether or not that right is fundamental.(75) In analyzing the impact of the Doe decision, therefore, it is important to examine how other states have interpreted their constitutional provisions regarding education.
1. States in Which Education is a Fundamental Right
Of the thirty-two states, including Massachusetts, that have considered the question, sixteen have declared a pupil's right to an education to be fundamental.(76) These states have cited a variety of reasons for so concluding. For example, Minnesota declared that education was fundamental because of its overall importance and because of the explicit provision for education in that state's constitution.(77) The North Dakota Supreme Court thought that education was fundamental because it had "at least equal standing with" other rights deemed fundamental such as "freedom of religion . . . speech and [the] press."(78) The Supreme Court of West Virginia reasoned that the mandatory requirement imposed upon the state by its constitution to provide a "`thorough and efficient system of free schools' . . . demonstrate[d] that education [was] a fundamental constitutional right."(79) Furthermore, the Wyoming Supreme Court held that because of the emphasis education receives in its constitution, "there is no room for any conclusion but that education . . . is a matter of fundamental interest."(80) The states that have declared the right to education fundamental have traditionally subjected state infringements upon that right to strict scrutiny.(81)
2. States in Which Education is Not a Fundamental Right
Massachusetts has now joined fifteen other states that have indicated that education is a non-fundamental right under their constitutions.(82) While acknowledging the important role that education plays in society,(83) these states have generally declined to conclude that express constitutional entitlements are necessarily fundamental rights.(84) Moreover, at least one state court has concluded that it is for the Legislature, not the courts, to enforce their constitutional education provisions.(85) Because the right to education was declared non-fundamental in these states, the courts have traditionally subjected state infringements upon that right to rational basis review.(86)
When determining whether education is a fundamental or non-fundamental right, however, states on either side of the question have deviated from the traditional standards of judicial review.(87) Those states have recognized that the rigid, two-tiered approach to judicial review does not work very well when the non-fundamental, yet important right to education is involved.(88) For instance, North Dakota, which considers education a fundamental right, nevertheless applied the intermediate standard of review instead of strict scrutiny.(89) The North Dakota Supreme Court was fearful that strict scrutiny applied in the school setting would amount to judicial micro-management of an area that requires difficult policy decisions.(90) Likewise, Montana, which also considers "various aspects" of the right to education to be fundamental, applied a "middle-tier constitutional analysis" to a competing and conflicting school committee rule that affected one's non-fundamental right to participate in public school extracurricular activities.(91) Similarly, Maryland, which does not consider education a fundamental right, has nevertheless indicated that heightened scrutiny, not rational basis, is the appropriate standard of judicial review in that state for infringements upon important personal rights, including education.(92)
D. The Right to Education in Massachusetts
Like the constitutions of forty-seven other states, the Massachusetts Constitution specifically enumerates the right to education in its "Education Clause," which provides in part:
Wisdom, and knowledge . . . among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education . . . it shall be the duty of legislatures and magistrates . . . to cherish . . . public schools and grammar schools in the towns . . . .(93)
The Massachusetts Supreme Judicial Court was called upon to interpret the Education Clause in McDuffy v. Secretary of Executive Office of Education.(94) The plaintiffs in McDuffy were sixteen students from different cities and towns in the Commonwealth who brought suit claiming that the Commonwealth had "failed to fulfil its duty to provide them an education as mandated by the [Massachusetts] Constitution."(95) They alleged that the state's school-financing system, which provided less funding for the schools in the plaintiffs' communities than for schools in other communities, denied the plaintiffs the opportunity to receive an "adequate" education.(96) The plaintiffs claimed that the school-financing scheme "violate[d] both Part II, c. 5, § 2 [the Education Clause], and arts. 1 and 10 of the Declaration of Rights of the Massachusetts Constitution."(97) The McDuffy court therefore examined the Education Clause to determine if "its provisions impose[d] on the State an enforceable obligation to provide to each young person in the Commonwealth the opportunity for an education."(98) In concluding that it did, the court undertook an exhaustive analysis of that constitutional provision.(99)
The McDuffy court began its analysis of the Education Clause by examining the meaning of its language.(100) The court concluded that the constitutional duty imposed upon the Legislatures and magistrates of the Commonwealth to "cherish" the public schools is a mandatory obligation.(101) The court indicated that this conclusion was supported by the fact that the Education Clause was "distinctively and prominently placed" in the constitution as one of only six chapters, and that this structural placement demonstrated the framers' intention "that education is a `duty' of government."(102)
The court next examined the proactive attitude toward education that existed at the time the Education Clause was included in the constitution, and pointed out that Massachusetts has been committed to public education since "the first days of the colonial period."(103) The court then explored a long history, beginning in 1647, of laws enacted in the Commonwealth to ensure that the public was educated.(104)
In its analysis, the court also researched the ratification and adoption of the Education Clause, and thought it probative that the Education Clause was ratified and adopted in all material parts as originally drafted by John Adams.(105) The court also examined the legislative intent behind laws that were passed to further the Education Clause, and pointed out many instances in which legislators and other government officials publicly pronounced their appreciation of the constitutional duty imposed upon them to further public education.(106)
Based upon its twenty-five page review, the Supreme Judicial Court concluded that
[w]hat emerges . . . is that the words [of the Education Clause] are not merely aspirational or hortatory, but obligatory. What emerges also is that the Commonwealth has a duty to provide an education for all its children, . . . to prepare them to participate as free citizens of a free State to meet the needs and interests of a republican government, namely the Commonwealth of Massachusetts.(107)
Having found that the Commonwealth has a legal duty to provide an education for all its children, the court next looked to the school-financing scheme in question to determine if the then-existing disparities in its per-capita expenditures violated that duty.(108) The court concluded that the disparities in the school-financing scheme significantly impacted the quality of education for some students, and that this disparity denied those students the kind of education to which they were constitutionally entitled.(109)
The McDuffy court, however, limited its review to deciding whether the school-financing scheme was constitutional; it did not specifically address whether the right to education was a fundamental right.(110) And, because McDuffy did not consider whether the right to education was fundamental, that court did not articulate any particular standard of judicial review in declaring the financing scheme unconstitutional.(111) The plaintiff in Doe, however, crafted her case upon the McDuffy holding, interpreting it as declaring that the right to education was a fundamental right under the Education Clause of the Massachusetts Constitution.(112)
Doe v. Superintendent of Schools
A. Factual and Procedural Background
On November 5, 1993, the plaintiff, Jane Doe,(113) a student at North High School in Worcester, Massachusetts, was caught in school while in possession of a lipstick tube containing a one and one-quarter inch blade.(114) She was expelled from school for one year pursuant to a policy that prohibited the possession of "weapons."(115) The Policy on Possession or Use of Weapons," adopted by the school committee of Worcester pursuant to the Education Reform Act,(116) was set forth in two student handbooks.(117) Additionally, signs were posted in the school reminding students that possession of a gun or knife could result in expulsion.(118) The plaintiff signed a form acknowledging receipt of the handbooks, admitted having seen the signs, and understood that a student in possession of a knife could be expelled.(119)
On November 5, 1994, however, the plaintiff brought the "lipstick knife" to school to show her friends.(120) After initially denying that she had a knife, the plaintiff showed it to a teacher.(121) She was first suspended for five days for having it in her possession.(122) The plaintiff was then charged with a violation of the weapons policy, and a disciplinary hearing was held before the school principal.(123) The plaintiff testified at the hearing that she thought the lipstick knife was a "joke," and that she had not considered it a weapon.(124) The plaintiff was nevertheless expelled by the principal for one year because he considered her a threat to the safety of students and staff at the school.(125) The principal also considered the lipstick knife to be a true knife, and found that the plaintiff, although remorseful, had knowingly violated the weapons policy.(126) The plaintiff exercised her right to appeal the principal's decision to the Superintendent of Schools of Worcester.(127) The Superintendent upheld the one-year expulsion.(128)
The plaintiff then brought suit in Worcester Superior Court, claiming that the Supreme Judicial Court in McDuffy v. Secretary of the Executive Office of Education(129) had declared education a fundamental right under the Massachusetts Constitution.(130) The plaintiff challenged the expulsion as a violation of that fundamental right.(131) In her complaint the plaintiff sought a temporary restraining order and a preliminary injunction enjoining the expulsion decision.(132) In a jury-waived trial, the judge rejected the plaintiff's interpretation of McDuffy that education is a fundamental right and upheld the Superintendent's decision to expel the plaintiff.(133) The plaintiff then requested, and was granted, direct appellate review by the Massachusetts Supreme Judicial Court.(134)
B. The Legal Claim
The Education Clause provides in part: "[I]t shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish . . . public schools and grammar schools in the towns."(135) In McDuffy, the Supreme Judicial Court interpreted this language to "impose an enforceable duty on the magistrates and Legislatures of this Commonwealth to provide education in the public schools for the children there enrolled."(136) In Doe, the plaintiff argued that this language from McDuffy "should be construed as holding that she, as an individual, ha[d] a `fundamental right' to a public education" under the Education Clause.(137) From this assertion, she argued that her expulsion violated her right to substantive due process under the Massachusetts Constitution because expulsion was not the least restrictive alternative the School Committee could have employed to further its objective of maintaining the safety and welfare of its entire school community.(138) The plaintiff contended that suspension or enrollment in an alternative education program, rather than expulsion, would have been a less restrictive alternative that would have also served the school committee's interest in maintaining a safe and secure school environment.(139) The plaintiff thought one of these alternatives more appropriate than expulsion because she had not subjectively considered the lipstick knife a dangerous weapon and because she had no history as a dangerous person.(140)
C. The Majority Opinion
Writing for the majority in Doe, Justice O'Connor, joined by Justices Abrams, Greaney, and Wilkins, declined to adopt the plaintiff's interpretation of McDuffy.(141) Instead, the court held that the language espoused by it in McDuffy did not afford every individual the fundamental right to an education.(142) The Doe court pointed out that the constitutional "duty" imposed upon the Commonwealth by McDuffy to provide a public education to an individual also "includes the duty to provide a safe and secure environment in which all children can learn."(143) The court also looked to earlier cases in which the Massachusetts Supreme Judicial Court determined that one's constitutional right to an education can be lost by violating school rules, and that resulting expulsions for rules violations were merely subject to rational basis judicial review.(144) The Doe court indicated that the application of rational basis review in these prior Supreme Judicial Court decisions was a tacit recognition by the court that the constitutional right to education in Massachusetts is non-fundamental.(145) Upon this support the majority concluded:
[The Plaintiff] does not have a fundamental right to an education in the sense asserted. The right which [she] does have is that of an equal opportunity to an adequate education, a right which she may lose by conduct seen to be detrimental to the community as a whole. The Legislature has made plain that school officials may exclude students such as [the plaintiff] who violate school rules which proscribe weapons possession in school. It is not difficult to see how such rules further the welfare of the school community.(146)
Having concluded that the right to education is not fundamental under the Education Clause of the Massachusetts Constitution, the court applied the rational basis test to determine if the school committee's decision to expel the plaintiff for one year was constitutional.(147) As is often the case under rational basis review, the court found that the expulsion passed constitutional scrutiny because it was "`reasonable and rational for school officials to determine that [the plaintiff] should be expelled as a means of insuring school safety.'"(148) Having so held, the court pointed out that the plaintiff's argument seeking a less restrictive alternative was without merit, because rational basis review does not require the existence of a less onerous alternative.(149)
D. The Dissent
Chief Justice Liacos,(150) who dissented alone, would have held that one's right to an education is a fundamental right under the Education Clause of the Massachusetts Constitution.(151) He believed, therefore, that the rational basis test applied by the majority to the plaintiff's claim was not the appropriate standard of review.(152)
In support of his position, the Chief Justice looked to McDuffy, a decision that he wrote.(153) He pointed out that the school-financing system at issue in McDuffy denied the plaintiffs in that case the opportunity to receive an education guaranteed to them by the Massachusetts Constitution, and that denial was a violation of their constitutional rights.(154) In the dissent, Liacos quoted his own language from McDuffy: "What emerges from . . . [an exhaustive review of the history, structure, and meaning of the Education Clause] is that the words are not merely aspirational or hortatory, but obligatory" upon the Commonwealth,(155) and thereby create a legally enforceable duty upon the Commonwealth to educate all its children.(156)
Having demonstrated that an enforceable constitutional duty exists for the Commonwealth to educate its children, Liacos opined that students within the Commonwealth must have standing to enforce that duty and must therefore have a "correlative right" to such an education.(157) In his words: "Would the plaintiff [in Doe], a public school student, be eligible to seek enforcement of the Commonwealth's duty to provide education, yet not have a right to that education?"(158)
To further support his contention that an enforceable constitutional duty to provide an education gives rise to a correlative right to education, Chief Justice Liacos looked to the New Hampshire Supreme Court's interpretation of its constitutional provision regarding education which was modeled after, and is nearly identical to, the Massachusetts Education Clause.(159) The New Hampshire Supreme Court held: "`Having identified that a duty exists and having suggested the nature of that duty, we emphasize the corresponding right of the citizens to its enforcement.'"(160)
Having determined that a student has a legally enforceable right to an education, the Chief Justice next considered whether that right was fundamental under the Education Clause of the Massachusetts Constitution.(161) He believed that the constitutional duty imposed upon the Commonwealth in McDuffy created a fundamental right to education.(162) In reaching this conclusion, Liacos did not rest his opinion, as he might have, merely upon the United States Supreme Court's position that fundamental rights are those explicitly or implicitly guaranteed by a constitution.(163) Instead, Liacos thought that other factors suggested that the right to education was fundamental besides the fact that it is explicitly guaranteed by the Massachusetts Constitution.(164) In Liacos' view, the factors that demonstrated the fundamental character of the right to education were: (1) the importance of the right and the enforceable duty imposed upon the Commonwealth by McDuffy to educate its children;(165) (2) the "separate and prominent treatment" that education receives in the Massachusetts Constitution;(166) (3) the historical importance of education in Massachusetts;(167) (4) the existence of Massachusetts statutes designed to ensure that children in the Commonwealth are educated;(168) (5) the relationship that education has to other rights afforded to Massachusetts citizens;(169) and (6) "the `keystone' role education serves in the development of each individual and in the functioning of our democracy."(170) To further support his view, the Chief Justice pointed out that many other states have declared education a fundamental right under their constitutions.(171) For all of the foregoing reasons, Liacos concluded that education was a fundamental right under the Education Clause of the Massachusetts Constitution.(172)
Having determined that the right to education should be fundamental, the Chief Justice turned to an analysis of the Worcester School Committee's decision to expel the plaintiff for one year.(173) He concluded that the plaintiff's fundamental right to an education was substantially infringed upon by the expulsion.(174) The Chief Justice thus considered whether this substantial infringement violated the plaintiff's substantive due process rights.(175) He noted that the appropriate level of judicial review for substantial infringements upon fundamental rights is strict scrutiny, which considers whether the infringement upon the fundamental right serves a "compelling State interest with as little infringement as possible" to pass constitutional scrutiny.(176)
Although the Chief Justice advocated the use of strict scrutiny to assess the constitutionality of infringements upon the right to education, he was also careful to point out that preserving the safety and welfare of a school community is a compelling state interest, and that a school disciplinary measure, such as expulsion, might be the necessary means to achieve that state interest.(177) His analysis therefore focused upon whether the Commonwealth's compelling interest (the safety and welfare of the school community) was served in Doe with as little infringement as possible.(178) After concluding that a student's expulsion could, in certain circumstances, be the least restrictive means by which to accomplish the state's compelling interest,(179) the Chief Justice stated that he would have remanded the case to the trial judge to determine whether the state, in this case, had met its burden of demonstrating that its compelling interest could not have been achieved by a means less restrictive than a one-year expulsion.(180)
Analysis
A. The Importance of Education
Whether states have chosen to declare education to be a fundamental or non-fundamental right, the analyses on both sides share a common theme--courts consistently recognize the critical importance that education has in our society. For instance, in states that have found education to be a fundamental right, educational importance has played a central role in that decision.(181) Likewise, courts in those states declaring that education is a non-fundamental right have, notwithstanding that decision, been careful to include in dicta a discussion of its importance.(182) The Commonwealth of Massachusetts, which after Doe falls in the latter category of states, has long recognized the importance of the right to education.(183)
Similarly, the United States Supreme Court has for many years also recognized the critical importance of education, perhaps most poignantly in Brown v. Board of Education of Topeka.(184) In Brown, Justice Warren quite eloquently stated:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.(185)
In Plyler v. Doe,(186) the United States Supreme Court again addressed the importance of education. The Plyler Court pointed out that one deprived of an education must cope with enduring disabilities such as illiteracy, which may have an "inestimable toll . . . on the social, economic, intellectual, and psychological well-being of the individual."(187) The Plyler Court stressed that such individual deprivations are not without cost to society.(188) Indeed, denying one an education is to "deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation."(189) The Plyler Court also declared:
"[A]s . . . pointed out early in our history, . . . 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."(190) And these historic "perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists." In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society.(191)
The conclusion that uneducated students burden society is more than just judicial speculation. Approximately one and one-half million students miss large portions of every school year because they have been suspended or expelled.(192) Those students lose valuable instruction,(193) and it is likely that a large percentage of them will never finish their education.(194) Fewer job opportunities exist for those students who have not completed high school.(195) Therefore, high school dropouts are more likely to be unemployed than high school graduates.(196) Furthermore, expelled students often turn to criminal behavior because their options may be otherwise limited.(197) Indeed, one commentator has noted that "`dropping out of high school is positively associated with later criminal activity.'"(198) Finally, some statistics suggest that expelled students often become economically dependent upon others, or upon society at large.(199) For example, high school dropouts are more likely to require public assistance(200) or unemployment compensation.(201)
In light of the importance of education in our society, it is not a small or inconsequential matter when courts characterize education as a fundamental or non-fundamental right. This is especially so because, as previously noted, the fundamental or non-fundamental label usually determines the attaching level of judicial review to which infringements upon that right are subjected.(202)
1. The Effect of the Standards of Review Upon One's Right to an Education
In deciding whether or not to expel a student, a school superintendent must weigh the competing interests of the student and the entire school community.(203) The student has a property interest in obtaining an education, and a liberty interest in the opportunity to receive a higher education and employment, which may not be deprived without due process of law.(204) On the other hand, superintendents have a duty to their school communities to maintain a safe and secure school environment.(205) The United States Supreme Court has recognized that although school children "do not `shed their constitutional rights' at the school house door,"(206) courts must seek to balance these competing interests.(207) The traditional standards of judicial review for fundamental and non-fundamental rights, however, do not provide much of a balance. The Massachusetts Supreme Judicial Court has itself recognized that "the terms rational basis and strict scrutiny `are a shorthand for referring to the opposite ends of a continuum of constitutional vulnerability.'"(208) Another court suggested that rational basis and strict scrutiny are "mutually exclusive" terms.(209)
Bearing in mind the underlying importance of education, it is appropriate to analyze how the label of education as a fundamental or non-fundamental right, together with the competing interests of students and the entire school community, is likely to effect a school committee's decision to expel a student.
a. The Rational Basis Test
Because of the Doe decision, rational basis will now be the test applied in Massachusetts to legislation authorizing the expulsion of a student.(210) The Supreme Judicial Court's application of such a lenient constitutional test to such an important societal right is misplaced. Under the rational basis test, courts generally defer to the Legislature: as long as the state's means are not arbitrary or capricious, courts will presume both a legitimate purpose and rationality without requiring the state to demonstrate that the means chosen are the best possible.(211) Because rational basis is such a lenient constitutional test,(212) it is troubling to consider that it is the level of judicial scrutiny applied to legislation affecting the unquestionably important right to education by the United States Supreme Court, and by the sixteen states, including Massachusetts, that have declared education a non-fundamental right.(213)
School administrators must certainly be free to expel students who bring weapons to school without exposing those decisions to strict judicial scrutiny.(214) That is because protecting the entire school community from dangerous students is obviously a very important state interest.(215) The low threshold of the rational basis test, however, does not adequately protect infringements upon a right as important as education(216) in cases in which it is questionable whether a student should or should not be expelled.(217) Consider the following questionable examples.
In Nebraska, Jennifer Blankenship, age fourteen, was expelled for one year under a "zero-tolerance" anti-weapons policy for bringing a steak knife to school.(218) Jennifer, who had no history of violent behavior, and who was described by her teachers as a "polite" and "cooperative" student, had grabbed the knife as she ran from her house to catch the school bus so that she could peel and cut an orange.(219) More recently, Jeffrey Parks, a ten-year-old Seattle boy, was expelled under a similar "zero tolerance" anti-weapons policy for bringing his G.I. Joe action figure's one-inch toy gun to school.(220)
Consider also the legislation in Doe authorizing the expulsion of the plaintiff.(221) That legislation authorizes expulsion of a student who possesses a "dangerous weapon" without taking into account the nature of that "weapon,"(222) nor the student's purpose for having it.(223) As applied, this means Massachusetts students can be expelled for possession of "weapons" such as a lipstick knife,(224) even though their reason for having that item is unclear.(225)
While policies prohibiting weapons possession must be strictly enforced to be effective, the consequences of a lost education can burden all of society. Thus, whether students like Jennifer Blankenship, Jeffrey Parks, or Jane Doe deserve expulsion in these questionable cases should be very carefully considered. Under rational basis judicial review, however, such expulsions are not considered carefully because rational basis is "minimal scrutiny in theory and virtually none in fact."(226) Therefore, Jennifer Blankenship, Jeffrey Parks, and Jane Doe's expulsions would be upheld by a court if the Legislatures in each case had merely a rational basis for concluding that the anti-weapons policies under which each was expelled (the state's means) would accomplish the safety of the school community (the state's end).(227) Indeed, in finding that the legislation at issue in Doe passed rational basis review, the Supreme Judicial Court majority stated that "[i]t is not difficult to see how such rules [authorizing expulsion for weapons possession] further the welfare of the school community.'"(228)
The problem with this arrangement is that, in some cases, decisions to expel may not be warranted.(229) Because courts under rational basis review defer to the Legislature and presume that its means (mandatory expulsion of students in violation of the weapons policy deemed dangerous by the school principal) are rationally related to its end (the safety and welfare of the school community), decisions to expel are routinely upheld by courts.(230) Section 37H, as amended by the Education Reform Act,(231) requires that a principal expel any student the principal determines to present a danger to others.(232) Few would doubt that the Legislature in Doe had a rational basis to believe that these means would accomplish the desired end. It is nevertheless likely that principals will make honest or intentional errors in judgment and that those errors will go virtually unreviewed by Massachusetts courts.(233) The consequence of a wrongful expulsion is detrimental to the student involved and to society at large.(234) For these reasons, the Doe majority was wrong to apply the low threshold of the rational basis test to a substantial infringement (a one-year expulsion) upon such an important societal right.
b. Strict Judicial Scrutiny
Most of the sixteen states that have declared education a fundamental right apply strict judicial scrutiny to state infringements upon that right.(235) In his dissent in Doe, Chief Justice Liacos would have sided with these states in finding education to be fundamental, and would have thus subjected the decision to expel the plaintiff to strict judicial scrutiny.(236) The application of such a demanding constitutional standard, however, is also misplaced. In Doe, the state's compelling purpose for expelling the plaintiff was the safety and welfare of the school community.(237) Because, under strict scrutiny, a less restrictive alternative will almost always be found,(238) it is troubling to consider that it is the level of judicial scrutiny applied to expulsions furthering this compelling purpose.
Had the court in Doe held that education was a fundamental right under the Massachusetts Constitution, the Supreme Judicial Court would have strictly scrutinized the Worcester School Committee's decision to expel Jane Doe for the possession of a weapon.(239) Upon this precedent, one can imagine that students expelled for violating the weapons policy would sue, demanding that the school committee demonstrate in each case that expulsion was the least restrictive alternative to ensuring the safety and welfare of the school community.(240) This would prove unwieldy. School officials must be free to expel dangerous students without exposing those decisions to the constitutional vulnerability of strict judicial scrutiny.(241) That is because Massachusetts schools, like those throughout the country, have become dangerous places.(242)
Consider that 958 Massachusetts high school students were expelled between September 1993 and May 1, 1994.(243) Of those 958 students, 41.6% were expelled for bringing weapons to school.(244)
The United States Supreme Court has recognized that "by and large, public education in our Nation is committed to the control of state and local authorities. Courts . . . cannot intervene in the resolution of conflicts which arise in the daily operation of school systems."(245) The Supreme Court has also stated that misconduct in the nation's public school systems "necessarily" depends upon school officials' ability to exercise discretion and judgment.(246) That is because "[e]ducation . . . presents a myriad of `intractable economic, social, and even philosophical problems.'"(247) Therefore,"the legislature's efforts to tackle the problems" should be entitled to respect. . . . [T]he judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumvent or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.(248)
The majority in Doe appropriately recognized this notion when it concluded that the constitutional duty imposed upon the Commonwealth by McDuffy to provide an education "includes the duty to provide a safe and secure environment in which all children can learn."(249) In order to fulfill their responsibility to all students, school officials must be given the discretion to expel those that present a danger.(250) School officials would not be able to uphold this duty, however, if every expulsion decision they made were subject to strict scrutiny's requirement that an expulsion was the least restrictive alternative to ensuring the safety of all students.(251) For these reasons, the majority was right to declare education a non-fundamental right.
B. The Evolution of the Intermediate Standard of Review for Important Substantive Rights
As illustrated above in the context of public school expulsions, rigid application of the traditional two-tiered levels of judicial review proves problematic.(252) As a result, courts have settled upon an intermediate standard of review for infringements upon certain non-fundamental, yet important substantive rights.(253)
The evolution of this heightened review, or closer judicial scrutiny, has its roots in the late United States Supreme Court Justice Thurgood Marshall's now-famous dissent in San Antonio Independent School District v. Rodriguez.(254) Although the majority of the Supreme Court in Rodriguez determined that education was not a fundamental right under the Federal Constitution,(255) Justice Marshall advocated that the Court adopt a "spectrum of standards" when scrutinizing infringements upon the right to education for equal protection purposes.(256) Marshall rejected the holding of the Rodriguez majority that fundamental rights are those which are "bound to . . . the text of the Constitution itself,"(257) or "explicitly or implicitly guaranteed by the Constitution."(258) Marshall thought that the degree of judicial scrutiny along the spectrum should instead be determined by the "constitutional and societal importance of the interest adversely affected."(259) That is, Marshall thought that those rights with a close nexus to explicit Constitutional rights should receive more judicial scrutiny than those rights with a more remote Constitutional nexus.(260) Marshall argued in his dissent that the Court had indeed already utilized this spectrum of standards approach when it had previously deemed as fundamental the rights to procreate,(261) to vote in state elections,(262) and to appeal from a criminal conviction,(263) all of which, Marshall suggested, are neither explicitly nor implicitly guaranteed by the text of the Constitution itself.(264)
Applying the spectrum of standards approach to the right to education, Marshall found that education should have been declared fundamental.(265) This finding was based upon the importance of education to society and because of the close relationship between education and the Constitutionally guaranteed rights of freedom of expression and to participate in the political system.(266)
A majority of the United States Supreme Court has never embraced Marshall's spectrum of standards approach to judicial review. Since Rodriguez, however, a new level of judicial review has evolved that falls somewhere between the rational basis test and strict judicial scrutiny.(267) This so-called "intermediate" standard requires that the state have an "important" purpose for its infringement (the state's end), and that the means chosen by the state are "substantially related" to achieving that important purpose.(268) Like strict scrutiny, the intermediate standard of review requires the state to clearly demonstrate the legitimacy of its means.(269) Like rational basis, however, the intermediate standard does not require that the state's means be the least restrictive alternative available.(270)
The intermediate standard was first clearly articulated in Craig v. Boren,(271) in which the United States Supreme Court applied heightened scrutiny to an equal protection challenge of a legislative classification based upon gender.(272) Because classifications based upon gender are "inherently suspect," traditional jurisprudence would dictate that the court apply strict judicial scrutiny to those classifications.(273) The Court in Boren, however, thought that gender-based classifications were not suited for strict scrutiny because, among other reasons, many such classifications are actually designed to benefit women.(274) The Boren Court therefore applied the intermediate standard when it held that classifications based on gender "must serve important governmental objectives and must be substantially related to achievement of those objectives."(275)
Since Boren, the Supreme Court has most often applied the intermediate standard to classifications based upon gender(276) or one's illegitimacy.(277) The Court has also applied the intermediate standard, however, to the non-fundamental, yet important right to education.(278)
1. Federal Application of the Intermediate Standard to Education
In Plyler v. Doe,(279) the United States Supreme Court applied the intermediate standard of judicial review to an equal protection challenge of a Texas statute proscribing alien children from attending Texas public schools.(280) Writing for the majority, Justice Brennan conceded that since Rodriguez, education was not a fundamental right under the Federal Constitution.(281) The Plyler Court, however, did not simply apply rational basis review to Texas' infringement upon the non-fundamental right. Instead, the Court examined the importance of the right to education, and the lasting impact its denial would have on the deprived student.(282)
Having acknowledged the importance of education, the Court next analyzed the proper level of judicial scrutiny of the infringement upon that non-fundamental, yet important right.(283) The Court concluded:
These well-settled principles allow us to determine the proper level of deference to be afforded [to infringements upon education]. . . . [E]ducation [is not] a fundamental right; a State need not justify by compelling necessity [how] . . . education is provided to its population. But more is involved in these cases than the abstract question whether . . . education is a fundamental right. . . . By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of [the Texas statute], we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in [the statute] can hardly be considered rational unless it furthers some substantial goal of the State.(284)
It is true that most instances in which the intermediate standard of review has been applied to infringements upon the right to education have been equal protection arguments,(285) or equal protection arguments coupled with substantive due process arguments.(286) The Supreme Court, however, has implicitly applied heightened scrutiny to education in challenges to legislation affecting one's right to obtain an education brought exclusively on substantive due process grounds.(287) Indeed, renowned Constitutional law scholar Professor Gerald Gunther believes that although the intermediate standard of review is most often applied in the context of equal protection claims, courts are actually more likely to apply heightened scrutiny to substantive due process claims because closer judicial review is "clearly based on differences in evaluating the `fundamentalness'" of the right in question.(288)
It is particularly significant that the United States Supreme Court has applied the closer scrutiny of the intermediate standard to education--a right that was declared non-fundamental under federal law because it is not "explicitly or implicitly" guaranteed by the United States Constitution.(289) Because the Supreme Court has applied closer scrutiny to the non-fundamental right to education due to its importance, although that right is absent from the United States Constitution,(290) state courts considering the issue have even more incentive to follow that lead because forty-eight state constitutions do explicitly guarantee the right to education.(291)
2. State Application of the Intermediate Standard to Education
Of the thirty-two states that have directly or indirectly considered whether or not education is a fundamental right under their constitutions, at least three have applied the intermediate standard of review to infringements upon that right.(292) These states have employed the intermediate standard because they have found that rigid application of the traditional two-tiered levels of judicial review to infringements upon the right to education has proven problematic.(293)
In Bismarck Public School District No. 1 v. State,(294) the North Dakota Supreme Court applied the intermediate standard of review to a school-financing scheme because education was deemed an "important substantive" right.(295) Although education is considered a fundamental right under North Dakota's constitution,(296) the court refused to subject the school-financing scheme to strict judicial scrutiny because it would "essentially require the judiciary to micro-manage and second guess difficult policy decisions in the legislative arena."(297) Therefore, the court thought that such questions of educational policy were "ill-suited" for the "rigorous and exacting standards of strict scrutiny."(298) Under the intermediate standard, the court instead required the school-financing scheme to bear a close relationship to legislative goals.(299)
In Montana, although "various aspects" of the right to education are considered fundamental, the right to participate in public school extracurricular activities is not.(300) In analyzing a school district rule that required students to maintain a 2.0 grade average to participate in extracurricular activities, the Montana Supreme Court in State ex rel. Bartmess v. Board of Trustees of School District No. 1,(301) weighed the "competing" and "contradictory" interests of a student's fundamental right to education against the "government interests in developing the full educational potential of each person" through the 2.0 grade average rule.(302) The Bartmess court concluded that a "middle-tier analysis" of the rule was the appropriate standard of judicial review because that level of judicial scrutiny "allows a careful balancing of these competing interests."(303) The middle-tier analysis described in Bartmess required the court to balance the infringement upon the fundamental right to education against the state interest to be served by that infringement.(304)
In Attorney General v. Waldron,(305) the Maryland Supreme Court applied the intermediate standard of review to invalidate legislation denying a retired judge his pension because he was compensated for post-retirement legal work.(306) The Waldron court indicated that closer judicial scrutiny was warranted when the challenged legislation significantly interfered with an "important private right," or a "benefit vital to [an] individual."(307) Following the Waldron analysis, the Maryland Supreme Court subsequently pointed out in Hornbeck v. Somerset County Board of Education(308) that Maryland had adopted a standard of heightened scrutiny of legislation that significantly infringed upon "important personal rights."(309) Although the facts of the Hornbeck case did not warrant the application of heightened scrutiny to the state's school-financing scheme, the court indicated that heightened scrutiny would be the appropriate test for substantial infringements upon the important personal right to education,(310) even though education is not a fundamental right under Maryland's constitution.(311)
C. Massachusetts Should Apply the Intermediate Standard to School Expulsions
To date, the Massachusetts Supreme Judicial Court has rejected all invitations to apply the closer scrutiny of the intermediate standard of review to infringements upon non-fundamental, yet important rights.(312) The court has instead adhered to rational basis as the appropriate standard of judicial review of legislation affecting non-fundamental rights.(313) Indeed, the Supreme Judicial Court, properly aware of its limited role in governmental decision-making, has cited the "undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature" as its reason for clinging to rational basis.(314)
While the Supreme Judicial Court is right to restrain itself from overstepping the boundaries of the separation of governmental powers, it must not at the same time exempt itself from examining more closely legislation that infringes upon a constitutional right as important as education. Indeed, the court recently acknowledged that it has an obligation to resolve challenges to laws that are in conflict with a constitutionally guaranteed right.(315) The court stated that this obligation is "the very essence of [its] judicial duty."(316)
Although the Supreme Judicial Court has so far adhered to the traditional standards of judicial review, it has indicated a willingness to deviate from this two-tiered approach. In Marcoux v. Attorney General,(317) the court admitted that the standards of judicial review are not inflexible, but instead should be "determined at every point by the competing values involved."(318) The court has also indicated that the non-fundamental, yet constitutionally guaranteed right to an education under the Massachusetts Constitution is not static, but instead "must be interpreted `in accordance with the demands of modern society.'"(319) Despite its acknowledgements for compromise, however, the Supreme Judicial Court in Doe adhered to the judicial restraint of the rational basis test in reviewing infringements upon the constitutionally guaranteed right to education. Instead, the court in Doe should have recognized that substantial infringements upon that right represent the "competing values" to which they have alluded as sufficient to justify a deviation from the traditional standards of judicial review.
As previously noted in this Comment, the importance of education to our society appears undisputed.(320) The recognition of both the importance of the right to education and of appropriate judicial restraint has influenced a departure in both federal and state jurisdictions from the traditional standards of review for infringements upon that right.(321) In the federal law, the United States Supreme Court has applied the closer judicial scrutiny of the intermediate standard to infringements upon the non-fundamental, yet important right to education.(322) Similarly, North Dakota, Montana, and Maryland have recognized the dilemma presented by a right as important as education, and have thus settled upon the intermediate standard for infringements upon that right.(323)
Like these jurisdictions, the Massachusetts Supreme Judicial Court appears to have recognized that infringements upon the right to education present problems requiring both judicial care and judicial restraint. That is, although the court in Doe exercised judicial restraint when reviewing an infringement upon one's right to an education, it has for many years plainly recognized the importance of that right,(324) and has also indicated a willingness to deviate from the traditional standards of judicial review under appropriate circumstances.(325) What the Supreme Judicial Court has not yet recognized, however, is that the intermediate standard of review offers courts an appropriate and convenient solution to the conundrum they face.
As applied, the intermediate standard would first require the state to demonstrate that the infringement upon one's right to an education (the expulsion) is substantially related(326) to ensuring the safety and welfare of the entire school community.(327) Except in truly questionable cases,(328) few would doubt that the state could satisfy this prong.(329) The intermediate standard, however, would not require that the expulsion be the least restrictive alternative available.(330) Thus, closer judicial scrutiny of this non-fundamental, yet important right would merely ferret out unwarranted expulsions, thereby reducing the harmful societal consequences of one more needlessly uneducated child.(331)
Conclusion
Because forty-eight state constitutions specifically enumerate the right to education, state courts considering infringements upon that right have the difficult task of deciding whether or not it is fundamental.(332) Traditionally, this classification has been especially difficult for courts because it directly determined how closely the court would scrutinize infringements upon that right.(333) Under the traditional approach, a court will strictly scrutinize legislative actions when those actions have substantially infringed upon a fundamental right.(334) Otherwise, the separation of governmental powers suggests that the court defer to the legislative judgment, through rational basis review, so long as that judgment was not arbitrary or capricious.(335)
The Supreme Judicial Court in Doe was right to hold that in the context of public school expulsions, education is not a fundamental right under the Massachusetts Constitution.(336) Although the right to education is one of undisputed societal importance, the Supreme Judicial Court was also right to conclude that it is one that a student may forfeit through conduct that presents a danger to the entire school community.(337)
But what about legislative infringements, like the expulsion of Jane Doe, for which there is some rational basis, but that also substantially infringe upon a right of such importance? It is uniformly recognized that all of society loses when a student goes uneducated.(338) The answer to such an enigmatic question, therefore, should not lie at one extreme (strict scrutiny) nor the other (rational basis). Indeed, as the United States Supreme Court noted in the quotation prefacing this Comment, "[j]udicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint."(339) In response to this notion, courts on both the federal and state level have recognized that the traditional, two-tiered approach to judicial review does not work very well when the non-fundamental, yet important right to education is involved.(340) These courts have found that by applying the closer judicial scrutiny of the intermediate standard of review they can strike the delicate balance between the two competing interests they face.(341) In so doing, these courts avoid substituting their own ideas of correct educational policy for those of the Legislature, and at the same time, protect against substantial infringements upon such an important societal right.
The Commonwealth of Massachusetts has long recognized the importance that education has in our society.(342) How then can the Supreme Judicial Court reconcile its judicial restraint, under rational basis review, when legislative actions substantially infringe upon that right? The Supreme Judicial Court should be guided by the federal(343) and state(344) jurisdictions that have acknowledged their limited role in government, by refusing to strictly scrutinize educational decision-making, but that have at the same time elevated the standard of review they apply to infringements upon education. Such a compromise neatly balances the obligation courts have to exercise both judicial care and judicial restraint in educational decision-making.(345) To strike such a balance, the Supreme Judicial Court need not deviate from its holding in Doe; but when children in the Commonwealth are expelled from school under questionable circumstances, the court should take a closer look.
Craig J. Tiedemann*
1. Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (emphasis added).
2. See infra text accompanying notes 77-80; see also infra note 83.
3. See infra note 76 and accompanying text.
4. See infra note 81 and accompanying text.
5. See infra notes 46-50 and accompanying text.
6. See infra note 82 and accompanying text.
7. See infra note 86 and accompanying text.
8. See infra notes 51-55 and accompanying text.
9. 653 N.E.2d 1088 (Mass. 1995).
11. See id. at 1095. Justice O'Connor, joined by Justices Abrams, Greaney, and Wilkins, wrote for the majority. See id. at 1090. Chief Justice Liacos dissented. See id. at 1098 (Liacos, C.J., dissenting).
12. Id. at 1095 (quoting McDuffy v. Secretary of the Executive Office of Educ., 615 N.E.2d 516, 555 (Mass. 1993)); see also Mass. Const. pt. II, cl. 5, § 2.
13. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40 (1973). The rational basis test merely requires that the state have a legitimate purpose for its infringement upon a non-fundamental right, and that the means chosen by the state are rationally related to achieving that purpose. See id.; see also Zobel v. Williams, 457 U.S. 55, 60 (1982); Williamson v. Lee Optical, Inc., 348 U.S. 483, 491 (1955); see also infra notes 51-55 and accompanying text.
14. Doe, 653 N.E.2d at 1097. "[W]e decline to hold today, that a student's right to an education is a `fundamental right' which would trigger strict scrutiny analysis whenever school officials determine, in the interest of safety, that a student's misconduct warrants expulsion." Id. at 1095.
15. Id. at 1098 (Liacos, C.J., dissenting).
16. Id. at 1099, 1101 (Liacos, C.J., dissenting).
17. See, e.g., Rodriguez, 411 U.S. at 17. Strict scrutiny requires the government to demonstrate that it has a compelling purpose for infringing upon a fundamental right and that the means chosen are narrowly tailored to achieving that purpose. See id. at 16-17; see also infra notes 46-50 and accompanying text.
18. See Doe, 653 N.E.2d at 1102 (Liacos, C.J., dissenting).
19. See infra note 93 for the text of Mass. Const. pt. II, cl. 5, § 2; see also infra note 74.
20. See infra notes 76-86 and accompanying text.
21. See infra note 76 and accompanying text.
22. See infra note 81 and accompanying text.
23. See infra note 82 and accompanying text.
24. See infra note 86 and accompanying text.
27. See infra notes 82-85 and accompanying text.
28. See infra notes 76-80 and accompanying text.
31. See infra notes 181-202 and accompanying text.
32. See infra notes 203-51 and accompanying text.
33. See infra notes 210-34 and accompanying text.
34. See infra notes 235-51 and accompanying text.
36. See infra notes 279-311 and accompanying text.
39. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973). Examples of rights deemed fundamental by the United States Supreme Court because of their explicit or implicit Constitutional roots include: the right to vote, see, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670 (1966) (holding that the right to vote is implicitly fundamental because it is preservative of other Constitutional rights); the right to travel, see, e.g., Shapiro v. Thompson, 394 U.S. 618, 630 n.8 (1969) (holding that the right to travel is implicitly fundamental because of its connection to the Privileges and Immunities Clause and the Commerce Clause); the right to procreate, see, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding that the right to procreate is implicitly fundamental "to the very existence and survival of the race"); and the right to marry, see, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (holding that marriage is one of the basic civil rights and thus is a fundamental right).
40. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (holding that there is no fundamental right to engage in homosexual sodomy within the purview of the Constitutional right to privacy).
41. See infra notes 42-43 and accompanying text. A showing that one's Constitutional rights were infringed upon by some "state action" is prefatory to any Constitutional analysis because Constitutional provisions concerned with individual rights only protect one from governmental intrusions upon those rights. See Paul Brest & Sanford Levinson, Processes of Constitutional Decisionmaking 1301 (3d ed. 1992). This so-called "state action requirement" was first set out by the United States Supreme Court in the Civil Rights Cases, 109 U.S. 3 (1883). The Court there held that "[i]ndividual invasion of individual rights is not the subject-matter of the [Fourteenth] amendment." Id. at 11. "[The Fourteenth Amendment does not protect individual rights] until some State law has been passed, or some State action through its officers or agents has been taken . . . ." Id. at 13. This means that the Fourteenth Amendment to the United States Constitution "erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13 (1947).
42. See Rodriguez, 411 U.S. at 16 (stating that strict scrutiny is the appropriate level of judicial review for infringements upon fundamental rights). A court will also apply strict judicial scrutiny to state actions infringing upon a suspect classification of people. See McLaughlin v. Florida, 379 U.S. 184, 192 (1964).
Strict scrutiny is not the appropriate standard of review, however, for all infringements upon fundamental rights; it is only appropriate when some state action has substantially interfered with a fundamental right. See Zablocki v. Redhail, 434 U.S. 374, 388 (1978). Reasonable state regulations "that do not significantly interfere with [a fundamental right] may legitimately be imposed." Id. at 386 (emphasis added).
43. See Rodriguez, 411 U.S. at 38-40 (stating that the rational basis test is the appropriate level of judicial review for non-fundamental rights). A court will also apply the rational basis test to state actions infringing upon those who are not part of a suspect classification of people. See Skinner v. Oklahoma, 316 U.S. 535, 540-42 (1942).
44. Bowers v. Hardwick, 478 U.S. 186, 194 (1986).
45. See, e.g., Plyler v. Doe, 457 U.S. 202, 230 (1982) (applying the intermediate standard of review to infringements upon the federal, non-fundamental right to education because of the importance of that right); see also infra notes 267-311 and accompanying text.
46. See Rodriguez, 411 U.S. at 16-17.
49. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 318 (1976) (Marshall, J., dissenting) ("If a statute is subject to strict scrutiny, the statute always, or nearly always . . . is struck down. Quite obviously, the only critical decision is whether strict scrutiny should be invoked at all."); see also Ellen E. Halfon, Comment, A Changing Equal Protection Standard? The Supreme Court's Application of a Heightened Rational Basis Test in City of Cleburne v. Cleburne Living Center, 20 Loy. L.A. L. Rev. 921, 929 (1987).
50. See Gerald Gunther, The Supreme Court 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).
51. See Rodriguez, 411 U.S. at 40; see also Zobel v. Williams, 457 U.S. 55, 60 (1982); Williamson v. Lee Optical, Inc., 348 U.S. 483, 488 (1955).
52. See Lee Optical, 348 U.S. at 487 (upholding under the rational basis test legislation forbidding an optician from fitting or duplicating lenses without a prescription from an ophthalmologist or optometrist). In Lee Optical, no particular purpose was offered by the Legislature for the challenged legislation. See id. at 487-89. It was enough to satisfy the Court under the rational basis test that the Legislature "might have" concluded that its chosen end was legitimate, and that its chosen means "might have" been rationally related to that end. See id.
53. See Halfon, supra note 49, at 956.
54. Gunther, supra note 50, at 8.
55. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
56. See Brest & Levinson, supra note 41, at 813.
57. See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976) (holding that a classification based on gender "must serve important governmental objectives and must be substantially related to achievement of those objectives").
58. See Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-24 (1982) (finding that the state failed to demonstrate that its policy of excluding men from a state nursing school was substantially related to an important interest).
59. See Califano v. Webster, 430 U.S. 313, 317-20 (1977) (treating men differently than women need not be the least restrictive alternative, as Congress' purpose in enacting the social security eligibility statute might have been to equalize traditional inequalities between men and women).
60. See, e.g., Hogan, 458 U.S. at 718 (holding that a classification based on gender must serve an important governmental objective and be substantially related to the achievement of that objective); Boren, 429 U.S. at 197 (same).
61. See United States v. Clark, 445 U.S. 23, 27 (1980) ("[A] classification based on illegitimacy is unconstitutional unless it bears `an evident and substantial relation to the particular . . . interests [the] statute is designed to serve.'" (quoting Lalli v. Lalli, 439 U.S. 259, 268 (1978) (Powell, J., for a plurality))).
62. See, e.g., Plyler v. Doe, 457 U.S. 202, 221-24 (1982) (applying the intermediate standard of review to infringements upon the federal, non-fundamental right to education because of the importance of that right). The Plyler Court invalidated a Texas statute proscribing alien children from attending public schools, as violative of the Equal Protection Clause, because the statute could not be considered rational unless it furthered a substantial goal of the state. See id. at 224; see also infra notes 279-87 and accompanying text.
67. See id. at 33-35. The Court held:
[T]he key to discovering whether education is "fundamental" is not to be found in comparisons of the relative societal significance of education . . . . Nor is it to be found by weighing whether education is as important as the right to travel [a fundamental right]. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.
Education, of course, is not among the rights afforded explicit protection under our Federal Constitution.Id.
68. See id. at 38-40. The Court held that the financing scheme was not so arbitrary or irrational as to fail the rational basis test and thus did not violate the Equal Protection Clause. See id. at 50-55.
Since Rodriguez, the right to education has remained non-fundamental in the federal law. See, e.g., Plyler v. Doe, 457 U.S. 202, 221 (1982). The Supreme Court, however, has since applied the closer judicial scrutiny of the intermediate standard to education because of the importance of that right. See, e.g., id. at 223-24; see also infra notes 279-87.
69. See Rodriguez, 411 U.S. at 29-30.
70. Id. at 30 (quoting Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 283 (W.D. Tex. 1971)).
71. See Allen W. Hubsch, The Emerging Right to Education Under State Constitutional Law, 65 Temp. L. Rev. 1325, 1330-31 (1992) (stating that Rodriguez stands for the idea that if the right to education is explicitly guaranteed in a state constitution then it follows that the right is therefore fundamental).
73. See infra note 76 and accompanying text. States are free to consider the constitutionality of rights under their own constitutions independent of United States Supreme Court decisions, even if the state and federal constitutional provisions are similar or identical. See Cooper v. California, 386 U.S. 58, 62 (1967).
74. See Mass. Const. pt. 2, cl. 5, § 2; see also Alaska Const. art. VII, § 1; Ariz. Const. art. XI, § 1; Ark. Const. art. XIV, § 1; Cal. Const. art. IX, § 1; 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, pt. 1; Haw. Const. art. X, § 1; Idaho Const. art. IX, § 1; Ill. Const. art. X, § 1; Ind. Const. art. VIII, § 1; Kan. Const. art. VI, § 1; Ky. Const. § 183; La. Const. art. VIII, § 1; Me. Const. art. VIII, § 1; Md. Const. art. VIII, § 1; Mich. Const. art. VIII, § 1-2; Minn. Const. art. XIII, § 1; Miss. Const. art. VIII, § 201; Mo. Const. art. 9, § 1(a); Mont. Const. art. X, § 1; Neb. Const. art. VII, § 1; Nev. Const. art. XI, § 1-2; N.H. Const. pt. 2, art. 83; N.J. Const. art. VIII, § 4; N.M. Const. art. XII, § 1; N.Y. Const. art. XI, § 1; N.C. Const. art. IX, § 1-2; N.D. Const. art. VIII, § 1; Ohio Const. art. VI, § 3; Okla. Const. art. XIII, § 1; Or. Const. art. VIII, § 3; Pa. Const. art. III, § 14; R.I. Const. art. XII, § 1; S.C. Const. art. XI, § 3; S.D. Const. art. VIII, § 1; Tenn. Const. art. XI, § 12; Tex. Const. art. VII, § 1; Utah Const. art. X, § 1; Vt. Const. ch. 2, § 68; Va. Const. art. VIII, § 1; Wash. Const. art. IX, § 1; W. Va. Const. art. XII, § 1; Wis. Const. art. X, § 3; Wyo. Const. art. VII, § 1.
75. See infra notes 76, 82 and accompanying text.
76. See Opinion of the Justices, 624 So. 2d 107, 157 (Ala. 1993); Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806, 811 (Ariz. 1994); Serrano v. Priest, 557 P.2d 929, 951 (Cal. 1976); Horton v. Meskill, 376 A.2d 359, 369, 374 (Conn. 1977); Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 206 (Ky. 1989); Skeen v. State, 505 N.W.2d 299, 313 (Minn. 1993); Clinton Mun. Sep. Sch. Dist. v. Byrd, 477 So. 2d 237, 240 (Miss. 1985); State ex rel. Bartmess v. Board of Trustees of Sch. Dist. No. 1, 726 P.2d 801, 804 (Mont. 1986); Bismarck Pub. Sch. Dist. No. 1 v. State, 511 N.W.2d 247, 256 (N.D. 1994); Robinson v. Cahill, 303 A.2d 273, 282 (N.J. 1973); School Dist. of Wilkinsburg v. Wilkinsburg Educ. Ass'n, 667 A.2d 5, 9 (Pa. 1995); Scott v. Commonwealth, 443 S.E.2d 138, 142 (Va. 1994); Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 92-93 (Wash. 1978); Pauley v. Kelly, 255 S.E.2d 859, 878 (W. Va. 1979); Kukor v. Grover, 436 N.W.2d 568, 579 (Wis. 1989); Washakie County Sch. Dist. No. 1 v. Herschler, 606 P.2d 310, 333 (Wyo. 1980).
77. See Skeen v. State, 505 N.W.2d 299, 313 (Minn. 1993).
78. Bismarck, 511 N.W.2d at 250, 256.
79. Pauley, 255 S.E.2d at 878 (quoting W. Va. Const. art. XII, § 1).
80. Herschler, 606 P.2d at 333.
81. See, e.g., Serrano, 557 P.2d at 952 (holding that education is a fundamental right under the state constitution and that infringements upon that right are subject to strict judicial scrutiny); Horton, 376 A.2d at 369, 374 (same).
82. See Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005, 1018 (Colo. 1982); McDaniel v. Thomas, 285 S.E.2d 156, 167 (Ga. 1981); Idaho Sch. for Equal Educ. Opportunity v. Evans, 850 P.2d 724, 733 (Idaho 1993); Committee for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1195 (Ill. 1996); Unified Sch. Dist. No. 229 v. State, 885 P.2d 1170, 1188-89 (Kan. 1994), cert. denied, 115 S. Ct. 2582 (1995); Hornbeck v. Somerset County Bd. of Educ., 458 A.2d 758, 788 (Md. 1983); Palmer v. Bloomfield Hills Bd. of Educ., 417 N.W.2d 505, 507 (Mich. Ct. App. 1987); Board of Educ. v. Nyquist, 439 N.E.2d 359, 366 (N.Y. 1982); Leandro v. State, 468 S.E.2d 543, 550 (N.C. Ct. App.), reh'g granted, 472 S.E.2d 11 (1996); Pawtucket v. Sundlun, 662 A.2d 40, 55 (R.I. 1995); Kirby v. Edgewood Indep. Sch. Dist., 761 S.W.2d 859, 863 (Tex. App. 1988), rev'd on other grounds, 777 S.W.2d 391 (Tex. 1989).
Four state courts (Maine, Ohio, Oklahoma, and Tennessee) have not explicitly held that education is a non-fundamental right, but have implicitly done so by applying rational basis review to education matters. See School Admin. Dist. No. 1 v. Commissioner, Dep't of Educ., 659 A.2d 854, 857 (Me. 1995); Board of Educ. of City Sch. Dist. of Cincinnati v. Walter, 390 N.E.2d 813, 819-20 (Ohio 1979); Fair Sch. Fin. Council of Okla., Inc., v. State, 746 P.2d 1135, 1149-50 (Okla. 1987); Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 155 (Tenn. 1993).
83. See, e.g., Lujan, 649 P.2d at 1018 ("A heartfelt recognition and endorsement of the importance of an education does not elevate . . . [it] to a fundamental interest warranting strict scrutiny."); Nyquist, 439 N.E.2d at 366 (holding that education is not a fundamental constitutional right even though it is an unquestionably important area of concern and responsibility); Kirby, 777 S.W.2d at 863 (stating that "education, although vital, does not rise to the same level" as the fundamental rights to free speech and to exercise religion).
84. See, e.g., Lujan, 649 P.2d at 1017 (noting that the Colorado Constitution is not restricted to addressing only fundamental rights); Palmer, 417 N.W.2d at 507 (holding that the mere mention of education in the Michigan Constitution is not enough for that right to be considered fundamental).
85. See, e.g., Lujan, 649 P.2d at 1018 (noting that because education involves questions of public policy regarding quality schooling for all children, educational considerations "properly lie within the legislative domain").
86. See, e.g., Lujan, 649 P.2d at 1015-16 (holding that education is not a fundamental right under the California Constitution and thus infringements upon that right are subject to rational basis review); Nyquist, 439 N.E.2d at 365 (holding that a school-financing scheme was subject to rational basis review because education is not a fundamental right under the New York Constitution).
87. See infra notes 292-311 and accompanying text.
88. See infra notes 292-311 and accompanying text.
89. See Bismarck Pub. Sch. Dist. No. 1 v. State, 511 N.W.2d 247, 257, 259 (N.D. 1994); see also infra notes 294-99 and accompanying text.
90. See Bismarck, 511 N.W.2d at 257, 259.
91. See State ex rel. Bartmess v. Board of Trustees of Sch. Dist. No. 1, 726 P.2d 801, 804-05 (Mont. 1986); see also infra notes 300-304 and accompanying text.
92. See Hornbeck v. Somerset County Bd. of Educ., 458 A.2d 758, 787 (Md. 1983); see also infra notes 305-11 and accompanying text.
93. Mass. Const. pt. II, cl. 5, § 2. The Education Clause of the Massachusetts Constitution provides in its entirety:
Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people.Id.
94. 615 N.E.2d 516 (Mass. 1993). Chief Justice Liacos, who was joined by Justices Abrams, Nolan, and Greaney, wrote for the majority. See id. at 517. Justice O'Connor concurred in part and dissented in part. See id. at 556 (O'Connor, J., concurring in part and dissenting in part). Chief Justice Liacos subsequently dissented in Doe from the Doe majority's interpretation of McDuffy. See Doe v. Superintendent of Sch., 653 N.E.2d 1088, 1098 (Mass. 1995) (Liacos, C.J., dissenting).
95. McDuffy, 615 N.E.2d at 517. The plaintiffs were from Brockton, Belchertown, Berkley, Carver, Hanson, Holyoke, Lawrence, Leicester, Lowell, Lynn, Rockland, Rowley, Salisbury, Springfield, Whitman, and Wichendon. See id. at 516 n.1. These plaintiffs sued the Board of Education, the Commissioner of Education, the Secretary of the Executive Office of Education, and the Treasurer and Receiver General. See id. at 516 n.2.
99. See infra notes 100-07 and accompanying text.
100. See McDuffy, 615 N.E.2d at 524-26.
106. See McDuffy, 615 N.E.2d at 537-41.
110. See Doe v. Superintendent of Sch., 653 N.E.2d 1088, 1095 (Mass. 1995) ("[T]he [McDuffy] court did not hold . . . that a student's right to an education is a `fundamental right' . . . ." (citing McDuffy, 615 N.E.2d at 548)).
111. See generally McDuffy, 615 N.E.2d at 547-56.
112. See Doe, 653 N.E.2d at 1095.
113. The court gave the plaintiff the pseudonym Jane Doe. See id. at 1090. The suit was brought by Jane Doe's mother on her behalf. See id. at 1088 n.1.
114. See id. at 1090. The lipstick tube, "when twisted open, revealed a pointed, single edge, one and one-quarter inch blade. The blade was sharply pointed but the cutting edge was dull." Id. at 1091.
115. Id. at 1091. The school committee of Worcester initially established a policy proscribing weapons possession in response to the fatal stabbing of a student at Worcester South High Community School in 1989. See Parkins v. Boule, 1994 WL 879558, at *1 (Mass. Super. Aug. 3, 1994), aff'd sub nom. Doe v. Superintendent of Sch., 653 N.E.2d 1088 (Mass. 1995). The school committee of Worcester subsequently adopted the "Policy on Possession or Use of Weapons," under which Jane Doe was expelled, during the first week of the 1993-1994 school year. Doe, 653 N.E.2d at 1090. The "Policy on Possession or Use of Weapons" stated: "`In order to protect the students of the Worcester Public Schools, any student who is found on school premises . . . in possession of a dangerous weapon, including . . . a knife may be subject to expulsion from the school by the principal regardless of the size of the knife.'" Id. (quoting "Policy on Possession or Use of Weapons").
116. 1993 Mass. Acts ch. 71, § 36. The Education Reform Act amended Mass. Gen. Laws ch. 71, § 37H, in order to make it easier for school officials to expel students in possession of weapons. See Doe, 653 N.E.2d at 1093 (interpreting Mass. Gen. Laws ch. 71, § 37H (1993)). The statute provides: "Any student who is found on school premises . . . in possession of a dangerous weapon, including . . . a knife . . . may be subject to expulsion from the school or school district by the principal . . . ." Mass. Gen. Laws ch. 71, § 37H(a) (1994 & Supp. 1996) (emphasis added). A student in violation of the weapons policy shall receive notice of an opportunity for a hearing on the expulsion decision. See id. at § 37H(c). The statute further provides that "[a]fter said hearing, a principal may, in his discretion, decide to suspend rather than expel" a student in violation of the weapons policy. Id. (emphasis added). A principal may not, however, decide to suspend rather than expel a student whom the principal believes would "pose a threat to the safety, security and welfare of the other students and staff in the school." Id.; see also Doe, 653 N.E.2d at 1093-94. Therefore, when a school principal believes that a student presents a threat to the school community, the principal has no discretion under the statute to suspend rather than expel that student. See Doe, 653 N.E.2d at 1094.
117. See Doe, 653 N.E.2d at 1090-91. The "Policy on Possession or Use of Weapons" was included in "School Policies, Rules and Services" for North High, and in "Policies and Programs Handbook in the Worcester Public Schools 1993-1994." Id.
123. See Doe, 653 N.E.2d at 1091; see also Brief for Defendant-Appellee at 2-3, Parkins v. Boule, 1994 WL 879558 (Mass. Super. Aug. 3, 1994) (No. 94-987), aff'd sub nom. Doe v. Superintendent of Sch., 653 N.E.2d 1088 (Mass. 1995).
124. See Doe, 653 N.E.2d at 1091. At the principal's hearing the plaintiff's social worker also testified that, in her opinion, the plaintiff had not considered the lipstick knife to be a weapon. See id. Also, the plaintiff contended in her brief that the lipstick knife was a "novelty item." Brief for Plaintiff-Appellant at 1, Parkins (No. 94-987) [hereinafter Brief for Plaintiff-Appellant].
125. See Doe, 653 N.E.2d at 1091. As previously noted, because the principal believed that the plaintiff was a safety threat, he had no discretion under Mass. Gen. Laws ch. 71, § 37H(c) (1993), to suspend rather than expel her. See supra note 116. The principal's belief that the plaintiff presented a threat to the school community was influenced by the fact that the plaintiff had tried to cut her own wrists on at least three occasions, including the day before she brought the lipstick knife to school. See Doe, 653 N.E.2d at 1091. Additionally, the trial court found that the principal also "had in his thoughts the memory of a student who had been killed in a knife attack by a fellow student in 1989 at another Worcester high school." Parkins, 1994 WL 879558, at *8.
The trial court found that there was substantial evidence to support the principal's conclusion that Jane Doe presented a threat to the school community because she brought the knife to school, showed the knife to other students and allowed those students to handle it, knew that knives were prohibited in school, and had a history of disciplinary and behavioral problems, including attempted suicide. See id. at *15.
126. See Doe, 653 N.E.2d at 1091-92. The trial court pointed out that although the "lipstick/knife appears innocuous from the outside [that fact] does not make its contents any the less dangerous." Parkins, 1994 WL 879558, at *19.
127. See Doe, 653 N.E.2d at 1092. The plaintiff appealed the expulsion decision to the superintendent pursuant to Mass. Gen. Laws ch. 71, § 37H(d). See id. The superintendent's review was limited by § 37H, however, to ensuring that the principal's decision was not arbitrary or capricious. See id. at 1094.
128. See id. at 1092. The superintendent gave no reasons for his decision to uphold the expulsion. See Brief for Plaintiff-Appellant, supra note 124, at 3.
129. 615 N.E.2d 516 (Mass. 1993). See supra notes 94-111 and accompanying text for a discussion of the McDuffy opinion.
130. See Brief for Plaintiff-Appellant, supra note 124, at 5-6.
131. See id. at 6. The superintendent's decision to expel the plaintiff satisfied the "state action" requirement prefatory to any constitutional challenge. See supra note 41. The United States Supreme Court has said that the Fourteenth Amendment to the United States Constitution offers due process protection from the "State itself and all of its creatures--Boards of Education not excepted." West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). Articles One and Ten of the Declaration of Rights of the Massachusetts Constitution are the state equivalent to the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Commonwealth v. O'Neal, 327 N.E.2d 662, 667 & n.5 (Mass. 1975); Pugliese v. Commonwealth, 140 N.E.2d 476, 479 (Mass. 1957). Because school committees in Massachusetts are given "[g]eneral charge" of the public schools by the Legislature pursuant to Mass. Gen. Laws ch. 71, § 37, including the power to remove students, pursuant to ch. 71, §§ 40-42, the expulsion decision in this case satisfied state action for purposes of either a state or federal constitutional challenge. See generally McDuffy v. Secretary of the Executive Office of Educ., 615 N.E.2d 516, 549 (Mass. 1993).
132. See Brief for Plaintiff-Appellant, supra note 124, at 1-2. The Judge denied the motion for a temporary restraining order on the day the complaint was filed, and ordered the motion for preliminary injunction merged with a trial on the merits. See id.
133. See Doe, 653 N.E.2d at 1095-97.
134. See Brief for Plaintiff-Appellant, supra note 124, at 2. Direct appellate review was granted after the plaintiff's injunction pending appeal to the appellate division was denied. See id.
135. Mass. Const. pt. II, cl. 5, § 2; see also supra notes 94-107 for the McDuffy court's interpretation of this constitutional language.
136. McDuffy, 615 N.E.2d at 555.
138. See id. Although federal case law is not binding upon questions arising under the Massachusetts Constitution, see id. at 1099 n.4 (Liacos, C.J., dissenting), Massachusetts courts do follow essentially the same federal standards of judicial review for infringements upon fundamental and non-fundamental rights. See id. at 1102 (Liacos, C.J., dissenting). That is, statutes affecting fundamental rights in Massachusetts are subject to strict judicial scrutiny. See, e.g., Commonwealth v. O'Neal, 327 N.E.2d 662, 668 (Mass. 1975). Statutes affecting non-fundamental rights must merely be rationally related to a legitimate state objective to pass constitutional scrutiny. See Doe, 653 N.E.2d at 1097.
139. See Brief for Plaintiff-Appellant, supra note 124, at 18-21.
140. See id. at 19. Although the plaintiff contended in her brief that she had no history as a dangerous person, she had tried to cut her own wrists on at least three occasions, including the day before she brought the lipstick knife to school. See supra note 125.
141. See Doe, 653 N.E.2d at 1095.
While the court acknowledged in McDuffy the importance of education and decided that the Commonwealth generally has an obligation to educate its children, the court did not hold, and we decline to hold today, that a student's right to an education is a `fundamental right' which would trigger strict scrutiny analysis whenever school officials determine, in the interest of safety, that a student's misconduct warrants expulsion.Id.
143. Id. at 1096 (emphasis added) (interpreting McDuffy v. Secretary of the Executive Office of Educ., 615 N.E.2d 516, 545-46 (Mass. 1993)).
144. See id. at 1096-97; see also Nicholas B. v. School Comm., 587 N.E.2d 211, 212 (Mass. 1992) (holding that a school committee's decision to expel a student who assaulted another student was not arbitrary or capricious); Leonard v. School Comm., 212 N.E.2d 468, 472 (Mass. 1965) (holding that a school could expel a student subject to rational basis judicial review); Sherman v. Charlestown, 62 Mass. 160, 163-64 (1851) (holding that a school committee could expel a student for good cause because education is a common right, not an exclusively individual one).
145. See Doe, 653 N.E.2d at 1096-97.
146. Id. at 1095 (alterations in original) (quoting Parkins v. Boule, 1994 WL 879558, at *17 (Mass. Super. Aug. 3, 1994), aff'd sub nom. Doe v. Superintendent of Sch., 653 N.E.2d 1088 (Mass. 1995)).
148. Id. (alteration in original) (quoting Parkins v. Boule, 1994 WL 879558, at *19 (Mass. Super. Aug. 3, 1994), aff'd sub nom. Doe v. Superintendent of Sch., 653 N.E.2d 1088 (Mass. 1995)).
150. Chief Justice Liacos announced his retirement from the Massachusetts Supreme Judicial Court on June 19, 1996. See Frank Phillips & John Ellement, SJC to Lose Liacos' Voice--Liberal Chief Justice's Retirement Likely to Alter Court, Boston Globe, June 20, 1996, at C1. Herbert P. Wilkins was sworn in as the new Chief Justice on October 1, 1996. Wilkins Sworn in as Head of State's Highest Court, Telegram & Gazette (Worcester, Mass.), Oct. 2, 1996, at A6.
151. See Doe, 653 N.E.2d at 1098 (Liacos, C.J., dissenting).
152. See id. (Liacos, C.J., dissenting).
153. See id. (Liacos, C.J., dissenting).
154. See id. at 1099 (Liacos, C.J., dissenting) (citing McDuffy v. Secretary of the Executive Office of Educ., 615 N.E.2d at 516, 553-54 (Mass. 1993)).
155. Id. at 1098-99 (Liacos, C.J., dissenting) (quoting McDuffy, 615 N.E.2d at 548).
156. See id. at 1099 (Liacos, C.J., dissenting). Liacos stated: "Clearly, since McDuffy, the Commonwealth has a duty to provide education to the plaintiff and it is an enforceable one." Id. at 1100 (Liacos, C.J., dissenting).
157. See Doe, 653 N.E.2d at 1100 (Liacos, C.J., dissenting).
158. Id. (Liacos, C.J., dissenting).
159. See id. (Liacos, C.J., dissenting). The New Hampshire Education Clause states in pertinent part: "Knowledge and learning . . . being essential to the preservation of a free government . . . it shall be the duty of the legislators and magistrates . . . to cherish the interest of [education] . . . ." N.H. Const. pt. 2, art. 83.
160. Doe, 653 N.E.2d at 1100 (Liacos, C.J., dissenting) (quoting Claremont Sch. Dist. v. Governor, 635 A.2d 1375, 1381 (N.H. 1993)). The Chief Justice found additional authority for his contention that a duty upon one affords a corresponding right upon another: "In addition, Black's Law Dictionary 505 . . . indicates in its treatment of `duty,' `In its use in jurisprudence, this word is the correlative of right. Thus, wherever there exists a right in any person, there also rests a corresponding duty upon some other person or upon all persons generally.'" Id. at 1101 (Liacos, C.J., dissenting) (quoting Black's Law Dictionary 505 (6th ed. 1990)).
161. See id. (Liacos, C.J., dissenting).
162. See id. (Liacos, C.J., dissenting); see also supra notes 107-09 and accompanying text for a discussion of the McDuffy holding.
In light of the clarity of the McDuffy holding, Chief Justice Liacos thought that the majority in Doe was wrong to distinguish McDuffy as merely addressing whether the school-financing system was constitutional, and not whether education was a fundamental right. See id. at 1099 (Liacos, C.J., dissenting). Instead, Liacos suggested that the task before the Doe court was not to reinterpret McDuffy, to show that it did not explicitly decide whether education was fundamental, but instead to recognize its content, which suggested that education was a fundamental right under the Massachusetts Constitution. See id. (Liacos, C.J., dissenting). Liacos therefore thought that the Doe majority's reliance on previous Massachusetts cases to find the right to education non-fundamental was misplaced. See id. at 1100 n.5. (Liacos, C.J., dissenting).
163. See id. at 1101. The United States Supreme Court in San Antonio Indep. Sch. Dist. v. Rodriguez, stated that "the answer [to whether education is a fundamental right] lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the [U.S.] Constitution." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973). Some commentators have indicated that this language from Rodriguez stands for the idea that if the right to an education is explicitly guaranteed by a constitution (as it is in forty-eight state constitutions), it follows that the right is therefore fundamental. See, e.g., Hubsch, supra note 71, at 1330-31. Indeed, some of the states that have declared education a fundamental right have included in their reasoning the fact that education is explicitly guaranteed by their constitutions. See, e.g., Skeen v. State, 505 N.W. 299, 313 (Minn. 1993) (holding that education is a fundamental right because of the explicit provision in the state constitution and because of its overall importance); Washakie County Sch. Dist. No. 1 v. Herschler, 606 P.2d 310, 333 (Wyo. 1980) (holding that education is a fundamental right because of the emphasis it receives in the state constitution).
164. See Doe, 653 N.E.2d at 1101 (Liacos, C.J., dissenting).
165. See id. (Liacos, C.J., dissenting).
166. Id. (Liacos, C.J., dissenting).
167. See id. (Liacos, C.J., dissenting). For an excellent and exhaustive analysis of the historical treatment of education in the Commonwealth of Massachusetts see McDuffy v. Secretary of the Executive Office of Educ., 615 N.E.2d 516, 523-47 (Mass. 1993); see also Kate Strickland, Ph.D., The School Finance Reform Movement, a History and Prognosis: Will Massachusetts Join the Third Wave of Reform? 32 B.C. L. Rev. 1105, 1159-67 (1991).
168. See Doe, 653 N.E.2d at 1101 (Liacos, C.J., dissenting). An example of such a statute is the Massachusetts Compulsory School Attendance law, which requires all students age six to sixteen to attend school. See Mass. Gen. Laws ch. 76, § 1 (1994 & Supp. 1996).
169. See Doe, 653 N.E.2d at 1101 (Liacos, C.J., dissenting). Some have argued the parallel proposition that although education is not explicitly guaranteed by the Federal Constitution it should nevertheless be declared fundamental because of its close nexus to other, explicit Federal Constitutional rights. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 & n.78 (1973). Specifically, the plaintiffs in Rodriguez suggested that education was fundamental because it is essential to the exercise of First Amendment rights of expression, and the right to participate on an equal basis in state elections, which are both explicitly guaranteed by the Constitution. See id.
170. Doe, 653 N.E.2d at 1101 (Liacos, C.J., dissenting).
171. See id. (Liacos, C.J., dissenting). See supra note 76 for the states that have declared education a fundamental right under their constitutions.
172. See Doe, 653 N.E.2d at 1101 (Liacos, C.J., dissenting) ("I . . . believe that this constitutional duty [to educate] generates a right which, for purposes of legal analysis, is fundamental."). Liacos also stated:
For us to retreat from the principles stated in McDuffy would be to deny the thrust and logic of its historical underpinnings and would be inconsistent with the letter of our Constitution. Such a retreat would ignore the opinions of other state courts and put Massachusetts into the sad condition of giving greater status to property rights and other rights, recognized as fundamental, which are not as fundamental to the liberty of our f