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Current Issues in Educational Policy and the Law

reviewed by Richard Fossey - May 07, 2008

coverTitle: Current Issues in Educational Policy and the Law
Author(s): Kevin G. Welner & Wendy C. Chi
Publisher: Information Age Publishing, Charlotte
ISBN: 159311656X, Pages: 276, Year: 2008
Search for book at Amazon.com

In Current Issues of Educational Policy and the Law, editors Kevin Welner and Wendy Chi have produced a remarkably useful and coherent book of essays on some of the most important issues of educational policy and law. Welner and Chi both hold law degrees, and their legal training is apparent in their choice of topics.  The book has twelve chapters, which are divided among five broad themes: The No Child Left Behind Act, School Finance and Adequacy, School Choice, Reframing Equal Educational Opportunity Today, and Student and Teacher Rights in Schools.

Interestingly, the twelve chapter authors of this volume are not seasoned law and policy scholars. Most are graduate students in various programs at the University of Colorado or practitioners working in the world of policy and administration. Nevertheless, all the essays are crisp, provocative, and well-researched. The editors seem to have avoided the common defects that appear in so many edited volumes—an unevenness in quality and writing style. Welner and Chi have assembled twelve consistently good essays with harmonious writing styles—something that is difficult to achieve when working with so many authors. Each of the twelve essays was assigned to an external editor, all of whom are nationally recognized law and policy scholars. This external editing process undoubtedly contributed to an excellent collection of essays on the major issues of education law and policy.

The twelve essays cannot be discussed in detail in this brief review, but a few comments on some of the essays will convey the flavor of the chapter authors’ work. In an essay entitled “Tipping the Balance,” writers Vincent Badolato, Megan Bucholz and Carol Drake examine the relationship between the federal government and the states as it has been shaped by the No Child Left Behind Act (NCLB). These authors acknowledge that NCLB represents a strong trend toward federal regulation and control of public education, but they argue that the Act “is not a marked departure from the progression of the national education agenda” (p. 15). Rather, NCLB is part of an evolution of control over public education from the state and local level to the federal level, not the revolution that some critics characterize it to be. Badolato, Bucholz and Drake predict that the extent of federal control over local and state control will eventually be scaled back due to the limited capacity of state governments to respond to NCLB mandates.

Chapter 2 of the volume also discusses the No Child Left Behind Act. Authors August Ruckdeschel, Jennifer Sharp Silverstein, and Sara Rabin astutely observe that the NCLB has in a sense become a statutory substitute for the elusive and often-litigated concept of a “fundamental right to an education.” They posit that the Act, with its accountability provisions, may ultimately create a “negligence standard” that could revive the educational malpractice concept that was rejected by a California appellate court in the celebrated case of Peter W. v. San Francisco Unified School District (1976).

Part II of Welner and Chi’s edited book examines school finance and adequacy. Chapter 4 authors Jennifer Sharp Silverstein, Sara Anderson, and Brandy Chance use case studies to look at four states’ experiences with school finance reform: Arkansas, Kansas, Maryland, and Oregon. According to the authors, all four states developed school financing formulas that moved toward recognizing categorical needs (children from low-income families, children with disabilities, children designated to be at risk, etc.)—an acknowledgement that the cost of adequately educating students differs based on differing student characteristics. They place these case studies in the context of the National Research Council’s 1999 report, Making Money Matter (Ladd & Hansen, 1999). In the authors’ opinion, the states’ school finance strategies fall short of the recommendations from that report, but the authors believe that all four states “are arguably moving in the right direction for connecting resources to student achievement” (p. 90).

In Part III, three sets of authors address legal issues that pertain to the broad concept of school choice. In Chapter 5, Holly Yettick, Emily Wexler Love, and Sara Anderson explore the difficult problem that has arisen from virtually every school choice plan—some parents seem better able to navigate school-choice schemes to their advantage than other parents. They offer some suggestions for improving the ability of disadvantaged families to obtain access to good school choice options.

Chapter 6, entitled, “Child in the Middle,” explores the history of litigation between parents and schools over whom has ultimate control of a child’s education, litigation that began with Pierce v. Society of Sisters (1925) and has continued through such recent federal court decisions as Brown v. Hot, Sexy and Safer Productions, Inc. (1995), decided by the First Circuit Court of Appeals, and the Ninth Circuit’s recent ruling in Fields v. Palmdale School District (2005). Authors Erik Bondurant, Sheri Tappert, and Holly Yettick conclude that politicians and courts seem increasingly willing to favor greater parental authority over a child’s education, “without paying much heed to the child’s own voice” (p. 131).

Chapter 7, written by Meghan Callahan, Susan Krebs, and Erik Bondurant, reviews litigation that pertains to charter schools’ legal liability and the liability of the organizations that grant schools their charters. Although there have only been a few published cases in this area, the authors note “that courts have shown a propensity to side with school districts and chartering authorities when charters are not granted, renewed, or revoked, as well as in third-party liability determination” (p. 147).

In Part IV, two groups of authors tackle perhaps the thorniest educational policy problems of our time—continued racial segregation in American schools and the growing problem of denied access to higher education that undocumented immigrants face. In Chapter 8, Sara Rabin, Lauren Saenz, and Heather MacGillivary ponder the implications of the U.S. Supreme Court’s recent decision in Parents Involved in Community Schools v. Seattle School District (2007), in which the Court struck down two school districts’ voluntary race-based student assignment plans. In “Ending the Dream of Plyler v. Doe,” Emily Wexler Love, Megan Bucholz, and Brandy Chance discuss whether the reasoning of the Supreme Court’s holding in Plyler v. Doe (1982), guaranteeing access to public education to the children of undocumented immigrants, should be extended to higher education.

Part V concludes the volume with three chapters on the legal rights of students and teachers in the schools. In Chapter 10, Heather MacGillivary, Michelle Medal, and Carol Drake look at zero tolerance policies and summarize the decisions by state and federal courts that have ruled on legal challenges to those policies. In a chapter entitled “Seeking A State of Balance in Teachers’ Freedom of Speech,” Adam Van Iwaarden, Michelle Medal, and Meghan Callahan analyze juridical decisions that have sketched the boundaries of teachers’ First Amendment rights in the schools. The authors discuss the implications of the Supreme Court’s Garcetti v. Ceballos decision (2006) on the free speech rights of teachers. In the book’s final chapters, Lauren Saenz, Vincent Badolato, and August Ruckdeschel review what the authors see as a trend by the federal courts to permit “fraternization” between religious organizations and public education.

Law and policy scholars will find this book well worth reading. The volume’s twelve chapters offer challenging theses on the education policy issues of the day, and several of the chapters provide good summaries of particular areas of law and policy litigation—lawsuits over zero tolerance policies, for example, and charter school litigation. Higher education teachers searching for a good text for a graduate course in education law and policy should examine Welner and Chi’s work. They have done a remarkable job of addressing a number of important issues of education law and policy in a thorough, balanced, and provocative way.


Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995).

Fields v. Palmdale School District, 427 F.3d 1197 (9th Cir. 2005).

Garcetti v. Ceballos, 126 S. Ct. 1951 (2006).

Ladd, H.F., & Hansen, J.S. (Eds.). (1999). Making money matter: Financing America’s schools. Washington, DC: National Academy Press.

Parents Involved in Community Schools v. Seattle School District No. 1, 127 S. Ct. 2738 (2007).

Peter W. v. San Francisco Unified School District, 131 Cal. Rptr. 854 (Cal. Ct. App. 1976).

Pierce v. Society of Sisters, 268 U.S. 510 (1925).

Plyler v. Doe, 457 U.S. 202 (1982).

Cite This Article as: Teachers College Record, Date Published: May 07, 2008
https://www.tcrecord.org ID Number: 15248, Date Accessed: 10/24/2021 12:04:25 PM

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About the Author
  • Richard Fossey
    University of North Texas
    E-mail Author
    RICHARD FOSSEY is a Professor and Senior Policy Researcher at the Center for the Study of Education Reform in the College of Education at the University of North Texas. He is a Commissioner of the Texas Catholic Conference Accrediting Commission and Co-Director of the Texas Higher Education Law Conference. He is currently working on an edited book on policy issues pertaining to undocumented immigration in the United States.
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