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Restating the Law Governing Children’s
Education
EMILY BUSS*
In 2015, the American Law Institute (the ALI) undertook an ambitious
project, to create a Restatement addressing the law affecting children.1 It
was a massive undertaking, and some worried that addressing the many
bodies of law affecting children in a single Restatement would be no more
coherent than restating the famously lampooned “Law of the Horse.”2
Those of us who took on the project as reporters saw the value imbedded
in this concern: A Restatement of the Law of Children and the Law offered
an opportunity to look across these diverse sources of law, tying them
together by highlighting overlapping histories and common rationale.
The several sections of the Restatement addressing the law governing
children’s education is a good example, both of the challenges of bringing
distinct strands of law together and the value of doing so.3
In this article, I begin with a brief overview of the Restatement sections
addressing education before turning to the historical context that accounts
for the law’s allocation of the duty and the authority to educate children
1. General information about the Restatement of Children and the Law and the timeline
and status of approval for each section can be found on their website. Restatement of the Law,
Children and the Law, am. l. inst. (2023), https://www.ali.org/projects/show/children-and-law/
(last visited Oct. 2, 2023).
2. See Elizabeth S. Scott, Restating the Law in a Child Wellbeing Framework, 91 U. Chi. l.
Rev. (forthcoming 2024) (citing Frank Easterbrook, Cyberspace and the Law of the Horse, 1996
U. Chi. legal F. 207 (1996)).
3. Restatement oF ChildRen and the law § 5.10 (am. l. inst., Tentative Draft No. 4,
2022) (approved 2022) [hereinafter Restatement (Draft No. 4)].
* Mark and Barbara Fried Professor of Law, University of Chicago Law School. Thanks to
Anna Hori for her excellent research assistance and to the Arnold and Frieda Shure Research
Fund for its nancial support.
Published in Family Law Quarterly, Volume 57, Numbers 2&3, 2024. © 2024 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
94 Family Law Quarterly, Volume 57, Numbers 2&3, 2023–2024
rst to parents and then, in addition, to the state.4 I will then set out the
duty and authority of both state and parent to educate, noting their distinct
origins and underscoring the connections the Restatement draws between
them.5 I will end with a consideration of children’s constitutional rights
in public schools, noting the threat state deference to parental authority in
this context poses to children’s meaningful exercise of these rights.6
I. Education in the Restatement
The education law included in the Restatement focuses on the content
of children’s education, and the law’s assignment of responsibility and
authority to provide that content.7 It also addresses children’s constitutional
rights in public schools at considerable length.8 The sources of the relevant
law restated in these sections are remarkably diverse, spanning federal
constitutional law, state constitutional law, state common law, federal and
state statutes, and local school board policies. As with all Restatements,
this Restatement focuses largely on cases, and on areas of the law in which
courts will be required to engage in legal interpretation in their resolution
of cases. Because the important area of special education law is governed
by detailed federal statutory and regulatory provisions, the Restatement
addresses this topic more briey and in a manner that integrates the
material into the discussion of other education topics.9
The law’s treatment of education is unusual in its allocation of
responsibility and authority to both the state and the parent through
divergent sources with a common rationale. This divided authority is
reected in the Restatement’s divided treatment of children’s education
between Part I, Children in Families, and Part II, Children in Schools.10 The
Restatement draws these distinct treatments together by using common
4. See infra Part II.
5. See infra Parts III & IV.
6. See infra Part V.
7. One of the primary connecting themes throughout the Restatement is the necessity of
accounting for child development to achieve coherence across topics. Attention to child
development suggests that we might understand all law that shapes how children are raised
and what they are allowed to do as a piece of their education. Any law designed in whole or in
part to support minors’ positive development, including “rehabilitation”-focused juvenile justice
polices (see infra Part III) or laws that give children some control over their own choices (see
infra Part IV) could be said to contribute to children’s education.
8. See infra Part V.
9. See Restatement (Draft No. 4), supra note 3, §§ 5.10 cmt. i (children with disabilities),
7.10 cmt. k (the use of force against students with disabilities), 7.20 cmt. h (special limits on
exclusion of students with disabilities).
10. See Restatement oF ChildRen and the law pts. I & II.
Published in Family Law Quarterly, Volume 57, Numbers 2&3, 2024. © 2024 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
