or reading curriculum included content that was contrary to the family’s religious convic- tions and values, thus restricting the family’s right to engage in its chosen religion. Likewise, a series of state and federal statutes has been challenged on separation-of-church- and-state grounds. The courts have ruled that the following practices do not violate the First Amendment religion clauses: n Transportation of students to private, sectarian schools at public expense n Public purchase of secular textbooks for use in religious schools n Use of school facilities by religious organi- zations pursuant to policies that allow nonreligious groups to use such facilities n Release of stude nts from public schools to attend religious instruction classes n Provision of a signer at public expense for a deafstudentinareligiousschool n Permission for student-organized religious clubs to meet on school property during the noninstructional part of the day Practices that have been prohibited by the courts include the following: n Sending public school teachers into private, sectarian schools to provide remedial instruction n Providing a publicly funded salary supple- ment to teachers in religious schools Racial Segregation The U.S. Supreme Court’s 1954 ruling in Brown v. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, held unconstitutional the deliberate segregation of schools by law on account of race. Brown overruled the 1896 case of Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, in which the Court had recognized that separate accommodations based on race were constitutionally valid. Based on Plessy, schools could separate black and white school children, but this practice ended with the decision in Brown. The principles enunciated in Brown provided the foundation for new federal laws that expanded access to education and other public services to previously underserved popu- lations, such as disabled students and adults. In Brown, four separate cases—from Dela- ware, Kansas, South Carolina, and Virginia— were consolidated for argument before the U.S. Supreme Court. The Court framed the issue before it as being whether “segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives the children of the minority group of equal educa- tional opportunity.” The Court answered in the affirmative, holding that the Fourteenth Amend- ment’s EQUAL PROTECTION Clause forbids state- imposed segregation of races in public schools: “In the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” The Court further stated: “[education] … is a right which must be made available to all on equal terms.” The Court found it was not a privilege that is granted to some and denied others. This statement of PUBLIC POLICY opened the public schools to minorities and to other populations who previously had been denied access. For example, advocates for better access to schools for disabled students seized upon this language to press Congress into passing the Education for All Handicapped Children Act (EAHCA) in 1975 (Pub. L. 94-142, Nov. 29, 1975, 89 Stat. 773 [20 U.S.C.A. §§ 1232, 1400 et seq.]). Numerous lawsuits have alleged violation of Brown since 1954. Although the efforts to desegregate the schools have not been uniformly successful, de jure segregation in public schools—the practice addressed specifically in Brown—does not exist in the United States in the early twenty-first century. However, the goal of creating an integrated public-school system has not been achieved. Most minority children still attend schools where they are the majority of students or where their numbers are disproportionately high, as compared to the area population. The location of public housing, middle-class flight from inner-city areas, eco- nomic deprivation of minorities, and a host of other variables have frustrated legislative and judicial efforts to fully integrate public schools. The Supreme Court, in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S. Ct. 2738, 168 L. Ed.2d 508 (2007), issued a landma rk ruling that struck down the desegregation guidelines used by the Seattle, Washington and Louisville, Kentucky school districts, finding that such plans violated the equal protection clause of the Fourteenth Amendm ent. The Court stated that the plans were “directed only to racial balance, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EDUCATION LAW 79 pure and simple” and that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It made no difference if the school districts had worthy goals in mind if they were “free to discriminate on the basis of race to achieve it.” Though four justices voted to end the use of race in public education to promote diversity, Justice ANTHONY KENNEDY issued a separate opinion that said that race could still be taken into account if the programs were more narrowly tailored. The dissenting four justices countered that the majority had made a disastrous decision that would unsettle decades of decisions that sought to prevent the resegregation of public schools. Affirmative Action Programs in Higher Education One of the most heated debates in higher education has focused on AFFIRMATIVE ACTION programs in higher education. Advocates for these programs cite statistics that minorities have been traditionally underrepresented in COLLEGES AND UNIVERSITIES . During the 1960s and 1970s, schools began to address t hese issues by imple- menting programs that required a certain percentage of minorities to be enrolled. The programs were quickly subject to lawsuits by those who had been rejected by the schools, often claiming that the schools had violated their constitutional and statutory rights. A fiercely divided U.S. Supreme Court in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), held that a program at a state-sponsored school that reserved 16 seats out of a class of 100 for certain disadvantaged and minority groups violated the equal protection clause and Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000d. The PLAINTIFF in the case was a white applicant who had been denied admission to the medical school at the University of California at Davis. The student’s credentials were superior to some of those who had been admitted to the 16 seats reserved for the minority or disadvan- taged applicants. Although a majority of the justices agreed that the program was unlawful, a majority could not agree as to the rationale for its judgment. Justice LEWIS POWELL, who wrote the opini on of the Court, found that the use of quotas to admit minorities and disadvantaged students was illegal but also found that schools could consider race as a factor in their admissions. Other justices disagreed, stating that schools that consider race as a factor violated constitutional guarantees. Lower courts have struggled for years with affirmative action admissions programs that considered race as a factor. The Court agreed to consider the issue again when it granted certiorari in the case of Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002). The Sixth Circuit Court of Appeals case upheld the constitution- ality of an admissions program at the University of Michigan School of Law that considered race and ethnicity in its admissions policies. The case had a massive following, fueled by comments by President GEORGE W. BUSH, who voiced his opposition to the program. The Court affirmed the Sixth Circuit’s decision in Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003). The opinion, drafted by Justice Sandra Day O’Connor, found that Michigan’s law school had a compelling STATE INTEREST in attaining a diverse student body, and the admissions program was narrowly tailored to achieve this interest. However, in a companion case, Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003), the Court found the University of Michigan’s undergraduate admissions program was not narrowly tailored to achieve diversity in its class. Writing for the majority, Chief Justice WILLIAM REHNQUIST found that the university’s practice of adding arbitrary points to the application of any racial minority, without considering the individual application, violated the equal protection clause. Education of Children with Disabilities Congress passed the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.A. §§ 1400 et seq.)—formerly the EAHCA—in 1975 to address the failure of state education systems to meet the educational needs of children who have disabil- ities. Congressional enactment of IDEA was, in part, a response to two well-publicized federal court cases: Mills v. Board of Education, 348 F. Supp. 866 (D.D.C. 1972), and Pennsylvania Ass’nofRetardedChildrenv.Commonwealthof Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972). The courts in both cases found that children with disabilities were denied access to public schools because of their disabilities. For example, school laws in Pennsylvania and in the nation’scapital permitted schools to deny entry to children GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 80 EDUCATION LAW whose IQ was below 70 (100 is classified as average intelligence), until such children reached the age of eight. Once admitted to school, many of these children were expelled because they could not learn how to read. IDEA defines the types of disabilities covered and limits coverage to children who are educationally disabled. The act provides for matching funds to be available to states that have federally approved plans. To qualify for those funds, a state plan must ensure a free appropriate public education (FAPE) for all qualifying children and must guarantee access to a complex due process procedure for a pare nt or guard ian who wishes to challenge a child’s FAPE. IDEA differs from most legal provisions for public education in one important aspect: The parent of a disabled child has been elevated to the level of equal partner with school officials in shaping an educational experience for the child, whereas the parent of a child without disabilities is expected by law to be a passive participant in the public education that is provided by the teachers and school officials. This empower- ment of parents of children with disabilities has generated many legal challenges of school officials’ decisions and practices. Each case is decided on narrow factual grounds, with little generalizability. Employee Sexual Harassment and Abuse of Students Two federal statutes, Title IX of the Education Amendments of 1972 (§§ 901-909, as amended, 20 U.S.C.A. §§ 1681-1688) and SECTION 1983 of SOURCE: U.S. De p artment of Education, Office of S p ecial Education Pro g rams, Data Accountabilit y Center (DAC). CHILDREN AGED 6–21 SERVED BY THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT IN 2007 Number of children (in thousands) Disability 0 500 1000 1500 2000 2500 3000 Specific learning disabilities Speech or language impairments Mental retardation Emotional disturbance Autism Deaf- blindness Visual impairments Hearing impairments Orthopedic impairments 2,620 1,154 498.1 440.2 258.3 1.4 26.4 72.2 60.5 Individuals with Disabilities Education Act ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION EDUCATION LAW 81 the Civil Rights Act of 1964 (42 U.S.C.A. § 1983), provide students with potentially powerful tools of redress for and protection against sexual harassment and abuse per petrat- ed by school employees. Title IX provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiv- ing Federal financial assistance.” Section 1983 prohibits the deprivation of federal constitutional and statutory rights “under color of state law.” The most notable ruling on the application of Title IX has been the U.S. Supreme Court’s 1992 decision in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208. In that landmark case, the Court held that a female high-school student who had been subjected to SEXUAL ABUSE by her teacher could receive money damages under Title IX. The Court implicitly accepted as “sexual harassment” the type of behavior that existed in Franklin, which involved coercive sexual activity between a male high-school teacher- coach and a female student. Accordingly, sexual harassment, in all its forms, is SEX DISCRIMINATION prohibited by Title IX. As defined by the Office of Civil Rights, “[s]exual harassment consists of verbal or physical conduct of a sexual nature, imposed on the basis of sex, by an employee or agent … that denies, limits, provides different, or conditions the provision of aid, benefits, or services or treatment protec ted under Title IX.” Under Section 1983 (42 U.S.C.A. § 1983), the violatio n of a student’s right to bodily security (as against a school district) implicates SUBSTANTIVE DUE PROCESS rights under the Four- teenth Amendment. However, in order to demonstrate liability, the plaintiff must show that the school had notice of a pattern of unconstitutional conduct. This standard is difficult to meet. For example, a handful of complaints received by various sch ool officials that a bus driver had kissed or fondled several handicapped children were insufficient to support a Section 1983 claim (Jane Doe A v. Special School Dist. of St. Louis County, 908 F.2d 642, 60 Ed. Law Rep. 20 [8th Cir. 1990]). Litigation involving claims of sexual abuse by teachers expanded rapidly in the 1990s and 2000s. The courts created new legal avenues of redress, and students became more willing to confront their abusers. Further, some state courts waived statutory time limits on the filing of claims in cases involving sexual abuse of minors, permitting lawsuits many years after an alleged abuse. Instructional Programming Contemporary debate on the school curriculum by advocates of a return to the basics, multi- cultural studies, and a range of educational approaches continues to attract public attention as those advocates press their claims in courts and legislative chambers. With some notable exceptions, courts generally give state legislative and local administrative authorities wide lati- tude to tailor curriculum to keep abreast of ever-expanding concepts of education. In every state, local districts must offer a curriculum that the state prescribes. Because the federal Consti- tution has delegated the responsibility for public education to the several states, the power of the state legislature over public schools is said to be plenary, limited only by the state constitution and some provisions in the federal Constitution. Accordingly, the local school board selects its curriculum on the basis of the extent of authority delegated by the state. Most state legislatures have chosen to prescribe a small number of course offerings in all public schools in the state and delegate to local school authorities the balance of authority to control the curriculum. The curricular choices of local school boards might not satisfy some constitu- ents and taxpayers, but displeasure alone will not persuade a court to substitute its judgment for that of a school board. Critics of the local choices pertaining to school curriculum, text- books, library holdings, and teaching methods generally must take their complaints to their local school board and the state leg islature for remedy. Although the federal government tradition- ally has not intervened in the local educational process, the debate for the reform of education in the United States has been prevalent. On January 8, 2002, president George W. Bush signed into law the No Child Left Behi nd Act of 2001, (NCLB) Pub. L. No. 107-110, 115 Stat. 1425 (20 U.S.C.A. §§ 6301 et seq.), which sought to reform national educatio nal policy. Like other federal educational legislation, the act provided funding for a myriad of educational programs. However, it also included for the first time provisions regarding the testing of grade- school students on a national basis. Critics GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 82 EDUCATION LAW claim that standardized testing can cause anxiety among students, and such tests do not always accurately reflect the students’ compe- tencies. Proponents counter that objective testing has long been used to determine the abilities of students and to test the competencies of schools to teach their students effectively. By 2009, NCLB remained a central fix ture of U.S. education policy. Critics have charged that the federal government has usurped a traditional state fun ction and that promised generous funding has proved illusory. More- over, the U.S. DEPARTMENT OF EDUCATION im- posed rigid standards and refused to work collaboratively with state and local officials. Despite the se criticisms, Congress remained committed to NCLB. Imposing minimum achievement requirements nationally has placed a bright light on the performance of children, i ndividual schools, and school dis- tricts. Schools must make adequate yearly progress in test scores to continue to receive federal aid. If they fail to meet these standards they may be closed. Proponents also point to rising test scores throughout the country to justify the success of the program. Financing of Public Education Public schools in the United States are financed through a system of fiscal federalism; that is, the funds used for their operation have been appropriated on the federal, state, and local levels. Nationally, from the mid 1970s to the mid 1990s, the combi ned federal and state support for public education accounted for slightly less than 50 percent of all operating expenses, with the federal treas ury providing less than 10 percent of the total cost of public education. Therefore, approximately one-half of the money required by school districts has come from local sources, primarily local property taxes. States have constructed myriad property classifications and state-aid distri- bution formulas in attempts to equalize educational opportunities for students in property-rich and -poor school districts. Fur- ther, most states provide special funding for school transportation, for the education of students with disabilities, and for other high- cost services and programs. As state creations, school boards may only exercise the fiscal powers delegated to them by the state, so they depend heavily on direct state subsidies and legislative authorization to levy school district taxes. The states’ options to limit and allocate direct state assistance to different classes o f school districts, to fix the sources and limits of school district reve nues, and even to transfer school-district funds place the ultimate control of school finance in state legislatures and not in local school boards. Financially stressed school districts and citizen groups have, therefore, resorted to constitutional challenges to overturn state laws that they deem to be unduly restrictive or unfair. These challenges have not fared well unde r t he federal Constitution and have met with mixed success under state constitu- tions. The U.S. Supreme Court, in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1993), upheld the use of local property-tax systems to support public schools, against the claim that such systems violate the Fourteenth Amend- ment equal protection rights of children in impoverished areas. The Court further declared that public education is not a fundamental constitutional interest. Following Rodriguez, litigation proceeded in about half of the states, under the equal protection and education clauses of state con- stitutions. The state constitutional challenges do not have a uniform thrust. The themes of equality (equal protection) and quality (efficient public education) may, depending on the wording and construction of each state’s constitution, lead toward different policies and results. Despite adverse court rulings, the school-finance liti- gation has inspired a trend of legislative reform in many states. The new laws are calculated to balance educational opportunities for all chil- dren, regardless of the wealth of their school districts or the income of their parents. Bilingual Education Bilingual education see ks to use both the English language and a child’s native language for educatio nal instruction. It is premised upon the belief that this approach enables children to grasp the tenets of basic mathematics, science, and soci al studies in their own language, while simultaneously being exposed to English instruction. In theory it works, but in reality, children have reverted to their native language or have resisted communicating in English, much to the growing frustration of educators GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EDUCATION LAW 83 and the taxpayers who are saddled with the financial burdens brought to them by poor academic performance in the school systems. After investing millions dollars into bilin- gual educatio n, many taxpayers in California decided to express their opinions at the voting booths. The California Department of Finance estimated that for the 1997-1998 school year, California had spent 70 percent of its $385 million earmarked for economically disadvan- taged children in bilingual programs. California voters enacted Proposition 227 in 1998 that mandated the termination of California’s bilin- gual education program. Although the minority of states specially requires bilingual education, the majority provide some sort of funding for these programs. Three states (Arkansas, Delaware, and Nebraska) specifically forbid bilingual education. Conclusion The history of education law is characterized by a series of landmark court opinions and LEGISLATIVE ACTS that, with some exceptions, express the public policy preference for univer- sality in public education. Examples of signifi- cant expansions of this concept of universality are the enactment of compulsory attendance laws in all 50 states in the twentieth century; the Brown decision in 1954; and the 1975 enact- ment of the EAHCA, now IDEA. FURTHER READINGS Abernathy, Scott. 2007. No Child Left Behind and the Public Schools. Ann Arbor: Univ. of Michigan Press. Imber, Michael, and Tyll van Geel. 2004. Education Law. 3d ed. Mahwah, NJ: Erlbaum. Jorgensen, James D. 2009 “Recent Developments in Public Education Law: Postsecondary Education.” Urban Lawyer. Summer. Percentage of Public Schools with Limited-English-Proficient Students, by State, 2003–04 Hawaii 95.1% Alask a 64.8% SOURCE: U.S. Department of Education, National Center for Education Statistics, Schools and Staffing Survey, Public School Data File, 2003–04. Montana 21.1% Washington 76.9% Oregon 79.5% California 87.4% Nevada 81.0% Idaho 59.6% Wyoming 37.2% Utah 82.0% Colorado 72.9% New Mexico 88.8% Arizona 76.8% North Dakota 26.2% Minnesota 62.0% South Dakota 23.5% Nebraska 32.7% Kansas 36.1% Oklahoma 62.8% Texas 83.8% Wisconsin 54.3% Iowa 51.2% Missouri 38.1% Arkansas 58.4% Louisiana 33.4% Illinois 46.1% Indiana 50.9% Ohio 39.1% Pennsylvania 56.3% New York 72.0% W.Va. 19.4% Virginia 56.7% N.Carolina 82.8% Kentucky 45.1% Tennessee 51.7% Miss. 36.0% Alabama 49.4% Georgia 70.3% S.Carolina 65.8% Flori da 82.9% Maine 29.7% Vt. 41.5% N.H. 52.5% Mass. 63.3% R.I. 54.3% Conn. 75.9% N.J. 70.9% Del. 79.2% Md. 64.3% D.C. 62.7% 75% or higher 50% to 74.9% Percentage of public schools 25% to 49.9% Less than 25% Michigan 47.7% ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 84 EDUCATION LAW Olivas, Michael A. and Ronna Greff Schneider, eds. 2008. Education Law Stories. New York: Foundation Press. Russo, Charles J., and Ralph D. Mawdsley, eds. 2002. Education Law. New York: Law Journal Press. Yudof, Mark G., David L. Kirp, and Betsy Levin. 2001. Educational Policy and the Law. 4d ed. San Francisco: Wadsworth. CROSS REFERENCES Abington School District v. Schempp; Colleges and Universi- ties; Disability Discrimination; Drugs and Narcotics; Education Department; Engel v. Vitale; Flag; In Loco Parentis; School Desegregation; School Prayer; Schools and School Dist ricts; Search and Seizure. EEOC See EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. EFFECT As a verb, to do; to produce; to make; to bring to pass; to execute; enforce; accomplish. As a noun, that which is produced by an agent or cause; result; outcome; consequence. The result that an instrument between parties will produce in their relative rights, or which a statute will produce upon the existing law, as discovere d from the language used, the forms employed, or other materials for construing it. The operation of a law, of an agreement, or an act. The phrases take effect, be in force, and go into operation, are used interchangeably. In the plural, a person’s effects are the real and personal property of someone who has died or who makes a will. EFFECTIVE COUNSEL See RIGHT TO COUNSEL. EFFECTIVE RATE Another name for annual percentage rate that refers to the amount of yearly interest to be charged by a lender on the money borrowed by a debtor. In federal income tax law, the actual tax rate that an individual taxpayer pays based upon his or her taxable income. Federal INCOME TAX laws increase the rate of TAXATION as a taxpayer reaches certain marginal income levels. For exa mple, taxpayers might pay a TAX RATE of 20 percent on the first $10,000 of TAXABLE INCOME. Thereafter, any increase in income up to an additional $5,000 might be taxable at a rate of 22 percent on that $5,000. The effective rate of tax is computed by dividing the total amount of tax paid by the total of the person’s taxable income, adding the tax paid on the person’s first $10,000 at a 20 percent rate to the tax paid on the next $5,000 that is at a 22 percent rate. The effective rate is not an average of the tax rates imposed because the average does not take into account the differences in the marginal income levels. A taxpayer’s effective tax rate is, however, more than the person’s bottom marginal rate but less than his or her top marginal rate. EFFICIENT CAUSE That which actually precipitates an accident or injury. The term efficient cause is frequently used interchangeably with proximate cause—the immediate act in the production of a particular effect—or the cause that sets the others in operation. E.G. An abbreviation for exempli gratia [Latin, for the sake of an example]. The phrase e.g. is frequently used in law books in lieu of the phrase “for example.” EIGHTEENTH AMENDMENT The Eighteenth Amendment to the U.S. Con- stitution reads: Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors with- in, the importation thereof into, or the exportation thereo f from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. The Eighteenth Amendment was passed in 1919 and subsequently repealed in 1933. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EIGHTEENTH AMENDMENT 85 The VOLSTEAD ACT (41 Stat. 305 [1919]) was enacted pursuant to the Eighteenth Amendment to provide for enforcement of its prohibition. The 1933 ratification of the TWENTY-FIRST AMENDMENT in 1933 resulted in the rep eal of the Eighteenth Amendment and the Volstead Act. CROSS REFERENCE Alcohol. EIGHTH AMENDMENT The Eighth Amendment to the U.S. Constitu- tion reads: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The Eighth Amendment to the U.S. Constitution, ratified in 1791, has three provi- sions. The CRUEL AND UNUSUAL PUNISHMENT clause restricts the severity of punishments that state and federal governments may impose upon persons who have been convicted of a criminal offense. The excessive fines clause limits the amount that state and federal governments may fine a person for a particular crime. The excessive bail clause restricts judicial discretion in setting bail for the release of persons accused of a criminal activity during the period following their arrest but preceding their trial. The Excessive Fines Clause Courts are given wide latitude under the excessive fines clause of the Eigh th Amendment. Fines imposed by a trial court judge or magistrate will not be overturned on appeal unless the judge or magistrate abused his or her discretion in assessing them (United States v. Hyppolite, 65 F.3d 1151 [4th Cir. 1995]). Under the “abuse-of-discretion” standard, appellate courts may overturn a fine that is arbitrary, capricious, or “so grossly excessive as to amount to a deprivation of property without due process of law” (Water-Pierce Oil Co. v. Texas, 212 U.S. 86, 111, 29 S. Ct. 220, 227, 53 L. Ed. 417 [1909]). Fines are rarely overturned on appeal for any of these reasons. The Excessive Bail Clause Trial court judges are given less latitude under the excessive bail clause. Bail is the amount of money, property, or bond that a DEFENDANT must pledge to the court as security for his or her appearance at trial. If the defendant meets bail or is able to pay the amount set by the court, the defendant is entitled to recover the pledged amount at the conclusion of the criminal proceedings. However, if the defendant fails to appear as scheduled during the prosecu- tion, then he or she forfeits the amount pledged and still faces further criminal penalties if convicted of the offense or offenses charged. When fixing the amount of bail for a particular defendant, the court takes into consid- eration several factors: (1) the seriousness of the offense; (2) the WEIGHT OF EVIDENCE against the accused; (3) the nature and extent of any ties, such as family or employment, that the accused has to the community where he or she will be prosecuted; (4) the accused person’sabilitytopay a given amount; and (5) the likelihood that the accused will flee the jurisdiction if released. In applying these factors, courts usually attempt to set bail for a reasonable amount. Setting bail for an unreasonable amount would unnecessarily restrict the freedom of a person who only has been accused of wrongdoing; who is presumed innocent until proven otherwise; and who is entitled to pursue a living and to support a family. At the same time, courts are aware that bail needs to be set sufficiently high to ensure that the defendant will return for trial. Defendants are less likely to flee the jurisdiction when they would forfeit large amounts of A woman displays an anti-Prohibition slogan printed on an automobile tire cover. Ratified in January 1919, the Eighteenth Amendment was repealed by the ratification of the Twenty-first Amendment in December 1933. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 86 EIGHTH AMENDMENT money as a result. Courts are also aware that they must protect communities from the harm presented by particularly dangerous defendants. In this regard, the U.S. Supreme Court has permitted lower courts to deny bail for defendants who would create abnormally dan- gerous risks to the community if released. The Cruel and Unusual Punishments Clause Whereas appellate courts usually defer to lower courts when a criminal penalty is challenged under the excessive fines and excessive bail clauses of the Eighth Amendment, they give much closer scrutiny to criminal penalties that are challenged under the cruel and unusual punishments clause. State and federal govern- ments are prohibited from inflicting cruel and unusual punishments on a defendant, no matter how heinous the crime committed. The prohi- bition against cruel and unusual punishment by states derives from the doctrine of incor- poration, through which selective liberties con- tained in the BILL OF RIGHTS have been applied to the states by the U.S. Supreme Court’s interpre- tation of the due process and EQUAL PROTECTION clauses of the FOURTEENTH AMENDMENT. Punishments Must be Proportionate to the Offense Committed The Eighth Amendment requires that every punishment imposed by the government be commensurate with the offense committed by the defendant. Punishments that are disproportionately harsh will be overturned on appeal. Examples of punishments that have been overturned for being unreasonable are two Georgia statutes that prescribed the death penalty for RAPE and KIDNAPPING (Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 [1977 ]; Eberheart v. Georgia , 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 [1977]). The U.S. Supreme Court has also ruled that criminal sentences that are inhuman, outra- geous, or shocking to the social conscience are cruel and unusual. Although the Court has never provided meaningful definitions for these characteristics, the pertinent cases speak for themselves. For example, the Georgia Supreme Court explained that the Eighth Amendment was intended to prohibit barbarous punish- ments such as castration, burning at the stake, and quartering (Whitten v. Georgia, 47 Ga. 297 [1872]). Similarly, the U.S. Supreme Court wrote that the cruel and unusual punishments clause prohibits crucifixion, breaking on the wheel, and other punishments that involve a lingering death (In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 [ 1890]). The Court also invalidated an Oklahoma law (57 O.S. 1941 §§ 173, 174, 176-181, 195) that compelled the state government to sterilize “feeble-minded” or “habitual” criminals in an effort to prevent them from reproducing and passing on their deficient characteristics (Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 [1942]). Significantly, however, the Court had let stand, fifteen years earlier, a Virginia law (1924 Va. Acts C. 394) that authorized the STERILIZATION of mentally retarded individuals who were institutionalized at state facilities for the “feeble-minded” (Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000 [1927] ). A constitutional standard that allows judges to strike down legislation that they find shocking, but to let stand other legislation they find less disturbing, has an inherently subjective and malleable quality. A punishment that seems outrageous to one judge on one particular day might seem sensible to a different judge on the same day or to the same judge on a different day. For example, in Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992), the Supreme Court reviewed a case in which a prisoner had been handcuffed by two Louisiana corrections officers and beaten to the point where his teeth were loosened and his dental plate was cracked. Seven U.S. Supreme Court justices ruled that the prisoner had suffere d cruel and unusual punishment under the Eighth Amendment. Two justices, ANTONIN SCALIA and CLARENCE THOMAS, disagreed. Punishments Must be Consistent with Evolv- ing Standards of Decency Another amor- phous measure by which the constitutionality of criminal sentences is reviewed allows courts to invalidate punishments that are contrary to “the evolving standards of decency that mark a maturing society” (Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 [1958]). Under the Trop test, courts must determine whether a particular punishment is offensive to society at large, not merely shocking or outrageous to a particular justice. In determining which crimi- nal sentences are offensive to society, the Court will survey state legislation to calculate whether they are auth orized by a majority of jurisdic- tions. If most states authorize a particular punishment, the Court will not invalidate that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EIGHTH AMENDMENT 87 punishment, as it is not contrary to “evolving standards of decency.” Applying this test, the Court initially ruled that the death penalty may be imposed upon 16- year-old U.S. citizens who have been convicted of MURDER, because a national consensus, as reflected by state legislation, supported CAPITAL PUNISHMENT for juveniles of that age (Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 [1989]). Under the same reasoning, the Court initially permitted the states to execute a mentally retarded person who had been convicted of murder, despite claims that the defendant’s handicap minimized his moral culpability (Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 [1989]). In the years after the Court decided Penry, several states, including Texas, exempted men- tally retarded individuals from their death- penalty statutes. Moreover, very few states that did not proscribe such executions actually executed mentally retarded defendants, mean- ing those individuals with IQs of lower than 70. In 2002 the Court reviewed its conclusion in Penry in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Because so few states allowed execution of the mentally retarded, the practice had indeed become “unusual.” Moreover, justifications for the death penalty, such as retribution on the part of the defendant and deterrence of capital crimes by prospective offenders, did not apply to the mentally retarded. Accordingly, the Court categorically excluded the mentally retarded from execution under the Eighth Amendment. Atkins demonstrated that the Eighth Amendment, like other constitutional provi- sions, evolves as society evolves. Nevertheless, Justice Antonin Scalia, in a scathing dissent in Atkins, attacked the majority opinion as lacking in precedent. He noted, “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its mem- bers.” According to Scalia, the ABOLITION of executions of mildly mentally retarded indivi- duals by 18 states did not amount to a “national consensus” that such executions were so “morally repugnant as to violate our national ‘standards of decency.’” Moreover, Scalia noted that execution of mildly retarded individuals in 1791, when the Eighth Amend- ment was adopted, would not have been considered “cruel and unusual.” Rather, only the severely and profoundly retarded were historically protected. Three years later the Court applied the same logic in overturning Stanford v. Kentucky and concluding that evolving standards of decency demonstrated that application of the death penalty to persons under 18 years of age constituted cruel and unusual punishment for- bidden by the Eighth Amendment. Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). As in Atkins, the Court in Roper wrote, “the objective indicia of national consensus here—the r ejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice—provide sufficient evidence that society today views juveniles, in the words Atkins used respecting the mentally retarded, as ‘categorically less culpable than the average criminal.’” The evidence of such consensus in Roper was similar to the evidence in Atkins: Thirty states prohibited the juvenile death penalty, including 12 that rejected it altogether and 18 that maintained it but, by express provision or judicial interpretation, ex- cluded juveniles from its reach. Even in the 20 states without a formal prohibition, the Court observed, execution of juveniles was infrequent. Punishments Must be Consistent with the Original Understanding of the Eighth Amend- ment Another test that the Court employs to evaluate the constitutionality of particular punishments is somewhat less pliable, but still controversial. Popularly known as the originalist approach, this test permits the U.S. Supreme Court to invalidate punishments that the Framers “originally” intended to remove from legislative fiat. In attempting to ascertain which punishments the Framers disapproved of, the Court has developed a simplistic formula: If a particular punishment was prohibited by the states at the time they ratified the Eighth Amendment in 1791, then that particular punishment is necessarily cruel and unusual; if a particular punishment was permitted by most states, or at least some states, in 1791, then the Framers did not intend to remove that punish- ment from the legislative arena. The narrow, originalist formula has been criticized on a number of grounds. Some critics argue that a state representative’s vote to ratify the Eighth Amendment need not mean that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 88 EIGHTH AMENDMENT . Deaf- blindness Visual impairments Hearing impairments Orthopedic impairments 2,620 1,1 54 498.1 44 0.2 258.3 1 .4 26 .4 72.2 60.5 Individuals with Disabilities Education Act ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE. 74. 9% Percentage of public schools 25% to 49 .9% Less than 25% Michigan 47 .7% ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN. CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION EDUCATION LAW 81 the Civil Rights Act of 19 64 (42 U.S.C.A. § 1983), provide students with potentially powerful tools of redress for