The origins and development of education law as a separate field of law in the United States and Australia

Abstract

Considerable education legislation is passed in both the United States of America and Australia, and other nations, to govern educational activities at state and federal levels. In the US, educational challenges proliferate in the courts and students and parents seek for appropriate educational provision or compensation. In Australia, while actions are not common, a considerable case law on a range of matters is in existence, and is growing. This article examines these contexts to argue that education law should be recognised as a legal field, and that judicial determinations should recognise parameters of education law in decision-making. At present, in both nations, education law challenges are sited within other recognised areas of law, such as constitutional law, administrative law, employment law, and discrimination law. However, increasingly, the authors argue, these fields, and the legal tests within do not seem to provide satisfactory legal resolution to education issues. For example, applying a business model of vicarious liability to a school setting seems to beg the question of the nature of schools and compulsory education provision and school attendance for young children.