In Horowitz and Ewing, the Supreme Court did not actually determine that the plaintiffs had a property interest in their continued education, instead the court assumed that they did. This is relevant because the Supreme Court did not actually create precedent on the question. This lack of precedent has meant a lack of guidance for lower courts that has caused uncertainty. This section will examine how this lack of guidance effects both lower Federal courts and state courts.
i. The Assumption Approach Creates Uncertainty for Lower Federal Courts
The Supreme Court’s decision in Ewing and Horowitz failed to provide lower courts for guidance on education-based property interest, and this lack of guidance has created confusion amongst lower courts. In Horowitz and Ewing, the Court did not actually address whether students have a property interest in their education, instead the Court left the door open to be decided later. Lower courts have continued to assume that property interests in education exist since Horowitz and Ewing. The Court’s decision to leave the door open is problematic because without precedent on the question, lower courts have been gun shy about determining whether such an interest existed. Unsurprisingly, courts have been confused about…show more content… Without guidance, it is not surprising that lowers court will develop different approaches to how they handle these type of claims. For example, some courts in a circuit will begin to actively decide whether students have a property interest. But, later courts may not follow their example, and instead continue to assume that a property interest existed based upon Horowitz and Ewing. Intracircuit splits create problems because they breed uncertainty. This uncertainty means that district courts in these circuits may be confused about what approach to use for property
