School law for Private School Administrators

School law for Private School
Important school law cases affecting private school administration.
Denise L. Donohue, MCSL
Doctoral Candidate Nova Southeastern University
Lilly Rangel-Diaz
IREACH, Center for Education Advocacy, Inc.
Overview of presentation
Categories of law and their affect on private
1. Constitutional Law (3% of presentation)
2. Federal and State
statutes and regulations (47%)
3. Common Law (.5%)
4. Contract Law (47.5%)
5. Tort law cases (2%)
*Constitutional Law*
The Constitution of the United States and
the Bill of Rights are the framework for
public school law.
Public schools are governmental agencies
and administers of public schools are
public officials.
All Federal regulations, and State
constitutions and state regulations, must
follow the Constitution and Bill of Rights.
Public school policies must follow these
Critical Amendments pertaining to
Public School Law
Amendment I. – Freedom of speech, press, assembly, petition
of government. “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof…”
Amendment IV – No unreasonable search or seizure.
Amendment V – No person shall be deprived of life, liberty, or
property without due process of law.
Amendment XIV – State law must follow federal law
(Amendment V).
Critical Court Cases pertaining
to Public School Law
Dixon v. Alabama State Board of Ed. (1961)
Students have a right to Due Process.
Tinker v. Des Moines (1969)
First amendment rights of Free Speech can
not be denied without Due Process.
Goss v. Lopez (1974)
Students were suspended from school for
10 days without Due Process.
Interesting court cases applicable
to faith-based schools
Engle v. Vitale (1962)
Banned school sponsored prayer.
Abington School District v. Schempp (1963)
No longer can the bible be read at the
beginning of the school day.
Lee v. Weisman (1992)
Banned school sponsored prayer at graduation
Jones v. Clear Creek ISD (1992)
Banned school sponsored prayer at athletic events.
* Federal and State statutes and regulations*
Federal Laws and regulations
NCLB: No Child Left Behind Title Funds
FERPA: Family Educational Rights and Privacy Act (Buckley
FMLA: Family Medical Leave Act – applies if school employees over 50
employees within a 75mile radius.
Civil Rights Act of 1964 – Title VII 2 U.S.C Sec. 2000e-1(a) and
42 U.S.C. Sec. 2000e-2(e)(1). Religious exemption for hiring.
Laws pertaining to disabilities
ADA: Americans with Disabilities
Act (1990) Applies to students and employees.
IDEA: Individuals with Disabilities
Education Act (1990)
(IDEIA, 2004) Applies to students.
Section 504: Rehabilitation Act of 1973
Applies to students and employees.
State statutes and regulations
Examples of common regulations include:
Mandatory attendance rules
State History requirements
Registration and teacher certification
See Dept. of Education publication at
Pierce v. Society of Sisters 268
U.S. 510 (1925)
1922 Oregon Compulsory education act required all
children from 8 to 16 to attend public school.
School Sisters operated state approved academies and
Supreme Court ruled States could not require students to
attend only public schools because 14th amendment
provides a liberty interest for parents to decide their
child’s education.
Lilly Rangel-Diaz –
Laws to know governing students
with disabilities
ADA, IDEA, 504
Common Law or Case Law
“Common law consists of the judgments,
opinions, and decisions of courts adopting and
enforcing preceding usages and customs…case
law relies on past court decisions, which are
called precedents”
(Essex, 2012, p.3).
Case law applies to the jurisdiction in which it
was determined. Does not apply to other
jurisdictions outside its area.
Contract Law
Contract law is the predominant law
governing private schools.
Shaughnessy, (1989).
Three primary sources of Contract Law
Teacher/Staff contracts
Faculty/Personnel Handbook
Student/Family Handbook
Basic elements of a contract
Mutual assent – legal offer and acceptance.
Legally competent parties
Consideration – generally involves money.
Subject matter that is legal
Proper legal form – based upon state requirements.
(ie. Non-discriminatory)
Faculty/Staff Contract
Primary document governing relationship between
employer and employee.
States wages, number of days worked per year, teaching
and non-teaching duties, probationary period, “at will”
clause. Includes reference to the Faculty and Student
handbook as part of the employee contract.
Violation of Church’s teaching is cause for dismissal*.
Signature of contract includes acceptance of Handbooks.
Impermissible inquiries when hiring:
Marital status and family situations*
Non-job related inquiries into personal
history and associations
Non-job related education and work
history Shaughnessy, M. (1989)
Civil Rights Act of 1964: Non-discrimination clause on the basis of
Race, color, religion, sex, national origin.
Civil Rights Act against Age Discrimination 1967: can not
discriminate against age.
Americans with Disabilities Act (1990).
Interviewing continued
Permissible inquiries when hiring:
“Are you a Catholic in good standing
with the Church?”
“Is there any condition or situation
that may cause you to have a problem
with regular attendance?”
Shaughnessy, (1991), p. 53
Faculty Handbooks
Review and update Handbook annually
 Philosophy, Mission, Vision, Goals, Objectives
 Teaching duties: curriculum guides, lesson plans/instruction,
communication with parents, supervision, grading
scale & reporting, professionalism (relationships/boundaries).
 Non-teaching duties: attendance at school meetings, extra-curricular
expectations, student discipline.
 Personnel issues: dress code, leaving building during school day,
sick leave policy, Bishops safe environment with signature page
(if applicable).
 Supervision & evaluation policies: Formative/summative, written
documentation and employee right to respond.
Loss of Constitutional Protections
First Amendment of Freedom of Speech
Fifth Amendment of Due Process
School is a private entity operating under primarily
contract law.
Unless direct and substantial State interest is involved (to warrant
public school “status”) constitutional protections do not apply. Areas
to review for State interest include state funding, state control, tax
exempt status, public benefit or function.
Unless a Due Process procedure is included in the contract or
handbook, it does not apply. If it is included in either, it must be
Loss of the 1st , 5th and 14th
Rendell-Baker v. Kohn 457 U.S. 830 (1982)
Loss of freedom of speech, due process
Rendell-Baker was a counselor at a private school. She
advocated and voiced a position against the private
school’s board and was summarily dismissed. She
brought suit against the principal (Kohn) for violation of
the First Amendment of the Freedom of Speech and Fifth
and Fourteen Amendment for the loss of due process.
Even though the school received 90% of its operational
income from state funding “the court declined to find the
presence of state action significant enough to warrant
constitutional protections” (Shaughnessy, 1991, p.10)
“Violation of Church’s teaching is
cause for dismissal.” Faculty Contract.
Civil rights code of 1964 of non-discrimination against race,
color, sex, and national origin stands, except for religion
and Civil rights code of 1967 against Age discrimination,
Dolter v. Wahlert High School 483 F. Supp. 266 (1980):
Dolter, a female, unmarried teacher at a Catholic school
became pregnant and took school to court after they
refused to rehire her. Dolter presented evidence that
males were rehired who also had pre-marital sex.
Court said there was no entanglement between church
and state for them to rule on equal treatment for males
and females. Court ruled for Dolter.
Apply rules EQUALLY to males and females.
“Violation of Church’s teaching is
cause for dismissal.” Faculty Contract.
Bob Jones University v. United States 103 S.Ct.
2017 (1983). The private university
discriminated on the basis of race and lost its
non-profit status as a result. The state made a
“compelling interest” case for racial equality for
exempt status and won.
“Violation of Church’s teaching is
cause for dismissal.” Faculty Contract.
Steeber v. Benilde-St. Margaret’s High
School No. D.C. 739 378, Hennepin
County, Minnesota (1978). Teacher
protested the non-renewal of her contract
following her remarriage after a civil
divorce. Rules were written in teacher
contract. Courts ruled for view of church
teaching based upon contract law.
“Violation of Church’s teaching is
cause for dismissal.” Faculty Contract.
Weithoff v. St. Veronica School 210 N.W.
2d 108 Michigan (1973). Teacher was not
rehired because of her marriage to an expriest. Court ruled for school, but because
new rules requiring teachers to be
practicing Catholics was not promulgated,
court assessed damages due to plaintiff
No unions required in
Catholic Schools
National Labor Relations Board v. Catholic
Bishop of Chicago, 440 U.S. 490 (1979)
No union, no grievance procedure,
no tenure.
Common law may indicate a de facto tenure. If teacher is
employed for over three years, then expectation of
continued employment may exist.
Student Handbooks
This is contract between student/family and
school. Have student/family read and sign
handbook signature page each year indicating
they have read and agree to handbook policies.
Handbook must be promulgated. Policies which
are not promulgated are not enforceable.
Can’t include everything in Handbook, so use
phrase such as “the principal is the final
recourse in all disciplinary situations and may
waive any disciplinary rule for just cause at his
or her discretion”
(Shaughnessy, M., 1989, p. 62)
Guidelines for the development of
rules of conduct
Rule must be published to students
Rule must have a legitimate educational
Must have a rational relationship to the
educational purpose
Meaning of the rule must be clear
Reutter, E. (1977)
Students do not have 1st or 5th
Amendment rights
(Freedom of speech or due process).
Handbook dictates any “due process”
procedure such as a Notice and Hearing.
If this exists it must be done.
Special Tort Cases
Corporal punishment
Search and seizure
Definition: “Failure to exercise a
reasonable standard of care that results in
harm or injury to another person”
Essex, 2010, p.170.
Four elements must be present: duty,
violation of duty, proximate cause and
Sample case: Titus v. Lindberg 228
1A. 2d 65 (N.J., 1967)
The school administrator was found liable
of student injury when a student was hurt
before school. The administrator was at
the school and knew that students
gathered before school opened. No rules
were established regarding early arrivals
and no supervision was provided.
Diamantes, T. & Roby, D. (2000)
Corporal Punishment
May be allowed by state statute
Punishment should be for the correction of
a misbehavior (not academic failure)
Punishment should not leave a permanent
or lasting injury
Punishment must be administered with an
appropriate instrument
The number of blows should probably not
exceed three.
Shaugnessy, 1989, p. 87
Search and Seizure
New Jersey v. T.L.O. 105 S.Ct. 733 (1985)
Public school case which established that schools
only need reasonable cause, instead of probable
cause, to search students possessions.
Not applicable to private schools, BUT there should
be some policy in place for searches in schools.
Desks and lockers are considered school
property. Courts will look to ‘reasonable person’
rules to establish tort cases – how was the
search conducted, justification at its inception
individualized suspicion.
Definition: “Includes both libel (what is
written) and slander (what is spoken).
Defamation is that which tends to injure
the reputation; to diminish the esteem,
respect, goodwill or confidence in which
the plaintiff is held, or to excite adverse,
derogatory or unpleasant feelings or
opinions against him…”
Black’s Law Dictionary
Defamation continued
Administrators need to take care that all
written documentation is behaviorallybased, verifiable, and objective since both
student and personnel files are viewable
to all parties.
Keep subjective written observations in a
separate file.
Know the source of law which pertains to the
situation. Is it Constitutional law, common law,
contract law or law based on a Federal or State
Statute? Don’t forget individual torts based on
Review and update Contracts and all Handbooks
or Personnel Policy manuals at least annually.
Most all Private School Law is based on Contract
Board of regents of State Colleges v. Roth 408 U.S. 564. Retrieved from
Casebriefs. (2012). Pierce v. Society of Sisters 268 U.S. 510, 45 S.Ct. 571, 69
L.Ed. 1070, 1925
U.S. Retrieved at weisberg/private-family-choices-constitutional-protection-forthe-family-and-itsmembers/pierce-v-society-of-sisters/
Diamantes, T. & Roby, D. (2000). Student injuries and school: Who is
responsible. You be the
judge. The Clearing House, 73 (6), 308-311. Retrieved from
Dixon et. al. v. Alabama State Board of Education 186 F. Supp. 945; 1960 U.S.
District. LEXIS
3482. Retrieved from
Dolter v. Wahlert High School 483 F. Supp. 266 (1980).
Essex, N. (2012). School law and the public schools. Upper Saddle River,
NJ: Pearson. U.S. Supreme Court Center. (2012). Rendell-Baker v. Kohn 457
U.S. 830 (1982)
Retrieved from
Oyez Project: U.S. Supreme Court Media. The Oyez Project, Bob Jones
University v. United
States 103 S.Ct. 2017 (1983). Retrieved at
Oyez Project: U.S. Supreme Court Media. The Oyez Project, Goss v. Lopez,
419 U.S. 565, 95
S.Ct. 729, 42 L.Ed.2d 725 (1975). Retrieved at
Oyez Project: U.S. Supreme Court Media. The Oyez Project, National Labor
Relations Board v.
Catholic Bishop of Chicago, 440 U.S. 490 (1979). Retrieved from
Oyez Project: U.S. Supreme Court Media website: The Oyez Project,
New Jersey v. T.L.O.
Retrieved from
Oyez Project: U.S. Supreme Court Media website: The Oyez Project,
Tinker v. Des Moines, 393
U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 733 (1969). Retrieved at http://
Reutter, E. (1977). The courts and student conduct. Topeka, KS: NOLPE
(ERIC Document
Reproduction Service No. ED 006 406), 1977.
Shaughnessy, M. (1989). School handbooks: Some legal considerations.
Washington, D.C.:
Shaughnessy, M. (1991). The law and Catholic schools: Approaching
the new millennium.
Washington, D.C.: NCEA.
Steeber v. Benilde-St. Margaret’s High School No. D.C. 739 378,
Hennepin County, Minnesota
U.S. Equal Opportunity Employment Commission (2012). Pre-
Employment inquires and
marital status or number of children. Retrieved from practices/inquiries_marital_status.cfm
U.S. Equal Opportunity Employment Commission. (2012). Title VII of
the civil rights act of
1964. Retrieved from
U.S. Department of Education. Elementary and Secondary Education.
No child left behind
title funds. Retrieved at
U.S. Department of Education. Elementary and Secondary Education.
Family educational rights and privacy act. Retrieved at
U.S. Department of Education. (2009). State regulation of private
schools. Retrieved from
U.S. Department of Labor. (2012). Wage and hour division: Family and
medical leave act.
Retrieved from