Chapter 14. Legal Issues
Surrounding Assessment
“Stone walls do not
a prison make,
Nor iron bars a cage
. . .”
-- Richard Lovelace
Topics
Three Types of Laws
Statutory Law (the “feds”)
Administrative Law (the “regs”)
Case Law (here comes the “judge”)

Major Federal Laws

USC, CFR, PL
The Courts
Case Law
Consent Decrees

Three Types of Laws
 Statutory law, legislation

Passed by a legislative body
 Administrative law, regulations (regs)

Developed by a government agency
 Case law

Based on court decisions
Basic Terminology
Most of our attention is on federal laws
 United States Code, statutory law passed by
Congress, U.S.C. in the title
 Code of Federal Regulations, administrative
law, C.F.R. in the title
 Public Law, law passed by Congress, P.L. in
title with year and order passed (P.L. 94-142)
Useful sources : see next slide
Useful Sources of Information
 For the full text of United States Laws (codes), go to:
http://uscode.house.gov/usc.htm
 For the full text of United States Regulations, go to:
http://www.access.gpo.gov/nara/cfr/
 For Individuals with Disabilities Education Act, go to:
http://www.ed.gov/offices/OSERS/IDEA/
 For No Child Left Behind Act of 2001, go to:
http://www.ed.gov/nclb
Why So Confusing?
 Ways of referring to a law

By USC, PL, CFR, full title, or acronym
 Frequent amendments, revisions
 Cross referencing not exact between laws
and “regs”
 Court interpretations
Let’s Start at the Very Beginning . . .
The Reserve Clause . . .
Control of education as a state’s right
The Tenth Amendment (Amendment X) of the
United States Constitution, which is part of the
Bill of Rights, was ratified on December 15,
1791. The 10th Amendment states that powers
not granted to the National government nor
prohibited to the states are reserved to the
states and to the people.
So, control of education falls to each individual
state . . . Thus, we have 50 sets of state laws.
But, hold on, in 1868 enter the . . .
14th Amendment
All persons born or naturalized in
the United States, and subject to
the jurisdiction thereof, are citizens
of the United States and of the state
wherein they reside. No state shall
make or enforce any law which
shall abridge the privileges or
immunities of citizens of the
United States; nor shall any state
deprive any person of life, liberty, or
property, without due process of
law; nor deny to any person within
its jurisdiction the equal protection
of the laws.
[Emphasis added.]
Major Federal Laws: Overview
Civil Rights Acts
1964, 1991
 Main thrust: employment; use of tests (and
other criteria) for job selection
 Some application to educational assessment,
e.g., for graduation tests
 Equal Employment Opportunity Commission
(EEOC) “Guidelines” - Good example of
administrative “regs”
ESEA
 Elementary and
Secondary Education
Act (1965)



Major increase in federal
presence
Requirements to
evaluate new programs
Emergence of
accountability
President Lyndon B. Johnson,
with his childhood
schoolteacher, Ms. Kate
Deadrich Loney, prepares to
sign ESEA into law.
Lyndon Johnson – School Teacher
quoted from TIME May 21, 1965 . . .
“Johnson was a small town boy. After working at various casual labor jobs for a few years after high school,
Lyndon decided that ‘I'd rather use my head than my back to earn a living.’ He chose Southwest Texas State
Teachers College in San Marcos because ‘it was nearest my home, I could get in, and it was most
economical.’
Tired of the financial squeeze after his sophomore year, Lyndon brashly applied for a teaching job in the obscure
town of Cotulla, between San Antonio and Laredo. He was named principal of a new red brick MexicanAmerican school, charged at the age of 20 with directing five teachers. Those nine months in a county where the
Mexican kids lived in waterless, crumbling shacks and the median education of Mexican adults is still a mere 1.4
years proved the most rewarding of Lyndon's school years. Young Lyndon insisted upon respect from his pupils.
He taught fifth, sixth and seventh grades. He ordered his teachers to supervise organized play at lunchtime and
they went on strike, but his board backed him up. He joined eagerly in the kids' play, spent much of his salary for
playground equipment, often tackled the boys on the gravel football field. By such tactics, Lyndon earned the
kids' respect—and their affection as well.
Lyndon got his bachelor of science degree with a government major in August 1930, became an instructor in
public speaking at Sam Houston High in Houston the next month. He fascinated his speech classes with his
personal, pointed anecdotes, loved to throw out a single word and demand that his students ad-lib a speech
about it. Once the word "string" stumped the class—but Lyndon promptly talked 15 minutes on the topic. On the
side, Lyndon taught Houston's first Dale Carnegie course for businessmen. His teaching career ended in 1932,
when he turned to politics. “
‘The basis of our whole future as a nation and a civilized society depends on our ability to give every
child all the education that he can take.’ –LBJ
ADA. . . Preceded by
Rehab Act of 1973
 The Americans with
Disabilities Act (1990)
 First thrust: architectural




barriers
Concept of
“accommodations”
Application to assessment
procedures
What will “level the playing
field”?
Current practices for testing
IDEA
 Individuals with
Disabilities Education
Act
 Historical trace
PL 94-142 in ’75
IDEA in ’90, ’97 IDEA 2004
 Provisions related to assessment
 FAPE (free and appropriate
education ; what’s “appropriate”?)
 The IEP
 Least restrictive environment,
mainstreaming, inclusion
NCLB
No
Child
Left
Behind
Act (2002)
 Historical trace
Technically a revision of ESEA of 1965
 Nation at Risk, Goals 2000
 Strong bipartisan support
 The goal: “proficiency” for all students
 Adopts Standards Based Education (SBE) approach

FERPA
 Family Educational Rights
and Privacy Act (1974)
[aka Buckley Amendment]
 Right to access to information
about self (or child)
 Restrictions on release of
information to others
The Courts
 Someone sues
 A particular entity
 A particular
School District
 A particular
teacher
 Background on
procedures
 Xxx v. Yyy
 Type of court
The Courts (cont.)
 Consent Decrees

Another way in which
courts work
 Exploring
Court Cases

For court cases, access
the LexisNexis database.
Practical Advice
1. Know your school’s source for legal
expertise.
2. Don’t over-generalize from single court
cases.
3. Be aware of “regs” as well as laws.
Terms/Concepts to Review and
Study on Your Own (1)
 accommodation
 ADA (Americans with Disabilities Act)
 administrative law
 case law
 consent decree
 CFR (Code of Federal Regulations)
 equal protection clause
 ESEA (Elementary and Secondary Education Act)
Terms/Concepts to Review and
Study on Your Own (2)
 FAPE (free and appropriate education)
 FERPA (Family Education Rights and Privacy Act)
 IDEA (Individuals with Disabilities in Education)
 NCLB (No Child Left Behind)
 PL (public law)
 Regulations (regs)
 statutory law
 USC (United States Code)