Chapter 1
Legal Framework Affecting Public
Schools
Historical Development of the U.S.
Constitution
• The Articles of Confederation were established in 1781 to help govern the
U.S.A.
• These Articles guaranteed each state’s sovereignty and independence.
• In 1783, after the Revolutionary War, each state began to act similarly to
an independent country-running it’s own affairs with little concern for the
Republic.
• The Constitution was ratified 3 months after it was signed. (Signing: Sept.
17, 1787, Ratification: From Dec. 7, 1878 to June 21, 1788)
• The Constitution adhered to the principle of separation of powers by
making 3 separate branches of government-the legislative, judicial, and
executive.
• Additionally, powers are distributed between a central government, the
states, and provinces. Articles VI, however, makes the national
government supreme so states are obligated to enforce the U.S.
Constitution, federal statutes, and treaties.
Bill of Rights
• The Bill of Rights represents the primary source
of individual rights and freedoms. The first 10
amendments to the Constitution are viewed as
fundamental liberties of free people.
• For example, the government can not pass laws
prohibiting the freedom of speech.
• Others include the freedom of press, assembly,
and religion.
• Public schools belong to the state so they too
must abide to the Bill of Rights when dealing with
students and school personnel.
U.S. System of Courts
• The 2 types of courts are federal and state.
• Federal courts include district courts, appellate courts,
and the Supreme Court.
• At least one federal court is found in each state with a
total of 95 in the U.S.
• There are 13 federal circuit courts with Nebraska
belonging to the 8th.
• State courts are where most educational cases take
place because they do not involve federal questions.
• State courts are split into courts of general jurisdiction,
court of special jurisdiction, courts of limited
jurisdiction, and appellate courts.
Federal Court Video (8 min)
The Supreme Court
• The Supreme Court is the highest court in the
land and there is no appeal beyond the decision
of this court. The only way a decision can be
overturned is by an amendment to the
constitution.
• Cases can reach the Supreme Court only based
on appeal (by right) or writ of certiorari (by
granting from the Supreme Court).
• There are 9 members on the Supreme Court,
including a Chief Justice, who are all appointed to
life terms.
Supreme Court Video (3 min)
Religion in the Public School
“Public Schools may not inculcate nor inhibit religion. Schools must be places
where religion and religious conviction are treated with fairness and respect.”
First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the government for a redress of grievances.
Lemon v. Kurtzman (Lemon Test)
1.
2.
3.
The actions have a secular purpose;
The actions do not have the principal or
primary effect of advancing or
inhibiting religion;
The actions do not foster an excessive
entanglement of government with
religion.
1. Student Prayers
Santa Fe Independent School District v. Doe 530 U. S. 290 (2000)
The Court ruled prayer over a loudspeaker at a government
sponsored event on government property (football game on
district property) is a violation of the Establishment Clause
Student Prayer and Religious Discussion
Establishment Clause does not prohibit purely private religious speech
Students may read Bibles, say grace, say prayer anytime it is not disruptive to the
learning process
Informal gatherings are ok (Meet at Pole)
School may neither discourage or encourage
2. Graduation Prayers and Baccalaureate Activities
Lee v. Weisman 505 U. S. 577 (1992)
Ruled graduation prayers unconstitutional
Baccalaureate Activities
“A school may not extend preferential treatment to baccalaureate ceremonies and
may in some instances be obligated to disclaim official endorsement of such
ceremonies.”
3. Participation in or Encouragement of Religious Activity
Teachers and school administrators or employees, when acting in those
capacities, are representatives of the state and are prohibited by the
establishment clause from soliciting or encouraging religious activity, and from
participating in such activity with students.
Employees also are prohibited from discouraging activity because of its religious
content, and from soliciting or encouraging anti-religious activity.
4. Religion in School Curriculum
Religion is a natural part of history, which is included in the approved curriculum in
SC.
When the topic is addressed, the emphasis must be purely academic and not
devotional.
Schools may teach about religion and its influence on areas such as art, music,
literature, and social studies.
5. Religious Content in Student Assignments
Students may express their beliefs about religion in the form of homework, artwork, and
other written and oral assignments free of discrimination based on the religious content
of their submissions.
Such home and classroom work should be judged by ordinary academic standards of
substance and relevance and against other legitimate pedagogical concerns identified by
the school.
6. Distribution of Religious Literature
Schools generally shall not permit formal distribution of any materials from any nonschool organization, regardless of the content of the materials on school property.
Accordingly, students generally should not distribute flyers to all students on a mass
level at specific established locations at the school. Students can distribute
information on an informal basis that is not disruptive.
Students have a right to distribute religious literature to their schoolmates on the
same terms as they are permitted to distribute other literature that is unrelated to
school curriculum or activities. Schools may impose reasonable time, place, and
manner on distribution of religious literature as they do on nonschool literature
generally.
7. Student Participation in Religious Events Before and After School
There is no legal reason not to allow students to participate in religious events
“before and after school,” which do not interfere with instructional time or the
educational process.
8. Religious Holidays
Although public schools may teach about religious holidays, including their religious
aspects, and may celebrate the secular aspects of holidays, schools may not observe
holidays as religious events or promote such observance by students.
9. Released Time for Religious Instruction
Subject to applicable State laws, School Boards may allow religious instruction off
school property. If allowed, schools may not encourage or discourage participation or
penalize those who do attend.
10. Federal Equal Access Act
Generally, if secondary public schools have a limited open forum, (allows noncurriculum clubs to meet), the school must allow religious groups the same access to
the school media, (PA system, school newspaper, bulletin board).
Students, the Law and Public Schools
REASONABLENESS
Administrators must adopt defensible school
polices, provide explicit discipline guidelines,
ensure parent understanding, and ensure that
due process is provided.
Essex (2008) states, “Generally, rules are
deemed to be reasonable if they are
necessary to maintain an orderly and peaceful
school environment and advance the
educational process (p.48)”
“in loco parentis”
• Essex (1999), “While in loco parentis gives
school officials latitude to exert authority over
students under their supervision, it is not a
license to act in an arbitrary or capricious
manner. The constitutional rights of students
must be respected. The exercise of in loco
parentis is limited to school matters involving
academics and discipline. Areas outside of
these two are reserved to parents.”
Freedom of Expression
• The First Amendment to the U.S. Constitution states, “Congress
shall make no law…abridging the freedom of speech, or of press or
of the rights of peoples to peacefully assemble.”
• The Supreme Court in the landmark Tinker case established that
students are entitled to all First Amendment guarantees stating:
School officials do not possess absolute authority over their
students. Students in school as well as out of school are “persons”
under our Constitution. They possess fundamental rights which the
State must respect…In our system, students may not be regarded as
closed-circuit recipients of only that which the state chooses to
communicate. They may not be confined to the expression of those
sentiments that are officially approved. In the absence of a specific
showing of constitutionally valid reasons to regulate their speed,
students are entitled to freedom of expression of their views.
Freedom of Expression
• “School official may restrict freedom of expression where
there is evidence of material and substantial disruption,
indecent or offensive speech, violation of school rules,
destruction of school property, or disregard for authority. In
each case, student must be provided minimal due process
before any punitive action is taken.”
• The First Amendment directly impacts: protests and
demonstrations, school-sponsored newspapers, nonschoolsponsored student publications, dress and appearance and
controversial slogans.
Court Decisions to Consider
• Tinker vs. Des Moines
ISD
• Bethel vs. Fraser
• Hazelwood v. Kuhlmeier
The Fourth Amendment
Does the 4th Amendment
apply to students in
public schools?
• No unreasonable
search/seizure
• Probable cause
• Particularity
• Warrants
4th Amendment applies
to student searches
BUT…
• School officials are not
required to obtain
search warrants
• Legality of a search
conducted by school
officials depends on
reasonableness of
search
Court Decisions to Consider
• New Jersey vs. T.L.O.
SUMMARY
1. Students have limited right to
privacy in school
2. School officials must satisfy
“reasonableness” standard to
search
3. School officials are not required
to obtain warrant
THE TEST
• Search must be justified at
inception
Q: Did school officials have
reasonable grounds for search?
• Search must be reasonably
related in scope to circumstances
justifying search
Q: Were measures used
reasonably related to objectives
of search and not excessively
intrusive in light of age, sex of
student and nature of infraction?
Student’s Right to Due Process
Due Process--What
does it mean?
•
•
“Due process requires
fundamental
fairness, fair
processes and fair
procedures.”
•
•
Procedural Due Process—Students
right to be adequately notified of
pending charges or proceedings and
the opportunity to be heard during
these proceedings.
Substantive Due Process—Students
not subjected to arbitrary or
capricious acts by school officials
regarding the exercise of their
personal rights.
Vagueness Doctrine—Students
should not be penalized for behavior
that he/she could not reasonably
understand to be prohibited
Presumption Standard– Students may
not be deprived of rights without
assurance that there is sufficient
factual evidence.
“Procedural Safeguards and Due Process
Standards”
• 1. Specific warning must be given about what
behavior would result in corporal punishment.
• 2. Administration of corporal punishment
must take place in the presence of another
school official.
• 3. Upon request, a written statement must be
given to parents regarding reasons for the
punishment and the name of the official
witness.
Court Decisions to Consider
Goss vs. Lopez
• Students were suspended for
10 days without a hearing and
were not present at the board
meeting when suspensions
were handed out.
Summary Ruling
• All students have the right to
procedural due process?
• Students have the right to
explain their conduct to an
administrator (short-term
suspension).
• Students must be given a
hearing before the school
board for long-term
suspensions and expulsion.
Chapter 4
Due Process & Student Safety
Homeland Security
• Increased concern for safety across the nation
after 9/11
• No Child Left Behind assures schools “plans”
are on file regarding maintenance of safe &
drug free environments
NSCC guidelines for safe schools:
1. Identify context in which academic learning
should take place in school mission
statement. (ie: “to learn in a safe and secure environment free of
violence, drugs…”)
2. Identify procedure for dealing with threats.
3. Identify potential disasters in your school. (ie:
intruders, assault, weapons, kidnappings, child abuse, accidental death,
natural disasters…)
NSCC guidelines for safe schools cont.
4.
5.
6.
7.
8.
Control campus access.
Identify roles and responsibilities.
Identify who to call in a crisis.
Provide training for all.
Establish and emergency communication
system.
9. Implement uniform reporting/recordkeeping system.
Handling GANG violence
1. Ensure that school personnel have
knowledge of gang identification and
management techniques.
2. Establish policies and procedures to
address gang violence at school.
3. Implement a system to report suspected
gang involvement/activity.
4. May need to ban dress related to gang
activity.
School Uniforms
1. Involve the community in drafting.
2. Make certain student religious expressions are
preserved.
3. Make certain student rights of expression are
preserved within reasonable limits.
4. Make financial provisions for economically
disadvantaged students.
5. Enforce policies fairly and consistently.
6. Implement as a component of an overall school
safety program.
7. Present drafts to legal counsel for review.
8. Review and revise as needed.
Zero Tolerance
1.
2.
3.
4.
5.
6.
7.
Do not use solely to rid of disruptive students.
Involve community in formation of policies regarding
zero tolerance.
Recognize that students have constitutional rights
while drafting.
Do not move too swiftly with an assumption that it
will be a “cure-all” for student mis-conduct.
Upon expulsion of a student, seek alternative
educational opportunities.
Consider student history, seriousness of offense, and
immediate need to act before punishment.
Follow due process in all manners.
Suspension
1.
2.
Give adequate notice of policies regarding suspension.
Compile a record of information. (Include: description, time, and place of
infraction, witnesses, and previous efforts to remedy behavior)
3.
4.
Provide some type of hearing preceded by notification of such.
Provide written or oral notice of charges (Include evidence and
opportunity to refute charges).
5.
6.
7.
No delay is necessary between notice and hearing.
Listen to all sides of the issue during the hearing. Students
should be allowed to present their side without interruption.
Provide written notification of the actions from the hearing to
the parents/guardians (Include: charges, evidence, number of days of
suspension, ISS or OSS, conditions for return to school, statement that suspension
can be appealed if desired.)
8.
Inform parents/guardians by phone immediately. Follow with
written notification promptly.
Expulsion
**These steps will meet the standards of due process if implemented correctly.**
1. Inform student(s), parents/guardians based on
school policy of infractions that may result in
expulsion.
2. Student is entitled to written notice of the
charges and a right to a fair trial. Written notice must be
furnished well in advance of the actual hearing.
3. The following procedural steps should be
considered (at the minimum):
1. Written notice of charges, 2. Right to a fair hearing, 3. Right to
inspect evidence, 4. Right to present evidence on student’s
behalf, 5. Right to legal counsel, 6. Right to call witnesses, 7.
Right to cross-examine, 8. Right against self-incrimination, 9.
Right to appeal.
Metal Detectors
& Drug Testing
• Metal detectors should be used only when there is
evidence of student behavior that poses threat to
student health and safety.
• Drug testing by schools has been deemed legal in the
Supreme court pending it is part of the school’s
district-wide program on drug education and
prevention and is in the district’s interest in
combating drug abuse.
CHAPTER 5
Individuals With Disabilities
EDAD 859
By: Group 2
1975- P.L. 94-142 the Education for All
Handicapped Children Act:
• An act of congress after findings that
supported the need.
• Congress realized it was in the nations best
interest for the federal government to
intervene and work with the states
collaboratively in addressing the needs of
children with disabilities.
1990- Individuals With Disabilities
Education Act (IDEA):
• Defines the responsibility of school districts in
regards to children with disabilities ages 3-21.
The level of financial support is set forth to
assist states in meeting their obligations.
• This legislation was passed to ensure that all
children with disabilities receive a free and
appropriate public education in a least
restrictive environment.
2004- Individuals With Disabilities
Education Improvement Act (IDEIA):
• This act was a reauthorizing of IDEA.
• Was signed by the president on November 19th,
2004.
• A federal law that ensures that eligible children
with disabilities ages 3-21 receive a free and
appropriate public education consistent with
their individual needs.
• It provides new formulas for allocating funds to
state and local education agencies.
• The act also established substantsive and
procedural due process rights.
2000- National Council on Disability
(NCD):
• An independent federal agency of fifteen
members that were appointed by the president
and confirmed by the senate.
• Purpose is to promote policies, programs,,
practices and procedures designed to assure
equal opportunity for individuals with disabilities
irrespective of the nature and severity of their
disability.
• Found every state to be out of compliance (to
some degree) with the Individuals with
Disabilities Education Act (IDEA).
Disciplining Students with Disabilities:
• A suspension of 1-10 days is the same for a
child with a disability or without a disability.
• Suspension and/or expulsion over 10 days will
follow the same guidelines or plan for
disabled students unless the disabled
student’s behavior manifested from the
disability.
Parental Rights in Special Education:
• There is to be written consent prior to a school district
conducting an initial or reevaluation of a student.
• All students have a right to a “Free and Appropriate
Public Education” (FAPE).
• Parents must have input on a child’s IEP as they know
the child best.
• Parents have the right to request evaluations by other
providers such as an O.T. P.T. or vision specialist etc…
• Parents have the right to request meetings and to
refuse special education services.
Least Restrictive Environment:
• Regular classroom with support from the regular
education classroom teacher.
• Regular class with support instruction from
special education teacher.
• Regular class with special resource instruction.
• Full time special education class in a regular
school.
• Full time special school.
• Residential school.
• Homebound instruction.
Multi-Disciplinary Team (MDT):
• MDT meetings are held to discuss the results of initial
testing or reevaluation testing to determine if a
student qualifies for Special Education Services.
• All MDT meetings must have an administrator in
attendance or an appointed person who is qualified to
provide information, supervise and have knowledge of
the availability of resources in the school district.
• Students are reevaluated every three years.
• Students are eligible for services from ages 3-21 but
there are services available for children birth – 3 years
old.
Individual Educational Plan (IEP):
• A written statement for each child with a
disability that describes their educational
program. It is developed, reviewed and revised in
accordance with IDEA and must meet Rule 51 and
IDEA requirements.
• Must meet annually.
• Can include related services such as O.T., P.T.,
etc…as needed.
• Must be developed and implemented for each
public and non public school child who receives
special education and related services.
Questions? Check this out!
•
http://www.ed.gov/about/offices/list/ocr/504
faq.html
Chapter 6
School Personnel and School District
Liability
Liability
• Liability involving school personnel normally falls into
two categories: intentional torts and unintentional.
• Intentional torts-such as assault, battery, libel, slander,
defamation, false arrest, malicious prosecution, and
invasion of privacy-require proof of intent or
willfulness.
• Unintentional torts-such as simple negligence-does
not require such proof of intent or willfulness.
• In either case, charges may be sustained if the school
failed to act appropriately or improperly.
• Forseeability, a crucial element in liability cases, is
defined as the teacher’s or administrator’s ability to
predict that a certain activity may prove harmful. For
example, a school would be liable if broken glass
panes exist in a doorway.
Student safety
• Teachers have a legal duty to instruct students on the
proper use of equipment and materials. Failure to do so
makes the teacher liable. Examples include use of table
saws, welding equipment, science equipment, and athletic
equipment and techniques.
• There is no clear cut line for procedures for before and
after school supervision. Each district must evaluate their
own situation and provide the supervision necessary. At
the very least, students should be periodically monitored.
If problem arise, then full time supervision would be
required
• A letter informing parents of before and after school
monitoring policies should be sent home, signed by the
legal guardian, and returned to the school.
General thoughts
• School grounds should be accessible and
considered safe for visitors.
• Personal information regarding students must be
kept confidential.
• Schools should develop a culture and a set of
values that place a high premium on respect of all
individuals in the school community.
• Items retrieved from students, if not illegal, should
be returned to students or their parents in a
reasonable time frame and not retained
permanently by school personnel.
• Well planned liability workshops should be offered
periodically to ensure that school personnel are
aware of the limits of liability.
Interesting Video
(2 min)
• News Story
Liability and Student Records
Chapter 7
School Law and the Public Schools,
2008
Nathan Essex
Public Law 93-380
• The Family Educational Rights and Privacy Act (FERPA)
protects confidentiality of student records.
• Rights of Parents: Parents or legal guardians have the right to
inspect their child’s record
• Right of Noncustodial Parents: The courts have maintained
that neither parent could be denied access to the child’s
records under the Family Educational Rights and Privacy Act.
• Rights of Eligible Students: The student may exercise the
same rights afforded parents or guardians, if he or she has
reached the age of 18 or in enrolled in a postsecondary
institution.
• Rights of School Personnel: Teachers, counselors, and
administrators who have a legitimate educational interest in
viewing record may do so. A written form, must be
maintained permanently with the file.
Confidentiality
• School counselors are not required to share
information obtained from students with their parents.
Records that remain in the sole possession of
counselors are not subject to FERPA. Educational
records under FERPA do no include personal files.
When circumstances arise in which public disclosure is
in the public interest, confidentiality is lost.
• Federal and state officials may inspect files without
parental consent in order to enforce federal or state
laws or to audit or evaluate federal education
programs.
Landmark U.S. Supreme Court Rulings
• Owasso ISD v. Falvo, 2002, the U.S. Supreme
Court ruled that peer grading does not violate
FERPA.
• Gonzaga University v. John Doe, 2002, the U.S.
Supreme Court ruled that student and parent
may not sue for damages under 42 U.S.C. 1983 to
enforce provisions of the Family Educational
Rights and Privacy Act.
Defamation Involving School Personnel
• When school personnel communicate personal and
sensitive information to another unauthorized person
that results in injury to the student’s reputation or
standing in the school or that diminishes the respect
and esteem to which the student is held, they may
faces charges of libel or slander depending on the
manner and intent in which such information was
communicated.
• Slander is oral defamation, when school personnel
inadvertently communicate sensitive and damaging
information contained in student file to unauthorized
individuals.
Defamation Involving School Personnel
• Libel is written defamation. Teachers, counselors and
principals should refrain from including damaging
information in the student’s record for which there is
no basis.
• Qualified privilege protects school personnel that
provide oral or written information regarding a
student, some of which might be contained in the
student’s file when the requests are made and the
school personnel responds in a truthful and reasonable
manner. This privilege is based on the premise that the
educator is operating in good faith.
Defamation Involving School Personnel
• Acts of Malice exists when there is an clear
intent to harm or injure another.
• Defenses Against Defamation include
privilege, good faith and truth.
Chapter 8: Teacher Freedoms
Substantial Process—the state must have a valid objective when it intends to
deprive a teacher of life, liberty, or property, and the means used must be
reasonably calculated to achieve its objective.
Procedural Due Process—the state may not deprive any person of life,
liberty, or property, without due process of law.
Freedom of Expression:
 In school, limited if it creates material disruption to the
educational interest of the school district
 Outside of school, comments need to prefaced that
comments are personal opinion
 Statements cannot be false or detrimental to the school
district
Speech Outside the School Environment
• Freedom of Speech outside the school environment is well established,
however, a teacher should preface his or her comments by indicating that he or
she is speaking as a private citizen rather than an employee of the board
• Pickering v. Board of Education—US Supreme Court held that in the absence of
proof of the teacher knowingly or recklessly making false statements the
teacher had a right to speak on issues of public importance without being
dismissed from his position.
Academic Freedom
• Academic freedom is not a right
• Classrooms cannot be used to promote personal or political agendas
• Fowler v. Board of Education of Lincoln County—Court deemed that teachers are
role models with responsibility for inculcating fundamental values, and that
those values disfavor expression that is highly offensive to others.
Freedom of Association and Membership of Subversive Organizations
• Teachers have freedom of association as long as they are not involved in illegal
activities
• Keyishian v. Board of Regents 1967 US Supreme Court case which declared that
stated that the classroom is peculiarly the "marketplace of ideas.”
Political Rights and Participation in Campaigns
• Teachers have the right to political office, but may be asked to take a leave of
absence while in office
• Minielly v. State case in Oregon, the district court held to be invalid a state law
that prohibited public employees from running for political office.
Dress and Grooming
• Dress and grooming can be regulated by the board
• East Hartoford Education Association v. Board of Education of Town of East
Hartford—A teacher was reprimanded for failing to wear a tie while teaching.
He took action in the United States District Court for the District of Connecticut
and was granted a motion for summary judgment based on the fact that the
plaintiff asserted no cognizable constitutional interest.
Right to Privacy
• Erb v. Iowa State Board of Public Instruction—held the revocation of a teaching
certificate for adultery was impermissible when defendant made no findings of
the fact and the statute did not permit “personal moral judgment,” especially
when only one incident occurred with no adverse affect shown.
• Teachers are entitled to privacy and cannot be penalized for private
noncriminal acts
• Pregnant unwed teachers may not be automatically dismissed unless there is a
definite reason for doing so.
Religious Freedoms
• Good News Club v. Milford Central School, (2001), held that when a government
operates a “limited public forum,” it may not discriminate against speech that
takes place within that forum on the basis of the viewpoint it expresses—in this
case, against religious speech engaged in by an Evangelical Christian club for
children.
• Religious Freedoms can be limited if dress creates a reverent atmosphere
• Religious rights of teachers must be respected, so long as they do not violate
the establishment cause of the 1st Amendment by creating excessive
entanglement in the school.
Discrimination in Employment
Chapter 9
Group 2
Josh, Angelique, Gary, Jessica, & Roni
Statues prohibiting discrimination
• Title VII of the Civil Rights Act of 1964
– Prohibits employment discrimination based on race,
color, religion, sex, or national origin.
• Title IX of the Education Amendments Act of
1972
– Prohibits sexual discrimination by public and private
educational institutions receiving federal funds.
• Equal Protection Clause of 14th Amendment
– Provides protection against group discrimination and
unfair treatment.
Statues prohibiting discrimination
• Rehabilitation Act of 1973
– Prohibits discrimination against any otherwise qualified
person who has a disability with respect to employment,
training, compensation, promotion, fringe benefits, and
terms and conditions of employment.
• Americans with Disabilities Act of 1990
– Protects individuals with disabilities against discrimination
and assures equal access to opportunity.
Statues prohibiting discrimination
• Affirmative Action - Proposition 209
– A means to eliminate affirmative action programs
supported by governmental agencies.
– Prohibits discrimination and preferential
treatment on the basis of race, sex, ethnicity,
color, or national origin.
Statues prohibiting discrimination
• Age Discrimination Act in Employment Act of
1967
– Prohibit forced retirement of employees.
• Pregnancy Discrimination Act of 1978
– Amendment to Title VII which protects pregnant
employees against any form of discrimination
based on pregnancy.
Other areas protected…
• Sexual Harassment
– Prohibited by Title VII and Title IX
• Issues involving National Origin: Proposition 187
– Enacted in 1994 denies public social services to people
who are unable to establish there status as U.S. citizens,
lawful permanent residents, or aliens lawfully admitted for
certain period of time.
– Some consider this to violate the equal protection clause
of the 14th amendment.
– Is one of the most controversial issues and still being
debated.
Chapter 10: Recruitment,
Tenure, Dismissal and Due
Process
EDAD 859
Tenure:
• Teachers are entitled to fundamental fairness, even if they have not
achieved tenure.
• Tenure is not designed to protect teachers who are inept or
ineffective. However, it should protect competent and effective
teachers.
• Teachers may only be dismissed for specified reasons that are
documentable and objective evidence.
• Due Process procedures must be followed to be sure that dismissal
decisions are legally defensible.
• Nonrenewal of a non tenured teacher’s contract does not generally
require due process, unless there is an alleged constitutional
violation.
Dismissal for Cause:
1. Grounds for dismissal include incompetency,
insubordination, neglect of duty, immorality,
justifiable decrease in number of teaching positions,
financial exigency or “other good and just cause”.
2. A board of education may dismiss a teacher for
almost any reason , as long as the reason is valid and
meets the due process requirements.
3. To dismiss a teacher for incompetency systematic
evaluations, documentation of performance and a
thorough teacher improvement plan.
4. Sexual misconduct involving students by school
personnel will almost always result in dismissal.
Dismissal for Cause (cont.):
• 5. Community norms and expectations regarding
professional conduct of teachers are very important
considerations in cases involving alleged immoral
conduct and and dismissal.
• 6. A felony conviction or series of misdemeanors may
result in dismissal and revocation of a teaching license.
• 7. Private acts of homosexuality or adultery cannot
form a basis for dismissal unless there is evidence that
such acts render the teacher ineffective and there is
proof that such acts adversely affect a teacher’s ability
to perform his/her assigned duties.
Financial Exigency:
• This is when a district faces a bona fide reduction in its
budget which results in abolishing certain employment
positions. The school board must demonstrate financial
exigency.
• All employees must be afforded full due process provisions
if affected by a reduction in force.
• School districts cannot use financial exigency to remove an
employee who has exercised a constitutionally protected
right.
• Seniority and job performance should receive priority in RIF
(reduction in force) decisions.
• School district policy/state statutes must be followed to the
letter to implement RIF policies.
Collective Bargaining:
• The basic intent of collective bargaining is to create teacher
empowerment and shared power between teachers and
school boards.
• This process should be guided by good faith efforts between
all parties involved.
• School boards should not negotiate items that they have no
legal authority to negotiate unless they have statutory
authority to do so.
• Any action taken by striking teachers that may disrupt
educational opportunities for students will not likely receive
court support.
• Collective bargaining agreements should not impair teacher’s
constitutionally protected rights and freedoms.
The Instructional Program
Chapter 11
School Law and Public Schools, 2008
Nathan L. Essex
Control of Public Schools
• The U.S. Constitution makes no reference to education.
The Tenth Amendment places responsibility on each
state to provide free public schools.
• The legal authority for defining the curriculum of public
schools is the state legislature, in a few states, it is the
state legislature and the state board of education.
• State v. Harworth established the state’s responsibility
for public education.
Compulsory Attendance
• Every state requires
children between
certain ages, usually
6-16 years old to
attend public, private
or home school.
• The parent has an
obligation to the child
and state to ensure
that the child receives
an appropriate
education.
Exceptions:
• Wisconsin v. Yoder-the state’s
interest regarding universal
and compulsory education is
by no means absolute to the
exclusion or subordination of
all other interests. The First
Amendment prohibits state
action that interferes with a
parent’s right to control the
religious upbringing of his or
her child.
• Additionally, married students
who are emancipated and are
no longer under their parents’
care.
Attendance
• Every state requires that children between 6 or 7 and 16
or 17 attend public, private or home school.
• Parents who fail to get their children to school face
criminal charges.
• One exception to the attendance requirements are if a
student has a religious belief that conflicts continuing
education as in Wisconsin vs. Yoder. Yoder was Amish and
stopped schooling after 8th grade. Another exception may
be if a student is married and no longer under their
parents’ care.
• Students who are home schooled are required to meet
standards for curriculum and instruction, length of
instruction, and days in which instruction should be
provided.
Residence
• Schools generally are required to educate
students who reside within the districts
boundaries. Residence is a student’s actual
dwelling place. Domicile is where the student
intends to remain indefinitely. A student’s
domicile follows that of his or her legal guardian.
• If the child is emancipated the domicile is
determined by where the student intends to
remain indefinitely.
Curriculum
• Curriculum standards, such as courses offered and achievement
required, are based through state policy. Local schools may
develop other standards as long as they do not contradict state
requirements.
• State legislation requires that certain subjects be included in
school curricula such as American history. However, the
specifics are left to be decided by local school districts.
• Many schools fear teaching the Bible due to possible lawsuits.
However, many Bible classes are being offered at public schools
throughout the United States (see bibleinschools.net). Some
guidelines for Bible use include teaching objectively and in a
strict secular manner, instructing teachers on how and what to
teach, and formulating policies for teachers, students, and
parents to follow.
No Child Left Behind Act of 2001
• There are four guiding principles: stronger accountability,
increased flexibility, expanded options and improved
instruction.
• States must insure that students are tested in math and
reading by 2005-06 school year.
• By 2007, state must insure that students are tested at least
one annual assessment in science in at least one grade level:
3-5, 6-9 and 10-12 .
• States must set and then meet adequate yearly progress
toward the goal of having children meet proficiency levels in
core subjects by the year 2013-14.
• Schools that fail to meet AYP face sanctions including offering
supplemental services, transportation or restructuring.
No Child Left Behind Act of 2001
• Districts have flexible use of funds and may
transfer up to 50 percent of the funding they
receive under the four major state grant
programs (Teacher Quality state grants,
Educational Technology state grants,
Innovative Programs, and Safe and Drug-Free
Schools) to any one of the program or to Title
I.
Grading and Academic Requirements
• Courts generally are reluctant to interfere in cases involving academic
matters as they feel educators are better equipped to evaluate students.
• The state does however have the authority to set graduation requirements
and check student competencies based on standardized tests.
• Courts will typically support the schools in grade reduction in relation to
student absences as long as the policies are reasonable and do not violate
the state’s attendance statute.
• School districts may use grade reduction for misbehavior as long as a
relationship is shown between the misconduct and their classroom work.
• Students are to be awarded a diploma if he or she has met the academic
requirements for graduation. However, a student may be denied
participation in the graduation ceremony if misconduct has occurred.
Chapter 12
Group 2: Roni, Angelique, Gary, Josh & Jessica
De Jure Segregation
• Fourteenth Amendment
– 1868 - provided for “equal protection under the
laws”
– 1896 - Plessy v. Ferguson - Supreme court upheld
“equal but separate”
– 1954 - Brown v. Board of Education - Supreme
court struck down “separate but equal”.
Brown v. Board of Education
(Brown I)
• Landmark turning point for desegregation
• Stated that “Segregation...in public schools
has a detrimental effect upon the colored
children”
• Provided NO remedy for segregation leading
to Brown II
Brown II
• Supreme court rulings
to ensure proper
implementation of the
ruling in Brown I
• District courts were
mandated to
supervise the
transition
• School districts were
to implement this
ruling in “good faith
and with all deliberate
speed”.
School issues along the way...
• Racial Balances or Racial Quotas
– some districts implemented a racial balance/quota
requirement of 71%-29% on specific schools
• One-Race Schools
– certain schools were allowed to remain all or
largely of one race due to concentration of
minorities in parts of a city, but were under close
scrutiny
School issues along the way...
• Remedial Altering of Attendance Zones
– some school districts drastically altered districts
and attendance zones to accomplish
desegregation
• Transportation of Students
– situations varied greatly and there were no
provisions for dealing with transportation
Free Transfer and freedom of
Choice Program
• Many school districts
adopted freedom of
choice plans to avoid
desegregation orders
• Schools would rezone
their districts AND
provide that a student
could request to be
transfered back to
their old school
• Courts ruled that this
perpetuated racial
segregation
De Jure & De Facto
• De Jure Segregation
– racial segregation derived from the enforcement of
law
• De Facto Segregation
– present when the number of students enrolled in a
school represent a racial or ethnic minority
– this developed when no action was taken by the
school district to require desegregation
The Civil Rights Act of 1964
• specifically Title VI
– prohibits discrimination on basis of race or color in
programs that receive federal funds
– to ensure the elimination of segregated schools
it is illegal and will not be supported
by the courts
Chapter 13 Finance
School Funding and Taxes
The power of taxation for education resides with the state limited
only by federal and state constitution.
State constitutional provisions allow the legislature to make
provisions for a system of public schools and to tax citizens for
support of public education.
The legislature has the inherent power not only to tax citizens for
support of education but also to distribute funds for the operation of
public schools.
Tax distribution formulas are determined by the legislature based
on the needs of various types of school districts and the ability of
citizens in those districts to support public education.
Legal Challenges to School Taxation
Serrano v. Priest—Case that supported equal protection
challenge regarding disparities in funding and that the
quality of a child’s education should not be a function of the
wealth of the district in which the child resides.
Robinson v. Cahill—Case which decided that funding of
public schools that rely heavily on local property taxes
violated the state constitution as well as the equal
protection clause of the 14th Amendment.
Education Act of 1975—mission is to develop a thorough
and efficient system of free public schools for all children
irrespective of socioeconomic status or geographical
location.
San Antonio Independent School District v. Rodriguez
• Mexican American parents in Edgewood filed a class action
equity suit on behalf of minority children throughout the state
who were poor and resided in a school community that had a
low property tax base.
• The Supreme Court's decision held that a school-financing
system based on local property taxes was not an
unconstitutional violation of the 14th Amendment's equal
protection clause. The majority opinion stated that the
appellees did not sufficiently prove that education is a
fundamental right or that the financing system was subject to
strict scrutiny.
• According to the Rodriguez ruling, a funding system based on
local property tax that provides a minimum education to all
students is constitutional.
• Rodriguez case removed school finance litigation from the
federal courts to the state courts.
Post-Rodriguez Decisions
• Following the Rodriguez decision, courts have been more inclined
to focus their attention on educational quality as influenced by
teacher quality, appropriate instructional materials, student
achievement scores, and graduation rates as a means of
addressing equal opportunity provision for students.
• There is no uniformity among courts in their decisions regarding
adequacy of funding for public schools.
• State may collect tax funds from wealthy school districts and
redistribute them to poorer districts to achieve a measure of
equity.
Post-Rodriguez Cases
• Williams v. California- A landmark civil rights case which challenged the
state to ensure quality learning conditions for millions of low-income
students of color. The Williams settlement creates new standards for
measuring whether schools have the basic conditions students need to
learn such as textbooks, well-trained teachers and clean and safe school
facilities. It also provides opportunities for communities to become involved
and holds school officials accountable for showing how well schools are
meeting these standards.
• CFE v. State of New York—The court held that NYC children were not
receiving the constitutionally mandated opportunity for a sound basic
education and ruled that the governor and legislature had to ensure that
every school in New York City has the resources necessary to provide the
opportunity for a sound basic education.
• Montoy v. State of Kansas—A state district court held that the state’s school
finance plan violates the state constitution. The court found that the state
failed to distribute resources equitably among children who are equally
entitled to a suitable education.
• Lewis E. v. Spagnolo— A class of schoolchildren residing in East St. Louis
School District 189 challenges the adequacy of the education being
provided to them in District 189 schools. The courts ruled that that
questions relating to the quality of a public school education are for the
legislature, not the courts, to decide.
PROJECT
Student discipline act
DATE
23 JULY 2009
CLIENT
GROUP 2
Purpose of Act
To assure the
protection of all
students the
constitutional right to
due process and
fundamental fairness
Summary of Act
The school may
authorize an
emergency exclusion,
suspension,
expulsion or
mandatory
reassignment of any
pupil for conduct
prohibited by the
school’s policies.
Important Rules:
School board must establish rules and
standards regarding student conduct .
Schools must attempt to carry out said rules.
Rules must be distributed to each student and
his/her parent or guardian at the beginning of
the school year.
Procedures to be followed are
outlined in detail for:
Emergency Exclusion
Short-term Suspension
Long-term Suspension
Expulsion
Mandatory Reassignment
Duty to Report Criminal Violations
School authorities MUST notify law
enforcement when they know or suspect
that an act is a violation of the Nebraska
Criminal Code (is illegal).
School authorities will not be held liable as
a result of any report unless:
report was false and they knew it was false
when reporting it
the minor was in custody and the location
where they were being held was dangerous
and/or medical treatment was withheld
Nebraska
Student
Discipline Act
• An outline of the Act
may be downloaded
by clicking on the
image to the right or
at:
• www.nde.state.ne.us/federalpr
ograms/.../Student_Discipline_
Act.pdf
Important Case Briefs
EDAD859
Group 2
Veronica Dorsey, Jessica Fry, Gary Graham, David Graves, Angelique Gunderson
Tinker v Des Moines
Topic
• Students’ First Amendment rights
Supreme Court Decision
• In a 7 to 2 decision, the U.S. Supreme
Court determined the students wearing of
the armbands as a silent expression was
protected by the First Amendment. The
school failed to demonstrate that the
actions of the students would interfere
with appropriate school discipline.
Educational Significance
• • Students rights are protected under the
First Amendment in as much as they do
not disrupt the learning environment.
• • School administrators have the burden
of proving that a particular demonstration
of expression will be significantly
disruptive.
• • Merely a desire to avoid the discomfort
and unpleasantness of an unpopular view
is not enough to justify the prohibition
of the expression.
• • When making determinations on
disciplinary policy that may bring into
question a students First Amendment
rights, other cases should be noted as
examples (i.e. Bethel School District v.
Fraser, Morse v. Frederick, and
Hazelwood v. Kuhlmeier)
Bethel School Dist v Fraser
Topic
• The issue involved is whether or not
students can say whatever they please
with regard to the First Amendment
during a public school forum.
Ruling
• On additional appeal, the U.S. Supreme
Court found that while public students
have the right to advocate unpopular and
controversial issues in school, that right
must be balanced against the schools'
interest in teaching socially appropriate
behavior.
• A public school may legitimately establish
standards of civil and mature conduct. The
Court observed that such standards would
be difficult to convey in a school that
tolerated lewd, indecent and offensive
speech and conduct that the student in
this case exhibited. In conclusion, the
school district's decision was upheld.
Educational Significance
•
School officials may restrict freedom of
expression where there is evidence of
material and substantial disruption,
indecent or offensive speech, violation of
school rules, destruction of school
property, or disregard for authority. In
each case, students must be provided
minimal due process before any punitive
action is taken.
•
Buttons, pamphlets, and other insignia
may be banned if the message
communicated is vulgar or obscene or
mock others based on race, origin, color,
sex, or religion.
New Jersey v TLO
Topic
•
Unwarranted searches ad seizure of
property
Ruling
• The supreme court of New Jersey
reversed the appellate division’s ruling
and ordered the evidence found in T.L.O’s
purse suppressed.
• The court proceeded to hold that
whenever an “official search violates
constitutional rights the evidence may not
be used in a criminal case; they deemed
the Choplick’s search was not reasonable.
The mere possession of the cigarettes was
not a violation of school rules; therefore a
desire for evidence of smoking did not
justify the search.
Educational Significance
•
Be extremely cautious when accusing or
searching students
•
Be aware of all rules and the fine print.
•
Document all actions when dealing with
behavior incidents
•
Make sure there is reasonable suspicion to
do the search and seizure initially
Hazelwood v Kuhlmeier
Topic
• The high school principal prevented the
school publication of Spectrum that
profiled three pregnant students and
quoted other students on reasons for
their parents’ divorce. The principal was
afraid that the identity of the three
students would be revealed, sexual
activity content was too graphic for
younger students, and parents of students
were not able to respond to comments
made by students.
Ruling
• Supreme Court reversed the ruling that
the principal did not violate students free
speech rights by ordering certain material
removed from an issue of the student
newspaper. Students’ First Amendment
rights are not the same as those of adults
due to the special characteristics of the
school environment.
Educational Significance
•
The Hazelwood ruling has important
implications for student newspapers that
are part of the school’s curriculum in that
restrictions may be placed on them based
on reasonable grounds. Administrators
may exercise greater authority in
monitoring student press but care should
be taken not to violate the student rights
in the process. This may exercise contentbased control over student expression and
use of restricting student speech. Some
states have passed laws guaranteeing that
non-forum newspapers, such as the
Hazelwood East High School newspaper,
are guaranteed the rights that the First
Amendment describes.
Goss v Lopez
Topic
• Due process; Hearing or notice;
Procedure when suspending a
student for up to ten days.
Ruling
• The state law was found
unconstitutional both by the
federal district court and again by
the Supreme Court. The case
determined that students facing
suspensions of up to ten days or
less were entitled to:
• 1. oral or written notice of
charges
• 2. an explanation of evidence to be
used against them, and
• 3. an opportunity to present their
side of the issue
Educational Significance
• Due process is a right of everyone
according to the U.S. Constitution
• Every student must be given notice
(oral or written) of the misconduct,
an
explanation of
the evidence, and an opportunity
for a hearing.
• Ensure every situation is handled
carefully and the due process is
adhered to.
• Ensure school policies align with
state and federal law.
• Note that suspensions of more than
10 days require more formal
procedures.
Lee v Wiseman
Topic
•
Inclusion of clergy to offer prayer as part of public school
ceremonies
Ruling
•
The U.S. Supreme Court held that "Including clergy who
offer prayers as part of an official public school
graduation ceremony is forbidden by the Establishment
Clause.
•
Prayer exercises in elementary and secondary schools
carry a particular risk of indirect coercion. The school
district's supervision and control of a high school
graduation ceremony places subtle and indirect public
and peer pressure on attending students to stand as a
group or maintain respectful silence during the
invocation and benediction...
•
The petitioners' argument that the option of not
attending the ceremony excuses any inducement or
coercion in the ceremony itself is rejected. In this
society, high school graduation is one of life's most
significant occasions, and a student is not free to absent
herself from the exercise in any real sense of the term
'voluntary'..."
•
The United States Supreme Court affirmed the United
States Court of Appeals for the First Circuit judgment.
Educational Significance
This case clarifies that clergy may not lead
the student body in prayer at a schoolsponsored event. If administrators are
approached about having clergy members
offer a prayer at a school-sponsored
event, suggest that they meet before the
event to allow interested members to
participate so that no one is excluded in
their right to convene, and in protecting
those that might be opposed, such
allowance would protect them in their
right to be free from what may be
interpreted as coercion by this group.
Wisconsin v Yoder
Topic
• Compulsory Attendance
Laws
Ruling
• The U.S. Supreme Court
affirmed the decision in
holding that the First
Amendment prohibits state
action that interferes with a
parent’s right to control the
religious upbring of their
child.
Educational Significance
• There are certain
exceptions to the
compulsory attendance
requirements.
Stevens v Chesteen
Topic
• Does a brief absence from class
constitute breach of duty of
reasonable supervision.
Ruling
• The court ruled in favor of
Chesteen noting that his absence in
this situation does not breach his
duty of reasonable supervision.
Teenagers like Stevens often
participate in “pick-up” football
games that are completely
unsupervised. This case involved a
“touch” football game, and not a
tackle game, thus making violent
collisions involving bystanders
unlikely.
Education significance
• It is important for all teachers to
properly supervise student to the
best of their ability. If a child is
restricted from participating in
physical education class that
student must be well away from
any activity that could cause injury
to them. Necessary precautions for
this situation should be in writing
and included in the class syllabus to
avoid any legal troubles. One
possible solution is moving injured
student to the library to finish a
written assignment about nutrition
or exercise as a possible alternative
while their injury heals.
Cox v. York County School Dist. No. 083.
Topic
• Termination of probationary teachers
Ruling
• The school board ruled against Cox. The
district court favored Cox because the
school district failed to provide Cox due
process as required by law in deciding not
to renew her contract. The district court
ordered the school district to reinstate
her. The school district appealed this
decision. The Nebraska Supreme Court
upheld this decision. They found that the
Board did not meet the statutory
requirement that Cox be evaluated at
least once per semester based on actual
classroom observations for an entire
instructional period.
Educational Significance
• Legal Significance for the
Administrator:
• Follow state statutes
regarding evaluation
procedures
• Make sure to document all
observations both formal
and informal as well as
comments.
• Follow district policy
C. Patricia Skinner v. Ogallala Public
School
Topic
• School Liability
/Worker’s
Compensation
Ruling
•
The Nebraska Supreme Court
concluded that Skinner’s injuries did
not arise in the course of her
employment by the District and the
Nebraska Worker’s Compensation Act
did not bar her from bringing this tort
action against the District. The court
supported the trial court decision
that found Skinner to be an invitee.
Educational Significance:
• School districts will be held liable
if the grounds and schools are not
safe places even in “off” school
hours. School districts should
post warning signs and fix any
areas that would pose a threat to
someone’s safety immediately if
they are to not be held at least
partially liable if an injury occurs
on school property.
Mitchell Crider v. Bayard City Schools.
Topic
• Physical Therapy / Special Education
• Ruling
•
The trial court dismissed the action. On review,
the court reversed the judgment of the trial
court. With regard to the physical therapy
provider, the court held that the parents had, in
fact, stated a cause of action. The court
explained that once it undertook the contract to
provide the child with services, the physical
therapy provider had an obligation to provide
those services with reasonable care. As to the
school district, however, the court agreed with
the trial court's conclusion that the school
district's failure to monitor the physical therapy
provider was not actionable.
Education Significance:
• A free appropriate public education
requires that each handicapped child
be provided with personalized
instruction with support services to
permit the child to benefit
educationally from that instruction,
which instruction and services must
be provided at public expense, must
meet the state's educational
standards, must approximate the
grade levels used in the state's
regular education, and must comply
with the child's individualized
educational program.
Norman v. Ogallala Public School.
Topic
• Proper Instruction and
Safety Issues
Ruling
•
Damages
The trial courts award of $342,290.80 in
damages. School District Appealed: The
school claims the damages are excessive
because Christopher has completely
recovered from his injuries, has no
limitations on his range of motion or his
activities, and it is unlikely that he will
incur future medical expenses.
However, the record contains
extensive evidence, including both
testimony and photographs,
demonstrating the pain that
Christopher endured and the
permanent scarring resulting from
the burns. In addition to the pain
Christopher endured, Christopher’s
parents incurred medical bills in the
amount of $44,614.54 as a direct
result of Christopher’s injuries. The
award of damages was not so
excessive as to be the result of
passion, prejudice, mistake, or some
other means not apparent in the
record.
Norman v. Ogallala Public School. Cont’d
Ruling
• Appeal from the District
Court for Keith County:
John P. Murphy, Judge.
Affirmed
Educational Significance
• Proper instruction and Safety
must take precedence over
everything. The district must
insure that the students and
staff are properly educated
to any dangers of and
activity. All safety
precautions must be taken or
the activity should not take
place.