Chapter 1. The Legal System
Sources of Law
1. Constitutions-a framework of law within which orderly governmental process can operate
2. Statutes-law enacted by the legislative power of a country or state
3. Court Law-“judge-made” laws
4. Common Law-legal principles derived from usage and custom, or from court decisions affirming such
usage and custom
5. Powers and Functions of the Courts
1. Applying principles-consider precedents
2. Interpreting statutes- (most common function) provide meaning to legislation
3. Determining Constitutionality-presume constitutionality. Marbury v. Madison, identified the
power of the Supreme Court to rule on constitutionality of legislation
4. State Decisis “doctrine of precedent” Lower courts normally follow precedents of higher
courts.
5. American Court System (Figure 1:1 p. 12)
1. State Courts-State courts may be called upon to rule on the constitutionality of either state or federal
laws, and their rulings are final unless there is a conflict with federal judicial precedents. Iowa is in the
8th circuit of courts. Four categories of state courts (Figure 1:2 p. 13):
i. Courts of last resort
ii. Intermediate appellate courts
iii. Courts of general jurisdiction
iv. Courts of limited jurisdiction
2. Federal Courts-established by Congress. At least one federal court in every state. Federal Courts include
district
courts, circuit courts of appeals, special federal courts, and the Supreme Court. Two types of courts:
i. Cases between citizens of different states
ii. Cases involving litigation of federal statute of federal constitutions
Process of Going to Court
Appellant-party that appeals a court decision
Appellee-respondent in the appeal
Example: Jones v. School District (Jones the appellant)
Civil action-injured party seeks to be compensated for damages; party seeks an injunction (To prevent an
action), or mandamus (to require an action). “Preponderance of the evidence” must be met.
Criminal action-violation of a criminal statute. “Beyond a reasonable doubt” must be met. Usually criminal
action occurs in education cases related to a teacher charged with assault, public funds missing, or sexual
misconduct.
Chapter 2. Historical Perspective of Public Schools
1. A System of Education
1. Horace Mann (17th Century)-Massachusetts Bay Colony said, “The people of a State
should be educated by the State.” He preached-free secular public schools supported by
both local and state general taxation
2. George Washington (1796) promoted public education in farewell speech.
3. The federal government’s authority to influence educational policy emanates from two
primary sources: 1) structural provisions, and 2) rights provisions.
4. Education as a Fundamental Right under State Constitutions
1. The powers of the federal government are circumscribed by delegation within
the frame of the Constitution and are specifically limited by the Tenth
Amendment, which provides “the powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the States
respectively or to the people.” Education is not mentioned in the Constitution
and there fore is reserved to the states or to the people.
2.
Judicial Approval of Common Schools
1. The first American high school was in Boston in 1821. American high
schools had no forerunners and were distinguished from previous
European models by its close relationship to the common schools.
2. 40 states have provisions to permit charter schools. The first charter
school was in St. Paul, MN in 1992.
3. 2700 + charter schools now. Most in CA, TX, and MI
4. Charter schools protected under Due Process Clause of the 14th
Amendment (Pierce v. Society f Sisters, 1925)
5. Tuition and Fees
1. Define FAPE (Free and Appropriate Education)
2. Reference Allowable Fees Guidance from the DE
Chapter 3. Role of the Federal Government
1. Indirect Federal Role
1. Federal land grants
i. Purpose of creating and aiding public schools
ii. Exercised no control over education as a condition for receiving the grants
1. Structural Provisions in the Constitution
1. The powers of the federal government are circumscribed by delegation within the frame
of the Constitution and are specifically limed by the Tenth Amendment.
2. Congress is free to define education as general welfare and to tax and appropriate funds
for educational purposes (Helvering v. Davis).
3. Rights Provisions in the Constitution
1. Attendance-first compulsory attendance law in Massachusetts (1852)
2. Education is a fundamental right. If education is a fundamental right, then
everyone is entitled to obtain it by virtue of being human.
3. Supremacy Clause
1. All inconsistencies between federal and state law are to b resolved in
favor of the federal law.
Chapter 4. Governance of Public Schools
1.Education as a State Function – The state legislature has the power and the responsibility to enact laws
that govern education.
a.Plenary Power – This is the ability of the state legislature to pass any act that is not expressly or impliedly
forbidden by the constitution of the state.
2.Limits of State Control
a.State ex re. Clark v. Haworth – The state is a unit and the legislation is the source of power. The authority
over schools is not distributed, but a central power held by the legislature. The state has the power to
regulate and control the schools it owns.
3.State and Local Education Agencies – The State Board of Education and local school boards are
created as state bodies to handle the administrative functions necessary to implement legislation properly.
4.Functions of Education Agencies – legislative, executive, or quasi-judicial a.Delegation of Legislative
Powers – putting the regulations of statutes into
action i.The standard must not be so broad that the officer or board will
have unascertainable limits within which to act. b.Executive Functions – declaring and enforcing policy, as
well as advising
and supervising policy implementation i.Ministerial functions – These are duties performed where no
judgment is permitted. These can be delegated. ii.Discretionary functions – These functions require
judgment and
substantial administrative prerogative. These cannot be delegated. c.Quasi-judicial Functions – The
authority to render decisions in disputes
given to the board of education, state superintendent, or other agency. The question of bias in these cases is
becoming more challenged.
i.Horton Joint School District No. 1 v. Hortonville Education Association – A school board is assumed to
be impartial unless bias is shown.
5.Judicial Review of School Board Actions – Parties dissatisfied with the exercise of administrative
powers by an educational agency are required by court to exhaust their administrative remedies before they
are allowed to bring action to a court setting.
a.Court review cannot substitute judgment, but can only determine if findings are arbitrary, abuse
discretion, are without a foundation of evidence, or are clearly wrong.
Terry Hurlburti.Sioux City Community School District v. Iowa Department of Education – The SCCSD
decided not to provide busing to students who lived less than two miles from school. (Iowa Code provides
all elementary students living two miles or more from the school shall be entitled to transportation. It is
noted that the Board may have discretion to provide transportation to some or all who are not entitled.)
Parents appealed to the AEA, who deemed the rout unsafe and the decision was reversed. This was
affirmed by the Department of Education and district court. The SCCSD challenged the applicable standard
under which the Department had the authority to review its decision.
1.The decision to not provide transportation was a discretionary one subject only to review for abuse of
discretion.
2.The district had conducted a thorough investigation on the walking route before making a
recommendation or acting.
3.It was determined that reasonable minds could differ on this decision, which was evidence that it was
within the discretion of the district to act.
4.The school district did not abuse its discretion when it decided not to provide bussing for these students.
5.The AEA and Department exceeded their authority by inserting their judgment over that of the district.
6.Authority of Interscholastic Organizations – Courts typically uphold reasonable rules giving authority
to interscholastic athletic associations unless they violate good educational policy, are arbitrary, or
irrational. However, functions involving judgment and discretion are functions of the school board and may
not be delegated.
7.School Officers – A person chosen to represent the sovereign power of the state. Public officers may not
hold conflicting positions or interests.
a.Smith v. Dorsey (Mississippi) – Several spouses of school board members were issued teacher contracts.
At least one of these teachers was employed long before their spouse was elected to the board. This was
challenged on the basis of conflicting interests as the school board hires, fires, administers raises, etc.
i.The board was held in violation of Sec. 209 and the contracts were made null and void. Restitution was
not granted as services were rendered.
8.School Elections – Political equality is required, one person-one vote. 9.School Board Meetings –
Meetings must be held within the geographic
boundaries of the district and the board itself establishes the rules of procedure,
unless prescribed by state statute. 10. Open Meeting and Public Records Laws – Most sunshine laws
require
deliberations and actions to be taken in the public, the exception being sensitive matters that would be
detrimental to a party or to public interest if aired. Yet, official actions of boards taken by vote must be in
public.
a.There are several factors that can determine if a meeting is being held. Those factors may include the
number of officials present, the content discussed, intentions, the degree of planning, the duration, and the
opportunity for privacy.
b.The nature of the records and the extent of public interest guide the determination of public records.
i.Hovet v. Hebron Public School District (North Dakota) – It was found that the personal record of a
government employee is not protected by a right of privacy. There is no explicit right to privacy under the
constitution.
Chapter 5: Church and State
Lemon v Kurtzman
Two appeals raise questions s to Pennsylvania and Rhode Isalnd statues providing sate aid to church –
related schools
 Pennsylvania adopted a statutory program that provides financial support to non public elementary
and secondary schools by way of reimbursement for the cost of teachers’ salary
 Rhode Island Salary Supplement Act
Rests on the legislative finding that the quality of education available in nonpublic
elementary schools has been jeopardized by the rapidly rising salaries needed to attract
competent and dedicated teachers
 Eligibility: 1. Recipient must teach in a nonpublic school at which the average
per pupil expenditure on secular education is less than the average in the state’s
public schools during a specified period
2. Teachers eligible for salary supplements must teach only those subjects that re offered in the state’s
public school.
W/Rhode Island the appellees are citizens and taxpayers of Rhode Island Appellants are state officials
chard with administration of the Act, teachers eligible for salary supplements under the act, and parents of
children in church related elementary schools.
Three judge federal court
Evidence introduced the nature of the secular instruction offered in the Catholic schools whose teachers
were eligible for assistance
Found 1. Religious values doe not necessary affect eh content of secular subjects
2. Parochial school system was in “integral part of the religious mission of the Church”
o
First Amendment: Authors did not simply prohibit the establishment of a state church or a state religion –
they commanded that there should be “no law respecting an establishment of religion”
The issue at hand in driving the judgment is that the law may not be “Establishing” a state religion but
rather be “Respecting” a religion.
Defining line based on three main evils:
1. Sponsorship
2. Financial Support
3. Active Involvement
Location of church schools
Atmosphere of the religious schools – although 30 min devoted to religious instruction were other objects
and symbols that reflected religion throughout the day – pictures, crosses, nuns and their dress
In summary:
Characteristics of Catholic Church is powerful vehicle for transmitting the Catholic faith to the next
generation
Another issue that came to light was the act of Tax exemption
In Walz v Tax Commission case
Argument: prove to be the first step in an inevitable progression leading to the establishment of stat
churches and state religion. The argument didn’t stand against 200 years of virtually universal practice
embedded in our colonial experience.
The issue of aid to nonpublic schools in the form of tax credits or tax deductions is not a new idea.
Chapter 8
Student Speech and Expression
Definitely the most famous case in Iowa and the most influential case for freedom of student speech and
expression, the Tinker v Des Moines school board case is mentioned in every case dealing with this topic.
1.
2.
1. Although the First Amendment does not actually use the word expression, the Supreme Court
has used it interchangeably with the word speech.
2. Chemerinsky came up with the four theories for free speech.
1. A. Self-Governance
2. B. Discovering Truth
3. C. Advancing Autonomy
4. D. Promoting Tolerance
3.Unprotected Speech – The non-absolute nature of free speech and expression can be paired down for
society in general as follows. Incitement of disruption and breach of peace, defamation, true threats of
violence and fighting words, and obscenity.
4. “Clear and Present danger” was the first test used by the courts- a device for balancing freedom of
speech against necessary governmental interests. This did not work in a school setting so the courts
established the “material and substantial disruption” test. This was established in the Tinker case.
5. Tinker v Des Moines independent school district – This case revolved around the peaceful demonstration
of wearing black arm bands to demonstrate the protest of the Vietnam War. The court came back with the
famous saying “it can hardly be argued that either students or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate. The ruling was based on the fact that: The schools
fear of a disturbance from wearing of the arm bands, was not an undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of expression. The school had to show its action
was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always
accompanies an unpopular viewpoint. The wearing of the armbands would have to substantially interfere
with the work of the school or impinge upon the rights of other students. The school did not purport the
wearing of all symbols of political or controversial significance.
6. Obscenity and uncivil discourse – Obscenity, outside the school, political and other kinds of public
speech are protected unless the speech is obscene. In public schools the speech standard is different and can
be controlled if it is uncivil, lewd, vulgar, or conveys sexual innuendo to school audiences. Bethel School
District v Fraser - Student Mathew Fraser was suspended from school for Speech he gave at school
assembly. Where he used lewd and sexual innuendo’s to describe his candidate for student council. The
Courts said “ A high school assembly or classroom is no place for a sexually explicate monologue directed
towards unsuspecting audience of teenage students.
7. Threats of Violence – True threats and fighting words are unprotected speech. School officials must be
able, if possible, to discern permissible constitutionally protected speech and expression from real and
imminent danger. Doe v Pulaski county special school district: A letter written by a male student describing
how he would rape and murder a classmate.
8. Forum analysis applied to schools – Public forum analysis by which the Supreme Court defines the
conditions under which government can restrain speech and expression.
Time Place and Manner – When an school is determined to be a limited forum the school still retains the
rights of regulating time place and manner.
Student Publications – Hazelwood school district v Kuhlmeier The court ruled that prior restraint was
permissible because the students newspaper was not a public forum. The student newspaper was school
sponsored. Categories of publications 1. School sponsored newspapers 2. Non-school sponsored
newspapers written and distributed by students 3. Materials distributed by students at school but written
and published by nonstudents; and 4. Internet.
Free Speech and the Internet – With regard to Tinker the court has no trouble in concluding that one student
filming another student behind a teacher making pelvic thrust in her direction constitutes a material and
substantial disruption. Requa v Kent school district.
Student personal Appearance – Grooming regulations over personal appearances are valid where
reasonable and where rationally related to or justified by a need to maintain school decorum or prevent
undue distractions which might interfere with the educational process. Canady v Bossier Parish School
Board case about requiring mandatory uniform does not violate students first amendment rights. Maintains
order and decorum, prevented disturbances and promoted safty.
Chapter 9. Search and Seizure
The 4th Amendment protects, “The right of people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but
upon probably cause….”
School Officials need to only have “reasonable suspicion” which is much less than the requirement of
“probable cause” which other government agencies need to conduct a legal search.
New Jersey v. T.L.O. (14 year old girl who was smoking in the restroom, she denied she was smoking,
Vice Principal searched her purse and found cigarettes & rolling papers, sm. amount of marijuana and a
pipe) described what reasonableness is or should be. –Initially the court affirmed that there was no violation
of the 4th Amendment, but the New Jersey Supreme Court reversed and ordered the suppression of the
evidence found in respondent's purse, holding that the search of the purse was unreasonable.
As a result of this case, reasonableness is determined on two levels:
1) considers if the search was initially justified to begin with
2) whether the reasonableness of the search itself, or was it excessively intrusive and this can depend on the
age or sex of the student and the nature of the infraction.
The more excessive or intrusive the search, the more evidence is required to establish reasonable suspicion.
Special Needs & Suspicionless Searches
Vernonia School District 47Jv. Acton (1995) Found that it is reasonable to require student athletes to
submit to random drug testing before being allowed to participate in sports. Another court case that said
basically the same thing, was Board of Education of Independent School District No.92 of
Pottawatomie County v. Earls (2002) This court case said it was reasonable to drug test any student in
extra curricular activities.
These courts found that students that participate in sports programs or any other extra curricular activity
assumes a lower expectation of privacy than students who don’t volunteer for these programs. This is when
suspicionless drug testing has been upheld by the courts.
State of Iowa v. Jones (2003) According to Iowa Code, “The furnishing of a school locker, desk, or other
facility or space owned by the school and provided as a courtesy to a student shall not create a protected
student area, and shall not give rise to an expectation of privacy on a student's part with respect to that
locker, desk, facility, or space.”
Strip Searches usually considered excessively intrusive Safford Unified School District v. Redding
(2009) outer clothing may be all right with reasonable suspicion.
Canine Searches
1. Legal when the dogs sniff “things” (lockers and vehicles)
2. Not legal when the dogs sniff people. (intrusive)
Metal Detector Searches
1. These are considered legal
2. Considered legal based on the reasonable rationale that they are necessary for a safe school
environment
Liability for Illegal Searches
1. a student can seek damages if school officials maliciously deny the
constitutional rights
1. school officials can also be liable if their actions are considered excessively intrusive of student’s
privacy
Chapter 10-Special Education
In 1975 legislation entitled Education for All Handicapped Children Act (EAHCA) by President Gerald
Ford. It was amended in 1978, 1983, 1990, 1997, and 2004. The law has an appellation of Individuals with
Disabilities Education Act (IDEA,or IDEIA) with the additional “I” standing for Improvement which was
added in 2004.
The origins of special education can be linked to schools for the deaf and hard of hearing on the East Coast
in the early 1800’s. Many laws in states across the country prohibited students with sever to profound
disabilities from attending school. In Wisconsin a court had ruled that students with disabilities although
academically capable could be excluded from regular public school because his disability was a
“depressing and nauseating effect on teachers and school children.” Most families of students with
significant disabilities had to forgo any form of formal education for their children.
Some of the social turning points for rights for disabilities came from disabled veterans returning home
from World War I and World War II as well as Brown vs the Board of Education which set a precedent for
the extension of educational access to all children, including those with disabilities.
In 1971 a Pennsylvania court case ruled that retarded children in Pennsylvania are entitled to free public
education. We now know this as a Free Appropriate Public Education (FAPE). It also required procedural
due process and periodic reevaluation of services which are still in place in Iowa today. This case was
expanded by the Mills Case in 1972 which added provisions for FAPE, and Individualized Education
Program (IEP). In 1975 a Congressional statue required FAPE for all children with disabilities.
PARC & Mills – sparks Congress to seek elimination of discrimination against individuals with disabilities
in both the world of work and in public education system.
Results – the Rehabilitation Act of 1973, Section 504 and the Education for all Handicapped Children Act
in 1975 also known as Public Law 94-142
PL 94-142 – incorporated certain tenets into law; each time Congress has amended it has reaffirmed the
original intent (Renamed Individuals with Disabilities Act (IDEA ) in 1990
1. Free Appropriate Public Education (FAPE)
2. Invidualized Education Program (IEP )
3. Special education services (the “F” page of the IEP)
4. Related services (the “F” page of an IEP )
5. Due process procedures (parental rights and safeguards offered at every IEP meeting)
6. The least-restrictive environment (LRE) in which to learn (the “G” page of the IEP)
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By 9/1/1978 educational services to children with disabilities between the ages of 3 to 18
By 9/1/1980 educational services to children with disabilities between the ages of 3 to 21 inclusive
to age 22 by IDEA 1997 revision
1986 extended age groups covered, mandating that all preschool children with disabilities aged
three to five years be entitled to public education and established services for birth to age two.
Individuals with Disabilities Act (PL 94-142 revised)
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1.
2.
3.
4.
5.
6.
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IDEA 1990 revision– required transition services for all students age 16 or older
IDEA 1997 revision- provided that “nothing in this ACT requires that children be classified by
their disability” it was the decategorization that only required that the child meets the definition of
a child with a disability
IDEA 1997 revision– If a student has been identified as having a disability or had been identified
or had been provided an IEP in his/her last educational placement, then the student is still entitled
to IDEA benefits even if he/she had dropped out of school.
Discipline guidance in IDEA 1997
A school district may order a change in placement of a child with a disability to an appropriate
alternative setting or may suspend a child for not more than 10 days, applying suspension to the
same extent as a children without disabilities
A school district can discipline a child for possession of a weapon or for possession, sale,
solicitation, or use of illegal drugs in school by placing in an interim alternative educational
setting for the same period as a typically developing child – up to 45 days.
(added in 2004) – A student can be removed to wit: “if the student inflicts serious bodily injury on
another person while at school.
A school district must convene a hearing to consider the child’s behavior problem not more than
10 days after taking disciplinary action (Manifestation Determination Hearing)
A hearing officer is to determine if the current placement of the child with a disability is likely to
result in harm to the child or others. If so, the hearing officer may order an interim alternative
educational setting for not more than 45 days.
The interim placement setting must be (a) designed to enable the child to continue to participate in
the general curriculum, (b) allow the child to continue to receive services and modifications that
enable the child to meet the goals in the IEP, (c) include services that will help address the child’s
behavioral problem,
IDEA 2004 revision - In 2004 there was an emphasis added to increase measurement of outcomes
for preparing children with disabilities for employment and independent living skills. Students
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turning age 14 in Iowa are required to have a transition plan. This is also known as Indicator B13.
(Transition goals and transition assessment requirements in the IEP)
IDEA 2004 revision – added the word “Improvement) – IDEAI
IDEA 2004 revision –attempted to coordination legislation with NCLB to include highly qualified
teachers for special education and accountability and assessment measures that included subgroup
scoring for Adequate Yearly Progress (AYP)
IDEA 2004 revision – 15% of special education funds can be used to support children who are in
jeopardy of falling further behind, requiring 85% of federal funds remain in special education
programming
IDEA 2004 revisions – The public school must institute Child Find procedures in consultation
with private schools to determine the number of children with disabilities who are currently
attending private schools. The public school must provide services for those children and allocated
pro-rata share of federal money for such services. The services may take place in the public
school.
IDEA 2004 revision – abandonment of IQ testing for discrepancy comparison of achievement for
placement. Schools are required to use a process that determines if the child responds to scientific,
research-based intervention as part of the education evaluation. (Iowa implemented IDM which
was somewhat unsuccessful)
Special Education Key Terms and Case Law
Due Process – Mills Case
Manifestation Determination Hearing - IDEA 1997- review of a behavior problem that constituted a change
in placement. It is designed to determine if the behavior in question is a manifestation of the child’s
disability. If the behavior is not, then relevant and appropriate discipline may be applied to the child with
a disability as it would a child without a disability. During the time the discipline is being carried out the
child must have access to FAPE.
If the behavior IS a manifestation of the disability the child cannot be disciplined by a change in placement
without reinstituting all the IDEA procedural requirements.
If parents do not agree with the conclusion that the behavior was not a manifestation of the child’s
disability may request a hearing before the local or state education agency.
The manifestation team must be made up of representation form the school district, the patent, relevant
members of the IEP team, and they must. The team must determine (a) if the conduct in question was
caused by, and or had a direct and sustainable relationship to the child’s disability; or (b) if the conduct in
question was the direct result of the LEA’s failure to implement the IEP. In cases where the misconduct of
the child must be found by the team to be a manifestation of the disability (added in 2004 revision of
IDEA)
Highly Qualified Teacher – IDEA/NCLB 2004- requires highly qualified elementary and secondary school
special education teacher holds a full stat certification in special education and a bachelor’s degree and had
not had any licensure requirements waived.
Alternate Assessment -IDEA/NCLB 2004 – (page “G” of the IEP) – designed the address issues of
assessing students with the most severe cognitive disabilities. In Iowa schools may have no more than 1%
of the school population on alternate assessment.
Resolution Session -IDEA 2004 – an unmediated settlement conference conducted between the parent and
a person assigned to such matters and has the authority for the school district. It is designed to encourage
parents and school personnel to work together in a non-litigious setting to resolve differences. The school
district can only have an attorney present if the parents bring one to the session.
(Most common court cases are over the statutory provisions of the following):
Free Appropriate Public Education (FAPE) – Congress does not define that constitutes “appropriate”
opting for latitude for public schools. IDEA as currently interpreted by the Supreme Court, requires no
substantive measures regarding the level of education; therefore, the stated does not have to maximize the
potential of the child, only provide a program that benefits the child. The First Circuit concluded that IDEA
did not require that a child prove that he or she could benefit from the educational services before
participation.
Extended School Year (ESY), “G” page IEP- Battle vs Pennsylvania – The case was brought by children
who were profoundly disabled, claiming that administrative policy denied them FAPE as required by
IDEA. The court found that children with disabilities regressed over the summer months and required
longer to recoup skills than did typically developing children. Crawford vs Pittman found that a similar
limited school year policy was in violation of IDEA. Following several case law decisions it was
determined that ESY is a part of FAPE. The question is what standards should be used to determine which
child receives FAPE. The criterion that has withstood is that a child would regress during the summer break
and concluded that if the learning regression is substantial enough to preclude rapid recoupment at the
beginning of the next year school year, then then an extended school program is required.
Regression-recoupment dilemma – Several court rulings upheld that regression-recoupment standard
should not be interpreted to require absolutely that a child demonstrate regression in order to prove the need
for summer program. The regressions-recoupment considerations is not “some educational benefit,” but
rather a “meaningful educational benefit.” Basically regression recoupment is an important consideration in
deciding if ESY services are needed, but should not be the only factor considered.
Procedural Safeguards – Procedures specify that parents must be given notice and an opportunity to
participate in the development of their child’s education program. There are assurances that hearings
regarding the child’s placement will be impartial and unbiased. Section 1415 of EAHCA emphasizes a
standard of fairness by giving the parent a right to have the hearing conducted by a person who is neither an
employee of either the school district nor the state department of education. The main purpose of the
procedural safeguards is to ensure to the parent and child that an appropriate IEP.
ADHD – a child with ADHD may be covered under the IDEA, Section 504 of the Rehabilitation Act of
1973, and the Americans with Disabilities Act (ADA) of 1990. An ADHD child may be eligible for IDEA
services under one of three categories; (1) other health impaired, (2) specific learning disability, and (3)
seriously emotionally disturbed.
Least Restrictive Environment (LRE) Pages “F & G” of the IEP- IDEA advances the general
philosophy that children with disabilities should be educational with typically developing children in the
normal educational setting whenever possible. This regulation requiresthat the broadest opportunity should
be afforded to the student on a “continuum of alternative placements” sometimes called a continuum of
services. At one end of the continuum is the regular classroom as the least restrictive environment and at
the other end is the hospital as the most restrictive environment. The puts the burden of the school district
to sow why the special-needs student should not participate in the regular classroom, not why he/she
should.
Placement in private schools - Federal statute refers to three categories of students with disabilities, two
of which relate to private schools. The three categories are (1) children with disabilities attending public
schools, (2) children with disabilities attending approved private schools in accordance with an IEP
developed by the public schools, and (3) children with disabilities attending private schools voluntarily.A
court has the power to order school authorities to reimburse parents for expenditures on private special
education if the court finds that the public school district’s IEP is inappropriate.
The Burlington test - Two part test where the lower federal court should apply to determine whether the
parents re entitled to reimbursement from the public school: (1) whether the school district’s placement
pursuant to it’s IEP is inappropriate and (2) where the private placement desired by the parents is
appropriate.
The Florida County Case - in 1997 amendments Congress clearly outlines what parents must do when they
place a child in a private setting. Failure of parents to adhere to the following may result in the
reimbursement being reduced or denied:
1. Parents did not inform the school district that they were rejecting the child’s IEP at the most recent
IEP meeting
2. Parents did not inform the school district they intended to place the child in a private setting at
public expense.
3. Parents did not give 10 days notice of removal
4. Parents refused to make the child available for a sought after evaluation by the school district
5. Court finds that the parents acted unreasonably
Related Services (PL 94-142) Page “F” of the IEP– services that must be made available without cost to
parents. The term “related services” means transportation, and such developmental, corrective, and other
supportive services (including speech pathology and audiology, psychological services, physical and
occupational therapy, recreation and medical and counseling services, except that such medical service
shall be for diagnostic and evaluative purposes only) as may be required to assist a handicapped child to
benefit from special education. Residential placement, is a related service in which special and emotional
issues are intertwined with educational problems.
Cedar Rapids Community School District v. Garret F. US Supreme Court 1999 – Garrett F is paralyzed
from the neck down from a motor cycle accident and can operate his wheel chair using a puff system. He
has normal intelligence. In his early years of education the parents provided physical care during the school
day due to funding won in a legal settlement. When the funding ran out the parents requested that the
school district pick up the costs of Garret’s medical needs during the school day as a related service. Most
of the requested services were already provided by the District to other students, and the in-school care
necessitated by Garret’s ventilator dependency does not demand the training, knowledge and judgment of a
licensed physician (not considered a related service in IDEA… goes beyond diagnostic purposes). The
district refused to provide continuous services due to Garret’s ventilator dependency. The district proposed
factors which included the cost of the services which was not supported by any legal authority and
eventually cost the district the court case.
This case is about whether meaningful access to public schools will be assued, not the level of education
that a school must finance once access is attained. It is undisputed that servies at issue must be provided if
Garret is to remain in school. Under the statue the precedent, and the purpose of IDEA, the district must
fund such “related services” in order to help guarantee that students like Garret are integrated into the
public schools.

Discipline and the “stay-put” provision – Two provisions must be considered when disciplinary
action is taken with a student with a disability: appropriate education and least-restrictive
environment. Least restrictive can range from the regular classroom to an institution depending on
the student’s ability to cope with environment.

The “stay-put” provision – EAHCA has a provision that prohibits school authorities from
unilaterally excluding a child with a disability from school during review proceedings to
determine the placement of a student. A child “stays-put” so to speak. A child can be suspended
for up to 10 days, to protect the safety of others and during this time an IEP meeting can be
initiated to review the child’s placement. Honing v. Doe. IDEA 1997 – added that removal was
warrant for certain factors (see Discipline guidance IDEA 997 above)
Compensatory education – entitlement to FAPE extends up through age 21 under IDEA.
Compensatory education is provided to compensate for lost education opportunity, it becomes
important to determine when and for how long a deficiency occurred. The Third Circuit has
determined that the right to compensatory education accrues “when the school knows or should
know that its IEP is not providing appropriate education.
Attorney’s and expert fees – Attorney’s fees may be awarded by the courts to parents who win
lawsuits against school district. Attorney’s fees were permitted by a 1986 amendment entitled the
Handicapped Children’s Protection Act). The amendment was initiated following a Supreme
Court decision in 1984 in Smith v Robinson in which the Court found that parents, in bringing
EAHCA actions, could not claim attorney’s fees under either Section 1983 of the Civil Rights Act
of 1871 or Section 504 of the Rehabilitation Act.


In a 1999 Iowa case, The US Court of Appeals Eighth Curicut , decided that a child with a disability was
not a “prevailing party” under IDEA provisions for attorney’s fees, even though he obtained the relief he
sought, because the federal district court had couched its decision in favor of the child based on Iowa law,
rather than IDEA. Iowa law, unlike federal IDEA law, does not provide for attorney’s fees for the
prevailing party.
Board of education Hendrick Hudson Central School District v. Rowley – augured FAPE and what is
meant by appropriate –it upheld that the child was receiving an adequate education, since the student
preforms better than the average child in her class and is advancing easily from grade to grade. “Free
appropriate public education” does not require states “to maximize the potential of each handicapped child”
Rehabilitation Act of 1973, Section 504 – Section 504 applies to all agencies receiving federal funds.
Although Section 504 is concerned with discrimination against individuals with disabilities in work
situations, it also address the problems encountered by children with disabilities seeking equal
education opportunity.
It requires the schools to reasonably accommodate the child but is far less prescriptive than the IDEA
Events of a case are prior to the next authorization of IDEA then taht opinion cites to the prior version of
the IDEA and its implementing regulations
Differences between Section 504 and IDEA
IDEA
Section 504
Established detailed rules for
Does not establish such comprehensive rules for schools providing
providing FAPE
FAPE
Only requires special education
Prohibits discrimination against all person with disabilities, including
services for children with
school-age children regardless of whether they require educational
disabilities of school age
services
The provision of FAPE meets the
Covers children and other who, for some reason, are not attending
IDEA requirements also satisfy
school, for example children who test positive for the HIV virus, but
Section 504
who do not require special education services
Applies to adults and children, example a school may be asked to
Is only for children ages birth
provide a sign language interpreter for school conferences with
through 21
parents relating to academics or behaviors
Other Health Impairments ( Alvin Independent School District v A.D.)– having limited strength, vitality,
or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with
respect to the educational environment, that (i) is due to chronic or acute health problems (ii) Adversely
affects a child’s educational performance. Students may be entitled to Special Education services and an
IEP under “other health impairments”
Chapter 12 Tort Liability
1.
Definitions of a tort
1. A civil wrong, independent of contract.
2. An act or omission which unlawfully violates a person’s right created by the law, and for
which the appropriate remedy is a common laws action for damage by the injured person.
3. An unreasonable interference with the interests of others that causes injury.
4. Four categories of torts
1. Intentional Interference (relatively few in school law)
i. Harm to the person (most likely in school law)
1. Assault-the apprehension of physical contact
2. Battery-physical contact
1. Cases involving assault and battery by teacher usually result from teacher’s attempt to
discipline a child.
2. Courts allow wide latitude. In loco parentis. Reasonableness.
3. infliction of emotional distress
Spears v. Jefferson Parish School Board: School district liable in damages for intentional
act of teacher resulting in emotional harm to child.
4. false imprisonment
1. Detention & restraint
2. Was it against his/her will?
3. Was it unlawful?
4. In loco parentis. Immunity if reasonable.
ii. Harm to dignity
iii. Harm to property
iv. Harm to economic interests
v. Not necessary for the wrongdoer to be hostile or desire to do harm.
1. Strict liability
i. A person may be liable even though he/she is not strictly at fault for the other party’s injury.
ii. Arises as a result of the abnormal danger of the activity itself and the risk that it creates to those in its
vicinity. (i.e. the keeping of dangerous animals in domestic situations)
1. Negligence
i. A reasonable person in the position of the actor cold have anticipated the harmful results.
ii. An accident that could not have been prevented by reasonable care does NOT constitute negligence.
iii. Standard of Conduct-A negligent act in one situation may not be negligent under a different set of
circumstances. For negligence to be present, someone must sustain an injury resulting from an
“unreasonable risk” taken by another person.
iv. The reasonable person is an ideal, a model of conduct, and a community standard.
v. Elements of negligence
1. A duty to protect others.
1. No duty exists when a defendant could not have reasonably foreseen the danger of risk
involved.
2. A teacher often has an increased level or obligation of duty to children.
3. A failure to exercise an appropriate standard of care.
1. Standard of care required not uniform among all persons.
2. For educators the generally accepted standard of care would be that of a
reasonably prudent teacher, not that of a reasonably prudent layperson.
3. The existence of a causal connection between the act and injury (proximate or
legal cause)
1. There must first be a duty or obligation on the part of the actor to
maintain a reasonable standard of conduct.
2. The cause must be substantial enough to lead reasonable people to
conclude it is indeed the cause of the injury.
4. An injury, damage, or loss resulting from the defendant’s act.
Medeiros v. Sitrin: Teacher did not breach his duty by not having unimpeded
view of students and failing to prevent altercation in which a student’s ankle
was fractured.
Jerkins v. Anderson: Educators have a duty to exercise reasonable care in
supervising students during dismissal time after school hours.
Brownell v. Los Angeles Unified School District: School district did not have
reason to foresee a gang-related shooting of a student.
2. Defamation-Covered in Chapter 13
3. The Tort of Bullying
1. Types:
i. Physical offenses-hitting, shoving, pushing, and destruction of property.
ii. Verbal offenses-gossiping, teasing, taunting.
iii. Nonverbal behaviors-notes, facial expressions, and/or pictures conveying threats.
iv. Cyberbullying-words and pictures conveyed by Internet, e-mail, and various electronic devices.
1. Bullying and harassing may be defined as the same offenses.
2. Some state legislatures (including Iowa) have enacted anti-bullying statutes.
3. Bully liability
4. Parental liability
5. School district liability-most litigation involves claims by the victim student that the school district
was negligent because it failed in its duty to properly supervise and protect the student from harm.
i. School districts have the deepest pockets so make the best target.
ii. School not liable unless the acts were foreseeable by the school personnel.
iii. Teachers and school administrators have qualified or conditional privilege against liability for their
discretionary acts.
Wallmuth v. Rapides Parish School Board: School board is nt liable for “bullying” injury to student in
locker room when teacher was not present.
1.
Defenses for Negligence
1. Contributory negligence-involves some fault or breach of duty on the part of the inured
person or a failure to exercise the required standard of care for his/her own safety.
2. Comparative negligence-Liability is shared proportionally between the plaintiff and the
defendant.
3. Assumption of risk-the plaintiff acts in a manner that effectively relieves the defendant of
his or her duty or obligation of conduct. The plaintiff has knowledge of and assumes the
risk.
4. Immunity. Generally conferred on
i. National and state governments unless abrogated by statute.
ii. Public officials performing quasi-judicial or discretionary functions.
iii. Charitable organizations, granted immunity in some states.
iv. Infants under certain conditions.
v. Insane persons in some cases.
Funston v. School Town of Munster: Spectator who fell from bleachers without back support was
contributorily negligent.
Hutchison v. Toews: Injured student with knowledge of ris involved is contributorily negligent.
Aaris v. Las Virgenes Unified School District: Doctrine of primary assumption of risk bars cheerleader’s
recovery for damages in negligence action.
Hammond v. Board of Education of Carroll County: Female student assumed the normal, obvious risks of
injury in choosing to play tackle football.
1. Exculpatory releases
i. Release letters, permission notes, waivers.
ii. Not always legally ineffectual. More weight given to them recently by the courts.
iii. If school districts require them may be invalid and against public policy.
Wagenblast v. Odessa School District: Releases that students or parents are required to sign as a condition
of engaging in school activities and that exculpate school districts from liability for negligence are invalid
as violative of public policy.
1.
Educational Malpractice
1. An attempt to apply tort law to educational outcomes in such a way as to redress a
student for knowledge deficiencies allegedly created by some substandard treatment of
the student during the educational process.
2. More common application of tort is found in negligence. Here it is maintained that
educators failed to act reasonably in meeting a student’s educational needs. (Actions have
resulted in little or no success.)
Chapter 12: Defamation and Student Records
Defamation-imputation of immorality, dishonesty, or dishonorable conduct to another by spoken or written
word.
"Qualified privilege"-protects the teacher or school offical when statements are made in good faith and
without malice.
"Absolute privilege"-no liability
Defamation per se-plaintiff not required to prove actual injury or out of pocket loss but prove personal
anguish, suffering, or humiliation.
Defamation per quod-requires plaintiff to prove actual damange
Teachers, guidance counselors, principals, and other school officials who have an obligation as a part of
their employment to obtain and dispense information on behalf of the school children are protected by a
conditional privilege meaning that an aggrieved plaintiff student would have to prove malice before
liability could be determined and damages obtained. Example: Alabama police chief files defamation suit
for paid advertisement in New York Times dealing with racial unrest. US Supreme Court held for citizens
because plaintiff could not prove actual malice toward public official.
malice-all acts that are one with evil disposition and unlawful motive with intent to injure or cause harm to
another. Two forms: malice in law/implied malice (no reason) & actual malice (motive).
truth-truth of a defamatory statement affords a complete defense to defamation regardless of whether ill
will or malice is present. Burden of proof on defendant to prove truth.
Case Law (Desselle v. Guillory, Louisiana, 1981)-Qualified privilege protects parents who convey
information about teachers. Mother trying to figure out if teacher innappropriately touched students.
Counter suit for defamation by teachers. Suit affirmed in part and reversed in part for both parties splitting
$3000 in attorney's fees.
Case Law (Phillips v. Lincoln County School District, Oregon, 1988)-teachers asking student to use formal
name rather than nickname, Boo, because of reference to marijuna. Summary judgement for defendants
because plaintiffs could not prove emotional distress.
Case Law (Milkovich v. Lorain Journal Co., Ohio, 1990)-Newspaper article accusing coach of being a liar
is not entitled to separate constitutional privilege for "opinion." Person wrote article that local wresting
coach lied under oath during judicial proceedings about one of his wrestlers. Coach sued author for libel.
First Amendment does not prohibit the applicant of Ohio's libel laws to the alleged defamations contained
in the article. Summary judgement for the plaintiff.
Case Law (Richmond Newspapers, Inc. v. Lipscomb, Virgina, 1987)-Teacher is not a public official and is
not required to prove actual malice to recover compensatory damages for libel. Front page article called out
Lipscomb by name saying negative things about her teaching and classroom management. Verdict for
plaintiff for $1,000,000 in compensatory damages.
Student Records-General rule is that information should not be conveyed to other teachers or administrators
unless the motive and purpose are to assist and enhance the educational opportunities of the pupil.
FERPA (1974)-Parents are give the right to inspect all records that schools maintain on their children and
are extended the opportunity to challenge the accuracy of the records. Schools (not individuals citing
Gonzaga case) risk losing federal funds if they do not comply with FERPA. Military recruiters must be
provided directory information regardless of district policies. Must publish district records policy annually.
See P. 622 for other "musts."
 Teachers can post grades if scores are scrambled and names are deleted.
 Teachers can have students grade peers work. Courts ruled that this practice does not violate
FERPA and that student graded work does not constitute and educational record.
 Chapter 14 Certification, Contracts, and Tenure;
- Teacher Certification
States may set criteria for eligibility, qualifications, and certifications of teachers.
More and more requirements being put on teachers.
 Example: Ambach v Norwick 1979
 2 ladies from New York denied certifications for not being US citizens
and not planning on gaining citizenship.
 Example: Wordwell vs Board of Education of Cincinatti 1976
 Teacher forced to live inside of Cincinatti city limits due to new board
policy.
 Example: Application of Bay 1963
 Teacher denied certification by Board due to moral character issues.
 Example: Erb vs Iowa State Board of Public Instruction 1974
 Teacher’s license revoked for having affair with another teacher.
- Teacher Contracts
o Teacher contracts must meet requirements of general contract law.
o 5 basic elements of contracts.
 Offer and Acceptance
 Competent Person
 Consideration
 Legal Subject Matter
 Proper Form
o Example Feldhusen vs Beach Public School District 3 1988
 Teacher did not acquire enough credits in 5 years to obtain license.
- Grounds for Termination of Teachers
o Most common grounds for termination are incompetency and insubordination. Also other
areas for termination are immorality, misconduct, neglect of duty, any other good or just
cause.
 Example: Scheer vs Independent School District I-26 of Ottawa County 1997
 Probationary Teacher’s licensed not renewed even though she felt she
was a tenured teacher.
 Example: Appeal of Santee 1959
 Teacher sued school after being reassigned.
o Incompetency
 Want of physical, intellectual, or moral ability; insufficiency; inadequacy;
specific want of legal qualifications or fitness.
 Evidence is generally through testimony.
 Quantity and quality of evidence is important.
 Responsibility of school board to prove incompetency.
 Courts will not interfere if School Boards are not arbitrary and capricious.
 Teachers cannot be dismissed for incompetency for nebulous and non-definitive
evaluations of competency.
 Example: Collins vs Faith School District 46-2 1998
 Teacher terminated for making inappropriate comments after
sex education video.
o
o
o
Insubordination
 Defiance of authority, disobedience of constituted authority, refusal to obey
some order that a superior officer is entitled to give and have obeyed.
 10 rules of charges of insubordination are not supportable. Pg 804
 Repetition and severity of disobedience is often looked at.
 Schools must follow evaluation procedures by state if ever looking to dismiss a
teacher.
 Example: Gaylord vs Board of Education of Unified District 218,
Morton County 1990
 Teacher terminated after asking for a personal day, it being
refused and then took a sick day to interview with another
school.

o
o
o
Example: Termination of James E. Johnson 1990
 Teacher terminated for inefficiency in teaching, conduct
unbecoming of a teacher, and insubordination.
Immoral Conducts
 Is that which is willful, flagrant, or shameless and shows moral indifference to
the opinions of the good and respectable members of the community.
 Example: Toney vs Fairbanks Northstar Borough school District 1994
 Teacher terminated after not revealing issues from prior
school district.
 Example: Board of Education of Hopkins County vs Ward 1986
 Brothers terminated after having a pot party with students in
summer.
 Example: Elvin vs City of Waterville 1990
 Teacher terminated after having sexual relations with 15 year
old student.
 Example: Gaylord vs. Tacoma School District 10 1977
 Teacher terminated after admitting to being a homosexual.
 Example: Board of Directors of Lawton Bronson vs. Davies 1992
 Teacher terminated after being caught shoplifting.
Reduction in Force:
 Policies for reduction should consider:
 Necessity for reduction of force
 Positions eliminated
 Bad faith actions of school boards
 Seniority
 Example: Zoll vs Eastern Allamakee CSD 1978
 Teacher reduced and excuse of school district was from policy
of point system, when actually they had ulterior motive.
Constitutional Protection of Contracts
 States not allowed to modify or abolish contracts.
 Example: State vs Project Principle 1987
 Texas required new state test for all teachers getting their
license including teachers who already have license.
Chapter 14 Certification, Contracts, and Tenure;
- Teacher Certification
 States may set criteria for eligibility, qualifications, and certifications of teachers.
 More and more requirements being put on teachers.
o Example: Ambach v Norwick 1979
 2 ladies from New York denied certifications for not being US citizens and not
planning on gaining citizenship.
o Example: Wordwell vs Board of Education of Cincinatti 1976
 Teacher forced to live inside of Cincinatti city limits due to new board policy.
o Example: Application of Bay 1963
 Teacher denied certification by Board due to moral character issues.
o Example: Erb vs Iowa State Board of Public Instruction 1974
 Teacher’s license revoked for having affair with another teacher.
- Teacher Contracts
 Teacher contracts must meet requirements of general contract law.
 5 basic elements of contracts.
o Offer and Acceptance
o Competent Person
o Consideration
o Legal Subject Matter
o Proper Form
 Example Feldhusen vs Beach Public School District 3 1988
o Teacher did not acquire enough credits in 5 years to obtain license.
- Grounds for Termination of Teachers
 Most common grounds for termination are incompetency and insubordination. Also other areas for
termination are immorality, misconduct, neglect of duty, any other good or just cause.
o Example: Scheer vs Independent School District I-26 of Ottawa County 1997
 Probationary Teacher’s licensed not renewed even though she felt she was a
tenured teacher.
o Example: Appeal of Santee 1959
 Teacher sued school after being reassigned.
 Incompetency
o Want of physical, intellectual, or moral ability; insufficiency; inadequacy; specific want
of legal qualifications or fitness.
o Evidence is generally through testimony.
o Quantity and quality of evidence is important.
o Responsibility of school board to prove incompetency.
o Courts will not interfere if School Boards are not arbitrary and capricious.
o Teachers cannot be dismissed for incompetency for nebulous and non-definitive
evaluations of competency.
 Example: Collins vs Faith School District 46-2 1998
 Teacher terminated for making inappropriate comments after sex
education video.



Insubordination
o Defiance of authority, disobedience of constituted authority, refusal to obey some order
that a superior officer is entitled to give and have obeyed.
o 10 rules of charges of insubordination are not supportable. Pg 804
o Repetition and severity of disobedience is often looked at.
o Schools must follow evaluation procedures by state if ever looking to dismiss a teacher.
 Example: Gaylord vs Board of Education of Unified District 218, Morton
County 1990
 Teacher terminated after asking for a personal day, it being refused and
then took a sick day to interview with another school.
 Example: Termination of James E. Johnson 1990
 Teacher terminated for inefficiency in teaching, conduct unbecoming of
a teacher, and insubordination.
Immoral Conducts
o Is that which is willful, flagrant, or shameless and shows moral indifference to the
opinions of the good and respectable members of the community.
 Example: Toney vs Fairbanks Northstar Borough school District 1994
 Teacher terminated after not revealing issues from prior school district.
 Example: Board of Education of Hopkins County vs Ward 1986
 Brothers terminated after having a pot party with students in summer.
 Example: Elvin vs City of Waterville 1990
 Teacher terminated after having sexual relations with 15 year old
student.
 Example: Gaylord vs. Tacoma School District 10 1977
 Teacher terminated after admitting to being a homosexual.
 Example: Board of Directors of Lawton Bronson vs. Davies 1992
 Teacher terminated after being caught shoplifting.
Reduction in Force:
o Policies for reduction should consider:
 Necessity for reduction of force
 Positions eliminated
 Bad faith actions of school boards
 Seniority
 Example: Zoll vs Eastern Allamakee CSD 1978


Teacher reduced and excuse of school district was from policy of point
system, when actually they had ulterior motive.
Constitutional Protection of Contracts
o States not allowed to modify or abolish contracts.
 Example: State vs Project Principle 1987
 Texas required new state test for all teachers getting their license
including teachers who already have license.
Chapter 17 Discrimination in Employment
1. Constitutional and Statutory Protections
1. Equal Protection Clause of the 14th Amendment
i. Broader and less specific protection
ii. Prohibits state governments that “draw lines” favoring or disfavoring a particular class of persons
based on impermissible criteria
iii. Evolved to include Federal Government
1. Civil Rights Acts(Federal Civil Rights Statutes)
i. Addresses specific types of discrimination
ii. Title VII of the Civil Rights Act of 1964
1. Eliminate discrimination in employment due to race, color, religion, sex, and national origin.
2. Prove disproportionate impact on minority group OR intent to discriminate
3. Often to challenge discrimination in teacher and administrator employment
4. Two Aspects:
1. Disparate treatment (Griggs v. Duke Power Co)
i. Plaintiff prove employer had intent or motive to discriminate
ii. Employer mistreats due to race, color, religion, sex or national origin
1. Disparate impact
i. Neutral hiring policy, such as requirement of a high school diploma or college diploma, has an
adverse effect on a minority group.
1. Example: Hazelwood School District v. United States
i. History of alleged disparities in hiring
ii. Statistical disparities in hiring
iii. Standard less and largely subjective hiring procedures
iv. Specific instances of alleged discrimination against 55 unsuccessful Negro applicants for teaching
jobs.
1. Example: United States v. South Carolina
i. Ruling in favor of defendant … Can distinguish pay between those who are qualified and those who
are not.
1. Pregnancy Discrimination Act (PDA) 1978 treat as any other disabling illness
1. Prohibits sex discrimination (pregnant, given birth, abortions)
iii. Age Discrimination in Employment of 1967
iv. Americans with Disabilities 1990
v. Others:
1. Equal Pay Act of 1963 (EPA)
2. Civil Rights Act of 1866
3. Title VI Civil Rights Act of 1964
1. Enforcement tool by which federal agencies can deny federal funding to those who
discriminate
2. Title IX of Educational Amendments of 1972
1. Program or Activity receiving federal assistance
2. Family and Medical Leave Act of 1993
3. Diversity and Affirmative Action
1.
Affirmative Action in employment is a voluntary plan adopted by a
school district in an effort to remediate past discrimination in the
system
2. Title VII attempts to make hiring neutral and does not require
affirmative actions
3. Plan will not be unlawful reverse discrimination if:
i. There exists a statistical disparity between races or sexes in a particular job category
ii. If the institution was guilty of discrimination in the past
iii. The plan does not unnecessarily trammel the rights of nonminority employees
iv. The plan is temporary in nature and scheduled to terminate upon the achievement of a racially or
sexually integrated workforce
1. Plaintiff must prove the employer utilized sex or race as a criterion making an employment
decision
2. Example: Wygant v. Jackson Board of Education, the school board, because of racial tension
in the community, negotiated with the union for a new provision in the collective bargaining
agreement. Allowed tenured nonminority teachers to be laid off before tenured nonminority
teachers. Supreme Court ruled the agreement violated equal protection because “board’s
layoff plan is not sufficiently narrowly tailored. Other less intrusive means of accomplishing
similar purposes are available.
3. School Districts that initiate an affirmative action plan must establish the use of race or sex as
a criterion for employment showing “governmental interest”.
i. Simply showing imbalance will not hold up in court
1. Education and experience can be modified in a way to achieve diversity
2. Extreme lack of diversity within a district will be insufficient to use race or sex as a hiring
criterion
3. Universities can use quotas, but cannot be the sole criterion… (Bakke)
i. Examples: Gratz v. Bollinger(Michigan 2003) and Grutter v. Bollinger
1. Taxman v. Board of Education of the Township of Piscataway
i. Taxman, white teacher, laid off due to elimination of a position. Laid off due to race over AA
teacher.
1. Sex Discrimination
1. North Haven Board of Education v. Bell
i. Title IX of the Education Amendments of 1972 provides that "no person," on the basis of sex, shall
"be excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance
ii. Female asked to not return after maternity leave… School Board tried to say title XI was for
students only. Female won
1. Clark County School District v. Breeden
i. Under Title VII of the Civil Rights Act of 1964, it is unlawful "for an employer to discriminate
against any of his employees...because [the employee] has opposed any practice made an unlawful
employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under
ii. Breeden alleged during a review a male co-workers reaction to a physiological file… She shared it
and expressed adverse employment actions for complaining about the comment.
1. Masson v. School Board of Dade County
i. Female culinary arts teacher hired and complained of sexual remarks by the principal.
ii. Female teacher won
1. Trautvetter v. Quick
i. Principal / teacher affair… Superintendent knew of affair but did nothing because both parties
seemed consenting. No sexual harassment at first reported, but after the affair broke teacher brought
sexual harassment up again.
ii. She lost the case
1. Religious Discrimination
1. Ansonia Board of Education v. Philbrook
i. Philbrook was a member of a church who required members to refrain from working during
designated holy days, missed 6 days per year. Collective-bargain agreement allowed for 3 and he took
unpaid leave. Philbrook asked board to change…
ii. Title VII- Reasonably accommodate to an employee's . . . religious observance or practice without
undue hardship on the conduct of the employer's business
1. Cowan v. Stafford R-VI School District
i. Cowan sent home a magical rock and poem… Cogdill, principal, placed 2 targets on her for
improvement with little to no support. Year to year contract… Was not renewed after third year… Sue
based on she offeneded the religious sensibilities of the communities and won.
1. Equal Pay
1. Danzl v. North St. Paul- Maplewood- Oakdale Independent School District No. 622
i. Danzl accused the school for not hiring her because of her sex… Court ruled in her favor.
1. Age Discrimination
1. Wooden v. Board of Education of Jefferson County
i. Wooden filed suit at age fifty-four against the Board arguing he was discriminated against because
of his age in full time position as a teacher and that the hiring policies were geared towards younger
teachers with more modern experience. The district court ruled in summary of the Board of Education
finding that he was not discriminated against because of his age and that the policy for hiring new
teachers was free of prejudice.
1. Discrimination Against Persons with Disabilities
1. School Board of Nassau County v. Arline
i. Arline was a teacher who had tuberculosis… The school let her go due to the disease without
financial relief. Federal district court rule for the school, but it was reversed in the US Court of
appeals.
1. Chalk v. US District Court Central District of CA and Orange County Superintendent of
Schools
i. Chalk, diagnosed with AIDS, was asked to be reassigned from being a teacher to an administrative
position. The district court ruled that he was not “fit to teach kids”, but the decision was reversed and
supported by the Supreme Court. AIDS is handicapped with the meaning of section 504.
Chapter 18: Collective Bargaining
1. Background of Labor Relations
1. Prior to 1930 labor unions were weak due to common law and liberal use of injunctions
by courts
2. Norris-LaGuardia Act, 1932 – prevented federal courts from issuing injunctions against
union activities occurring as a result of labor disputes
3. National Labor Relations Act, 1935 (Wagner Act) – encouraged collective bargaining as
a means of promoting industrial peace
i. Established the National Labor Relations Board – regulatory body to prosecute and remedy unfair labor
practice
ii. Both parties bargain in good faith
1. Labor Management Relations Act, 1947 (Taft-Hartley Act) – more limitations placed on union
activities through more definitive regulation of unfair labor practices by unions
2. Labor Management Reporting and Disclosure Act, 1959 – delineated employee rights as
protection against union abuse, prescribed union election procedures, criminal penalties for
misappropriation of union funds
3. Private sector labor relations laid groundwork for present regulation of union activity
1.
1. Private Versus Public Sector Bargaining
Substantial differences and slow application of private labor relations to public schools
2. Main distinctions relate to:
i. Strike
1.
1.
Right of public school teachers to strike been rejected in most states
ii. Process of governmental decision making
1. Bargaining process dependent on direct legislative action: budget, tax, etc.
iii. Existing civil service systems
Public employees enjoy more inherent protections, due process, state salary schedule, retirement,
sick leave, etc.
iv. Economic forces and motivations
1. No market pressure in schools.
1.
The Right of Public Employees to Bargain Collectively
1. Employees’ right to organize
i. Employees not only have right to join labor unions, but also may file suit for damages and injunctive
relief if this freedom is denied
(AFSCME v. Woodward)
1. Authority of school board to bargain
i. Within the discretion of the local board
ii. No duty to bargain collectively with an exclusive bargaining agent
1. Right to strike
i. States prohibiting public employees’ right to strike do not violate the constitutional mandates of equal
protection
1. Authority of school board to submit to compulsory arbitration
i. Used in private sector as an alternative to the strike
ii. Either party may request arbitration of the dispute and the decision of the arbitrator is binding on both
parties
iii. Without authorization from a statute, school boards can’t generally submit to binding arbitration
1. Scope of Bargaining
1. Public sector collective bargaining encompasses three categories:
i. Mandatory subjects of bargaining
ii. Permissive subjects of bargaining
iii. Unlawful subjects of bargaining
1. School boards must bargain in good faith to the point of impasse in states where bargaining is
required
2. Where it is not required, the matter is one of discretion and the employer is under no duty to
bargain at all
3. The status of subjects of bargaining are often unclear (especially whether a subject is mandatory)
and can become a matter of litigation
4. The conditions of public school collective bargaining are fully dependent on the state statutory
language
1. Collective and Individual Rights
Utilitarian attitude of pragmatic understandings among management, union, and
employee
2. Bargaining Rights - As a result we have acceptable boundaries of bargaining rights
i. Management Rights: the right to manage school operations as empowered by statute
ii. Union Rights: the right to represent employees, bargain at the table, enforce the contract, grieve,
arbitrate, and ensure union security
iii. Employee Rights: the right to organize freely, engage in negotiations, press grievances, execute written
agreements
1. Constitutional Rights of Individuals
i. Individuals in all states have a right to join unions
ii. A grievance is not a speech activity and doesn’t invoke a First Amendment right to petition government
iii. Requirement of due process for discharged employee is satisfied by the offer of arbitration by a school
board
1.
Chapter 20. School Finance
1. Taxation for Education – The power of school districts to levy taxes must be bestowed
to the district by the state legislature unless the state has “local constitutional taxing
provisions.”
1. Florida Department of Education v. Glasser – Districts may not levy taxes unless
there is specific legislation granting authorization.
2. Marion and McPherson Railway Co. v. Alexander (Kansas) – An Express
Legislative Provision must exist in order for taxes to be levied.
b. Distribution of State School Funds – A legislative act will not be considered invalid
unless it goes against the constitution.
1.
Taxation and Equal Protection – State tax legislation must conform to uniform
standards under the Equal Protection Clause of the 14 Amendment. This
establishes the minimum standard. Nearly all states have a similar provision, but
the meaning of “reasonableness” is cloudy.
2. School Finance Equity – State legislatures have the authority to determine the
methods of distributing funds to school districts. Equality and uniformity
requirements have been denied.
3.
Equal Protection Clause and School Finance – McInnis v. Shapiro (Illinois)
concluded that the 14 Amendment does not require equal educational
expenditures or equal taxation of property.
a. State suits in California and Texas challenged the constitutionality of the system of
finance based on the disparities in school revenue due to vast differences in property
values. The Supreme Court later reversed the state decisions.
1. Litigation Under State Constitutions – State constitutions and state funding
formulas vary greatly. This has caused discrepancy within state court decisions.
2. Fundamentality and State Constitutions – Statutes can be declared
unconstitutional if they divide people into class and the benefits affect a
fundamental interest.
a. Rose v. Council for Better Education, Inc. – Kentucky was found to not have provided
“an efficient system of common schools” as students in property poor districts did not
receive an adequate education as compared to students in affluent districts. In this case,
the definition of “efficient” was put on trial.
Terry Hurlburt
1. Edgewood Independent School District v. Kirby – The Texas state system for
financing schools violates the “efficient” Provision of Education Clause in the
Texas Constitution. Student spending by districts differed by as much as $17,000
and some districts in property poor areas were not able to meet minimal state
programing requirements.
2. DeRolph v. State – The Ohio state school funding system is not “thorough or
efficient” and violates this provision of the Education Clause of the Ohio
Constitution. Funds were so insufficient that school buildings and teaching
supplies were inadequate. Furthermore, many schools could not meet the teacher
to student ratio outlined in state law. District disparity was rejected as it was
found that poorer districts could not raise adequate funds even with identical
taxation.
3. Committee for Educational Rights v. Edgar (Illinois)– Legislation worked to
create a balance between local control and educational equality. Funding
disparities were considered rational.
7. Budgeting and Accounting for School Funds – Courts have generally allowed districts
freedom to determine how funds will be spent, unless legislation prescribes otherwise.
Districts must spend money for the purpose for which the money was collected.
1. San Benito Independent School District v. Farmers’ State Bank (Texas)– Public
money that has been collected for a specific purpose cannot be reallocated to a
different fund or spent for a different purpose.
2. Petition of Auditors of Hatfield Township District (Pennsylvania) – Any school
property or school money falls under the same accountability measures as other
tax funds.
8. Public School Indebtedness – State statutes must clearly outline the school districts
ability to issue bonds. Bonds must also be used for the purpose specified under the vote.
1. Revell v. Mayor of City of Annapolis (Maryland) – States may give school
districts the authority to issue bonds to finance school construction.
2. Hewitt v. Board of Education (Illinois) – Bonds that are not issued with an
authorized purpose are not valid.
Chapter 20, Desegregation of Schools
1.
Separate but Equal
1. Pre-1850 Roberts v. City of Boston, (5 year old walked past many white schools to attend
poorly maintained school), Sumner argued that separate but equal was branding with
stigma of inferiority and degradation
1868-Fourteenth Amendment was ratified-post Civil War reconstruction, meant to proscribe racial
discrimination but courts didn’t enforce, courts said there was not application to private enterprise
discrimination so the equal protection clause was virtually strangled in its infancy by post-Civil War
judicial reactionism (p.1003-1004)
1.
1896, Plessy v. Ferguson, railway transportation, separate train cars for white/black individuals,
this equated to separate but equal according to the court
This decision quickly transferred to education, courts said school segregation was for the good of both
races, all were merely entitled to equal consideration
1.
2.
Cumming v. Board of Education Richmond County, Berea College v. Kentucky (state may
withhold from corporations in manners that it cannot withhold from individuals)
Challenges to Separate but Equal
1. 1938 Missouri ex rel. Gaines v. Canada-where there no equal facilities exist, cannot
segregate or deny admission
2. Five Cases heard in 1952 by Supreme Court (Kansas, South Carolina, Virginia,
Washington DC, Delaware)
The cases were reissued orders to re-argument, court gave questions to the litigants to address
(p. 1006) “The court properly could find only one answer”—separate but equal has no place in public
education, separate educational facilities are inherently unequal. 1954 Brown v. Board of Education-many
attempts to avoid desegregation, the Supreme Court delayed granting specific relief, but said desegregation
must occur with all deliberate speed (Brown II)
1.
Segregation—de facto (natural) and de jure (discrimination, unconstitutional)
1. 1968 Green v. County School Board of New Kent County-dual school systems are
unconstitutional, 1969 Alexander v. Holmes County Board of Education-no more
extensions given, can no longer have a dual school system
2. Quotas and Busing-problem has 2 aspects-measurement of inequality and the process
used to effectuate integration-lower courts tended to use quotas as yardstick to determine
inequality, Supreme Court said that the racial percentages don’t have to reflect the racial
composition of the system
1. 1971 Swann v. Charlotte Mecklenburg Board of Education-must dismantle the
dual system-can use transportation to remediate that situation, but not required
to annually determine the racial composition of each school & adjust school
populations. (Finger Plan)
2. De Facto Segregation-not unconstitutional, follows natural residential patterns,
the differentiating factor is purpose or intent of the segregation (p. 1017)
1. 1973 Keyes v. School District #1, Denver-must desegregate the whole
system, not just certain schools, 1973 Milliken v. Bradley-Supreme
Court reversed the Court of Appeals ruling on multi-district area
segregation efforts-Detroit Schools must eliminate segregation-comply
with desegregation—not by using surrounding districts which were
unitary systems
2. Unitariness-unitary vs dual system,
1. 1991 Board of Education Oklahoma City Public Schools #89
v. Dowell-determined that compliance had been achieved with
2.
desegregation to end de jure segregation, reopened in 1985
with Student Reassignment Plan (return to segregation),
Supreme Court sent it back to the district court to determine if
district was unitary system upon SRP implementation (p.
1027), 1992 Freeman v. Pitts-Supreme Court reversed Court
Appeals decision, District Court is permitted to withdraw
judicial supervision when achieved compliance to court
ordered desegregation plan occurred
Diversity-policies established by institutions based on racial
distinctions that favor minority students,
1. affirmative action must have narrow tailoring—
preferring members of any one group for no reason
other than race or ethnic origin is discrimination (p.
1034), must be flexible enough to consider all
pertinent elements of diversity.
2. Narrow tailoring (p. 1035)-cannot use quota system,
cannot insulate categories of applicants from
competition with all other applicants. 2007 Parents
Involved in Community Schools v. Seattle School
District #1, Meredith v. Jefferson County Board of
Education-cannot continue to assign students to
schools based on race alone.