EDL 291: Policy, Influence, and Legal Issues
Alexander, K. & Alexander, M.D., American Public School Law, 6th 7th or 8th ed.
Belmond, CA: Thomson West.
Chapter 1. The Legal System
1.
Sources of Law
a. Constitutions-a framework of law within which orderly governmental process can operate
b. Statutes-law enacted by the legislative power of a country or state
c. Court Law-“judge-made” laws
d. Common Law-legal principles derived from usage and custom, or from court decisions
affirming such usage and custom
e. Powers and Functions of the Courts
i. Applying principles-consider precedents
ii. Interpreting statutes- (most common function) provide meaning to legislation
iii. Determining Constitutionality-presume constitutionality. Marbury v. Madison,
identified the power of the Supreme Court to rule on constitutionality of legislation
iv. State Decisis “doctrine of precedent” Lower courts normally follow precedents of
higher courts.
v. 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):
2. Courts of last resort
a. ii. Intermediate appellate courts
b. iii. Courts of general jurisdiction
c. iv. Courts of limited jurisdiction
3. Federal Courts-established by Congress. At least one federal court in every state. Federal Courts
include district
4. 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
5. Process of Going to Court
6. Appellant-party that appeals a court decision
7. Appellee-respondent in the appeal
8. Example: Jones v. School District (Jones the appellant)
9. 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.
10. 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
b.
c.
d.
e.
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
George Washington (1796) promoted public education in farewell speech.
The federal government’s authority to influence educational policy emanates from two
primary sources: 1) structural provisions, and 2) rights provisions.
Education as a Fundamental Right under State Constitutions
i. 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.
ii. 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
a. Define FAPE (Free and Appropriate Education)
b. Reference Allowable Fees Guidance from the DE
Chapter 3. Role of the Federal Government
1. Structural Provisions in the Constitution
f. The powers of the federal government are circumscribed by delegation within the frame of the
Constitution and are specifically limed by the Tenth Amendment.
g. Congress is free to define education as general welfare and to tax and appropriate funds for
educational purposes (Helvering v. Davis).
h. Rights Provisions in the Constitution
i. Attendance-first compulsory attendance law in Massachusetts (1852)
ii. Education is a fundamental right. If education is a fundamental right, then everyone
is entitled to obtain it by virtue of being human.
iii. 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.
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
1. Two appeals raise questions to Pennsylvania and Rhode Island statues providing sate aid to church
– related schools
2. 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
3. Rhode Island Salary Supplement Act
i. 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
a. 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.
4.
5.
6.
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
a. 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”
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.
a. Defining line based on three main evils:
i. Sponsorship
ii. Financial Support
iii. Active Involvement
7.
8.
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
Four Theories for Free Speech (base on Supreme Court precedents)
a. Erwin Chemerinsky – Constitutional Law Scholar
b. Self-Governance
i. Checks the abuse of power by majorities and gov. officials.
c. Discovering Truth
i. Justice Oliver Wendell Holmes, “marketplace of idea”.
ii. Truth is the only grounds on which the people’s wishes can be carried out.
d. Advancing Autonomy
i. Free speech is a visible manifestation of liberty.
e. Promoting Tolerance
i. Free speech helps shape the intellectual character of society.
ii. An essential aspect of this character is the tolerance of the opinions and beliefs
of others.
iii. The people are strengthened and defined by tolerance that is made visible via
free speech.
1. Unprotected Speech
a. Freedom of speech is not qualified, and speech in public schools is qualified in several
ways.
i. Erwin Chemerinsky:
1. The First Amendment is written in “absolute language”.
2. However, free speech with no exceptions would be impractical, and
even impossible to implement in a republican form of government.
3. “No matter how appealing the absolute position my be to the First
Amendment’s staunchest supporters, it is untenable.”
4. Justice Holmes: “Crowded theatre” metaphor.
5. No one would allow a spectator to yell out during a court hearing in an
effort to not let the judge or jury hear evidence. Likewise, public
school classrooms could not function if students were permitted to
speak, argue, interrupt, or present tirades while drowning out the
teacher or other students.
b. The non-absolute nature of free speech and expression can be described as:
1. Incitement of disruption and breach of peace.
i. “Clear and Present Danger”
a. Can repress speech if it presents a “clear and present danger”
to the state, this is done without violating the individual’s
freedom of speech.
b. In 1950 the Supreme Court said that two steps are required to
repress speech: 1 – The government must show a substantial
interest in limiting the speech, such as preventing overthrow
of the government, and 2 – The words or actions must show a
“clear and present danger”.
c. Free speech does not require the government to wait to act
until the speech is about to be enacted.
ii. “Material and Substantial Disruption”
a. Tinker vs. Des Moines Public Schools
b. “Material and Substantial Disruption” test was established:
School authorities are not permitted to deny a student the
fundamental right of freedom of expression simply to avoid
discomfort or unpleasantness that always accompany an
unpopular viewpoint.
c. The Supreme Court acknowledged that expression at high
levels (i.e. Tinker and the Vietnam War) of importance can be
limited if the school officials can reasonably forecast material
and substantial disruption.
d. In Guzick vs. Brebus, a federal circuit court decision where
Tinker was applied found: Shaw HS authorities forbade the
wearing of buttons in an antiwar protest. The ban was made
due to the previous history at this school that suggested the
wearing of insignia of various kinds strongly suggested that
disruption would ensue. This fear was so pronounced that the
court agreed that the school authorities had accurately
“forecasted” substantial disruption.
2. Defamation (Ch. 13)
iii. Two forms:
a. Libel: Written
b. Slander: Oral
iv. Administrators and Teachers can be prone to Defamation due to the
sensitive nature of information they are exposed to regarding students
and staff.
3. Threats of Violence
v. Fighting Words or Hate Speech
a. Recognized and validated in the 1942 Supreme Court
decision, Chaplinsky vs. New Hampshire.
b. Those words that by their very utterance inflict injury or tend
to incite an immediate breach of peace. These words are not
protected by the constitution because their social value is far
less than their ability to disrupt social order and morality.
vi. True Threats
a. Courts indicate whether loose words or writings constitute a
true threat, as indicated in Doe vs. Pulaski County Special
School District.
b. The reasonable recipient of the true threat must evaluate the
potential threat by determining: (1) the reaction of those who
heard the alleged threat; (2) whether the treat was conditional;
(3) whether the person who made the alleged threat
communicated it directly to the object of the threat; (4)
whether the speaker had a history of making threats against
the person purportedly threatened; and (5) whether the
recipient had a reason to believe that the speaker had a
propensity to engage in violence.
4. Obscenity and Uncivil Discourse
vii. Obscenity
a. Obscenities are not protected under free speech.
b. Schools go a step further to include uncivil, lewd, vulgar, or
speech that conveys sexual innuendo.
c. Miller vs. California set forth a new test for obscenity:
i. (a) Whether the average person, applying
contemporary community standards, would find that
the work, taken as a whole, appeals to the prurient
interest, (b) whether the work depicts or describes, in
a patently offensive way, sexual conduct specifically
defined by the applicable state law, and (c) whether
the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.
2.
Tinker vs. Des Moines Independent School District, US Supreme Court, 1969
a. Justice Fortas delivered the opinion for the Court.
b. Students and Teachers do not shed their constitutional rights to freedom of speech and
expression at the schoolhouse doors.
c. District Court found:
i. That there was no interference to the school day.
ii. That the administration was reasonable in their actions due to a reasonable fear
of disruption due to the wearing of the armbands.
iii. That fear of disruption is not enough to overcome the right to freedom of speech
or expression.
iv. That in order for school officials to restrict speech/expression they must be able
to show their actions to restrict were done so by more than a desire to avoid
discomfort and unpleasantness that always accompanies an unpopular
viewpoint. The District Court found that the school officials did not meet this
standard.
v. That school officials has singled out the black armbands while still allowing
other buttons, patches, etc…
vi. The Supreme Court upheld the District Court’s Decisions
3.
Perry Education Association vs. Perry Local Educators’ Association, Supreme Court
a. Public Forum Analysis Test: There are degrees of freedom of speech dependent on the
type of forum in which the speech is being delivered.
b. 3 Types of Forums:
1. Traditional Public Forum
i. Areas that have been designated as places for public use such as parks,
streets, etc… The state can only reasonably regulate time, place, and
manner of speech or expression.
2. Limited or Designated Public Forum
ii. Areas that are not permanently designated, but could be used for a
specific time or event. For example, universities opening up forums for
given speakers. The Court found that these areas, once designated as a
limited public forum, can not discriminate against various content that
could be expressed there. As with traditional forum, the state can only
regulate time, place, and manner of speech or expression.
3. Closed or Nonpublic Forum
iii. Schools fall into this category. The legal burden on the state is merely
to show that its regulation is reasonable and rational, and it is not
required to sustain the much more difficult burden of showing a
compelling state interest in the exclusion.
4.
Student Publications
a. Hazelwood School District vs. Kuhlmeier
b. 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
4. Internet.
5.
Free Speech and the Internet
a.
6.
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 vs. Kent School District.
Student Personal Appearance
a. 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 vs. Bossier
Parish School Board case about requiring mandatory uniform does not violate students’
first amendment rights. Maintains order and decorum, prevented disturbances and
promoted safety.
Chapter 9. Search and Seizure
1. 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….”
2.
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.
3.
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.

4.
5.
As a result of this case, reasonableness is determined on two levels:
o considers if the search was initially justified to begin with
o 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
a. 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.
i. 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.
b.
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.”
c.
Strip Searches usually considered excessively intrusive Safford Unified School
District v. Redding (2009) outer clothing may be all right with reasonable
suspicion.
d.
Canine Searches
i. Legal when the dogs sniff “things” (lockers and vehicles)
ii. Not legal when the dogs sniff people. (intrusive)
Metal Detector Searches
i. These are considered legal
ii. Considered legal based on the reasonable rationale that they are necessary
for a safe school environment
e.
f.
Liability for Illegal Searches
i. a student can seek damages if school officials maliciously deny the
constitutional rights
ii. school officials can also be liable if their actions are considered excessively
intrusive of student’s privacy
Chapter 10-Special Education
1.
2.
3.
4.
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.
a. PARC & Mills – sparks Congress to seek elimination of discrimination against
individuals with disabilities in both the world of work and in public education system.
5.
i. 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
a. Free Appropriate Public Education (FAPE)
b. Individualized Education Program (IEP )
c. Special education services (the “F” page of the IEP)
d. Related services (the “F” page of an IEP )
e. Due process procedures (parental rights and safeguards offered at every IEP meeting)
f. The least-restrictive environment (LRE) in which to learn (the “G” page of the IEP)
g.
h.
6.
7.
8.
9.
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)
a. IDEA 1990 revision– required transition services for all students age 16 or older
b. 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
c. 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. 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
b. 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.
c. (added in 2004) – A student can be removed to wit: “if the student inflicts serious bodily
injury on another person while at school.
d. 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)
e. 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.
f. 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
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)
a. IDEA 2004 revision – added the word “Improvement) – IDEAI
b.
c.
d.
e.
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)
10. Special Education Key Terms and Case Law
a. Due Process – Mills Case
b. 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.
i. 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.
ii. 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.
iii. 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)
c. 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.
d. 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.
e. 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.
f.
(Most common court cases are over the statutory provisions of the following):
i. 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.
ii. 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 an extended school program is required.
iii. 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.
iv. 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.
v. 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.
vi. 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 requires that 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.
vii. 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.
viii. 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.
ix. 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
x. 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.
xi. 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.
1.
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 services 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.
g.
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.
h.
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.
i.
j.
k.
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.
l.
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”
m. 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.
i. It requires the schools to reasonably accommodate the child but is far less
prescriptive than the IDEA
ii. 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
n. Differences between Section 504 and IDEA
IDEA




o.
Established detailed rules for
providing FAPE
Section 504

Does not establish such
comprehensive rules for
schools providing FAPE

Prohibits discrimination
against all person with
disabilities, including schoolage children regardless of
whether they require
educational services

Covers children and other
who, for some reason, are not
attending school, for example
children who test positive for
the HIV virus, but who do not
require special education
services

Applies to adults and children,
example a school may be
asked to provide a sign
language interpreter for school
conferences with parents
relating to academics or
behaviors
Only requires special
education services for children
with disabilities of school age
The provision of FAPE meets
the IDEA requirements also
satisfy Section 504
Is only for children ages birth
through 21
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
p.
q.
2.
3.
4.
5.
6.
A civil wrong, independent of contract.
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.
r. An unreasonable interference with the interests of others that causes injury.
s. Four categories of torts
i. Intentional Interference (relatively few in school law)
i. Harm to the person (most likely in school law)
Assault-the apprehension of physical contact
Battery-physical contact
a. Cases involving assault and battery by teacher usually result from teacher’s attempt
to discipline a child.
b. Courts allow wide latitude. In loco parentis. Reasonableness.
c. 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.
d. false imprisonment
i. Detention & restraint
ii. Was it against his/her will?
iii. Was it unlawful?
iv. In loco parentis. Immunity if reasonable.
e. Harm to dignity
f. Harm to property
g. Harm to economic interests
h. Not necessary for the wrongdoer to be hostile or desire to do harm.
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)
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
A duty to protect others.
a. No duty exists when a defendant could not have reasonably foreseen the danger of
risk involved.
b. A teacher often has an increased level or obligation of duty to children.
c. A failure to exercise an appropriate standard of care.
i. Standard of care required not uniform among all persons.
ii. For educators the generally accepted standard of care would be that of a
reasonably prudent teacher, not that of a reasonably prudent layperson.
iii. 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.
7.
8.
9.
iv. 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.
Defamation-Covered in Chapter 13
The Tort of Bullying
a. 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.
b. Bullying and harassing may be defined as the same offenses.
c. Some state legislatures (including Iowa) have enacted anti-bullying statutes.
d. Bully liability
e. Parental liability
f. 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.
g. Wallmuth v. Rapides Parish School Board: School board is not liable for “bullying”
injury to student in locker room when teacher was not present
Defenses for Negligence
a. 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.
b. Comparative negligence-Liability is shared proportionally between the plaintiff and
the defendant.
c. 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.
d. 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.
10. Funston v. School Town of Munster: Spectator who fell from bleachers without back support
was contributorily negligent.
11. Hutchison v. Toews: Injured student with knowledge of ris involved is contributorily
negligent.
12. Aaris v. Las Virgenes Unified School District: Doctrine of primary assumption of risk bars
cheerleader’s recovery for damages in negligence action.
13. Hammond v. Board of Education of Carroll County: Female student assumed the normal,
obvious risks of injury in choosing to play tackle football.
14. 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.
15. 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
16. Educational Malpractice
a. 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.
b. 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
1.
Defamation-imputation of immorality, dishonesty, or dishonorable conduct to another by
spoken or written word.
2. Qualified privilege"-protects the teacher or school offical when statements are made in good
faith and without malice.
3. "Absolute privilege"-no liability
4. Defamation per se-plaintiff not required to prove actual injury or out of pocket loss but prove
personal anguish, suffering, or humiliation.
5. Defamation per quod-requires plaintiff to prove actual damange
6. 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.
a. 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).
b. 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.
7. Case Law (Desselle v. Guillory, Louisiana, 1981)-Qualified privilege protects parents who
convey information about teachers. Mother trying to figure out if teacher inappropriately
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.
8.
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 marijuana. Summary
judgment for defendants because plaintiffs could not prove emotional distress.
9. 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 judgment for
the plaintiff.
10. 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.
11. 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.
12. 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."
a. 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