School Law by pengxuebo

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									         Chapter 1

Legal Framework Affecting Public
    Historical Development of the U.S.
• The Articles of Confederation were established in 1781 to help govern the
• These Articles guaranteed each state’s sovereignty and independence.
• In 1783, after the Revolutionary War, each state began to act similarly to
  an independent country-running it’s own affairs with little concern for the
• The Constitution was ratified 3 months after it was signed. (Signing: Sept.
  17, 1787, Ratification: From Dec. 7, 1878 to June 21, 1788)
• The Constitution adhered to the principle of separation of powers by
  making 3 separate branches of government-the legislative, judicial, and
• Additionally, powers are distributed between a central government, the
  states, and provinces. Articles VI, however, makes the national
  government supreme so states are obligated to enforce the U.S.
  Constitution, federal statutes, and treaties.
                 Bill of Rights
• The Bill of Rights represents the primary source
  of individual rights and freedoms. The first 10
  amendments to the Constitution are viewed as
  fundamental liberties of free people.
• For example, the government can not pass laws
  prohibiting the freedom of speech.
• Others include the freedom of press, assembly,
  and religion.
• Public schools belong to the state so they too
  must abide to the Bill of Rights when dealing with
  students and school personnel.
            U.S. System of Courts
• The 2 types of courts are federal and state.
• Federal courts include district courts, appellate courts,
  and the Supreme Court.
• At least one federal court is found in each state with a
  total of 95 in the U.S.
• There are 13 federal circuit courts with Nebraska
  belonging to the 8th.
• State courts are where most educational cases take
  place because they do not involve federal questions.
• State courts are split into courts of general jurisdiction,
  court of special jurisdiction, courts of limited
  jurisdiction, and appellate courts.
Federal Court Video (8 min)
            The Supreme Court
• The Supreme Court is the highest court in the
  land and there is no appeal beyond the decision
  of this court. The only way a decision can be
  overturned is by an amendment to the
• Cases can reach the Supreme Court only based
  on appeal (by right) or writ of certiorari (by
  granting from the Supreme Court).
• There are 9 members on the Supreme Court,
  including a Chief Justice, who are all appointed to
  life terms.
Supreme Court Video (3 min)
                       Religion in the Public School

“Public Schools may not inculcate nor inhibit religion. Schools must be places
where religion and religious conviction are treated with fairness and respect.”

First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the government for a redress of grievances.

 Lemon v. Kurtzman (Lemon Test)

 1.     The actions have a secular purpose;
 2.     The actions do not have the principal or
        primary effect of advancing or
        inhibiting religion;
 3.     The actions do not foster an excessive
        entanglement of government with
 1. Student Prayers

Santa Fe Independent School District v. Doe 530 U. S. 290 (2000)
The Court ruled prayer over a loudspeaker at a government
sponsored event on government property (football game on
district property) is a violation of the Establishment Clause

Student Prayer and Religious Discussion

 Establishment Clause does not prohibit purely private religious speech
 Students may read Bibles, say grace, say prayer anytime it is not disruptive to the
 learning process
 Informal gatherings are ok (Meet at Pole)
 School may neither discourage or encourage

2. Graduation Prayers and Baccalaureate Activities

Lee v. Weisman 505 U. S. 577 (1992)
Ruled graduation prayers unconstitutional

 Baccalaureate Activities

“A school may not extend preferential treatment to baccalaureate ceremonies and
may in some instances be obligated to disclaim official endorsement of such
3. Participation in or Encouragement of Religious Activity
Teachers and school administrators or employees, when acting in those
capacities, are representatives of the state and are prohibited by the
establishment clause from soliciting or encouraging religious activity, and from
participating in such activity with students.
Employees also are prohibited from discouraging activity because of its religious
content, and from soliciting or encouraging anti-religious activity.

 4. Religion in School Curriculum
Religion is a natural part of history, which is included in the approved curriculum in
When the topic is addressed, the emphasis must be purely academic and not
Schools may teach about religion and its influence on areas such as art, music,
literature, and social studies.

5. Religious Content in Student Assignments

 Students may express their beliefs about religion in the form of homework, artwork, and
 other written and oral assignments free of discrimination based on the religious content
 of their submissions.
 Such home and classroom work should be judged by ordinary academic standards of
 substance and relevance and against other legitimate pedagogical concerns identified by
 the school.
6. Distribution of Religious Literature

Schools generally shall not permit formal distribution of any materials from any non-
school organization, regardless of the content of the materials on school property.
Accordingly, students generally should not distribute flyers to all students on a mass
level at specific established locations at the school. Students can distribute
information on an informal basis that is not disruptive.

Students have a right to distribute religious literature to their schoolmates on the
same terms as they are permitted to distribute other literature that is unrelated to
school curriculum or activities. Schools may impose reasonable time, place, and
manner on distribution of religious literature as they do on nonschool literature

7. Student Participation in Religious Events Before and After School

There is no legal reason not to allow students to participate in religious events
“before and after school,” which do not interfere with instructional time or the
educational process.
8. Religious Holidays

Although public schools may teach about religious holidays, including their religious
aspects, and may celebrate the secular aspects of holidays, schools may not observe
holidays as religious events or promote such observance by students.

 9. Released Time for Religious Instruction
Subject to applicable State laws, School Boards may allow religious instruction off
school property. If allowed, schools may not encourage or discourage participation or
penalize those who do attend.

10. Federal Equal Access Act

Generally, if secondary public schools have a limited open forum, (allows non-
curriculum clubs to meet), the school must allow religious groups the same access to
the school media, (PA system, school newspaper, bulletin board).
Students, the Law and Public Schools
Administrators must adopt defensible school
  polices, provide explicit discipline guidelines,
  ensure parent understanding, and ensure that
  due process is provided.
Essex (2008) states, “Generally, rules are
  deemed to be reasonable if they are
  necessary to maintain an orderly and peaceful
  school environment and advance the
  educational process (p.48)”
             “in loco parentis”
• Essex (1999), “While in loco parentis gives
  school officials latitude to exert authority over
  students under their supervision, it is not a
  license to act in an arbitrary or capricious
  manner. The constitutional rights of students
  must be respected. The exercise of in loco
  parentis is limited to school matters involving
  academics and discipline. Areas outside of
  these two are reserved to parents.”
            Freedom of Expression
• The First Amendment to the U.S. Constitution states, “Congress
  shall make no law…abridging the freedom of speech, or of press or
  of the rights of peoples to peacefully assemble.”
• The Supreme Court in the landmark Tinker case established that
  students are entitled to all First Amendment guarantees stating:
  School officials do not possess absolute authority over their
  students. Students in school as well as out of school are “persons”
  under our Constitution. They possess fundamental rights which the
  State must respect…In our system, students may not be regarded as
  closed-circuit recipients of only that which the state chooses to
  communicate. They may not be confined to the expression of those
  sentiments that are officially approved. In the absence of a specific
  showing of constitutionally valid reasons to regulate their speed,
  students are entitled to freedom of expression of their views.
           Freedom of Expression
• “School official may restrict freedom of expression where
  there is evidence of material and substantial disruption,
  indecent or offensive speech, violation of school rules,
  destruction of school property, or disregard for authority. In
  each case, student must be provided minimal due process
  before any punitive action is taken.”
• The First Amendment directly impacts: protests and
  demonstrations, school-sponsored newspapers, nonschool-
  sponsored student publications, dress and appearance and
  controversial slogans.
      Court Decisions to Consider
• Tinker vs. Des Moines

• Bethel vs. Fraser

• Hazelwood v. Kuhlmeier
       The Fourth Amendment
Does the 4th Amendment   4th Amendment applies
  apply to students in     to student searches
  public schools?          BUT…
• No unreasonable        • School officials are not
  search/seizure           required to obtain
• Probable cause           search warrants
• Particularity          • Legality of a search
• Warrants                 conducted by school
                           officials depends on
                           reasonableness of
        Court Decisions to Consider
• New Jersey vs. T.L.O.                            THE TEST
                                       • Search must be justified at
                                          Q: Did school officials have
1. Students have limited right to         reasonable grounds for search?
   privacy in school
                                       • Search must be reasonably
2. School officials must satisfy         related in scope to circumstances
   “reasonableness” standard to          justifying search
                                          Q: Were measures used
3. School officials are not required      reasonably related to objectives
   to obtain warrant                      of search and not excessively
                                          intrusive in light of age, sex of
                                          student and nature of infraction?
   Student’s Right to Due Process
Due Process--What            Procedural Due Process—Students
                            right to be adequately notified of
 does it mean?              pending charges or proceedings and
                            the opportunity to be heard during
                            these proceedings.
                        •    Substantive Due Process—Students
                            not subjected to arbitrary or
“Due process requires       capricious acts by school officials
                            regarding the exercise of their
  fundamental               personal rights.
  fairness, fair            Vagueness Doctrine—Students
                            should not be penalized for behavior
  processes and fair        that he/she could not reasonably
                            understand to be prohibited
  procedures.”          •   Presumption Standard– Students may
                            not be deprived of rights without
                            assurance that there is sufficient
                            factual evidence.
 “Procedural Safeguards and Due Process
• 1. Specific warning must be given about what
  behavior would result in corporal punishment.
• 2. Administration of corporal punishment
  must take place in the presence of another
  school official.
• 3. Upon request, a written statement must be
  given to parents regarding reasons for the
  punishment and the name of the official
       Court Decisions to Consider
         Goss vs. Lopez                     Summary Ruling

• Students were suspended for     • All students have the right to
  10 days without a hearing and     procedural due process?
  were not present at the board
  meeting when suspensions        • Students have the right to
  were handed out.                  explain their conduct to an
                                    administrator (short-term

                                  • Students must be given a
                                    hearing before the school
                                    board for long-term
                                    suspensions and expulsion.
     Chapter 4
Due Process & Student Safety
          Homeland Security
• Increased concern for safety across the nation
  after 9/11

• No Child Left Behind assures schools “plans”
  are on file regarding maintenance of safe &
  drug free environments
  NSCC guidelines for safe schools:
1. Identify context in which academic learning
   should take place in school mission
   statement. (ie: “to learn in a safe and secure environment free of
     violence, drugs…”)
2. Identify procedure for dealing with threats.
3. Identify potential disasters in your school. (ie:
     intruders, assault, weapons, kidnappings, child abuse, accidental death,
     natural disasters…)
     NSCC guidelines for safe schools cont.
4. Control campus access.
5. Identify roles and responsibilities.
6. Identify who to call in a crisis.
7. Provide training for all.
8. Establish and emergency communication
9. Implement uniform reporting/record-
   keeping system.
     Handling GANG violence
1. Ensure that school personnel have
   knowledge of gang identification and
   management techniques.
2. Establish policies and procedures to
   address gang violence at school.
3. Implement a system to report suspected
   gang involvement/activity.
4. May need to ban dress related to gang
            School Uniforms
1. Involve the community in drafting.
2. Make certain student religious expressions are
3. Make certain student rights of expression are
   preserved within reasonable limits.
4. Make financial provisions for economically
   disadvantaged students.
5. Enforce policies fairly and consistently.
6. Implement as a component of an overall school
   safety program.
7. Present drafts to legal counsel for review.
8. Review and revise as needed.
                Zero Tolerance
1.   Do not use solely to rid of disruptive students.
2.   Involve community in formation of policies regarding
     zero tolerance.
3.   Recognize that students have constitutional rights
     while drafting.
4.   Do not move too swiftly with an assumption that it
     will be a “cure-all” for student mis-conduct.
5.   Upon expulsion of a student, seek alternative
     educational opportunities.
6.   Consider student history, seriousness of offense, and
     immediate need to act before punishment.
7.   Follow due process in all manners.
1.   Give adequate notice of policies regarding suspension.
2.   Compile a record of information. (Include: description, time, and place of
     infraction, witnesses, and previous efforts to remedy behavior)
3.   Provide some type of hearing preceded by notification of such.
4.   Provide written or oral notice of charges (Include evidence and
     opportunity to refute charges).
5.   No delay is necessary between notice and hearing.
6.   Listen to all sides of the issue during the hearing. Students
     should be allowed to present their side without interruption.
7.   Provide written notification of the actions from the hearing to
     the parents/guardians (Include: charges, evidence, number of days of
     suspension, ISS or OSS, conditions for return to school, statement that suspension
     can be appealed if desired.)
8.   Inform parents/guardians by phone immediately. Follow with
     written notification promptly.
       **These steps will meet the standards of due process if implemented correctly.**

1. Inform student(s), parents/guardians based on
   school policy of infractions that may result in
2. Student is entitled to written notice of the
   charges and a right to a fair trial. Written notice must be
     furnished well in advance of the actual hearing.

3. The following procedural steps should be
   considered (at the minimum):
        1. Written notice of charges, 2. Right to a fair hearing, 3. Right to
         inspect evidence, 4. Right to present evidence on student’s
         behalf, 5. Right to legal counsel, 6. Right to call witnesses, 7.
         Right to cross-examine, 8. Right against self-incrimination, 9.
         Right to appeal.
               Metal Detectors
               & Drug Testing
• Metal detectors should be used only when there is
  evidence of student behavior that poses threat to
  student health and safety.

• Drug testing by schools has been deemed legal in the
  Supreme court pending it is part of the school’s
  district-wide program on drug education and
  prevention and is in the district’s interest in
  combating drug abuse.
 Individuals With Disabilities

         EDAD 859

         By: Group 2
1975- P.L. 94-142 the Education for All
     Handicapped Children Act:
• An act of congress after findings that
  supported the need.
• Congress realized it was in the nations best
  interest for the federal government to
  intervene and work with the states
  collaboratively in addressing the needs of
  children with disabilities.
   1990- Individuals With Disabilities
         Education Act (IDEA):
• Defines the responsibility of school districts in
  regards to children with disabilities ages 3-21.
  The level of financial support is set forth to
  assist states in meeting their obligations.

• This legislation was passed to ensure that all
  children with disabilities receive a free and
  appropriate public education in a least
  restrictive environment.
   2004- Individuals With Disabilities
  Education Improvement Act (IDEIA):
• This act was a reauthorizing of IDEA.
• Was signed by the president on November 19th,
• A federal law that ensures that eligible children
  with disabilities ages 3-21 receive a free and
  appropriate public education consistent with
  their individual needs.
• It provides new formulas for allocating funds to
  state and local education agencies.
• The act also established substantsive and
  procedural due process rights.
  2000- National Council on Disability
• An independent federal agency of fifteen
  members that were appointed by the president
  and confirmed by the senate.
• Purpose is to promote policies, programs,,
  practices and procedures designed to assure
  equal opportunity for individuals with disabilities
  irrespective of the nature and severity of their
• Found every state to be out of compliance (to
  some degree) with the Individuals with
  Disabilities Education Act (IDEA).
Disciplining Students with Disabilities:
• A suspension of 1-10 days is the same for a
  child with a disability or without a disability.

• Suspension and/or expulsion over 10 days will
  follow the same guidelines or plan for
  disabled students unless the disabled
  student’s behavior manifested from the
  Parental Rights in Special Education:
• There is to be written consent prior to a school district
  conducting an initial or reevaluation of a student.
• All students have a right to a “Free and Appropriate
  Public Education” (FAPE).
• Parents must have input on a child’s IEP as they know
  the child best.
• Parents have the right to request evaluations by other
  providers such as an O.T. P.T. or vision specialist etc…
• Parents have the right to request meetings and to
  refuse special education services.
   Least Restrictive Environment:
• Regular classroom with support from the regular
  education classroom teacher.
• Regular class with support instruction from
  special education teacher.
• Regular class with special resource instruction.
• Full time special education class in a regular
• Full time special school.
• Residential school.
• Homebound instruction.
   Multi-Disciplinary Team (MDT):
• MDT meetings are held to discuss the results of initial
  testing or reevaluation testing to determine if a
  student qualifies for Special Education Services.
• All MDT meetings must have an administrator in
  attendance or an appointed person who is qualified to
  provide information, supervise and have knowledge of
  the availability of resources in the school district.
• Students are reevaluated every three years.
• Students are eligible for services from ages 3-21 but
  there are services available for children birth – 3 years
 Individual Educational Plan (IEP):
• A written statement for each child with a
  disability that describes their educational
  program. It is developed, reviewed and revised in
  accordance with IDEA and must meet Rule 51 and
  IDEA requirements.
• Must meet annually.
• Can include related services such as O.T., P.T.,
  etc…as needed.
• Must be developed and implemented for each
  public and non public school child who receives
  special education and related services.
       Questions? Check this out!
        Chapter 6
School Personnel and School District
• Liability involving school personnel normally falls into
  two categories: intentional torts and unintentional.
• Intentional torts-such as assault, battery, libel, slander,
  defamation, false arrest, malicious prosecution, and
  invasion of privacy-require proof of intent or
• Unintentional torts-such as simple negligence-does
  not require such proof of intent or willfulness.
• In either case, charges may be sustained if the school
  failed to act appropriately or improperly.
• Forseeability, a crucial element in liability cases, is
  defined as the teacher’s or administrator’s ability to
  predict that a certain activity may prove harmful. For
  example, a school would be liable if broken glass
  panes exist in a doorway.
                 Student safety
• Teachers have a legal duty to instruct students on the
  proper use of equipment and materials. Failure to do so
  makes the teacher liable. Examples include use of table
  saws, welding equipment, science equipment, and athletic
  equipment and techniques.
• There is no clear cut line for procedures for before and
  after school supervision. Each district must evaluate their
  own situation and provide the supervision necessary. At
  the very least, students should be periodically monitored.
  If problem arise, then full time supervision would be
• A letter informing parents of before and after school
  monitoring policies should be sent home, signed by the
  legal guardian, and returned to the school.
            General thoughts
• School grounds should be accessible and
  considered safe for visitors.
• Personal information regarding students must be
  kept confidential.
• Schools should develop a culture and a set of
  values that place a high premium on respect of all
  individuals in the school community.
• Items retrieved from students, if not illegal, should
  be returned to students or their parents in a
  reasonable time frame and not retained
  permanently by school personnel.
• Well planned liability workshops should be offered
  periodically to ensure that school personnel are
  aware of the limits of liability.
               Interesting Video
                    (2 min)
• News Story
Liability and Student Records

              Chapter 7
  School Law and the Public Schools,
            Nathan Essex
                Public Law 93-380
• The Family Educational Rights and Privacy Act (FERPA)
  protects confidentiality of student records.
• Rights of Parents: Parents or legal guardians have the right to
  inspect their child’s record
• Right of Noncustodial Parents: The courts have maintained
  that neither parent could be denied access to the child’s
  records under the Family Educational Rights and Privacy Act.
• Rights of Eligible Students: The student may exercise the
  same rights afforded parents or guardians, if he or she has
  reached the age of 18 or in enrolled in a postsecondary
• Rights of School Personnel: Teachers, counselors, and
  administrators who have a legitimate educational interest in
  viewing record may do so. A written form, must be
  maintained permanently with the file.
• School counselors are not required to share
  information obtained from students with their parents.
  Records that remain in the sole possession of
  counselors are not subject to FERPA. Educational
  records under FERPA do no include personal files.
  When circumstances arise in which public disclosure is
  in the public interest, confidentiality is lost.
• Federal and state officials may inspect files without
  parental consent in order to enforce federal or state
  laws or to audit or evaluate federal education
   Landmark U.S. Supreme Court Rulings

• Owasso ISD v. Falvo, 2002, the U.S. Supreme
  Court ruled that peer grading does not violate

• Gonzaga University v. John Doe, 2002, the U.S.
  Supreme Court ruled that student and parent
  may not sue for damages under 42 U.S.C. 1983 to
  enforce provisions of the Family Educational
  Rights and Privacy Act.
  Defamation Involving School Personnel
• When school personnel communicate personal and
  sensitive information to another unauthorized person
  that results in injury to the student’s reputation or
  standing in the school or that diminishes the respect
  and esteem to which the student is held, they may
  faces charges of libel or slander depending on the
  manner and intent in which such information was
• Slander is oral defamation, when school personnel
  inadvertently communicate sensitive and damaging
  information contained in student file to unauthorized
  Defamation Involving School Personnel

• Libel is written defamation. Teachers, counselors and
  principals should refrain from including damaging
  information in the student’s record for which there is
  no basis.
• Qualified privilege protects school personnel that
  provide oral or written information regarding a
  student, some of which might be contained in the
  student’s file when the requests are made and the
  school personnel responds in a truthful and reasonable
  manner. This privilege is based on the premise that the
  educator is operating in good faith.
  Defamation Involving School Personnel

• Acts of Malice exists when there is an clear
  intent to harm or injure another.

• Defenses Against Defamation include
  privilege, good faith and truth.
                        Chapter 8: Teacher Freedoms

Substantial Process—the state must have a valid objective when it intends to
deprive a teacher of life, liberty, or property, and the means used must be
reasonably calculated to achieve its objective.

Procedural Due Process—the state may not deprive any person of life,
liberty, or property, without due process of law.

Freedom of Expression:
 In school, limited if it creates material disruption to the
  educational interest of the school district

 Outside of school, comments need to prefaced that
  comments are personal opinion

 Statements cannot be false or detrimental to the school
Speech Outside the School Environment
• Freedom of Speech outside the school environment is well established,
   however, a teacher should preface his or her comments by indicating that he or
   she is speaking as a private citizen rather than an employee of the board
• Pickering v. Board of Education—US Supreme Court held that in the absence of
   proof of the teacher knowingly or recklessly making false statements the
   teacher had a right to speak on issues of public importance without being
   dismissed from his position.

Academic Freedom
• Academic freedom is not a right
• Classrooms cannot be used to promote personal or political agendas
• Fowler v. Board of Education of Lincoln County—Court deemed that teachers are
   role models with responsibility for inculcating fundamental values, and that
   those values disfavor expression that is highly offensive to others.

Freedom of Association and Membership of Subversive Organizations
• Teachers have freedom of association as long as they are not involved in illegal
• Keyishian v. Board of Regents 1967 US Supreme Court case which declared that
   stated that the classroom is peculiarly the "marketplace of ideas.”

Political Rights and Participation in Campaigns
• Teachers have the right to political office, but may be asked to take a leave of
    absence while in office
• Minielly v. State case in Oregon, the district court held to be invalid a state law
    that prohibited public employees from running for political office.
Dress and Grooming
• Dress and grooming can be regulated by the board
• East Hartoford Education Association v. Board of Education of Town of East
   Hartford—A teacher was reprimanded for failing to wear a tie while teaching.
   He took action in the United States District Court for the District of Connecticut
   and was granted a motion for summary judgment based on the fact that the
   plaintiff asserted no cognizable constitutional interest.

Right to Privacy
• Erb v. Iowa State Board of Public Instruction—held the revocation of a teaching
   certificate for adultery was impermissible when defendant made no findings of
   the fact and the statute did not permit “personal moral judgment,” especially
   when only one incident occurred with no adverse affect shown.
• Teachers are entitled to privacy and cannot be penalized for private
   noncriminal acts
• Pregnant unwed teachers may not be automatically dismissed unless there is a
   definite reason for doing so.

Religious Freedoms
• Good News Club v. Milford Central School, (2001), held that when a government
    operates a “limited public forum,” it may not discriminate against speech that
    takes place within that forum on the basis of the viewpoint it expresses—in this
    case, against religious speech engaged in by an Evangelical Christian club for
• Religious Freedoms can be limited if dress creates a reverent atmosphere
• Religious rights of teachers must be respected, so long as they do not violate
    the establishment cause of the 1st Amendment by creating excessive
    entanglement in the school.
Discrimination in Employment

                Chapter 9
                    Group 2
      Josh, Angelique, Gary, Jessica, & Roni
Statues prohibiting discrimination
• Title VII of the Civil Rights Act of 1964
   – Prohibits employment discrimination based on race,
     color, religion, sex, or national origin.

• Title IX of the Education Amendments Act of
   – Prohibits sexual discrimination by public and private
     educational institutions receiving federal funds.

• Equal Protection Clause of 14th Amendment
   – Provides protection against group discrimination and
     unfair treatment.
 Statues prohibiting discrimination

• Rehabilitation Act of 1973
   – Prohibits discrimination against any otherwise qualified
     person who has a disability with respect to employment,
     training, compensation, promotion, fringe benefits, and
     terms and conditions of employment.

• Americans with Disabilities Act of 1990
   – Protects individuals with disabilities against discrimination
     and assures equal access to opportunity.
Statues prohibiting discrimination
• Affirmative Action - Proposition 209
  – A means to eliminate affirmative action programs
    supported by governmental agencies.
  – Prohibits discrimination and preferential
    treatment on the basis of race, sex, ethnicity,
    color, or national origin.
Statues prohibiting discrimination
• Age Discrimination Act in Employment Act of
  – Prohibit forced retirement of employees.

• Pregnancy Discrimination Act of 1978
  – Amendment to Title VII which protects pregnant
    employees against any form of discrimination
    based on pregnancy.
          Other areas protected…
• Sexual Harassment
   – Prohibited by Title VII and Title IX

• Issues involving National Origin: Proposition 187
   – Enacted in 1994 denies public social services to people
     who are unable to establish there status as U.S. citizens,
     lawful permanent residents, or aliens lawfully admitted for
     certain period of time.
   – Some consider this to violate the equal protection clause
     of the 14th amendment.
   – Is one of the most controversial issues and still being
 Chapter 10: Recruitment,
Tenure, Dismissal and Due
        EDAD 859
• Teachers are entitled to fundamental fairness, even if they have not
  achieved tenure.
• Tenure is not designed to protect teachers who are inept or
  ineffective. However, it should protect competent and effective
• Teachers may only be dismissed for specified reasons that are
  documentable and objective evidence.
• Due Process procedures must be followed to be sure that dismissal
  decisions are legally defensible.
• Nonrenewal of a non tenured teacher’s contract does not generally
  require due process, unless there is an alleged constitutional
         Dismissal for Cause:
1. Grounds for dismissal include incompetency,
   insubordination, neglect of duty, immorality,
   justifiable decrease in number of teaching positions,
   financial exigency or “other good and just cause”.
2. A board of education may dismiss a teacher for
   almost any reason , as long as the reason is valid and
   meets the due process requirements.
3. To dismiss a teacher for incompetency systematic
   evaluations, documentation of performance and a
   thorough teacher improvement plan.
4. Sexual misconduct involving students by school
   personnel will almost always result in dismissal.
    Dismissal for Cause (cont.):
• 5. Community norms and expectations regarding
  professional conduct of teachers are very important
  considerations in cases involving alleged immoral
  conduct and and dismissal.
• 6. A felony conviction or series of misdemeanors may
  result in dismissal and revocation of a teaching license.
• 7. Private acts of homosexuality or adultery cannot
  form a basis for dismissal unless there is evidence that
  such acts render the teacher ineffective and there is
  proof that such acts adversely affect a teacher’s ability
  to perform his/her assigned duties.
            Financial Exigency:
• This is when a district faces a bona fide reduction in its
  budget which results in abolishing certain employment
  positions. The school board must demonstrate financial
• All employees must be afforded full due process provisions
  if affected by a reduction in force.
• School districts cannot use financial exigency to remove an
  employee who has exercised a constitutionally protected
• Seniority and job performance should receive priority in RIF
  (reduction in force) decisions.
• School district policy/state statutes must be followed to the
  letter to implement RIF policies.
          Collective Bargaining:
• The basic intent of collective bargaining is to create teacher
  empowerment and shared power between teachers and
  school boards.
• This process should be guided by good faith efforts between
  all parties involved.
• School boards should not negotiate items that they have no
  legal authority to negotiate unless they have statutory
  authority to do so.
• Any action taken by striking teachers that may disrupt
  educational opportunities for students will not likely receive
  court support.
• Collective bargaining agreements should not impair teacher’s
  constitutionally protected rights and freedoms.
The Instructional Program

            Chapter 11
School Law and Public Schools, 2008
          Nathan L. Essex
         Control of Public Schools
• The U.S. Constitution makes no reference to education.
  The Tenth Amendment places responsibility on each
  state to provide free public schools.

• The legal authority for defining the curriculum of public
  schools is the state legislature, in a few states, it is the
  state legislature and the state board of education.

• State v. Harworth established the state’s responsibility
  for public education.
     Compulsory Attendance
• Every state requires      Exceptions:
  children between          • Wisconsin v. Yoder-the state’s
  certain ages, usually       interest regarding universal
                              and compulsory education is
  6-16 years old to           by no means absolute to the
  attend public, private      exclusion or subordination of
                              all other interests. The First
  or home school.             Amendment prohibits state
• The parent has an           action that interferes with a
                              parent’s right to control the
  obligation to the child     religious upbringing of his or
  and state to ensure         her child.
  that the child receives   • Additionally, married students
                              who are emancipated and are
  an appropriate              no longer under their parents’
  education.                  care.
• Every state requires that children between 6 or 7 and 16
  or 17 attend public, private or home school.
• Parents who fail to get their children to school face
  criminal charges.
• One exception to the attendance requirements are if a
  student has a religious belief that conflicts continuing
  education as in Wisconsin vs. Yoder. Yoder was Amish and
  stopped schooling after 8th grade. Another exception may
  be if a student is married and no longer under their
  parents’ care.
• Students who are home schooled are required to meet
  standards for curriculum and instruction, length of
  instruction, and days in which instruction should be
• Schools generally are required to educate
  students who reside within the districts
  boundaries. Residence is a student’s actual
  dwelling place. Domicile is where the student
  intends to remain indefinitely. A student’s
  domicile follows that of his or her legal guardian.
• If the child is emancipated the domicile is
  determined by where the student intends to
  remain indefinitely.
• Curriculum standards, such as courses offered and achievement
  required, are based through state policy. Local schools may
  develop other standards as long as they do not contradict state
• State legislation requires that certain subjects be included in
  school curricula such as American history. However, the
  specifics are left to be decided by local school districts.
• Many schools fear teaching the Bible due to possible lawsuits.
  However, many Bible classes are being offered at public schools
  throughout the United States (see Some
  guidelines for Bible use include teaching objectively and in a
  strict secular manner, instructing teachers on how and what to
  teach, and formulating policies for teachers, students, and
  parents to follow.
  No Child Left Behind Act of 2001
• There are four guiding principles: stronger accountability,
  increased flexibility, expanded options and improved
• States must insure that students are tested in math and
  reading by 2005-06 school year.
• By 2007, state must insure that students are tested at least
  one annual assessment in science in at least one grade level:
  3-5, 6-9 and 10-12 .
• States must set and then meet adequate yearly progress
  toward the goal of having children meet proficiency levels in
  core subjects by the year 2013-14.
• Schools that fail to meet AYP face sanctions including offering
  supplemental services, transportation or restructuring.
  No Child Left Behind Act of 2001
• Districts have flexible use of funds and may
  transfer up to 50 percent of the funding they
  receive under the four major state grant
  programs (Teacher Quality state grants,
  Educational Technology state grants,
  Innovative Programs, and Safe and Drug-Free
  Schools) to any one of the program or to Title
  Grading and Academic Requirements
• Courts generally are reluctant to interfere in cases involving academic
  matters as they feel educators are better equipped to evaluate students.
• The state does however have the authority to set graduation requirements
  and check student competencies based on standardized tests.
• Courts will typically support the schools in grade reduction in relation to
  student absences as long as the policies are reasonable and do not violate
  the state’s attendance statute.
• School districts may use grade reduction for misbehavior as long as a
  relationship is shown between the misconduct and their classroom work.
• Students are to be awarded a diploma if he or she has met the academic
  requirements for graduation. However, a student may be denied
  participation in the graduation ceremony if misconduct has occurred.
                 Chapter 12
Group 2: Roni, Angelique, Gary, Josh & Jessica
          De Jure Segregation
• Fourteenth Amendment
 – 1868 - provided for “equal protection under the
 – 1896 - Plessy v. Ferguson - Supreme court upheld
   “equal but separate”
 – 1954 - Brown v. Board of Education - Supreme
   court struck down “separate but equal”.
    Brown v. Board of Education
                     (Brown I)

• Landmark turning point for desegregation
• Stated that “ public schools
  has a detrimental effect upon the colored
• Provided NO remedy for segregation leading
  to Brown II
                    Brown II
• Supreme court rulings
  to ensure proper
  implementation of the
  ruling in Brown I
• District courts were
  mandated to
  supervise the
• School districts were
  to implement this
  ruling in “good faith
  and with all deliberate
    School issues along the way...
• Racial Balances or Racial Quotas
  – some districts implemented a racial balance/quota
    requirement of 71%-29% on specific schools
• One-Race Schools
  – certain schools were allowed to remain all or
    largely of one race due to concentration of
    minorities in parts of a city, but were under close
    School issues along the way...
• Remedial Altering of Attendance Zones
  – some school districts drastically altered districts
    and attendance zones to accomplish
• Transportation of Students
  – situations varied greatly and there were no
    provisions for dealing with transportation
Free Transfer and freedom of
       Choice Program
               • Many school districts
                 adopted freedom of
                 choice plans to avoid
                 desegregation orders
               • Schools would rezone
                 their districts AND
                 provide that a student
                 could request to be
                 transfered back to
                 their old school
               • Courts ruled that this
                 perpetuated racial
            De Jure & De Facto
• De Jure Segregation
  – racial segregation derived from the enforcement of
• De Facto Segregation
  – present when the number of students enrolled in a
    school represent a racial or ethnic minority
  – this developed when no action was taken by the
    school district to require desegregation
      The Civil Rights Act of 1964
• specifically Title VI
  – prohibits discrimination on basis of race or color in
    programs that receive federal funds
  – to ensure the elimination of segregated schools
it is illegal and will not be supported
               by the courts
                       Chapter 13 Finance

School Funding and Taxes
 The power of taxation for education resides with the state limited
only by federal and state constitution.

  State constitutional provisions allow the legislature to make
provisions for a system of public schools and to tax citizens for
support of public education.

 The legislature has the inherent power not only to tax citizens for
support of education but also to distribute funds for the operation of
public schools.

  Tax distribution formulas are determined by the legislature based
on the needs of various types of school districts and the ability of
citizens in those districts to support public education.
           Legal Challenges to School Taxation

Serrano v. Priest—Case that supported equal protection
challenge regarding disparities in funding and that the
quality of a child’s education should not be a function of the
wealth of the district in which the child resides.

Robinson v. Cahill—Case which decided that funding of
public schools that rely heavily on local property taxes
violated the state constitution as well as the equal
protection clause of the 14th Amendment.

Education Act of 1975—mission is to develop a thorough
and efficient system of free public schools for all children
irrespective of socioeconomic status or geographical
San Antonio Independent School District v. Rodriguez
• Mexican American parents in Edgewood filed a class action
  equity suit on behalf of minority children throughout the state
  who were poor and resided in a school community that had a
  low property tax base.

• The Supreme Court's decision held that a school-financing
  system based on local property taxes was not an
  unconstitutional violation of the 14th Amendment's equal
  protection clause. The majority opinion stated that the
  appellees did not sufficiently prove that education is a
  fundamental right or that the financing system was subject to
  strict scrutiny.

• According to the Rodriguez ruling, a funding system based on
  local property tax that provides a minimum education to all
  students is constitutional.

• Rodriguez case removed school finance litigation from the
  federal courts to the state courts.
                      Post-Rodriguez Decisions

• Following the Rodriguez decision, courts have been more inclined
  to focus their attention on educational quality as influenced by
  teacher quality, appropriate instructional materials, student
  achievement scores, and graduation rates as a means of
  addressing equal opportunity provision for students.

• There is no uniformity among courts in their decisions regarding
  adequacy of funding for public schools.

• State may collect tax funds from wealthy school districts and
  redistribute them to poorer districts to achieve a measure of
Post-Rodriguez Cases
• Williams v. California- A landmark civil rights case which challenged the
   state to ensure quality learning conditions for millions of low-income
   students of color. The Williams settlement creates new standards for
   measuring whether schools have the basic conditions students need to
   learn such as textbooks, well-trained teachers and clean and safe school
   facilities. It also provides opportunities for communities to become involved
   and holds school officials accountable for showing how well schools are
   meeting these standards.

• CFE v. State of New York—The court held that NYC children were not
  receiving the constitutionally mandated opportunity for a sound basic
  education and ruled that the governor and legislature had to ensure that
  every school in New York City has the resources necessary to provide the
  opportunity for a sound basic education.

• Montoy v. State of Kansas—A state district court held that the state’s school
  finance plan violates the state constitution. The court found that the state
  failed to distribute resources equitably among children who are equally
  entitled to a suitable education.

• Lewis E. v. Spagnolo— A class of schoolchildren residing in East St. Louis
  School District 189 challenges the adequacy of the education being
  provided to them in District 189 schools. The courts ruled that that
  questions relating to the quality of a public school education are for the
  legislature, not the courts, to decide.

                         Student discipline act
DATE      23 JULY 2009        CLIENT   GROUP 2
             Purpose of Act
To assure the
protection of all
students the
constitutional right to
due process and
fundamental fairness
Summary of Act
        The school may
        authorize an
        emergency exclusion,
        expulsion or
        reassignment of any
        pupil for conduct
        prohibited by the
        school’s policies.
           Important Rules:
School board must establish rules and
standards regarding student conduct .
Schools must attempt to carry out said rules.
Rules must be distributed to each student and
his/her parent or guardian at the beginning of
the school year.
Procedures to be followed are
    outlined in detail for:
Emergency Exclusion
Short-term Suspension
Long-term Suspension
Mandatory Reassignment
Duty to Report Criminal Violations
 School authorities MUST notify law
 enforcement when they know or suspect
 that an act is a violation of the Nebraska
 Criminal Code (is illegal).
 School authorities will not be held liable as
 a result of any report unless:
  report was false and they knew it was false
  when reporting it
  the minor was in custody and the location
  where they were being held was dangerous
  and/or medical treatment was withheld
  Discipline Act
• An outline of the Act
  may be downloaded
  by clicking on the
  image to the right or
           Important Case Briefs
                                     Group 2
Veronica Dorsey, Jessica Fry, Gary Graham, David Graves, Angelique Gunderson
                        Tinker v Des Moines
Topic                                         Educational Significance
• Students’ First Amendment rights            • • Students rights are protected under the
                                                 First Amendment in as much as they do
                                                 not disrupt the learning environment.
Supreme Court Decision                        • • School administrators have the burden
                                                 of proving that a particular demonstration
• In a 7 to 2 decision, the U.S. Supreme         of expression will be significantly
   Court determined the students wearing of      disruptive.
   the armbands as a silent expression was    • • Merely a desire to avoid the discomfort
   protected by the First Amendment. The         and unpleasantness of an unpopular view
   school failed to demonstrate that the         is not enough to justify the prohibition
   actions of the students would interfere       of the expression.
   with appropriate school discipline.
                                              • • When making determinations on
                                                 disciplinary policy that may bring into
                                                 question a students First Amendment
                                                 rights, other cases should be noted as
                                                 examples (i.e. Bethel School District v.
                                                 Fraser, Morse v. Frederick, and
                                                 Hazelwood v. Kuhlmeier)
                 Bethel School Dist v Fraser
Topic                                            Educational Significance
• The issue involved is whether or not
    students can say whatever they please        •    School officials may restrict freedom of
    with regard to the First Amendment               expression where there is evidence of
    during a public school forum.                    material and substantial disruption,
Ruling                                               indecent or offensive speech, violation of
• On additional appeal, the U.S. Supreme             school rules, destruction of school
    Court found that while public students           property, or disregard for authority. In
    have the right to advocate unpopular and         each case, students must be provided
    controversial issues in school, that right       minimal due process before any punitive
    must be balanced against the schools'            action is taken.
    interest in teaching socially appropriate
    behavior.                                    •   Buttons, pamphlets, and other insignia
• A public school may legitimately establish         may be banned if the message
    standards of civil and mature conduct. The       communicated is vulgar or obscene or
    Court observed that such standards would         mock others based on race, origin, color,
    be difficult to convey in a school that          sex, or religion.
    tolerated lewd, indecent and offensive
    speech and conduct that the student in
    this case exhibited. In conclusion, the
    school district's decision was upheld.
                              New Jersey v TLO
Topic                                              Educational Significance
•   Unwarranted searches ad seizure of
    property                                       •   Be extremely cautious when accusing or
                                                       searching students
• The supreme court of New Jersey                  •   Be aware of all rules and the fine print.
    reversed the appellate division’s ruling
    and ordered the evidence found in T.L.O’s      •   Document all actions when dealing with
    purse suppressed.                                  behavior incidents
• The court proceeded to hold that
    whenever an “official search violates
    constitutional rights the evidence may not     •   Make sure there is reasonable suspicion to
    be used in a criminal case; they deemed            do the search and seizure initially
    the Choplick’s search was not reasonable.
    The mere possession of the cigarettes was
    not a violation of school rules; therefore a
    desire for evidence of smoking did not
    justify the search.
                     Hazelwood v Kuhlmeier
Topic                                             Educational Significance
• The high school principal prevented the
    school publication of Spectrum that           •   The Hazelwood ruling has important
    profiled three pregnant students and              implications for student newspapers that
    quoted other students on reasons for              are part of the school’s curriculum in that
    their parents’ divorce. The principal was         restrictions may be placed on them based
    afraid that the identity of the three             on reasonable grounds. Administrators
    students would be revealed, sexual                may exercise greater authority in
    activity content was too graphic for              monitoring student press but care should
    younger students, and parents of students         be taken not to violate the student rights
    were not able to respond to comments              in the process. This may exercise content-
    made by students.                                 based control over student expression and
Ruling                                                use of restricting student speech. Some
• Supreme Court reversed the ruling that              states have passed laws guaranteeing that
    the principal did not violate students free       non-forum newspapers, such as the
    speech rights by ordering certain material        Hazelwood East High School newspaper,
    removed from an issue of the student              are guaranteed the rights that the First
    newspaper. Students’ First Amendment              Amendment describes.
    rights are not the same as those of adults
    due to the special characteristics of the
    school environment.
                            Goss v Lopez
Topic                                    Educational Significance
• Due process; Hearing or notice;        • Due process is a right of everyone
   Procedure when suspending a              according to the U.S. Constitution
   student for up to ten days.           • Every student must be given notice
Ruling                                      (oral or written) of the misconduct,
• The state law was found                   an                     explanation of
   unconstitutional both by the             the evidence, and an opportunity
   federal district court and again by      for a hearing.
   the Supreme Court. The case           • Ensure every situation is handled
   determined that students facing          carefully and the due process is
   suspensions of up to ten days or         adhered to.
   less were entitled to:                • Ensure school policies align with
• 1. oral or written notice of              state and federal law.
   charges                               • Note that suspensions of more than
• 2. an explanation of evidence to be       10 days require more formal
   used against them, and                   procedures.
• 3. an opportunity to present their
   side of the issue
                                             Lee v Wiseman
Topic                                                                Educational Significance
•     Inclusion of clergy to offer prayer as part of public school
      ceremonies                                                          This case clarifies that clergy may not lead
                                                                          the student body in prayer at a school-
•    The U.S. Supreme Court held that "Including clergy who
                                                                          sponsored event. If administrators are
     offer prayers as part of an official public school                   approached about having clergy members
     graduation ceremony is forbidden by the Establishment                offer a prayer at a school-sponsored
     Clause.                                                              event, suggest that they meet before the
•    Prayer exercises in elementary and secondary schools                 event to allow interested members to
     carry a particular risk of indirect coercion. The school
     district's supervision and control of a high school                  participate so that no one is excluded in
     graduation ceremony places subtle and indirect public                their right to convene, and in protecting
     and peer pressure on attending students to stand as a                those that might be opposed, such
     group or maintain respectful silence during the
     invocation and benediction...                                        allowance would protect them in their
•    The petitioners' argument that the option of not                     right to be free from what may be
     attending the ceremony excuses any inducement or                     interpreted as coercion by this group.
     coercion in the ceremony itself is rejected. In this
     society, high school graduation is one of life's most
     significant occasions, and a student is not free to absent
     herself from the exercise in any real sense of the term
•    The United States Supreme Court affirmed the United
     States Court of Appeals for the First Circuit judgment.
                  Wisconsin v Yoder
Topic                             Educational Significance
• Compulsory Attendance           • There are certain
                                    exceptions to the
Ruling                              compulsory attendance
• The U.S. Supreme Court            requirements.
  affirmed the decision in
  holding that the First
  Amendment prohibits state
  action that interferes with a
  parent’s right to control the
  religious upbring of their
                     Stevens v Chesteen
Topic                                    Education significance
• Does a brief absence from class        • It is important for all teachers to
   constitute breach of duty of             properly supervise student to the
   reasonable supervision.                  best of their ability. If a child is
Ruling                                      restricted from participating in
• The court ruled in favor of               physical education class that
   Chesteen noting that his absence in      student must be well away from
   this situation does not breach his       any activity that could cause injury
   duty of reasonable supervision.          to them. Necessary precautions for
   Teenagers like Stevens often             this situation should be in writing
   participate in “pick-up” football        and included in the class syllabus to
   games that are completely                avoid any legal troubles. One
   unsupervised. This case involved a       possible solution is moving injured
   “touch” football game, and not a         student to the library to finish a
   tackle game, thus making violent         written assignment about nutrition
   collisions involving bystanders          or exercise as a possible alternative
   unlikely.                                while their injury heals.
 Cox v. York County School Dist. No. 083.
Topic                                            Educational Significance
• Termination of probationary teachers
Ruling                                           • Legal Significance for the
• The school board ruled against Cox. The          Administrator:
    district court favored Cox because the
    school district failed to provide Cox due    • Follow state statutes
    process as required by law in deciding not     regarding evaluation
    to renew her contract. The district court
    ordered the school district to reinstate       procedures
    her. The school district appealed this
    decision. The Nebraska Supreme Court         • Make sure to document all
    upheld this decision. They found that the      observations both formal
    Board did not meet the statutory
    requirement that Cox be evaluated at           and informal as well as
    least once per semester based on actual        comments.
    classroom observations for an entire
    instructional period.                        • Follow district policy
      C. Patricia Skinner v. Ogallala Public
Topic                                         Educational Significance:
• School Liability                            • School districts will be held liable
                                                if the grounds and schools are not
  /Worker’s                                     safe places even in “off” school
  Compensation                                  hours. School districts should
                                                post warning signs and fix any
Ruling                                          areas that would pose a threat to
•   The Nebraska Supreme Court                  someone’s safety immediately if
    concluded that Skinner’s injuries did       they are to not be held at least
    not arise in the course of her              partially liable if an injury occurs
    employment by the District and the          on school property.
    Nebraska Worker’s Compensation Act
    did not bar her from bringing this tort
    action against the District. The court
    supported the trial court decision
    that found Skinner to be an invitee.
    Mitchell Crider v. Bayard City Schools.
Topic                                                    Education Significance:
• Physical Therapy / Special Education                   • A free appropriate public education
• Ruling                                                    requires that each handicapped child
•   The trial court dismissed the action. On review,        be provided with personalized
    the court reversed the judgment of the trial
    court. With regard to the physical therapy
                                                            instruction with support services to
    provider, the court held that the parents had, in       permit the child to benefit
    fact, stated a cause of action. The court               educationally from that instruction,
    explained that once it undertook the contract to        which instruction and services must
    provide the child with services, the physical
    therapy provider had an obligation to provide           be provided at public expense, must
    those services with reasonable care. As to the          meet the state's educational
    school district, however, the court agreed with         standards, must approximate the
    the trial court's conclusion that the school
    district's failure to monitor the physical therapy
                                                            grade levels used in the state's
    provider was not actionable.                            regular education, and must comply
                                                            with the child's individualized
                                                            educational program.
         Norman v. Ogallala Public School.
Topic                                             However, the record contains
                                                   extensive evidence, including both
• Proper Instruction and                           testimony and photographs,
                                                   demonstrating the pain that
  Safety Issues                                    Christopher endured and the
                                                   permanent scarring resulting from
Ruling                                             the burns. In addition to the pain
•   Damages                                        Christopher endured, Christopher’s
     The trial courts award of $342,290.80 in      parents incurred medical bills in the
    damages. School District Appealed: The         amount of $44,614.54 as a direct
    school claims the damages are excessive        result of Christopher’s injuries. The
    because Christopher has completely
                                                   award of damages was not so
    recovered from his injuries, has no
    limitations on his range of motion or his      excessive as to be the result of
    activities, and it is unlikely that he will    passion, prejudice, mistake, or some
    incur future medical expenses.                 other means not apparent in the
Norman v. Ogallala Public School. Cont’d
Ruling                       Educational Significance
                             • Proper instruction and Safety
• Appeal from the District
                               must take precedence over
  Court for Keith County:      everything. The district must
  John P. Murphy, Judge.       insure that the students and
  Affirmed                     staff are properly educated
                               to any dangers of and
                               activity. All safety
                               precautions must be taken or
                               the activity should not take

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