The Clearing House, 83: 7375, 2010

Copyright
C Taylor & Francis Group, LLC

ISSN: 0009-8655 print
DOI: 10.1080/00098651003662148

Guest Editors Introduction

Teachers and the Law: Evolving
Legal Issues
DAVID L. STADER, THOMAS J. GRACA, and DAVID W. STEVENS

P erhaps one of the most common fallacies related

to education today is that the vast majority of de-
cisions that teachers, principals, superintendents, and
school boards face can be addressed with an exact or
xed legal response. It is true that legal principles pro-
vide guidance in the decision-making process. Ignoring
these legal principles is almost always a recipe for disas-
ter. However, the law is constantly evolving and chang-
ing as new state and federal statutes impacting education
are enacted, and as various federal and state courts in-
terpret these statutes or apply constitutional principles
to prior cases. Consequently, educators at all levels are
urged to stay abreast of the often rapidly evolving law
of educationhence, the title of this special issue of The
Clearing House: Teachers and the Law: Evolving Legal
Issues.
When teachers, administrators, parents, politicians,
and others speak of the law in reference to educa-
tion, they are, for all practical purposes, speaking of a
combination of ve types of law: federal and state con-
stitutional law, statutory law, regulations, school board
policy, and common (or case) law. Here, we provide a
brief description of these types of laws and examples
from this special edition.
Federal and State Constitutional Law
The Constitution of the United States was designed
primarily to protect citizens from excesses of govern-
ment. All laws passed by federal and state bodies, all
state constitutions, all regulations, and all school board
policies are subject to the provisions of the U.S. Consti-
tution. Areas of constitutional law that are most appli-
cable to school cases are the First Amendment (freedom
of religion, speech, and assembly) the Fourth Amend-
ment (reasonable search and seizure), and the Four-
teenth Amendment (equal protection and due process).
Nathan Essex and David Stader and colleagues explain
in this issue how the U. S. Supreme Court has applied
the Fourth Amendment to the search of a student for
contraband drugs in school. Christine Kiracofe illus-
trates how courts apply the First Amendment to teacher
religious expression in the public schools.
In the U.S. federalist system, the powers of govern-
ment are shared between a central government and
the various states and territories. The U.S. Constitution
does not mention education. Therefore, under the Tenth
Amendment to the Constitution (The powers not del-
egated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states
respectively, or to the people), each state is charged
with creating and maintaining a public education sys-
tem for the education of youth residing in that particu-
lar state. Consequently, state courts interpret and apply
state law to educational issues that are governed by the
state. For example, a state court will consider a school
nance lawsuit in the context of the wording of the state
constitution and the funding formula developed by the
state legislative body.
Statutory Law
Statutory law is conceived, debated, and enacted by
the U.S. Congress or by state legislative bodies, and
it is subject only to the limitations that have been
established by the federal Constitution or the state

David L. Stader, EdD, is a professor and chair of educational leadership and counseling
at Southeast Missouri State University, Cape Girardeau, MO. Thomas J. Graca, PhD,
is an associate dean and professor of social sciences and human services, Easteld
College, Dallas County Community College District, Mesquite, TX. David W. Stevens,
EdD, is an assistant professor of educational leadership and counseling, Southeast
Missouri State University, Cape Girardeau, MO.
73
74 The Clearing House
constitutions. Federal statutes must be consistent
with the U.S. Constitution, and state statutes must be
consistent with the state constitution, federal statutory
law, and the U.S. Constitution. Both federal and
state statutes impact education (e.g., Title IX and the
Individuals with Disabilities Act). South Carolinas Safe
School Climate Act, which is discussed in this issue, is
one example of a state law impacting K12 education.
Federal statutory law can be found in the United States
Code, which is available from a variety of Internet
sources such as Findlaw (http://www.ndlaw.com).
State statutory law can be found on each states Depart-
ment of Education Web site, and from state teacher and
administrator associations.
Regulations
Regulations are developed by various federal and state
agencies that are empowered to interpret, disseminate,
and enforce statutory law and state school board policy.
As long as the agency remains within the boundaries
of the statute or policy, its decisions have the force of
law. Two agencies that impact public schools are the
U.S. Department of Education and state departments of
education. For example, the federal Department of Edu-
cation is charged with the interpretation, dissemination,
and enforcement of the congressional intent that served
as the guiding force behind the No Child Left Behind
Act. Similarly, state departments of education, which are
overseen in most states by the chief state school ofcer,
are charged with the duty to interpret, disseminate, and
enforce state law and state school board policy. Infor-
mation on regulations is provided free of charge from
the state departments of education and the federal De-
partment of Education (http://www.ed.gov).
School Board Policy
Local boards of educationcalled boards of trustees
in some statesare designed to represent the beliefs
and values of the community, establish and maintain
a public school system, oversee the expenditure of pub-
lic funds, and serve in a direct supervisory capacity for
the local school district. Boards of education codify and
exercise their authority through a set of written policies.
As long as a written policy does not violate statutory,
regulatory, or constitutional law, then it is enforceable,
and teachers, students, and administrators must abide
by it. School board policies and district budgets are of-
ten found on school district Web sites.
Common (or Case) Law
Common law, or case law, develops from court de-
cisions that interpret a constitutional, statutory, or reg-
ulatory law or a school board policy and apply it to a
particular situation. The concept of common law has its
genesis in the English legal system, dating back to the
late Middle Ages. The concept of common law is based
83(3) 2010
on the premise that not all legal problems can or should
be covered by a statute. Consequently, in the English sys-
tem, judges are allowed to create solutions to problems.
Though fraught with ambiguities, common law is
especially important to school administrators. For
example, several federal courts around the nation are
currently applying the same logic to the issue of harass-
ment of gay and lesbian students and teachers that they
apply to the issue of heterosexual harassment. As Holly
Bishop and colleagues point out, these decisions are
beginning to motivate, or at least should motivate, ad-
ministrators and school boards to reexamine their poli-
cies and practices. Federal and state court decisions are
available from a variety of sources, including Findlaw
(http://www.ndlaw.com). U.S. Supreme Court deci-
sions are available from Findlaw and from the Supreme
Court Web site (http://www.supremecourtus.gov).
Overview of the Articles
The eight articles in this special issue illustrate how
the law of education, as applied to teachers, adminis-
trators, and school boards, has evolved over time as
new or unique situations arise. Placed rst in this spe-
cial edition, Tennessee to Texas: Tracing the Evolution
Controversy in Public Education, illustrates how the
First Amendment has been and continues to be applied
to the controversy surrounding the teaching of evo-
lution in secondary schools. Tony Armenta and Ken-
neth Lane trace the ongoing debate over the teaching
of creationism or intelligent design in science courses
that include Darwins theory of evolution as part of the
curriculum. This excellent article briey traces the his-
tory of the debate starting with the Scopes trial in 1925
and continuing to present day. Of particular interest to
secondary teachers and administrators should be Ar-
menta and Lanes description of how various state leg-
islatures and school boards have attempted to pass
laws and policies mandating the teaching of alterna-
tives along with the theory of evolution. As Armenta
and Lane point out, it has been the federal courts that
have served as the arbiters of this debate (XX).
Christine Kiracofe continues the discussion of
religion in public education in her article entitled
Can Teachers Really Wear That to School? Religious
Garb in Public Classrooms. This article provides a
clear and concise explanation of the conict between
the Establishment Clause (school districts may not
sponsor or endorse a particular religion) and the Free
Exercise Clause (school districts may not prohibit the
free exercise of religion) as they apply to teacher dress.
Problems arise when the enforcement of one clause
seemly violates the other clause. Kiracofe explains
the conict between school district policy regarding
religious dress and teacher rights in a legally sound,
well-researched, and readable article. The ongoing
debate surrounding religious expression in public
 Teachers and the Law
schools makes this article particularly interesting to
parents, teachers, and administrators.
Elizabeth Meyer (Teachers, Sexual Orientation, and
the Law in Canada) and Holly Bishop and colleagues
(A Case for Legal Protection for Sexual Minority Edu-
cators) discuss the challenges faced by sexual minority
teachers and administrators in both the United States
and Canada. These two articles trace the history of
discrimination faced by many sexual minority teach-
ers, administrators, and youth. These articles point
out that many school board policies do not protect
sexual minority teachers from discrimination in either
country. Sexual minority teachers and administrators
face further difculties when challenging school board
discriminatory decisions in court. More important,
the authors argue passionately for an educational
environment free of discrimination. As Bishop and
colleagues state: educational settings should be places
of learning that foster inclusion, and not places where
some are ostracized for being different.
Student-student bullying is relatively common
in schools. In 2005, about 28 percent of twelve-
to eighteen-year-old students reported having been
bullied at school in the past six months (Dinkes et al.
2006). These statistics, along with a recent focus on
bullying as a signicant factor in school violence, have
served as the catalyst for state legislative policymakers to
enact laws that specically address bullying in schools.
Troy Terrys article, Blocking the Bullies: Has South
Carolinas Safe School Climate Act Made Public Schools
Safer? addresses one states efforts. Terry examines the
degree of implementation of the law in school districts
in South Carolina and presents both qualitative and
quantitative data, as well as research on bullying, to
discuss whether state laws, school board policy, or
punitive practices are effective in reducing bullying in
schools. The fact that many states have recently passed
antibullying laws make this article a must read for
all secondary school teachers, administrators, and
parents.
Mark Mitchells article, Child Sexual Abuse: A
School Leadership Issue, addresses a little-discussed
but vital issue in our schools. Mitchell argues that any
sexual relationship between teachers and students is a
form of child abuse. Although little empirical research
exists about the extent of inappropriate student-teacher
sexual relationships, a perusal of newspaper reports
on the Internet indicates that a serious problem exists.
75
Surprisinglyor maybe notit seems that the problem
of inappropriate sexual relationships is becoming more
common between middle school male students and
their female teachers. Regardless of the extent of the
problem, child sexual abuse must be taken seriously by
teachers, administrators, and school boards. Mitchell
presents a prevention framework that could be adapted
to the needs of virtually every middle or high school
campus. The last two articles in this edition discuss the
implications of a recent U. S. Supreme Court decision re-
garding the search of thirteen-year old Savana Reddings
underwear for contraband drugs (Safford v. Redding
2009). The rst article, The U.S. Supreme Court Raises
the Bar for Strip Searches in Public Schools, by Nathan
Essex presents a brief overview of the case. Essex pro-
vides readers with a well-researched and legally sound
discussion of several strip-search decisions from various
courts around the nation that help put the decision in
context. David Stader and colleagues, in their article
entitled Drugs, Strip Searches, and Educator Liability:
Implications of Safford v. Redding, present a more de-
tailed discussion of the facts leading up to the decision
to search Savana and the courts reasoning in ruling
that the search of Savanas underwear was excessively
intrusive. In addition, Stader and colleagues provide an
important discussion of the tort of negligence and the
courts reasoning behind their decision that the school
administrator who initiated the search was not liable in
this case. Interestingly, Essex argues that the ruling cre-
ates new law to some extent, while Stader and colleagues
argue that the ruling does not create new law, but sim-
ply claries previous U. S. Supreme Court rulings.
Regardless of viewpoint, both articles provide excellent
recommendations to guide middle and high school
administrators in limiting potential liability when
making decisions about how far to go when searching
a student for contraband drugs on their person.
The purpose of this issue is to provide readers of
The Clearing House with a variety of evolving legal
issues that are interesting, thought provoking, and
informative. The articles in this special theme issue of
TCH accomplish this purpose.
REFERENCE
Dinkes, R., E. F. Cataldi, G. Kena, and K. Baum. 2006. Indi-
cators of school crime and safety: 2006. NCES Doc. No. 2007-
003/NCJ 214262. Washington, DC: U.S. Government Printing Of-
ce. http://www.nces.ed.gov (accessed December 5, 2006).
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