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School Law

ELS 657 This and School Finance will help you stay out of jail!

History of American Schooling Foundations


Rousseau public education is one of the fundamental rules of legitimate government Montesquieu the republican form of government requires education to instill a desire for freedom and equality, a preference for public over private interests, and an appreciation for (ex) knowledge.

History
Mass. Law of 1642 Required fathers and masters to see to childrens and servants (apprentices) education public humiliation Revised in 1647 apparently the law five years earlier had failed. Mass. required taxation for settlements of 50 or more for Ye Olde Deluder Satan

Geographic Variations
Distinctions existed between various regions in the colonies Cubberley (1934)
Good School Conditions Mixed Conditions Pauper/Parochial Schools No Action Group

Good School Conditions


New England (generally) valued education Maine, Vermont, New Hampshire, Mass., Conn., N.Y., Ohio

Mixed Conditions
Mixed settlements of people had conflicting ideas about the value and/or purpose of education
Indiana, Illinois

Pauper/Parochial Schools
Mostly middle colonies with traditional English ideas (elitist) about education somewhat necessary for all very necessary for the elite.
PA, NJ, DE, MD, VA, GA, SC, LA

No Action Group
Religious freedom and anti- government states that took no action or as little action as possible.
RI, KY, TN, NC, MS, AL

Organizing System of Education


The age of enlightenment had its impact on the colonies. By 1755, the religious basis was over. By 1770, free public education system similar to Germany was being considered seriously. John Adams and Thomas Jefferson (1768) write essentiality of education to society

1800 education reality check


Leading spokesperson Horace Mann Universal, common right of man Moral responsibility of predecessors Moral and social salvation from evil and poverty Knowledge is the most valuable property Free and public education system

How Do We Pay for This?


Early New England, assessments on parents Later New England, assessments on all Early Middle Colonies, tuition Later Middle Colonies, tuition and basic Early Southern, tuition Later Southern, tuition and very basic

What is the Legal Basis for This?


Anything not mentioned specifically in the Constitution became a state function. Education is a state function As such, the State Constitution controls funding for education

Virginia Constitution Article 1


That no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue; and by the recognition by all citizens that they have duties as well as rights, and that such rights cannot be enjoyed save in a society where law is respected and due process is observed. That free government rests, as does all progress, upon the broadest possible diffusion of knowledge, and that the Commonwealth should avail itself of the those talentsby assuring their fullest development by an effective system of education throughout the Commonwealth.

Sources of School Law


Constitutions Statutes Court or Case law Regulations

Conundrum
Studying school law is like witnessing a balancing act. On the one hand, the power of sovereignty rests in legislative control of schools. On the other hand, the courts define and restrain that sovereignty. Educators practice in a fluid middle ground of state control and individual freedom.

Constitutions
The legal framework of operations Fluid Rights and freedoms United States States and territories

Statute
Statutum it is decided Act of government expressing a law Follow furrows or break new ground Generally, public schools are governed by state statutes All 50 states constitutions require free public schools Rules and regs of schools have statutory effect

Case law
Judge-made law Courts interpret statutes Explain relationships and clear confusion between statutes, constitutions, and case law Courts say what the law is (Marbury v. Madison) Apply principles to practice

Marbury v. Madison
It is emphatically the province and duty of the judicial department to say what the law isIf two laws conflict with each other, the court must decide on the operation of each.

Stare Decisis
Let the decision stand Unless there are compelling, legal contradictions Precedent Blackstone said to keep the scale of justice even and steady, and not liable to waiver with every new judges opinion.

Who decides what?


U.S. Constitution limits the power of the judiciary to decide a judgment and carry it into effect for a decision The judicial branch settles conflicts involving cases or controversies The Supreme Court decides what is a case and a controversy

American Court System


See page 15 for state courts From the State Supreme Court, cases are heard at the Supreme Court of the United States not hypothetical situations U.S. Supreme Court will not issue advisory opinions State Supreme Courts may

Chapter 2
Historical Perspective of Public Schools

Review
True or False 1) One function of a state court is to resolve cases between citizens of different states. 2) A civil action is one initiated by the state for the purpose of obtaining compliance with the law. 3) The ruling from the highest court in one jurisdiction (4th circuit) takes precedence over a conflicting ruling from the fifth circuit.

True or False
4) Common law of the US is composed of

the entire body of law including the constitutions, statutes, cases, AGOs, and official rules and regulations. 5) Whenever a law is challenged in court, the court assumes that the law is unconstitutional, and the burden of proof is on the plaintiff.

True or False
6) The US Supreme Court is the highest court

in the land beyond which there is no appeal. 7) Common law precedents are established by courts. 8) Stare decisis means stop looking at me. 9) The first public school laws were not established in this land until 1790.

Some more history beyond last week!


Ye old deluder Satan 1642, 1647 As per Week 1, our system is based on the German model of education, not the English English education did not have common schools until 1870. Prior to that it was private (called public there) for the wealthy German education (in parts of the different countries in Germany) had compulsory education as early as 1565, then 1618, 1619, 1722, 1750.

1770s
Benjamin Rush advocated an education system that:
Had uniformity of access Method to pursue a course of study Organization from primary to secondary to university

Benjamin Rush (PA)


Universities will provide masters for colleges Colleges will provide masters for free schools Free school will provide scholars for colleges and universities Generate one great, equally enlightened family

Feelings, oh, oh, feelings


In the revolutionary setting of our new country, not only were political changes embraced Educational ones were embraced as well These were reflected in the State Constitutions with words likethorough efficient uniform effective

State Constitutions
Generally, from the mid-1970s courts have re-examined the issues of education in terms of art as expressed in the State Constitution The courts have held that when these terms of art are not met in practice, they may be invalidated the courts may order restructuring

Common Constitutional Elements


State legislature is responsible for enacting laws to govern schools Must be cohesive unit (system) Body politic, controlled by public, answerable to the people Free no charges to limit access Funded through tax redistribution

Problems
Efficient versus effective Cherish Uniform Equity issues

Virginia Leads the Way (in 1779)


That free government rests, as does all progress, upon the broadest possible diffusion of knowledge, and that the Commonwealth should avail itself of the those talentsby assuring their fullest development by an effective system of education throughout the Commonwealth.

Cases
McDuffy v. Mass. (1993) 16 young high school students in Mass. Plaintiffs argued that the Mass. funding formula denied them an adequate education in their community violating Mass Constitution Plaintiffs sued the governor, DOE, Commissioner of Ed., State Board of Ed., and the Revenue Dept.

McDuffy case
Plaintiffs factual claims were:
Inadequacy of education at their schools Insufficiency of funding for their schools Mass. inability to develop an adequate funding formula

McDuffy case
The term cherish was used in the 18th century to impart a meaning not used today. It would be nurture, nourish, or support now The court decided that the history of the founding of public schools in Mass was essential to the case. 1647 statute, cherish, and system were all cited by the court

McDuffy case
The court observed the involvement of John and Samuel Adams in the establishment of schools in Mass Court decided that cherish and system were not oratory, but obligatory. Mass has an obligation to provide a system Remanded to lower court to determine appropriate funding

Rose v. Council for Better Education, Inc. (Kentucky)


1989 decision date Summary question will a state legislature be allowed to organize, finance, and maintain a public school system with plenary (full, conclusive) authority ignoring specific constitutional mandates? Situation 66 poor districts charged that KY legislature had not provided for an efficient system of schools as mandated in Constitutuion

Rose case
Court held education is a fundamental right in KY Current system did not satisfy efficient system language of the Constitution School system was not uniform or adequate System of schools must be adequately funded to achieve its goals and must be substantially uniform (my emphasis)

Rose case
Court found overall inadequacy in comparison with national standards and standards in adjacent states Found a great disparity of opportunity throughout the state. Wide variance in per-pupil expenditure, curriculum, and services offered

Rose case
Defendants argued local boards had control Court maintained that the sole responsibility lay with the General Assembly for providing the system of schools Notice definition for efficient on p. 40-41 Following this, the General Assembly was directed to make substantial changes and restructure the finance distribution system

Judicial Approval of Common Schools


Some states did not like the idea of common schools for all students Pauper schools were fine for the poor Private schools were fine for the wealthy Commonwealth of PA wanted to maintain that system saying the Constitution provided for pauper schools not common

Commonwealth v. Hartman
1851 Pennsylvania case This case shows the difficult transition from pauper schools to common schools The General Assembly was willing to fund pauper schools but not common schools Court decided that basis is in interpretation of a state constitution

Commonwealth v. Hartman
At that time the state constitution provided that the legislature provide for schools in such a manner that the poor were taught gratis Plaintiffs argued that the constitutional language limited the legislature in what could be provided

Commonwealth v. Hartman
Courts said the legislature was in error the state constitution does not define a maximum of legislative power, instead it defines a minimum level. The rule of law is that a state legislature has jurisdiction over all subject on which its legislation is unlimited

Expansion of Free Public Schools


First American high school was established in Boston, 1821 Major expansion of this practice after the Kalamazoo case in 1872 (Supreme Ct.) This influenced other states in justifying the creation of high schools

Kalamazoo Case
S.Ct. 1872 No previous legislative or judicial authority had been granted to operate high schools in Michigan primary schools and academies Predominant college prep academy was Kalamazoo College

Kalamazoo Case
One Michigan superintendent started a union high school merger of districts to support a high school This took away students from the prestigious KC and local taxpayers and KC filed suit against localities operating high schools in Michigan at taxpayer expense

Kalamazoo Case
The lower court found in favor of KC and the local parents S.Ct. reversed the ruling opening all of Michigan for the high school movement KC went out of business

Tuition and Fees in Schools


Sometimes localities reject their responsibility to pay for education of OPC Schools have attempted to levy fees and tuition to offset rising costs Most courts have said no tuition or fees for tuition Some rulings have allowed incidental fees Most have not allowed fees

Cardiff v. Bismark
North Dakota, 1978 S. Ct. ruled that textbook fees violate the constitution Case brought by elementary school parents challenging authority of school district to charge textbook rental fees to children Court said free means free not just tuition, but texts

Cardiff v. Bismark
State said this was a local school board issue Court said the state can not abrogate its authority to maintain a system of schools that violates the consitution This case took until 1991 to be implemented in Virginia Tried in West Virginia in 1995 (Randolph County v. Adams) with same result

Hartzell v. Connell
California S. Ct, 1984 found that the state provision for free public schools prohibited collection of fees for curricular or extra curricular activities Escalating costs required examination of options for funding Collected fees of $25 per extra curricular activity

Hartzell v. Connell
Parents sued Lower court found for the school district S.Ct reversed the finding and said that education was not a commodity for sale No fees allowed for extra curricular activities

Charter Schools
Very popular in state legislatures in 1990s By 2000, about 2/3 of all states had provisions for charter schools Originally defined by US Supreme Ct in 1819 Dartmouth College and Pierce v. Society of Friends 1925 Allow some public funds to flow to private schools

Charter Schools
Lately used to obtain vouchers for private schools Redefined by Clinton as public schools chartered by parents or interests States may determine what is a charter school

Parochiaid v. Governor
1997 Michigan S. Ct ruling saying that in Michigan the definition of public schools includes charter schools and that does not constitute parochiaid (parochial aid) to religious schools Michigan never defined a public school and had arbitrary treatment of charter applications Approved under a system of education

Chapter 3
The Role of the Federal Government

Review Questions
Benjamin Rush proposed a comprehensive system of education in the 1880s. Benjamin Franklin wrote the Virginia Constitution. The McDuffy case was finance reform in Mass. The Kentucky finance reform involved the Rose case

Review Questions
The first American high school was started in what city, when? The Kalamazoo case enabled high schools to start in Michigan. Most fees are acceptable in public schools.

Land Ordinances
1785, 1787 Continental Congress established this Common estate in the new nation for education 16th section set aside for education Township 36 square miles one square mile for education

Land Ordinance
Required state legislature and constitution to oversee the land and the education program In Westward expansion, Land Ordinance required an address of education in the new state constitution Could rearrange the 640 acres within the framework

Reserved State Powers


State assumed to have power in education matters unless national issue is at stake Education has its power through accepting monies and indirect influence and support General Welfare provisions less obvious today

Indirect Federal Aid


First Morrill Act, 1862 gave land to states for land grant colleges. Could sell land for that purpose Second Morrill Act, 1890 expanded this authority Hatch Act, 1887 and Adams Act, 1906, expanded with categorical grants

Indirect Federal Aid


Smith-Lever Act, 1914 set up extension services homemaking and agriculture Smith-Hughes, 1917 vocational funds at high school level NDEA, 1958 reaction to Sputnik math, science, computer, and foreign language Higher Education Facilities Act, 1963 college buildings

Indirect Federal Aid


ESEA, 1965 reading and math or disadvantaged students Education Consolidation and Improvement Act, 1982 made block grants of ESEA
Chapter 1 disadvantaged economically and academically 90% of program basic and concentration grants Chapter 2 Eisenhower funds and 29 other areas

Indirect Federal Aid


All Handicapped Children Act, 1975 We will get into these aspects later as we deal with special education law issues

Limits of Federal Authority


Article 1, section 8 gives Congress power to levy taxes and spend monies to provide for the common defense and the general welfare of the United States James Madison was against spending Alexander Hamilton was pro Supreme Court ruled with Hamiltion Affirmed in 1936 with Ag. Adjustment Act

Limits of Federal Authority


Helvering v. Davis. US Supreme Court ended a hotly-debated topic Social Security Court ruled yes, Congress can tax and spend for the general welfare

Cases
U.S. v. Lopez, 1995 Federal gun-free school zone legislation of 1990 US Supreme Ct. found that this can not be tied to the Commerce legislation It is still OK to ban guns on school property or within certain distance.

Cases
Shepheard v. Godwin Virginia case, 1968 Impact aid issue State can not reduce services to federal areas exempt from taxation

Wheeler v. Barrera, 1974


U.S. Supreme Court Involved Title 1 funds and parochial schools Kansas City, MO parents wanted Title 1 services in their private, parochial school S.C. said that if the State Constitution does not permit an action (and that action is not illegal) the State is not obligated to provide services.

Bell v. New Jersey and PA, 1983


U.S. Supreme Court Involved Title 1 monies in two states Both states misapplied funding Department of Education wanted money back Argued feds can not recover spent funds USSCt disagreed almost $1.1 (NJ) and $450K (PA) plus interest

Chapter 4
Governance of Public Schools

Governance Overview
State function State does not have plenary power SEA and LEA must haves Quasi-judicial functions School Officers Elections Meetings

State Function
General Assembly education is the most important aspect of public government SEA State unit LEA is base or local unit SEA, LEA, and schools are a legislative unit and a body politic immunity Impartiality and fairness doctrine

Cases
Hortonville v, Hortonville Education Association, 1976 U. S. Supreme Court Can school boards with vested interests sit in their own judgment? Dismissals, contract negotiations, employment. In strike situation, teachers facing dismissal felt a neutral party was needed The U.S. Supreme Court did NOT agree

Points to Consider
Did the school board have a personal or financial stake in the actions? Was animosity or bias documented? Did state statute authorize action? Familiarity, decision-maker status, negotiator status issues?

Freemont School District v. Jacobs, 1987


Colorado Bus driver fired by supervisor Driver said the School Board could not delegate that authority Courts disagreed as long as standards existed

Points to Consider
Is it legal (or right) to delegate this authority beyond the superintendent? Appeal process? Do Constitutional protections apply?

State ex rel. Clark v. Haworth


1890, Supreme Court of Indiana Can the State prescribe books for localities? Yes, education is a state function, not a local one

Points to Consider
Ex rel means ex relatione or upon relation or information. Instituted by the attorney general or the district attorney on behalf of the state. School boards derive all their power from the legislature state function. Can uniform be uniform without the power lodged somewhere to make it so?

McGilvra v. Seattle, 1921


Washington case Can School Board use public funds to operate a clinic where this is not addressed by GA, Statute, or policy? Earlier cases authorized establishing and funding playgrounds. No

Points to Consider
See p. 106 for earlier case for limits in Washington Why is a clinic different from a playground? Indispensable, not just convenient. Why different in other states and times?

Board of Education of Boone Co. v. Bushee, 1994


SC of KY Can the State Board empower schools so that site-based decision making can bypass the local board? YES

Points to Consider
KERA, 1989 Language of KERA with the responsibilities divided among the state, local board, and the school building council Councils are responsible for: determining curriculum, instructional practices, discipline, staff, texts, and instructional materials

Clark v. Jefferson Co., 1982


Can a county operate a day care center in direct competition with other businesses? Remember McGilvra? 61 years later. YES

Points to Consider
The services are voluntary and provided on a fee basis There are no statutes prohibiting such action Discretionary authority exists with the Board of Education

Smith v. Dorsey, 1988


Nepotism laws exist in most states Here the case involved a School Board member and contracting for teaching with a spouse NOT ALLOWED!! CHECK YOUR STATE! Followed in Augusta County, VA 1988

Points to Consider
Williams had taught from 69-75 In 1988 applied to teach again Could not (Board said) as sister-in-law of the Chair Exemption if regularly employed LISTEN TO THIS!

School Elections
All states now provide for school board elections Virginia the last state to do so Election law is complicated Equality of voting power is the controlling factor

School Board Meetings


Procedures Executive sessions Voting Minutes and records Quorum Notice of meetings Bylaws

Chapter 5
Church and State

Review Questions
The police power of the state refers to the fact that each state has not only the duty, but the responsibility to provide for the health, safety, and general welfare of its people. Common law specifies that all school board meetings must be open to the public regardless of whether or not the state has sunshine laws in effect. Local school boards are part of a state agency.

Review Questions
State constitutions in every state make provisions for public schools. Nepotism is prohibited by the constitution as applied to contracts where spouses or immediate family are involved. The Hortonville case determined that a board may sit in judgment of a case to which it is a party.

Review Questions
Local school boards and other public agencies are classified as having three functions fill in. Executive, quasi-judicial, and quasilegislative

Church and State


This year the US Supreme Court decided the Cleveland case Church and state issues have been most volatile over history Jeffersons idea of a wall of separation that sounded so simple and so good at the time has become a quagmire today

History
Founding fathers came here to escape religious persecution and subsequently, persecuted others (go figure) This idea of government not being involved in the church was so important that it came (later) to be a part of the Federal case law Reynolds v. United States, 1879 USSCt. The original idea was not to mention religion in the new Constitution

History
Pinckney (SC) convinced the Constitutional Convention to include a provision not to have a religious test for public office the last clause. As the new states either ratified, refused to ratify, or proposed amendments, the first amendment became pivotal to the Constitution.

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 rights of the people peaceably to assemble and to petition the Government for a redress of grievances.

Founding Ideas
Jefferson and Madison writing back and forth Jefferson writing to the Danbury Baptists in 1802 used the phrase

building a wall of separation between church and State.


Generally held concept

First US Supreme Court Case on Religion and State


Reynolds v. United States, 1879 used Jeffersons terms wall of separation From that time this became the rule of law It would be tested repeatedly for the next 122 years Public and parochial schools were widespread and diverse in the early US

Cases
Everson v. Board of Education, 1947 US Supreme Court New Jersey had a provision in its laws allowing for parents to be reimbursed for bus fare if they attended parochial school Mr. Everson, a taxpayer, did not like this idea and saw it as public funding of religious schools violating the establishment clause Such reimbursements do not violate establishment

Board of Ed. of Central School District No. 1 v. Allen, 1968


US Supreme Court ruling coming out of NY NY State law required school districts to loan textbooks to students in grades 7-12 who attended private schools (including religious) School Board felt this violated the establishment clause and sued James Allen a resident who was using the texts

Allen
US Supreme Court found that the NY law does not violate the First or 14th (equal protection) amendments. The State Constitution was framed this way it applies only where such legislation is passed.

But
This started to pose some difficult questions to the courts. Where is the line drawn? Books, busing, tuition? States needed some direction and they found it from the Supreme Court in Lemon v. Kurtzman, 1971

Lemon v. Kurtzman
PA and RI both provided salary supplements (15%) and purchase of services to private, religious schools Parties sued over the establishment clause and the 14th amendment The case established a three-pronged test to determine if a state statute is constitutional

Lemon v. Kurtzman
RI and PA established the new statutes in reaction to the vagueness of the Allen case discussed earlier The court found to be constitutional: 1) the statute must have a secular purpose 2) its principal purpose must neither advance nor inhibit religion 3) must not foster excessive government entanglement with religion

Right Away States Made Changes, but to get around law


Levitt, 1973 court ruled that services purchased (grading, compiling reports, administration, etc.) while not audited, aided religion No can do State legislature changed the wording to actual cost of services and in Regan (1980) the SC found it was OK

Nyquist, 1973
State wanted to give monies to nonpublic schools for facility maintenance, tuition reimbursement, and tax credits SC found this advanced religion and had excessive entanglement with government

Tax Credits/Deductions
1972, Ohio. Parental reimbursement grant found unconstitutional 1979, New Jersey. SC found tax benefits to non-public school parents unconstitutional Mueller v. Allen, Minnesota, 1983. Provided for tax relief for parents of public and nonpublic school parents. SC affirmed the state statute as a benefit to all parents

Tax Credits/Deductions
Grand Rapids v. Ball, 1985 Offered benefits to parochial schools via shared time, resources, and education programs Courts found this fostered religion

Tax Credits/Deductions
Aguilar v. Felton, 1985 Title 1 funds used to provide services for qualified students in the parochial school building Found to be excessive entanglement

Establishment
Kiryas Joel Village v. Grumet, 1994 Strict Jewish sect in a NYC community was the predominant culture for a school. The School Board carved out a special district just for this religious group and it became its own independent, free district to chose texts, etc.

Establishment
Grumet, a taxpayer sued saying this action violated the establishment clause and provided tax support for parochial schools This had been signed into legislation overwhelmingly by the state legislature and endorsed by the Governor SC ruled that this state statute violated establishment clause

Establishment
Remember Aguilar v. Felton, 1985? Using Title 1 funds to provide services within parochial schools? Agostini v. Felton, 1997 changed all that. Justice OConnor stated that Aguilar is no longer good law Payment of Title 1 teachers in parochial schools is permissible, however, the LEA must retain all materials, control, must be secular.

Establishment
Mitchell v. Helms, Louisiana, 2000. Chapter 2 funds used to service students in parochial schools Chapter 2 allows for loaning texts and materials to private schools. Does that preclude parochial schools? SC ruled this does not violate establishment clause in light of Agostini v. Felton

Establishment
Remember All these decisions are based on state constitutions and the law of the state versus the law of the land If a state has strict language in its constitution regarding antiestablishment, it will be unlikely that establishment will be allowed.

Dickman v. School District No. 62 C, 1961


Equity suit issued by parents not wanting public school funds used to supply texts to parochial school students Supreme Court of Oregon interpreting its constitution Giving texts can not be justified on child benefit theory

McCollum, US Supreme Ct, 1948


Two issues brought here Release time for religious education Release time using school facilities violates establishment

Zorach v. Clauson
US Supreme Court, 1952 Similar case to McCollum except Release time was off school premises Release time not using school facilities does not violate establishment

Abington Township v. Schempp Murray v. Curlett


US Supreme Court, 1963 States had mandatory Bible reading and prayer in school Madeline Murray Court ruled state-enforced prayer and Bible reading were unconstitutional

Wallace v. Jaffree
US Supreme Court, 1985 Alabama case involved a minute of meditation or silent prayer at school each morning Teachers were to lead willing students in a prescribed prayer to Almighty God, Sustainer, the Creator, and Supreme Judge of the world. Violates the establishment clause

Lee v. Weisman
US Supreme Court case, 1992 Rhode Island case where non-sectarian prayers were offered by clergy at graduation Not a first amendment issue Establishment issue As such, this practice is unconstitutional

Santa Fe ISD v. Doe


US Supreme Court, 2000 New Mexico case First regulation required prayer before football games When challenged, changed to studentled, student-initiated prayer Ruled that this violated the establishment clause

Equal Access Act


Congress passed the EAA in 1984 based on a case where the University of Missouri denied a religious group the use of school facilities based on establishment clause In 1990, the US Supreme Court upheld this act in a Nebraska case, Westside Community Schools v. Mergens

Mergens
Bridget Mergens asked the principal of her high school to start a Christian club (1985) He denied this based on the establishment clause Mergens appealed the decision based on the federal EEA Ruled that if student groups exist, all students can have a club even if religious, political, or philosophical

Follow-up to Mergens
HSU v. Roslyn Union Free School District, 1996 Christian club established Could only born-again Christians be the officers? School denied charter for the club based on exclusivity of officer selection Court ruled officers essential to meaning of club and to deny charter would violate EAA

Lambs Chapel v. Center Moriches Union FSD, 1993


Supreme Court case involving NY school district policy regarding use of school facilities Policy stated welfare of the community, nonexclusive, and open to the general public. It did not permit religious meetings Case involved a church showing a film on child rearing by James Dobson In not permitting religious meetings, were their first amendment rights violated? SC ruled 1st amendment rights violated

West Virginia v. Barnette


West Virginia case to Supreme Court, 1943 What were we in the middle of in 1943? Failure to salute the flag was deemed an act of insubordination and would be dealt with accordingly seemed OK in light of Gobitis decision (PA case salute was political responsibility even if religious conviction) Students in question were Jehovahs Witnesses. Saluting was contrary to their beliefs.

West Virginia v. Barnette


Court overturned the Gobitis decision and stated there were distinct differences Court ruled that requiring a flag salute violates 1st amendment rights See last paragraph, first column, page 226

Trends
Jeffersons wall of separation is deteriorating Judge Scalia called for the overturn of Lemon test We will have to see what the Supreme Court has to say about Clevelands situation

Chapter 6
School Attendance

Review
The Establishment Clause and the Free Exercise Clause in the U.S. Constitution are found in the Tenth Amendment. A teacher may hold prayer in the classroom each morning if the prayer is not state promulgated. Students are not required to salute the flag if it is contrary to their religious beliefs.

Review
Loans of textbooks to parochial schools does not violate the Establishment Clause of the First Amendment. Public funds for transportation of parochial school students does not violate the Federal Constitution. The three-pronged test for determining the Constitutionality of state aid to parochial schools was identified in what Supreme Court case?

Review
The Bible can be used in public schools for its literary and historic qualities. Student-initiated prayer at graduation and football games is Constitutional. Religious instruction on public school grounds is constitutional if those who object do not have to attend.

School Attendance
What gives the State the right to require under penalty of law to mandate all children attend school? What gives the State the authority to put me in jail if I keep my children out of school?

STATE PREROGATIVE

STATE PREROGATIVE
Exclusive or official right to do something The State has the right and duty to make certain its people are educated if only for their own protection. We hospitalize individuals for their own protection. Restrain, medicate, institutionalize, etc.

STATE PREROGATIVE
Elevation of society Protection of democratic republic Protect liberty
Required education is justified on the grounds of individual and societal interest.

STATE PREROGATIVE
Required in each State Constitution that minimum levels be established That does not prohibit going above the minimum level While the State can require education, it can not arbitrarily omit persons from education

Restrictions
Purpose-related exclusions Residency (place of abode with no present intention of leaving) Most now domicile Not citizenship or alien status

Cases
Plyler v. Doe (1982) U.S. Supreme Court Interesting case. In 1975 Texas was spending in excess of $50 million in educating illegal aliens. The Texas legislature passed a law stating that localities should withhold educational services to illegal aliens. After all, illegal entry into the US is a crime

Plyler v. Doe
Texas is spending money to educate illegal aliens (Martians?) It did not seem a wise investment of taxpayer dollars. ACLU and Legal Aid sued under the 14th amendment which says: No State shall deprive any person of life, liberty or property, without due process of law; nor deny to any person under its jurisdiction the equal protection of the laws.

Plyler v. Doe
Texas said these aliens were not under their jurisdiction ACLU and Legal Aid said yes, they were and denying them an education was not equal protection under the law. What did the Supreme Court say? Guess! Court said We agree with ACLU

Martinez v. Bynum
Involved residency requirement US Supreme Court, 1983 Basically, two Mexican citizens had a son born in Texas which made the boy an American citizen Parents lived in Mexico Sent son to Texas to live with sister and attend school

Martinez v. Bynum
The sister did not want to become guardian They all wanted the boy to attend school in Texas Texas law said parent, guardian, or one having legal control. Court said residency requirements were legal and the boy was not a resident

Compulsory Attendance
First in 1853, Mass. and 1854 in NY In schooling and other areas, the State has control over issues above the parents Child labor was a factor Alabama had child labor law on books in 1887. It was repealed in 1895 when a Massachusetts company demanded its removal conditional to moving there.

Milton Friedman
Nobel laureate economist

Free to Choose
Wanted to overturn compulsory attendance laws Why learn if you do not want to or need to? It is a general welfare issue as such, legal.

Pierce v. Society of Sisters, 1925


US Supreme Court case Oregon was to enact a law requiring all parents to send their child to public schools Exceptions noted An orphan home, run by the Society of Sisters, operated a school within the home for years with good success and money.

Pierce v. Society of Sisters, 1925


Society sued the State saying compulsory education laws were already on the books They complied This would force the children elsewhere and close the orphanage State court ruled in favor of the State law Supreme Court disagreed

State of Wisconsin v. Yoder


US Supreme Court case, 1972 Parents were Old Order Amish Wisconsin had compulsory attendance to age 16 After a thorough investigation of the churchs beliefs, history, and values the Supreme Court sided with the parents in not requiring more than grade 8 attendance in public school

Johnson v. Charles City


Supreme Court of Iowa, 1985 US Supreme Court chose not to hear the case A Fundamental Independent Baptist Church operated a school Calvary Baptist Christian Academy The school and church 1) did not want to comply with the State oversight, and

Johnson v. Charles City


2) wanted relief under the Yoder case so as to attend only through grade 8. The court ruled that the State has a prevailing (albeit minimal) interest in oversight and that can not be relinquished. As to Yoder, the court did not find a compelling history, value, and belief system present.

Home Instruction (Schooling)


Growing area of interest state issue Estimated that 3-5% of parents now home school their children although that number may be high Change in demographics States can regulate home instruction as a private school, but burden of proof is on the school to show inadequacies

Swanson v. Guthrie, 1998


US Court of Appeals, 10th Circuit Not heard by SC on appeal Annie Swansons parents home schooled her for religious reasons. As she got older (7th grade) the Guthrie Public Schools could teach some things better than the parents could

Swanson v. Guthrie, 1998


Annie was allowed to attend Next year (and new Superintendent) School Board denied the request and adopted a policy of full-time students only Could set a dangerous precedent Sports, state funding, testing, etc. Parents sued

Swanson v. Guthrie, 1998


Parental rights issue Definitive case Parents wanted the right to direct their childs education They felt they knew best and the school system should not have the final say Court agreed with the school system

Murphy v. State of Arkansas


1988 US Court of Appeals case from the 8th Circuit The Murphy family are devout Christians who believe it is the parents responsibility to provide for the educational needs of the children They home schooled their six children

Murphy v. State of Arkansas


Arkansas has a provision for home schooling that requires standardized testing and at age 14, a minimum performance test. If the standardized testing or the MPT do not place the student within eight months of grade level, the student must be enrolled in a public, private, or parochial school. No such provision exists for the non-public schools

Murphy v. State of Arkansas


The Murphys claim that their right to free exercise of religion, due process, and equal protection were violated in this case Courts ruled with Arkansas Curriculum and testing are not heavily restricted Compelling State interest in general welfare takes precedence

Maack v. Lincoln SD
1992 Supreme Court of Nebraska case Children attended school without immunization for measles Measles outbreak and the Maack children (along with 79 others) were excluded from school until the outbreak was over or until immunized

Maack v. Lincoln SD
Maacks stated they would not immunize their children and further the law did not allow exclusion from school Claimed unequal protection under law Court ruled that State had priority in the general welfare of Maack children and others. Supreme Court refused to hear the case

Chapter 7
The Instructional Program

Instructional Programs
Schools are a marketplace of ideas BUT The State has ultimate authority in prescribing curriculum and method of delivery Two overarching tenants: Robust exchange of ideas, and Judges are not experts in education

Andrews v. Webber
1886, Supreme Court of Indiana case The local school system required the study of music Father requested his son be excused Request denied by Superintendent Son refused to participate and was suspended

Andrews v. Webber
Parent appealed and lower court reversed the decision School appealed and the decision was overturned Schools have the right to set curriculum Parent had to pay court costs

Meyer v. Nebraska
1923 US Supreme Court case A Nebraska statute forbade the instruction of foreign language until grade 8 and English was the only language to use A parochial school teacher taught a bright ten-year-old boy German

Meyer v. Nebraska
The law was established so immigrants would speak English and be acculturated into American society Court ruled that this violated the 14th amendment (due process) as it deprived the student of the property of acquired knowledge Court ruled that language is learned early and as this and 14th , reversed the Nebraska law

Steirer v. Bethlehem
US Court of Appeals, 3rd Circuit, 1993 US Supreme Court refused to hear School district required 60 hours of community service for graduation Parents and student claimed this violated 1st, 14th, and 13th amendment (abolishing slavery) Court said rights not violated

Pico
US Supreme Court case, 1982

A biggie on 1st Amendment


New York case involving objectionable books in the libraries of the Junior and Senior High Schools Books were removed and screened by a committee

Pico
When this hit the press, the school board stated the books were anti-American, antiSemitic, and filthy Court ruled that the library is a repository of ideas and that 1st amendment ideas should flourish here Nothing is changed in the way books are added just removed Court ruled School Boards can not remove books just because they dislike ideas in them

Post-Pico Virgil v. Columbia


US Court of Appeals, 11th Circuit, 1989 Parents objected to a Humanities class where Chaucer and Aristophanes were part of the required reading School Board removed the objectionable material Other parents filed an injunction against removing the material

Virgil v. Columbia
Court ruled that per Hazelwood, the curriculum had the imprimatur of the school a de facto endorsement of the content Court ruled that Board could alter the curriculum and not be in violation of Pico Supreme Court declined to hear

Mozert v. Hawkins County, TN


US Court of Appeals, 6th Circuit, 1987 County adopted Holt, Rinehart and Winston reading series in grades 1-8. Mother objected to content in reading series as anti-Christian Principal designed an alternative series Next year the Board eliminated alternative reading series

Mozert v. Hawkins County


Parents sued Court found that participation beyond reading was not evidenced Tolerance of divergent religious views by Supreme Court is civil, not religious. This reading program did not require belief, just reading Reading program stayed

Brown v. Woodland
US Court of Appeals, 9th Circuit, 1994 Whole language approach used in this California district More than 10,000 titles in grades one through six 32 were challenged as occult-oriented and endorsed the religion of Wicca

Brown v. Woodland
Court ruled that 32 of 10,000 is minor This does not violate the Establishment clause Other religions mentioned Christianity included Court ruled with school system

Cornwell v. State Board of Ed.


US District Court, 4th Circuit not heard by US Supreme Court State Board can prescribe a sex education program for all school divisions in the State Sex ed does not establish religious dogma or precept

Keefe v. Geanakos
1st US Circuit Court of Appeals, 1969 Senior Honors English class had a copy of Atlantic magazine with the word bastard included in the text reading School Board called teacher in and asked that this not be used again He declined, was suspended, and recommended for dismissal

Keefe v. Geanakos
Convoluted case Teacher could sue for damages Court ruled that in context there is limited academic freedom Dirty word can be used if it is used for a demonstrated educational purpose

Fowler v. Bd. of Ed.


US Court of Appeals, 6th Circuit, 1987 Teacher showed an R rated film (Pink Floyd The Wall) on the last day of school to her students age 14-17 A student was to block out nudity Parents objected Teacher was terminated

Fowler v. Bd. of Ed.


Lower court ruled teacher behavior was protected under 1st Amendment Higher Court disagreed No job No back pay

Epperson v. Arkansas
US Supreme Court, 1968 Arkansas enacted legislation making it a crime to teach evolution Statute violated 1st Amendment

Edwards v. Aguillard
US Supreme Court, 1987 Louisiana statute required teaching creation science with teaching of evolution in a balanced manner If one is taught or mentioned, the other must be treated equally Violates Lemon and Establishment

Lau v. Nichols
US Supreme Court case, 1974 San Francisco did not provide instruction for non-English speaking students (Chinese) Violated CRA of 1964 Either teach ESL or hire a translator for most children ESL was chosen

Basically
Courts allow great latitude to school boards in curriculum unless rights are deprived Courts are very hesitant to become experts in education Use common sense Even though common sense is not all that common!

Chapter 8
Student Rights

Student Rights - Overview


As a general rule there is a lack of certainty with regard to student rights and the courts Common law establishes authority of schools under the general welfare As such, schools must have wide latitude of authority for controlling the learning atmosphere and behavior

Common Law
This authority must be tempered with and inherent concern for constitutional rights of students and a reasonableness and humaneness of action 1878 Case (Burpee v. Burton) stated how we operate in loco parentis HOWEVER not fully in the place

Due Process
14th amendment guarantee Substantive Procedural Both are critical in the court rulings on common law authority of schools to act in the place of parents These ideas are generally inviolate

Substantive Due Process


This idea was debated by the framers of the Constitution Generally held that if life, liberty, or property is taken this can not be done in violation of constitutional rights of the individual In other words, if the Constitution gives the right of assembly, assembly can not be denied a group based on whether or not someone agrees with the ideals of the group

Substantive Due Process


In schools, this becomes more complex Students give up some rights when they enter the school house Here reasonableness is a key issue A balance must be struck between control and the general welfare and the rights of the individuals in school

Procedural Due Process


Same base as substantive Goes back to the Magna Carta Two basic tenets in procedural:
Rule against bias Right to a hearing

Substantive Due Process


Originally designed for courts In 1961 (Dixon) applied to schools or quasi-judicial procedings Provides for fundamental fairness and opportunity for each side to present its case Many court cases revolve around this issue

Wiemerslage v. Maine
U.S. 7th Circuit Court of Appeals, 1994 Area was posted as no loitering Students were loitering discussing afternoon plans and names taken by security officer Suspended for 3 days Plaintiff appealed and sued claiming loitering was unconstitutionally vague

Wiemerslage v. Maine
Claimed violation of 1st and 14th amendment substantive due process violated Court disagreed Court of appeals disagreed Policy was designed for public and student protection

Dunn v. Fairfield
U.S. Court of Appeals, 7th Circuit, 1998 School rules did not allow for guitar solos at band concerts and did not allow students to deviate from the performance schedule Four students (seniors) did just that Resulted in an F for students and they did not graduate with honors

Dunn v. Fairfield
Plaintiffs claimed this violated substantive due process 1st amendment free speech Both courts disagreed Court of Appeals questioned the reasonableness of the rules, but conceded it was under the purview of the school

Goss v. Lopez
U.S. Supreme Court, 1975 Nine students were suspended from Columbus schools for misbehavior State code allowed suspension of up to 10 days or expulsion If expulsion, students could appeal No appeal or hearing for suspension

Goss v. Lopez
Court ruled that there was a constitutional right to an education That right could not be taken away without due process The right to procedural due process was inherently involved when fundamental rights are removed

McClain v. Lafayette County


U.S. Court of Appeals, 5th Circuit, 1982 PE teacher saw a switchblade knife on a student and reported him to the office Principal took the knife, sent him to class, and required parent conference next day Informed parent that the boy was suspended indefinitely Board appeal

McClain v. Lafayette County


Parent attended the (9) Board meeting and told her side, questioned witnesses, and was told the boy was suspended for the rest of the year Parent sued for relief and denied Appealed on denial of procedural due process Indefinite suspension prior to hearing

McClain v. Lafayette County


Parents lawyer quoted Goss v. Lopez Contended that long-term suspension required a hearing What did the court decide?
Michael was given an opportunity to tell his side and confront witnesses due process is a flexible concept

Sexual Harassment
Franklin v. Gwinnett County U.S. Supreme Court, 1992 Unbelievable! Long and short is that damages can be awarded to students for violation of Title IX

Gerber v. Lago Vista


U.S. Supreme Court, 1998 Another unbelievable one! Started in 8th grade Parents sued under Gwinnett and asked for damages from the school district No one from the building or district level knew principal acted appropriately based on his knowledge Damages could be collected from teacher

Davis v. Monroe County


U.S. Supreme Court, 1999 Student-on-student sexual harassment Continued over five months with little assistance from teacher or principal Multiple complaints and student finally was charged with sexual battery (5th grade!)

Davis v. Monroe County


Parents sued under Gwinnett and Gebser Lower court found not similar and dismissed damages and guilt from school What did the SC say? Board may be liable if acting in Deliberate Indifference

Child Abuse
Arkansas Department of Human Services v. Caldwell, Arkansas Court of Appeals, 1992 1988 an AP paddled three 5th grade students caught smoking Parent complained to SS and the caseworker substantiated abuse by AP

Child Abuse, cont


Appealed and confirmed Appealed again and under Code (School Discipline Act) found legal consent for paddling Reasonable paddling does not constitute child abuse WHEN THE CODE ALLOWS FOR THIS PRACTICE!

Freedom of Student Speech and Expression


Disruption Tinker Appearance Hair length School Uniforms

Tinker v. DesMoines
U.S. Supreme Court, 1969 Parents and students decided to protest Vietnam war by wearing black arm bands and fasting on two days Administrators heard about this Subsequently adopted a plan to ban armbands

Tinker v. Des Moines


Is this free speech or a substantial disruption to the educational process? The court ruled that a reasonable person could not have forecast substantial disruption to school activities Reversed and remanded to lower court

Bethel v. Fraser
U.S. Supreme Court, 1986 Bethel High School student running for office delivered a non-approved speech which contained lewd language Advised a priori that what he intended was inappropriate Called in next day to explain and informed that he would not be a candidate for graduation speaker and suspended 3 days

Bethel v. Fraser
Appealed to school board and denied lewd speech Sued in court as a violation of 1st amendment free speech rights District and appellate courts agreed What did the SC find? Lewd student speech is not protected

Student Publications
1st amendment rights and student publications Hazelwood v. Kuhlmeier, Supreme Court, 1988 Student newspaper issue Journalism class for credit One article featured student pregnancy

Hazelwood v. Kuhlmeier
Principal reviewed per custom Found article inappropriate Censored the article Students (parents) sued under 1st amendment What did the court rule? School may regulate content of articles

Internet?
Beussink v. Woodland, U.S. District Court, Missouri, 1998 Student created a homepage on his own computer, own time, and software found on the Internet which was highly critical of the administration of the high school He wanted to voice his own opinion

Beussink v. Woodland
A previous friend accessed the site in class Teacher saw homepage and was upset Students in other classes saw page Principal suspended student for 5 days More students viewed and suspended for 5-10 days

Beussink v. Woodland
Clean it up or clear it out ultimatum Removed website and returned after 10 days School policy on unexcused absences was 1 day = 1 letter grade drop 10 days = failure What to do? Court ruled 1st amendment not shed at door of school Homepage may be Constitutionally protected

Search and Seizure


Most famous case is TLO U.S. Supreme Court, 1985 2 girls smoking in BR, searched, and found cigarettes, rolling papers, and MJ in TLOs purse Also found in TLOs purse letters and ledgers detailing $ owed for MJ

TLO
Called mom and turned evidence over to the local police At police HQ, TLO admitted to selling MJ at high school Lower court and NJ SC agreed that 4th amendment rights had been violated SC disagreed and reversed decision because search was reasonable and not excessively intrusive

Drug Testing
Veronia v, Acton, Supreme Court, 1995 School random tested athletes for drug use based on danger and prominence of athletes in the community Random testing is Constitutional

Cornfield v. Consolidated HS
Student was suspected of crotching drugs Strip search revealed no evidence of drug crotching Student sued under 4th, 5th, and 14th amendments Courts found in favor of school system if reasonable

Two More Cases! I promise


DesRoches v. Caprio and Norfolk, 4th Circuit Court of Appeals, 1998 Bookbag search is reasonable under certain conditions reasonableness Isiah B. v. State of Wisconsin, Supreme Court of Wisconsin, 1993 Random locker searches OK

Chapter 9
Rights of Disabled Children

Review
Pupils have an unlimited constitutional right to exercise free speech in public schools. Tinker said that there are two standards which must be met in controlling free speech or expression clear and present danger and substantial disruption. The more that the state is taking away from individuals the more formal the due process requirements.

Review
A fair and impartial hearing is the basic element of substantive due process. According to Goss v. Lopez, students have a property right in education. Explain the significance of:
Goss v. Lopez Kuhlmeier Bethel v. Frazier -- Hazelwood v. --Ingraham v. Wright

Review
What is the difference between substantive and procedural due process? The courts will not usually interfere with the schools academic program. Meyer v. Nebraska ruled that the state ban on teaching foreign language was a valid exercise of police power of the state. Academic sanctions for nonattendance violates due process for students.

Review
Once a pupil has completed all required courses, issuance of a diploma is a ministerial duty the school must perform. Courts have generally ruled that grades may be reduced as a disciplinary measure to maintain order in the school.

Rights of Disabled Children


A History of Neglect

A History
Earliest known school for the handicapped was in Connecticut - founded by Gallaudet in 1817 - a school for the deaf and dumb Conn. legislature gave $5,000 and opened with 7 students. In 1819, the leg. gave 23,000 acres. The school sold the land for $300,000 (angering the legislature). The next year four other states began similar programs.

New York - #2
Started with private donations Taken over by the state in 1821 - two years later First residential state school for handicapped students - no tuition like in Conn., however

Pennsylvania - #3
Initially established in 1820 as a private school, it was operated by the state in 1821 with an enrollment of 50 students. It was a residential and a day school for students Tuition was provided by the state

Other States Get on the Bandwagon - 1823 - 1844


Three additional states begin schools for handicapped students - Kentucky, Ohio, and Virginia These were supported to some degree by the state, but tuition covered the major expense

Other early efforts


Seventeen new schools were established Horace Mann pioneered the Lunatic Hospital (1830 - Worcester, Mass.) New York (1832) established a school for the blind By 1852 NY, PA, and MA established schools for the mentally retarded - limited access.

Other early efforts, cont


1860-1880 there was a lapse in program development for handicapped students National Deaf Mute College established in D.C. (name changed to Gallaudet) By 1890, schools for mentally handicapped had started in 6 states - mostly New England 1900 (Chicago) first schools for physically handicapped students

First Court Rulings


In 1893, a Mass. ruling (Watson v. City of Cambridge) said that imbecility was grounds for permanent expulsion Beattie v. Board of Ed. ruled that capable handicapped student could be excluded from school because the handicap had a depressing and nauseating effect on teachers and students

Turning Points
In 1918 the Soldiers Rehabilitation Act passed Congress followed by Smith-Bankhead Act (1920). Made schools offer vocational rehabilitation, education, and counseling services to individuals By 1944, these services were amended to include mentally ill and retarded individuals Brown v. Board of Ed. included these

Turning Points, cont


In 1971, Penn ARC v. Commonwealth ruled that retarded children were entitled to a free public education In 1972, the Mills case (US District Ct - D.C) expanded PARC case to include all handicapped children. In this court district there are 22,000children, and perhaps as many as 18,000 are not being served.

Turning Points, cont


The Mills case was about requiring due process before education assignment was changed. They were denied schooling or at least regular placement. Actually, the number was about four time higher than that almost 90,000 students. Most of these children never attended school! THIS IS RECENT HISTORY, FOLKS!

Vocational Rehabilitation Act of 1973


Section 504 of the RA states that no qualified handicapped individual shall be excluded, denied benefits of, or be discriminated in any manner in any program or activity receiving federal assistance. Included location and notification, free appropriate education, educational setting, evaluation and placement, procedural safeguards

IDEA
In 1975 federal legislation EAHCA, Public Law 94-142 was enacted Reinforced earlier attempts Recognized that:
more than 8 million handicapped students needs not met more than half not appropriate more than 1 million excluded entirely

Tenets
Free appropriate education Individualized education program Special education services Related services Due process procedures Least restrictive environment in which to learn

Dates and Included Students


The act required all handicapped students between ages of three and eighteen receive appropriate educational services by 9/1/78 Ages three to twenty-one by 9/1/80 Estimated that only 1/3 of school systems were ready to enact this by the time frames stated Now we dealt with included instead of excluded students

Court Cases on 94-142


The opposition to this act was substantial Taxpayers, general education teachers, parents, school boards feared increased costs and disruptions to the educational programs Many court cases were heard Findings were consistent

Free appropriate education


Qualification for federal funds Did not define FAE Must be consistent with intent of Act Must be provided in conformity with IEP Must meet SEA standards Must include appropriate preschool, elementary, secondary, and related services

Major Court Case


Rowley a biggie! Amy was a deaf student. Parents wanted more services than professionals thought necessary Supreme Court decision (1982) Defined a floor of opportunity and not a ceiling of opportunity in regards to provide education benefits to the handicapped child

Extended School Year


Battle v. Commonwealth (PA, 1980) said that a state or locality could be required to provide longer service periods depending on the childs IEP At issue was a constitutional provision limiting the school year for all students to a maximum of 180 days - handicapped or not Similar Crawford v. Pittman (Miss., 1981)

Cont
Yaris (Mo., 1986) Georgia ARC (1983) Johnson v. Independent School Dist No. 4 of Bixby (10th Circuit, 1990) held that a limit of 180 days violated the individualized of IEP.

Procedural Safeguards
As Rowley indicated, procedural safeguards were a vital component in ensuring appropriate educational services Parents must be given notice and opportunity to participate in the childs IEP Conflict and grievance procedures, appeals, resolution - unbiased and impartial

Procedure Violation
Violation equals violation of free and appropriate education Insignificant procedural error will result in the court declining to exalt form over substance If findings are not to the satisfaction of the parent appeal to SEA with a stay put order

IEP
Designed to reduce to writing a plan that takes into account educational needs, instructional goals and objectives, specific programs and services, and the evaluation procedures.

Timothy W. v. Rochester NH
U.S. Court of Appeals - First Circuit. Defined - all handicapped and does not require a child to demonstrate benefit as a condition precedent to participation. Timothy W. severely handicapped and refused services. Reaffirmed that intent of Congress was to give priority to the most severely handicapped.

Least Restrictive Environment


3rd, 5th, and 11th Circuit hold Daniel R.R. two-part test (case of same name) First, can education in the regular classroom with use of supplemental aids and services, can be achieved satisfactorily for the student? Second has the school mainstreamed to the maximum extent appropriate?

LRE cont
4th, 6th, and 8th Circuits have applied the test under Roncker v. Walter Recognized the strong congressional preference for mainstreaming For a child not to be mainstreamed Roncker requires the school show that a segregated facility is superior and why and whether the same can be delivered in a mainstream setting. If yes, not LRE

Inclusion
Terms not found in 94-142 Used in Oberti (3rd Circuit Court of Appeals, 1993) Burden of proof proving compliance with mainstreaming is on the School and not on the parent to prove it is not happening Here term inclusion is used first time legally The child - 8 year old Downs child

Costs
Florence County v. Carter - Supreme Court ruled that court may order school districts to reimburse parents who unilaterally place children in private schools Schools did not provide appropriate education and parents withdrew children and placed in private schools - to be reimbursed

Costs, cont
James Zobrest, deaf since birth, attended Catholic High School. Asked for intrepreter pursuant to IDEA from public school while attending private school. This does not violate the establishment clause Zobrest v. Catalina Foothills - U. S. Supreme Court, 1993

Related Services
Related services means transportation, support services, speech path, audiology, psychological services, O.T., P.T., medical services, counseling, and the like U.S. Supreme Court in Irving v. Tatro ruled that catheterization is a related service

Related Services cont


Attorneys fees? Who pays? Supreme Court ruled in Smith v. Robinson (1984) that parents could not claim attorneys fees under 504, 94142, or related amendments. Congress amended HCPA in 1986 allowing reasonable attorneys fees to parents who win lawsuits

Florence County v. Carter


U.S. Supreme Court, 1993. Shannon Carter LD student with rather inadequate IEP and services Parents protested services and withdrew her from school enrolling her in Trident Academy Court ruled SC violated FAPE and ordered school system to reimburse parents for all costs associated with sending her to private school

Honig v. Doe
US Supreme Court case, 1988 Stay put provision is in effect in FAPE School can not unilaterally exclude a student from classes for dangerous and aggressive behavior student was ED. John Doe assaulted a student, teacher, and kicked out a window, cursing and screaming. Expulsion moved. Stopped.

Chapter 10
Desegregation

Desegregation
History Plessy v. Ferguson, 1896 (US SC) was a result of the 14th amendment. LA railroad company separate but equal facilities See quote at top of Chapter 10 Sarah Roberts (1849) story separate but equal

Historical Development after a long court silence


Gradually, thanks to NAACP, separate-butequal legal basis was being eroded Missouri ex rel. Gaines v. Canada (1938) was a Supreme Court case involving a law prohibiting blacks from entering the U of M law school No other law school Court ruled school must admit court action again taking action on equal protection

Sweatt v. Painter
1950 Texas case. Mr. Sweatt applied to attend the U of TX law school. Under Gaines, no black law school existed. The TGA set up one ASAP substandard Sweatt sued and the US SC ruled separate but equal is frequently not Admitted and set the stage for Brown

Brown
In 1952, five cases from various states reached the SC on separate, but equal for public education (KS, SC, VA, DE, DC) Lower courts (except DE) denied relief to black students Deep south, upper south, border state, congressional district (5th amendment) Only KS had permitted, but not required legislation to maintain separate facilities

Brown
Very slow case brought in 1952 Heard that year and did nothing until 1953 demanding another argument Decided in 1954 To be implemented with all deliberate speed Deliberate Carefully considered, intentional, slowly

Brown
Chief Justice Earl Warren We conclude in the field of public education the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal. Brown II mandated that States had moved too slowly. In 1969 ruled that by 1970 schools become unitary or else.

Remember This?

Griffin v County Bd of PEC


US SC case, 1964 Brown met with much resistance in VA In 1956 VA GA enacted legislation to close mixed schools and cut off state funding to such schools Allowed tuition to private, non-sectarian schools, and extended state retirement benefits to private school teachers

Griffin v County Bd of PEC


Overturned by the VA Supreme Court, 1959 In 1959, the state abandoned massive resistance and enacted freedom of choice Tuition grant programs Repealed compulsory attendance laws Made school attendance a local choice

Griffin v County Bd of PEC


VA SC upheld the legislation, 1963 Appealed SC overturned in 1964 If it becomes necessary to add new parties to accomplish this end, the District Court is free to do so.

Swan v. CharlotteMecklenburg
US SC case, 1971 De jure segregation existed Court ruled that busing was an acceptable remedy Court still is overseeing the case in NC Other cases limited by time and original restraints

Chapter 11
Torts

Torts
What is a tort? A) A pastry B) A cutting remark C) A not so nice woman D) A civil wrong (other than for a breach of contract) for which courts may award damages

Why do we have laws?


To preserve the peace of all citizens If this is true, then if one citizen suffers at the hand of another, there needs to be some form of redress Tortus Latin for twisted Activity not part of the mainstream

Tort v. Crime
Crime is breaking the law Criminal proceedings and jail against the offender not the injured person Tort is an injury caused to another person where some remedy for the injury is allowed

Three tort types


Intentional interference Strict liability Negligence

Intentional Interference
Can be a bit misleading Results from an act of anything from malice to a practical joke Intentional refers to consequences, not just the intent of the action If the party knows the consequences are substantially certain, it may be intentional interference

Peace of Mind
Interference with peace of mind Mental or emotional anguish If an act is malicious (not just negligent) there may be recovery

Assault and Battery


Examples of intentional torts Battery hitting, touching, physical contact Assault apprehension of battery a mental assault Chastisement of a pupil may constitute assault and battery if cruel, brutal, excessive, or done in anger or insolence

Spears v. Jefferson Parish


Court of Appeals of Louisiana, 1994 School system was liable for an intentional act of a teacher that produced emotional harm to a student Justin Spears was a kindergarten student who was misbehaving in PE A teacher called the boy (and others) to sit beside him

Spears v. Jefferson Parish


The boys played with the teachers hair and ears (classroom management ills) Teacher decided to play a trick on the boys telling them he would kill them by hanging them with a jump rope He took the boys into an office Another teacher was talking with Jason Teacher and boys played a trick on Jason

Spears v. Jefferson Parish


Jason walked back into the office where one of the boys was playing dead Jason experienced emotional problems (attachment disorder with mother, failure to go to the bathroom alone, refusal to wipe himself, etc.) Court awarded $100,000 general damages, $2,100 therapy, and $5,000 to each parent

Strict Liability
Often referred to as liability without fault Liability imposed apart from
Intent to interfere with a legally-protected interest without legal justification for doing so Breach of duty to exercise reasonable care

Abnormally Dangerous Defined


Existence of high degree of risk Great likelihood of harm Non-elimination of risk by reasonable care Extent the activity is not common usage Inappropriateness of activity to place Extent of value versus danger

Fallon v. Indiana Trail School


Appellate Court of Illinois, 1986 Case involved a sixth grade girl who suffered spine injuries on a trampoline Parents sued claiming trampoline was an abnormally dangerous device (under strict liability) Parents also claimed negligence on the part of the teachers

Fallon v. Indiana Trail School


The trial court ruled that the trampoline was not abnormally dangerous and no negligence was evident Appealed and the higher court agreed with the lower court ruling

Negligence
Negligent acts are not expected or intended (as opposed to intentional torts) Here the key is a reasonable and prudent person would have anticipated harmful results Accidents that can be prevented by reasonable care are not ones of negligence

Standard of Conduct
Various rules apply in different circumstances no standard rules The key is the standard of conduct by the responsible party (actor) The court must strike a balance between conduct and harm reasonable person theory Injury must result from an unreasonable risk

Elements of Negligence
A duty to protect others Failure to exercise appropriate standard of care Existence of a causal connection between the act and injury (proximate or legal cause) An injury, damage, or loss

Duty
The duty is to abide by a reasonable conduct when apparent risks are evident No duty exists when one could not have reasonably foreseen the danger of risk Generalities
No relationship Truants Good Samaritan

Standard of Care
As level of risk increases, so does the standard care Up to about 7 years of age children can not be held liable for negligence Between 7 and 14 years presumed not capable of negligence until proven otherwise

Proximate Cause
Also called legal cause It is the connection between act and injury Must be duty to maintain reasonable standard of conduct Negligence must be the substantial cause of harm

Proximate Cause
Considerations
A teacher may be relieved of liability of a student being injured if the principal allowed them to run in the street and a student ran in front of a car The teachers role in the proximate cause or causal relation was too remote

Brown v. Tesack
Supreme Court of Louisiana, 1990 Children got duplicating fluid and started fires in the projects One student was injured Plaintiff argued foreseeability of hazard Court reversed trial and appellate courts

Brownell v. Los Angeles


Court of Appeals, 1992 Student left school and was misidentified by gang members as a rival member Boy was shot (wounded) Plaintiffs argued that inadequate supervision and forseeability were issues

Brownell v. Los Angeles


Jury awarded plaintiff $120,000 Court of Appeals reversed Absent were
Gang-related threats Prior incidents

Johnson v. School District of Millard


Supreme Court of Nebraska, 1998 Music class with 1st graders learning London Bridge with chaos The game got out of hand and resulted in 50 stitches, blurred vision, and headaches for Robbie Johnson Standard of care, direct supervision, and negligence were issues

Johnson v. School District of Millard


Trial court found for the plaintiff and awarded $21,000 Supreme Court of Nebraska upheld the decision based on the idea that the negligence was the proximate cause of the injury

Richardson v. Corvallis Public School District No.1


Mom went into the high school with son to explain tardiness Mom walked across a packed-down snowy path without problem On returning to car, Mom slipped and was injured She sued claiming breach of duty to warn of hazard all courts disagreed

Defenses for Negligence


Contributory negligence
negligence of plaintiff contributed to injury Comparative negligence partial payment for partial negligence Assumption of risk knowledge and acceptance of danger Immunity allowed for certain people

Selected Court Cases


Brief absence from classroom does not mean negligence Female student playing football assumed risks (Hammond v. Carroll County, 1994) Required release of liability for negligence forms are not valid and violate public policy

Educational Malpractice
Peter W. v. San Francisco (1976) and Donohue v. Copiage Union Free School District Educational malpractice is not recognized as a tort

Chapter 12
Defamation and Student Records

Defamation
Long legal history Diffamatus evil enough for the church to place on trial 1600s libel and slander were referenced Defamation imputes immorality, dishonesty, or dishonorable conduct to another by writing or speaking

Libel v. Slander
Libel involves writing (and TV and radio) and defamation Slander involves speaking and defamation Public figures are often fair game for libel and slander

Defamation in Schools
Teachers and administrators need to be sensitive A matter of privilege exists as in privileged information Student issues and personnel issues Conditional versus absolute privilege

Good Faith
Protected if acting in good faith Without malice In answer to question Believe information to be true Reasonable grounds to believe information Information goes no further than inquiry

Hett v. Ploetz
Supreme Court of Wisconsin, 1963 Hett was a speech therapist who did not do a wonderful job. He had the option of resigning or being dismissed. He chose the former and applied for another job. Hett gave permission to check references Ploetz, the previous superintendent Ploetz told the truth

Hett v. Ploetz
Hett sued Ploetz for libel and damaging his ability to make a living Court ruled against Hett Said telling truth violates libel Negative recommendation is conditionally privileged

Desselle v. Guillory
Court of Appeals, Louisiana, 1981 Rumors existed in the high school about coaches and teachers molesting students Counselor heard of the matter and reported it to the principal he would watch

Desselle v. Guillory
Big mess confusing statements Teacher sued counselor for defamation Court found for counselor and allowed attorney fees Fees overturned on appeal Long and short qualified privilege protects parents who share information about teachers if some truth exists

Milkovich v. Lorain Journal Co.


Supreme Court of the United States, 1990 Reporter wrote that the wrestling coach lied under oath in his opinion Lower court said the article as an opinion was protected under the 1st amendment Coach sued for defamation

Milkovich v. Lorain Journal Co.


After fifteen years of appeals and three trips to the SC, it was found that no privilege exists for opinion Allowed coach to sue for damages

Richmond Newspapers v. Lipscomb


Virginia Supreme Court, 1987 Richmond Times Dispatch carried an article about a disorganized teacher and named her Teacher sued for libel and was awarded one million dollars for compensatory damages

Richmond Newspapers v. Lipscomb


Supreme Court (VA) agreed that libel existed and teachers are not public figures therefore not required to prove malice Reduced award to $100,000 to reporter and publisher

Student Records
Sensitive grounds Category 1 and 2 (no longer to be kept in different locations!) Information not to be conveyed outside relevant educational

function

Proper release of records is required FERPA, 1974

FERPA, 1974
Confidential, written release required Parent and adult student inspections Ease of location Identified access of records Record of access Appeal Directory information release protocol

Fay v. South Colonie


US Court of Appeals, 2nd Circuit, 1986 Difficult case divorced husband with joint custody of children was not getting school information School did not give the information in violation of FERPA FERPA does not allow for damages, but can under section 1983

Chapter 13
Sovereign Immunity

Long-standing legal tradition


Old English law the King can do no wrong Has been held for a long time on a variety of reasons money and precedent being chief Even though sovereign immunity is undergoing revision, it is generally held for public schools as general welfare

Molitar v. Kaneland Community Unit District #302


Supreme Court of Illinois, 1959 Through negligence of a bus driver there was an accident and a bus exploded and burned School system cited sovereign immunity Court in Illinois eliminated sovereign immunity from Illinois State Code Later conditionally reinstated by legislature

Dollar v. Dalton Public Schools


Georgia Court of Appeals, 1999 Mother sued school district after child fell from playground equipment and broke her arm Dismissed on immunity grounds in state constitution Lower and appeals court upheld

Lentz v. Morris
Supreme Court of Virginia, 1988 Student in Virginia Beach high school was in PE class playing tackle football where he was injured Sued teacher and system for damages citing negligent supervision Teacher and system claimed immunity for acts of his own negligence Court agreed trial and Supreme Court of VA

Now, the confusion


Duke v. Grady Municipal Schools, U.S. Court of Appeals, 10th Circuit, New Mexico, 1997 New Mexico case involving a teacher dismissal case without due process Teacher sued and the court ruled that a local school board is not protected under the 11th amendment for immunity because it is not an arm of the state Minton and Wood may add to confusion (Board not immune individuals may be)

Chapter 14
Certification, Contracts, and Tenure

Chapter Overview
Certification, Contracts, and Tenure Certification Education is a state function Each state may set up its own certification process for teachers and revise them at any time Must have no intent to discriminate and must not be arbitrary

Certification
Background Early schools were poor and quality varied greatly Why? Poor teacher training Teacher training institutions in Europe in the mid-1700s

Certification
First American Normal school opened in Lexington, Mass. in 1839, started by Not a good start As John Swett said in 1872, certification and licensure are needed to protect the public from charlatans, ignoramuses, and humbugs masquerading as teachers.

Ambach v. Norwick
U.S. Supreme Court, 1979 NY required US citizenship to be certified Two otherwise qualified individuals applied for certification and were denied Lower court said no can do SC reversed on loyalty and promoting civics being a function of education

Wardwell v. Cincinnati
U.S. Court of Appeals, 6th Circuit, 1976 Can a local school system require residency within its corporate limits for teachers? Wardwell lived outside city limits upon being hired and refused to move Sued under Equal Protection and lost 2X

Moral Character Required


Application of Bay, Oregon SC, 1963 Applicant had past felonies denied certificate Erb v. Iowa, SC of Iowa, 1974 Had affair with another teacher; husband showed up at Board meeting with details Board moved to revoke license

Erb v. Iowa
What did the State Board do? What did the Court do? What did State Supreme Court do?
Do you agree or not?

Contracts
Guido from New Jersey is your contact Oopps! Semester of law devoted to contracts In the US contracts range from a onepage statement to more than 100 pages of stipulations

Contracts
Offer and acceptance Must be competent persons Must involve specific consideration (salary) Must involve legal subject matter Must be in writing

Contracts
Fairplay School Township v. ONeal, Supreme Court of Indiana, 1891
1888 teacher was given oral contract to teach in return for good wages Not enforceable too vague

Contracts
Feldhusen v. Beach Public Schools, North Dakota SC, 1988
Feldhusen was hired with the specific provisions to obtain graduate credits over contract period and he did not Contract was not renewed and he sued Court disagreed with plaintiff

Tenure
Generally, tenure is the thing to have as a teacher In Virginia, tenure is a higher ed concept. Public ed uses the terms annual contract and continuing contract status What does tenure provide?

Tenure
All it means is that the system must provide you with due process before dismissal So, what are reasons for dismissal? Incompetence Insubordination Immorality Misconduct Just Cause

Scheer v Ottawa County


SC of Oklahoma, 1997 Connie Scheer was a marginal teacher for three years (probationary period) The Board decided not to issue her a continuing contract after three years Instead they offered her a temporary position for one year

Scheer v Ottawa County


After the 4th year of teaching the temporary contract was not renewed She sued claiming she had taught 4 years and was eligible to receive tenure District and SC upheld decision She paid legal costs

Santee
SC of PA, 1959 Clara Santee started teaching in 1925 For 1956-57 she taught English and math at a Junior High school The following year she was transferred to a sixth grade position accepted under protest

Santee
Santee saw this as a demotion Appealed to Board, Superintendent of Public Instruction, and to SC Not a demotion Santee paid legal costs

Collins v. Faith School Dist.


Interesting case, SC of South Dakota, 1998 Richard Collins taught in the system for 29 years currently 5th grade Unofficial part of the curriculum, sex ed, was reviewed when 2 boys asked a question about homosexuality

Collins v. Faith School Dist.


He answered rather indiscreetly School Board fired him following complaints from parents about his response as inappropriate for students School Board directed the Superintendent to start termination procedure

Collins v. Faith School Dist.


Rather odd hearing ensued with the Board voting to terminate for incompetence Circuit court upheld the Board decision State SC found no credible evidence to dismiss for incompetence with one illadvised answer and overturned with reinstatement of job and back pay

Insubordination
Willful refusal to obey some order by a superior officer that is legal to give and have obeyed In Virginia, insubordination is cause for immediate dismissal it does not even go through the grievance procedure Courts uphold some reasons including:

Insubordination
Motive not established No harm resulted from the act Punishment did not equal the offense The order was unreasonable The order was beyond the authority of the person to give, and The order violated Constitutional rights

Gaylord v. Morton County


Court of Appeals of Kansas, 1990 Steve Gaylord went for a job interview after being denied leave His wife called in sick for him He filled out a sick leave form post facto The afternoon of the interview the interviewer called his principal for a recommendation oopps!

Gaylord v. Morton County


Current principal told Steve to clear out his desk and that termination procedures would begin Board voted to terminate The district court found that the Board acted properly What did the appellate court say?

Termination of James Johnson


Minn. Court of Appeals, 1990 Interesting case Teaching since 1967, 1970 in the current district Over the years he had a range of evaluations from unsatisfactory to above average

Termination of James Johnson


In 1987 things began to heat up Three charges made for dismissal The court made some interesting recommendations grades, insubordination, and inefficiency Both courts affirmed dismissal but not on all the grounds mentioned

Immorality
Morality clauses in contracts are constitutional Involvement with students is a license revoker in almost every state Consenting relationships of adults are a gray area Offense of public sensibilities is the rationale CA life certificate revoking

Immorality
Homosexuality? Must show a nexus between conduct and fitness to teach Rulings can not be too vague or broad The court cases would indicate that homosexual or heterosexual conduct may result in dismissal if activity is detrimental to the school

Toney v. Fairbanks
Supreme Court of Alaska, 1994 David Toney taught in Idaho in 1980 and had relations with a student who became pregnant in the 81-82 SY Deal was worked out with the family and with the school Toney applied to teach in Alaska in 82

Toney v. Fairbanks
Toney misrepresented himself in the application process In 1992 the student called Fairbanks school system and informed personnel of the relationship Board moved to terminate Toney What did the lower court rule? What about the SC?

Hopkins County v. Wood


SC of KY, 1986 This is stupidity to the max Two tenured teachers (brothers) sold MJ to 15 year-old girls Brothers confessed in court and were fined Board of Education heard about this

Hopkins County v. Wood


Teachers lied and said no involvement even though they had signed affidavits of their involvement there is no limit to stupidity! Board moved to dismiss Circuit court found in favor of Board Appellate court found for teachers SC of KY reversed appellate court ruling

Other Cases
Elvin v. Waterville, SC of Maine, 1990
4th grade teacher had an affair with a 10th grade boy at the feeder high school SS investigated and teacher subsequently fired upheld

Other Cases
Gaylord v. Tacoma, SC Washington, 1977
Homosexual teacher at high school Confronted by students Met with principal where teacher admitted orientation Principal moved for dismissal

Gaylord v. Tacoma, SC Washington, 1977


Homosexuality to too vague without actions and disruption of school environment Teachers presence in the school contributed to disruptive climate Dismissal affirmed

Good Cause
Varies greatly over the country Cohabitation Both sides of abortion Discussing alternative lifestyles As well as more traditional reasons Abuse or RIF (Zoll case again stupidity showing common sense is not all that common)

Chapter 15
Teacher Rights and Freedoms

Overview
Teacher Rights and Freedoms There is a legal relationship between teacher and employer
Constitutional rights as a citizen Statutory regulations governing schools Contractual conditions of employment

Academic Freedom
German origin freedom to learn and freedom to teach Academic freedom is more an issue in higher education in the US than it is a public education issue Regardless, the 1st amendment is the basic repository of all our rights

First Amendment and Public Employees


A little more narrowly focused Free speech still exists BUT, it can cost you your job Different rules apply to to the government as employer if speech curtails the operation of the government than that speech can be curtailed

Pickering
US Supreme Court, 1968 Teacher wrote a letter to the editor opposing a tax increase Teacher was dismissed Long and short, teachers may take open targets on matters of public interest or concern

Givhan v. Western Line School District


US Supreme Court, 1979 Teacher terminated for hostile, loud, hostile, and arrogant communication with principal in private conversations Freedom of speech is guaranteed in private communications barring insubordination

Stroman v. Colleton School District


US Court of Appeals, 4th Circuit, 1993 Upset teacher writes and circulates a letter which ultimately calls for a sickout during the week of finals Meets with superintendent next day and is dismissed Sues claiming 1st amendment rights are violated as a matter of public concern

Stroman
Lower court sides with Board Appellate court agrees, mostly Agrees that the majority of the letter is public matter or concern, but the call to an illegal action is not protected by free speech but outweighed by public interest in providing uninterrupted education

Teacher Dress Policy


East Hartford Education Association v. Board of Education, US Court of Appeals, 2nd Circuit, 1977 Dress policy for men to wear ties Teacher claimed violation of 1st amendment rights and privacy Teacher claimed three areas quite well, I must say

Tielessness
If there is any protected interest in neckwear, it does not weigh heavily on the Constitutional scale. Court found dress codes are constitutional What if there were no corresponding codes for women Title IX violation?

Daury v. Smith
US Court of Appeals, 1st Circuit, 1988 Sad story. Daury was a principal in Mass. school system Due to budget cuts and personnel evaluations, Daury was demoted to a grade leader He started going off a bit three times

Daury v. Smith
After the third incident he was ordered to see a psychiatrist before coming back to school Sued stating violation of privacy in 9th and 14th amendments Courts disagreed

Random, Suspicionless Drug Testing?


Tested in Knox County Education Association v. Knox County Board of Education, US Court of Appeals, 6th Circuit, 1998 Fourth amendment covers searches including drug testing Court had to weigh the individuals privacy with the governments interest in securing safety-sensitive positions Court ruled testing is legal

Freedom of Religion
Cooper v. Eugene School District, SC of Oregon, 1986 Oregon has a rule forbidding religious garb while teaching Janet Cooper became a Sikh and donned the white clothes and turban and explained her religious change

Cooper v. Eugene
Court examined if the law conflicted with the Oregon Constitution Court concluded that wearing religious garb while teaching may endorse a specific religion Law did not forbid wearing religious garb, just while teaching

In summary
Teacher rights are rather limited As employees of government As less protected by working for the government As making distinctions between public concerns interesting!

Chapter 16
Due Process Rights of Teachers

Teachers Due Process Rights


Founded in the Magna Carta signed by King John at Runnymede 1215 Today found in our 5th and 14th amendments Basically, if the federal, state, or local government deprives you of life, liberty, or property, due process must be afforded you

Four Aspects of Due Process


Substantive due process Procedural due process Vagueness test Irrationality and Presumptions test

Substantive Due Process


Comes from the word substance of life, liberty, and property Substantive rights can not be denied without a fair hearing Liberty and property interests form the concept

Liberty Interests
Liberty came deep in the French culture liberty, fraternity, equality Noblest faculty of man Rousseau To act in ones own best interest Life, liberty, and the pursuit of ______. Anything that inhibits ones ability to act in best interest defamation, etc.

Property Interests
Did you read the Roth case? Property interests can take many forms Not a need, rather a legitimate claim Madison said it best man has a right to his property and a property in his rights (well said!) Tenure is that property of rights

Roth
US Supreme Court, 1972 Wisconsin assistant professor on year-to-year contract was not rehired supposedly for comments anti-administration Sued under 1st and 14th amendment Lower and appellate court found for plaintiff SC said there is no property or liberty right protection for non-tenured teachers

Perry v. Sinderman
US Supreme Court, 1972 Professor in Texas critical of administration in move to 4-year college Not rehired Regents explained for insubordination Not told reasons and not given a hearing

Perry v. Sinderman
Claimed violation of 1st and 14th amendment rights Lower court disagreed Appellate court agreed US Supreme Court agreed with appellate court de facto tenure

Procedural Due Process


The previous cases dealt with substance of 1st and 14th amendment rights now procedural If you are accused of doing something that costs you, should you be able to explain and defend yourself? That process is the essence of procedural due process

Procedural Due Process


Dixon v. Alabama required Notice of hearing containing the specific charges, and Opportunity to air both sides of the issue in fair play Several issues to consider

Procedural Due Process


Courts require procedural due process if substantive constitutional interests are abrogated Courts have gone as far a telling institutions to rehire an individual if procedure is not followed

Procedural Due Process


Two factors are elemental Hearing and Impartiality One has to take place The second must at least maintain the appearance of

Hearing Issues
Balancing test Before or after action Pre or post deprivation What standard and extent of proof is required?

Impartiality
Issue of fairness Remember Hortonville? Can a school board act as the agency and the judge? Yes, it can The legal system depends on justice and the appearance of justice

Procedural Due Process


US Supreme Court, 1985 Security guard was hired in 1979 and on the application checked he had not been convicted of a felony Background check indicated he had been convicted of grand larceny Notice of termination sent

Procedural Due Process


Post-facto administrative review indicated he thought the conviction was a misdemeanor Review approved firing (fired) Referee recommended reinstatement (hired) Commission upheld dismissal (fired) District court turned over dismissal (hired) Appellate court turned over (fired) US Supreme Court agreed with appellate court (toast)

Hortonville
US Supreme Court, 1976 Wisconsin case and education association 14th amendment (due process) and school board firing striking employees Wis. Supreme court said due process denied US Supreme Court disagreed

Vagueness Test
Vague too vague, unclear as to standard to be held Reasonable person has difficulty understanding No doubt as to understanding by a normal (reasonable) person e.g. loyalty oaths

Loyalty Oaths
Anti-communist Subversive activities Morality oaths Too vague equal application

Wieman v. Updegraff
US Supreme Court, 1952 Oklahoma case involving loyalty oaths Joined organization Unknowing association Too vague

Irrationality and Presumptions Test


A rational connection between the fact and the end must be presumed If not, due process is denied An irrebuttable presumption violates due process (if A then B; A=B) Permanent non-resident status is irrebuttable and violates due process

Cleveland v. LaFleur
US Supreme Court, 1974 Two suits hit the court together (with the second involving Chesterfield County) Pregnant teachers required to quit, not return for a determined period of time, and not guaranteed a position

Pregnant?
SC overturned lower court rulings and held that arbitrary dates are unconstitutional Must not give up property rights in job for arbitrary, irrational concepts

Chapter 17
Discrimination in Employment

A Biggie!
A word to the wise is sufficient A word to deficient is wise Federal legislation has provided various means to combat employment discrimination beyond the rights in the equal protection clause Why?

Organization
Race discrimination Sex discrimination Sexual harassment Religious discrimination Title IX Equal Pay Act Age discrimination Discrimination against persons with disabilities

Race Discrimination
Griggs v. Duke Power USA v. State of South Carolina Both US Supreme Court cases (71, 77) Long history and difficult cases Ruling that:
Belongs to racial minority Qualified applicant for which employment was open Despite qualifications, rejected Despite rejection position remained open

Race Discrimination
Hazelwood v. US, 1977 Wygant v Jackson Board of Ed, 1986 Taxman v. Piscataway, 96 (3rd c) Difficult cases and issues

Sex Discrimination
1960s started the issue Title VII Bell (1982)

Sexual Harassment
A demand that a subordinate grant sexual favors in order to obtain or retain a job Quid pro quo Hostile environment Masson v. Dade County Trautvetter v. Quick, 1990

Religious Discrimination
Civil Rights Act, 1964, Title VII Ansonia v. Philbrook, 1986 reasonable accommodation Cowan v. Strafford magic rock?

Equal Pay Act


Simple Equal pay for equal duties where scales exist and defensible

Age Discrimination
ADEA, 1967 At least 40, but less than 70 In 1986, at least 70 was removed Wooden, 1991 must identify specifics

ADA
Nassau v. Arline, 1987 Chalk, 1988 FMLA

Chapter 18
Collective Bargaining

Review
In Griggs v. Duke Power, the court held that a plaintiff must prove intentional discrimination. In Griggs, the use of general aptitude tests and a high school diploma were found to be unrelated to the jobs for which they were used.

Review
According to Hazelwood, statistical disparity constitutes a prima facie case of a pattern of racial discrimination. To comply with Federal affirmative action policies, a school board may institute preferential layoff schemes. According to Trautvetter v. Quick, sexual harassment charges can not be litigated if the relationships are consensual.

Collective Bargaining
What an issue! First, the research is mixed on the subject Achievement some indication that controlling for SES, there is slightly higher student achievement in states where collective bargaining is allowed

Collective Bargaining
Salaries significantly higher with significantly better benefits Accountability somewhat higher Teacher dismissal significantly more difficult to dismiss teachers in collective bargaining states Working conditions significantly more clearly defined, generally fewer duties and those are usually paid

Tonights Work
Six groups explaining for the class:
The overview concept of collective bargaining Norwalk Teachers Association case and Anderson Federation of Teachers Board of Ed. V. New Jersey Education Association and Indiana State Teachers Association v. Indianapolis

Six Groups
School Board of City of Richmond v. Parham and the scope of bargaining Kenai v. Kenai Education Association and Collective and Individual Rights, Constitutional Rights of Individuals, and Abood v Detroit Grunwald v. San Bernardino and City of Madison v. Wisconsin Employment Relations Commission