Solution Manual for School Law and the Public Schools A Practical Guide for Educational Leaders, 7th

Instructor’s Manual School Law and the Public Schools: A Practical Guide for Educational Leaders Seventh Edition Nathan L. Essex

Chapter 1: Legal Framework Affecting Public Schools

Table of Contents Chapter 1 - Legal Framework Affecting Public Schools ............................................... 1 Chapter 2 - Religion and the Public Schools ............................................................... 7 Chapter 3 - Student Rights and Restrictions .............................................................. 24 Chapter 4 - National Security and Student Safety ..................................................... 46 Chapter 5 - Individuals with Disabilities ..................................................................... 55 Chapter 6 - School Personnel and School District Liability ........................................ 71 Chapter 7 - Liability and Student Records ................................................................. 82 Chapter 8 - Teacher Freedoms ................................................................................. 91 Chapter 9 - Discrimination in Employment............................................................... 104 Chapter 10 - Recruitment, Tenure, Dismissal, and Due Process ............................ 118 Chapter 11 - The Instructional Program and School Attendance ............................. 131 Chapter 12 - School Desegregation......................................................................... 145 Chapter 13 - Public School Finance ........................................................................ 154

CHAPTER 1 - LEGAL FRAMEWORK AFFECTING PUBLIC SCHOOLS The legal framework includes laws, codes, and regulations designed to protect the individual rights of students, teachers, and school personnel. This framework defines roles of all legal entities that impact school operations, providing useful information which allows school leaders to operate in a legally defensible manner. How does an understanding of the legal system aid school leaders in responding to legal challenges within their organizations? How do they provide assurance that they are operating within the boundaries of the law? This chapter provides a legal framework including key constitutional amendments designed to enhance school leaders’ understanding of the importance of recognizing and respecting the constitutional rights of students, teachers, and school personnel. This chapter further defines the role of all legal entities that impact school operations from local school boards and state agencies to the highest court in the land providing useful information that allow school leaders to operate in a legally defensible manner. Additionally, legal retrieval systems are provided to enhance research opportunities for legal professionals and practitioners.

Readers of this chapter should be able to: 

Explain why knowledge of school law is valuable to effective leadership in their schools.



Identify key amendments to the U.S. Constitution and how they impact school operations.

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

Describe the configuration and structure of the judicial system with a focus on the U.S. Supreme Court as the highest court in the land.



Explain how case law affects the administration of schools.



Identify important sources of legal research for enhanced learning.

The Constitution, which is over 200 years old, continues to serve as the plan for American Government. It is considered to be the supreme law of the land. One of the most significant aspects of the Constitution is the Bill of Rights which provides information regarding the individual rights of citizens of the United States. The Constitution also places restrictions on the powers of the government in relation to citizens’ rights.

Students of school law should gain an understanding of the legal system that affects the operation of public schools. Since schools are considered governmental agencies, they are impacted by federal and state constitutions, federal and state statutes, and court decisions.

This chapter covers the basic sources of law and the relationship of each source of law to the operation of public schools. Each state has the responsibility to provide a free public school education for all children who reside within the state. The ultimate goal is to produce an educated citizenry that will benefit society.

Topical Outline of this Chapter        

Sources of Law State Agencies Local Boards of Education The U.S. System of Courts Analysis of an Appellate Court Opinion The Supreme Court The U.S. Supreme Court and Ethics Legal Information Retrieval System

State Agencies State legislatures in virtually all states have created administrative agencies to execute various laws and policies that affect public schools. One such agency is the state board of education. State boards of education govern the state department. They have the responsibility for the development and management of public schools within their respective states. State legislatures who represent the legal authority in determining educational policy may delegate specific legal responsibilities to state boards.

Points of Emphasis:

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1. State boards are often involved in setting certain standards for public schools.

2. State boards are closely involved in accreditation of state educational programs.

3. State boards may promulgate graduation requirements.

4. State boards may be responsible for implementing state testing and assessment programs.

Local Boards of Education School boards are corporate bodies who are responsible for implementing legislative policy as well as formulating local policies governing schools as long as they do not conflict with state statutes. Board members are state officers who act as a body when conducting official business of the state. Most of their power is derived from the legislature either expressed or implied through proper delegation. Individual board members have no power beyond that which is provided to the board as a corporate body.

Points of Emphasis: 1. Local boards are responsible for formulating policies that facilitate the goals of their respective districts.

2. Their powers are granted by the legislature.

3. School boards in most jurisdictions are responsible for selecting a local superintendent.

4. The superintendent is accountable to the board and is responsible for executing board policy.

5. The board–superintendent relationship is best described as a legislative–executive relationship.

Sources of Law The organization and administration of public schools are determined by constitutions, statutes, case law, state agencies, and school board policies which are derived by state statute. This chapter discusses how the various sources of law shape the administration of schools and enable public schools to operate within the boundaries of the law. Students should understand the legal framework in which public schools operate and the significant role that all of these sources of law play in the successful management of public schools.

At the beginning of the chapter, there is a discussion of the primary sources of law followed by an analysis of the U.S. System of Courts. It is important that students understand the critical role the courts play in interpreting the law. An understanding of the powers and functions of the courts will enhance students’ knowledge of the legal framework and how it impacts the management of public schools.

The U.S. System of Courts

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Students must understand the hierarchy of the system of courts in the United States as well as their prescribed powers and functions to gain greater insight into the legal dimensions of school law. Since public schools are considered agents of the states, particular attention should be focused on the role of state courts in school matters that do not involve a federal question. Consequently, many education cases are heard in state courts for this reason. Students should pay attention to Table 1.1 which includes the federal circuit courts of appeal and understand that circuit court decisions only affect schools which are located in the particular circuit where the decision is rendered.

Analysis of an Appellate Court Opinion This section covers the basic components of court opinions and is designed to facilitate an understanding of the court’s ruling. A summary is presented of case citations, procedures by which a case reaches the courts, the facts of the case, the court’s ruling, and justification as well as the disposition of the court.

A discussion of the U.S. Supreme Court’s review process is presented to enhance the student’s understanding of the means by which cases are heard by the highest court in the land.

This Supreme Court Ritual section briefly describes the inner workings of the highest court outlining voting procedures and the day-to-day duties of the Supreme Court justices.

The Supreme Court This chapter ends with interpretation of U.S. Supreme Court decisions which enables students to readily identify Supreme Court rulings based on parallel citations as well as the sources by which a Supreme Court decision may be located for research purposes. Finally, a listing of all Supreme Court Justices is included. These listings may assist students in examining the court’s ruling in light of the social and philosophical views of society. For example, patriotism was a high priority among most Americans during World War . Many post World War cases focused on civil rights issues as the country began to become concerned with individual rights and freedoms. Additionally, some courts were more liberal while others were more conservative based on the composition of the court as reflected by the President’s appointment of them and the Congress that confirmed the President’s nomination.

The U.S. Supreme Court and Ethics Currently, there are no enforceable ethics standards for the U.S. Supreme Court Justices. However, there are ethical standards that apply to lower court justices. Public confidence in the judicial system dictates the need for an ethics code that governs the conduct of U.S. Supreme Court Justices. Reports of luxury trips sponsored by high profile party donors with disclosure have prompted a call for greater accountability by High Court Justices. Other reports of real estate sales and land purchases have further

Chapter 1: Legal Framework Affecting Public Schools

exacerbated concerns regarding ethics on the Supreme Court. The American Bar Association and other groups have called for the adoption of an ethics code by the U.S. Supreme Court that aligns with lower court justices to strengthen and enhance public confidence with American citizens. On November 14, 2023, Justices announced that they will subject themselves to a Code of Ethics. The general view held by the public is that the adopted code does not represent real accountability based on the fact there appears to be a lack of an enforcement mechanism thereby leaving compliance in the hands of each justice. The High Court, in spite of this development, continues to command one of the weakest set of rules.

Points of Emphasis: 1. The U.S. Supreme Court is the highest court in the land.

2. Their decision impact lives and the direction of the country.

3. It is vitally important that the American people be aware of conduct that exceeds ethical standards.

4. Ethical standards provide an acceptable set of rules to be followed and a legal standard for High Court Justices.

Legal Information Retrieval System Students who desire to research and retrieve law cases may do so using two primary legal retrieval systems: Westlaw and LexisNexis. Westlaw contains case law, state and federal statutes, administrative codes, and law journal reviews. It is the most comprehensive source and contains 40,000 data bases which are indexed to the West Key Number System. The Supreme Court Reporter, the Federal Reporter, and the Federal Supplement can be accessed through Westlaw’s website, http://www.westlaw.com/ LexisNexis is not as comprehensive as Westlaw but does contain legal information derived from newspapers, magazines, and legal documents. Public records, unpublished opinions, and legal news are found in LexisNexis. One website, http://www.Lexis.com, is sought for legal research while the other, http://www.Nexis.com, is used by corporations, local, state, and federal government as well as by academicians.

Locating a Case by Citation New Jersey v. TLO will be used as an example to conduct case research.

A standard three-part citation indicates where to find the case: Volume Number 469

Reporter US

Page Number 325

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Simply entering this citation into a search box will enable the researcher to easily locate any case that is being researched. Another research option is locating the case style (name of court, case number, and names of plaintiffs and defendants) or case name.

Finding a Case by Case Name Enter in the find by name or case name search box: New Jersey v. TLO Case names are organized by party names. The plaintiff is listed first and the defendant second. Entering the style or name of a case will also facilitate the location of the case desired.

Locating a Case by Topic New Jersey v. TLO is decision centered on searches in public schools. Since this is a Supreme Court decision, a simple word search of ―public school searches and United States Supreme Court‖ will reveal the decisions of the Supreme Court relating to public school searches.

Chapter 2: Religion and the Public Schools

CHAPTER 2 - RELIGION AND THE PUBLIC SCHOOLS No issue has created more tension and controversy than church-state relations. There is a heated debate over the presence of religious practices in public school. Many religious proponents believe that prayer and Bible reading are essential to establishing a peaceful, respectful school environment and that religious freedom is necessary and must be respected in schools. These proponents are motivated based on the view that student performance can be enhanced if teachers understand the value of religious training students receive in their homes that allow them to express their religious views at school. In doing so, students will be more inclined to respect each other and cooperate in building a strong sense of community within the school. The courts have been fairly consistent in banning practices that do not create a clear line of separation between state activities and religious activities such as school-sponsored prayer, Bible reading and devotionals. Religious conflicts in public school have ranged from silent prayer and meditation to voluntary prayer at commencement exercises. Other conflicts have involved the use of school facilities, religious displays, Pledge of Allegiance, Bible reading, prayer at athletic contests and holiday celebrations. Courts have supported teaching the Bible, holiday celebrations, religious expression by students and silent meditation as not offending church-state relations. This chapter covers all relevant issues involving church–state relations with a focus on legally accepted practices and those that are deemed unacceptable based on the requirements of the First Amendment.

Readers of this chapter will be able to: 

Distinguish between religious practices that are permitted and those that are not based on First Amendment requirements.



Determine how the Fourteenth Amendment makes the First Amendment applicable to state action.



Describe the two essential clauses regarding religion: The Establishment Clause and the Free Exercise Clause as well as the legal prohibitions associated with each.



Analyze conditions that must be met for religious student clubs meeting on school property based on the Equal Access Act.



Explain the legal requirements that must be met for public aid to parochial schools.

Religion is one of the most emotional and controversial issues facing public schools as there are strong advocates for the inclusion of prayer and Bible reading in the nation’s schools as well as those who vehemently oppose their inclusion. This chapter provides a comprehensive discussion of religious issues that impact public schools with an emphasis on separation of church and state, the principle of neutrality, and the basic intent of the First Amendment to the U.S. Constitution regarding religion.

The start of the chapter provides an overview of the omission of religious liberties in the constitution as defended by Madison along with Jefferson’s view that a religious provision in the Bill of Rights was needed. These actions led to a series of proposals

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that included amendments aimed at preventing encroachment by the government into the rights and liberties of all citizens. These proposals eventually became the Bill of Rights. Noticeable among these rights was the separation of church and state. It is interesting to note that the composition of the U.S. Supreme Court may affect how separation of church and state is defined. Strict interpretation of this principle is found in the Lemon v. Kurtzman and Early v. Dicenso cases within the Aid to Parochial Schools section of the text. A more liberal view is found in the Agostini case also within the Aid to Parochial Schools section.

In a rather unusual move, the U.S. Supreme Court reversed its decision in the 1985 Aquilar v. Felton case which disallowed federal funds to cover salaries for public school teachers who teach in parochial schools. In a 5-4 decision, the court held that it was an unconstitutional establishment of religion for public school teachers to provide remedial classes in religious schools. Justices Powell, Marshall, Brennan, Blackmun, and Stevens voted against providing aid to parochial schools while Justices Rehnquist, O’Connor, Burger, and White supported aid to parochial schools. Interestingly, the Agostini case was also a 5-4 decision. Justices O’Connor, Scalia, Rehnquist, Kennedy, and Thomas constituted the new majority that supported aid to parochial schools.

Justices Souter, Stevens, Breyer, and Ginsberg voted against aid to parochial schools.

School-sponsored prayer and Bible reading are emotional issues that permeate public schools today as the Congress, legislators, and President Bush advocated the return of prayer and Bible reading to public schools. A number of states have passed legislation calling for silent prayer and meditation in public schools. These efforts have largely been unsuccessful. In spite of a lack of success, states continue their efforts to achieve this goal.

Topical Outline of this Chapter School-Sponsored Prayer Engle v. Vitale School-Sponsored Bible Reading Abington School District v. Schempp Wallace v. Jaffree Lemon v. Kurtzman and Early v. Dicenso Prayer at School Events Chandler v. Siegleman Santa Fe Independent School District v. Jane Doe School Employees and Religious Freedom Kennedy v. Bremerton School District American Humanist Association v. McCartyFreedom From Religious Foundation vs.

Chino Valley School Board of Education

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Prayer at Legislative Meetings Aid to Parochial Schools Carson v. Makin Trinity Lutheran Church of Columbia, Inc. v. Comer Use of School Facilities by Religious Student Groups Bronx Household of Faith v. Community School District No. 10 Religious Banners at Football Games Religious Activities and Holiday Programs Merry Christmas Bill Teaching the Bible in Schools Gibson v. Lee Wiley v. Franklin Intelligent Design Kitzmiller v. Dover Area School District Theory of Evolution Epperson v. Arkansas People of State of Illinois ex rel and McCollum v. Board of Education of District No. 71, Champaign County, Illinois Zorach v. Clauson Pledge of Allegiance Religious Rights of Teachers in the School Environment May v. Evansville School-Sponsored Prayer School-sponsored prayer is clearly prohibited in public schools. It violates the Establishment Clause of the First Amendment. In spite of the landmark ruling by the U.S. Supreme Court in Engle v. Vitale, prayer in public schools remains at the center of controversy as lawmakers across the country seek to find ways to include prayer in public schools.

Engle v. Vitale Discussion: New York state law mandated a brief nondenominational daily prayer to be recited aloud by each class in the public schools in the presence of a teacher. Children who did not wish to recite the prayer were excused from this exercise. This practice was

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challenged by parents on constitutional grounds as an impermissible accommodation to religion.

Points of Emphasis: 1. The state’s encouragement of daily recitation of prayer in public schools is unconstitutional.

2. Any statute authorizing prayer recitation in the public schools is in direct violation of the First Amendment which prohibits the establishment of religion by a state.

3. The court stressed that neither the state nor the federal government can constitutionally force a person to profess a belief or disbelief in any religion nor can it pass laws which aid all religions against nonbelievers.

4. The court used a test which later became the first two prongs of the Lemon test.

School-Sponsored Bible Reading School-sponsored Bible reading in public schools is illegal and in violation of the Establishment Clause. The U.S. Supreme Court ruled against school-sponsored Bible reading. Students, however, may read their Bibles during noninstructional times. The Bible may also be included as a component of history literature or philosophy courses.

The Bible may also be taught so long as it does not violate the Establishment Clause.

Abington School District v. Schempp Discussion: This case challenging daily Bible reading emerged in Pennsylvania. A companion case, Murray v. Curlett also challenged the practice of daily Bible reading in the public schools in Baltimore. Both cases reached the Supreme Court during the same time period and were consolidated. These practices were obviously held to be unconstitutional by an 8-1 decision of the Supreme Court.

Points of Emphasis: 1. The primary effect test was invoked by the court to determine the impact of the statute and practice relating to each case.

2. If the primary effect of a law or practice has the effect of advancing or inhibiting religion or creating excessive entanglement between church and state, then it is not permissible.

3. The principle of neutrality is breached when there is no clear line of separation between church and state.

4. The Establishment Clause of the First Amendment was made applicable to the states by virtue of the Fourteenth Amendment.

5. The court did not suggest that the use of the Bible as a historical literary, ethical, or philosophical document is impermissible if a secular purpose is clearly served.

Wallace v. Jaffree

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Discussion: The Alabama legislature passed a statute authorizing a daily one-minute period of silence for meditation or voluntary prayer in the public schools. The court held that a silent meditation statute which does not demonstrate a clearly secular purpose does violate the Establishment Clause of the First Amendment.

Points of Emphasis: 1. The statute in Jaffree failed the first prong of the tripartite test which found that no secular purpose was served.

2. There was a clear legislative intent to reestablish prayer in the public schools as evidenced by the sponsor of the bill.

3. The inclusion of the phrase ―voluntary prayer‖ suggested that the statute was enacted to convey state approval of a religious activity which again violated the first prong of the Lemon test and the First Amendment Establishment Clause.

Kennedy v. Bremerton Discussion: The U.S. Supreme Court ruled in a 6-3 decision that a high school coach had a right to offer a postgame prayer at midfield at a football game.

Points of Emphasis: 1. The coach’s prayer was not endorsed by the school.

2. Student athletes were not coerced to participate.

3. Only willing students joined the coach to pray.

4. The coach’s freedom of expression rights were protected under the First Amendment.

Prayer at Legislative Meetings Prayer at legislative meetings is a highly charged issue in which there is agreement and disagreement regarding whether it is permissible. The nation’s legislature has offered similar prayers since its inception. The U.S. Supreme Court invokes a national statement that ends, ―God Save the United States and this Honorable Court.‖ A challenge has emerged in New York’s Town Board Meetings that allow prayer by volunteers at each monthly meeting. The practice dates back to 1998. In Galloway v.

Town of Greece, two local women are challenging this practice alleging an Establishment Clause violation based on the Christian nature of the activity. A federal appeals court agreed and held the practice to be unconstitutional. The U.S. Supreme Court debated whether a public prayer at a New York Town Board Meeting is permissible. Subsequently, a divided court ruled that legislative bodies such as city councils can in fact begin their meetings with prayer, even if it plainly favors a specific religion. This 5-4 decision is landmark in that it opens the door for every governmental body in the United States to offer prayer before its meetings. However, the sharp

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disagreement among the Justices evolved around the view that the majority ruling could encourage public bodies to provide more freedom for religious expression in their ceremonial prayers and less concern regarding objections of religious minorities. The High Court’s five conservatives suggested that legislative prayers need not omit references to a specific religion—the prayers in question often invoked Jesus Christ and the resurrection. Those who pray before legislative meetings should be ―unfettered‖ by what government officials find appropriate according to the High Court.

American Humanist v. McCarty Discussion: The Fifth Circuit Court of Appeals upheld a school board’s practice of offering a prayer to begin its school board meeting.

Points of Emphasis: 1. The court viewed that an opening prayer at a legislative meeting triggered ―a legislative exception.‖ 2. Public attendance was not required.

3. No student representatives attended board meetings.

4. Prayers were recited for the benefit of board members.

Freedom From Religious Foundation v. Chino Valley Unified School District Board of Education Discussion: The court held that the practice of offering a prayer and observing other religious activities violated the Establishment Clause of the First Amendment.

Points of Emphasis: 1. Other religious activities were practiced aside from prayer.

2. A devotional atmosphere was created based on the board’s practices.

3. Board meetings were televised.

4. Many students attended board meetings.

Aid to Parochial Schools Public aid to parochial schools has created numerous legal questions and conflicts. School districts have been challenged on issues involving the awarding of free textbooks, transportation, tax credits, and auxiliary services. Many of these issues have received mixed reviews by the courts.

In cases where evidence reveals that the aid directly benefited the child rather than the parochial school, courts have been permissive in allowing certain types of aid under the child benefit theory. This theory is valid if parochial children are the primary beneficiaries of a public-supported service provided for all children. Conversely, if the aid serves to benefit primarily parochial schools, it will be deemed impermissible and a

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violation of the First Amendment. When state activities cannot be clearly separated from religious activities, excessive entanglement occurs, thus preventing a clear line of separation between the two.

Carson v. Makin Discussion: The state of Maine created a tuition assistance program based on small towns not having a high school. Parents were restricted in choosing only schools that were nonsectarian. Parents sued asserting that they should be able to send their children to schools that did not qualify as nonsectarian. The court agreed and supported parents in its decision.

Points of Emphasis: 1. The tuition assistance program was designed to assist children.

2. Any public program which provides general services to students cannot discriminate against students based on where they attend school.

3. The state’s program was in conflict with parents’ free exercise rights.

4. Maine could not choose to subsidize some private schools but not others on the basis of religious character.

5. There was no evidence of an Establishment Clause Violation.

Trinity Lutheran Church of Columbia, Inc. v. Comer Discussion: The case emerged when the Missouri Department of Natural Resources denied religious organizations from its playground scrap tire surface materials program based solely on their religious character in violation of the First Amendment Free Exercise Clause. This case reached the U.S. Supreme Court that held that religious schools had the right to benefit from a state-funded playground resurfacing program.

Points of Emphasis: 1. Any public funded program may not exclude religious organizations from receiving benefits that other nonreligious organizations receive.

2. Excluding public benefits from religious organizations violates the Free Exercise provision of the First Amendment.

3. Indirect state benefits must be dispersed to students attending religious schools based on the ―Child Benefit Provision.‖ 4. Students and religious institutions gain from the provision of government welfare benefits.

Lemon v. Kurtzman and Early v. Dicenso

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Discussion: These two cases are among the most significant early cases involving state aid to parochial schools. The U.S. Supreme Court invalidated a Pennsylvania statute that provided state funds to finance the operation of parochial schools.

Simultaneously, the court also considered a Rhode Island case, Early v. Dicenso, which involved a statute calling for a fifteen percent salary supplement to parochial school teachers who taught nonreligious subjects that were offered in public schools utilizing only public school teaching material.

The Supreme Court held that a law providing state subsidy for nonpublic teachers is unconstitutional even when the funds are paid only to teachers who teach secular subjects. Similarly, a law providing for state reimbursement to nonpublic schools for expenses incurred in teaching secular subjects is also unconstitutional.

Points of Emphasis: 1. The tripartite test requires that a statute must have a secular legislative purpose. It must have a principal effect that neither advances nor inhibits religion and lastly must not foster an excessive governmental entanglement with religion.

2. Although both statutes advocated a secular purpose, they both created excessive entanglement and fostered religion.

3. Programs of this nature have a tendency to expand with time and create larger demands on public funds thus creating greater concern for maintaining a clear line of separation between church and state.

Prayer at School Events Student-led prayer at school events have received increased attention during the decade of the 90’s and into the twenty-first century. At issue is the constitutionality of student-led prayers in public schools. Is it a freedom of expression right afforded to students or is it a violation of the Establishment Clause of the First Amendment?

Chandler v. Siegleman Discussion: The American Civil Liberties Union challenged religious practices on behalf of Michael Chandler, an educator in DeKalb County, Alabama. Challenging the practice of offering student-led prayer at athletic events, the Eleventh Circuit Court upheld the students and suggested that students do not shed their rights when they enter the school house door. The court rejected the argument that prayer is forbidden by the First Amendment and supported the concept of free speech as guaranteed by the First Amendment.

Points of Emphasis: 1. The First Amendment does not expressly prohibit student-initiated prayer.

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2. Student-led prayer must be strictly voluntary. The school can play no role in encouraging or prohibiting student-initiated prayer. School personnel must remain completely neutral.

3. There is nothing in the constitution that prohibits prayer.

Santa Fe Independent School District v. Jane Doe Discussion: In a contrasting case, the U.S. Supreme Court held in a 6-3 decision that banned student-led prayer at athletic contests, graduation, and other school-sponsored events. The court stated that the delivery of a message by a student, such as an invocation on school property, is illegal. It is particularly troublesome when it occurs on school property under the sponsorship of the school. A critical aspect of this ruling involved school policy that implicitly encouraged public prayer. Thus, it was difficult for school officials to argue that speech by a student was indeed private speech.

Points of Emphasis: 1. The primary difference in the rulings in the Chandler case versus the Santa Fe case is the school’s involvement based on school policy.

2. The principle of neutrality was violated when student-led prayer was sanctioned and encouraged by school faculty.

3. The school implemented a policy in the Santa Fe case that allowed the school’s student council chaplain to deliver a prayer over the public address system before each home varsity football game.

4. The fact that the school altered its policy to authorize student elections to determine whether invocation should be delivered and to also select the spokesperson to deliver did not alter the court’s ruling.

5. The revised policy violated the Establishment Clause of the First Amendment.

6. The Fifth Circuit Court held in Jones v. Clear Creek Independent School District and Adler v. Duval County School Board that voluntary student-initiated prayer without involvement of school personnel was not an Establishment Clause violation.

7. The Sixth Circuit Court disallowed prayer at school board meetings in stating that prayer at such meetings was potentially coercive to students who attended. Further, it has the tendency to endorse Christianity while excessively entangling the board in religious matters.

Use of School Facilities by Religious Student Groups Congress attempted to minimize conflict between school officials and student groups when it passed the Equal Access Act in 1984 for the expressed purpose of providing student religious clubs equal opportunities to access high school facilities.

Under this statute, it is unlawful for any public secondary school that receives federal financial assistance that has created a ―limited open forum‖ to deny access to studentinitiated groups on the basis of religion, political, or philosophical content of their speech.

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Points of Emphasis: 1. A limited open forum exists when one or more noncurricular-related student groups are allowed to meet on school premises during noninstructional time.

2. Review Mergens v.Board of Education of the Westside Community Schools where a district judge ruled that an Omaha district did not create an open forum for student speech and need not allow a Bible student club to meet at high school.

3. In a 1987 case, Garnett v. Renton School District, a U.S. district judge ruled that a Seattle district did not have to accommodate a prayer club at the high school. The judge further ruled that the Equal Access Act did not apply in Washington State because the state’s constitution contained stricter language regarding separation of church and state than was found in the First Amendment. The appellate court unanimously affirmed the lower court’s ruling.

4. When public secondary school officials allow one noncurricular-related student group to meet on school property during noninstructional times, they trigger the requirements of the Equal Access Act. Thus, they may not deny other clubs equal access to meet on school premises during noninstructional time based on the content of their speech.

5. Criteria, rules, and regulations governing access by student clubs should be carefully drawn and communicated to all students.

Legal challenges regarding facility use usually stem from community-based religious groups. The courts generally rely on the free speech test in addressing church/state issues. A leading case, Lamb’s Chapel v. Center Moriches School District involved a closed forum. An Evangelical Christian Church applied on four occasions seeking approval to use public facilities of a local high school for various nonsecular functions including family-oriented movies. School officials relied on a New York State law that bars the use of district facilities for religious purposes. The minister of the church brought legal action against the district claiming First and Fourteenth Amendment violations based on state law. The fundamental issue raised is whether state law violates the free speech clause of the First Amendment by denying access to school facilities by the church.

Points of Emphasis: 1. The district, like a private owner of property, could have preserved its property for the use to which it was dedicated and need not have permitted any after-hours use of its property.

2. Once the district voluntarily made its facilities available for use by after-hours groups, it could not enforce rules designed to exclude expression of specific points of view.

3. In effect, the State of New York and the school district created a ―limited‖ open forum.

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4. The film in question actually included clips on child rearing and family values which was viewed by the district as having religious connotations.

5. The Supreme Court unanimously held that the district’s rule was unconstitutional as applied to the film series.

6. The court concluded that to permit Lamb’s Chapel to use the facilities would not violate the Establishment Clause because it would have neither the purpose nor primary effect of advancing or inhibiting religion and would not foster excessive entanglement with religion.

Religious Banners at Football Games Discussion: A group of cheerleaders who use religious banners at football games in Texas was supported by the court. The girls displayed Bible verses on run-through banners. School leaders banned this practice asserting that this practice violated the Establishment Clause of the First Amendment. The girls sued the school district and received a favorable ruling by the court as they claimed that their freedom of expression rights were violated. The Anti-Defamation League criticized the decision in stating that football games are a quintessential school event. Further, religious messages convey that the school promotes religion.

Points of Emphasis: 1. The practice of student banners was not initiated or endorsed by the school.

2. Student-initiated messages are based on freedom of expression rights.

3. The community unanimously supported the banners.

4. If the school promoted or encouraged the students’ use of banners, it would constitute an Establishment Clause violation.

Bronx Household of Faith v. Community School District No. 10 Discussion: This case was distinguished from Lamb’s Chapel by ruling that: (1) the use of school facilities by community groups created an open forum rather than a traditional public forum; (2) under the First Amendment, government restrictions on speech in a public forum are held to a very strict scrutiny; (3) in a limited open forum such as a public school, the government can restrict speech if it makes reasonable and viewpoint neutral distinctions among speeches; and, (4) public school officials reasonably might wish to avoid the appearance of sponsoring religious services.

Points of Emphasis: 1. The use of public school facilities may be used for religious discussions if a school district has a limited open forum.

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2. Religious services may be disallowed even though the district has a limited open forum to avoid the appearance of sponsoring religious services.

3. The use of school facilities by community groups created an open forum rather than a traditional forum.

Religious Activities and Holiday Programs Merry Christmas Bill Discussion: The legislature in Texas passed a bill that protects Texas’s right to acknowledge holidays on school grounds. This bill is referred to as the Merry Christmas Bill. The passage of this bill is intended to protect teachers and students in public schools who previously had been reluctant to mention Christmas for fear that it would prompt litigation.

Points of Emphasis: 1. This bill provides protection for celebrations including Christmas, Hanukkah, Kwanzaa, and other celebrations.

2. School personnel and children were referring to Christmas trees as holiday trees prior to this legislation.

3. The passage of this bill was based on the right of Texans to acknowledge traditional winter holidays.

Golden v. Rossford Exempted Village School District Discussion: Ohio school students were members of a band that performed mostly Christmas songs. The father of one of the students, who was also a school board member, requested approval for a band performance at a school-wide assembly. The request was denied. Board members sued claiming that the cancellation was based on their Christmas messages. The court rejected the band members’ claim based on the fact that the assembly was a public forum, and that the district is required to maintain a viewpoint-neutral position.

Points of Emphasis: 1. The district is required to remain neutral in performances and activities that carry a religious connotation.

2. The Establishment Clause of the First Amendment prohibits the school from supporting a religious-oriented program.

3. The band may have succeeded if it had played other types of music along with Christmas music and did so for entertainment value.

Releasing public school students for religious instruction has not been a major issue in recent years. Landmark cases emerged in 1948 when the U.S. Supreme Court

Chapter 2: Religion and the Public Schools

held that excusing students to attend religious classes for a part of their secular schedule is unconstitutional.

People of State of Illinois ex rel. and McCollum v. Board of Education of District No. 71, Champaign County, Illinois Discussion: An Illinois school board permitted representatives of several religious groups to teach classes to students in grades four through nine whose parents signed permission slips to allow them to do so. Classes were held during school hours inside the school building. Class attendance records were maintained by religious instruction resulting in a close relationship between the school and religious organizations. The state supreme court affirmed the trial court’s decision upholding this practice. The U.S. Supreme Court reversed that decision by concluding that ―the state may not permit religious teaching on tax-supported public school property during regular school hours.‖ This practice aids religion through the implementation of compulsory attendance laws and is deemed to be a violation of the First Amendment which created a wall of separation between church and state that must be respected.

Points of Emphasis: 1. The First Amendment prohibits state establishment of religion.

2. The use of school buildings for religious instruction is unconstitutional because it fails to meet the separation of church and state requirement.

3. The use of public school personnel to monitor attendance is tantamount to state support of religious class attendance.

Zorach v. Clauson Discussion: This case involved the same subject matter—released time for religious instruction but had a slightly different twist. This New York City case permitted public schools to release students during the school day to attend religious instruction at religious centers at locations around the city. All administrative activities were coordinated by religious organizations which assumed responsibility for transportation and attendance reporting. The U.S. Supreme Court upheld this practice based on noncompulsory attendance and no use of public school resources.

Points of Emphasis: 1. While both programs were voluntary in nature, McCollum involved public school resources while Zorach did not.

2. Public school classrooms were used during the day in McCollum.

3. Religious centers were used in Zorach rather than classrooms.

4. Public school services were provided in McCollum in the form of attendance reporting and monitoring of students attending religious services.

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5. All administrative services including attendance, transportation, etc. were provided by the religious center in Zorach.

6. The primary difference in the two cases involved the use of school resources in one and an absence of school resources in the other.

Teaching the Bible in Schools It has been established by the courts that the Bible may be used in a secular context. The U.S. Supreme Court held in the Schempp case and in Stone v. Graham that the Bible may be used constitutionally as an appropriate study of history, civilization ethics, or comparative religion. The American Association of School Administrators (A A SA) has also endorsed the teaching of the Bible in public schools. In spite of support for Bible teaching in schools, there is also opposition which leads some school officials to be reluctant to pursue this issue for fear of legal challenges. There is tension between church and state as reflected by the following cases: Gibson v. Lee Discussion: Plaintiffs challenged the practice of teaching the Bible in public school by alleging that the specific curricula adopted by the school board did not present the Bible objectively as a part of a secular education. The court held for the school district in ruling that the district satisfied the secular purpose requirement by adopting a curriculum which was modified on the advice of the school board’s legal counsel. The court noted further that teachers had been properly trained on how and what to teach and what not to teach.

Wiley v. Franklin Discussion: The court held in this case that the account of the resurrection of Jesus Christ as presented in the New Testament constitutes the central statement of the Christian religious faith. The court also noted that the only reasonable interpretation of the resurrection is a religious interpretation. The court concluded that it was difficult to conceive how the resurrection might be taught as secular literature or history.

Points of Emphasis: 1. An infringement of plaintiffs’ First Amendment rights guaranteed by the Establishment Clause even for minimal periods of time constitutes irreparable injury.

2. This is no First Amendment conflict with separation of church and state when the Bible is used appropriately in a secular context in the study of history, ethics, literature, etc.

3. Proselytization of students by teachers of the Bible violates the Establishment Clause of the First Amendment.

4. The role of religion in the development of western civilization may not receive proper treatment based on apprehension among school officials to allow Bible teaching in public schools.

Chapter 2: Religion and the Public Schools

Intelligent Design Intelligent design has generated considerable controversy as it has been integrated into public school curricula by a number of school officials. Opposition has emerged from parents and some teachers who rejected intelligent design as a viable scientific alternative to the theory of evolution. Parents have challenged its inclusion into school curricula on constitutional grounds by suggesting that intelligent design is a means of inserting Christian beliefs into science classes which constitutes a violation of the First Amendment’s requirement regarding separation of church and State. This challenge is reflected in the case below.

Kitzmiller v. Dover Area School District Discussion: Eleven parents, in conjunction with the American Civil Liberties Union of Pennsylvania, filed suit challenging the school district for its policy which requires students to be introduced to the intelligent design theory along with the theory of evolution in ninth-grade biology classes. Based on the policy, four paragraphs would be read to biology students describing evolution as not being factual while simultaneously introducing intelligent design. Plaintiffs argue that the theory is not a science and should not be taught in public schools because it violates the Constitution. The U.S. District Judges agree in ruling that it is unconstitutional to teach intelligent design, a concept which is critical of Darwin’s theory of evolution. The judge held that intelligent design has religious connotations.

Points of Emphasis: 1. Intelligent design is the belief that certain aspects of human and animal life depict signs of having been formed by an unnamed guiding force.

2. Supporters of intelligent design attempted to demonstrate that the concept has scientific legitimacy.

3. The vast majority of scientists have rejected intelligent design as a scientific theory.

4. Plaintiffs argued that intelligent design is not a scientific concept but rather a faithbased belief similar to biblically based creationism.

5. A U.S. District Court rejected the scientific legitimacy and held that the theory has religious connotations.

Theory of Evolution The theory of evolution advances the view that all life is related and descended from a common ancestor. There have been numerous legal challenges regarding the inclusion of this theory in public school curricula. A number of states banned evolution from public school curricula in the past based on the view that it was in direct conflict with the biblical version of creation. An early case based on this view is discussed below.

Epperson v. Arkansas

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Discussion: The Supreme Court examined the constitutionality of an Arkansas law that made it illegal for teachers to teach the theory of evolution. The court held that Arkansas law could not be defended as an act of religious neutrality. The court found that the law did not attempt to ban curricula in schools and universities regarding all discussion of the origin of man but rather a particular theory because it was thought to conflict with the biblical account.

The Epperson ruling was in striking contrast to the famous Scopes ―Monkey Trial‖ of Tennessee in 1927 in which the Tennessee courts upheld a law that prohibited the teaching of any theory that conflicted with the Genesis version of creation.

Points of Emphasis: 1. Legislatures in a number of states have sought to discount the theory of evolution in supporting the teaching of creationism in public schools.

2. Recent attempts by legislatures to insert creationism into public school curriculum have been reflected in their attempts to incorporate intelligent design as a legitimate scientific theory.

3. In 1987, the Supreme Court invalidated Louisiana’s statutes that called for equal time for creationism science during times in which evolution was introduced into the curriculum in the Edwards v. Aquillard case.

4. The court further concluded that the law’s intent was to discredit a scientific focus in order to advance religious beliefs which violate the Establishment Clause of the First Amendment.

5. The First Amendment does not allow the state to require that teaching and learning be tailored to the principles or prohibitions of any religious sect or dogma according to the Supreme Court in Keyishian v. Board of Regents.

Pledge of Allegiance The daily ritual of reciting the pledge was heard by the Ninth Circuit Court in California. The plaintiff, Michael R. Newdow, an atheist, filed a suit on his daughter’s behalf challenging the inclusion of ―under God‖ in the pledge. Newdow did not have custody of his daughter. Interestingly, the Ninth Circuit Court held in a 2-1 ruling that the inclusion of ―under God‖ was an unconstitutional establishment of religion by the government. A larger panel of Ninth Circuit judges heard the case and supported the prior decision of the three judge panel. The Supreme Court on June 14, 2004, overturned the Ninth Circuit decision on technical grounds thus preserving the contested phrase ―under God we trust‖ in the pledge. The court further held that Newdow as a noncustodial parent had no legal standing to challenge the pledge since he was not the custodial parent of his ten-year-old daughter.

Points of Emphasis: 1. The U.S. Supreme Court fell short of addressing whether the inclusion of the reference to God was an impermissible practice regarding an unconstitutional blending of church and state.

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2. The case, since the court did not rule on the merits of this ruling, does not prevent a similar lawsuit in the future on this very same issue. Another challengeemerged by other plaintiffs and Newdow.

3. Forty-nine states filed briefs supporting the Pledge of Allegiance.

4. ―In God we trust‖ found on U.S. coins, has been held to be a national slogan rather than the government’s endorsement of religion.

Religious Rights of Teachers in the School Environment The First Amendment guarantees religious freedom to all citizens. Title VII of the Civil Rights Act of 1964 further prohibits any forms of discrimination based on religion.

Teachers, like all citizens, possess religious rights that must be respected. As with all rights, religious rights are not without reasonable limits. Restrictions may be imposed on teachers where the exercise of their religious rights infringe upon others in the school environment and adversely affect teaching the prescribed curriculum or create excessive entanglement.

May v. Evansville Discussion: This case arose regarding the use of school facilities by teachers for religious meetings. A teacher brought suit against the school board, its members, and the superintendent seeking an injunction to prohibit banning religious meetings by teachers on school property. The U.S. district court granted summary judgment for the school board. The teacher appealed. The court of appeals held for the school district.

Points of Emphasis: 1. The court held that teachers had no right under the First Amendment free speech clause to hold prayer meetings on school property before the school day begins and students arrive.

2. This prohibition does not preclude teachers holding such meetings at facilities away from the school before the school day begins; thus, their religious rights may be exercised but not in public school facilities.

3. School officials in this case had consistently applied a policy of prohibiting the use of school facilities for religious activity. Thus, the school district did not have an open forum as the teacher contended.

Chapter 3: Student Rights and Restrictions

CHAPTER 3 - STUDENT RIGHTS AND RESTRICTIONS Do students enjoy constitutional rights in schools? Are there restrictions on the rights of students? The landmark Tinker ruling by the High Court altered the relationship between school officials when it was affirmed that students possess the same constitutional rights as do adults and their rights do not end at the schoolhouse door.

While students do possess their constitutional rights, they are not absolute. School officials may impose reasonable restrictions on students’ rights so long as there is a justifiable reason to do so. Justifiable reasons may include violation of school rules, disrespect for authority, destruction of property, intimidating other students, and protecting the safety of students and school personnel.

Readers of the chapter should be able to: 

Discuss the landmark ruling on student rights and the legal ramifications for school officials.



Explain the latitude school officials are granted to restrict constitutional rights of students.



Describe specifically the concept of in loco parentis and what it means for school officials in exerting reasonable control over student behavior.



Explain conditions or standards that must be met which allow students to engage in protests and demonstrations.

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Describe the circumstances that allow students to freely express themselves on controversial topics in the school’s newspaper.

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Identify constraints that may be placed on student dress as a form of free expression.



Explain the distinction between probable cause and reasonable suspicion and the implications for student searches in schools.

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Differentiate the legal requirement governing school suspensions versus school expulsions.

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Discuss the elements of due process and the substantive and procedural requirements associated with each.

This chapter addresses the relationship of students and school personnel with respect to students’ rights and freedoms. Certified school personnel acting in loco parentis may exercise reasonable control over students regarding conduct and academic expectations in public schools. Since students enjoy many of the same constitutional rights as do adults, their rights must be recognized and respected by school personnel.

Students’ rights may be restricted so long as certified school personnel have a legitimate basis for doing so. The burden rests with school personnel to demonstrate that a legitimate state interest formed the basis to impose restrictions on the rights of

Chapter 3: Student Rights and Restrictions

students. This chapter seeks to define the rights of students in the school setting and the limitations that may be imposed under certain circumstances.

Topical Outline of this Chapter Reasonableness Student Interest Versus State Interest In Loco Parentis Freedom of Expression Tinker v. Des Moines Independent Community School District Blau v. Fort Thomas Public School District Nuxoll v. Indiana Prairie School District Evans v. Bayers Scott v. School Board of Alachua County Mahoney v. Area School District V.B.L. Charter Day School, Inc.dd v. Peltier U.S. Supreme Court: Search and Cell Phones Search and Social Media Jackson v. McCurry School Sponsored Newspapers Hazelwood School District v. Kuhlmeier Search and Seizure New Jersey v. TLO Comwlth. v. Dillon D. Watkins v. Millenium A.H. v. State Strip Searches Cornfield by Lewis v. Consolidated School District No. 230 Safford Unified School District #1 et. al. v. April Redding Alcohol and Breathalyzer Testing Joye v Hunterdon Central Regional High School Board of Education Due Process Price v. New York City Board of Education

Chapter 3: Student Rights and Restrictions

Procedural and Substantive Due Process In re Gault Goss v. Lopez Vagueness Doctrine and Presumption Standard Corporal Punishment Ingraham v. Wright Kirkland v. Greene County Board of Education Jackson v. Oklahoma City Public Schools School Suspension and Expulsion Dixon v. Alabama State Board of Education Sherrell v. Northern Community School Corporation Classroom Harassment Davis v. Monroe County Board of Education Jane Doe v. Fairfax County School Board This chapter begins with a discussion of the authority that school officials have to promulgate rules and regulations governing student behavior with the caveat that the exercise of this authority must be deemed reasonable. Additionally, these rules must be stated clearly and communicated in a manner that allows students to grasp their meaning without undue difficulty. It is important to note that in loco parentis (in place of parents) is not a license to treat students in an arbitrary and capricious manner. There must be sufficient justification to support enforcement of rules and regulations if challenged by parents or legal guardians.

Reasonableness The courts support reasonable administrative actions by school officials. A fair and reasonable exercise of administrative authority will generally withstand court scrutiny. It is oftentimes necessary to access a school rule or regulation in the context of how it is applied in specific situations. Reasonable rules are those that do not violate the rights of students. Reasonableness requires prudence by school officials and teachers which means that their actions must be consistent with those of the average parent under the same or similar circumstances. Courts in assessing the legality of a rule require evidence of sufficient justification by school officials regarding the need to enforce the policy or rule. Reasonable regulations are those that contribute to facilitating the educational process.

Student Interest versus State Interest There are certain rights that students enjoy in public schools. While these rights exist, they are not unlimited but rather subject to reasonable limitations by certified school personnel. For example, students can expect:

Chapter 3: Student Rights and Restrictions

(1) equality of treatment by school personnel, (2) reasonable protection against invasion of their privacy rights, (3) due process, (4) equal protection, and (5) fundamental fairness by teachers and school officials.

School officials can reasonably expect: (1) peaceful schools, (2) reasonable adherence to school rules by students, (3) students to attend school regularly, (4) to discipline students when necessary, and (5) to remove unruly students from the school. The courts attempt to balance the rights of students against the interest of public schools.

In Loco Parentis In loco parentis (in place of parents) is a legal concept that provides teachers and administrators the authority to control student conduct in public schools. Since students have a constitutionally protected interest in attending public schools, in loco parentis is limited to issues involving student conduct and academic matters. Since most cases involving student conduct involves the use of discretion except in specific instances that are addressed by school policy, teachers and administrators are expected to exercise reasonable judgment in resolving issues regarding conduct. In private matters unrelated to school issues, teachers and administrators are not covered by in loco parentis. In loco parentis is most often linked with student discipline.

Freedom of Expression Freedom of expression is derived from the First Amendment. Students enjoy First Amendment privileges subject to reasonable restrictions. If the exercise of First Amendment freedoms infringe upon the rights of others, then that may be restricted. If the exercise of First Amendment freedoms creates material or substantial disruption, it also may be restricted.

Tinker v. DesMoines Independent Community School District Discussion: The Tinker case is considered a landmark case regarding freedom of expression rights of students in public schools. Three students wore black armbands to school as a form of silent protest of the Vietnam War. These students were suspended even though there was no evidence that their protest created disruption in the school.

School officials disallowed the wearing of armbands but allowed students to wear other symbols.

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The U.S. Supreme Court held for the students. In essence, the court stated that it was unconstitutional for school officials to discipline students for a peaceful form of symbolic expression absent a showing of substantial or material disruption. The wearing of armbands is a form of expression protected by the First Amendment.

This case was significant in that it defined the scope of students’ freedom of expression rights in public schools for the very first time. It also placed restrictions on school officials’ authority in freedom of expression cases involving students. The Tinker case redefined relationships between students and school officials with respect to constitutional protections afforded students in public schools.

Points of Emphasis: 1. Students may express their views in public schools when such expressions are orderly and do not impair the educational process.

2. The mere displeasure or apprehension of a form of expression or apprehension or fear of a disturbance is not sufficient to justify banning such expressions by school officials.

3. School officials do not possess absolute authority over students.

4. Students in public schools are persons under the constitution.

5. Students possess fundamental rights which must be respected by school officials subject to reasonable restrictions.

6. Student rights do not end when they enter school.

Blau v. Fort Thomas Public School District Discussion: The Sixth Circuit Court of Appeals held that a middle school’s dress code does not violate students’ rights to freedom of expression or substantive due process.

Points of Emphasis: 1. Reasonable student dress codes do not violate parents’ substantive due process right to control the dress of their children.

2. Reasonable dress codes designed to improve safety, discipline, and academic achievement will consistently meet court scrutiny.

3. There is no dispute among the courts that school officials have the legal authority to enforce reasonable dress codes.

4. The prevailing view among the courts is that dress codes do not rise to the level of First Amendment challenges.

Nuxoll v. Indiana Prairie School District Discussion: An Illinois student who opposed a student ―Day of Silence‖ wore a T-shirt stating ―Be Happy, Not Gay‖ and ―My Day of Silence.‖ He was required to ink out the ―Not Gay‖ phrase by a school official. To avoid discipline, the student did not wear the

Chapter 3: Student Rights and Restrictions

T-shirt the next day. However, he sued school officials arguing that the First Amendment permitted his expression. The U.S. Court of Appeals, Seventh Circuit, found the school banned ―Be Happy, Not Gay‖ under a rule forbidding derogatory comments regarding race, ethnicity, religion, gender, and sexual orientation to be reasonable. The slogan however, was not derogatory or targeted. The court did not order the school to suspend its rule pending the outcome of the student’s lawsuit, and it allowed the student to wear the T-shirt on a preliminary basis.

Points of Emphasis: 1. The courts are consistent in banning slogans that mock others on the basis of race, gender, ethnicity, religion, color, and nationality.

2. The courts also are consistent in disallowing slogans that create material and substantial disruption to the educational process.

3. The courts require proof of evidence that a particular students’ expression will pose a significant threat to an orderly environment.

4. The courts recognize that students possess First Amendment rights that cannot be violated unless there is a compelling reason to do so.

Scott v. School Board of Alachua County Discussion: The U.S. Court of Appeals for the Eleventh Circuit held that a high school principal’s unwritten policy banning the display of Confederate flag symbols on school grounds is constitutional.

Points of Emphasis: 1. Even though the principal’s policy was unwritten, it was supported by the court because of the potential for racial conflict and substantial disruption to the school’s operation.

2. School officials may ban certain forms of expression that may be considered vulgar or offensive to other students based on race, national origin, gender, and religion.

3. The courts however, are more likely to support an administrative ban on offensive speech where there is evidence of prior disruption, fights, or racial tension.

4. The court found it not to be unreasonable for school officials to ban divisive symbols in order to fulfill their essential mission of teaching students of different races, creeds, and colors to engage each other in civil terms rather than in terms of debate that is highly offensive or threatening to others.

Evans v. Bayer Discussion: Evans, a high school senior created a group of students on Facebook who had been taught by the same teacher. The group’s purpose was to voice their dislike for the teacher. Evans posted a message indicating that this teacher was the ―worst teacher I’ve met.‖ The page also included a picture of the teacher. Bayer, the principal,

Chapter 3: Student Rights and Restrictions

suspended Evans for three days and forced her to be moved from advancement placement into lesser-weighted honor courses. Her notice of suspension stated that she was suspended for bullying. The student filed suit alleging that the principal violated her First and Fourteenth Amendment Rights. She sought an injunction to prevent Bayer from maintaining records relating to her suspension on her personal records. The court held that the speech occurred off-campus and was no longer accessible when Bayer learned of it. Additionally, there was no evidence of school disruption. Finally, Evans’ request for injunctive relief was dismissed without prejudice.

Points of Emphasis: 1. Off-campus student conduct can be controlled if it has an immediate impact on school discipline or creates material and substantive disruption.

2. Even though Evans’ communication was not necessarily in good taste, it did not create disruption and was removed when the principal learned of it.

3. Qualified immunity, as requested by Bayer, is a limited concept and typically does not protect school leaders from litigation or rulings against them.

4. Off-campus communication is not held to the same level of scrutiny as in-school communication, and off-campus communication enjoys greater freedom from school restraints.

Mahoney v. Area School District v B L Discussion: The U.S. Supreme Court upheld a fourteen-year-old student cheerleader’s free speech rights. The student used ―F‖ bombs about her school on SNAPCHAT after failing to win promotion from junior varsity to the varsity cheerleading team. She posted a photo of herself and a friend flipping the bird along with a message that stated: F… the school, F… the cheerleading, and F… everything. She was suspended from the squad and school for her posts. Her parents filed suit alleging that the school had no right to punish her. The U.S. Supreme Court agreed and in an 8-1 ruling held for the student.

Points of Emphasis: 1. Although the speech was distasteful, it was allowed under free speech provisions of the First Amendment.

2. The student’s speech was not directly connected to the school.

3. Her speech did not create substantial disruptions to school operations.

4. The student’s speech was insufficient to meet Tinker’s test for material disruption.

5. School districts still have a legal right under the Constitution to regulate off-campus behavior in a variety of school situations.

Charter Day School, Inc. v. Peltier

Chapter 3: Student Rights and Restrictions

Discussion: Charter School’s dress code required girls to wear skirts and boys to wear khaki pants. Charter Day School operates as an independent school but is considered a public school based on North Carolina state law. Parents alleged that the dress requirement resulted in gender stereotypes and violated the Fourteenth Amendment’s Equal Protection Clause. Girls are limited in their ability to fully participate in playground activities. The school argued that it was a private entity engaged in a contractual relationship with the school district and is not subject to equal protection guarantees.

The Fourth Circuit Court held that Charter Schools are state actors based on public funding and are subject to due process requirements. The court held for the parents. On appeal to the U.S. Supreme Court by the district, the High Court declined to hear the case allowing the circuit court’s ruling to stand.

Points of Emphasis: 1. The U.S. Supreme Court, to date, has never ruled on a dress code case.

2. Dress code issues are viewed as state issues and should be best handled by lower courts.

3. Charter Schools are public schools and subject to all constitutional requirements.

4. Charter Schools have obligations to respect the constitutional rights of students.

5. Charter Schools are constrained by all federal civil rights statutes.

School-Sponsored Newspapers The Hazelwood case drastically changed how student publications are governed.

School officials do not offend the First Amendment when they exercise editorial control over the content of a school-sponsored newspaper so long as their actions are reasonably related to a valid educational purpose. The U.S. Supreme Court held that a school-sponsored student newspaper published as a part of a journalism class does not qualify as a public forum. A similar ruling was reached in the Bethel case involving lewd speech by a student.

Hazelwood School District v. Kuhlmeier Discussion: The principal reviewed the material in the student newspaper and deleted two pages containing articles on divorce and teenage pregnancy. The principal did not offend the First Amendment by exercising control over a school-sponsored newspaper.

In a fairly conservative court, Justice White wrote the concurring opinion and was joined

by O’Connor, Scalia, Stevens, and Rehnquist. The dissent was filed by Brennan who was joined by Marshall and Blackmun.

Points of Emphasis: 1. School facilities, including those used for school-sponsored newspapers, become open forums only when school officials intentionally open them for indiscriminate use by the general public on some segment of the public such as student organizations.

Chapter 3: Student Rights and Restrictions

2. School officials may exercise editorial control over style and content of student speech in school-sponsored publications when their actions are reasonably related to a legitimate educational purpose.

3. The principal’s conclusion that articles dealing with divorce and student pregnancy were unsuitable for publication was reasonably related to a legitimate educational purpose.

4. A newspaper produced as a part of the school’s curriculum does not enjoy the same privileges as one produced outside of the school’s curriculum.

5. School officials have a leading responsibility to avoid arbitrarily suppressing or censoring student speech in violation of students’ First Amendment rights. There should be sufficient evidence to demonstrate that certain content creates a disruptive influence on the school’s program and is inconsistent with the school’s mission.

6. Students are afforded the right to express their views and ideas that do not materially or substantially affect the operation of the school.

7. Student editors have a leading responsibility to see that the student newspaper is free of libelous statements and obscenity.

Search and Seizure The Fourth Amendment provides protection of all citizens against unreasonable search and seizure by the government. Since school officials are considered governmental officials for purposes of the Fourth Amendment, they are subject to standards of reasonableness regarding the privacy rights of students. Public school teachers and administrators are held only to the standard of reasonable suspicion rather than the higher standard of probable cause which is required of law enforcement officials operating outside of the school.

A landmark case, New Jersey v. TLO addressed the legality of school searches.

See Administrative Guides regarding search and seizure. Searches involving student desks and lockers, bookbags, automobiles, canines, drugs, and strip searches are also covered. It is interesting to contrast and compare the legal requirements relating to the various types of searches.

New Jersey v. TLO Discussion: This case emerged when an assistant principal searched the purse of a student who denied that she had been smoking in the restroom. The search was conducted based on her denial to ascertain whether her purse contained cigarettes. The assistant principal discovered a pack of cigarettes as well as rolling papers commonly associated with marijuana. A further search revealed marijuana, a pipe, plastic bags, a large amount of money, and a list of students who owed TLO money. The student moved to suppress the evidence and her confession by arguing that the search was unlawful. The key issue was whether the Fourth Amendment requires school officials to obtain a warrant or show probable cause before initiating a search of a student under

Chapter 3: Student Rights and Restrictions

their authority. The U.S. Supreme Court stated that the warrant requirement does not apply to school officials. One reasonable suspicion is necessary to initiate a search.

Points of Emphasis: 1. School officials need only reasonable suspicion to initiate a search.

2. In loco parentis cannot stand alone in the absence of reasonable suspicion.

3. The search of a student at its inception requires reasonable grounds for suspecting that the search will produce evidence of a violation of law as a school rule.

4. The scope of a search must be reasonably related to the objectives of the search, the age and gender of the student as well as the nature of the infraction.

5. The basic purpose of the Fourth Amendment is to safeguard the privacy rights of individuals against arbitrary invasions by governmental officials.

6. The warrant requirement and probable cause standard are not suitable to public school searches conducted by school personnel.

7. The courts tend to balance students’ interest in privacy and school officials’ interest in maintaining appropriate discipline in their rulings involving student searches.

Comwlth. v. Dillon D. Discussion: A Boston middle school student revealed a plastic bag containing over 50 bullets. The resource officer confiscated the bullets and later conducted a pat-down search that did not reveal anything. The officer subsequently read the student his Miranda rights and asked him to disclose the location of the gun to which the student denied having a gun. The student’s mother and grandmother arrived at school as the officer continued questioning the student without informing the adults of the student’s Miranda rights. After an expulsion hearing, the student led the officer to the gun which was hidden in a residential area. During a juvenile delinquency hearing, the judge held that the officer had unlawfully failed to provide the student Miranda warning in the presence of adults. The Supreme Judicial Court of Massachusetts noted that the judge failed to apply the limited public safety exception established by the U.S. Supreme Court in New York v. Quarles. The resource officer faced an emergency situation and found an immediate need to question the student; therefore, the juvenile court’s decision was reversed.

Points of Emphasis: 1. Where there is the potential or imminent danger for health and safety of students, the Miranda right exception may apply.

2. The resource officer had reasonable suspicion to suspect that there was a gun involved.

3. The search of the student and the plastic bag of bullets established reasonable grounds for suspecting that a search would produce evidence that the student had violated a law or school rules.

Chapter 3: Student Rights and Restrictions

4. The scope of the search was reasonably related to the objective of the search considering the age of the student and the nature of the infraction.

Watkins v. Millenium Discussion: An Ohio federal district court held that a teacher’s search of an elementary school student which involved looking down the student’s pants violated the student’s Fourth Amendment search and seizure rights.

Points of Emphasis: 1. The search of the student was not justified because the teacher lacked individualized suspicion required for such an invasive search.

2. The student’s privacy interest in avoiding exposure of private body parts outweighed the school’s interest in recovering ten dollars and preventing petty theft.

3. Intrusive searches of this nature typically occur if there is reasonable suspicion that a student is in possession of some dangerous weapon or illegal contraband that may be harmful to the student involved or other students.

4. The rule of law is that the more intrusive the search becomes, the closer it meets the probable cause standard.

5. Since ten dollars were of minor significance in relationship to a dangerous weapon or illegal contraband, the teacher exceeded reasonable suspicion standards in initiating this search.

A.H. v. State Discussion: A Florida appellate court held that a school administrator’s search of a student’s wallet was unconstitutional. The court concluded that there were no facts which, combined with rational inferences, warranted the search.

Points of Emphasis: 1. The facts leading to a search determine if reasonable suspicion is established.

2. In TLO, the U.S. Supreme Court held that the search should be initially justified at its inception.

3. A search, as was present in this case, cannot be based on a ―gut feeling‖ by school personnel.

4. A student’s Fourth Amendment rights are violated if a search is not justified at its inception.

U.S. Supreme Court, Search and Cell Phones The U.S. Supreme Court will hear two different noneducational cases dealing with privacy rights versus law enforcement prerogatives to access information from cell phones through the search process. The searches conducted by law enforcement

Chapter 3: Student Rights and Restrictions

officers involved a search of a criminal’s cell phone without a warrant. Opponents contend that a cell phone is protected against unreasonable search based on the vast amount of personal information contained on a cell phone. The U.S. Supreme Court held that search and seizure of contents in a cell phone during an arrest is unconstitutional in Riley v. California, 573 U.S. 373 (2014). In a subsequent case, Carpenter v. United States, 585 U.S. 138 S.Ct. 2206 (2018) the High Court ruled that CSI records containing the physical location of a cell phone without a warrant was illegal.

Points of Emphasis: 1. The courts are split regarding the degree of privacy protection afforded to individuals involved in criminal activity.

2. At least six lower courts have ruled that the Fourth Amendment permits cell phone searches.

3. Three other lower courts have ruled that the Fourth Amendment does not permit such intrusion.

4. The issue facing the U.S. Supreme Court is whether a search for information after a defendant’s arrest violates the Fourth Amendment to the U.S. Constitution.

Strip Searches Strip searches should be viewed as searches of last resort in circumstances involving the health and safety of students under the school’s jurisdiction. Strip searches are viewed as the most intrusive form of all searches. As such, school officials should approach them with caution since they are closely linked with the probable cause standard. As one court stated in the Anker case, as the intrusiveness intensified, the standard of the Fourth Amendment reasonably approaches the probable cause standard even in the school context.

Search and Social Media Jackson v. McCurry Discussion: Plaintiff and his wife filed a civil rights complaint under 42 U.S.C. 1983 on behalf of themselves and their daughter alleging that the assistant principal violated their daughter’s right under the Fourth Amendment by searching her cell phone. The student was accused of making fun of another student for not making the volleyball team. The assistant principal, after conferring with the principal and another assistant, decided to search the phone to determine if the student sent the texts. He returned the phone concluding that no school rule was broken. E.D.J.’s father confronted several school officials regarding his concerns. The superintendent decided that Jackson was a threat to the safety of school personnel and prohibited him from appearing on school grounds or public board meetings. The court granted summary judgment for the district and ruled that the cell phone search did not violate a clearly established law nor did the superintendent violate law when he prohibited plaintiff from appearing on school grounds.

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Points of Emphasis: 1. Students do not have an inherent right to cell phone use at school.

2. Many school districts have banned cell phone use in schools.

3. School officials may reasonably investigate allegations of cyberbullying and any other school violations at school.

4. Individuals can be banned from school property if they pose a threat to the safety of school personnel.

Cornfield by Lewis v. Consolidated School District No. 230 Discussion: This case involved a student who was observed to have a bulge in his trousers which was thought to be drugs. School officials initiated a strip search over the parent and student’s objections, both of whom alleged that the search was unreasonable and a violation of Fourth Amendment rights. The court held for the school by stating that the privacy rights of students versus the need of the school to maintain order does not require strict adherence to the probable cause standard.

Points of Emphasis: 1. Courts have provided flexibility to school officials in certain instances to allow for strip searches when there is reasonable suspicion that a student is in possession of an illegal item or substance that may be harmful to the health and safety of other students.

2. A nude search by a school official of the opposite sex would violate the standard of excessive intrusion.

3. The court’s decision in the Cornfield case was impacted by the fact that the school operated in an environment that was characterized as one with many drug-related incidents.

4. The student involved in this particular search was enrolled in a behavioral disorder program and the search was conducted in the privacy of the boys’ locker room.

5. The ruling in this case must not be viewed as a license to initiate an arbitrary strip search. Strip searches should be approached with caution due to the highly intrusive nature of the search.

Safford Unified School District #1 et. al. v. April Redding Discussion: This case involved a strip search of a student’s bra and underwear based on another student’s claim that she was given prescription drugs and over-the-counter drugs by the student who was searched. The court held that the mere possibility that the student might be hiding something in her underwear did not justify the level of intrusion.

Points of Emphasis:

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1. Courts attempt to be as lenient as possible considering the challenges school leaders face in providing a safe learning environment. However, they will not support their actions if they result in unreasonable intrusion.

2. The scope of a search is permissible only when measures adopted are reasonably related to the search’s objectives.

3. Searches also may not be excessively intrusive in light of the child’s age and gender.

4. School leaders must consider the nature of the offense and the need to conduct a strip search since it is viewed as the most intrusive form of a search and closely approaches probable cause.

Alcohol and Breathalyzer Testing Breathalyzer testing may be administered by school officials based on the following conditions: 1. School or district policy authorizes testing.

2. There is reasonable suspicion that a student is under the influence of alcohol.

3. The student’s condition poses a safety risk to himself/herself or others.

4. Tests are administered by trained personnel or police officers.

5. Students are attending school-sponsored events.

6. Tests are administered in privacy.

Students may be disciplined based on school or district policy if they refuse to submit to testing after reasonable suspicion has been established. If it has been established that a student is intoxicated, their parents should be contacted and informed of the need to make arrangements to have the student transported home. However, if the student becomes unruly, disrespectful, and defiant of authority, he/she may be arrested for public intoxication and for disturbing the peace. If a student appears to be ill or at risk of alcohol poisoning, medical attention should be sought for the student.

Appropriate disciplinary action may be taken against the student consistent with school or district policy.

Joye v. Hunterdon Central Regional High School Board of Education Discussion: The state supreme court of New Jersey was called on to judge the constitutionality of a high school random drug and alcohol testing program that applied to all students involved in athletic and nonathletic extracurricular activities or who possessed school parking permits. Students who tested positively were suspended temporarily or had to relinquish their parking permit. They were also required to seek treatment. The state supreme court held for the district in citing the Veronia case in which the U.S. Supreme Court upheld a similar policy. Additionally, a documented survey indicated that there was a significant problem regarding alcohol and drug use by students.

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Points of Emphasis: 1. Testing programs designed to protect health and safety of students will generally be supported by the courts.

2. School officials are in a more defensible position regarding alcohol/drug testing programs when there is documented evidence that a problem exists among the student body.

3. Random and suspicionless tests will not pass court scrutiny.

4. Instruments used for testing must be of good quality and highly accurate.

5. Only trained personnel may administer testing.

Due Process Due process of the Fifth Amendment applies to the federal government whereas the Fourteenth Amendment applies to the state. In either case, each one prohibits the government from depriving a person of life, liberty, or property without due process of law. Due process requires fundamental fairness, fair processes, and fair procedures.

There are four aspects of due process applied by the courts regarding issues involving an individual’s constitutional rights. The two primary aspects, procedural and substantive, ensure that proper and fair procedures are followed when a person’s rights are in jeopardy. The substantive aspects ensure that there is a valid reason for depriving an individual of their rights and that the means used are reasonable.

Substantive due process addresses personal rights. The two other aspects involve tests that the courts apply in safeguarding constitutional rights. The vagueness test addresses fairness and protects against arbitrary and capricious governmental action.

The vagueness test stipulates that a law or policy is impermissible if individuals of common intelligence must necessarily guess at their meaning and differ regarding how the law or policy is applied. The irrationality or presumption test requires the state to demonstrate that it has a legal basis prior to depriving or restricting an individual’s rights.

Points of Emphasis: 1. All aspects of due process apply to public schools by virtue of the Fourteenth Amendment.

2. Students as well as faculty must know what is expected of them in the school environment.

3. Vague and ambiguous policies will not receive support by the court.

4. Arbitrary and capricious action by school officials will not receive support by the courts.

5. Due process guarantees fundamental fairness.

Price v. New York City Board of Education

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Discussion: Parents in New York challenged a school rule prohibiting the use of cell phones by students. They alleged that denial of cell phones violated the due process Equal Protection Clause of the Fourteenth Amendment. The court in supporting district officials held that cell phones are not fundamental instrumentalities to exercise constitutional rights. Banning cell phones does not fundamentally prevent communication between parents and the child.

Points of Emphasis: 1. School policies that ban cell phone use in school are valid.

2. School officials can ban any devices that create learning disruptions or disciplinary incidents.

3. Based on school or district policy, students may be punished for cell phone policy violations.

4. There is no constitutional right to carry a cell phone on school grounds during school hours.

Procedural and Substantive Due Process Due process consists of substantive and procedural components, both of which must be met in suspension and expulsion cases. Failure to meet each of these components may result in legal challenges for school officials to demonstrate fundamental fairness and equal protection for students under their jurisdiction. Failure to meet due process requirements may also result in administrative actions that are viewed as arbitrary and capricious and in violation of students’ due process rights.

In re Gault Discussion: An example of a procedural due process violation is illustrated in the Gault case. Gerald Gault, a juvenile had been found guilty of making an obscene phone call.

The typical punishment for committing this offense would have been a $50 fine. Since Gault was a juvenile, he was remanded by the court to the state reform school for a period of six years. The U.S. Supreme Court held that Gault had been committed to the industrial school without the benefit of procedural due process. The Court overturned the decision of the lower court based on procedural due process violations.

Points of Emphasis: 1. The Supreme Court ruled that youth are protected under the Fourteenth Amendment.

2. A substantial infringement on a child’s liberty interest mandates notice.

3. Children’s due process rights include the right to an attorney, right to confront witnesses, right to remain silent, and the right to view written charges.

Goss v. Lopez

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Discussion: Ohio statute permitted principals to suspend students up to 10 days without providing notice of the reasons for the suspension or a hearing that would enable them to respond to charges. Several high school students were suspended for 10 days without any type of hearing. They challenged the constitutionality of the statute.

The U.S. Supreme Court in holding for the students stated that students who are suspended for 10 days or less must receive oral as well as written notice of charges, an explanation of the evidence if students deny the charges, and an opportunity for the student to present their view of the incident. These procedures must precede a suspension, unless it becomes necessary to immediately remove the student because their presence creates a threat to safety, property, or academic programs. Once the threat has been addressed, due process requirements must be met.

Points of Emphasis: 1. All students enrolled in public schools are entitled to fundamental fairness.

2. Both aspects of due process, substantive and procedural, must be met in suspension and expulsion cases.

3. Meeting one aspect of due process while not meeting the other aspect will generally result in reversal of the administrative action, if challenged through the courts as was seen in the Gault case as well as Goss v. Lopez.

4. Fundamental fairness must guide all administrative action because it is the right thing to do.

5. Students do not shed their constitutional rights at the schoolhouse door.

Vagueness Doctrine and Presumption Standard The vagueness doctrine stems from the Fourteenth Amendment requirement of fundamental fairness. In the public school context, a student should not be penalized for behavior that he or she could not reasonably understand to be prohibited. Students must reasonably understand what behavior is expected of them by school officials.

The presumption standard places restrictions on the power of the state to deprive an individual of liberty or property without sufficient factual evidence to justify its action. In the school context, school officials must have a definitive basis before they initiate measures to deprive students of their liberty or property interests. The presumption test requires the state to clearly demonstrate that it has a legal and/or logically defensible basis prior to depriving or restricting a student’s right.

Corporal Punishment In a leading case involving corporal punishment, the U.S. Supreme Court held that the Eighth Amendment’s cruel and unusual punishment clause did not apply to disciplinary corporal punishment in public schools.

Ingraham v. Wright

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Discussion: Two students filed suit after being subjected to paddling that was viewed as severe. The students alleged that their punishment was cruel and unusual in violation of the Eighth Amendment as well as the Fourteenth Amendment to the Constitution.

The court concluded that students are protected against flagrant abuse by criminal statute but not by the ―cruel and unusual‖ provision of the Eighth Amendment in the school setting. In short, the Eighth Amendment does not apply in the school environment.

Points of Emphasis: 1. Does administering 20 licks to a student with a paddle while being held over a table in the principal’s office constitute excessive punishment?

2. Can paddling that is so severe that it results in a hematoma which required medical attention be legally justified?

3. Should a student who committed a minor infraction receive this type of punishment?

4. On two occasions, the student was struck on his arms, once depriving him of the full use of his arm for a week. Should not someone have been liable for these injuries?

5. Based on the severity of the punishment in relation to the infraction committed, are Fourteenth Amendment interests implicated?

6. Identify the legal requirements associated with administering corporal punishment and apply them to the Ingraham case for student debate on the court’s finding in the case.

Kirkland v. Greene County Board of Education Discussion: The U.S. Court of Appeals for the Eleventh Circuit held that a principal who repeatedly struck a student with a metal cane used excessive force and was not entitled to immunity under Alabama Immunity Law that protects school personnel in administering corporal punishment.

Points of Emphasis: 1. The state of Alabama, to date, is the only state that provides immunity protection to school personnel who administer corporal punishment.

2. Immunity protection does not apply where there is evidence of excessive punishment and the use of an unreasonable instrument.

3. To administer excessive punishment to a defenseless student will usually result in assault and battery charges.

4. Excessive and unreasonable corporal punishment violates a student’s substantive due process rights and will generally not be supported by the courts.

Jackson v. Oklahoma City Public Schools

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Discussion: Parents sued the district alleging that a teacher used excessive force on their middle school child. The court held that the district was immune from liability for discretionary acts by school districts. The court further noted that prior case law limited constitutional liability to only criminal cases. Parents’ claim that the district had a special relationship with their child based on compulsory attendance was rejected.

Points of Emphasis: 1. Teachers should not rely on qualified immunity to use excessive force on children through the use of corporal punishment.

2. Excessive force can result in assault and battery charges in some states.

3. Corporal punishment should be avoided, when possible, based on potential harm to students both physically and mentally.

4. Other disciplinary options should be sought to manage student behavior and protect students from harm.

School Suspension and Expulsion Public school districts generally have established codes of conduct to govern student behavior. Students who violate codes of conduct are subject to disciplinary action which may include suspension and/or expulsion. Students are removed from school premises either for a short term or long term for disciplinary infractions in the form of suspension or expulsion. Minor infractions may result in suspension while major ones may result in expulsion, a more serious form of discipline. In either case, due process guarantees should be provided to students who face suspension or expulsion.

Minimal due process is associated with suspension whereby a student is informed of the infraction he/she allegedly committed along with evidence to support the charge. The student is then provided an opportunity to respond to the charges after which time a decision is made regarding the appropriate disciplinary action. Most suspensions range from 10 days or less. Expulsion on the other hand represents a more serious disciplinary infraction and may result in removal from public schools for an extended period of time or permanently depending on the nature of the offense. In this case, full due process is required with all the procedural safeguards afforded to the student. School officials at the building level usually are granted the authority to suspend students based on district policy. However, the board of education is the only body that has the authority to expel after all due process safeguards have been met.

Dixon v. Alabama State Board of Education Discussion: A group of college students were expelled from a higher education institution for staging off-campus protests and demonstrations without an opportunity to appear at a hearing. The institution used the contract theory to justify its action in dismissing the students. The court held for the students in stating that contrary to the contract theory, students who attend a public state-supported college or university have constitutional rights and should not be expelled without the benefit of a fair hearing such as notice of charges, and some type of fair hearing.

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Points of Emphasis: 1. Have students examine what constitutes procedural due process.

2. Dixon represented the very first case in which constitutional due process was applied in a public institution by virtue of the Fourteenth Amendment.

3. Examine and discuss procedural due process. Students should understand the legal requirements regarding each step of the process.

4. When a governmental body acts to injure an individual, the Constitution requires that its act be consistent with due process of law.

Sherrell v. Northern Community School Group Discussion: An Indiana Court of Appeals upheld the expulsion of a student for his offcampus threat to carry out a mass shooting at school even though law enforcement officials refused to charge him with a crime.

Points of Emphasis: 1. School officials may punish a student for off-campus conduct if it seriously affects order and safety in the school in the absence of formal charges involving law enforcement officials.

2. The board relied on a state law allowing schools to suspend or expel a student from engaging in unlawful activity on or off school grounds if the student’s removal is necessary to restore order or protect persons on school property.

3. The nature and seriousness of an offense and not the place of the offense determines if school officials may discipline a student.

4. The threat to carry out a mass shooting was sufficient in and of itself to sanction the school board’s decision to expel, especially in light of a barrage of shootings in public schools in a number of states.

Classroom Harassment Under federal statutes, harassment is considered a form of discrimination. Under both Title IX Amendments of 1972 of the Education Amendments and Title VII of the Civil Rights Act of 1964, sexual harassment is a protected entity. The definition of harassment under Title VII is sufficiently broad to allow coverage of most forms of unacceptable behavior. Essentially, any type of sexual behavior or advance that is unwanted or unwelcomed is considered harassment under federal statute.

The courts are increasingly concerned with quid pro quo allegations due to the fact that people are involved with unequal power or authority relationships. The person such as a teacher or principal is in a superior position of power in relationship to students and may use their position of authority to seek sexual favors. The same relationship exists between a principal and a teacher. Due to the potential for abuse of power and authority, the courts are more keenly concerned with this form of sexual

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harassment. In a landmark case, Meritor Savings Bank v. Vinson, the U.S. Supreme Court held that unwelcomed sexual advances that create an offensive or hostile work environment violated Title VII . This case is significant because it set the stage for subsequent sexual harassment cases by providing the definition of specific acts that fall within the category of harassment.

Davis v. Monroe County Board of Education Discussion: This case involved a black student who alleged that she was sexually harassed by a classmate on repeated occasions. She allegedly reported these incidents over a period of several months to her teachers and later to the principal. The student accused of the harassing behavior was not disciplined until a similar incident was reported by a white student.

The plaintiff’s mother brought charges seeking monetary damages and injunctive relief under Title IX . The mother further alleged that the harassing conduct by the student deprived her daughter of the opportunity to receive an education. Justice O’Conner writing for the majority brought clarity to issues involving sexual harassment by indicating that lawsuits are only valid when the harassing student’s behavior is so severe, pervasive, and objectively offensive that it denies the victim equal access to an education guaranteed by federal law.

Points of Emphasis: 1. School administrators must be aware of student-to-student sexual harassing and fail to act in order to be liable for such conduct.

2. Schools are unlike the adult workplace. Children may regularly interact in a manner that would be unacceptable among adults.

3. If evidence suggests that school officials should have known of the harassing conduct involving students, and failed to act, liability charges may still be brought against them by the victim.

4. Harassment in any form constitutes discrimination for those to whom the harassment is directed.

Jane Doe v. Fairfax County School Board Discussion: Jane Doe sued the school board alleging that school officials were deliberately indifferent when she reported that Jack, a classmate inappropriately touched her on a school-sponsored field trip. School staff members reported the conduct to school officials and called for an investigation. The jury found Jack responsible for his conduct but failed to address whether school officials were deliberately indifferent to Jane’s complaint. The majority held that school officials had knowledge when Jane’s complaint was received. Based on a writ of certiorari, the High Court invited the Solicitor General to file a brief expressing the views of the United States.

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Points of Emphasis: 1. Sexual harassment is prohibited by Title VII and Title IX .

2. Any type of sexual behavior or advance that is unwanted is covered by these acts.

3. School officials may be held liable if they knew or should have known of sexual misconduct or harassment behavior of students.

4. School officials in this case face legal consequences if evidence reveals that there was indifference to Jane’s complaint.

Chapter 4: National Security and Student Safety

CHAPTER 4 - NATIONAL SECURITY AND STUDENT SAFETY School safety has emerged as one of the most critical challenges for schools in America. Guns and school violence have increasingly plagued public schools. Guns are the leading cause of death among students in the United States. Since Columbine in 1999, more than 340,000 students in America have experienced gun violence in schools.1 Schools are deemed to be safe places by the courts where teachers teach and students learn. They are deemed to be safe because certified teachers and school personnel are providing proper supervision to protect students from foreseeable harm.

According to Mellisa Sickmund, Director of the National Center for Juvenile Justice and Dewey Cornell, Director of Virginia Youth Violence Project…schools are still considered to be among the safest places for students in spite of school violence. School personnel must create a safe, engaging school environment where students feel valued and accepted. School personnel can create a safe engaging environment by not judging students, providing clear guidance on school and classroom rules, listening to students, respecting their views, conveying that they care about them and their success through their personal behavior. Conflict resolution and building a strong sense of community are important components to establishing and maintaining safe schools. Students must be taught conflict resolution skills and respect for others.

School officials, teachers, and school staff must also be proactive in addressing threats to students’ safety so that schools will continue to be safe places for all students. School personnel must take threats seriously and investigate rumors involving threats promptly and judiciously. They should also collaborate with teachers and other staff members to assess threats, document threats, and respond to make certain that proper security measures have been taken to protect students, staff, and facilities.

Readers of this chapter should be able to: 

Explain how school violence impacts the school’s learning environment.



Describe steps school officials, teachers, and staff must take to create and maintain safe schools.



Identify gang characteristics and measures needed to reduce and remove gang activity in schools.



Discuss challenges schools face as they deal with bullying, cyberbullying, hazing, and other disruptive forces in schools.



Explain the use of metal detectors as a school search device and implications for Fourth Amendment search and seizure violations.

Safety of students in public school is an issue of great concern among parents, communities, and politicians. Safe schools are a leading priority across the nation. Two 1

Washington Post, June 2022.

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major federal initiatives have emerged—Every Student Succeeds Act (E SSA) and Homeland Security to focus increased attention on the importance of safe schools as an integral component of the teaching and learning process.

Additionally, the courts’ concept of schools as a safe place adds emphasis to the necessity of maintaining safe schools. Under the safe place doctrine, courts presume that schools are safe based on the view that children are supervised by licensed teachers and administrators who have an obligation to ensure that schools are safe to the fullest extent possible.

Topical Outline of this Chapter The Status of Gun Violence Handling Gang Violence in Schools Teachers and Guns in Schools Hazing Bullying Cyberbullying Gang Membership Gang Dress School Uniform Dress Policies, School Safety, and Students’ Freedom of Expression Rights Zero Tolerance and School Safety Ratner v. Loudon County Public Schools Cuesta v. School Board of Miami-Dade County Zero Tolerance and Due Process Metal Detectors Vernonia School District v. Acton Emphasis on safety is understandable in light of periodic surveys conducted by the National Safety Center and the National Education Association which reveal that school safety is a major concern for students who attend public schools in the United States. Most school districts have developed safety plans that will be implemented in the event that violence erupts in their districts. School districts generally involved students, parents, community leaders, and public safety offices during the development of their plans. The National School Safety Center has developed guidelines as a

Chapter 4: National Security and Student Safety

component of the Homeland Security Act for schools as a means to enhance school safety.

The Status of School Violence School violence has escalated in recent years. School shootings in Florida, Texas, and Tennessee have added to the narrative. The pandemic has also contributed to school violence as students return to the classroom. School fights, students possessing weapons on campus are raising concerns for school officials and personnel.

A six-year-old student shot his teacher in Virginia after taking his mother’s gun to school. A $40 million lawsuit has been filed against the school district for negligence.

Points of Emphasis: 1. Students must be taught alternatives to violence.

2. Conflict resolution skill development should be an integral component of the school’s culture.

3. Efforts must be made to determine the root causes of school violence with plans and strategies implemented to address these causes.

4. Respect and appreciation among students should be taught, encouraged, and celebrated.

5. Parents should be held legally responsible for violent acts of their children in schools.

Handling Gang Violence in Schools While gang violence appears to be decreasing in public schools, it is still a major concern of educators, parents, communities and law enforcement.

Teachers and Guns in Schools Teachers are divided on the issue of firearms for teachers in school. A significant number of teachers do not support firearms for teachers. The prevailing view is that teachers are not law enforcement officials and should not be taxed to assume a responsibility for which they have not been trained to execute. The second view is that their current workload and student discipline do not allow them to assume yet another duty. The NEA, the largest teacher’s union in the nation, is vehemently opposed to the idea of arming teachers in schools. A study endorsed by the National Library of Medicine revealed in a survey among parents that security officers, not teachers, should be armed and present in schools to provide safety.

Points of Emphasis: 1. Teacher’s possessing a gun in the classroom increases the likelihood that a student will access the gun and someone will be shot in the school.

2. Teachers are trained to teach not serve as police officers.

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3. School officials need proven solutions supported by data to proactively address potential incidents of violence in their schools.

4. Arming teachers places an unreasonable burden on teachers who are leaving the profession for a number of reasons—low salaries, low esteem associated with the profession, student discipline problems, and an array of other issues.

Hazing Hazing is very prevalent in public high schools. Hazing is viewed as any degrading, dangerous, or humiliating activity involving a student as a condition of belonging to a group or club even though he/she may be unwilling to participate in the activity. Many of these activities carry the potential for inflicting serious bodily harm and even death which unfortunately occurred in Roswell, Georgia from a Phi Delta Theta fraternity ritual involving an 18-year-old student. Most typically hazing involves unwanted physical contact such as paddling, consuming undesirable or unreasonable amounts of food or beverages, inappropriate sexual behavior among other undesirable activities. Victims of hazing may experience physical and emotional damage throughout their lifetime.

Points of Emphasis: 1. Anti-hazing policies with consequences for student organizations and individuals that violate these policies are essential in controlling hazing in schools.

2. Well defined reporting procedures are needed to allow students to report hazing activities without fear of reprisal.

3. Collaboration among students, teachers, parents and community leaders is critical to minimize and eliminate hazing in public schools.

4. School personnel training to detect and respond to hazing incidents is an important component in minimizing hazing incidents.

5. School personnel may incur liability charges if they fail to act when they become aware that hazing activities are occurring or they have information that such activities are planned and fail to act.

6. Forty-four states have passed anti-hazing legislation to protect hazing victims.

Bullying Bullying is a serious issue that is sometimes overlooked by school officials.

Bullying is willful and deliberate acts of hostility designed to cause harm to others and to create fear. This type of behavior toward victims can and most often creates an undesirable educational environment where learning is adversely affected. Bullying behavior may also result in serious physical and emotional pain for victims.

Cyberbullying Cyberbullying involves the repeated use of electronic devices to intentionally and willfully convey defamatory, harassing, threatening, demeaning, and offensive

Chapter 4: National Security and Student Safety

messages to another person. These messages may be transmitted through the use of the Internet, cell phones, or other devices to hurt or embarrass another person. It is estimated that almost half of all American teens are affected by Cyberbullying.

Points of Emphasis: 1. Cyberbullying is harmful to victims and may result in anxiety, intimidation, and emotional distress.

2. School personnel have an obligation to curtail any forms of cyberbullying during school hours by reporting incidents through appropriate channels.

3. School district policy prohibiting cyberbullying may be pivotal in curtailing this practice when consequences for violating anti-cyberbullying policies are included.

Gang Membership School officials must remain vigilant in monitoring their schools for signs of gang activity. Once activity is determined, appropriate steps must be taken to eliminate gang presence in their schools. Teachers must also be observant of any suspicious activity that may signal the presence of gangs in schools. A concerted effort is necessary to eradicate gangs in schools which involve educators, parents, communities, psychologists, and law enforcement officials.

Points of Emphasis: 1. Gang members are typically young teenage males of similar ethnic or racial backgrounds.

2. Loyalty is expressed through adherence to a strict gang code.

3. Camaraderie is solidified through active participation in group activities which are often antisocial, illegal, violent, and criminal.

4. School leaders are expected to monitor gang behavior and respond swiftly to information that suggests gang activity is escalating.

Gang Dress Points of Emphasis: 1. Gang members tend to wear specific apparel or colors to convey gang affiliation.

2. School officials may prohibit certain types of gang-related dress when there is clear evidence or knowledge that student dress is associated with disruptive gang activity.

3. School or district policy should address school leaders’ authority to regulate any forms of dress that create substantial disruption to the educational environment.

School Uniform Dress Policies, School Safety, and Students’ Freedom of Expression Rights Points of Emphasis:

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1. Students’ right to freedom of expression extends to their dress.

2. Dress codes may limit students’ freedom of expression rights.

3. Schools may implement reasonable dress codes that address health and safety, material and substantial disruption so long as there is evidence that such codes are necessary.

Alcohol and Breathalyzer Testing Breathalyzer testing may be administered by school officials based on the following conditions: 1. School or district policy authorizes testing.

2. There is reasonable suspicion that a student is under the influence of alcohol.

3. The student’s condition poses a safety risk to himself/herself or others.

4. Tests are administered by trained personnel or police officers.

5. Students are attending school-sponsored events.

6. Tests are administered in privacy.

Students may be disciplined based on school or district policy if they refuse to submit to testing after reasonable suspicion has been established. If it has been established that a student is intoxicated, their parents should be contacted and informed of the need to make arrangements to have the student transported home. However, if the student becomes unruly, disrespectful, and defiant of authority, he/she may be arrested for public intoxication and for disturbing the peace. If a student appears to be ill or at risk of alcohol poisoning, medical attention should be sought for the student.

Appropriate disciplinary action may be taken against the student consistent with school or district policy.

Zero Tolerance and School Safety Zero Tolerance emerged in the 90’s as a means to eliminate concealed weapons and drugs in schools. The Gun Free School Act of 1994 signed by former President Clinton mandated expulsion of students who possess a concealed weapon on school grounds. However, this statute does provide the chief administrator the latitude to modify the expulsion requirement on a case-by-case basis.

Points of Emphasis: 1. Zero-tolerance policies are implemented in efforts to eliminate injuries or violations of safety rules in schools.

2. Advocates of zero-tolerance policies argue that removing students who violate zerotolerance policies diminishes the threat of violence and creates a safe and peaceful school environment.

3. School leaders must exercise care to ensure that students’ constitutional rights are not violated in administering zero-tolerance policies.

Chapter 4: National Security and Student Safety

Ratner v. Loudon County Public Schools Discussion: This case arose when an eighth-grade student confiscated a knife from a classmate and friend who had suicidal tendencies. Ratner did so in an effort to protect his fellow students from serious injury. At no time did he pose a threat to harm anyone.

He willingly retrieved the knife from his locker when the Dean of Students learned that the knife was located in his locker. Ratner was suspended for 10 days based on board policy. His mother filed suit alleging Fourteenth Amendment violations under 42 U.S. C. § 1983. The court did not address the harshness of the zero-tolerance policy but rather assessed the alleged process violations. The court held for the district and dismissed the case for failure to state a claim of action.

Points of Emphasis: 1. Should school officials consider the circumstances surrounding a particular case when determining proper punishment?

2. Should the Gun Free School Act, a federal statute, be more lenient than local zerotolerance policies in public schools? Why? Why not?

3. Are alleged Eighth Amendment rights implicated in this case? Why? Why not?

4. Actions taken by school officials without weighing the facts in any given case may result in arbitrary and capricious actions.

Cuesta v. School Board of Miami-Dade County Discussion: An 18-year-old student filed suit under 42 U.S.C. § 1983 against Dade County Board of Education and a police officer alleging First and Fourteenth Amendment rights violation that stemmed from a strip search and an arrest in conjunction with the distribution of an anonymous pamphlet on school grounds. The pamphlet featured the school’s principal with a dart through his head and other poems, cartoons, and essays depicting what would happen if he shot the principal, teachers, and other students. There was also a reference to an ―African Disease.‖ Cuesta, based on the district’s zero-tolerance policy, was arrested and strip searched. The zerotolerance policy called for police intervention in cases regarding the prevention and detection of crime and the enforcement of penal laws of the state.

The court held for the board by stating that a school board cannot be held liable for allegedly unlawful arrests resulting from a policy that merely calls on school officials to report criminal behavior. The court also ruled that the search was constitutional given the circumstances surrounding her arrest.

Points of Emphasis: 1. Students’ First Amendment rights are not unlimited. The First Amendment does not protect speech that is calculated to create disrespect for authority and/or disruption to the educational process.

Chapter 4: National Security and Student Safety

2. The Fourth Amendment does not insulate students from school-based searches if reasonable suspicion is established.

3. Courts tend to provide leeway to school districts in cases involving threats to health and safety of students, teachers, and staff members in public schools particularly where there have been prior incidents of violence in schools.

Zero Tolerance and Due Process Zero Tolerance is designed to create a safe school environment by removing students whose behavior poses a threat to the health and safety of others. However, the ―one strike, you’re out‖ rule ignores the due process rights of students who are removed from the school environment. For example, the U.S. Supreme Court has held in Gault, Goss v. Lopez as well as Dixon v. Alabama State Board of Education that students facing long-term suspensions are entitled to fundamental fairness which means a fair hearing. In instances in which a hearing is held under zero-tolerance policies, the decision has already typically been reached regarding the student’s outcome making the hearing a pretense for fairness.

In D.K. v. Dist. School Board of Indian River County, a Florida student who was suspended for violating a school’s zero-tolerance policy against weapons possession had no right to appeal the school board decision to the state court system. The Court of Appeal of Florida held the case was properly dismissed because the Florida Administrative Procedure Act does not permit court review of a suspension order. The court rejected the student’s assertion that he could appeal his suspension because he faced a possible expulsion. Instead, only a hearing that results in an action expulsion is available for court.

Points of Emphasis: 1. Zero tolerance does not consider the history of a student’s behavior, the seriousness of the offense, the impact of the student’s behavior on order and decorum.

2. Zero tolerance oftentimes prescribe punishment that is not commensurate with the student’s misbehavior.

3. A presumption of guilt drives zero-tolerance policies which in many cases result in unfair punishment.

4. Substantive and procedural safeguards are more critical in suspension and expulsion cases based on Fourteenth Amendment guarantees.

Metal Detectors Metal detectors have become increasingly popular as school officials seek ways to ensure that schools are safe, orderly, and conducive for teaching and learning. Most challenges regarding the use of metal detectors center around the legality of a search where items are seized by school officials. To date, all cases have reached the district court level. The U.S. Supreme Court has not addressed the use of metal detectors in public schools. The courts in Thompson v. Carthage School District, People v. Pruitt, and People v. Dukes have upheld the use of detectors for school purposes and have

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concluded that unlawful items confiscated during metal detector screenings may be admissible as evidence of schools in criminal violations. The courts most often applied the reasonable factors found in the TLO case.

Points of Emphasis: 1. Metal detectors are used by some districts to combat violence in their schools.

2. They are considered to be legally defensible and not a violation of students’ rights to privacy.

3. Students found guilty of illegal possession of weapons may be arrested and charged with criminal activity.

4. The primary concern should be to remove dangerous weapons from schools.

Vernonia School District v. Acton Discussion: In this case, the Supreme Court addressed the privacy rights student athletes expected in a drug testing case. Based on an increased level of drug-related student misconduct in the school, the High Court ruled that the privacy expectations of student athletes were not so protected as to bar school officials from conducting random drug tests on student athletes. The fact that these tests occurred in privacy and in a nonintrusive manner were important considerations in the High Court’s decision. The physical harm that could result from engaging in competitive athletes was also a factor considered by the Court in reaching its conclusion. The Court stated that athletics is not for the faint hearted and such tests posed no greater invasion of privacy than could be found in public restrooms.

Points of Emphasis: 1. School officials are empowered to exercise a degree of control over students that cannot be exercised over adults.

2. The drug testing program was designed to be unobtrusive, with students producing their samples in relative privacy.

3. The testing program served the district’s interest in combating drug abuse.

4. The court weighed the privacy rights of students in the context of the school interest in mandating a drug-free school environment (which is a legitimate state interest).

Chapter 5: Individuals with Disabilities

CHAPTER 5 - INDIVIDUALS WITH DISABILITIES Prior to the passage of Disability Rights Laws, there were virtually no programs available to support children with disabilities. These children were isolated with limited educational opportunities. Progress was very slow until the treatment of children with disabilities was challenged through court litigation which ultimately led Congress to pass legislation to ensure that children with disabilities received equal access to educational opportunities.

This chapter covers a full range of issues regarding equal opportunities and protection from discrimination for special needs children. These issues include inaccessible facilities, unequal access to academic programs, extracurricular activities, and inaccessible technology opportunities. One of the primary issues involves providing students with disabilities a free appropriate education. It also identifies three significant disability laws, Individuals with Disabilities Education Act (IDEA), The Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973 as well as P.L. 114-95, Every Student Succeeds Act, which ensures access to the general education curriculum for students with disabilities through accommodations based on assessment of needs. Procedural and substantive due process requirements, equal access to technology, isolation and restraints laws, and disciplinary proceedings are also covered.

Readers of this chapter should be able to: 

Explain eligibility requirements for students under IDEA.



Discuss the components of an Individualized Education Plan.



Describe the mandatory requirements associated with the Individuals with Disabilities Act.



Distinguish between requirements for IDEA, Section 504, and A DA.



Discuss the multitiered system of support regarding response to intervention.



Identify the legal requirements regarding disciplining students with disabilities.

Congress enacted P.L. 94-142, the Education for All Handicapped Children Act based on findings that supported the need for the act. It was determined that more than eight million disabled children in the United State were not receiving a free appropriate education. Based on the findings, Congress realized that is was in the nation’s best interest that the needs of children with disabilities be met. Americans with disabilities are protected by three significant federal statutes: Individuals with Disabilities Education Act (IDEA) of 1990 which replaced Education for All Handicapped Children’s Act (E AHC A) of 1975), Americans with Disabilities Act (ADA) of 1990, and the Rehabilitation Act of 1973. These statutes were enacted to protect individuals with disabilities from discrimination and to provide equal access to educational opportunities, facility utilization, and employment opportunities in public school settings. The landmark cases that focused major attention during the early 1970’s were The Pennsylvania Association of Retarded Children v. Commonwealth and Mills v. Board of Education.

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Congress passed historic legislation on November 19, 2004 reauthorizing the Individual with Disabilities Education Act (IDEA). President George W. Bush signed the Individuals with Disabilities Education Improvement Act of 2004 into law on December 3, 2004. The amended act contains a number of significant changes. I DEIA is a federal law that ensures that eligible children with disabilities between the ages of 3 and 21 or until graduation receive a free, appropriate public education consistent with their individual needs. The Education of All Handicapped Children Act (P.L. 94-142) represents an earlier version of the current IDEIA. The reauthorized act permits federal funding to assist states and local communities, which provide varying degrees of special education services to over 6 million students. The new provision regarding early intervention services allows local education agencies (L EAs) to allocate up to 15 percent of their total IDEIA funding to offer services to students prior to being identified as having a disability.

Topical Outline of this Chapter Mills v. Board of Education Individuals with Disabilities Education Act of 1990 (IDEA) IDEIA of 2004 Timothy W. v. Rochester, New Hampshire School District Board of Education of Hendrick Hudson Central School District v. Rowley Endrew F. v. Douglas County District Child Find Jamie v. Milwaukee Public Schools English Language Learners and Special Education Transition Services Response to Intervention Education-Related Service Requirements Irving Independent School District v. Tatro Cedar Rapids Community District v. Garret, F. Least Restrictive Environment Beth V. v. Lake Bluff School District Schaffer v. Weast Shaw v. Weast Florence County School District v. Shannon Carter Do Not Resuscitate Orders

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Special Education and Harassment Length of School Year Alamo Heights Independent School District v. State Board of Education Isolation and Restraint Laws Intramural Sports and Students with Disabilities Disciplining Students with Disabilities S-1 v. Turlington Honig v. Doe Individuals with Disabilities Education Act of 1997 Correctable Illnesses and A DA Sutton v. United Airlines, Inc. Toyota v. Williams Mills v. Board of Education Discussion: The Mills case was a landmark case that addressed whether a school district was required to provide facilities for behaviorally retarded children. The district court responded affirmatively in stating that a school district must provide facilities for behaviorally retarded children to attend. The court fashioned a lengthy order mandating special education programs. The lack of funds is no excuse and was not supported by the court.

Points of Emphasis: 1. No child who is eligible for a public education in the District of Columbia can be excluded from an education by any rule, policy, or practice of the board of education or its agents in the District of Columbia.

2. The school district’s failure to provide educational opportunities for special needs children cannot be supported with an excuse by the district that no funds were available to do so.

3. No eligible child can be excluded from receiving a free appropriate education in the District of Columbia.

4. Due process requirements must be met before any disabled child can be suspended or expelled from public schools. Such action constitutes a change in placement which triggers full due process provisions.

Individuals with Disabilities Act of 1990 (IDEA) The IDEA essentially guarantees a free, appropriate education to disabled children. It is limited to disabled children who are pursuing a public education. A free,

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appropriate education includes special education and related services tailored to their individual needs. Congress imposed an affirmative obligation on all states within the United States to ensure that equal access becomes a reality for children with disabilities. The Act covers children with disabilities ages three to twenty-one. Children with disabilities are not required to demonstrate that they can benefit from special education. A leading case that addressed this issue: Timothy W. v. Rochester, New Hampshire School District Discussion: This case involved Timothy who was born prematurely. He experienced severe respiratory problems that resulted in hemorrhaging and seizures. He was classified as profoundly retarded. Based on this evidence, the Rochester school district concluded that Timothy did not fall within the act because he could not benefit from special education. A suit was filed on Timothy’s behalf alleging denial of special education and a violation of his rights as a special needs child. The issue that the court addressed was whether a child must demonstrate that he can benefit from special education to be entitled to an education under the Handicapped Act. The court held for Timothy by stating that the Act does not require a handicapped child to demonstrate he/she benefited from special education to be entitled to an education under the Act. Points of Emphasis: 1. What does ―benefit‖ in the context of special education imply?

2. The IDEA requires that the most severely disabled child be given priority.

3. The IDEA is not limited to traditional academic training but must be sufficiently broad to include basic functional living skills for special needs children.

4. The Handicapped Act clearly guarantees all disabled children the right to a free appropriate education. There is no exception for severely disabled children.

Board of Education of Hendrick Hudson Central School District v. Rowley Discussion: The primary issue that arose in this case was whether the Education of the Handicapped Act required special services sufficient to maximize a handicapped child’s education comparable to that of a child without special needs. Rowley was virtually deaf when she was admitted to kindergarten. She was provided a hearing aid which allowed her to achieve a degree of success. The board subsequently refused to honor a request for a sign language interpreter. A suit was filed in district court alleging that Rowley’s educational opportunities could not be maximized without the aid of an interpreter. The court held for the school district and stated that the Handicapped Act does not require special services sufficient to maximize a disabled student’s educational level to be comparable with that of a child with no disability.

Points of Emphasis: 1. The Act provides that special services should be provided only when necessary to allow the special needs student an opportunity to benefit from instruction.

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2. There is no language in the Act that suggests that benefits are to be maximized for special needs students.

3. The Act was designed with the intent to create equal educational opportunity.

4. Since Rowley experienced relative success without the interpreter, the board of education met its duty under the Act. 5. To require districts to make provisions to maximize a disabled student’s education would be prohibited based on the extensive costs associated with such a requirement and a conflict with the intent of the Act. Endrew F. v. Douglas County School District Discussion: The U.S. Supreme Court held that a child with disabilities is entitled to greater benefits than lower courts had determined. Endrew F., a child with autism, received annual IEP’s from preschool to fourth grade. Parents felt that his academic and functional skills had stalled. He was enrolled in a private school where significant progress was achieved. The district presented parents with an adequate IEP that was no more adequate than the first one. Parents sought reimbursement for private school tuition with the Colorado State Department of Education. Their request was denied and upheld by the federal court as well as the Tenth Circuit Court of Appeals. The U.S. Supreme Court overturned the Tenth Circuit Court’s decision who ruled that a child with autism was only entitled to an education program calculated to achieve minimal benefits.

Points of Emphasis: 1. IEP’s are not designed to achieve minimal benefits.

2. Endrew’s progress clearly demonstrated that he could benefit from an appropriate IE P. 3. To meet the substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriately in light of the child’s circumstances.

4. The child’s education program must be appropriately ambitious based on demonstrated ability to make progress and benefit from services offered.

5. The adequacy of a given IEP turns on the unique circumstances of a child for whom it was created.

Child Find The Individuals with Disabilities Education Act (IDEA) mandates that school districts identify, locate, and evaluate all children with disabilities, regardless of the severity of their disabilities. This requirement exists even if the district is currently not providing special education services to the child. Districts must also develop and implement a realistic procedure of determining which children with disabilities are receiving special education and related services and which are not. This mandate covers children with disabilities from birth to age 21. The Child Find mandate covers all

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children who reside within a state including those who attend public schools, private schools, migrant children, homeless children, and children who are wards of the state.

Child Find applies to all children who are suspected of having a disability.

Points of Emphasis: 1. The primary purpose of IDEA is to ensure that all children with disabilities receive a free appropriate public education including special education and related services.

2. Child Find is a mechanism that supports IDEA’s purpose.

3. The early intervention aspect of the law that applies to children from birth to two years of age is designed to ensure that these children with disabilities receive appropriate early intervention services to prepare them for further education, employment, and independent living.

4. To receive funding, states must implement a comprehensive Child Find system with rigorous standards for identifying infants and toddlers.

Jamie v. Milwaukee Public Schools Discussion: A federal judge held that the Milwaukee Department of Education violated the Child Find provision and was liable for failing to discharge the supervisory responsibility to ensure that the intent of the IDEA mandate was met. Parents pleaded for services when their child was hospitalized for 70 days. The hospital was located within the school district’s boundaries. The Director of Special Education acknowledged that she was aware of the child’s presence in the hospital.

Points of Emphasis: 1. School districts violate the rights of children with disabilities when they fail to meet the provisions of IDEA. 2. School districts can face penalties when they are deliberately indifferent regarding services to children with disabilities.

3. School districts are not given options to decide when a child with disabilities will be served.

4. Students who are eligible under IDEA must actually receive services at age three, not just have an IEP prepared and ready for them.

English Language Learners and Special Education It is important that limited English proficient (L EP) students not be referred for special educational services based on limited English proficiency. Unless these students fall into categories of disabilities covered by IDEIA, they should not be referred to receive special education. Inappropriate referrals can create stigmas for students and impede their ability to achieve at high levels. If a LEP student meets one or more of disabilities required for special education services, then they should receive the same treatment as any other English-speaking student receives with respect to diagnosis and

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proper placement.

In Flores v. Arizona Public Schools, parents, represented by Miriam Flores, filed a lawsuit in 1992, alleging that the state of Arizona failed to provide instruction to E LLs that would advance their proficiency and enable them to master the standard academic curriculum. After years of litigation, several rulings/orders by Judge Alfredo Marquez and Judge Raner Collins and many fiscal appropriation battles in the Arizona legislature, the finding by Judge Collins states that ―the State willfully violated the clear and specific March 2007 Order of the Court whereby the Legislature is required to approve an adequately funded and legal E LL provision by the end of the legislative session or face up to $5 million in daily fines.‖ Points of Emphasis: 1. ELL students have the same rights to receive an educational opportunity as Englishspeaking students.

2. English Language Learners are not special education students unless they meet criteria that classifies them as such.

3. ELL students are entitled to equal protection provisions.

Transition Services Transition service planning is a process to assist students with an Individualized Education Program (IEP) as they decide what their future should be after high school.

The plans assist students in their preparation for achieving independence as young adults.

Points of Emphasis: 1. Transition services provide assistance for students with I EPs to prepare for life after high school.

2. Transition services are provided for students with disabilities when they reach age 16.

3. Transition services address jobs and life skill development after high school.

4. Transition service planning provides students with assistance and support to achieve desired goals.

Response to Intervention Response to Intervention (R TI) involves a combination of assessments and interventions used to provide early, effective assistance and support to children who are experiencing difficulty learning. Response to Intervention is also referred to as a databased process of diagnosing learning disabilities. The RTI method is frequently used as an alternative to identifying learning disabilities which requires children to demonstrate a notable inconsistency between their I Q and academic achievement as determined by standardized tests. The RTI more clearly describes the Specific Learning Disability (S L

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D) category of the Individuals with Disabilities Education Improvement Act (IDEIA 2004).

Education-Related Service Requirements Under the Act, a related service is one that must be provided to enable the child with disabilities to benefit from special education. This service may be a single service or an entire range of services or programs required to benefit the child. Litigation has emerged regarding what is considered to be a medical service versus a related service.

This issue was addressed in: Irving Independent School District v. Tatro Discussion: Tatro was born with spina bifida that resulted in a congenital bladder defect.

A clean intermittent catheter (C IC) was required every three hours to empty her bladder.

This process was not complicated and only required one hour of training. When the request was made to provide this service, the district refused by stating that the procedure was medical rather than a related service. The issue that the court addressed was whether the Act mandated that school personnel provide a clean intermittent catheter for a student who was in need of this service. The court held for Tatro and stated that this procedure is consistent with the intent of the Act and was necessary to promote necessary access for Tatro.

Points of Emphasis: 1. The Act requires that states provide an appropriate education for children with disabilities.

2. Special education and related services are necessary to provide an appropriate education for children with disabilities.

3. The court viewed CIC as a simple related service that could be performed by a lay person and ruled that it must be provided by public schools to children who need the service.

4. While the Handicapped Act textually excludes medical services, a simple procedure called for in this case is within the competencies of school personnel.

Cedar Rapids Community District v. Garret, F. Discussion: In this compelling case, a dispute arose over requested related services for a student with disabilities. A request was made that the district provide services for Garrett who was confined to a wheelchair and was ventilator dependent. Garret contended that these services were necessary to allow him to receive a free, appropriate education. The school district rejected Garret’s request arguing that continuous nursing care was in fact medical rather than related services. An administrative judge disagreed by ruling that IDEA required the district to provide needed services and bear the financial responsibility for all disputed services.

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Points of Emphasis: 1. School districts have an obligation to provide services that are necessary to allow a disabled student to receive a free, appropriate education.

2. The judge made no distinction between what constituted medical services or related services in rendering his decision.

3. The judge found that similar services requested by Garret were provided for other disabled students.

4. School officials may not ―pick and choose‖ disabled students in which to provide needed services.

5. Related service must be provided on a fair and unbiased basis to all students with disabilities.

Least Restrictive Environment The IDEA requires that children with disabilities be placed in an educational environment with the least amount of restrictions whenever possible and to the fullest extent possible. This mandate triggers the concept of inclusion which essentially means that children with disabilities be placed in regular classrooms to the fullest extent possible.

Beth V. v. Lake Bluff School District Discussion: A placement challenge arose with a 13-year-old girl with Rhett’s Syndrome, a neurodevelopment disorder. Consequently, her motor skills were estimated to be between five and seven months. Beth began receiving services from a Special Education Cooperative at age two. She received services from 1991–1994 which included a one-on-one aid, adaptive physical education, speech/language therapy, occupational therapy, and physical therapy. In 1994–95 at her parents’ urging, she was placed in regular kindergarten class with a continuation of services offered in the early childhood program. During the annual review of Beth’s IEP, the district recommended that Beth be placed in the co-op’s self-contained education life skills program. Beth’s parents objected and brought action against the district alleging that Beth was denied a free, appropriate education by not permitting her to be placed in a regular classroom.

The court held for the district and determined that the district’s efforts were appropriate and that it acted reasonably under the IDEA in determining the appropriate placement.

Points of Emphasis: 1. The burden of proof rests with school districts in instances where a child with special needs is recommended for placement in a special services facility and the district refuses.

2. Districts will be supported in placement decisions when proper procedures are followed and documentation is provided which indicates that the child with special needs is not well suited for the regular classroom. Even so, this can be a difficult task based on divergent views of those who are considered to be experts in the field.

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3. School districts have an obligation to ensure that a child with a disability be placed in the most appropriate educational environment in order to benefit from their educational experience.

Schaffer v. Weast Discussion: Conflicts between parents of disabled children and school officials are inevitable with respect to IEP disputes and where the burden of proof resides. A conflict was heard by the U.S. Supreme Court based on a disagreement among the circuit courts regarding where the burden of proof should be placed—on parents or the school district. An administrative judge placed the burden of proof on the school district in ruling for the parents. This decision was reversed by the U.S. Court of Appeals for the Fourth Circuit. The U.S. Supreme Court, in a 6-2 decision, held that the burden of proof in administrative hearings challenging an IEP is properly placed on the party seeking relief.

Points of Emphasis: 1. This ruling by the Supreme Court applies to all school districts.

2. The Supreme Court’s decision has brought a high degree of clarity regarding the burden of proof in due process hearings.

3. Prior to the Supreme Court’s ruling, there were wide disparities among the courts with respect to where the burden of proof should reside.

4. Under the reauthorized IDEA, lawsuits filed by parents that are considered frivolous assign legal fees including cost of court to parents.

Shaw v. Weast Discussion: An Oregon student with ADHD and depression engaged in defiant and risky behavior. Her parents sought a more restrictive environment. However, the district refused based on the fact that the student was earning good grades and did her work.

The parents placed the student in a residential facility. She was later expelled for engaging in a sexual act with another student. Her parents subsequently placed her in an out-of-state facility and sought tuition reimbursement. The Ninth Circuit Court denied tuition reimbursement.

Points of Emphasis: 1. The student’s IEP determines special needs students’ placement.

2. If parents voluntarily place their children in a more restrictive environment outside of what is prescribed in the student’s IEP, the costs associated with the placement is borne by the parents.

3. There was no educational reason that justified the required residential placement.

4. The student was not disruptive and was well regarded by her teachers; therefore, residential placement was not warranted.

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Florence County School District v. Shannon Carter Discussion: An IEP dispute arose when parents of Shannon Carter felt that her IEP was inadequate to meet her educational needs which would enable her to read at a high school level upon graduation. Shannon was placed in Trident Academy, a private school for dyslexic students, and sought reimbursement from the district for her placement. The district defended its position by stating that Shannon’s IEP would allow her to make four months of academic progress after a year of special education. The parents sued the district for tuition cost after being denied a due process hearing by the district. Shannon’s parents were supported at the district level, the Fourth Circuit Court of Appeals, and ultimately by the U.S. Supreme Court.

Points of Emphasis: 1. Courts will not hesitate to rule in cases involving IEP conflicts where due process hearings are denied to parents by school officials.

2. There is considerable judicial concern and oversight by the courts regarding students with disabilities since they historically represent a neglected minority.

3. Responsive due process procedures are essential to ensure that students with disabilities receive appropriate educational services.

4. Parents must be informed of procedures by which conflicts may be appealed and resolved.

5. Hearings regarding a disabled child’s placement must be impartial.

6. Impartial hearings are required based on Special Education statute.

Do Not Attempt to Resuscitate Orders Do Not Attempt to Resuscitate Orders (D NAR) are prescribed by physicians in conjunction with parents’ approval. Each student with a Do Not Attempt to Resuscitate order will typically have an Individualized Healthcare Plan as well as an Emergency Action Plan (EAP). In a school setting, a written request is provided to school personnel instructing them to withhold life saving techniques or resuscitative measures in the event of a respiratory or cardiac arrest experienced by a medically fragile child.

Points of Emphasis: 1. DNAR orders create moral and ethical challenges for school personnel.

2. Teachers operating in loco parentis (in place of parents) have no control over the mind, body, and soul of the child. These rights are reserved for parents.

3. Witnessing a child die in the classroom is traumatic for both teachers and students and can affect them psychologically and emotionally.

4. Some teachers request to not be assigned students with DNAR orders based on the harm that it can do to themselves and students.

5. Some school district policies prohibit school personnel from ordering DNA R orders.

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Length of School Year A determination regarding the length of the school year does oftentimes create conflict between the parents of a child with disabilities and the school district that is requested to make provisions for these services. The courts have been fairly liberal in cases where evidence reveals that special needs children regress more quickly when they are without special education and related services. This issue was addressed in: Alamo Heights Independent School District v. State Board of Education Discussion: The mother of a severely disabled child requested a summer program and transportation for the child. The request was denied. A hearing officer ruled on behalf of the mother. The district subsequently filed suit seeking a review by the district court.

The court found that the child had experienced significant regression without a structured program during the summer months. On appeal, the U.S. Court of Appeals agreed with the district court. The decision supported the child who was entitled to a summer program. Since the mother was a full-time employee, a request for transportation was deemed reasonable.

Points of Emphasis: 1. School districts are not immune from providing summer programs consistent with the needs of children with disabilities where the evidence supports the needs.

2. Attorney fees are available under the Handicapped Children Protection Act for parents when legal challenges are filed against school districts and parents are successful in their efforts.

3. Information contained in the child’s IEP forms the basis for determining the needs of a child with disabilities with respect to an extended school year.

Isolation and Restraint Laws A number of states have passed laws that address isolation and restraint practices in public schools. These laws were passed to protect the safety of students with disabilities and to ensure that they receive the proper placement based on the nature of their disability. There have been reported cases where isolation and restraint measures were used inappropriately and in some instances as punishment. There have also been reported suicides from unreasonable isolation tactics. Deaths have also resulted from prone and other types of restraints. Isolation and restraint law grew out of these incidents.

Points of Emphasis: 1. Students with disabilities are entitled to fair treatment and equal protection guarantees in public schools.

2. An abuse of discretion by a teacher in using isolation and restraint measures may result in irreparable harm or even death to students with disabilities.

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3. School leaders have a leading responsibility to ensure that teachers are properly trained and cognizant of isolation and restraint laws in their respective state.

4. School officials have a leading responsibility to ensure that isolation and restraint measures, if permitted, are implemented properly and that the safety of a student with disabilities is protected.

Intramural Sports and Students with Disabilities Students with disabilities have the right to participate in school-based athletic programs. Federal disability laws recognize these rights and require equal access.

Schools cannot formulate rules that have the impact of limiting participation in extracurricular sports based on stereotyping or a view that students with disabilities are not able to benefit from participation. However, a school may reasonably require a level of skill or ability of a student which allows participation so long as the requirement is not discriminatory and the safety of the student is protected.

Points of Emphasis: 1. Extracurricular activities are viewed as an extension of the regular school program.

2. Intramural teams are important to student development, self-esteem, socialization, team work, and community building.

3. The U.S. Department of Education clarified expectations for school districts regarding Section 504 of the Rehabilitation Act as well as their obligation to ensure equal access for students with disabilities.

4. School districts may risk losing federal funding for deliberate violations of Section 504 of the Rehabilitation Act. Disciplining Students with Disabilities It is well established that children with disabilities may not be punished for conduct that is related to their disability. Schools, however, may use their normal disciplinary procedures if it is determined that the conduct in question is unrelated to the child’s disability. School officials must be mindful that suspensions or expulsions represent a change in placement and triggers the implementation of the ―stay put rule‖ and due process procedures. If a disabled child poses a threat to the safety of others, he/she may be removed promptly so long as due process procedures follow. The ―stay put‖ provision is required.

S-1 v. Turlington Discussion: Nine high school students who ranged from moderate to mild mental retardation were expelled for various acts of misbehavior. Only one student, S-1, was afforded a hearing to determine if his disability was related to his offense. The district ruled that S-1 was not seriously disturbed and his disability was unrelated to his offense.

A suit was filed on S-1 alleging that the student’s rights under the Handicapped Act were violated. The issue addressed by the court was whether an intellectually retarded child could be expelled without a hearing as to whether his expulsion was related to his

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disability. The court issued an injunction to readmit S-1. The district appealed. The Fifth Circuit Court of Appeals held that an intellectually retarded child may not be expelled without a determination hearing.

Points of Emphasis: 1. Under the Act, a child with disabilities may not be expelled for conduct that is a manifestation of their disability.

2. The Disabilities Act requires that due process procedural protections accompany any change in educational placement.

3. The IEP team has the responsibility for making a determination regarding the relationship between misconduct and the disability.

4. A school could circumvent a disabled child’s right to an education in the least restrictive environment if the Handicapped Act was otherwise construed.

Honig v. Doe Discussion: Two emotionally disturbed students were suspended for a period of less than 10 days, one for physically assaulting a fellow student, and the other for making sexual comments to a female classmate after repeated warnings. The school district scheduled expulsion hearings for both students and extended their suspensions indefinitely pending the outcome of the hearings. A suit was filed on behalf of the students alleging due process violations. The Supreme Court held for the students. The Court ruled that school officials may not exclude children with disabilities from school in excess of 10 days without implementing due process procedures consistent with the Disabilities Act unless there is evidence that the student poses an immediate threat to the safety of others.

Points of Emphasis: 1. Congress, in passing the disabilities act, clearly intended to strip schools of unilateral authority that have traditionally held to exclude disabled students from public schools.

2. The language in the ―stay put‖ provision is unequivocal while proceedings are pending.

3. Schools may use their normal procedures in instances where a disabled child poses a threat to himself/herself or others.

4. School districts may temporarily suspend a disabled child up to 10 days without a determination hearing in cases where there is an immediate threat to safety.

5. The courts attempt to balance the school’s interest in maintaining a safe learning environment against the mandates of the IDEA. Correctable Illnesses and AD A

Chapter 5: Individuals with Disabilities

In a series of early cases, Sutton v. United Airlines, Inc., Murphy v. United Parcel Service and Albertson’s v. Kirkingburg and Toyota v. Williams, the U.S. Supreme Court provided new meaning to the Americans with Disabilities Act in four significant rulings affecting employees with physical impairments. These four rulings held that Americans with physical impairments are not protected by A DA in instances in which the impairments are correctable. The correctable physical impairments included hypertension, eyesight, and bilateral carpal tunnel syndrome. Since the identical conclusion was reached by the Supreme Court, only two cases will be discussed. The other two cases involved a Kansas truck driver with hypertension and an Oregon truck driver with blindness in one eye.

Sutton v. United Airlines, Inc. Discussion: Severely myopic twin sisters with uncorrected visual acuity of 20 / 200 applied for employment with United Airlines. With corrective measures, both functioned identically with individuals with normal vision. Because they did not meet the airline’s minimum requirement of uncorrected visual acuity of 20 / 100 or better, they were denied employment. They filed suit under ADA. The Tenth Circuit Court held for the airline stating that plaintiffs were not actually disabled under the Act because their visual impairment was correctable. The plaintiffs appealed to the U.S. Supreme Court. In a 7-2 ruling, the Supreme Court affirmed the Tenth Circuit Court of Appeal’s decision.

Points of Emphasis: 1. Based on these rulings in these cases, correctable impairments do not fall under the coverage of ADA. 2. A physical or mental impairment that exists after corrective measures have been exhausted would fall under the coverage of the Act. 3. Based on the Supreme Court’s decision to be included in the definition of ―substantially‖ limited in a major life activity based on a disability, the person must be eliminated from consideration regarding more than one type of position, a specialized position, or a particular choice of a position. In the plaintiff’s case in Sutton, there were other jobs available at the airline other than a global pilot’s position.

However, the ADA Amendments Act of 2008 revises the definition of disability to more broadly encompass impairments that substantially limit a major life activity.

The act states that impairment that is episodic or in remission is a disability if it would substantially limit a major life activity. This act reverses the Supreme Court rulings in Sutton v. United Airlines and Toyota v. Williams.

Toyota v. Williams Discussion: Williams, an automotive assembly worker, began to experience pain in her hands, wrists, and arms. She was diagnosed with bilateral carpal tunnel syndrome and bilateral tendinitis. She was assigned various jobs by Toyota to accommodate her limitations. When she missed work for medical reasons, she was terminated for poor

Chapter 5: Individuals with Disabilities

attendance. Williams sued for failure to be provided reasonable accommodations as required by the ADA Act. The district court issued summary judgment for Toyota in holding that Williams did not qualify under ADA because her disability did not limit any major life activity. The Court of Appeals reversed the district court’s decision at which time Toyota appealed to the U.S. Supreme Court. The U.S. Supreme Court reversed the Court of Appeals decision holding that Williams’ impairment must be permanent or long term.

Points of Emphasis: 1. The district court held that Williams was not disabled at the time she sought accommodations and ruled on behalf of Toyota.

2. The Court of Appeals reversed the district court’s ruling in holding that Williams’ impairment did, in fact, substantially impact her ability to perform manual tasks and considered her impairment to limit a major life activity.

3. The U.S. Supreme Court held that the Court of Appeals did not apply the proper standard in its decision because it only analyzed a limited class of manual tasks to determine whether Williams’ impairment prevented her from performing tasks that were of central importance to most people’s daily lives and those impairments must be permanent or long term.

The Americans with Disabilities Act of 2008 reversed the U.S. Supreme Court’s decisions in both Sutton and Williams in establishing that the terms ―substantially‖ and ―major‖ in the definition of ADA must be considered in determining whether an impairment constitutes a disability under the law. The Act also enumerates that impairment that are episodic or in remission must be assessed in their active state.

Chapter 6: School Personnel and School District Liability

CHAPTER 6 - SCHOOL PERSONNEL AND SCHOOL DISTRICT LIABILITY Schools are deemed to be safe places by the Courts. Consequently, school personnel have a legal duty to protect students from harm to the greatest extent possible. What are the consequences when school personnel breach their legal duty and students are harmed? Can they face lawsuits for failure to protect students? Can school personnel be sued when they fail to foresee that certain conditions in the school may harm students? These conditions include inadequate instruction on use of certain types of equipment, inadequate supervision, inability to anticipate that a certain activity or situation may prove harmful to students, and then failure to take steps to prevent harm to students when they are on playgrounds, field trips, or in laboratories. This chapter covers the three categories regarding liability and school personnel—intentional, negligence, and strict liability as well as circumstances that may lead to charges against school personnel for injury to students. The various defenses will be discussed that may reduce or eliminate the impact of liability charges. All aspects of school liability are addressed in this chapter along with legal ramifications for school personnel.

Readers of this chapter should be able to: 

Explain the three legal duties assigned to educators by the courts.



Analyze the conditions that may lead to litigation against school officials, teachers, and other certified school personnel.



Discuss the responsibilities that school personnel assume on field trips and other excursions.



Explain the importance of foreseeability as a means of minimizing injury to students.



Analyze conditions in the school that may potentially prove to be harmful to students and appropriate steps that must be taken to protect them.



Identify the three categories associated with tort liability.



Discuss the most common forms of torts affecting personnel and the legal ramifications associated with each one.



Describe the most common defenses against defamation that may be used by school personnel to avoid liability charges.

This chapter focuses on school district personnel and their responsibilities for protecting the health and safety of students under their supervision. Schools are presumed to be safe places because they are staffed with prudent professionals who are acting in the place of parents. It is assumed that these professionals will take affirmative steps to ensure to the greatest extent possible that the school environment is safe and conducive for students.

Topical Outline of this Chapter

Chapter 6: School Personnel and School District Liability

The School as a Safe Place Individual Liability Wood v. Strickland Carey v. Piphus Celestine v. Lafayette Parish School Board Supervision Before School Titus v. Lindberg King v. Northeast Security Inc. Strict Liability Field Trips and Liability King v. Kartenson Liability Involving Students at Bus Stops Extracurricular Activities School-Based Physical Activities Before and After School Detention Wofford v. Evans Priester v. Lowndes County School District Educational Malpractice Hoffman v. Board of Education of City of New York The School as A Safe Place By and large, courts have fallen short of ruling that students have a constitutional right to be protected from harm on school grounds. Two lower courts, however, have come close to doing so. In Hoseman v. Oakland Unified School District and Doe v.

Taylor, the former case involving theft and assault and the latter case involving sexual abuse of a female student. Both affirmed that students have a right to attend campuses that are safe, secure, and crime free.

Points of Emphasis: 1. Requiring schools to constitutionally maintain safe campuses is a standard that is too high to reach.

2. Tort liability does not guarantee that injuries will never occur on school grounds. It simply requires that school personnel take prudent steps to protect students from foreseeable harm.

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3. Holding school personnel to a strict constitutional standard will not likely receive widespread court endorsement.

4. A property interest in attending school carries no constitutional guarantees against injury.

Individual Liability Under certain conditions, school personnel may be held individually liable for actions that result in injury to a student. Liability is generally imposed in instances in which it can be demonstrated that a school employee’s action violated a clearly established law and that the employee exhibited reckless disregard for the rights of the plaintiff.

Wood v. Strickland Discussion: Three high school students were expelled for spiking punch at a schoolsponsored event which was in violation of school policy. The school board expelled these students for the remaining semester which was roughly three months. The students and their parents filed suit under Section 1983, a federal statute that provides that any person who under the color of state law, deprives anyone within the jurisdiction of the United States of constitutional rights or of rights secured by federal law shall be liable to the injured party in a lawsuit for monetary damages or other relief.

The U.S. Supreme Court held that a school officials’ immunity from monetary damages under Section 1983 depends on two elements: (1) the officials acted with the sincere belief that they were doing right without a malicious intent to deprive students of their constitutional rights, and (2) officials lose immunity if they knew or should have reasonably known that the action they took would violate the constitutional rights of students.

Points of Emphasis: 1. The court found that public policy and prior legal decisions require qualified good faith immunity from damages for officials so that those who act in good faith and within the scope of their duties will not be intimidated in executing their responsibilities with threats of a lawsuit.

2. The objective element which requires administration to act in accordance with settled law and the constitutional rights of those affected by their action is a reasonable condition for immunity from a lawsuit for damages.

3. However, if school officials act out of ignorance or reckless disregard for settled law, officials may be sued.

4. Section 1983 provides for federal court correction on only those improper exercises of discretion that result in violation of specific constitutional guarantees.

The U.S. Supreme Court clarified the conditions under which recovery for damages may be awarded in:

Chapter 6: School Personnel and School District Liability

Carey v. Piphus Discussion: Two students were suspended one for smoking marijuana during school hours on school property and the other for wearing an earring in violation of a school regulation intended to discourage gang activity in the school. The district held that both students had been suspended in violation of the Fourteenth Amendment. It further ruled that school officials were not entitled to qualified damages under Wood v. Strickland.

Points of Emphasis: 1. In the absence of proof for actual injury, students who are suspended with requisite procedural due process are entitled to recover only nominal damages.

2. The primary purpose of Section 1981 damage awards is to compensate persons for injuries incurred by denial of constitutional rights.

3. Liability is probable when students’ constitutional rights are willfully violated by school officials.

Supervision Before School There is some responsibility for supervision of students who arrive on school grounds before the school day begins. The degree of supervision depends on the circumstances surrounding the situation. School personnel are expected to foresee that early arriving students may be injured under certain circumstances. Once this determination is made, prudent steps must be taken to prevent harm to students under the school’s supervision. An example of foreseeable injury is demonstrated in the following case: Titus v. Lindberg Discussion: This case involved on-campus supervision of students before the school day began. A student arrived on campus and proceeded to park his bike. As he turned the corner toward the bike rack, he was injured when he was struck in the eye by a paper clip shot by a student who was on campus waiting for a bus to take him to another campus. The facts revealed that this same student had shot another student just five minutes prior to this incident. The principal provided supervision for all students who arrived early. At the time of the second incident, the principal had gone inside the school to allow the milkman to deliver milk. The principal was held liable. The injured student, Titus, was awarded $44,000 for damages.

Points of Emphasis: 1. Adequate supervision is based on the quality of supervision and the quantity of students in need of supervision. Is it reasonable to assume that one person, the principal, could not adequately provide supervision for a larger number of fairly immature students without additional school personnel?

Chapter 6: School Personnel and School District Liability

2. Negligence is negligence irrespective of defenses that school personnel may attempt to use. Negligence will generally result in liability charges against school personnel who are responsible for student injury.

3. The fact that students arrive on campus early does not exonerate school personnel from liability if they know or should have known that students may be injured or harmed in the absence of supervision.

4. Foreseeability requires that a reasonable effort be made to protect students from being harmed by other students.

King v. Northwest Security Inc. Discussion: A case involving class action liability arose in Indiana when a student was brutally beaten by four other students in the school’s parking lot. The student sued the district and the security corporation hired by the district for failure to take reasonable steps to provide adequate security against criminal acts of third parties. The court held that the district cannot be sued for failure to prevent crime but may be held legally responsible for failure to take reasonable precautions. The court ruled that the security firm could be held liable for negligence in carrying out its contractual obligation to the district.

Points of Emphasis: 1. There is a higher standard of care for school officials in districts where frequent crime occurs.

2. Foreseeability is an important concept for school officials when it is known that frequent criminal acts of violence and crime occur on their premises.

3. The courts do not expect school officials to ensure that crime will never occur on school grounds but they do expect school officials to take reasonable steps to prevent and/or minimize violent crime.

Strict Liability Strict liability occurs when individuals are held liable even though they are not at fault. Strict liability is frequently used when a student is involved in an ultrahazardous activity. The view surrounding strict liability is that someone must compensate the injured party for the injury. The individual best able to bear the burden is typically assessed for damages. Consequently, strict liability is sometimes referenced as liability without fault. A determination as to whether an activity is ultrahazardous centers around whether the risk is so unusual based on the seriousness of it or the circumstances surrounding it. Strict liability cases in public schools rarely occur but the prospect that it may occur does exist.

Points of Emphasis: 1. Strict liability rarely occurs in public schools.

2. A breach of duty can trigger strict liability claims.

Chapter 6: School Personnel and School District Liability

3. School officials and personnel should ensure that the standard of care is met to avoid serious harm to students.

4. The degree of danger surrounding a school-based activity can impact strict liability charges.

Field Trips and Busses Liability School-sponsored field trips are generally viewed as extensions of normal school activities. They provide valuable learning experiences for students that often complement their classroom learning activities. To minimize personal liability, it is most feasible to utilize school-owned busses or commercially-leased busses rather than automobiles driven by teachers and/or parents. Reasonable standards of supervision must be exercised by school personnel because students most often are in environments in which they are not familiar. Age and maturity of students are important considerations in planning field trips and excursions. This issue was addressed in: King v. Kartenson Discussion: An eighth-grade class consisting of 110 students took a field trip to Nashville. A luncheon was planned at a restaurant across the street from the park where the class visited. Three students who finished their lunch early requested permission to return to the park. The teacher granted permission but advised the students to be careful. One student reached the curb, stopped and looked both ways but was struck by an automobile. The student’s parents brought a suit against the teacher claiming negligence for not escorting the students across the street. The lower court held for the parents by ruling that the teachers were negligent. On appeal, the state court of appeals reversed the lower court’s decision finding that the injured student was 13-years old, experienced no hearing or vision problems, and was regarded as very mature for his age.

Points of Emphasis: 1. The age and maturity of students and the instruction they receive are important factors in determining if fault rests with the teacher when an injury occurs.

2. The case could be viewed as an exception to the normal posture taken by the courts and should not be viewed as a license by teachers not to exercise the prudence in supervisory field trip activities.

3. Reasonableness and prudence are key areas the courts will assess in determining where fault lies in liability cases.

4. The standard of care is generally higher in matters relating to field trips due to unfamiliarity with the environment in which students are placed.

To minimize liability during field trip excursions, school-sponsored or commercial transportation should be provided. The use of personal vehicles should be avoided. If personal vehicles must be used, owners of these vehicles must assure that they have liability coverage on which to rely in the event of unforeseen accidents.

Chapter 6: School Personnel and School District Liability

Busses used on field trips should pass all safety standards and should not exceed rated seating capacity. Additionally, a passenger list should be available before busses depart and should be checked to ensure that every student is accounted for prior to returning to campus. The school principal has the overall responsibility for ensuring that all safety requirements are met and that appropriate policies governing student behavior are properly communicated to students and their parents or guardians.

Points of Emphasis: 1. Sound school policies require parental or custodial permission must be sought to before permitting a child to participate in a field trip.

2. All busses should be operated by the school district or a commercially-contracted agency.

3. All drivers must be licensed and certified to operate the bus.

4. Safety inspections should are expected to be conducted prior to engaging the busses for field trip excursions.

5. The principal is responsible for securing an appropriate number of chaperones and ensuring that students and chaperones are knowledgeable of the rules that apply during the field trip excursion.

Liability Involving Students at Bus Stops School officials are not liable for student injury at bus stops. Parents are responsible for their child’s behavior while waiting to board the school bus. When the child boards the bus, liability may arise depending on the facts surrounding an injury to a student. In all cases, school or district policy should serve as a source for governing student behavior on school-sponsored transportation. These rules should be strictly enforced. Parents and students should be briefed on these policies as well as the consequences when these rules or policies are violated.

Schools are not typically held accountable for student safety at bus stops based on numerous factors beyond the control of the school such as traffic patterns, speed limits, driver negligence, student conduct, etc. The school district’s responsibility begins when students actually board the bus. There should be written rules and regulations governing student conduct on the bus as well as consequences when these rules and regulations are violated. Parents should be informed of student conduct rules so that they can be reinforced at home. If school leaders are aware of misconduct at the bus stops, they should inform parents of student misconduct and work with them and bus drivers to protect students from possible harm. Students may be disciplined for offcampus misconduct if such conduct affects school discipline.

The Florida Supreme Court declined to hear a case involving the Alachua County School Board and a woman who had sued the School District after her daughter walked into a road near a school bus stop and was hit by a van. The court issued an opinion saying that, although it initially had agreed to review a First District Court of Appeal decision on the case, it now was not going to move forward with a review.

Chapter 6: School Personnel and School District Liability

Points of Emphasis: 1. School district liability does not typically apply at bus stops.

2. Liability may occur when students board the bus.

3. School district policies, rules, and regulations govern student conduct on busses.

4. Consequences must be an integral component of policy violations.

5. Sound school policy must apprise students and parents of the conduct expected of students while riding on school busses along with consequences for violating the code of conduct associated with bus occupancy.

6. If school officials are aware that student conduct at bus stops may result in injury, they should respond by informing parents and students that these acts are dangerous and may result in penalties for those who commit them.

7. School officials should ensure that bus stops are not located in highly trafficked areas or hazardous areas that may prove harmful to students.

8. School parent volunteers should not be engaged in other activities when students are consistently involved in misconduct.

9. Schools and school bus operators should be proactive in supervising students to ensure that student misconduct does not contribute to harmful conditions for students.

Extracurricular Activities Extracurricular activities are an extension of normal school programs. They assist students to maintain a healthy lifestyle and build relationships with other students.

Extracurricular activities can also facilitate leadership skill development, and build a sense of community and pride in school. Because extracurricular activities often involve physical movement and contact, a greater degree of supervision is required by school personnel.

Consequently, school personnel have a duty to warn students of any impending danger associated with a particular activity, instruct them of proper techniques to be used and ensure that students are adhering to proper instruction. School or district rules and regulations should be developed to guide students as they participate in these activities. A concerted effort should be made to ensure that students understand the rules along with consequences when they are not followed. Any negligence by school personnel that results in injury may form grounds for liability suits against school personnel or the district depending on the facts surrounding the injured student.

Points of Emphasis: 1. Failure to exercise a degree of care for the safety of students can result in charges against the school or district.

2. School personnel have a duty to warn and a duty to supervise students in their care.

Chapter 6: School Personnel and School District Liability

3. Special duties may apply based on the nature of the activity and the potential to harm students.

4. Foreseeability is crucial in allowing school personnel to anticipate circumstances that create harm to students and responding to protect students from injury.

School-Based Activities Before and After School Physical activities before and after school include walking and biking to school programs and physical activity clubs. These programs improve student health and build community within the school. If these programs are sponsored by the school district, efforts must be made to ensure that students are safe during participation. A special duty of care and supervision are required to protect students. If parents or community leaders are involved, they too, must understand the nature of supervision that is required to create a safe environment for students.

Points of Emphasis: 1. School or district policy should govern before and after school-based programs.

2. These programs should be accessible to students.

3. Parents should be invited to participate in these programs.

4. To the greatest extent possible, these programs should be with community-based organizations.

Detention Detention is a permissible form of punishment if it is administered in a prudent manner and consistent with school or district policy. Detention policies typically require parental notification prior to the actual detention.

Wofford v. Evans Discussion: An interesting Fourteenth Amendment claim arose in Virginia when school officials failed to notify parents prior to detaining their child during the investigation of serious allegations of student misconduct. The court held that school officials did not violate a parent’s Fourteenth Amendment right to due process by failing to notify them of the detention. The court concluded further that the detention was necessary to investigate reports that the child possessed a weapon which also did not violate the child’s right to freedom from unreasonable search and seizure.

Points of Emphasis: 1. When detention of a student is critical to safety, parents may not always be notified in advance of the detention.

2. School officials were informed by a student who claimed that she saw M.D., the student dispose of the gun in the woods.

Chapter 6: School Personnel and School District Liability

3. School officials have a legal duty to protect the safety of all students under their care. Therefore, it was appropriate for them to detain M.D. and investigate the claim of the student who informed them that M.D. had a gun.

4. Failure to act by school officials could have been fatal had M.D. possessed a gun and decided to use it.

5. Courts are becoming increasingly lenient toward public school officials in cases involving dangerous weapons and school violence based on their duty to ensure that the school is a safe place.

Priester v. Lowndes County School District Discussion: An African American high school athlete in Mississippi filed suit alleging that he was attacked by fellow athletes which resulted in a serious eye injury. He alleged further that the attack was racially motivated based on racial epithets made to him by his football coach in front of other athletes, one of whom allegedly attacked him.

According to the plaintiff, the coach’s behavior toward him created an environment where his assailants felt free to abuse him. His eye injury occurred during a full contact blocking drill when his assailant stuck his hands through his helmet. His claims of conspiracy and a violation of his civil rights were not sustained by the court. The Fifth Circuit Court of Appeals held that neither the school district nor its officials were liable for his injury.

Points of Emphasis: 1. There is an assumption of risk involved when students participate in contact sports.

2. There was no evidence which suggested that the coach could have prevented the injury.

3. The Fifth Circuit Court rejected plaintiff’s attempts to demonstrate a conspiracy in an attempt to establish that the assailant’s actions amounted to state action.

4. The plaintiff was unable to demonstrate that the state’s failure to protect an individual from private violence violated his due process rights.

5. Although not established in this case, assumption of risk is not a proper defense and will not relieve a coach or the district from liability if there is evidence of negligence or inadequate instruction regarding proper techniques.

Educational Malpractice Educational malpractice has emerged as a formidable threat to educators over the past two decades. Parents have brought legal challenges on behalf of their children alleging that teachers were either unable or unwilling to provide competent instruction which resulted in academic injury to their children. Academic injury is based on the view that injured students did not receive the full benefits of a proper education. While numerous suits have been filed through the years, none have been successful to date.

With the emergence of school-based management, national teaching standards, Every

Chapter 6: School Personnel and School District Liability

Student Succeeds Act, and greater accountability for results, it may not be surprising to see a parent succeed in malpractice claims in the foreseeable future.

Hoffman v. Board of Education of City of New York Discussion: In this case, the court ruled on behalf of the student indicating that he had suffered academic injury based on diminished intellectual development and psychological injury stemming from inappropriate placement. The student scored one point below normal on a verbal abilities test that resulted in him being placed in programs for mentally retarded children when the plaintiff only had a speech defect. It was not until the plaintiff applied for social security that it was determined that he had an IQ of 94. The suit was filed upon this discovery. The lower court held for the student based on the facts. However, the New York Court of Appeals reversed the decision for public policy reasons.

Points of Emphasis: 1. The trial court emphasized that had the student been improperly diagnosed or treated by medical or psychological personnel in a municipal hospital, the municipality would be liable for the ensuing injuries.

2. The lower court did not believe that a different rule should apply in this case simply because it was an educational establishment.

3. Negligence is negligence, even if the defendant prefers to semantically call it educational malpractice according to the trial court.

4. Rulings based on public policy reasons suggest that the courts historically have failed to recognize educational malpractice as an appropriate course of action.

5. This historical view based on public policy should not be viewed to suggest that the courts will always follow this line of reasoning. It is more likely than not that a court in the future will rule on facts that gave rise to academic injury rather than base its decision on public policy grounds.

Chapter 7: Liability and Student Records

CHAPTER 7 - LIABILITY AND STUDENT RECORDS Accurate student records are essential for schools to develop meaningful educational programs for students. School records are confidential and must be protected by authorized school personnel. These records should not be released without written consent from parents or guardians. Public Law 93-380, the Family Educational Rights and Privacy Act (FERP A) was enacted by Congress in 1974 with the expressed purpose of protecting the confidentiality of student records and guaranteeing that fundamental fairness will prevail with respect to maintenance and the use of student records. This chapter covers the components of Educational Rights and Privacy Act (FERPA) as well as sanctions schools can face when they violate federal law regarding confidentiality guarantees for students and their parents. Sanctions for violating P.L. 93-380 may include loss of federal funds for the school district. Individual employees may also be fined up to $500 for each FERPA violation depending on the severity of violations and the harm incurred by the student. In rare cases, an employee may receive a suspension or termination based on the magnitude of the violation.

This chapter also covers Federal Law 93-380 and the sanctions that can be imposed on schools for failure to adhere to its basic provisions. Requirements that must be met by school districts to protect confidentiality and promote fairness to students and parents are outlined in detail. The rights of parents and students are discussed and remedies that are available when their rights are violated. It also details the rights of school personnel with respect to accessing and using student information for legitimate educational purposes. This chapter concludes with liability challenges school personnel may face when they share confidential or personal information with an unauthorized person that results in injury to the student’s reputation or standing in the school. Sharing sensitive information regarding a student’s moral fitness or lifestyle changes that damage employment opportunities may trigger defamation charges.

Readers of this chapter should be able to: 

Discuss the major components of Public Law 93-380 and how these components affect school personnel, students, parents, or legal guardians.



Describe sanctions schools face when they violate the tenets of the Privacy Act.



Outline the requirements that must be met by school districts to be in compliance with the Privacy Act.



Detail the privacy rights of students and parents with respect to confidentiality.



Discuss the rights of authorized school personnel in accessing and using students’ information for legitimate educational purposes.



Identify individuals, officials, and agencies who may receive student information without prior written approval.



Describe the risks associated with liability charges when school personnel violate privacy rights of students.

Chapter 7: Liability and Student Records



Identify types of information that can be released without parental, legal guardian, or student consent.



Outline the conditions that may protect school personnel from liability suits.



Discuss the procedures for challenging the accuracy of student records that schools must follow to accommodate parents, legal guardians, or students eighteen years or older.

Legal challenges involving defamation have become increasingly important in the past decade. There are a myriad of issues involving the Family Rights and Privacy Act (FERPA) that must be understood and addressed by school personnel. Significant violations of FERPA by school personnel may result in a loss of federal funds. The rights of parents, eligible students, noncustodial parents, and school personnel are discussed at the beginning of the chapter.

Topical Outline of this Chapter Defamation Involving School Personnel Student Records Garlick v. Oak Park and River Forest High School District #200 Rhea v. District Board of Trustees of Santa Fe College Updating Student Records Digitizing Student Records Cyberattacks and Student Records Privilege Good Faith Confidentiality Issues Involving School Counselors Tarasoff v. Regents of the University of California Acts of Malice Defenses Against Defamation Falvo v. Owasso Independent School District Truth Ellis v. Cleveland Municipal School District Defamation Involving School Personnel Defamation falls into two categories—libel and slander. Libel is written defamation while slander is oral defamation. Both contain statements or

Chapter 7: Liability and Student Records

communications that result in injury to a person’s reputation, good name, or standing in the school and/or community. The burden of proof resides with the person who brings charges of libel and slander to demonstrate that injury resulted from the alleged conduct of the defendant. Certain statements may be made upon their face that may cause injury to another based on the content of these statements. The person affected by these statements need not prove damages when statements are made regarding criminal behavior, professional or job competency, possession of a contagious disease, and unchastity in a woman.

Student Records Access to student records by parents represents a primary source of conflict when parents insist on inspecting records of their children and school districts oppose such inspection. Much of the conflict involving access to student records can be attributed to a misinterpretation of the intent of the Family Rights and Privacy Acts. The following case illustrates a typical conflict between a parent and school officials.

Garlick v. Oak Park and River Forest High School District #200 Discussion: This case involving parental access to student records arose in Illinois. An Illinois school district violated the state School Records Act by refusing to turn over a student’s Biology test booklet to her parent when he requested a copy. The superintendent indicated that the information was not covered by the School Records Act since the test booklets contained no personally identifying information regarding the student. While the biology booklet lawsuit was pending, the parent made a new written request to the superintendent for copies of his daughter’s advanced algebra exams.

Instead, the parent was offered the opportunity to examine test booklets on school property or at home with the stipulation that they had to be returned the next day. He was allowed to hand-copy test questions. The parent sued the school district in the state court system seeking a declaration that the booklet was a student record under the state School Records Act.1 A state trial court held that the booklets did not fall under the act as they were devoid of any student marks or other information identifying the student. The Appellate Court of Illinois affirmed the judgment. The student’s name, answers and calculations were not contained on the algebra booklet. On appeal, the court stated that the overall intent of the act is to permit a broad right of parental access to such records. The court agreed with the parent that the algebra test booklets were covered by the act. While the questions themselves had no information concerning the student, they were part of a document containing such information and the entire test booklet with her markings fell under the act. When student markings or other identifying information could be found on test booklets, they became student records subject to parental rights to inspect and copy. The district did not comply with the act by allowing the parent to take booklets home. The court reversed the judgment by the lower courts.

Rhea v. District Board of Trustees of Santa Fe College A student filed a complaint against a teacher and sought protection under FERP A. The identity of the students who submitted complaints about teachers to public

Chapter 7: Liability and Student Records

schools, including colleges are public records and must be disclosed to citizens according to a ruling by the Florida Appellate Court for the First District. The court held that Santa Fe College must release the name of the student who sent an email complaining about a former mathematics instructor Darnell Rhea’s classroom performance.

Points of Emphasis: 1. A student’s name is not covered by state and federal laws granting confidentiality because such complaints do not directly relate to the student.

2. The complaint directly related to the teacher and only tangentially to the complaining student.

3. A citizen’s right to public records is a fundamental right in virtually all states.

4. FERPA does not prohibit disclosure of educational records; however, it withholds federal funding from schools that have a policy or practice of permitting the disclosure of records directly related to students without the expressed consent of the student, parent, or guardian.

Updating Student Records School districts receive written requests from former students to receive copies of their personal records. These students can be accommodated with proof of identity.

Parents and guardians may also request a copy of their child’s personal record while the child is still enrolled in school. Districts have policies and procedures that are aligned with P.L. 93-380 to accommodate these requests. Former students typically make requests to correct their personal records based on marriage, name change, and gender identity updates. Students who are identified as transgender after leaving high school request that their record reflect the preferred name and gender to avoid conflicting information that may affect employment, personal loans, housing applications, and educational opportunities. Schools must follow the same procedures to amend information regarding transgender status consistent with normal procedures for amending other student records. The same privacy rights prevail regarding confidentiality of personal records as would prevail in any other circumstance.

Points of Emphasis: 1. Students should be provided a new transcript, diploma, and other records that reflect their current name upon request along with fees to cover their request.

2. Some districts destroy student records two years after their graduation date.

3. School districts should notify students and parents to inform them that records will be destroyed allowing them adequate time to receive a copy of the record if they desire consistent with P.L. 93-380.

4. Student transcripts are maintained for an indefinite period of time ranging from three or four years to an indefinite period of time.

Digitizing Student Records

Chapter 7: Liability and Student Records

Digitizing student records does not conflict in any manner with the requirements regarding FERPA. The primary focus involving digitizing student records centers around ensuring that proper controls are implemented to facilitate confidentiality. Student privacy is paramount irrespective of methods used to maintain student records. School leaders should weigh the benefits and challenges associated with transforming analog materials into an electronic format. School personnel must be properly trained on methods of accessing student information if a digital format is adopted. The same policies and rules apply regarding confidentiality involving student records. In all cases, FERPA guidelines should be followed.

Points of Emphasis: 1. Digitizing student records does not conflict with FERPA requirements.

2. Since electronic technology is subject to unwarranted intrusion, necessary steps must be taken to protect the privacy rights of students regarding personal information.

3. Proper training for all authorized personnel who are privileged to access student information is important in protecting the privacy rights of students.

4. Contingency plans are needed to ensure that students and eligible parents may access student files during the digitization process.

Cyberattacks and Student Records Cyberattacks are all too common in the United States. Schools are not immune from experiencing these attacks. The most dangerous aspect regarding schools involves losing sensitive student data which can result in identity theft. Schools must implement strong data storage procedures and encrypt data to enhance security and data privacy. School districts should ensure that confidentiality of students’ personal information is protected based on the requirements promulgated by The Family Educational Rights and Privacy Act (FERPA).

Points of Emphasis: 1. No Cybersecurity system is foolproof.

2. School districts must develop a clearly defined incident response and the ability to restore access and functionality to its IT infrastructure.

3. School districts may wish to secure cyber insurance as a layer of protection to cover monetary expenses in the event of an attack.

4. School officials should establish a culture of cybersecurity awareness as they move toward a more secure environment.

Privilege On a number of occasions, school personnel are requested to provide oral or written information on a student. When these requests are made and school personnel respond in a truthful and professional manner in accordance with their prescribed

Chapter 7: Liability and Student Records

duties, they are protected by qualified privilege. When the recipient and school personnel who provide requested information have a common interest, they are protected by a qualified privilege. This privilege may be lost if the communication is transmitted to another person who does not share this common interest and has no need to be privileged to the information.

Good Faith Qualified privilege is based on the premise that the educator is operating in good faith when sensitive information is communicated to another person who has an interest in receiving the information. Good faith requires that a legitimate purpose be served by communicating the information. Further, information should not be communicated with malice or intent to harm the persons about whom the information is shared. An absence of good faith in communicating information may result in personal damages brought against those who do not operate in a reasonable and prudent manner. An example of good faith is illustrated in the following case, even though it did not involve students.

Confidentiality Issues Involving School Counselors A certain level of confidentiality is necessary between school counselors and students. The success of the counseling relationship is based, in large measure, on a feeling of trust and assurance that confidentiality will not be breached. Generally, the confidential relationship among counselors and students is recognized and respected.

However, counselors have a duty to warn during counseling sessions where a student clearly expresses intent to inflict bodily harm on an identifiable person. Failure to properly warn another individual of potential harm may result in liability for the counselor should the individual be harmed by the assailant. In this instance, confidentiality is outweighed by the consideration of public safety.

Tarasoff v. Regents of the University of California Discussion: Confidentiality between school counselors and students is not absolute as illustrated by a leading case involving the University of California. A student confided to his psychologist during a therapy session that he was going to kill another student.

Tarasoff was subsequently killed by the student. Her parents filed suit claiming that the psychologist had a duty to inform campus police and to warn their daughter and them of impending danger. The California Supreme Court agreed. The court further held that the psychologist became sufficiently involved to assume some responsibility for the safety not only of the patient but also of any person whom the psychologist knew to be threatened by the patient.

Points of Emphasis: 1. Most communication between a school counselor and a student does not rise to a civil or criminal proceeding.

Chapter 7: Liability and Student Records

2. The need for confidentiality between school counselors and students is usually recognized as an effective means of encouraging students to seek professional assistance.

3. Most states require school counselors to testify when they are subpoenaed by the courts. Refusal to do so may lead to contempt of court resulting in either a fine, jail time or both.

4. Privilege may be lost with respect to public safety in states that allow privileged communication between counselors and students.

5. Counselors have a duty to warn others when they become aware of personal threats or intent to harm another student.

Acts of Malice Malice is present when there is intent to harm or injure another person. Intent is a critical element in cases involving malice. A tort occurs when communication is made with the intent to harm or injure another. It becomes more evident if information communicated is proven to be false. Statements must be free of malice to avoid allegations of defamation. When evidence demonstrates that school personnel acted in bad faith with the intent to injure another person, liability charges are generally justified even if statements are true. All persons are entitled to a liberty right with respect to the expectation that their reputation be protected against unwarranted attacks.

There are essentially two types of malice—implied malice in which the offender has no defense for conveying harmful information and actual malice in which the person harmed must demonstrate that the offender had a personal motive for doing so and this motive was calculated to generate ill will against the offended person.

Falvo v. Owasso Independent School District Discussion: This case involved a challenge by a parent who brought suit against a school district for a grading practice she alleged created severe embarrassment for her children. Some teachers in the district allowed students to grade each others work assignments and tests and call out their own grades to the teacher. Falvo was informed that her children had the option of confidentially reporting their grades to the teacher rather than calling them out in class. The district court dismissed the suit. On appeal, the circuit court recognized the existence of a Fourteenth Amendment right to prevent disclosure of certain types of information. However, school work did not rise to that level. With respect to FERPA, the court of appeals found that grading practices did violate FERPA guidelines. The courts ruled on behalf of the parent because the practice of allowing students to grade papers is not prudent. Teachers have as a part of their professional responsibility the duty to grade student papers. At best, this practice is questionable and may be a source of embarrassment to students. Any practice involving disclosures of student grades to unauthorized individuals violates FERPA and should not be authorized by school districts.

Points of Emphasis:

Chapter 7: Liability and Student Records

1. Any practice that has the effect of creating embarrassment for students is not permitted.

2. Allowing students to grade other students’ papers and learn their grade is not a sound academic practice.

3. Students do enjoy a constitutional privacy right within reasonable limits in public schools.

4. The grading practice in this case did violate FERPA. 5. Any practice involving disclosure of student grades to unauthorized individuals violates FERPA. Truth Truth is generally considered a defense to charges involving defamation. If the person making the statement is doing so based on information believed to be accurate and reasonable, courts will generally recognize these statements as being nondefamatory in nature. The inference here is that communication must be transmitted with good motives. However, statements that are true will not be supported as a defense if there is evidence of malice involved.

Points of Emphasis: 1. School personnel are vulnerable to defamation charges based on sensitive information they encounter in their daily work.

2. School personnel are protected by qualified privilege when statements are made in good faith and without malice.

3. There is some degree of disagreement among courts as to whether teachers are considered public officials.

Ellis v. Cleveland Municipal School District Discussion: This case arose regarding disclosure of records involving the use of corporal punishment by a substitute teacher. The punished student sought discovery of incident reports, student and employee witnesses, and information regarding subsequent discipline of the substitute teacher. The school district objected to the request on the grounds that the documents were protected under the Family Educational Rights and Privacy Act (FERPA). The court held for the student.

Points of Emphasis: 1. The court held that information sought was contained in teacher records and that Congress did not intend FERPA to cover records directly related to teachers and only marginally related to students.

2. The records in question concerned students as victims and witnesses and were directly related to the activities and conduct of teachers.

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3. Even if the records were educational within the meaning of FERPA, the statute does not prevent discovery of relevant records under the Federal Rules of Civil Procedures.

4. FERPA may not be used to protect allegations of abuse by substitute teachers from discovery in private actions designed to combat abuse.

Chapter 8: Teacher Freedoms

CHAPTER 8 - TEACHER FREEDOMS Public school teachers’ relationship with school districts are contractual. They do not relinquish their constitutional rights as a condition of employment within the district.

Therefore, school boards must establish a compelling reason to restrict teachers’ freedoms. Compelling reasons may include disruption to superior–subordinate relationships, breach of confidentiality, or disruption of a material and substantial nature that affects efficient school operations. Within this context, teachers must also demonstrate a regard for the integrity of their profession and the impact of their behavior on students. Integrity for the profession is demonstrated by honesty, trustworthiness, accepting responsibilities associated with teaching, and genuine belief that students can succeed through engaging them in the learning process. The courts attempt to balance the public interest of the school against personal rights of teachers when addressing constitutional conflicts. Constitutional conflicts may include equal protection rights regarding due process, protection from discrimination based on race, sex, national origin, gender identity, and lifestyle choices in employment practices. Other conflicts may involve freedom of expression, association, and religion. Based on these protections, what rights are teachers afforded to speak out on controversial issues in their communities? Under what conditions can they be penalized for doing so? Do they enjoy academic freedom within their classrooms? Do they jeopardize their positions for statements made on Facebook, X, and Instagram? Are they free to associate with whomever they wish outside of their schools? This chapter explores these issues and a myriad of others that impact personal rights of teachers such as political rights, dress and grooming, privacy rights, religious freedoms, and lifestyle choices.

Readers of this chapter should be able to: 

Discuss the two types of due process that apply to teachers.



Explain the freedom of expression rights teachers possess and the limitations that may be placed on their rights under certain conditions.



Describe the judicially recognized academic interest afforded teachers in their classrooms.



Discuss circumstances that may lead to restrictions in the use of social media by teachers.



Identify instances, if any, where school districts may initiate action against teachers for their private conduct.



Summarize the religious freedoms that teachers possess in school settings.

Public school teachers are afforded the same constitutional rights as other citizens. They do not relinquish their rights as a condition of employment. Although teachers have constitutional rights, they must be exercised prudently because of the important role that teachers play in the lives of children. There must always be a regard for the integrity of the teaching profession. The interest of the school district must be weighed against the personal interests of teachers to resolve conflicts involving school districts and their teachers.

Chapter 8: Teacher Freedoms

Topical Outline of this Chapter Freedom of Expression Connick v. Myers Pickering v. Board of Education Retaliation—Speech Burgess v. Independent School District of Noble County Oklahoma Mt. Healthy City School District Board of Education v. Doyle Academic Freedom Fowler v. Board of Education of Lincoln County Kentucky Ban on Introducing Content on Race, Slavery, and Institutional Racism in Classrooms Free Speech Loeffelman v. Board of Education of the Crystal City School District Religious Discrimination Kennedy v. Bremerton School District Freedom of Association Ambach v. Norwick Teacher Use of Facebook and Social Media Membership in Subversive Organizations Elfbrandt v. Russell Right to Hold Office Dress and Grooming East Hartford Education Association v. Board of Education of Town of Hartford Right to Privacy Erb v. Iowa State Board of Public Instruction Freedom of Expression Teacher rights like citizen rights are derived from the Bill of Rights. The first ten amendments to the Constitution comprise the Bill of Rights. These ten amendments provide fundamental freedoms for all U.S. citizens. First Amendment rights have been a focal point of conflicts between teachers and boards of education. Most of these conflicts have been centered on issues involving speech both inside and outside of the classroom.

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Connick v. Myers Discussion: The Supreme Court addressed the application of the First Amendment in employment situations in Connick v. Myers. An employee served as an assistant district attorney for five years. During this time, she performed her responsibilities effectively.

After an involuntary transfer over her objections, she developed and disseminated a questionnaire to elicit views of other staff regarding the organization’s transfer policy, morale, and the need for a grievance committee, the level of confidence in supervision and whether fellow employees felt pressured to work in political campaigns. She was terminated shortly after disseminating the questionnaire based on her refusal to accept the transfer and for insubordination for dissemination the questionnaire.

Myers filed a civil rights suit claiming that she was wrongfully terminated. The court held for the defendant on the basis that Myers did not speak as a private citizen on matters of public concern but only as an employee on matters of personal concerns. The First Amendment cannot be used to offer protection in this situation.

Points of Emphasis: 1. The First Amendment does not offer sufficient protection to challenge the wisdom of a personnel decision by a public agency allegedly in response to an employee’s expression of personal concern.

2. When an employee expresses a matter of public concern, the public employer’s adverse action will generally withstand a First Amendment challenge if there is a showing that the public value of the statement is outweighed by the government’s interest in efficiency.

3. Full First Amendment protection is limited to a public employee’s expression regarding political, social, or other types of speech that reflects community concern.

4. An inner office questionnaire concerning matters related to office transfers, morale, the need for a grievance committee, and confidence in supervision is not a matter of public concern.

5. The issue regarding pressure to work in political campaigns can be construed to be a matter of legitimate interest to the community.

Pickering v. Board of Education Discussion: Marvin Pickering, a teacher, was dismissed for writing and sending a letter to the local newspapers . The letter was critical of the board of education’s spending on athletic facilities in comparison to academic facilities and the board’s way of not informing the public of the ―real‖ reasons why additional taxes were needed for schools.

Pickering was terminated by the board based on its view that his letter was detrimental to the efficient operation of the schools in the district. Some of Marvin’s statements in the letter were true while others were not. Pickering challenged the constitutionality of his dismissal. The court held for Pickering based on the fact that his letter was, in fact, a matter of public concern and is protected by the First Amendment.

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Points of Emphasis: 1. Although some of Pickering’s statements proved to be untrue, absent proof of false statements knowingly or recklessly made, a teacher’s exercise of his or her right to speak on issues of public concern is protected speech.

2. The teacher’s First Amendment right to freedom of expression is balanced against the state interest in efficient schools.

3. Where a teacher’s comments address matters of public concern and do not impair the day-to-day operations of the school or the performance of their duties, dismissal based on such comments violates the First Amendment rights of the teacher.

4. A teacher is entitled to the same constitutional protection as would be the case for any other citizen.

Retaliation—Speech Retaliation, in any form, is illegal and will not be supported by the courts when school officials take action against teachers who lawfully exercise their First Amendment rights. Retaliation most often occurs when teachers criticize certain administrative practices or decisions that have implications for the school community.

Retaliation may include unjustified transfers, demotions, or extra duty assignments among others. The courts tend to scrutinize First Amendment issues involving free speech very closely, especially in cases involving adverse action taken against school personnel who exercise their First Amendment rights to free speech.

Burgess v. Independent School District of Noble County Oklahoma Discussion: A high school teacher was told by a shipping company that pornographic materials found in a dumpster had been ordered by the high school principal. This information was reported to the superintendent by the teacher with a request that an investigation be conducted. The elementary principal eventually came forward and admitted that he had ordered the materials.

The art teacher was terminated by the school board for making false statements but later reinstated him in a less desirable position. The court held for Burgess, the art teacher.

Points of Emphasis: 1. A teacher may not be terminated for making a false but good faith accusation.

2. The teacher’s concern was one that would have been of interest to the community.

3. The teacher acted on the information provided him without malice or prejudice.

4. The board clearly retaliated against the teacher for exercising his First Amendment speech rights.

5. The lesser assignment of the teacher did not allow him to utilize his specialized skills and experiences and limited his interactions with members of the school community.

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6. Acts of retaliation will not be supported by the courts based on the exercise of good faith and free speech.

Mt. Healthy City School District Board of Education v. Doyle Discussion: A nontenured teacher had been involved in several altercations with fellow teachers, employees, and students including an incident in which he made an obscene gesture to female students. He called in to a local radio station the contents of his principal’s memorandum to faculty regarding teacher dress codes.

The radio station aired the contents of the principal’s memo as a news item. Shortly after, the school, on the recommendation of the superintendent, informed Doyle that he would not be rehired. The board cited a lack of tact in handling professional matters, the obscene gestures, and the radio station incident.

Doyle challenged the validity of his employment termination based on the grounds presented by the board. The court held for the school board based on the fact that Doyle was unable to demonstrate that his expression was protected and was the motivating factor in the board’s adverse action.

Points of Emphasis: 1. To prevail in a First Amendment challenge, a school employee must be able to demonstrate that his/hear speech is protected and that it was indeed a substantial factor in the board’s action.

2. To not receive court support, the board of education must fail to show that it would have taken the adverse action in the absence of the employee’s protected conduct.

3. In this case, the board would have taken this same action in the absence of the teacher’s protected conduct.

4. The First Amendment provides protection regarding the teacher’s right to freedom of speech. Since Doyle’s comments created very little disruption in the school, they were considered to be constitutionally protected speech. As such, they were insufficient as a sole basis for terminating his employment.

5. An employer should not be barred from assessing an employee’s entire performance record and reaching a decision regarding their employment status because the employee engaged in protected speech.

Academic Freedom Public school teachers have a judicially recognized academic interest in their classrooms based on the teacher’s right to teach and students’ right to learn. This judicially recognized academic interest is subject to limitations in public school based on age, maturity of students taught, and appropriateness of the materials and students’ ability to handle the subject matter. This point is illustrated in the following case.

Fowler v. Board of Education of Lincoln County, Kentucky

Chapter 8: Teacher Freedoms

Discussion: This case arose when a tenured teacher was discharged for insubordination and conduct unbecoming of a teacher when she showed an R-rated movie to her class on the last day of school. She instructed a student who had seen the movie to edit out the inappropriate parts. Even so, she left the class several times during the viewing.

There was nudity and violent content contained in the movie. The student was not very successful in editing the movie’s content. The court ruled against the teacher and held for the district.

Points of Emphasis: 1. The court recognized that Fowler was entitled to First Amendment protection under certain circumstances and that a motion picture is a form of expression that may be entitled to First Amendment protection.

2. The court, however, ruled that Fowler’s conduct in having the movie shown under the circumstances presented did not constitute expression protected by the First Amendment.

3. Much of what is taught in public schools is influenced by state and local board curriculum policies and guidelines as well as statutory provisions. Therefore, the concept of the classroom as a marketplace of ideas does not apply to public elementary and secondary schools.

4. Teachers in public schools do not have absolute authority to determine the appropriateness of classroom content based on limited freedom afforded in contentbased decisions.

Ban on Introducing Content on Race, Slavery, and Institutional Racism in Classrooms Thirty-five states have currently introduced 137 bills limiting what schools can teach regarding race, American History, sexual orientations, and gender identity. While it is true that public school teachers do not enjoy the level of freedom afforded to college and university faculty, they have, however in the past, been able to introduce American History and issues involving slavery that were related to the subject matter to which they were assigned. With the restrictions placed on teachers, they are struggling on how to teach history that involves slavery. The intent of the legislation banning these topics is to protect students from discomfort or guilt on the basis of political belief. critical race theory has been banned in a number of states. Consequently, teaching and learning are suppressed regarding the role of racism in America’s history. Those who oppose these restrictions argue that teaching these topics may create discomfort among students, but discomfort can create change. Opponents further argue that it is unethical to deprive students of the truth about American History because racism is a part of our history and deeply rooted in the fabric of America.

Points of Emphasis: 1. Teaching about racism in classrooms may be viewed as a means of educating future leaders about America’s problems and struggles.

Chapter 8: Teacher Freedoms

2. It is possible to be patriotic but still be unhappy with parts of America’s history.

3. Teaching controversial topics in school should focus on truth and facts rather than feelings.

4. Some of the bans are so broad and ambiguous until they have created confusion and distress among teachers.

Free Speech The exercise of free speech is guaranteed by the First Amendment to the U.S. Constitution and cannot be violated unless there is a legitimate and defensible reason to do so. Teachers may express their views on issues that are of interest to the public.

While teachers enjoy free speech rights, they are not without restrictions. They may not make damaging statements against their employers or make statements that violate confidentiality and loyalty that affect working relationships. Teachers must be judicious in exercising their free speech rights to ensure that they receive First Amendment protection.

Loeffelman v. Board of Education of the Crystal City School District Discussion: Teachers cannot claim First Amendment protection when they make damaging and inappropriate statements in the classroom. A Missouri appellate court held that the school district did not violate a teacher’s First Amendment rights when she was terminated for making disparaging comments about interracial marriages and biracial children.

Points of Emphasis: 1. Disparaging comments deliberately made in the classroom by teachers regarding race do not carry First Amendment protection.

2. Teachers are expected to refrain from making comments that have racial connotations in the classroom in all circumstances.

3. Academic freedom is not a license by the teacher to make comments on any issue irrespective of the impact of the statements on children.

4. A board of education may legally terminate a teacher for willful violation of school district policy regarding academic freedom.

5. Disparaging racial comments are not a matter of public concern but represent the private speech of a teacher.

Religious Discrimination Kennedy v. Bremerton School District Discussion: Joseph Kennedy, a high school football coach, engaged in prayer with a number of willing students during and after school games. His employer, the Bremerton School District, requested that he discontinue the practice to protect the school from a

Chapter 8: Teacher Freedoms

lawsuit based on violation of the Establishment Clause. Kennedy refused to do so and rallied local and national media and social media to support him. He sued the district for violating his First Amendment rights and his rights under Title VII of the Civil Rights Act of 1964. The district upheld the district’s suspension of Kennedy based on the risk of a constitutional violation. Kennedy appealed to the Ninth Circuit Court which affirmed the district court’s ruling. The U.S. Supreme Court in a 6-3 surprising decision, ruled in support of Kennedy while abandoning the Lemon Test and embracing ―historical practices and understanding.‖ Applying this test, creates no conflict between constitutional commands of the First Amendment in this case.

Points of Emphasis: 1. Kennedy’s message was not attempting to convey a message created by the government.

2. Kennedy’s speech was private based on the U.S. Supreme Court (school) ruling.

3. He did not require others to participate.

4. The U.S. Supreme Court rejected the Lemon Test in determining where church– state boundaries intersected.

5. The courts have viewed historical practices as a source of the Constitution’s meaning in cases regarding questions involving separation of powers.

6. The U.S. Supreme Court ruling erodes the separation of church and state in public schools.

Freedom of Association Freedom of association is a First Amendment right. By virtue of the Fourteenth Amendment, the First Amendment is applicable to the state. Therefore, public schools as agents of the state, must respect the freedom of association rights of teachers within reasonable limits. Here again, the First Amendment right of teachers must be weighed against the state’s interest in maintaining an orderly and efficient school system.

Ambach v. Norwick Discussion: Two unsuccessful applicants for teacher certification sued the State of New York to enjoin the enforcement of a statute that forbade aliens from being granted a teaching certificate. Both teachers were married to U.S. citizens and had been in the country for 10 years with admirable academic records from U.S. colleges but did not apply for U.S. citizenship status. The court held for New York State.

Points of Emphasis: 1. The citizenship requirement of a teaching certificate bears a rational relationship to the state’s interest in public education because the people of New York, acting through their legislature, made a judgment that persons who are citizens are generally better qualified than those who reject an open invitation to become a U.S. citizen.

Chapter 8: Teacher Freedoms

2. The court’s general limitations of statutory exclusion of aliens is less strict in the area of public employment. Therefore, an employer need only show a rational relationship to a legitimate governmental interest rather than a compelling justification.

3. The role of public education and the degree of responsibility and discretion teachers possess in fulfilling that role supports the conclusion that public school teachers come well within the governmental function.

Teacher Use of Facebook and Social Media Social networking if used appropriately may be effective for educational purposes. However, teachers must exercise great caution in their use of Facebook for personal reasons. They should be extremely careful regarding the content of their Facebook, X, Instagram, and other media accounts. Since teachers are viewed as role models by the courts, their actions may have a profound effect on impressionable students. Teachers have been terminated for posting inappropriate messages and images as well as inappropriate relationships with students. Teachers should not become Facebook friends with students. Social relationships interfere with proper teacher–student relationships and create challenges for teachers regarding their ability to maintain effectiveness in the classroom.

The Superior Court of New Jersey’s recent decision in In re O’Brien provides an example of the application of the above analysis. Jennifer O’Brien was a first-grade teacher in Paterson, N.J., teaching a class made up entirely of minority students. She posted on her Facebook page that she was ―a warden for future criminals‖ not a teacher and that her first graders should go to a ―scared straight program.‖ These posts drew the attention of the administration, as well as parents, the public, and the press. O’Brien was suspended with pay and eventually removed from her tenured teaching position by an administrative law judge (A LJ), who rejected O’Brien’s claim that her speech was protected by the First Amendment. The Superior Court upheld O’Brien’s removal.

The ALJ and the court applied the framework laid out above. While the court did not explicitly address the Garcetti issues, it seems obvious that these personal Facebook posts could not be construed as a part of O’Brien’s official employment duties. O’Brien’s comments were classified as ―personal statements, driven by her dissatisfaction with her job and conduct of some of her students‖ rather than speech on a matter of public concern. Even assuming the speech was on a public concern, the ―irreparable damage‖ to O’Brien’s relationship with the school community was a sufficient interest to outweigh O’Brien’s interest in the speech. The First Amendment did not bar O’Brien’s termination.

Points of Emphasis: 1. Teachers enjoy freedom of expression rights; however, these rights are expected to be exercised in a manner that does not negatively impact teacher effectiveness.

2. All rights of teachers are subject to reasonable restrictions based on the role model image that they are expected to maintain.

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3. If a particular type of behavior is unacceptable in the classroom, then it is also unacceptable on social media sites.

4. All electronic contact with students is more appropriate through the district’s computer database, email, or telephone system based on district policy.

5. Inappropriate messages and images sent to students may form the basis for termination as well as criminal convictions.

Membership in Subversive Organizations There has been some controversy in the past regarding membership in subversive organizations. There have been instances where employment was denied and/or teachers were dismissed based on membership in subversive organizations. In order to justify employment action against a teacher, there must be evidence that the teacher actually participated in unlawful activities or intended to achieve unlawful objectives in relationship to a subversive organization. This issue was addressed in the following case.

Elfbrandt v. Russell Discussion: An Arizona act that required an oath by state employees was challenged by a teacher who refused to take it based on good conscience. She indicated that the meaning of the oath was unclear. She was also unable to obtain a hearing in order to have the meaning clarified. Any person taking the oath was subject to prosecution for perjury and would be discharged from office if he/she knowingly and willfully became or remained a member of the Communist Party or any other organization that advocated the overthrow of the government.

The Supreme Court held for the plaintiff in ruling that a loyalty oath statute that carries sanctions without requiring the ―specific intent‖ to further the illegal objectives of the organization is unconstitutional.

Points of Emphasis: 1. The Equal Protection Clause of the Fourteenth Amendment requires that a law that infringes on protected constitutional rights be narrowly drawn to define and punish specific conduct that constitutes a clear and present danger.

2. The interest of the state must be clearly substantiated in order to enforce a rule that has the potential to deprive a person of life, liberty, or property.

3. Those who join an organization without sharing the unlawful purpose of the organization pose no threat to the government.

Right to Hold Office State laws vary regarding the extent to which school personnel may legally hold a public office. For example, in the Minielly v. State case in Oregon, the district court held invalid a state statute that prohibited public employees from running for political office by declaring that the state had no authority to limit the First Amendment rights of

Chapter 8: Teacher Freedoms

teachers. In a contrasting case, Allen v. Board of Education, a Kentucky court held that a requirement calling for mandatory leave for all teachers who pursued a part-time office violated the teacher’s right to equal protection since no such requirement applied to teachers engaged in other types of time-consuming activities.

Points of Emphasis: 1. Teachers may not use their classroom or any school (state) resources for personal gain in seeking a public office.

2. Any political activities related to efforts to acquire a public office must occur away from the school in which the teacher is employed or any other district property. Such activities must also occur either before or after regular school hours.

3. Such activities may not conflict with any reasonable extra duty assignments that a teacher is expected to carry out.

Dress and Grooming There is little disagreement among the courts regarding the school district’s authority to regulate teacher appearance that may disrupt the educational process.

What has not been settled however, is the degree of constitutional protection teachers are entitled to receive in disputes regarding dress and the type of evidence required to invalidate dress code restrictions for teachers. Dress and grooming issues peaked during the late 1960’s and early to mid-1970s.

East Hartford Education Association v. Board of Education of Town of Hartford Discussion: This case arose when Brimley, a public school teacher, was reprimanded for not wearing a necktie while teaching his English class. Brimley received support of the teacher’s union in his suit challenging the reprimand he received based on his refusal to wear a tie. He contended that his refusal to do so made a statement on current affairs which aided him in his teaching by allowing him to have greater rapport with students. In doing so, he was not viewed as a part of the establishment by his students. His final claim was that his refusal to wear a tie is symbolic speech which is protected by the First Amendment.

Brimley appealed to the principal who informed him that he must wear the tie during his English class but could dress more casually during his film-making class. The court held for the school district in stating that the district’s position must prevail.

Points of Emphasis: 1. The court attempted to balance the interest of free expression against the goals of the school board in requiring its teachers to dress somewhat more formally than they might desire.

2. The court concluded that balancing against the teacher’s claim of free expression is the school board’s interest in promoting respect for authority and traditional values

Chapter 8: Teacher Freedoms

as well as discipline in the classroom by requiring teachers to dress in an appropriate and professional manner.

3. Community standards and mores are also factors that courts consider in litigating dress and grooming issues. School districts have traditionally restricted dress that was contrary to established and acceptable community norms.

Right to Privacy Teachers enjoy a measure of privacy in their personal lives which should be respected to the degree that they do not violate the integrity of the community or render the teacher ineffective in performing professional duties. Teachers must be reminded of the professional nature of their position and the impact that their behavior has on children who often view teachers as role models.

Erb v. Iowa State Board of Public Instruction Discussion: A leading case involving private, adulterous activity arose in Iowa involving Erb, a native Iowan and a high school fine arts teacher. Erb was married with two children as was Margaret Johnson, a home economics teacher. Robert Johnson, the husband of Margaret, later caught Erb and Margaret in Margaret’s car in a compromising position after he had hidden in the trunk of Margaret’s car and heard the sexual encounter between them on an earlier occasion. Johnson’s goal was to have Erb removed from the school based on an adulterous relationship with his wife whom he later divorced.

Erb and Margaret terminated their affair after which Erb offered his resignation. The school board voted unanimously not to accept the resignation. The board’s president testified that Erb’s teaching was highly rated by his principal and superintendent. He had been forgiven by his wife and the student body. He had also maintained the respect of the community. Witnesses before the state board on Erb’s behalf, included Erb’s principal, minister, parents, and a substitute teacher. The state board voted 5-4 to revoke Erb’s certificate. The board’s decision was challenged. The trial court held that Erb’s admitted adultery formed a sufficient basis for revoking his certificate. Erb appealed the trial court’s decision. The state supreme court held for Erb. Points of Emphasis: 1. In ruling for Erb, the court stated that the private conduct of a man who is also a teacher is a proper concern of those who employ him only to the extent it mars him as a teacher. When his professional achievement is unaffected, and when the school community is placed in no jeopardy, his private acts are his own business and may not be the basis of discipline.

2. The court summarized that incidents of extramarital heterosexual conduct measured against a background of years of satisfactory teaching would not constitute immoral conduct sufficient to justify revocation of a life diploma without a showing of an adverse effect on fitness to teach.

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3. The Erb ruling is not viewed as a license to engage in extramarital heterosexual activity. The local school board may dismiss teachers for such conduct depending on circumstances surrounding the situation or essentially for any other purpose where the teacher’s behavior creates embarrassment to the board or the school district.

Chapter 9: Discrimination in Employment

CHAPTER 9 - DISCRIMINATION IN EMPLOYMENT Teachers are protected from discrimination by the U.S. Constitution, state statutes, and federal laws namely due process and the Fourteenth Amendment, Title VII , Title IX , Section 504 of the Rehabilitation Act and Americans with Disabilities Act (ADA). They are protected against employment discrimination based on race, color, religion, sex including pregnancy, gender identity and sexual orientation, national origin, disability, or genetic information. Teachers are also protected from harassment by supervisors, coworkers, or others in the workplace as well as workplace change such as job assignments and promotions based on religious beliefs or disability. Lastly, they are protected from improper questions regarding disclosure of genetic or medical information.1 In light of these levels of protection, teachers continue to experience unfair treatment in the workplace based on at least one of the protected categories covered by state and federal law as evident by the volume of litigation involving discriminatory practices. Teachers are also protected from harassment by supervisors, coworkers, or others based on their religious beliefs, disabilities, as well as all protected categories including race, color, sex, pregnancy, gender identity, sexual orientation, national origin and genetic information. This chapter explores levels of protections related to discrimination in employment.

Readers of this chapter should be able to: 

Discuss the Vagueness Test and the Presumption Test in relationship to due process and how they are applied by the courts in addressing various forms of discrimination.



Explain the three-level balancing test used by the courts to determine due process.



Apply the standards under Title VII that a plaintiff must meet to establish proof of discrimination.



Identify the elements of the Employment Non-Discrimination Act and how they impact teachers in public schools.



Analyze the variance among courts in addressing pregnancy regarding unwed teachers.

The equal protection clause of the Fourteenth Amendment provides protection against group discrimination and unfair treatment. It is often used as a vehicle for individuals who seek relief from various forms of discrimination.

Constitutional, federal, and state statutes prohibit discriminating practices in employment on the basis of sex, race, age, color, and religion. Many significant pieces of legislation were enacted during the 1960s and 1970s with the most significant being Title VII of the Civil Rights Act of 1964 which prohibited employment discrimination based on race, color, religion, sex, and national origin.

Topical Outline of this Chapter

Chapter 9: Discrimination in Employment

Due Process Standards and Employment Discrimination Title VII : Discrimination Sexual Discrimination Northaven Board of Education v. Bell The Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 School Board of Nassau County, Florida v. Arline Gender Discrimination Kostad v. American Dental Association Bostock v. Clayton County Schools and Transgender Teachers Same-Sex Marriage and Discrimination Racial Discrimination Griggs v. Duke Power Company United States of America v. State of South Carolina Transworld Airlines v. Hardin Landmark U.S. Supreme Court Rulings Age Discrimination Morrow v. Duval County Board of Education General Dynamics Land Systems v. Cline Genetic Information Discrimination Family and Medical Leave Act Russell v. North Broward Hospital Pregnancy and Public School Employment Maganuco v. Leyden Community High School District Franklin v. Gwinnett County Public Schools Due Process Standards and Employment Discrimination The Fifth and Fourteenth Amendments to the U.S. Constitution limit the power of federal and state governments to discriminate. These amendments require that an individual not be deprived of life, liberty, or property without due process of law. They also require that individuals receive equal protection under the laws. With respect to employment, equal protection provisions limit the power of state and federal governments to discriminate in their employment practices. They are required to treat

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employees and prospective employees fairly with respect to job applications and employment decisions irrespective of race, color, gender, national origin, or religion.

Points of Emphasis: 1. Many state constitutions afford protection against employment discrimination.

2. The U.S. Constitution does not directly prevent employment discrimination in the private sector.

3. Employment discrimination in the private sector is addressed by a number of federal and state statutes.

4. Section 1981 of the U.S. Code provides additional federal remedies to deter intentional discrimination in the work place.

5. Section 1981 was amended in 1991 to provide essential elements to challenge a disparate impact claim. It also provides for a jury trial that may include compensatory and punitive damages stemming from bona fide cases of discrimination.

Title VII : Discrimination The U.S. Supreme Court developed a three-step procedure for Title VII challenges. Surprisingly, these procedural steps were derived from two noneducational cases—McDonnell Douglas Corporation v. Green and Furnco Construction v. Waters.

Even though these steps involved noneducational cases, these same procedures apply in all cases involving alleged discrimination including those in public schools.

The three-step process is as follows: 1. The plaintiff carries the initial burden of establishing a prima facie case of employment discrimination.

2. The burden shifts to the defendant to refute the prima facie case by demonstrating that a legitimate nondiscriminatory purpose forms the basis for its actions.

3. If the defendant is successful in its contention, then the burden shifts back to the plaintiff to show that the defendant’s actions were a mere pretext for discrimination.

If, of course, the defendant can demonstrate the absence of a discriminatory motive, there is no need for step three.

Sexual Discrimination Discrimination based on sex is also covered under Title IX of the Education Amendments Act of 1972 which prohibits sexual discrimination by public and private institutions receiving federal funds.

Northaven Board of Education v. Bell Discussion: Following the enactment of Title IX , the then Department of Health, Education, and Welfare promulgated regulations addressing employment practices.

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Two local boards of education argued that Title IX was not meant to affect the employment practices of school districts. The Supreme Court held that Title IX regulations prohibiting sex discrimination must be program specific. As such, they only apply to programs that receive federal funds.

Points of Emphasis: 1. The court reasoned that since Title IX neither expressly nor by implications excludes employees from its reach, it should be interpreted as covering employees as well.

2. The court found support for its conclusion in the legislative history and the postenactment history of Title IX .

3. The program based specific conclusion reached by the court was based on the language and legislative history of Title IX .

4. A highly debated issue regarding the interpretation of Title IX centered on the precise definition of educational programs and activities with respect to sanctions since documented violations may result in a loss of federal funds.

5. At issue was whether an entire educational institution is subject to a loss of funds or only specific programs. This issue was initially addressed in the Grove City College v. Bell case where the court supported the college’s view that Title IX only applied to specific programs that received federal assistance and not the entire institution.

6. The Grove City decision was considered landmark during the 1980s; however, the Civil Rights Restoration Act of 1988 reversed this decision. The Act now affects the entire institution or school district even if only certain programs or activities receive state or federal financial assistance.

Bostock v. Clayton County Discussion: Gerald Bostock was employed in Clayton County, Georgia for ten years. He was terminated after school officials learned that he joined a gay softball league. He was dismissed for ―conduct unbecoming of employees.‖ Bostock sued alleging that Title VII protected employees on the basis of sexual orientation. Clayton County officials did not deny the fact that sexual orientation played a role in his dismissal and instead argued that Title VII does not prohibit such discrimination. The Eleventh Circuit Court of Appeals held that Title VII did not protect L GBTQ workers. In overturning the Eleventh Circuit ruling, the U.S. Supreme Court held in a 6-3 decision that Title VII does indeed protect gay and transgender workers from workplace discrimination.

Points of Emphasis: 1. Title VII protects individuals against discrimination.

2. Any employee who is terminated because of their sex, even if there are other reasons, has still been fired in violation of Title VII .

3. It is clearly established that Title VII protects LGBTQ employees from discrimination.

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4. Employers can argue that sex is not the driving factor in discriminating against LGBT Q employees; however, it does not need to be under Title VII . The employee only needs to show that they would not have been fired but for their sex.

Schools and Transgender Teachers Transgender teachers are victims of discrimination, harassment, and bigotry. This may impede their ability to perform essential duties in schools to which they have been assigned. It is not necessary that school leaders embrace transgender values but it is important that they ensure that transgender teachers receive fair treatment regarding all aspects of their work. Transgender teachers need allies or friends to assist them in feeling safe, comfortable, and supported in schools.

Points of Emphasis: 1. Discrimination based on sex is covered under Title VII and Title IX .

2. The Employment Non-Discrimination Act of 2013 effectively prohibits discrimination on the basis of sexual orientation or gender identity.

3. Transgender teachers should be treated as any other employee in their schools.

4. Transgender teachers may exercise freedom of choice in the context of sexual transformation.

5. Parents, teachers, staff members, and students should be educated on what it means to be transgender and how they should be supported.

6. School leaders should be reminded that it is illegal to discriminate against an individual on the basis of gender.

Same-Sex Marriage and Discrimination Same-sex marriage remains an unsettled issue that creates an emotional response for those who support it and also for those who oppose it. Some advocates of same-sex marriage, in their efforts to support gay couples, support the concept of a civil union which is a legally recognized arrangement similar to marriage designed to recognize same-sex couples. Civil unions grant most of the rights of marriage. There is a view that those who do not support same-sex marriage see civil partnership as a means to deny access to marriage.

The U.S. Supreme Court in a landmark ruling struck down the ban on same-sex marriage in all fifty states in the U.S. with its Obergefell v. Hodges ruling. Additionally, the Respect for Marriage Act grants protection for same-sex marriages but does not legalize them in all fifty states. The law ensures that the federal government recognizes marriage regardless of race, ethnicity, or sex and requires all states to recognize all marriages conducted legally in other states. The Respect for Marriage Act does not legalize same-sex marriage in all fifty states.

Points of Emphasis:

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1. State bans on same-sex marriages violate the Equal Protection and Due Process Clause of the Fourteenth Amendment.

2. States must recognize a same-sex marriage between two people that was performed in another state.

3. The Civil Rights Act of 1964 does not provide employees protection from discrimination firing on the basis of same-sex marriages.

4. LGBTQ educators continue to experience dismissal based on sexual orientation most often after sharing their relationship with others.

The Rehabilitation Act of 1973 and The Americans With Disabilities Act of 1990 The Americans with Disabilities Act (ADA) in conjunction with the IDEA protects individuals with disabilities against discrimination and assures equal access and opportunity. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against any otherwise qualified person who has a disability with respect to employment, training, compensation, promotion, fringe benefit, and terms and conditions of employment. Under the Act, no otherwise qualified individual with a handicap. . .shall solely by reason of their handicap be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal funds.

ADA is similar to Section 504 and protects not only students with disabilities but any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairments, or is regarded by others as having such an impairment.

Both ADA and the Rehabilitation Act affect public schools by prohibiting disability-based discrimination.

School Board of Nassau County, Florida v. Arline Discussion: A teacher sustained three relapses of tuberculosis within a two-year period after having been in remission for 20 years. She was suspended with pay for the remainder of the year and subsequently terminated after a hearing at the end of the year based on her recurring tuberculosis. She brought suit charging a violation of Section 504 of the Rehabilitation Act. The court held that a person who contracts a contagious disease such as tuberculosis may be a handicapped individual under the Rehabilitation Act. Whether the person is otherwise qualified is dependent on the nature of the disease, the severity, the risk of transmitting the disease, and whether in light of these medical findings, the employer could make reasonable accommodations.

Points of Emphasis: 1. The court relied on the broad definition of ―handicapped‖ and also included a record of physical or mental impairment that substantially limits one or more major life activities.

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2. The teacher’s hospital records were sufficient to demonstrate a record of impairment.

3. The court did not accept an exemption for a contagious disease as being inconsistent with the requirements under Section 504.

4. An individual who has a contagious disease and is suffering from the effects of the disease is a disabled person under the Rehabilitation Act of 1973, Section 504.

Gender Discrimination The conclusion reached in Arline is similar to one reached in Chalk v. U.S. District Court, Central District of California involving an individual with Aids. An important ruling was reached by the U.S. Supreme Court in a noneducational case when it held that an employer’s conduct need not be independently egregious to satisfy the requirements for punitive damages in an employment discrimination case.

Points of Emphasis: 1. The term handicap carries a broad definition as interpreted under Section 504. As long as the person with the handicap meets the definition enumerated in the Act, he or she is covered under the Act and is entitled to reasonable accommodations.

2. Failure to provide reasonable accommodations violates the spirit of the Act as well as the constitutional rights of individuals with disabilities.

3. Although individuals with a contagious disease are covered under Section 504, the courts will allow school districts to balance the rights of employees with contagious diseases against the risk that their presence might create health hazards for others who must come in contact with them.

4. The ultimate test rests squarely on expert medical advice rather than unfounded fear or apprehension of the disease.

Kostad v. American Dental Association Discussion: Kostad filed suit against the American Dental Association contending that the decision to promote a male employee over her was a proscribed act of gender discrimination. The plaintiff provided evidence to demonstrate that the entire selection process was a sham; that the stated reasons for selecting a male were a pretext, and that he had been chosen before the formal process began. Her request for a jury instruction or punitive damages was denied by the district court. The court of appeals affirmed the district court’s decision in stating that egregious conduct must be shown by the defendant before punitive charges can be sustained. The U.S. Supreme Court reversed and remanded by holding that an employer’s conduct need not be independently egregious to satisfy requirements for a punitive damages award.

Points of Emphasis: 1. An employer’s conduct need not be independently egregious to satisfy requirements for punitive damages in employment discrimination cases.

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2. Punitive damages are only available in cases where there is demonstrated evidence that an employer has engaged in intentional discrimination.

3. Intentional discrimination must also be accompanied by malice and/or reckless indifference to an employee’s federally protected rights.

4. The Civil Rights Act of 1991 provides for punitive damages in cases involving intentional discrimination.

Racial Discrimination The courts used various standards to address racial discrimination. The equal protection clause of the Fourteenth Amendment was relied on to eradicate patterns of racial discrimination in public schools. The equal protection standards prohibited discrimination that can be linked with a racially motivated objective. Unlike Title VII , no remedial action is attached to the equal protection clause unless there was clear evidence of the existence of official and deliberate laws or policies to promote segregation.

Griggs v. Duke Power Company Discussion: This case is considered one of the most compelling cases involving racial discrimination. Prior to the passage of the Civil Rights Act of 1964, Duke Power Company had openly discriminated based on race in hiring and assigning employees in one of its plants. In 1995, the company began requiring employees to possess a high school diploma for initial assignment to any but the lowest paid traditionally Black departments. In order to transfer to the higher paying white departments, the employee had to earn satisfactory scores on professionally prepared general aptitude tests. It was revealed that Whites who met neither of these requirements had been adequately performing jobs in these higher paid departments for years. Black employees challenged the diploma and testing requirements which rendered a disproportionate number of Blacks ineligible for employment and transfer. The U.S. Supreme Court held for the plaintiffs and ruled that diploma or degree requirements and generalized aptitude tests may not be used when they effectively disqualify a disproportionate number of minorities unless these tests are proven to be directly correlated to the skills tested and adequate job performance.

Points of Emphasis: 1. Title VII clearly prohibits employers from utilizing tests and diploma requirements that effectively disqualify a disproportionate number of minorities.

2. In order to justify any tests, there must be clear evidence that such tests demonstrate the ability to adequately perform the duties associated with a given position.

3. Good intent or a lack of discriminatory intent does not relieve the employer of procedures that operate to disqualify a protected group under Title VII .

4. Title VII of the Civil Rights Act of 1964 prohibits employers from using tests and diploma requirements that work to disqualify a disproportionate number of minority

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group members unless such tests are shown to be directly indicative of the ability to perform adequately on the job.

5. Any requirement that does not meet Title VII ’s standard regarding its relationship to job performance is invalid.

United States of America v. State of South Carolina Discussion: The U.S. Supreme Court ruled in a significant decision that the school district’s use of minimal scores on the National Teacher’s Exam (N TE) both for certification purposes and as a determinant of teacher salaries is not a violation of the equal protection clause of the Fourteenth Amendment or Title VII , even though there was some evidence of racial disparity.

Points of Emphasis: 1. Plaintiffs failed to demonstrate that the state intended to create and use a racial classification.

2. Plaintiffs were also unable to produce any other appropriate or reasonable criteria for certification or salaries.

3. In the absence of proof of discriminatory intent, teachers will not succeed in claims of discrimination if the state is able to establish a reasonable relationship between the examination requirements and minimal skills needed to teach.

4. South Carolina’s use of the NTE was deemed to meet the business necessity test although its use resulted in disqualifying a larger proportion of Black teachers than Whites.

5. Establishing academic requirements is a legitimate state interest in this case because it is designed to enhance teacher quality.

6. Prima facie evidence of discrimination rests with plaintiffs. This burden is oftentimes difficult to meet.

The First Amendment prohibits discrimination against any employee based on religious beliefs or ideologies. The First Amendment and Title VII provide protection against religious discrimination. Religion as defined by Title VII includes all aspects of religious observances, practices, and beliefs. Under the Act, employers are expected to make reasonable accommodations to an employee’s religious observances, unless hardship can be demonstrated. The burden of proof rests with the employer to demonstrate. There are, however, limitations regarding the extent to which employers must accommodate religion. One such case was: Transworld Airlines v. Hardin Discussion: In this case, an employee challenged the company’s policy that prevented him from observing Saturdays as a religious holiday. The court held for the company in stating that Title VII did not require the company to set aside special exemptions for the employee such as Saturdays off which produces a hardship for the company.

Chapter 9: Discrimination in Employment

Points of Emphasis: 1. There is an issue of balance involved in religious discrimination cases. For example, a company cannot require an employee to choose between his or her job and religion—this is not reasonable or fair and would violate the intent of the Act. 2. Employees may not be penalized by a placement which would require the employee to ignore a religious tenet or his or her faith to preserve a job.

3. Issues relating to religious discrimination require fairness toward the employee balanced against the needs of the company.

Landmark U.S. Supreme Court Rulings The U.S. Supreme Court addressed the legality of race-based admissions in higher education in December 2002. A landmark decision deemed as one of the most significant decisions in two and a half decades will have far-reaching effects on college and university admissions for the foreseeable future.

Age Discrimination Age discrimination in public schools primarily affects teachers. In past years, many districts forced teachers to retire when they reached an arbitrarily predetermined age. These policies and practices were challenged by teachers under equal protection guarantees, many of which received mixed reviews by the courts. However, all challenges and uncertainties became insignificant with the passage of the Age Discrimination in Employment Act of 1967 (A DEA). As amended in 1978, this Act prohibited forced retirement of employees by protecting individuals above age 40 from discrimination on the basis of age with respect to hiring, dismissal, and other terms and conditions of employment.

Interestingly, after the passage of the Act, a number of cases still made their way into the courts. One such case was: Morrow v. Duval County Board of Education Discussion: This case arose when a tenured public school teacher turned 70 during the school year. He was informed by school officials that he would be employed on a yearto-year basis under the terms of a state statute that provides that no person shall be entitled to continue employment as a public school teacher at the end of the school year following his seventieth birthday. When the district failed to employ him the following year, he filed a suit claiming discrimination based on age. The Florida Supreme Court held that no person over age 70 shall be entitled to continued employment with respect to tenure rights but termination could not be made solely on the basis of age.

Points of Emphasis:

Chapter 9: Discrimination in Employment

1. Age cannot be used to terminate employment; however, if there is a documented case of deficiencies in performance, termination can be executed irrespective of age.

2. Age cannot be used to negate teacher effectiveness or any other statutory cause for dismissal.

3. A school district is without authority to base dismissal on age even when supported by state statutes. Federal statutes take precedence over state statutes.

General Dynamics Land Systems v. Cline Discussion: The U.S. Supreme Court ruled in a 6-3 decision that the Age Discrimination in Employment Act (ADEA) does not prohibit an employer from favoring an older employee over a younger employee even if both employees statutorily fall under the protected class aged 40 or over. General Dynamics agreed during a collective negotiations agreement to no longer offer health benefits. However, if employees were 50 or older, they would be grandfathered and receive benefits.

Points of Emphasis: 1. Older employees under ADEA may receive benefits under a collective bargaining agreement over younger employees who also fall under ADEA. 2. Courts have historically given credence to seniority in cases involving loss of jobs as benefits.

3. If Congress had concerns about protecting younger employees against older ones, it would most likely not have omitted workers under 40 from the act’s protection.

Genetic Information Discrimination The Genetic Information Nondiscrimination Act of 2008 prohibits discrimination on the basis of genetic information regarding health insurance and employment. Under Title II of GINA, it is illegal to discriminate against employees or applicants based on genetic information in making employment decisions. This act also restricts employment agencies, labor organizations, joint labor-management training and apprenticeship programs from requesting, requiring, or purchasing genetic information. The act strictly limits the disclosure of genetic information.

Genetic information includes information regarding an individual’s genetic tests and genetic tests of their family members as well as information regarding the manifestation of a disease or disorder in an individual’s family member such as a medical history.

Points of Emphasis: 1. The Genetic Information Act forbids discrimination on the basis of genetic information regarding hiring, firing, compensation, job assignment, promotions, layoffs, training, fringe benefits and any other term or condition of employment.

Chapter 9: Discrimination in Employment

2. Genetic information is not relevant to an individual’s current ability to work and is not needed to render an employment decision.

3. It is illegal to terminate, demote, harass, or otherwise retaliate against an applicant or employee for filing a charge of discrimination or participating in a discrimination proceeding such as an investigation or lawsuit.

4. Employees and applicants for employment are covered under Title II .

5. EEOC lawsuits are available to individuals who are victims of genetic information discrimination.

Family and Medical Leave Act (F ML A) The Family and Medical Leave Act, enacted in 1993, is designed to provide unpaid leave during any 12 month period for the following purposes: 

Birth and care of a son or daughter.



Placement of a son or daughter with the employee for adoption or foster care.



The care of spouse, son, daughter of parent of the employee who has a serious health condition.



A serious heath condition of the employee that prevents the employee from performing the essential functions of their job.

Upon return from FMLA, an employee may not be demoted or transferred to another position unless the transferred position is equivalent with respect to pay, status, benefits, and other terms and conditions of employment. Under no circumstances can an employee be penalized for family and medical leave.

Russell v. North Broward Hospital Discussion: A significant case involving FML A arose in Florida. The U.S. Eleventh Circuit of Appeals held that to qualify as a ―serious health condition‖ that triggers the Family and Medical Leave Act (FMLA), an employee’s incapacity must entail a continuous period of more than 72 hours. FMLA provides an eligible employee twelve weeks of leave for a ―serious health condition‖ that renders the employee unable to perform assigned tasks. The court rejected an employee’s argument that her incapacity and absence from work during seven consecutive partial days met FMLA’s requirement that her incapacity be counted for more than three calendar days. The court held that the U.S. Department of Labor’s definition of the term ―serious health condition‖ involving continuous treatment to be reasonable and consistent with the intent of FMLA. Pregnancy and Public School Employment Teachers in public schools are protected by the Pregnancy Discrimination Act of 1978 (P.L. 95-555). This law is an amendment to Title VII which extends protection to pregnant employees against any forms of discrimination based on pregnancy. The courts have been fairly consistent in issues related to pregnancy. Prior to the enactment

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of this law, it was not uncommon for districts to enforce policy cutoff dates in which females were required to leave their positions due to their pregnancy status.

An interesting case arose in 1991 regarding the interpretation and intent of the Pregnancy Act regarding the use of sick leave.

Maganuco v. Leyden Community High School District Discussion: In 1981, a teacher employed by the district became pregnant. She requested by letter to the superintendent that she be allowed to use sick leave she had accumulated during her employment for the period of disability relating to her pregnancy. She further informed the superintendent that following this period of disability, she would begin a maternity leave that would extend over the remainder of the 1981–82 school year.

The superintendent informed the teacher that the collective negotiation agreement between the district and the teachers’ union barred teachers from taking maternity leave immediately following a period of disability for which sick leave was used. The teacher brought action against the superintendent alleging that the leave policy had the impact of preventing female teachers from using their accumulated sick leave to cover pregnancy-related disabilities and consequently violated Title VI as amended by the Pregnancy Discrimination Act. She further alleged that the policy had the statistical effect of forcing females to accumulate more sick days than males which at retirement, were compensated at a lower rate than the teacher’s per diem pay. The district court held that the policy had no disparate impact on women based on pregnancy. This decision was appealed to the Seventh Circuit Court. The circuit court held that the scope of the Pregnancy Discrimination Act was limited to policies that have an impact on or treat medical conditions relating to pregnancy and childbirth less favorably than other disabilities. The court found that the statistical evidence could not stand alone to establish that the district’s policy had a requisite impact on females.

Points of Emphasis: 1. So long as school districts meet the spirit of the Pregnancy Act, there is no cause for action against them.

2. Pregnancy must be treated as any other temporary illness.

3. School districts may not use any standards or criteria regarding the use of leave that shows a disparate impact on female employees.

Franklin v. Gwinnett County Public Schools Discussion: This is a significant case involving public schools and the type of risk school districts and employees face under federal statute and common law. This case involved charges of sexual harassment by a student who alleged that she had been sexually harassed and abused by a teacher. The court’s ruling indicating that monetary damages

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may be pursued by a plaintiff is significant in that an incentive is provided that may stimulate alleged victims to pursue the cases more vigorously.

Points of Emphasis: 1. Damages for proven cases of sexual harassment may be assessed against a school district and its supervisors as well as the accused teacher.

2. Damages may be available to all students under Title IX for virtually all forms of sexual misconduct by teachers and administrators.

3. Title IX does not require the exhaustive administrative remedies found in Title VII such as caps on the amount of damages as well as a limited time frame in which to file charges.

4. Courts are defining the legal limits of acceptable sex-related behavior in the workplace including public schools.

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

CHAPTER 10 - RECRUITMENT, TENURE, DISMISSAL, AND DUE PROCESS Teacher employment is governed by state statutes and school district policy. Each state establishes its qualifications for teacher certification as well as qualifications for school personnel. Ideally, school districts should attempt to recruit, hire, and retain highly qualified teachers and professional personnel. Every effort should be made to recruit a diverse, inclusive, and competent workforce.

School officials should focus efforts on maintaining continuity and stability in staffing to ensure that only competent teachers and professional personnel serve students. A supportive school environment where teachers and professional personnel are valued, supported, and respected contribute to continuity in the teaching and learning process.

Performance appraisal, compensation, mentoring professional and staff development also contribute to workforce continuity. These personnel functions also contribute to development and retention of highly qualified teachers. Mentoring opportunities are essential in allowing teachers to build new skills that are crucial to their roles.

Tenure policies that provide a level of security and prevent school districts from dismissing teachers without cause also contribute to continuity and stability in the workforce, a critical element for effective instruction and student achievement. Tenure policies protect teachers from arbitrary and capricious decisions by school leaders.

Tenured teachers may not be dismissed without the application of due process. They may be dismissed for cause such as incompetency, neglect of duty, insubordination, immorality, unprofessional conduct, or other just cause. In such cases, the burden of proof rests with school officials regarding their recommendations to dismiss. In a number of states, tenure protection was not viewed as sufficient in addressing issues regarding compensation, working conditions, and morale. Consequently, collective bargaining emerged which allows teachers an opportunity to gain a meaningful level of involvement in the administration and operation of their school. This chapter covers all areas of recruitment, development, retention, security, and dismissal.

Readers of this chapter should be able to: 

Discuss the interview process and its importance to teacher selection.



Distinguish between vague personnel interviews and specific and focused interviews.



Articulate the importance of employee data retention should school personnel file a legal challenge against the school district.



Describe the legal requirements involving tenured and nontenured teachers.



Discuss legal requirements pertaining to dismissal with respect to due process proceedings.

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

Outline specific grounds for dismissal.



Describe the impact of collective bargaining on teacher empowerment.

School districts should strive to recruit and maintain the best and most diverse pool of qualified teachers based on the district’s capacity to provide adequate compensation. School districts in recruiting and maintaining competent teachers should project a professional image with well-defined processes to support the district’s mission. An important component of the recruitment and selection process is the employment interview. A well-organized and legally defensible interview process contributes significantly to candidates’ overall impression of the district and further protects the district from allegations of unfair treatment. Security is also a factor in building and maintaining a competent staff. Tenure plays an important role in providing continuity in a district’s academic program.

Topical Outline of this Chapter Hiring Discrimination Bessard v. California Community College Tenure Kletzkin v. Board of Education of the Borough of Spotswood Teacher Evaluation Documentation of Teacher Performance Documenting Teacher Misconduct Nonrenewal Flaskamp v. Dearborn Schools Beischel v. Stone Bank School District Dismissal for Cause Johnson v. Francis Howell R-3 Board of Education Criminal Activity Board of Education v. Calderon Sexual Advances Toward Students Doe v. Taylor Independent School District Teacher-on-Student Sexual Harassment Revocation of Teaching Certificate Wax v. Home Financial Exigency (Abolition of Positions)

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

Fair Labor Standards Act Collective Bargaining Jersey Shore Area School District v. Jersey Shore Education Association Janus v. AFSCME Hiring Discrimination Hiring discrimination cases will emerge under the best circumstances. Welldeveloped and focused employment policies and practices will not insulate districts from lawsuits alleging discrimination as can be seen in the following case: Bessard v. California Community Colleges Discussion: Two Jehovah’s witnesses applied for positions with the California community college district. Based on state-mandated preemployment procedures, the district required applicants to sign an oath swearing allegiance to the U.S. and the California Constitutions. The applicants refused to take the oath because it conflicted with their religious beliefs. Consequently, their applications were rejected by the district.

The two plaintiffs filed a suit against the district under the Religious Freedom Restoration Act (RFRA) challenging the validity of the loyalty oath. The court held for the teachers and stated that requiring applicants to take a loyalty oath placed an undue burden on the teachers’ rights to free exercise of religion.

Points of Emphasis: 1. While employee loyalty was a compelling state interest, the evidence failed to establish that a loyalty oath was an effective way to achieve this goal.

2. An alternative oath directed to an applicant’s actions rather than his or her beliefs would be equally effective and less restrictive.

3. The loyalty oath could not be justified under the compelling interest test articulated in the RFRA. 4. In Cole v. Richardson, 405 U.S. 676, 92 S. Ct. 1332 (1972), the court held that the legality of an oath will depend not only on clarity of its wording but also on the content of its disqualification. (This case is not found in this book.)

Tenure There is an ongoing debate regarding the need for tenure in public schools. The traditional view is that tenure provides a measure of security and insulates teachers from arbitrary, capricious, and political actions.

The opposing view suggests that tenure protects ineffective teachers and perpetuates mediocrity in the classroom. Tenure should not preclude dismissal where there is documented evidence of ineffectiveness. School officials have a leading responsibility to ensure that only competent teachers teach in the classrooms.

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

Disputes arise regarding the interpretation of the requirements for attaining tenure. A dispute is illustrated in the following case: Kletzkin v. Board of Education of the Borough of Spotswood Discussion: This case involved a New Jersey learning disabilities teacher who was later classified as a school psychologist where she worked for over two years. A work-related injury forced her to take an involuntary leave of absence. Her employment was terminated by the board six months after her leave was approved. She alleged that she was wrongfully terminated and had effectively accumulated the necessary 30 months to obtain tenure even though she had worked for only 28 months at the time of her injury.

She filed an appeal with the state board of education which agreed that the termination violated her tenure rights.

The New Jersey Superior Court Appellate Division affirmed the decision after which the board appealed to the Supreme Court of New Jersey. The Supreme Court held for the teacher.

Points of Emphasis: 1. Teachers who take approved sick leave remain teachers for the duration of their leave.

2. A teacher cannot be prohibited from completing the probationary period while on leave.

3. The use of an approved leave does not prevent a teacher from attaining tenure.

4. A leave of absence is reasonable and proper based on injury sustained by an employee and should not be used in a punitive manner in violation of the employee’s rights.

Teacher Evaluation The quality of teachers has a profound impact on student learning outcomes. Therefore, it is essential that teachers are equipped with the knowledge, skills, and disposition to offer effective instruction in their classrooms. The role of the teacher has changed from a conveyor of knowledge to a more student-centered approach where students are allowed to create knowledge through the use of technology and the emergence of artificial intelligence. Teacher evaluation systems provide teachers vital information to assist them in improving teaching effectiveness, particularly when they are linked with meaningful professional development programs. Evaluation programs tend to be more effective when they feature a multiyear evaluation cycle.

Points of Emphasis: 1. Teacher evaluation should include teachers and evaluators working as a team to improve teaching and learning.

2. They should focus on multiple measures regarding teacher performance.

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

3. Video observations may be beneficial for teachers and evaluators.

4. Timely feedback is essential in assisting teachers improve their performance.

Documentation of Teacher Performance The primary purpose of teacher evaluation should be to improve performance and promote teachers’ personal growth and development. Ideally, teachers should set performance goals in conjunction with their supervisor. The focus of these goals should center on instructional effectiveness and performance improvement.

An important element regarding teacher performance is proper documentation.

The instructional leader provides timely and constructive feedback from multiple data sources to assist the teacher in their efforts to improve teacher performance and classroom effectiveness. Documentation should be shared and discussed with the teacher. Teacher strengths should be emphasized. Areas of improvement should also be highlighted. The instructional leader should offer necessary assistance and support that will enable the teacher to meet professional goals.

Points of Emphasis: 1. The focus of teacher documentation centers on the connection between teacher performance and improved student achievement.

2. Performance standards form the basis for documenting teachers’ performance and effectiveness.

3. A vivid description of the teacher’s performance is vital in providing recommendations for improvement.

4. Proper support systems are critical in assisting teachers in performance improvement.

5. If documentation is to be used for any purpose other than personal growth, then the teacher must be informed of the same.

Documenting Teacher Misconduct Teacher misconduct may involve many forms of behavior ranging from harm to students to falsifying credentials or cheating on professional examinations. In all cases, teacher misconduct must be properly documented to include the alleged offense, approximate time in which the act occurred, witnesses if any to verify the alleged misconduct. Documentation is critical for assisting the teacher in understanding that certain types of behavior are unacceptable and more importantly, to levy dismissal proceedings against the teacher depending on the severity of the alleged act.

Substantial documentation is pivotal to dismissal proceedings.

In Bethel v. Board of Education Of Capital School District, a Delaware teacher was charged with misconduct and/or immorality, including selling graders to students for cash, sleeping during the day and swearing in front of students at a school football game. The most serious charge was that he asked one of his students for a ride to a

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

dangerous area to purchase drugs. At the time, the teacher’s driving privileges were suspended due to a DUI conviction. A hearing officer found his statements ―incredible.‖ Grade books supported charges that the teacher had raised the final grades of two students for cash. Appeal reached the Supreme Court of Delaware. The court found state law permitted the admission of any evidence pertinent to the written reasons for a teacher’s dismissal. As the board could hear all evidence that could conceivably throw light on a controversy, a due process claim failed. All the incidents considered by the hearing officer were related to the grounds provided in the termination notice. State law permitted the board to consider a teacher’s performance throughout his employment term. Board procedures satisfied due process, and substantial evidence supported the decision.

Points of Emphasis: 1. Documentation of teacher misconduct is pivotal to facilitate the teacher’s understanding of acceptable versus unacceptable behavior.

2. Substantial documentation is needed if dismissal proceedings are contemplated for the teacher.

3. It is the school leader’s responsibility to be well versed in properly documenting teacher misconduct.

4. If teacher misconduct involves abuse or students, immediate action is necessary including parent notification, adherence to district policy in responding to misconduct and due process provisions for the affected teacher.

Nonrenewal A probationary teacher may be nonrenewed at the end of the contract year since their property interest ends when contractual obligations have been met by the teacher and the school board. In this instance, absent of any personal or political action or liberty interest violation by the board, the teacher has no legitimate claim to continued employment. If a nontenured teacher made a claim that nonrenewal was motivated by any of the areas listed above, then the burden of proof rests with the teacher if he/she challenges the board’s action.

Flaskamp v. Dearborn Schools Discussion: This nonrenewal case arose in Michigan when a physical education teacher was denied tenure at the end of four years based on an alleged sexual relationship with a former student and the principal’s statement that he could no longer trust her. She filed a suit under § 1832 based on a denial of tenure.

On the parties’ cross examination from summary judgment, the district court held that (1) the plaintiff had qualified immunity from the right to privacy claim, (2) a constitutional right to intimate association did not extend to teacher–student relationships, and (3) her substantive due process rights were not violated.

Points of Emphasis:

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

1. Substantive due process is met where a board of education is able to demonstrate that it had a valid reason to deny the acquisition of tenure.

2. An alleged sexual relationship with a former student may form the basis for denial of tenure.

3. Principal–teacher professional relationships are important in achieving the teaching/learning goals of the school.

4. A loss of confidence in a teacher based on improper conduct meets the substantive due process standard.

Beischel v. Stone Bank School District Discussion: The plaintiff, Beischel, entered into a two-year contract with the school district to serve as district administrator and principal of the districts only school. After a difficult first year, the school notified Bieschel that it was considering not renewing her contract. Following a hearing, the board voted to not renew the contract. Beischel sued claiming that she was deprived of property and liberty interests in violation of her right to due process. She claimed further that her property right to continued employment was denied because the board that conducted the hearing was biased. The court held for the school district.

Points of Emphasis: 1. Nontenured status does not create an expectation for continued employment beyond each contract year.

2. A property right only extends during a particular contract year.

3. The board of education has the option to renew or not renew a contract at the end of each contract year.

4. There is no liberty interest violation when a press release is issued by the board after the decision was made.

5. Even if the teacher had a legitimate property right in employment, it was not violated when the board rather than an outside decision maker conducted the hearing.

Dismissal for Cause Dismissing a teacher for cause is a serious matter. State statutes prescribe permissible grounds on which dismissal is based. Although these may vary from state to state, the most common grounds are incompetency, insubordination, immorality, neglect of duty, and a justifiable decrease in the number of teaching positions.

Incompetency is perhaps one of the most frequently used grounds for dismissal.

It is a fairly broad term and may cover the following areas: inefficiency, a lack of skill, inadequate knowledge of subject matter, inability or unwillingness to teach the curricula, failure to work effectively with colleagues and parents, poor classroom management, failure to discipline and attitudinal deficiencies. It is not surprising that incompetency is

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

frequently used based on the broad scope of behaviors linked to it. A case involving incompetency is illustrated below.

Johnson v. Francis Howell R-3 Board of Education Discussion: A case involving incompetency arose in Missouri when an elementary school administrator determined that a teacher had numerous communication problems.

After warning her, the administrator created a professional development plan which required the teacher to attend teaching workshops and read materials on communication and instruction. After a number of evaluations, the principal determined that the teacher’s performance was still unsatisfactory. There was also evidence of classroom management problems. After further meetings and warnings, the principal issued a letter to the teacher in compliance with the state tenure act informing her that formal charges would be forthcoming unless improvement was shown within 120 days.

The principal videotaped her classes and followed with discussion meetings. Even though the teacher’s 120-day deadline was extended, the principal recommended dismissal which was approved by the board. The board’s decision was affirmed by the Missouri Court of Appeals.

Points of Emphasis: 1. A tenured teacher can be dismissed when there is clear and documented evidence of ineffectiveness followed by a significant effort to assist the teacher in improving their performance.

2. Tenure is contingent upon effectiveness in executing professional duties by teachers.

3. Proper evaluations, documentation, administrative assistance, and sufficient time to demonstrate improvements are prerequisites for sustaining charges of incompetency.

4. State statutory provisions must be met to succeed in removing ineffective teachers from the classroom. Violation of state statute will likely result in the inability to remove the teacher.

Criminal Activity Criminal charges against public school teachers will generally result in dismissal based on general unfitness, immorality, and/or unprofessional conduct. Depending on the nature, severity, and the specifics of the criminal act, revocation of the teaching certificate may also occur.

It is generally known that dismissal for unfitness may not necessarily involve a criminal conviction. The school district may address the teacher’s behavior from the standpoint of fitness to teach, irrespective of whether a criminal conviction is sustained simply because the standard of proof is higher to sustain a conviction than it is to dismiss a teacher. A leading case illustrates this point.

Board of Education v. Calderon

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

Discussion: A teacher was dismissed by the school board for immorality and unfitness when he was charged with a criminal act involving oral copulation with another man.

Even though he was acquitted of criminal charges, the school district dismissed him for immorality and unfitness. State statute permitted the board to dismiss for sex offenses.

The court held for the board indicating that it was the board’s purview to determine overall fitness.

Points of Emphasis: 1. It is important to emphasize that when criminal activity does not result in a conviction, school districts may still bring charges against the teacher for schoolrelated purposes.

2. Teachers have a leading responsibility to ensure that their behavior does not render them unfit to teach.

3. A board of education can remove a teacher from their employment position for any reason so long as dismissal is not arbitrary or motivated by malice, personal, or political reasons.

4. Arbitrary and capricious dismissal of a teacher violates substantive due process and will not succeed in a court of law.

Sexual Advances Toward Students Courts have left little doubt that they will deal judiciously with matters involving improper conduct toward students. The courts support the view that teaching is an exemplary professional activity and those who teach should exemplify the highest standards of professionalism, especially toward students. Such a case is illustrated below.

Doe v. Taylor Independent School District Discussion: One of the most flagrant cases regarding improper sexual conduct with a student involved a Texas teacher who sexually abused a 15-year-old student. The teacher cultivated a relationship with the student over a two-year period through overt favoritism and assigning grades the student did not earn. The teacher sent love letters and cards and encouraged the student to develop a social relationship with his daughter, which resulted in the student spending time at the teacher’s home at which time he attempted to convince her to engage in sexual intercourse after kissing and caressing her over a period of time. After continuous efforts, the student finally submitted to his advances believing that the teacher was becoming angry and upset with her.

The superintendent was unable to substantiate the rumors until an incident occurred six months later in which the teacher danced with the student in the presence of his wife at a school-sponsored activity and subsequently took her to a field and engaged in sexual intercourse. When the victim’s parents reported the abuse, the teacher was suspended immediately and later resigned after pleading guilty to criminal activity.

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

Points of Emphasis: 1. Sexual relationships with students constitute a serious offense that will result in dismissal, criminal charges, and revocation of the teaching certificate.

2. Physical contact with a student by a teacher represents one of the most flagrant form of sexual harassment.

3. Students are denied an equal opportunity to receive an education when they are subjected to sexual misconduct by a teacher.

4. A principal who is aware of should have known improper conduct of a teacher toward a student may face dismissal charges as well as liability charges for emotional injury to the student.

Teacher-on-Student Sexual Harassment Sexual harassment represents a form of discrimination and is prohibited by Title IX. The courts have been consistent in ruling against teachers for sexual misconduct involving students. They also have held school officials liable in cases where they were aware of the harassing conduct and failed to take appropriate steps to address the problem. Since students are in the functional custody of school personnel, they have a right to receive protection from harassing conduct by teachers. All students must be provided equal access to an education. Deliberate indifference to harassment of students by teachers is unacceptable and will not receive support by the courts.

Revocation of Teaching Certificate Revocation of the teaching certificate is normally associated with a felony conviction or a series of misdemeanor convictions. The fundamental issue that arises regarding revocation of the teaching certificate involves teacher conduct that suggests unfitness to teach. In Erb v. Iowa State Board of Public Instruction, the Iowa State Supreme Court emphasized that the board’s power to revoke teaching certificates is neither punitive nor intended to permit the exercise of personal judgment by board members. The court indicated that punishment is left to criminal law. However, fitness to teach can be determined by the board since teachers occupy sensitive positions where they exert influence over students; they are expected to set positive examples for their students. A teacher’s out-of-school conduct may affect their classroom fitness.

Wax v. Home Discussion: A teacher’s certificate was revoked for sending several students electronic emails and audio files over the Internet which contained sexually suggestive materials and profanity. The teacher showed no remorse for her actions. The teacher appealed the education commission’s decision to no avail.

Points of Emphasis: 1. A teacher must be exemplary in setting positive examples for children.

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

2. Teachers must always have a high regard for professionalism and the impact of their behavior on students.

3. Many students view teachers as ―role models‖ which places a responsibility on teachers to meet high standards of professional conduct.

4. Revocation of the teaching certificate disallows a teacher to teach in public schools in America.

Financial Exigency (Abolition of Positions) Bona fide financial exigency is a justifiable reason to dismiss personnel including tenured teachers if necessary. Bona fide financial exigency occurs when the district faces reduction in its budget that creates the need to reduce the workforce. This may stem from reduced revenue or a reduction in student enrollment. The courts will generally support districts that demonstrate the need to reduce their teaching force when there is documented evidence that legitimate financial problems exist. The courts tend to view reduction in force policies (R IF) that include seniority as one of the major criteria in reaching termination decisions. The point is illustrated in the case below: Fair Labor Standards Act (F LS A) The FLSA requires that most employees in the United States be paid the minimum wage for hourly work. It further requires overtime pay at time and one-half the regular rate for hours worked beyond a 40-hour work week. Executives, administrative, and professionals are not covered by FLSA as these are typically considered to be salaried employees. School leaders must be cognizant of all components of FLSA in relation to nonexempt employees so as to ensure that they are in full compliance of the statute. Nonexempt employees in public schools normally include clerical personnel, food service personnel, custodial personnel, and campus security.

Points of Emphasis: 1. Employees who are exempt from FLSA must earn a rate not less than $455 per week.

2. Their primary duties must entail the performance of office or nonmanual work directly related to the management or general business operations of the employer.

3. The employee must customarily and regularly direct the work of at least two or more other full-time employees.

4. The employee’s primary duty must be managing the agency or institution or a recognized department or subdivision of the agency.

Collective Bargaining Collective bargaining has grown in popularity and appeal in public education.

Although it generally provokes some degree of controversy, many educators view collective bargaining as a mechanism to achieve a greater role in the management and operation of public schools. While there are numerous conflicts with respect to collective

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

bargaining, one element found in most state statutes in bargaining states is the good faith bargaining. The good faith bargaining requirement implies that districts will negotiate in good faith with the recognized bargaining unit with the sincere intent to reach a reasonable agreement. Good faith provisions affect both parties during the bargaining process.

Numerous challenges have impacted collective bargaining in public schools.

These challenges cover a range of issues such as the right to strike, preferential treatment regarding the exclusive bargaining agency, preferential layoffs, free speech rights, and many others.

Jersey Shore Area School District v. Jersey Shore Education Association Discussion: This case involved the right to strike when public school teachers initiated a strike. The Supreme Court of the State of Pennsylvania held that such strikes presented a threat to the health and safety of the public welfare. The strike was initiated after only four days of instruction. The school district filed for an injunction requesting that teachers return to work after a hearing. The Court of Common Pleas issued an injunction ordering teachers to return to work. The teachers’ association appealed to the Supreme Court of Pennsylvania which held for the school district.

There was a preponderance of evidence which revealed that high school students were placed at a competitive disadvantage with respect to instruction that would assist them in preparing for national tests for college admission. Furthermore, many faced deadlines to file applications for scholarships with no direction provided by counselors. Other students faced competitive disadvantages regarding state-mandated tests to determine whether remediation was needed. Finally, with just four days of instruction, students would be forced into remedial courses they otherwise would not need. Based on these factors and a loss of funds for not meeting the 180 days of schools, the district was supported by the court.

Points of Emphasis: 1. Courts are not reluctant to intervene where a public service is adversely affected by a strike.

2. When students are placed in jeopardy, courts are more likely to rule against teachers in contrast to disputes resulting in untimely strikes.

3. In some states, state aid is reduced to a school district for the particular days in which school is not in session. (See Pontiac School District v. Department of Education, 204 Mich. App 525, 516 N.W. 2d 516 (1994). (This case is not in this book.)

4. Teachers’ unions may be penalized financially when teachers refuse to abide by a court-ordered injunction to end a strike.

Janus v. AFSCME

Chapter 10: Recruitment, Tenure, Dismissal, and Due Process

Discussion: The Janus case is a landmark decision by the U.S. Supreme Court regarding labor law relative to the power of labor unions to collect fees from non-union members. Under the Taft–Hartley Act of 1947, which applies to the private sector, union security agreements can be permitted by state law. The U.S. Supreme Court ruled in a 5-4 vote that such union fees in the public sector violate the First Amendment right to free speech. This riveting decision overturned the 1977 decision in Abood v. Detroit Board of Education that had previously allowed such fees.

Points of Emphasis: 1. The Janus ruling clarified that mandatory union fees are a form of government coercion that violates workers’ rights.

2. Employees cannot be forced to financially support a labor union to hold a government position.

3. The Janus decision restored First Amendment rights to millions of public sector employees.

4. The U.S. Supreme Court ruling could have the effect of motivating unions to better represent workers and their interest to prevent membership decline.

Chapter 11: The Instructional Program and School Attendance

CHAPTER 11 - THE INSTRUCTIONAL PROGRAM AND SCHOOL ATTENDANCE The U.S. Constitution makes no reference to education. Education is principally a state and local responsibility. Courts have provided considerable latitude to the state in matters pertaining to education. State constitutions delegate power to the legislature to provide a free public education for all children who reside within the state.

Consequently, the legislature has plenary power to execute the education functions of the state subject to any restrictions imposed by the state constitution. Plenary power grants the legislature the authority to prescribe curricula, oversee maintenance and operation of schools, select curricular materials, establish professional standards that teacher must meet, and prescribe health and attendance standards for students attending schools within the state.

Courts have recognized that legislatures possess plenary power and have refrained from interfering in educational matters pertaining to the state unless they conflict with the U.S. Constitution or federal law. This chapter explores all relevant issues related to the organization and management of public schools.

Readers of this chapter should be able to: 

Discuss control of public schools.



Describe health requirements impacting students attending public schools.



Discuss compulsory attendance laws and attendance exceptions based on court rulings.



Describe the impact of COVID on public schools.



Define Charter Schools and potential advantages regarding autonomy.



Explain the debate over vouchers with respect to church–state relationships.



Discuss the four basic areas associated with intellectual property and fair use.



Explain the potential impact of artificial intelligence on public schools.

The legal authority for defining the curriculum of public schools resides with the state legislature. This duty is shared between the legislature and the state board of education in a few states based on constitutional provisions in those states. The legislature at its discretion prescribes the basic course of study, testing, and graduation requirements. In most cases, the legislature delegate’s curriculum matters to state boards of education and to local school districts.

Topical Outline of this Chapter Compulsory Attendance Bitting v. Lee Truancy

Chapter 11: The Instructional Program and School Attendance

State ex. rel. Estes v. Egnor Every Student Succeeds Act Student Achievement and COVID-19 School Vouchers Zelman v. Simmons-Harris Epinoza v. Montana Dept. of Revenue Home Schools Clondara v. Runkel Health Requirements Mason v. General Brown Central School District Residence Byrd v. Livingston Independent School District Curriculum Standards Book Bans Board of Education v. Pico Academic Programs Interscholastic Teams Artificial Intelligence and Public Schools Special Interest Groups and Public School Curriculum Counts v. Cedarville School District Grading and Academic Requirements Sandlin v. Johnson Grade Reduction for Absences Grade Reduction for Academic Misconduct Smith v. School City of Hobart et al. Defendants Withholding Diplomas Valentine v. Independent School District of Casey Compulsory Attendance

Chapter 11: The Instructional Program and School Attendance

Every state requires children between certain ages to attend public, private, or home school.

Bitting v. Lee Discussion: In a New York case, the school’s policy required students to attend 90% of all classes in each course to graduate. This policy required schools to drop students from any course in which they had been deliberately absent. A group of students brought suit alleging that denial of credit for a class is tantamount to dropping a student from enrollment which is contrary to state law. The district filed a motion for summary judgment which was granted by the court. Students appealed to the New York State Supreme Court. The court rejected the students’ argument and held that a denial of credit was not equivalent to being dropped from enrollment since it did not prevent them from attending class or attending makeup classes.

Points of Emphasis: 1. Reasonable attendance policies will be supported by the courts where students deliberately fail to attend classes.

2. Academic credits may also be lost when students willfully fail to attend classes.

3. States may, at their discretion, allow attendance exemptions for married students attending public schools.

4. Parents who violate compulsory attendance laws regarding their children may face criminal charges.

5. Students who violate compulsory attendance requirements may be suspended or expelled depending on the severity of their absenteeism.

Truancy Truancy involves intentional and unauthorized absence from compulsory schooling. Truancy involves unexcused absences by students without parental knowledge in many instances. Depending on the number of authorized absences, a student may be denied course credit unless those days are made up through detention or summer school. Some states penalize parents of compulsory-age students who are truant on a consistent basis. Penalties may include fines and/or jail time. School districts employ attendance officers to monitor students who are truant based on policy.

Students may also be prosecuted in some states for violating truancy laws.

State ex. rel. Estes v. Egnor Discussion: A criminal complaint was filed against an 18-year-old student who was chronically absent from school alleging that he violated the state’s compulsory attendance law which resulted in a conviction. On appeal by the student, the West Virginia Court of Appeals held for the student.

Points of Emphasis:

Chapter 11: The Instructional Program and School Attendance

1. State statute mandated attendance for students between the ages of six and sixteen.

2. Since the student was eighteen years of age, he was beyond compulsory attendance requirements.

3. The statute did not provide for sanctions against individual students but rather against their parents, guardians, or custodians.

4. There was no possibility of liability under the statute for nonattending students regardless of age.

Every Student Succeeds Act The Every Student Succeeds Act (ESSA) replaced The No Child Left Behind Act which was viewed by educators as prescriptive and difficult to achieve. The ESSA reauthorized the Elementary and Secondary Education Act. The new law centered on developing effective approaches to narrowing the achievement gap between groups of students. It required that all students be taught to high academic standards that will prepare them for college and careers. The Act also focuses on advancing equity and upholding critical protections for America’s disadvantaged and high-needs students.

States are required to develop and maintain challenging academic standards in reading, mathematics, and science.

Points of Emphasis: 1. The purpose of ESSA is to ensure that public schools provide a quality education for all children.

2. States are provided more latitude in determining how they account for student achievement.

3. Some critics are concerned that a decrease in federal control over education may negatively impact equal educational opportunity.

4. This Act does not address the root cause of inequality in education.

5. There is no provision in the Act to measure adequate yearly progress.

Student Achievement and COVID-19 School districts are attempting to assist students to recover from learning deficits impacted by COVID-19. The learning gap was widened during the pandemic, especially for historically disadvantaged students. Federal funds were allocated to states to assist them in addressing issues related to COVID-19. Student achievement declined by an estimated five months in mathematics alone. There were reports that students experienced depression from social isolation and an absence of in-class learning.

Virtual learning replaced in-class learning which created challenges for students and teachers alike. Poor Internet connectivity posed significant problems as well as teachers who were unprepared to teach virtually. Schools were unable to monitor attendance and instructional time. There were also challenges in providing meals for students in lowincome and urban communities who relied on their school’s nutrition program.

Chapter 11: The Instructional Program and School Attendance

Points of Emphasis: 1. Some high schoolers are more likely to dropout of school especially those from lowincome communities.

2. COVID-19 had a very significant effect on the mental health of students.

3. Recovering months of learning lost must be a priority of school leaders across the nation.

4. COVID-19 created delayed behavioral and socio-emotional development among students.

School Vouchers School vouchers tend to create considerable debate regarding their viability.

Vouchers allow parents to cover their child’s education through the use of city, state, or federal funds. The amount of the voucher is generally comparable to the amount that is allocated to public schools for each child’s education. Those who support vouchers suggest that they weed out poorly-run schools thereby allowing parents to choose good schools for their children. They also cite more parental choices based on the child’s skills. Those who oppose vouchers argue that only parents of good students choose vouchers, leaving problem children in public schools. Additionally, they cite the risk of creating segregated schools as well as widening the gap between the haves and have nots.

Zelman v. Simmons–Harris Discussion: The U.S. Supreme Court held that vouchers issued to parents of students who attended parochial schools did not violate the First Amendment’s separation of church and state.

Points of Emphasis: 1. The program served a secular purpose.

2. Aid was awarded to parents rather than schools.

3. A broad class of students was covered by the voucher program.

4. The program was deemed to be neutral with respect to religion.

5. Parents were provided adequate nonreligious options regarding vouchers.

Espinoza v. Montana Dept. of Revenue Discussion: Kendra Espinoza and other low-income mothers applied for scholarships to keep their children enrolled in a Christian school. The Montana legislature enacted a tax-credit scholarship program to provide modest tax credits to individuals and businesses who donated to private, nonprofit scholarship organizations. Shortly after the program was initiated, the department promulgated a rule prohibiting scholarship recipients from using their scholarships at religious schools citing provisions in state law

Chapter 11: The Instructional Program and School Attendance

that prohibits public funding of religious educational programs. The lower courts supported the state’s position. However, the U.S. Supreme Court reversed and remanded in a 5-4 decision holding that parents who send their children to private schools were discriminated against by the state’s program and a violation of the Free Exercise Clause.

Points of Emphasis: 1. Montana’s law allowed for funding education generally but prohibited funding for religious schools.

2. Montana’s law violated the religious clause involving the free exercise rights of parents.

3. The Free Exercise Clause protects religious observers against unequal treatment.

4. Students are entitled to receive benefits from a public benefit program irrespective of where they attend school.

5. Montana’s law attempted to create greater separation of church and state than the Federal Constitution requires.

Home Schools Virtually every state in the nation makes provisions for home schooling. Minimum standards for home schooling vary among states based on each state’s compulsory attendance laws. Minimum standards for curriculum and instruction, length of instructional time, and the number of days instruction is to be provided are generally prescribed by statute or state board of education policies. Occasionally, conflicts arise between parents and the state regarding rights of parents in home schooling their children. Such a case arose in Michigan.

Clondara v. Runkel Discussion: A group of parents decided to educate their children at home using a homebased education program which they purchased from a private school corporation. They were charged with truancy. They, along with the private corporation, sued the state superintendent of public instruction claiming their constitutional rights had been violated.

They further claimed that they had a constitutional right to educate their children at home and were denied due process. The district court removed the private corporation since it was not considered an association of members, but rather a business, marketing service to customers. The district court held for the state.

Points of Emphasis: 1. The right to educating a child at home is not a fundamental right guaranteed to parents.

2. Parents have a constitutional right to send their children to private schools and choose such schools that offer specialized instruction. Private school education can be regulated by the state so long as regulations are reasonable.

Chapter 11: The Instructional Program and School Attendance

3. The fact that the state required a certified teacher to provide instruction in courses comparable to those offered in public schools is not an unreasonable requirement.

4. Parents were not members of a class of people federal discrimination statutes were enacted to protect but merely a group of people who wished to educate their children at home.

Health Requirements The states, through their police powers, have the responsibility to protect the health, safety, and welfare of children enrolled in public schools. Through their powers, states typically require medical examinations and certain immunizations as a prerequisite for school admissions. The most common challenge faced by school districts as agents of the state are objections to immunization by parents who claim that immunization violate their rights to a free exercise of religion. The courts, for the most part, have supported school districts in their requiring specific immunizations to prevent communicable disease.

Courts have viewed the state’s interest in health, safety, and well being of students to be more compelling than parents’ interest. Consequently, parents have been convicted and fined for failure to have their children vaccinated as a condition for admission to public school. Some states, however, allow for certain exemptions so long as the welfare of other students is not jeopardized. An example of the court’s stance on religious exemptions is illustrated in the case below.

Mason v. General Brown Central School District Discussion: A court refused to grant religious exemptions from school immunization when a New York couple refused to comply with the school district’s enforcement of the state’s health law regarding immunization. The couple was a member of the Universal Life Church which advocates a natural existence. The school district found no conflict between the family’s religious belief and vaccination. The court ruled that the parents’ belief did not exempt their children from immunization. On appeal to the U.S. Court of Appeals, Second Circuit, the couple argued that their beliefs were sincere and that the term ―religious‖ expanded beyond belief in a deity. The court held for the school district with a finding that their strong conviction did not convert their scientific beliefs into religion.

Points of Emphasis: 1. A scientific belief is not sufficient to make the case for a religious exemption.

2. There is no violation of First Amendment rights when an objection to immunization is based on a conviction rather than a belief that is sanctioned by a documented religious organization to which parents belong.

3. Courts balance the religious views of parents against the state’s interest in the health and safety of students in rendering a decision.

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4. Parents do not have a right to be totally free from state laws affecting the upbringing of their children.

Residence Public schools have a leading responsibility to educate children who reside within their boundaries. Residence is the student’s actual dwelling place. A student may also have a domicile which is where the student intends to remain indefinitely. An example of a court’s position that schools must educate school-age children who reside within their districts with the intent to remain is illustrated in the case below.

Byrd v. Livingston Independent School District Discussion: This case arose when the grandmothers of three young children sought an order to permit their grandchildren to attend public schools in their community. The children had resided with their grandmothers for a considerable period of time but not for the primary purpose of attending public school. The grandmothers were not legal guardians of the children. The school district contended that children could not establish residency apart from parents or legal guardians. The court disagreed and issued an order requiring the district to admit the children.

Points of Emphasis: 1. Children living apart from their parents or legal guardians for a considerable period of time must be admitted to school in the district in which the children are located.

2. Denial of a right to a public school education is a violation of the children’s constitutional rights namely equal protection under the law.

3. Physical presence in a particular place for an extended period of time with an intent to remain is tantamount to establishing residence as viewed by the courts.

4. A child is entitled to a public education even though his or her parent or guardian may live elsewhere.

Curriculum Standards Minimal curriculum standards in public schools are established by state statute and policy. Certain courses and minimum achievement standards are determined through state policy. Local districts may establish additional standards so long as they do not contradict state requirements. Courts generally are very reluctant to intervene in matters involving public school curricula based on the view that states retain the authority to establish curriculum standards and require compliance so long as there is no federal constitutional infringement involved. Although curriculum matters are left to educators, this does not negate challenges by parents regarding content-based issues involving textbook and other curricular matters as illustrated in the case below.

Book Bans Board of Education v. Pico

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Discussion: The Island Trees Union Free School District Board of Education acted contrary to the recommendations of a committee of parents and school staff and ordered that certain books be removed from the district’s junior high and high school libraries. The board suggested that such books were anti-American, anti-Christian, antiSemitic, and just ―plain filthy.‖ Francis and Steve Pico brought suit in federal district court challenging the board’s decision. The trial court granted judgment for the school board without a trial concluding that courts should generally defer to the school board’s broad discretion to formulate educational policy. However, the U.S. Supreme Court, for the first time, addressed the removal of books from libraries in public schools. A plurality of justices held that the motivation for a book’s removal must be the central factor in determining constitutionality. A decision to remove books from the school library is unconstitutional if it is motivated by an intent to deny students access to ideas with which school officials disagree.

Points of Emphasis: 1. Student access to diverse ideas is a part of the right to freedom of speech.

2. A school board’s decision to remove books from the library based simply on their content violates the First Amendment’s free speech rights.

3. Students do not shed their First Amendment rights when they enter the school door.

4. Students enjoy many of the same constitutional rights as do adults.

Academic Programs Title IX of the Educational Amendments Act of 1972 prohibits discrimination based on sex in education programs or activities which receive federal funds. This means that schools must operate their programs or activities in a nondiscriminatory manner free of discrimination based on sex, including sexual orientation and gender identity. Title IX applies to aspects of school programs regarding equal access in areas of science, technology, engineering, and mathematics. Significant strides have been made in providing opportunities for both boys and girls in education programs. Female gains in science and engineering have been notable. Expanded access to career and technical education has increased. Gender stereotyping has historically limited opportunities for males in healthcare programs such as nursing, nursing aid, kindergarten teaching, secretaries and administrative assistants. Female students have been segregated into Family and Consumer Sciences and softer classes while males have been enrolled in mathematics, science, and engineering. Title IX compliance eliminates these types of stereotypes and provides equal access to males and females.

Points of Emphasis: 1. Schools cannot require or deny any student an opportunity to enroll in a course or program on the basis of sex.

2. Discriminatory counseling or advising that treats students differently on the basis of sex is illegal and prohibited.

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3. Students should feel free to enroll in any course or program based on their interest rather than their gender.

4. Title IX requires all institutions that receive federal funds to provide equal opportunities to members of both sexes regarding their participation in both curricular and extracurricular programs.

Interscholastic Teams Title IX does not require schools to sponsor an equal number of teams for boys and girls but rather provide the historically underrepresented gender in sports—females with equal opportunity to participate in athletic activities. Historically, underrepresented gender in athletics should be provided athletic benefits such as protective equipment, uniforms and athletic supplies, locker rooms, and allocation for travel, transportation, and per diem benefits. Girls should not be confined to small auditoriums for practice while boys are provided access to a large gymnasium. Boys’ sports teams are not allowed to accept funds from booster clubs or any other external funding source that creates disparities between girls and boys.

Points of Emphasis: 1. Simply stated, Title IX requires fair play with respect to boys’ and girls’ sports teams.

2. There are no sports exclusion under Title IX .

3. Title IX participation in sports increased education and employment opportunities for girls.

4. Title IX sports participation improved the physical health of girls and reduced obesity rates.

Artificial Intelligence and Public Schools Artificial intelligence (AI) has gained popularity in the United States and abroad. It is moving so rapidly that developers are requesting Congress to enact laws to restrict the use of AI and develop measures to protect citizens from abusive use of this technology. In its simplest form, AI programs a machine to perform tasks that would normally be performed by the human brain. Some school districts are embracing AI as a means of equipping students with necessary skills and knowledge to excel in the future.

AI nurtures critical thinking skill abilities by encouraging students to analyze data and solve problems. Despite the advantages of AI, there are also potential risks as jobs will be lost based on automation. The dissemination of fake news, stolen identity, and scammers who can share misinformation and propaganda may prove harmful to individuals and the country. Personal privacy may also be threatened and false use of facial recognition may escalate. AI has enormous potential to enhance teaching and learning so long as it is weighed against the risks that accompanies its use.

Points of Emphasis: 1. Advancing AI technology in schools may be impacted by costs, limited access, and a shortage of trained AI educators.

Chapter 11: The Instructional Program and School Attendance

2. It may also be affected by social challenges regarding a lack of inclusion and diversity.

3. Teachers should be thoroughly trained to effectively teach and use AI technology.

4. Schools must develop a highly structured curriculum to incorporate AI into classroom teaching and learning.

Special Interest Groups and Public School Curriculum Special interest groups have attempted to influence discussions regarding school curricula particularly with respect to school books. Special interest groups tend to be conservative and oftentimes base opposition to certain school books due to political, religious, or philosophical viewpoints. In some cases, these groups raise objections to certain content that is inconsistent with their values. They do so without regard to the overall literary value of the work itself.

Counts v. Cedarville School District Discussion: The Arkansas School Board voted to restrict student access to the Harry Potter Books based on the view that the books promoted disobedience and disrespect for authority. Additionally, the books dealt with witchcraft and the occult. Consequently, students in the district were required to obtain a signed permission slip from their parents or legal guardians prior to borrowing any of the Potter books from school libraries. The district court overturned the Board’s decision and ordered that the books be returned to the unrestricted circulation area.

Points of Emphasis: 1. Students possess First Amendment rights in the school setting.

2. The right to read a book is an aspect of the right to receive information.

3. The school library is an environment especially appropriate for the recognition of First Amendment rights of students.

4. The courts take First Amendment rights very seriously even where there are small infringements on free speech in school libraries.

Grading and Academic Requirements Courts are quite reluctant to interfere in cases involving academic matters. The prevailing view among the courts is that academic matters are best handled by professional educators particularly those involving student evaluations. Courts further recognize that there is a certain degree of subjectivity in evaluating students.

Requirements regarding student progress from one grade to another typically are not reviewable by the courts unless there is substantial evidence of unreasonableness as cited in the case referenced below.

Sandlin v. Johnson

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Discussion: The Fourth Circuit Court of Appeals refused to intervene in the failure of a school district to promote to the third grade students who failed to pass a reading level test.

Points of Emphasis: 1. In this case, the court respected the educational judgment of professional educators, even though the students’ intelligence indicated that they were capable of reading at the third-grade level.

2. Students could not be promoted until they demonstrated mastery of the requisite reading skill.

3. One court observed in Board of Curators of the University of Missouri v. Horowitz that academic matters by their very nature are more subjective and evaluative than typical issues presented in disciplinary decisions and that such academic judgments should be left to professional educators.

4. Courts tend to leave academic matters to educators based on the view that they are better prepared to make informed decisions regarding student evaluations.

Grade Reduction for Absences Courts will generally support reasonable policies regarding grade reduction for excessive absences if they do not conflict with state statute. As illustrated by a case in Michigan, Slocus v. Holton Board of Education where a high school student was absent from school for five days during the first grading period. Since her absences were due to injury, they were excused. Board policy required that any student with more than three excused absences in a grading period make up the missed time at after-school study sessions. Failure to comply would result in a reduction in the student’s letter grade. The student attended only one of the five required sessions.

Consequently, her grade was reduced by a letter grade. The student filed suit claiming that the grading policy was beyond the scope of the board’s authority and that such policy violated her due process rights. The lower court and the state court of appeals held for the district.

Points of Emphasis: 1. The grading policy was not beyond the district’s scope of authority because the attendance policy impliedly authorized by statute and was not arbitrary.

2. Due process protections require a property right.

3. The student’s due process rights were not violated since the student had no vested property interest in any grade higher than those she actually received.

4. Courts will generally support reasonable policies regarding grade reduction based on excessive absences.

5. It is within a district’s purview to develop reasonable attendance policies on a legitimate interest of the state.

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Grade Reduction for Academic Misconduct A number of districts have formulated policies requiring grade reduction for academic misconduct as illustrated in the case below.

Smith v. School City of Hobart et al. Defendants Discussion: Two students participated as guitar players in the high school band program. By policy, the school prohibited band members from departing from the planned musical program during performances. It specifically forbade guitar solos. Both students in defiance of the policy and the teacher’s orders played solos. Their grades were reduced to a ―F‖ in band. The F prevented one student from graduating with honors. Both students filed suit. The district court granted summary judgment.

Points of Emphasis: 1. The disciplinary action in question bore a rationale relative to the school’s interest in maintaining order and providing an education.

2. According to the court, if plaintiffs prevailed, almost every disciplinary action could become a federal case.

3. A school policy that focuses on professional student conduct at school-sponsored performances is a reasonable standard for students to meet.

Withholding Diplomas School officials are delegated the authority to determine when a students has completed the required curriculum entitling him or her to be awarded a diploma. When a student has met the necessary academic requirements, the diploma must be awarded.

Participation in the graduation is a separate issue. A student may be denied participation if there are substantive reasons to do so. There is no problem denying participation if the student receives the diploma he/she has earned. The diplomas cannot be withheld for disciplinary reasons; however, participation in the ceremony may be denied based on circumstances surrounding the denial.

Valentine v. Independent School District of Casey Discussion: This case arose when graduating students refused to wear the caps and gowns required for the ceremony because they smelled even though they had been cleaned. Their diplomas were withheld based on nonparticipation in the graduation ceremony. The court held for the students.

Points of Emphasis: 1. When students have complied with all rules and regulations precedent to graduation, they may not be denied a diploma.

2. Denial of a diploma which students have earned is viewed as an arbitrary act by school officials and the courts.

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3. The issuance of a diploma by the school board to a student who satisfactorily completes the prescribed course of study and who is otherwise qualified is mandatory based on the court’s holding in this case.

4. The diploma is prima facie evidence of educational worth which cannot be denied when students meet the necessary criteria to earn it.

5. A diploma may not be denied based on arbitrary action of a school board.

Educational Malpractice Educational malpractice has emerged as a formidable threat to educators over the past two decades. Parents have brought legal challenges on behalf of their children alleging that teachers were either unable or unwilling to provide competent instruction which resulted in academic injury to their children. Academic injury is based on the view that injured students did not receive the full benefits of a proper education. While numerous suits have been filed through the years, none have been successful to date. .

Hoffman v. Board of Education of City of New York Discussion: In this case, the court ruled on behalf of the student indicating that he had suffered academic injury based on diminished intellectual development and psychological injury stemming from inappropriate placement. The student scored one point below normal on a verbal abilities test that resulted in him being placed in programs for mentally retarded children when the plaintiff only had a speech defect. It was not until the plaintiff applied for social security that it was determined that he had an IQ of 94. The suit was filed upon this discovery. The lower court held for the student based on the facts. However, the New York Court of Appeals reversed the decision for public policy reasons.

Points of Emphasis: 1. The trial court emphasized that had the student been improperly diagnosed or treated by medical or psychological personnel in a municipal hospital, the municipality would be liable for the ensuing injuries.

2. The lower court did not believe that a different rule should apply in this case simply because it was an educational establishment.

3. Negligence is negligence, even if the defendant prefers to semantically call it educational malpractice according to the trial court.

4. Rulings based on public policy reasons suggest that the courts historically have failed to recognize educational malpractice as an appropriate course of action.

5. This historical view based on public policy should not be viewed to suggest that the courts will always follow this line of reasoning. It is more likely than not that a court in the future will rule on facts that gave rise to academic injury rather than base its decision on public policy grounds.

Chapter 12: School Desegregation

CHAPTER 12 - SCHOOL DESEGREGATION Segregation persisted in the United States for decades under the separate-but-equal doctrine with respect to facilities and services. Assuming that physical facilities and other tangible factors are equal, segregation of children based on race is illegal and deprives Black children equal educational opportunities as confirmed by Brown v.

Board of Education in 1954. Inequality of educational opportunity has resulted in poorly trained teachers in minority schools1, low morale, poor relations among teachers and parents and inadequate resources for Black students. Racially segregated schools create unequal learning opportunities and widens the learning gap between Black students and White students. Evidence discerned by the U.S. Supreme Court in this case revealed that separate-but-equal doctrine was inherently unequal and ruled that segregation in public schools was unconstitutional. Although the Brown decision signaled the end of separate-but-equal from a legal perspective, very little progress occurred based on the High Court’s lack of urgency in implementation in light of intense resistance. As a result, Black students continued to be segregated and denied an equal educational opportunity. Finally, during the 60s, the High Court became more aggressive in Brown II to ensure that its ruling would be implemented through federal district courts.

Readers of this chapter will be able to: 

Discuss the historical background related to school segregation.



Trace the legal developments and barriers that transpired from Plessy to Brown.



Identify the milestones that contributed to the desegregated schools.



Compare and contrast de jure segregation and de facto segregation and the Court’s response to each.



Discuss unitary status and its implications to desegregation.



Describe the current status of desegregation in America during the twenty-first century.

Racial segregation sanctioned by law persisted until the mid 50s and early to mid-60’s when the courts took the position that separation of children based on race was unconstitutional and unacceptable. In 1954, the U.S. Supreme Court in the landmark Brown v. Board of Education overturned an earlier Supreme Court ruling in 1896 in Plessy v. Ferguson in which the court held that separate but equal was acceptable when in reality separate facilities for minorities were not equal to those for nonminorities. This all changed in 1954 in Brown.

Topical Outline of this Chapter De Jure Segregation Brown v. Board of Education Brown v. Board of Education (Brown II )

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Swann v. Charlotte Mecklenburg Board of Education The American Challenge from Plessy to Brown Free Transfer and Freedom of Choice Program Greene v. County School Board De Facto Segregation Taylor v. Board of Education of City School District of New Rochelle Busing Washington v. Seattle School District Board of Education of Oklahoma City Public Schools v. Dowell Latino Students and Racial Diversity Lau et. al. v. Nichols Seeking Unitary Status Freeman v. Pitts De Jure Desegregation De Jure segregation is segregation that is sanctioned by law as was the case in Brown I. Because the equal protection clause essentially covers state action, it prohibits state-endorsed discrimination. The Swann case was a leading case in defining the scope of the duty to eliminate de jure segregation.

Brown v. Board of Education Discussion: Four separate cases from Kansas, South Carolina, Virginia, and Delaware were consolidated and decided in Brown. In each case, Black students sought admission to segregated schools in their communities. Three states, South Carolina, Virginia, and Delaware had statutes that called for segregated schools. Kansas permitted but did not require segregated schools. The four states relied on the separatebut-equal decision in Plessy v. Ferguson to defend their position. The U.S. Supreme Court disagreed and held for the students.

Points of Emphasis: 1. Students cannot be discriminated against in their attempts to attend school on the basis of race.

2. The Fourteenth Amendment guarantees equal protection under the law for students attending public schools.

3. Segregation sanctioned by a state deprives minority children equal educational opportunities.

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4. Separate-but-equal schools based on race are inherently unequal and unconstitutional.

Brown v. Board of Education (Brown II ) Discussion: Brown II ’s ruling was fashioned to ensure proper implementation of Brown I . These cases were remanded to federal district courts based on their proximity to local school districts. This ruling mandated that school authorities be delegated the authority to implement its ruling in good faith and with all deliberate speed.

Points of Emphasis: 1. The ruling in Brown II was handed down as a means of expediting the ruling in Brown I .

2. Brown II remanded desegregation cases to federal district courts because of their close proximity to local school districts.

3. Brown II held that school authorities be delegated the primary responsibility for implementing its ruling in good faith and with deliberate speed.

4. Each district was provided some consideration when reviewing their plans to consider problems relating to administration, transportation, personnel, and other issues that might arise during the transition to a nondiscriminatory school system.

5. District courts were given the task of supervising the transition from dual segregated systems to unitary desegregated school systems.

Swann v. Charlotte Mecklenburg Board of Education Discussion: The district court imposed a plan to eliminate segregated schools after the school board failed to do so. This district was comprised of a 75% White student body and a 29% Black student body that remained segregated in spite of a 1965 desegregation plan it failed to implement.

Points of Emphasis: 1. Swann was a leading case in defining the scope of the duty to eliminate de jure segregation and a dual school system.

2. The objective in Swann was to ensure that school authorities excluded no student of a racial minority from any school directly or indirectly based on race.

3. The use of mathematical ratios was only a beginning point in the process of shaping a remedy for eradicating segregated schools.

4. If an optional majority-to-minority transfer provision is implemented, transferring students must be granted free transportation.

5. Pairing and grouping on noncontiguous school zones is a permissible tool and should be considered in light of the objectives sought by the school district.

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6. An objection to transportation of students may be valid when the time and distance of travel is so great as to either risk the health of children or significantly impinge on the educational process.

The American Challenge from Plessy to Brown The Plessy ruling normalized segregated schools based on the court’s acceptance of separate-but-equal entrenchment. Based on this position by the courts, virtually no progress was made toward desegregating schools. Schools for Blacks were inferior regarding facilities, equipment, funding, and seasoned teachers. The Plessy decision upheld the constitutionality of racial segregation under the ―Separate-but-Equal Doctrine‖ that persisted for the next half-century. By the early 1950s, the National Association for the Advancement of Colored People was working diligently to challenge segregation laws in public schools. The Brown case along with four other cases involving school segregation came before the Supreme Court in 1952. The court combined them into a single case under Brown v. Board of Education of Topeka.

Thurgood Marshall, head of the N AACP legal defense and education fund, served as chief attorney for the plaintiffs. Earl Warren replaced Chief Justice Fred M. Vinson who held the opinion that the Plessy verdict should stand. Warren, through considerable political skill and determination as the Chief Justice, succeeded in engineering a unanimous verdict against school segregation. In the decision, issued on May 17, 1954, Warren wrote ―in the field of public education, the doctrine of separate but equal has no place as segregated schools are inherently unequal.‖ Points of Emphasis: 1. Segregated schools deprived plaintiffs of the equal protection of laws guaranteed by the Fourteenth Amendment.

2. In May 1955, the Supreme Court issued a second opinion known as Brown II in which it remanded future desegregation cases to lower federal courts.

3. School boards were directed to proceed with desegregation ―with all deliberate speed.‖ 4. The Brown decision did not achieve school desegregation on its own.

5. The Civil Rights Movement and the Civil Rights Act of 1964 backed the enforcement by the Justice Department which initiated the desegregation movement.

Free Transfer and Freedom of Choice Program Although some courts had concluded that free transfers and freedom of choice plans were not effective in eradicating segregated schools, many districts embraced these plans. The implementation of free transfers led to students being transferred to racially identifiable schools. Consequently, school officials were unable to avoid courtordered desegregation by merely allowing students to choose a school they wished to attend.

Greene v. County School Board

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Discussion: This case arose in Virginia when the school board devised a plan to allow students to choose between two schools—one predominantly Black and the other predominantly White. This plan was essentially a freedom of choice plan. Those students who did not choose were sent back to the school they previously attended.

During three years of implementation, no Whites chose to attend the Black school and roughly 115 blacks opted to attend the White school.

Approximately 85% of the Black students still attended the all-Black school. The effectiveness of this plan was challenged. The court held that the plan was ineffective in achieving a desegregated school system and mandated that an effective plan be devised.

Points of Emphasis: 1. A freedom of choice plan offers little promise in a district with a long history of segregated schools.

2. The Fourteenth Amendment, as interpreted in the Brown decision, requires that schools be desegregated.

3. Ineffective plans are intolerable and create delay in implementing the Brown decisions.

4. Effective plans had to be devised immediately so that the Fourteenth Amendment requirement of equal protection under the law for Black students could become a reality.

De Facto Segregation De Facto segregation is present when a substantial number of students enrolled in a school represent a racial and ethnic minority. This situation developed through no action taken by the school district. The courts did, however, mandate that corrective action be taken in instances where school officials gerrymandered (altered) school attendance zones to create zones with large concentrations of Black students assigned to historically Black schools within the district. An example of false de facto segregation emerged in New York.

Taylor v. Board of Education of City School District of New Rochelle Discussion: The board of education realigned several school attendance boundaries and permitted transfer only to White students who lived within the boundaries of the schools in question. Approximately 90% of the students attending the school were Black. In ruling against the plan, the Second Circuit Court summarized that the board’s intention was to create a substantially segregated school.

Points of Emphasis:

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1. When school officials fail to devise and implement a plan to eradicate state-imposed segregation, district courts have the discretion to fashion a remedy to eliminate segregated schools.

2. When school officials fail in their obligation to create proper remedies to remove segregated schools, they are in violation of the Fourteenth Amendment’s equal protection clause.

3. District courts may alter attendance zones and may devise zones based on grouping and pairing schools and may require busing to achieve desegregation.

4. District courts may disallow patterns of school construction and abandonment that create a dual system of education.

5. Plans devised that result in substantially segregated schools are illegal.

6. Conduct on the part of the school board that is designed to create and maintain segregated schools clearly violate the Fourteenth Amendment and the Brown holding.

Busing Federal courts were challenged when their rulings called for busing to remedy segregated schools. The courts have historically viewed busing as an effective means of achieving desegregated schools, although it has been opposed by parents and citizens. Those who oppose busing cite the following reasons: a) A threat to the neighborhood school concept b) The length of time consumed in transporting students great distances to attend schools out of their neighborhoods c) The amount of expense involved d) The added expense on the taxpayer In spite of the objections, courts continued to rule that busing be used as a means of achieving desegregated schools. The following case illustrates the court’s stance on busing with respect to achieving desegregated schools: Washington v. Seattle School District Discussion: Seattle adopted a desegregation plan that called for the extensive use of mandatory busing. Two months after the plan was implemented, the voters of Washington voted to adopt an ordinance to terminate mandatory busing. This ordinance prohibited school boards from assigning students to any school other than the one closest to them. Racial balance was not a permissible exception. Seattle and two other school districts filed a suit challenging the legality of the ordinance. The Supreme Court held for the plaintiffs.

Points of Emphasis:

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1. The state ordinance that prevented school boards from requiring attendance at other than neighborhood schools violated the equal protection clause of the Fourteenth Amendment.

2. The fundamental tenet of the Fourteenth Amendment is to prevent unjustified official distinctions based on race.

3. The state initiative was devised specifically for racial purposes and designed to reallocate power from local school boards to the state in a manner that adversely affects minority interests.

Board of Education of Oklahoma City Public Schools v. Dowell Discussion: In 1972, a federal district court issued an injunction ordering the Board of Education to implement the ―finger plan‖ which bused Black students to White schools.

In 1977, the district withdrew its plan declaring that the Board had complied with the plan and reached ―unitary‖ status. The Board passed the Student Reassignment Plan which reduced busing in an effort to minimize travel time for Black students. The plaintiff who originally protested segregation sought to restore court-ordered desegregation claiming that the school system again became segregated. The court held that it is not unconstitutional to end a federal school desegregation order if it had succeeded in eliminating past discrimination and had been followed in good faith.

Points of Emphasis: 1. When school districts act in good faith with the intent to eliminate segregation adhering to court mandates, they will usually be supported by the courts.

2. Housing patterns and parental choices involving Black students do impact the racial composition of student bodies in public schools.

3. Good faith efforts and compliance with court orders regarding segregated schools are essential to receiving court support in eliminating vestiges of segregation.

4. School districts across the nation have experienced little success in achieving desegregated schools.

Latino Students and Racial Diversity Many Latino students face language barriers that often time affect their ability to reach their academic potential. Public schools have an obligation to address language barriers for non-English speaking students. Since Latinos represent one of the fastest growing populations in America, it is incumbent upon public school officials to meet their educational needs. Latino students contribute to a racially diverse educational environment. Consequently, they must receive equal educational opportunities to learn.

Lau et. al. v. Nichols Discussion: In an early case involving non-English speaking students, the U.S. Supreme Court held that San Francisco schools failed to make provisions for nonEnglish speaking students in violation of their equal protection rights under the

Chapter 12: School Desegregation

Fourteenth Amendment as well as Title VI based on an absence of appropriate English instruction.

Points of Emphasis: 1. Equality of treatment was not achieved by simply providing non-English speaking students the same facilities, curriculum, teachers, and textbooks.

2. Requiring students to acquire English skills on their own before they aspire to progress in school constitutes a mockery of public education.

3. Basic English skills are at the core of what is taught in public schools.

4. Students who do not have a mastery of English are effectively denied an equal opportunity to learn.

Seeking Unitary Status School districts across the nation have filed for unitary status. They have essentially made the claim that they have operated in good faith and made a concerted effort to achieve desegregated schools. Based on these efforts, they are requesting that they be relieved of court supervision. The case below illustrates the court’s posture regarding unitary status.

Freeman v. Pitts Discussion: The DeKalb County, Georgia school system was cited for unlawful segregated schools in 1969 and placed under supervision by the court. The district implemented a variety of measures to achieve unitary status, then requested that judicial control be removed. A federal district court held that unitary status had been achieved to the extent practicable regarding student assignments, transportation, physical facilities, and extracurricular activities. However, unitary status had not been achieved regarding faculty assignments and resource allocation. The district court relinquished control in the four areas found to be unitary but retained control of the remaining two areas. On appeal, the U.S. Court of Appeals rejected the incremental approach and held that unitary status in some areas could not lead to relinquished judicial control until all areas under review were unitary. On certiorari, the U.S. Supreme Court reversed the court of appeals decision in holding that the incremental approach was constitutional. The Court ordered no further remedy in areas found to be unitary, thus allowing the district to focus on areas in need of correction. The implication of this case is that the federal district court, which supervises court-ordered desegregation, has the latitude to order incremental withdrawal of its supervision and control.

Points of Emphasis: 1. A good faith incremental approach to achieving unitary status is acceptable by the courts and considered to be constitutional.

2. Achieving unitary status in some areas may lead to relinquished judicial control, even when some other areas have not achieved unitary status.

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3. Once unitary status has been achieved in certain areas such as student assessment, transportation, and facilities, there is no requirement that those areas will continue to require judicial control.

4. The district court examined the school district’s past record of compliance and made a determination as to whether the district was better positioned to demonstrate a good faith effort to a constitutional course of action based on policies that were designed to eliminate segregated schools.

5. Through relinquishing control in areas deemed to be unitary, a school district may effectively focus on the areas in need of further attention.

Chapter 13: Public School Finance

CHAPTER 13 - PUBLIC SCHOOL FINANCE Since public education is a state function, the state constitution empowers state legislatures to provide for a system of free public education including the authority to tax and distribute funds for public schools. Local school districts may also be authorized to provide funds to support their schools. Controversies have emerged regarding school funding with respect to fairness, equity and adequacy. Legal challenges have and continue to be filed in opposition to the methods used by state legislatures to regulate and control funding of school districts within their state. Most challenges surrounding school funding are based on equal protection provisions found in state constitutions.

This chapter addresses legal challenges to school funding focusing on equity and adequacy and how each impacts aid to local districts.

The Equal Protection Provision centers on the impact of state funding and the ability of all students to receive an equal educational opportunity based on disparities in tax revenue distribution among school districts.

Readers of this chapter should be able to: 

Discuss the three basic types of taxes and their impact on school funding.



Explain the significance of the U.S. Supreme Court’s ruling in the landmark Rodriquez case and its impact on school funding.



Discuss the emergence of equity and adequacy and how they impact learning opportunities for children.



Describe the court’s view on equity and adequacy of funding for public schools

This chapter provides a concise discussion of relevant issues regarding school funding. Discussions center around the legislature’s powers to levy tax revenue projections and legal challenges involving funds for public schools. The landmark Rodriquez case that had a profound impact on the system of finance across the nation, addressed public school finance in the context of the equal protection clause of the Fourteenth Amendment and issued a ruling that had a profound impact on systems of finance across the nation. Since there is ongoing litigation regarding systems of finance in virtually every state except Hawaii, students may wish to spend time reviewing cases found in Figure 13.1 that provide citations for current cases involving school funding systems throughout the United States.

Topical Outline of this Chapter Taxation for Public Schools The Impact of Poverty on K-12 Children Tax Rate Edgewood Independent School et. al. v. Kirby

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Legal Challenges to School Funding The Landmark Rodriquez case Serrano v. Priest San Antonio Independent School District v. Rodriquez Post-Rodriquez cases Williams v. California Equity and Adequacy of Funding for Public Schools DeRolph v. State of Ohio Serrano v. Priest San Antonio Independent School District v. Rodriquez Gary B. v. Snyder William Penn School District et. al. v. Pennsylvania Department of Education Cook v. Raimando Taxation for Public Schools The state has inherent power to levy taxes on citizens to support public education. The U.S. Constitution imposes no legal obligation on the federal government to operate a public education system. The right to operate public schools is reserved to the state by virtue of the Tenth Amendment to the Constitution.

State legislatures are generally authorized to provide for a public education system. They may also levy taxes and develop a systematic method of distributing school funds. School districts are agents of the state but do not possess broad powers to levy taxes and are subject only to the powers delegated to them by the legislature.

The Impact of Poverty on K-12 Children Poorly funded schools have an impact on children who live in poverty. These children need more resources to achieve than those children who reside in wealthy communities. Children living in poverty lack the infrastructure needed to be successful in school. Their parents often work long hours or hold multiple jobs and are unavailable to assist their children with school work. Additionally, a substantial number of teachers assigned to high poverty schools are inexperienced and not as effective as more seasoned teachers. The lack of high-quality instruction widens the learning gap in academic achievement and success. Children in poverty often face family crises such as: health issues, divorces, food insecurities, and violence in their communities. These children need to experience a warm, inviting classroom where they feel accepted and where teachers believe they can learn and be successful.

Points of Emphasis: 1. Children living in poverty typically lack school readiness.

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2. Children in poverty are more likely to experience poor educational, social, and health outcomes.

3. Poverty is associated with poor academic achievement including brain development and language development.

4. Living in poverty contributes to emotional and social struggles that may result in high levels of depression among children and their parents.

Tax Rate Tax rates are generally based on estimated revenue needed to meet the financial obligations of a school district. Estimated revenue projections should be realistic, made in good faith, and based on accurate data. School districts may not use taxing authority with the expressed purpose of creating a surplus. These actions would constitute a breach of good faith. Some states have elected to create a state required property tax system which calls for all revenues raised through state taxes to be allocated in support of education.

Points of Emphasis: 1. Tax rate describes the burden ratio or percentage in which a person is taxed.

2. The average tax rate is defined as the ratio of the amount of taxes paid to the tax base.

3. The tax rate is determined by the amount of tax levied from all or a part of a district.

4. In many cases, assessed property value determines tax ratios.

5. Tax rates vary among communities and states.

Edgewood Independent School et. al. v. Kirby Discussion: Texas faced a series of legal challenges regarding funding inequities involving Mexican–American students who were products of poor communities.

Plaintiffs alleged that the state’s method of funding public schools minimally violated four principles of the state constitution which obligated the legislature to provide an efficient and free public school system. They argued further that the current funding system violated the equal protection clause of the Fourteenth Amendment as well as the state constitution.

In a lower court decision, it was held that the state system of funding was unconstitutional and later reversed by the state appellate court. However, the Texas Supreme Court unanimously confirmed the lower court’s ruling and ordered the legislature to develop an equitable system of financing schools within one year. The legislature passed legislation to increase state funding by 500 million dollars. However, plaintiffs argued that the basic structure of the system of finance had not changed.

Points of Emphasis:

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1. The legislature enacted new legislation that combined the state’s existing independent school districts into county education districts to allow them to levy a state-mandated property tax of $1 per $100 of property value per pupil.

2. The Texas Supreme Court held that the new bill was unconstitutional because it violated the state’s constitution which required local voters to approve a school property tax levy.

3. The legislature subsequently devised a more equitable funding system as well as a state-wide system of accountability based on student performance measures required by the Texas Assessment of Academic Skills Test.

4. The Texas Supreme Court held that the new system was constitutional but noted that inequities existed regarding facilities.

5. The legislature passed new legislation that provided additional state revenue for facilities.

6. The system was challenged again, contending that equity was eroding by allowing property-rich districts to escape the recapture provision of the bill. The case is pending.

Equity and Adequacy of Funding for Public Schools Equity typically denotes per pupil expenditures that are distributed equally throughout a school district. Equity is difficult to achieve when school funding is based on property tax which is one of the primary sources of school funding in most states.

Great disparities sometime exist among communities within states based upon the assessed valuation of property. Consequently, in wealthy communities more funds are generated to support schools than in less wealthy districts thereby creating disparities.

States attempt to achieve a level of parity by developing funding formulas that feature state aid minus local effort, which results in poorer districts receiving more state funding and wealthy districts receiving less. Even so, disparities exist because local districts who are able to do so may tax themselves to generate desired funds to support their schools. This situation results in numerous legal challenges alleging unequal educational opportunities based on funding disparities.

In recent years, many states have initiated studies to determine the adequacy of their public school systems. The focus of these studies center around the overall quality of education provided for students. Data generated by adequacy studies have resulted in increased state aid to local districts. In other cases based on challenges to current systems of funding schools, the courts have mandated increases in state appropriations based on adequacy study methodology.

DeRolph v. State of Ohio Discussion: The DeRolph case represents a leading case involving an adequacy study methodology. This class action case represented over five hundred school districts. The plaintiffs contended that the state relied too heavily on local property tax to fund schools. This reliance created disparities in districts located in communities where high

Chapter 13: Public School Finance

property values could more readily meet student needs than districts located in communities with lower tax values. The court held that public education is a fundamental right and that the legislature must provide a more equitable means of financing schools.

Points of Emphasis: 1. School funding in this case violated the ―thorough and efficient‖ clause of the Ohio Constitution.

2. The legislature was directed to enact legislation for a thorough and efficient school system.

3. The legislature was encouraged to undertake a complete systematic overhaul of the current school funding system to avoid ―further nibbling at the edges.‖ 4. No timeline was mandated for legislative action by the court.

Legal Challenges to School Funding School finance programs have been challenged under both federal and state constitutions. Most challenges have focused on issues regarding equity of finance programs with respect to tax burdens. Other challenges involve assertions that parents and their children are denied the benefits of an equal educational opportunity based on disparities in tax revenue and distribution of revenue among school districts within a state. Most challenges involving school funding center around alleged equal protection violations regarding the Fourteenth Amendment as well as equal protection provisions found in state constitutions.

Points of Emphasis: 1. Most states have developed minimum foundation programs or basic education programs based on average daily attendance or average daily membership formulas that distribute funds on a per pupil basis based on the district’s wealth and its ability to pay.

2. Wealth is not distributed equally among school districts.

3. The funding gap between wealthy districts and poor districts create funding disparities that impact per pupil expenditures.

4. Hawaii is the only state in the nation that provides full state funding which means that schools are funded entirely by state taxes.

5. Most litigation regarding public school funding programs are addressed by state courts since public education is a state function.

Serrano v. Priest Discussion: This case represented an early challenge to disparities in funding based on alleged equal protection violations. The California Supreme Court established the view that education was a constitutionally protected fundamental interest and ―wealth‖ was a

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suspect classification. Where a fundamental interest or suspect classification is involved, the court held that the state must demonstrate that it has a compelling interest that justifies the law and that the distinctions drawn by the law are necessary to further its purpose. This position by the court placed the burden of proof on the state to justify its funding program.

Points of Emphasis: 1. The decision reached by the state supreme court in Serrano established a standard to determine whether or not a school finance plan was constitutional.

2. The court established the concept of fiscal neutrality in this case.

3. Based on the court’s ruling, a child’s education should not be based on the wealth of the child’s local school district but rather had to be based on the wealth of the state as a whole.

4. The Serrano case established the view that the state had the responsibility for financing education.

5. A similar conclusion was reached by the state superior court in the Robinson v.

Cahill and Abbott v. Burke cases in New Jersey.

San Antonio Independent School District v. Rodriquez Discussion: Legal challenges were pursued at both the state and federal level challenging funding programs throughout the country using the fiscal neutrality standard embraced in Serrano to address disparity in wealth among school districts.

One such case in Texas reached the U.S. Supreme Court. In a 5-4 decision, the Supreme Court reversed a lower court’s ruling that the Texas finance system was unconstitutional. The court did note the discrepancies created by the funding system where great disparities existed regarding ad valorem taxes from one district to another.

In spite of these discrepancies, the court concluded that the Texas funding system did not work to the disadvantage of any class or group since the disadvantages occurred only between districts regardless of the relative wealth of any family within the district.

Consequently, poor citizens throughout the system were not disadvantaged as a class.

The Texas system of funding schools did not interfere with the right to an education.

While undeniably of high importance, education is not recognized by the court as being among those rights guaranteed by the Constitution. The court held for the state of Texas in concluding that the system of funding schools was not unconstitutional.

Points of Emphasis: 1. The Rodriquez ruling essentially removed future finance cases from reaching the highest court in the land.

2. The U.S. Supreme Court’s decision effectively placed legal challenges regarding school funding programs in the state courts since education is a function of the states.

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3. The compelling aspect of the Rodriquez ruling was that Texas case did not interfere with a ―fundamental‖ right since education, while undeniably of high importance, is not recognized by the High Court as being among those guaranteed by the Constitution.

4. The school funding program, according to the Supreme Court, bore a rational relationship to a legitimate state purpose which is education.

Post-Rodriquez Cases Following the landmark ruling by the U.S. Supreme Court, the strategy used by plaintiffs who challenged funding programs shifted from the constitutionality of funding schemes to issues of educational quality which affected educational outcomes of poor students.

Williams v. California Discussion: Plaintiff challenged California’s funding program by focusing on two basic issues: First, does the state of California provide all students the basic resources needed to learn such as qualified teachers, sufficient instructional materials, and adequate facilities? Secondly, should all students have a fundamental right to an equal education? Williams, the plaintiff, contended that the state failed on both measures by not providing students the necessary educational resources which resulted in unequal results across the state. Williams contended further that the state has an obligation to ensure that classrooms contained qualified teachers, needed textbooks and other educational resources to support student achievement.

Points of Emphasis: 1. There was documented evidence of horrible conditions in many schools in the state as attested to by students.

2. The state was requested to create standards for basic educational materials along with a system of accountability to ensure that qualified teachers were provided for all students.

3. In a rare move, the state, based on a preponderance of evidence, opted not to challenge Williams’ claims but rather decided to enter into a settlement by agreeing with Williams’ contentions and developing plans to address educational materials, qualified teachers, and accountability standards for each school with appropriate monitoring to ensure effective results.

Other cases followed Williams v. California using educational adequacy and quality as well as the lack of necessary educational resources to support a quality education for children. The CFE v. State of New York and Montoy v. State of Kansas are examples of cases using this approach with a degree of success. However in a contrasting case, Lewis v. Spagnolo in Illinois, plaintiffs argued that the state constitution granted them the right to a minimally adequate education.

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The court ruled against the plaintiffs by advancing the view that issues relating to quality are the sole responsibility of the school district and must be answered by the legislature. The court tended to struggle to some degree with the issue of educational quality and its relationship to school funding. There are many variables that affect student achievement that some courts believe should be addressed by educators and legislators rather than by them.

Added to the court’s dilemma are the varying costs of providing adequate educational services to students. It is apparent that funding distribution programs will remain at the center of debate among parents, citizens, and school officials. Since there is no universally accepted quality education model that has distributive applications throughout the nation, this debate will continue for the foreseeable future as parents, citizens, and school officials struggle with the adequacy of funding programs and their relationship to desirable educational outcomes.

Gary B. v. Snyder Discussion: In 2016, seven school children, represented by a California public interest law firm, filed a class action suit against Michigan Governor Rick Snyder and other state education officials in the Eastern District of Michigan under 42 U.S. Code § 1983 Civil Action for deprivation of rights. The plaintiffs argued that the state denied students their constitutional rights to literacy. The plaintiffs were students enrolled at five of Detroit’s lowest-performing schools. The proficiency rates in these five schools hovered near zero in core subject areas. Plaintiff argued that the Governor and state officials violated due process and equal protection clause of the Fourteenth Amendment by denying them the fundamental right to literacy. They argued further that the defendants violated Title VI of the Civil Rights Act of 1964 when they utilized administrative methods that had the effect of subjecting individuals to discrimination based on race, color, or national origin. A settlement was reached with each student receiving individual awards of $40,000 each to advance their education. Another 2.72 million was allocated to support literacy programs in Detroit schools along with a task force to monitor the quality of education and advise the governor of education reform. The governor also agreed to propose legislation that would provide Detroit schools with at least 94.4 million in funding for literacy programs. The Sixth Circuit Court took an unusual step to hear this case without formal prompting from plaintiffs who moved to dismiss the case. The Sixth Circuit granted dismissal.

Points of Emphasis: 1. Each student who attends public schools has a right to receive an education.

2. Students have a constitutional right to literacy.

3. Students, especially those in low-income communities, should not be required to fight for a right to be properly educated as the students in Detroit public schools experienced.

4. The quality of a child’s education should not be a function of the wealth of the community in which he/she resides.

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William Penn School District et. al. v. Pennsylvania Department of Education Discussion: In 2014, six Pennsylvania school districts, the Pennsylvania Association of Rural and Small Schools, the NAACP, Pennsylvania State Conference, and a group of public school parents filed suit against the legislative leaders, state officials, and the governor for failing to meet the General Assembly’s Constitutional obligation to provide a ―thorough and efficient‖ system in public education. Plaintiffs alleged that students who needed the most funding got the least. Low-wealth districts received $4,800 less to spend per pupil that wealthy districts creating one of the widest gaps in the nation. In a historic ruling, the Commonwealth Court declared that Pennsylvania school funding system is unconstitutional.

Points of Emphasis: 1. All children deserve a high-quality public education.

2. Leaders in Harrisburg created a school funding system where students who needed the most received the least based on where they lived.

3. More than 50 percent of Black students and 40 percent of Latino students attended districts in the bottom 20 percent of local wealth.

4. School underfunding determines which children receive what they need and those who do not.

Cook v. Raimando Discussion: In this case, Cook v. Raimondo, plaintiffs argued that the Constitution entitles all students to an education that prepares them to participate effectively in a democracy. The complaint also claimed that students in Rhode Island have been denied additional rights under the due process and privileges and immunities clause of the Fourteenth Amendment. Based on these challenges, the Commissioner of Education established an official Civics Task Force to advise and consult in implementing curricula for robust and equitable civics programming in public schools.

The parties settled this case ending federal litigation based on the actions taken by the Commissioner of Education. Plaintiffs agreed not to proceed with filing a petition for certiorari.

Points of Emphasis: 1. Public schools exist to develop productive and informed citizenry who contribute meaningfully to the prosperity of the nation.

2. Schools are tasked to create literate and informed citizens.

3. Schools should strive to provide universal access to education and equality of educational opportunity for all students.

4. Schools should foster democracy through an educated population.

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5. Advocating for social justice through equal access to education is vital to America’s prosperity.

Equity and Adequacy of Funding for Public Schools Equity typically denotes per pupil expenditures that are distributed equally throughout a school district. Equity is difficult to achieve when school funding is based on property tax which is one of the primary sources of school funding in most states.

Great disparities sometime exist among communities within states based upon the assessed valuation of property. Consequently, in wealthy communities more funds are generated to support schools than in less wealthy districts thereby creating disparities.

States attempt to achieve a level of parity by developing funding formulas that feature state aid minus local effort which results in poorer districts receiving more state funding and wealthy districts receiving less. Even so, disparities exist because local districts who are able to do so may tax themselves to generate desired funds to support their schools. This situation results in numerous legal challenges alleging unequal educational opportunities based on funding disparities.

In recent years, many states have initiated studies to determine the adequacy of their public school systems. The focus of these studies center around the overall quality of education provided for students. Data generated by adequacy studies have resulted in increased state aid to local districts. In other cases based on challenges to current systems of funding schools, the courts have mandated increases in state appropriations based on adequacy study methodology.

DeRolph v. State of Ohio Discussion: The DeRolph case represents a leading case involving an adequacy study methodology. This class action case represented over five hundred school districts. The plaintiffs contended that the state relied too heavily on local property tax to fund schools. This reliance created disparities in districts located in communities where high property values could more readily meet student needs than districts located in communities with lower tax values. The court held that public education is a fundamental right and that the legislature must provide a more equitable means of financing schools.

Points of Emphasis: 1. School funding in this case violated the ―thorough and efficient‖ clause of the Ohio Constitution.

2. The legislature was directed to enact legislation for a thorough and efficient school system.

3. The legislature was encouraged to undertake a complete systematic overhaul of the current school funding system to avoid ―further nibbling at the edges.‖ 4. No timeline was mandated for legislative action by the court.

Key Terms and Definitions

Key Terms and Definitions 1. Academic Freedom—the freedom of teachers, students and academic institutions to pursue knowledge wherever it leads without undue interference.

2. Bullying—repetitive, intentional hurting of a person or a group.

3. Child Find—a federal law that requires all school districts to identify, locate and evaluate all children with disabilities 4. Classroom Harassment—occurs when speech or actions are so severe, pervasive or targeted at a particular student that it impedes the student’s progress in school.

5. Collective Bargaining—a process where employees, through their unions, negotiate with employers to determine terms and conditions of employment.

6. Critical Race Theory—a theory that recognizes that racism is embedded in laws, policies and institutions that support and reproduce racial inequities.

7. Corporal Punishment—physical punishment inflicted on a student for violation of a school rule.

8. Cyberbullying—the use of electronic communication to send intimidating or threatening messages.

9. Defacto Segregation—segregation that is not sanctioned by law but continues to occur.

10. De Jure Segregation—segregation sanctioned by law and is deemed unconstitutional.

11. Do Not Resuscitate—written orders from parents and healthcare providers to withhold life-saving techniques in the event of cardiac or respiratory arrest experienced by a medically fragile child.

12. Educational Malpractice—unprofessional conduct or unreasonable lack of skill or fidelity in the performance of professional duties.

13. Equal Access Act—a federal law that compels federally funded public secondary schools to provide equal access to extracurricular student clubs.

14. Ethics—moral principles that guide a person’s behavior.

15. ESSA —a federal law that promotes equity by providing protections for disadvantaged and high need students.

16. Expulsion—removal of a student from a school based on refusal to follow school rules.

17. Financial Exigency—bona fide documented reduction in the budget.

18. Genetic Information Discrimination—a federal statute that prohibits genetic information discrimination in employment 19. Hazing—humiliating and oftentimes dangerous initiation rituals imposed on students seeking membership in a school organization.

Key Terms and Definitions

20. Intelligent Design—a theory that claims that some features of organisms are so complex that they could not have been produced through normal causes. Advocates believe that this concept occupies equal status with the origin of life.

21. Strict Liability—an injury case in which defendants are held liable regardless of whether they were or were not negligent.

22. Tax Rate—the ratio at which a business or person is taxed.