School law and the public schools a practical guide for educational leaders the pearson educational

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Contents Preface

xix

Chapter 1 Legal Framework Affecting Public Schools 1 Sources of Law 1 Bill of Rights and the Fourteenth Amendment 1 The Federal Constitution 2 Key Amendments 2 State Constitutions Statutes

2

3

Court or Case Law 3 Researching Case Law 3 Locating a Case by Citation 4 Finding a Case by Case Name 4 Locating a Case by Topic 4

State Agencies 4 State Boards of Education 4

Local School Boards

5

School Board Policies 7

The U.S. System of Courts

7

Federal Courts 7 State Courts

9

Courts of General Jurisdiction 9 Courts of Special Jurisdiction 9 Intermediate Appellate Courts 9 Appellate Courts 9 The Trial Process 9

Analysis of an Appellate Court Opinion

11

Case (Citation) 11 Procedure Facts

12

12

Ruling and Justification

12

Disposition 12

The U.S. Supreme Court

12

U.S. Supreme Court Ritual 13 U.S. Supreme Court Decisions 14

Legal Information Retrieval Systems Resources

15

•

Case Study

15

•

14 Endnotes

15

Chapter 2 Religion and the Public Schools 16 School-Sponsored Prayer 18 School-Sponsored Bible Reading

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Silent Prayer and Meditation Prayer at School Events 20

20

Student-Led Prayer at Public School Events Prayer at Athletic Contests

20

21

Voluntary Prayer at Commencement Exercises Landmark Rulings

23

Impact of Ruling 24 Prayer at School Board Meetings Prayer at Legislative Meetings

Aid to Parochial Schools

25

26

27

Religious Symbols 28 Religious Displays 29 Ten Commandments

29

Posting Religious Mottos and Expressions 30 Religious Banners at Football Games 30

Use of School Facilities by Religious Student Groups 31 Legal Precedents

31

Use of School Facilities by Outside Religious Groups 33 Relevant Cases

34

Use of School Facilities by Community Groups 35 Right to Deny Access

35

Religious Activities and Holiday Programs Merry Christmas Bill

36

37

Released Time for Religious Instruction 37 Teaching the Bible in Public Schools 38 Intelligent Design and School Curriculum 39 Theory of Evolution 40 Teaching the Theory of Evolution 40 Distribution of Religious Materials 42 Pledge of Allegiance 43 Landmark Case 43

Religious Freedoms Involving Teachers

45

Religious Rights of Teachers in the School Environment 46 Use of Religious Garb by Teachers 46 Case Studies 48 • Endnotes 51

Chapter 3 Student Rights and Restrictions 53 Freedom of Expression

54

Protests and Demonstrations

57

School-Sponsored Newspapers 58

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Contents

Nonschool-Sponsored Newspapers

60

Censorship 61

Dress and Appearance

62

Health and Safety Issues 63 Controversial Slogans 64

Search and Seizure 65 Reasonable Suspicion 65 Search and Social Media 67 Student Desks

68

Student Lockers Book Bags

68

68

Automobiles

69

Strip Searches 69 Involvement of Law Enforcement Officials 70

Drug and Alcohol Testing 71 Drug Testing

72

Alcohol and Breathalyzer Testing

73

Use of Canines 74

Use of Cell Phones and Electronic Devices

76

U.S. Supreme Court and Cell Phones 78

Mobile Devices in the Classroom Due Process 80 Procedural Due Process

79

80

Due Process of Law 80 Substantive Due Process

81

Vagueness Doctrine and Presumption Standard 81

Corporal Punishment 83 Reasonable Punishment Minimal Due Process

85

86

Excessive Punishment 86

School Suspension 88 Expulsion 89 Student Discipline for Off-Campus Behavior 91 Classroom Harassment 93 The Supreme Court’s Decision 93 A Dissenting Opinion 93 Danger Signals 94

Child Abuse 95 Pregnant Students 96 Married Students 96 Case Studies

97 • Endnotes

99

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Chapter 4 National Security and School Safety Homeland Security 101 USA PATRIOT Act 101 No Child Left Behind and School Safety

101

102

Procedures for Evaluating and Responding to Threats 105 Preparing for National Emergencies

Handling Violence in Schools Hazing

106

Bullying

107

Cyberbullying

106

106

111

Megan Meier Cyberbullying Prevention Act 111

Jeffrey Johnston Stand Up for All Students Act 112 School Violence and Negligence

112

Emerging Legal Issues 112

Freedom of Expression: Prohibitions and School Violence Gangs

114

115

Legal Challenges Related to School Gangs 115 Gang Characteristics and Membership 115 Gang Dress 115 Duty of Care and Gang Violence 117

School Uniform Dress Policies, School Safety, and Students’ Freedom of Expression Rights 118 Early Legal Challenges 118

Zero Tolerance and School Safety Zero Tolerance

119

119

Zero Tolerance and Due Process 119 Recent Zero Tolerance Practices 120

Metal Detectors

121

Case Studies 122 • Endnotes

124

Chapter 5 Individuals with Disabilities 125 Individuals with Disabilities Education Act of 1990 (IDEA) and the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA) 126 Mandatory Requirements

126

National Council on Disability

128

Functional Exclusion of Disabled Children 128 Interpretation and Identification of Children with Disabilities 129 Teacher Qualifications

129

Prereferral Intervention

129

English Language Learners and Special Education Response to Intervention

129

130

Multi-tier System of Support—Response to Intervention 130 Alternative Assessment

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Contents

Individualized Educational Program Requirement 132 Equal Access to Assistive Technology for Students with Disabilities 133 Personal Data Assistants for Disabled Students 134 Program Review and Changes 134

Education-Related Service Requirement Least Restrictive Environment

135

135

Inclusion of Children with Disabilities 137 Length of School Year 138 Residential Placement 138 Private School Placement

139

Isolation and Restraint Laws for Students with Disabilities Disciplining Students with Disabilities 142 Expulsion

140

142

Suspension 144

Individuals with Disabilities Education Act of 1997

145

Amendments Regarding Discipline 145 Discipline and Optional Sanctions 145 Pre/Postsanction IEP Review, Behavior Modification Plan, and Functional assessment 146 Premanifestation Determination Action 146 Manifestation Determination Review 146 Appeal from Disciplinary Action 147 Placement During Appeals 147 Proposed New Placement (Following IAES) 147 Preemptive Strike 147 Reporting Criminal Behavior and Referring to Law Enforcement and Judicial agencies 148 Transmitting Student Information 148 Discipline and Behavior are Now Linked 148

Attention-Deficit/Hyperactivity Disorder and Federal Protection

148

Section 504 Rehabilitation Act of 1973 150 The ADA Amendments Act of 2008 Case Studies

150

153 • Endnotes 154

Chapter 6 School Personnel and School District Liability The School as a Safe Place 156 Liability of School Personnel 157 Individual Liability 157 Vicarious Liability 158 Foreseeability 158 Nuisance 159 Invitees 159 Licensees 160 Trespassers 160

Liability Involving Students and Bus Stops 160

156

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School Liability and Use of Technology by Students 161 Parental Access to School Premises 161

Intentional Torts

162

Assault 162 Battery

162

Assault and Battery Involving Physical Fights 163

Defamation 163 Libel and Slander 163

Defenses Against Defamation Privilege

164

164

Good Faith 164 Truth

164

Mental Distress 165 False Imprisonment 166 Trespassing on Personal Property

Unintentional Torts Standard of Care

166

167 167

Breach of Duty 169 Proximate Cause 169 Injury

170

Defenses for Negligence

170

Contributory Negligence 170 Assumption of Risk 171 Comparative Negligence

172

Immunity 173 Immunity Costs 174

Proper Instruction and Student Safety Duties of Supervision 175 Before School

174

175

During School 176 After School 177 During Field Trips 178 Parental Consent and Written Waivers 179 Field Trips and Buses 179

Liability Involving Civil Rights Statutes 179 Filing Charges Under Section 1983 of the Civil Rights Act of 1871 180 Liability Insurance for Teachers and Administrators 180

Educational Malpractice

180

Professionalism in Education 181 Educational Malpractice Cases 181 Case Studies 184 • Endnotes 186

Contents

Chapter 7 Liability and Student Records 188 Sanctions for Violating Family Privacy Rights 188 Rights of Parents 190 Family Educational Rights and Privacy Act 190 Notice of Proposed Rulemaking 190 Student Records

191

Rights of Noncustodial Parents 192 Rights of Eligible Students 192 Rights of School Personnel 192 Student Complaints and FERPA

194

Digitizing Student Records 194 Confidentiality Issues Involving School Counselors 194

Enforcement of State or Federal Statutes 195 Family Education Rights and Privacy Act (FERPA) Landmark U.S. Supreme Court Rulings 195 U.S. Court of Appeals for the Sixth Circuit Ruling 195

No Child Left Behind Act of 2002 196 Annual Notification Requirements 196 Transfer of School Disciplinary Records 196 Armed Forces Recruiter Access

196

Student Privacy and Physical Exams 197

Defamation Involving School Personnel

197

Slander 197 Libel 197 Privilege 198 Good Faith 198 Acts of Malice 199 Case Studies

200 • Endnotes 202

Chapter 8 Teacher Freedoms 203 Substantive and Procedural Considerations Freedom of Expression 204

203

Speech Outside the School Environment 204 Academic Freedom 207

Teacher Use of Facebook and Social Media Freedom of Association 210

209

Membership in Subversive Organizations 211 Political Rights 212 Right to Hold Office

213

Participation in Political Campaigns 213

Dress and Grooming 213 Right to Privacy 215

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Religious Discrimination in Public Schools 217 Family and Medical Leave Act (FMLA) 218 Case Studies 219 • Endnotes 222

Chapter 9 Discrimination in Employment

223

Equal Protection Provisions of the Fourteenth Amendment and Employment Discrimination 223 Presumption Test

223

Due Process Standards and Employment Discrimination Title VII: Discrimination 224

224

Retaliation 226 Schools and Transgender Teachers Unwed Pregnant Teachers

227

227

Sexual Discrimination 228

Title IX 229 The Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 230 Qualifications for Employment 231 Scope of Protection: Section 504 and the ADA 232 Gender Discrimination

233

Racial Discrimination 233 Religious Discrimination 236 Age Discrimination

237

Genetic Information Discrimination 238

Pregnancy and Public School Employment Sexual Harassment 241

239

Case Studies 243 • Endnotes 245

Chapter 10 Recruitment, Tenure, Dismissal, and Due Process 247 Recruitment of Personnel

247

The Employment Interview 247 Vague Interviews 248 Retention of Personnel Data

248

Hiring Discrimination 249

Tenure

249

Acquisition of Tenure 250 Nonrenewal

252

School Leader (Principal) Evaluation 254 Tenure for Principals 254 Teacher Evaluation 255 Documentation of Teaching Performance

Dismissal for Cause Incompetency

256

256

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Contents

Insubordination

259

Neglect of Duty 260 Just Cause

261

Documenting Teacher Misconduct

261

Immorality 262 Homosexuality and Employment in Public Schools 262 Conduct Involving Morality

266

Criminal Activity 267 Sexual Advances Toward Students 268 Financial Exigency (Abolition of Positions) 270 Just Cause

272

Fair Labor Standards Act

273

Collective Bargaining 274 Private Sector Versus Public Sector Bargaining 274

Right to Work Statutes

275

Teacher Strikes 275 State Involvement

276

Scope of Collective Bargaining Impasse and Bargaining

276

277

Legal Issues 277 Teachers’ Union National Strike Strategy Workers’ Compensation Case Studies

278

279

279 • Endnotes 282

Chapter 11 The Instructional Program and School Attendance 283 Control of Public Schools 283 Compulsory Attendance 284 Compulsory Attendance Exceptions

285

Truancy 285 McKinney-Vento Homeless Assistance Act 286 Enrollment and Transportation 286 Home Schools

286

Charter Schools

288

Funding 288 Facilities 289

School Vouchers 289 Health Requirements

290

Residence 291 Curriculum Standards

292

Common Core Standards

293

Special Interest Groups and Public School Curriculum 293

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No Child Left Behind Act of 2001 Increased Accountability

294

295

More Choices for Parents and Students

295

Greater Flexibility for States, School Districts, and Schools 295 Summary and Implications 296 Accountability 296 Participation 296 Adequate Yearly Progress 296 Public School Choice 296 Supplemental Services 296 Unsafe School Choice Option (Usco) 297 Exceptional Students 297 School Improvement 297 Limited English Proficiency Students 297 Assessments 297 Stronger Accountability for Results 298 Proven Education Methods 298 Teacher Quality 298 Qualified Teachers 298 Paraprofessionals 298 Restructuring (Corrective Action) 299 Alternative Governance 299

No Child Left Behind Act of 2013

299

Intellectual Property and Fair Use

300

Copying Computer Software 301

Use of the Internet for Instruction

303

School Officials’ Responsibility 303 Children’s Internet Protection Act

306

School or District Responsibility 306 Teacher’s Responsibility

307

Parent’s Responsibility

307

Grading and Academic Requirements Student Testing

307

308

Grade Reductions for Absences 309 Grade Reductions for Unexcused Absences 309 Grade Reductions for Academic Misconduct 310 Physical Punishment for Poor Academic Performance Withholding Diplomas 311 Case Studies 313 • Endnotes

Chapter 12 School Desegregation De Jure Segregation

314

315

315

Historical Background 315

Brown II Implementation

316

Racial Balances or Racial Quotas 317 One-Race Schools

317

311

Contents

Remedial Altering of Attendance Zones 318 Transportation of Students

318

Intra District Segregation 319 Attendance Zones 319

Busing and Desegregation 320 Free Transfer and Freedom of Choice Program

321

De Jure Segregation 322 De Facto Segregation 322 Faculty Desegregation

323

Student Classifications and Desegregated Public Schools 323 Latino Students and Racial Diversity 324

No Child Left Behind and Civil Rights 325 Seeking Unitary Status 325 Case Studies 328 • Endnotes 328

Chapter 13 Public School Finance 330 Taxation for Public Schools 330 Tax Rate 331 Equity Funding in Education 331 Legal Challenges to School Funding 332 The Landmark Rodriguez Case 334 Litigation Following Rodriguez 334 Post-Rodriguez Cases 334 Equity and Adequacy of Funding for Public Schools

336

Endnotes 338

Appendix The Constitution of the United States and Selected Key Provisions and Amendments Affecting Education 340 Glossary of Relevant Legal Terms 343 Case Index 347 Subject Index 352

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Preface How do educational leaders respond to the legal challenges facing their organizations in a highly litigious society? How do they ensure that their organizations are achieving their mission without unduly restricting the constitutional rights and personal freedoms of their students and staff?

How do leaders know when they are operating within the law? How can they build and foster an organizational culture that places high value on the personal rights and uniqueness of each individual? These are issues this book addresses. The courts expect educational leaders to possess the necessary knowledge and skill that will enable them to meet legal challenges that impact their organizations.

School Law and the Public Schools: A Practical Guide for Educational Leaders, Sixth Edition, is based on the premise that educational leaders and policy makers must be knowledgeable of the law that governs the operation and conduct of their organizations as they face a highly litigious society. Increasingly, educational leaders need to exercise discretion in making sound and legally defensible decisions that affect students and school personnel under their authority. They need to guide the development and execution of sound and well-developed policies, rules, and regulations governing many aspects of their operation. Educational leaders must ensure that they possess the legal knowledge necessary to accomplish these important administrative tasks successfully.

New to This Edition The basic intent of this sixth edition is to better equip educational leaders and policy makers with relevant and timely information that will assist them in meeting legal challenges while minimizing legal exposure as they execute their defined duties and responsibilities in a highly litigious environment. The goal of the sixth edition is to provide comprehensive and practical information regarding relevant and emerging contemporary issues that impact the organization and administration of public schools. An additional goal is to better prepare educators at all levels to perform their professional duties within the boundaries of the U.S. Constitution, statutory law, case law, and school district policies. Information included in this edition will focus on practices that are legally defensible as well as those that are not. Knowledge of existing and emerging legal issues will enable educational leaders to exercise discretion in addressing the myriad legal issues they face on a daily basis. Increasingly, school leaders are expected to operate within the context of well-defined policies, rules, and regulations governing all aspect of their organizations. This edition will ensure that they possess the legal knowledge necessary to accomplish their essential administrative tasks successfully. The sixth edition includes the following additions and revisions: • New addition to chapter on legal framework to include searching case law and the trial process • Guidance in identifying and researching cases and a visual depiction of how the trial process works • Revised chapter on religion includes a discussion of prayer at legislative meetings, religious banners at football games, and legislation on acknowledging Christmas in schools • Includes an in-depth discussion of all issues relating to the Exercise Clause of the First Amendment • Search and Social Media • Provides guidance regarding the extent to which school personnel may or may not search cell phones of students in public schools • Use of electronic devices by students and teachers • Provides guidance regarding academic advantages of electronic devices in the classroom for instructional purposes xix

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Preface

• Procedures for Evaluating Threats • Includes steps that should be taken to properly assess and respond to threats in schools • Legal Liability and Hazing • Zero Tolerance and Due Process • Discusses the issue regarding the fairness of zero tolerance policies in the context of Fourteenth Amendment applications • English Language Learners and Special Education • Examines the issues surrounding misclassification of English learners into special education based on English language deficiencies • Multitiered System of Support • Discusses the tiered learning system as a mechanism to improve learning outcomes for all students including students with special needs • Liability at Bus Stops • Discusses the legal limits of school or district liability regarding student activities at bus stops • School Liability and Technology Use by Students • Provides guidance for school personnel regarding potential liability for negligence in failing to monitor how students use technology in schools • Digitizing Student Records • Discusses advantages and precautions that should be exercised by school personnel regarding digitization of student records and student privacy issues • Student Complaints and FERPA • Discusses the extent to which students are covered under FERPA when they register complaints regarding their teachers • Teachers’ Use of Facebook and Other Social Media • Discusses the dangers associated with teachers’ use of Facebook and other social media and the inherent problems associated with communicating with students • Transgender Teachers • Discusses the rights afforded transgender teachers and how they should be treated in schools • Unwed Pregnant Teachers • Discusses the rights of pregnant teachers and the privileges they should be afforded in schools • Genetic Information Discrimination Act • Defines actions that are discriminatory with respect to requesting or requiring disclosure of genetic information regarding a prospective employee or his/her family members when rendering an employment decision • Vague Interviews • Provides guidance regarding the appropriateness or inappropriateness of certain inquiries during the interview process • Retention of Personnel Data • Provides insight relative to the length of time in which certain personnel records should be maintained for legal purposes • School Leader Evaluation • Provides guidance with respect to factors that might be considered in assessing leadership effectiveness • Teaching Evaluation • Provides information regarding myriad factors to be considered in assessing teacher effectiveness

Preface

• Documentation of Teacher Performance • Discusses methods of recording vital information regarding teaching performance as a means of assisting teachers in improving performance • Insubordination Steps • Provides a systematic and legally defensible process for determining whether a teacher’s conduct constitutes insubordination.

• Documentation of Teacher Misconduct • Discusses legal steps that should be considered in determining teacher misconduct • McKinney-Vento Homeless Assistance Act • Provides guidance regarding the liberty interests of homeless students to attend public schools and the support systems that are required to ensure that they are provided an opportunity to succeed.

• Common Core Standards • Provides an overview of Common Core Standards to include objectives, outcomes, and opposition regarding these standards This book is organized and written in a style that facilitates ease of reading even for individuals who have little or no legal background. Significant court cases are carefully selected to address issues that are most relevant to effective practice. The text begins with an in-depth focused discussion of the development of the U.S. Constitution and major legal issues, followed by relevant constitutional, statutory, and case law. Legal citations are used to support and enhance the discussion of these issues, and a section on searching case law and the trial process also is included. Legal references supporting the topics under discussion are found on each page, thus enabling the reader to easily ascertain the legal sources of authority related to those particular topics.

One unique and salient feature of this text is its focus on the development of administrative guides that relate to major issues discussed in each chapter. These guides provide leaders with information pertinent to directing their day-to-day decisions and actions as they encounter a wide array of legal challenges within their organizations. No attempt was made to review or include a significant number of state statutes or interpretations because variations are numerous from state to state. The primary focus of this text involves legal sources or developments that have significant implications for effective educational leadership throughout public schools in the United States. A significant component of the book is the inclusion of case studies at the end of each chapter that provide meaningful application exercises for educational leaders, thus allowing them to make sound and legally defensible decisions.

The book concludes with appendices that include selected amendments of the U.S. Constitution, as well as an expanded glossary of important legal terms to assist the reader and provide relevance to the body of the text. School Law and the Public Schools, Sixth Edition, provides a practical and useful resource guide for educational leaders and is aimed at increasing their knowledge and awareness of the complex legal issues that impact their organizations. It will enable them to more effectively perform their legal duties and meet the requirements of reasonableness as they move their organization toward their mission.

The Instructor’s Manual with Test Items is available online to adopters. Please contact your local Pearson representative for access.

Acknowledgments I would like to express my heartfelt appreciation to my administrative assistant, Carol Brown, for the countless hours spent preparing this document. Her energy, enthusiasm, encouragement, and support far exceeded my expectations. For her untiring efforts, I am eternally grateful.

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I would also like to express my appreciation to my wife, Lorene, and my children, ­ imberly, Jarvis, and Nathalie, for their love, support, and encouragement during the writing K of this text. Their support provided me inspiration to persevere through the completion of this project.

I express gratitude to my daughter, Nathalie, an attorney, for her editorial research and technical assistance, which aided me greatly in the production of this book.

I would also like to thank the following reviewers for their time and input: Brett Geier, University of South Florida; Susan Sostak, Loyola University Chicago; Joe Flora, University of South Carolina; Terry McDaniel, Indiana State University, and ­Richard “Kent” Murray, The Citadel.

Last, I express appreciation to my administrative team, friends, and colleagues for their support and encouragement during the writing of this sixth edition.

To my staff, colleagues, and family, I am immensely grateful.

— N.L.E.

Chapter 1

Legal Framework Affecting Public Schools

Sources of Law Public schools as governmental agencies must operate within the boundaries of law at the local, state, and federal levels. Therefore, school personnel are expected to perform their prescribed duties within a framework of law. A number of legal sources affect the administration and operation of schools.

Bill of Rights and the Fourteenth Amendment The Bill of Rights represents the primary source of individual rights and freedoms under the U.S. Constitution. The first ten amendments to the Constitution are viewed as fundamental liberties of free people because they place restrictions on the government’s powers to intrude on the fundamental rights of all citizens. These restrictions simply mean that the government cannot exercise certain powers in relationship to free people. For example, the government cannot pass laws prohibiting the freedom of speech. Consequently, citizens may speak freely within the boundaries of the Constitution without undue interference by the government. At its inception, the Bill of Rights limited only the federal government’s powers and not those of state government, which meant that each state relied on its own bill of rights to limit state powers.

However, this changed with the adoption in 1868 of the Fourteenth Amendment, which guarantees that due process of law and fundamental fairness are applied to the states. The Fourteenth Amendment stipulates, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth Amendment provisions are considered federal law and are enforced by state or federal courts operating within their proper jurisdictions.

Before the adoption of the Fourteenth Amendment, very few controls were placed on state governments if they failed to abide by their own bills of rights. Relief could be sought only in the state courts without any certainty that these courts would enforce their own states’ bills of rights.

Federal courts had no authority to enforce a state bill of rights that was solely under the jurisdiction of state courts. By virtue of the Fourteenth Amendment, that authority is now vested in the federal courts.

Along with due process and equal protection provisions, the most formidable freedoms contained in the Bill of Rights include freedom of speech, press, assembly, and religion as well as freedom from unreasonable searches and protection against self-incrimination. Thus, the first ten amendments now apply to encroachment by state government. Because public schools are 1

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Chapter 1 • Legal Framework Affecting Public Schools

agents of the state, they are subject to the provisions of the Bill of Rights, which means that school officials must recognize and respect the constitutional rights of students and school personnel. Failure to do so will result in infringement of constitutionally protected rights and ­possible legal challenges through the courts.

The Federal Constitution The Constitution of the United States is the basic law of the land. It provides a framework of law in which orderly governmental processes operate. The Constitution thus becomes the primary source of law. All statutes enacted at the federal, state, and local levels as well as state constitutions, local regulations, and ordinances are subordinate to the Constitution.

The U.S. Constitution is distinguishable in its provision to protect the fundamental rights of all citizens of the United States. Inherent among these rights are those involving personal, property, and political freedoms. Although the Constitution does not make reference to education, it impacts the operation and management of schools, particularly with respect to amendments, which protect the individual rights of students, faculty, and staff.

One salient feature of the Constitution is the provision that calls for the separation of powers involving the executive, judicial, and legislative branches of government. The precept of separated powers provides each branch with the proper checks and balances on the powers of other branches.

Key Amendments Several amendments to the U.S. Constitution have a direct bearing on the operation of public schools, namely the following: The First Amendment addresses basic personal freedoms of students and school personnel involving speech, press, assembly, and religion.

The Fourth Amendment addresses rights to privacy and protects students and school personnel from unreasonable intrusion into their person or property.

The Fifth Amendment provides protection against self-incrimination in cases when the individual’s life, liberty, or property is in jeopardy.

The Eighth Amendment does not directly apply to school discipline but has been ­referenced by parents and students in cases involving corporal punishment where there is an allegation of cruel and unusual punishment by school personnel. The intent of the Eighth Amendment is to protect individuals against cruel and unusual punishment involving those who have committed criminal offenses.

The Tenth Amendment reserves education as a state function, thus placing the primary responsibility for public schools on individual states.

The Fourteenth Amendment addresses the due process rights of students and school personnel to ensure that equal protection under the laws and fundamental fairness occur in matters involving deprivation of liberty and property.

State Constitutions Based on the Tenth Amendment to the U.S. Constitution, powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively. Because education is not mentioned in the Tenth Amendment, it is left to states to control.

Therefore, state constitutions represent the basic source of law for individual states and generally require legislative bodies to perform various functions, including establishing systems of public education. They prescribe funding and operational schemes for public schools. State constitutions also restrict the powers that legislative bodies may exercise.

State constitutions often address the same subject matter found in the U.S. Constitution, such as due process, individual rights and freedoms, and separation of church and state. State

Chapter 1 • Legal Framework Affecting Public Schools

constitutions may exceed coverage granted by the U.S. Constitution but may not fail to meet the basic requirements of the Constitution or contradict it in any manner. Thus, a state statute may be in direct conflict with both federal and state constitutions or may violate one and be in compliance with the other. In all cases, federal and state constitutions prevail.

Statutes Statutes represent acts of the legislative branch of government. The word statute is derived from the Latin term statutum, meaning “it is decided.” Statutes are the most abundant source of law affecting public schools. School district policy, rules, and regulations generally are based on statutory law. Because education is considered a state function by virtue of the Tenth ­Amendment, courts tend to support the view that state legislatures should exercise power over public schools.

It is only when statutes conflict with the U.S. Constitution, federal law, or state constitutions that a challenge is brought to the courts. In short, statutes are always subject to review by the judicial branch of government to determine their constitutionality. Statutes represent the most effective means of developing new law or changing old laws.

State legislators grant local school boards the authority to adopt and enforce reasonable rules and regulations necessary for the operation and management of schools. When challenged, school officials must be able to demonstrate that a legitimate state interest is met by enforcing a particular rule or regulation, especially in cases where individual freedoms are restricted.

Court or Case Law Case law is generally reflected in judge-made or common law, as distinguished from statutory law. Common law consists of the judgments, opinions, and decisions of courts adopting and enforcing preceding usages and customs. Frequently, case law relies on past court decisions, which are called precedents. This practice is derived from the rule of law known as stare decisis, a Latin term meaning “let the decision stand.” This doctrine requires courts to observe legal precedents established in previous cases in the same jurisdictions in making future decisions involving the same or similar subject matter and factual circumstances. Although courts generally rely on precedent, they are not absolutely bound by it in rendering a decision. Factual ­circumstances may be sufficiently different to warrant a different decision, even when the subject matter is similar. Moreover, the rationale used in reaching the decision may not be viewed as applicable to the particular case under review. Federal courts, in their rulings, have contributed to a significant body of case law, which affects the development of educational policies governing the administration and operation of public schools.

Case law is sometimes viewed as unsettled law because occasionally courts render ­conflicting rulings within their jurisdictions. Thus, a ruling by a federal, district, or appellate court only affects educational policymakers in that particular jurisdiction. Consequently, what is actually practiced, accepted, and enforced varies by time and place regardless of precedent. For example, if a Florida court sets a precedent, schools in Connecticut are not bound by the decision because they are not located in the same jurisdiction. The U.S. Supreme Court is the single court whose decisions affect the organization and administration of public schools across the nation.

Even so, in many instances state and federal appellate decisions are not followed due, in large measure, to the fact that the Supreme Court has no ability to hear every conceivable issue relating to schools.

Researching Case Law A case is a written decision issued by a court.1 Federal and state courts publish their decisions in reporters. These reporters are organized chronologically. This system provides a methodology to research case law relevant to student conduct as well as permissible teacher and administrative action. The most effective means of understanding the context of a case and its application is to

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Chapter 1 • Legal Framework Affecting Public Schools

read the case in its entirety. The facts and the holding (the court’s decision) of the case provide key information that will be helpful in understanding the genesis of the law in a particular area.

There are free legal research sites such as Lexis-Nexis, Westlaw, and FindLaw. Each of these sites provides an opportunity to conduct case research by citation, case name, and subject matter. These sites typically provide access to post-1990 court opinions with the exception of United States Supreme Court opinions, which typically are accessible to the public. Access to any case law prior to this time may require a paid membership. Access to these sites provides an opportunity to read and gain a better understanding of the law on any particular subject matter of interest.

Locating A Case by Citation. New Jersey v. TLO will be used as an example in the following discussion to illustrate how to conduct case research.

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

Volume Number

469

Reporter

Page Number

US

325

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. The New Jersey v. TLO decision centered on searches in public schools. Because 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.

State Agencies State legislatures in virtually all states have created administrative agencies to execute various laws and policies governing public schools. One of these agencies typically includes state boards of education. The legislature generally prescribes the duties and scope of authority delegated to state boards. Members of each state board of education are either appointed by the governor or elected by popular vote by citizens within the state. Conflicts frequently arise with state boards of education based on the separation of the executive, legislative, and judicial branches of government. The legislature is prohibited from delegating its powers to an administrative agency.

For example, the legislature in the state of Illinois commanded the superintendent of public instruction to prepare specifications for minimum requirements to conserve the health and safety of students. The specifications developed by the superintendent of instruction were challenged by the board of education under a claim that they were unconstitutional. The board sought injunctive relief against their enforcement. The circuit court granted relief. The superintendent appealed the decision. The Supreme Court of Illinois held that the statute was a proper delegation of administrative authority to the superintendent. However, the superintendent’s specifications, which preempted the entire field of school safety and purported to strike down all local codes and ordinances relating to school safety, were invalid. Only the legislature had the power to preempt local codes and ordinances regarding school safety.

The state board of education may exercise broad or limited powers, based on legislative authorization. Public schools generally are placed under the control

State Boards of Education.

Chapter 1 • Legal Framework Affecting Public Schools

of the state board of education. In this capacity, the state board of education determines, to some degree, the direction of education in its state and also functions as a planning and evaluative body that functions immediately below the legislature. Through delegated power, the board may develop policies covering an array of legal issues such as, among others, health and safety, minimum requirements for teacher licensure, graduation requirements for students, rights of students with disabilities, and student disciplinary practices. The courts generally recognize the board’s authority based on state statute to regulate student and school personnel conduct as long as its actions are not arbitrary or capricious.

In general, most state boards have six legal powers in common. They (1) establish certification standards for teachers and administrators, (2) establish high school graduation requirements, (3) establish state testing programs, (4) establish standards for accreditation of school districts and teacher and administrator preparation programs, (5) review and approve the budget of the state education agency, and (6) develop rules and regulations for the administration of state programs.* State boards of education may not abrogate responsibilities delegated to them by state statutes. The courts are reluctant to impose their judgment regarding decisions that are made within the state board of education’s designated authority unless there is evidence of arbitrary and capricious acts or a violation of an individual’s constitutional rights. In such cases, the courts will intervene to determine whether the evidence supports constitutional violations. In reviewing the action of an administrative board, one court has held that it will go no further than to determine (1) whether the board acted within its jurisdiction, (2) whether it acted according to law, (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will rather than its judgment, and (4) whether the evidence was such that it might reasonably make the order or determination in question.2 In addition to state boards of education, each state has a state department of education, which is headed by a state superintendent or chief state school officer (CSSO). State departments are the professional arm of the CSSO. These departments consist of specialists in virtually all areas relating to education. They provide consultation and advice to local school districts, the state board, and the CSSO. State departments generally are depositories for massive amounts of research data and strategic reports collected from local school districts. Much of these data consists of reports necessary to ensure that the state is in compliance with federal and state mandates and to facilitate education planning at the state and local levels. Among other duties, the state department of education conducts research on school practices, develops short- and long-term plans for educational outcomes, enforces state and federal law, evaluates districts for accreditation, evaluates statewide testing programs, and monitors compliance of state-approved curriculum.

Local School Boards Local school boards impact education policy and the administration of public schools. The school board exercises general supervision over the schools within its district. However, its broader role involves the formulation of school district policy. Consequently, it is viewed as a policy-making body. School district policy is generally based on state statute. If consistent with state and federal laws, state and federal constitutions, and court rulings, school district policies are considered to be legally enforceable.

The local school board has a responsibility to formulate a vision that defines the future it envisions for the district. Certain goals, objectives, and measurable outcomes may be included as integral components of the board’s vision.

The vision of the school district is closely aligned with the district’s mission. The mission generally defines the basic purpose of the district and the core values embraced by the district as *

Reprinted with permission from 2009 Education Commission of the States, “Equipping Leaders, Advancing Ideas,” 700 Broadway, #1200, Denver, CO 80203-3460.

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it moves toward achieving its mission. Virtually all districts have formulated standards of performance for both students and teachers that in general are closely aligned with state standards related to No Child Left Behind provisions. Certain performance measures are established to determine the extent to which specified standards are met. The board has a leading responsibility for formulating goals that contribute to student achievement and continuous improvement of all educational programs. The board typically functions as the appellate body involving faculty, staff, and students when legal issues emerge involving recommended sanctions such as suspensions, expulsions, and dismissal.

The board is responsible for the formulation of policies, rules, and regulations that provide direction for the administration and operation of schools. The board is viewed as a corporate body. Therefore, individual board members have no power beyond the power that is granted to the full board by the legislature. Consequently, individual school board members are not free to formulate policy or to act independently of the board as a whole. School board members are considered public school officers and are granted powers by the legislature that are essential to the execution of their duties and responsibilities. The board is typically advised by its attorney and strives to act within legal boundaries established by the U.S. Constitution, state constitutions, state and federal statutes, and relevant court decisions affecting the school district.

The size of school boards varies and is generally determined by state statute. The number of school board members is typically odd to prevent a pattern of tie votes. Board members are either appointed or elected. School boards generally consist of five to seven members, although some districts may have fewer than five or more than seven.

One very significant duty of the school board involves the selection of its superintendent, unless the board operates in one of the few states where the superintendent is elected by citizens within the district. The relationship between the superintendent and the school board is best described as a legislative–executive one within which the board formulates policy and the superintendent executes policy. The board delegates certain duties and responsibilities and holds the superintendent accountable for performing them. The board evaluates the effectiveness of its policies and may revise or delete existing policies or formulate new ones based on district needs.

The board also adopts an annual budget covering personnel, instruction, student services, transportation, facilities, equipment, and materials needed to meet desired educational outcomes.

Professional and support personnel are employed by the board based on the superintendent’s recommendation. If the board has defensible grounds, it has the latitude to accept or reject personnel recommendations. Terms and conditions, salary schedules, and overall staffing and evaluation policies are determined by the board.

Because the board is accountable to the public, it is expected to operate in an open and transparent manner. Thus, school board meetings are viewed as open meetings, as virtually all states have enacted “sunshine laws” that allow citizens to attend open meetings and be informed of actions taken by the board. Citizens may request an opportunity to be included on the board’s agenda during a regular board meeting in order to speak on issues that are of concern to themselves or the community at large. Citizens may also access school board minutes because they are considered public records.

School boards may hold executive sessions to discuss sensitive matters such as employee discipline, contract issues, or attorney–board consultation. Only board members may attend these meetings. The intent of these meetings is to protect the confidentiality of sensitive information or potentially damaging information that may injure a person’s good name or reputation.

Consequently, all items discussed during executive sessions are confidential and should not be divulged by board members.

School boards are expected to be accountable to the general public and specifically to their communities for what occurs in the district regarding school safety, student achievement, teaching performance, financial management, and other areas of importance. In recent years, the No Child Left Behind Act has changed the culture of schools through the enactment of initiatives aimed at an assessment of year-to-year student progress based on statewide assessment ­measures.

Chapter 1 • Legal Framework Affecting Public Schools

The school board has a leading responsibility for establishing high quality standards and system priorities centered on enhancing student achievement. Not only is it expected to establish high-quality performance standards, but it also has a responsibility to create an environment and climate within which excellent teaching and learning occur. Therefore, the board must ensure to the greatest degree possible that proper resources are provided to achieve desired district outcomes and that funds are administered responsibly.

School board policies represent a basic source of law for school personnel as reflected in the rules and regulations governing the total operation of schools. School board policies are legally defensible as long as they do not conflict with the federal or state constitutions, federal or state statutes, or case law. Once these legal requirements are met, the school board as the delegated policy-making body at the local level may not violate its own policies. A school board is legally required to adhere to its own policies. Failure to do so may result in legal challenges by those adversely affected by the board’s actions.

School Board Policies.

The U.S. System of Courts The judicial system consists of federal and state courts. The organization of the courts at both levels is essentially the same: trial courts, intermediate courts of appeal, and the highest court, which is the U.S. Supreme Court. State constitutions usually prescribe the powers of state courts as well as their jurisdiction. Irrespective of the level, courts are limited only to cases or legal conflicts presented to them for resolution. Courts cannot take it upon themselves to decide on the constitutionality of a statute or a policy unless a suit is brought challenging the legality of that particular statute or policy.

The courts usually perform three types of judicial functions when they are called on to act.

They (1) settle controversies through applying basic principles of law to specific factual circumstances, (2) interpret legislative enactments, and (3) determine the constitutionality of legislative or administrative mandates. When applying principles of law to specific situations, the courts may find that principles of law are vague or ambiguous. In such cases, the courts must rely on legal precedent for direction.

In interpreting statutes, the courts, through their analogies and rulings, may actually affect the definition of the legislation by assigning meaning to it. When determining the constitutionality of statutes, courts make the presumption that such statutes are constitutional. Consequently, those who challenge the legality of the statute must assume the burden of proof to demonstrate otherwise. The Supreme Court in Florida addressed this issue as follows: We have held that legislative acts carry such a strong presumption of validity that they should be held constitutional if there is any reasonable theory to that end. . . . Moreover, unconstitutionality must appear beyond all reasonable doubt before an act is condemned. . . . If a statute can be interpreted in two different ways, one by which it will be constitutional, courts will adopt the constitutional interpretation.3

Federal Courts Federal courts typically deal with cases involving federal or constitutional issues (“federal questions”) or cases in which the parties are residents of different states (“diversity of citizenship”).

The federal court system includes district courts, appellate courts, and the Supreme Court.

There are ninety-five federal district courts in the United States. At least one federal court is found in each state; larger states, such as New York and California, have as many as four. Federal courts usually hear cases between citizens of different states and cases involving litigation of federal statutes.

Federal appellate courts are represented by circuit courts of appeal. The thirteen federal circuit courts include eleven with geographic jurisdiction over a number of states and territories,

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one for the District of Columbia, and one involving three specialized federal courts. Table 1.1 and Figure 1.1 identify the geographic areas associated with each circuit.

Many judges sit on the various courts of appeals; for example, the Sixth Circuit Court of Appeals has fourteen judges and eight “senior” judges available to sit in panels of three judges.

The primary function of the appellate court is to review the proceedings of lower courts to determine whether errors of law (as opposed to facts) were committed, such as procedural irregularities, constitutional misinterpretations, or inappropriate application of rules of evidence. Panels of TABLE 1.1

Jurisdiction of Federal Circuit Courts of Appeal

Circuit

Jurisdiction

1st

Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island

2nd

Connecticut, New York, Vermont

3rd

Delaware, New Jersey, Pennsylvania, Virgin Islands

4th

Maryland, North Carolina, South Carolina, Virginia, West Virginia

5th

Louisiana, Mississippi, Texas

6th

Kentucky, Ohio, Michigan, Tennessee

7th

Illinois, Indiana, Wisconsin

8th

Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota

9th

Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington

10th

Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming

11th

Alabama, Florida, Georgia

DC

Washington, DC

Federal

Washington, DC (specialized courts)

Source: Administrative Office of the U.S. Courts. (n.d.). Court Locator. USCourts.gov. Retrieved September 14, 2010, from http://www.uscourts.gov/courtlinks

WA

Western

Eastern

MT

ND

OR ID

Northern

CA

Eastern

8 NE

NV

UT

9

CO

10 Central Southern

Western

WI

WY

AZ

NM

ME

1

2

MN

SD

Eastern

NH

VT

Northern

IA

Southern

MI

Central

7

IL

Western

Northern Northern

WesternMiddle

IN

OH

PA

CT

Southern Western

3 Eastern

Southern Northern

6

Eastern WV Southern VA MO Southern Western KS Eastern KYEastern Middle Western Western Middle Eastern WesternNC Eastern Northern Western Western TN Eastern SC Northern OK AR Eastern Northern Northern GA Western AL Middle Southern MS Northern Middle Western Eastern LA SouthernSouthern Northern TX Middle Southern

RI

NY

Eastern

Western

Northern

MA

Northern

4

NJ

DE

MD

D.C.Circuit Federal Circuit

PR

VI

11

AK

Western

5

Eastern

FL

Middle Southern

Southern

MP

GU

HI

FIGURE 1.1 U.S. Courts: The Federal Judiciary SOURCE: Administrative Office of the U.S. Courts. (n.d.). Court Locator. USCourts.gov. Retrieved September 14, 2010, from http://www.uscourts.gov/courtlinks

Chapter 1 • Legal Framework Affecting Public Schools

judges for appellate courts hear oral arguments from the appellant and the appellee, examine written arguments, vote, and render a ruling. The appellate court may also, based on its finding, remand the case to be retried by the lower court.

State Courts State courts are the part of each state’s judicial system with the responsibility of hearing cases involving issues related to state constitutional law, state statutes, and common law. Many education cases are heard in state courts because they do not involve a federal question. The structure of state courts is similar to those found in the federal courts: courts of general jurisdiction, courts of special jurisdiction, courts of limited jurisdiction, and appellate courts.

The names of these courts vary among the fifty states, but all states have at least three to four tiers of courts.

State statutes generally prescribe the types of cases that must be heard by the various courts within a state. Discretionary jurisdiction involves cases in which a party files a petition to the state supreme court seeking redress. It is then left to the court to use its discretion (or ­discretionary power) in deciding to accept or reject the case. It is important to understand that state courts play a vital role in addressing many issues involving the administration of public schools.

Courts of General Jurisdiction. Courts of general jurisdiction are often referred to as district or circuit courts. Their jurisdiction covers most cases except those held for special courts. In many instances, decisions of these courts may be appealed to intermediate appellate courts or even to the state supreme court. Areas adjudicated by these courts include civil, criminal, traffic, and juvenile issues.

Courts of Special Jurisdiction. Courts of special jurisdiction hear legal disputes on special matters. They are generally referred to as trial courts with limited jurisdiction and may be called municipal, justice of the peace, probate, small claims, or traffic court.

Intermediate Appellate Courts. Intermediate appellate courts have emerged over the past three decades to hear appeals from trial courts or certain state agencies. Their primary role involves reviewing proceedings from trial courts to determine whether substantive or procedural errors occurred in applying the law. In a sense, their duties are similar to those of the highest court within the state; however, the primary difference between the two courts is discretion: The intermediate court has less discretion in accepting cases than does the highest or state supreme court. Many, but not all, of the cases heard by the intermediate courts are mandatory.

Appellate Courts. Appellate courts represent the highest courts within the state. They are considered courts of last resort. In forty-four states, these are referred to as the state supreme courts. These courts have some discretion in accepting cases, but they must hear mandatory cases based on appeal and decide on the merits of each.

See Figure 1.2, which depicts the progression of a case through the U.S. court system.

The Trial Process. There are five essential stages to a trial. These stages are as follows:

Pleadings stage involves a complaint filed by the plaintiff and an answer to the complaint by the defendant. The defendant may also file a motion rather than an answer requesting that the court dismiss the case, or may require the plaintiff to further clarify the intent of the case.

Pre-trial stage is designed to seek resolution of issues that can be resolved prior to the trial. Issues are identified that are in dispute and must be resolved at trial versus issues that are not in dispute.

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State Courts District Court

Intermediate Courts of Appeal

Court of Last Resort– Supreme Court

Federal Courts U.S. District Court

U.S. Courts of Appeal

U.S. Supreme Court

Appeals and/or Writ of Certiorari* FIGURE 1.2 Case Progression Through the Court System *A writ of certiorari is a discretionary review granted or denied by the U.S. Supreme Court.

Motions are used by attorneys to request that the court initiate a specific action by issuing an order to resolve a dispute. Summary judgment is an example, where the court decides to settle a dispute or dispose of a case promptly without conducting full legal proceedings because no issue, material, or facts exist that support a cause of action.

Discovery stage entails gathering evidence by attorneys from the plaintiff and defendant, which involves inspecting relevant documentation and interviewing individuals who are aware of the circumstances leading to the lawsuit. Depositions are taken and interrogatories also are initiated.

Trial stage consists of jury selection. If a jury is involved (as opposed to a bench trial) from a pool of potential jurors, jurors are questioned to determine their suitability to serve impartially. The judge and counsel for both the plaintiff and defendant are involved in this process. When a jury is seated, opening statements are made by the plaintiff’s and defendant’s attorneys. Closing arguments are also made by each attorney when the trial concludes. The judge provides specific instructions to the jury regarding the evaluation of the case prior to its deliberations.

Chapter 1 • Legal Framework Affecting Public Schools

Case Begins Pleadings

Pre-Trial Activity Discovery, Motions, Settlements, Dispute Resolution Efforts

Deposition

Trial Jury Trial Bench Trial Jury Selection Presentation of Evidence Closing Arguments Instructions and Standards of Proof Deliberation and Verdict Post Trial Judgment Right to Appeal FIGURE 1.3 Trial Progression

Post-trial stage consists of a verdict rendered by the jury and a ruling by the court. The party, either plaintiff or defendant, may appeal for the case to be heard by a higher court. teps involving pre-trial, discovery, and motions may be completed concurrently or interS changeably depending upon the circumstances within the case.

See Figure 1.3 for components of the trial progression process.

Analysis of an Appellate Court Opinion Court proceedings are concluded with a written opinion setting forth the decision of the court on an issue under review by the court. These opinions consist of a set of components designed to facilitate an understanding of the court’s ruling. The most common elements include the name of the case, the year in which the case was decided by the court, the appellant’s contention, the appellee’s defense, the procedure by which the case reached the court, the facts giving rise to the case, the ruling of the court, the court’s rationale for the ruling, and the final disposition on the issue.

Case (Citation) Cases are usually named for the parties involved in the controversy. The party initiating the suit at the trial court level is referred to as the plaintiff. The party against whom the suit or action is brought is called the defendant. The plaintiff’s name comes first, followed by the defendant’s

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(e.g., Baker v. Owen). If the case is appealed, the party initiating the appeal who was not supported at the first level becomes the appellant, and the other party becomes the appellee. In this instance, the appellant is listed first and the appellee last (e.g., Owen v. Baker). Even though it may take as long as several years before all legal remedies are exhausted in a particular case, the year in the case citation indicates the time when the decision was rendered.

Procedure The initiator of the suit (plaintiff) files a complaint seeking relief by the courts for alleged improper actions taken by the defendant or failure on the defendant’s part to meet certain legal standards. In either case, the plaintiff contends that an indefensible act has been attributed to the defendant. The party against whom a complaint is filed responds to the complaint with a rationale as to why certain actions were or were not taken. The defendant attempts to justify actions taken in regard to the plaintiff. In appellate decisions, an explanation may be given as to how the case reached the appellate level. An appeal or a petition for a writ of certiorari is the most common means used to bring a case to a higher court level. At the U.S. Supreme Court level and in some state courts of appeals, the writ of certiorari is used to remove a case from a lower court to a higher court for review.

Facts The facts of a case describe the specific details leading to the conflict or controversy that resulted in the case reaching the court. The facts describe the nature of the conflict as determined by the evidence presented during the actual proceeding. The facts are at issue only at the lower trial court level, not at the appeals stage. Appellate courts apply the law to the facts as determined by the trial.

Ruling and Justification The ruling of the court, made manifest in the form of the written decision or opinion of the court, represents the court’s response to the issue presented for its review. The ruling is usually accompanied by a justification detailing the basis on which the ruling was made. The ruling usually includes statements covering primary facts and the major conclusions reached by the courts.

Stare decisis— the following of precedents—is an important component of all court decisions.

Disposition The disposition follows the ruling of the case that determines whether the plaintiff or the defendant was supported by the courts in the dispute. Once the victor is determined, the court reaches a conclusion and orders that some action be taken consistent with its ruling. If the plaintiff wins, the court will prescribe a remedy for the damages suffered by the plaintiff. It may be in the form of an order compelling the defendant to compensate the plaintiff for damages or an injunction prohibiting the defendant from continuing a certain practice deemed to be unjust. If the defendant is upheld, the case may be dismissed with an order that the plaintiff pay court fees and other legal fees associated with the case. In some instances, the case may be passed to an appellate court to determine the proper remedy. The appellate court may uphold the lower court decision, reverse the lower court decision, or modify the decision in some manner. The court may also remand the case back to the lower court for further proceedings based on its review of the case.

The U.S. Supreme Court The U.S. Supreme Court is the highest court in the land. Unlike lower courts, there is no appeal beyond the decision of this court. The Supreme Court’s ruling can be overturned only by an amendment to the U.S. Constitution. Nine justices, including a chief justice, comprise the High Court. To avoid political infringement, they are appointed to life terms.

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DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI

Newala, too, suffers from the distance of its water-supply—at least the Newala of to-day does; there was once another Newala in a lovely valley at the foot of the plateau. I visited it and found scarcely a trace of houses, only a Christian cemetery, with the graves of several missionaries and their converts, remaining as a monument of its former glories. But the surroundings are wonderfully beautiful. A thick grove of splendid mango-trees closes in the weather-worn crosses and headstones; behind them, combining the useful and the agreeable, is a whole plantation of lemon-trees covered with ripe fruit; not the small African kind, but a much larger and also juicier imported variety, which drops into the hands of the passing traveller, without calling for any exertion on his part. Old Newala is now under the jurisdiction of the native pastor, Daudi, at Chingulungulu, who, as I am on very friendly terms with him, allows me, as a matter of course, the use of this lemon-grove during my stay at Newala.

FEET MUTILATED BY THE RAVAGES OF THE “JIGGER” (Sarcopsylla penetrans)

The water-supply of New Newala is in the bottom of the valley, some 1,600 feet lower down. The way is not only long and fatiguing, but the water, when we get it, is thoroughly bad. We are suffering not only from this, but from the fact that the arrangements at Newala are nothing short of luxurious. We have a separate kitchen—a hut built against the boma palisade on the right of the baraza, the interior of which is not visible from our usual position. Our two cooks were not long in finding this out, and they consequently do—or rather neglect to do—what they please. In any case they do not seem to be very particular about the boiling of our drinking-water—at least I can attribute to no other cause certain attacks of a dysenteric nature, from which both Knudsen and I have suffered for some time. If a man like Omari has to be left unwatched for a moment, he is capable of anything. Besides this complaint, we are inconvenienced by the state of our nails, which have become as hard as glass, and crack on the slightest provocation, and I have the additional infliction of pimples all over me. As if all this were not enough, we have also, for the last week been waging war against the jigger, who has found his Eldorado in the hot sand of the Makonde plateau. Our men are seen all day long—whenever their chronic colds and the dysentery likewise raging among them permit—occupied in removing this scourge of Africa from their feet and trying to prevent the disastrous consequences of its presence. It is quite common to see natives of this place with one or two toes missing; many have lost all their toes,

or even the whole front part of the foot, so that a well-formed leg ends in a shapeless stump. These ravages are caused by the female of Sarcopsylla penetrans, which bores its way under the skin and there develops an egg-sac the size of a pea. In all books on the subject, it is stated that one’s attention is called to the presence of this parasite by an intolerable itching. This agrees very well with my experience, so far as the softer parts of the sole, the spaces between and under the toes, and the side of the foot are concerned, but if the creature penetrates through the harder parts of the heel or ball of the foot, it may escape even the most careful search till it has reached maturity.

Then there is no time to be lost, if the horrible ulceration, of which we see cases by the dozen every day, is to be prevented. It is much easier, by the way, to discover the insect on the white skin of a European than on that of a native, on which the dark speck scarcely shows. The four or five jiggers which, in spite of the fact that I constantly wore high laced boots, chose my feet to settle in, were taken out for me by the all-accomplished Knudsen, after which I thought it advisable to wash out the cavities with corrosive sublimate. The natives have a different sort of disinfectant—they fill the hole with scraped roots. In a tiny Makua village on the slope of the plateau south of Newala, we saw an old woman who had filled all the spaces under her toe-nails with powdered roots by way of prophylactic treatment. What will be the result, if any, who can say?

The rest of the many trifling ills which trouble our existence are really more comic than serious. In the absence of anything else to smoke, Knudsen and I at last opened a box of cigars procured from the Indian store-keeper at Lindi, and tried them, with the most distressing results. Whether they contain opium or some other narcotic, neither of us can say, but after the tenth puff we were both “off,” three-quarters stupefied and unspeakably wretched. Slowly we recovered—and what happened next? Half-an-hour later we were once more smoking these poisonous concoctions—so insatiable is the craving for tobacco in the tropics.

Even my present attacks of fever scarcely deserve to be taken seriously. I have had no less than three here at Newala, all of which have run their course in an incredibly short time. In the early afternoon, I am busy with my old natives, asking questions and making notes. The strong midday coffee has stimulated my spirits to

an extraordinary degree, the brain is active and vigorous, and work progresses rapidly, while a pleasant warmth pervades the whole body. Suddenly this gives place to a violent chill, forcing me to put on my overcoat, though it is only half-past three and the afternoon sun is at its hottest. Now the brain no longer works with such acuteness and logical precision; more especially does it fail me in trying to establish the syntax of the difficult Makua language on which I have ventured, as if I had not enough to do without it. Under the circumstances it seems advisable to take my temperature, and I do so, to save trouble, without leaving my seat, and while going on with my work. On examination, I find it to be 101·48°. My tutors are abruptly dismissed and my bed set up in the baraza; a few minutes later I am in it and treating myself internally with hot water and lemon-juice.

Three hours later, the thermometer marks nearly 104°, and I make them carry me back into the tent, bed and all, as I am now perspiring heavily, and exposure to the cold wind just beginning to blow might mean a fatal chill. I lie still for a little while, and then find, to my great relief, that the temperature is not rising, but rather falling. This is about 7.30 p.m. At 8 p.m. I find, to my unbounded astonishment, that it has fallen below 98·6°, and I feel perfectly well. I read for an hour or two, and could very well enjoy a smoke, if I had the wherewithal—Indian cigars being out of the question.

Having no medical training, I am at a loss to account for this state of things. It is impossible that these transitory attacks of high fever should be malarial; it seems more probable that they are due to a kind of sunstroke. On consulting my note-book, I become more and more inclined to think this is the case, for these attacks regularly follow extreme fatigue and long exposure to strong sunshine. They at least have the advantage of being only short interruptions to my work, as on the following morning I am always quite fresh and fit.

My treasure of a cook is suffering from an enormous hydrocele which makes it difficult for him to get up, and Moritz is obliged to keep in the dark on account of his inflamed eyes. Knudsen’s cook, a raw boy from somewhere in the bush, knows still less of cooking than Omari; consequently Nils Knudsen himself has been promoted to the vacant post. Finding that we had come to the end of our supplies, he began by sending to Chingulungulu for the four sucking-pigs which we had

bought from Matola and temporarily left in his charge; and when they came up, neatly packed in a large crate, he callously slaughtered the biggest of them. The first joint we were thoughtless enough to entrust for roasting to Knudsen’s mshenzi cook, and it was consequently uneatable; but we made the rest of the animal into a jelly which we ate with great relish after weeks of underfeeding, consuming incredible helpings of it at both midday and evening meals. The only drawback is a certain want of variety in the tinned vegetables. Dr. Jäger, to whom the Geographical Commission entrusted the provisioning of the expeditions—mine as well as his own—because he had more time on his hands than the rest of us, seems to have laid in a huge stock of Teltow turnips,[46] an article of food which is all very well for occasional use, but which quickly palls when set before one every day; and we seem to have no other tins left. There is no help for it—we must put up with the turnips; but I am certain that, once I am home again, I shall not touch them for ten years to come.

Amid all these minor evils, which, after all, go to make up the genuine flavour of Africa, there is at least one cheering touch: Knudsen has, with the dexterity of a skilled mechanic, repaired my 9 × 12 cm. camera, at least so far that I can use it with a little care.

How, in the absence of finger-nails, he was able to accomplish such a ticklish piece of work, having no tool but a clumsy screw-driver for taking to pieces and putting together again the complicated mechanism of the instantaneous shutter, is still a mystery to me; but he did it successfully. The loss of his finger-nails shows him in a light contrasting curiously enough with the intelligence evinced by the above operation; though, after all, it is scarcely surprising after his ten years’ residence in the bush. One day, at Lindi, he had occasion to wash a dog, which must have been in need of very thorough cleansing, for the bottle handed to our friend for the purpose had an extremely strong smell. Having performed his task in the most conscientious manner, he perceived with some surprise that the dog did not appear much the better for it, and was further surprised by finding his own nails ulcerating away in the course of the next few days. “How was I to know that carbolic acid has to be diluted?” he mutters indignantly, from time to time, with a troubled gaze at his mutilated finger-tips.

Since we came to Newala we have been making excursions in all directions through the surrounding country, in accordance with old habit, and also because the akida Sefu did not get together the tribal elders from whom I wanted information so speedily as he had promised. There is, however, no harm done, as, even if seen only from the outside, the country and people are interesting enough.

The Makonde plateau is like a large rectangular table rounded off at the corners. Measured from the Indian Ocean to Newala, it is about seventy-five miles long, and between the Rovuma and the Lukuledi it averages fifty miles in breadth, so that its superficial area is about two-thirds of that of the kingdom of Saxony. The surface, however, is not level, but uniformly inclined from its south-western edge to the ocean. From the upper edge, on which Newala lies, the eye ranges for many miles east and north-east, without encountering any obstacle, over the Makonde bush. It is a green sea, from which here and there thick clouds of smoke rise, to show that it, too, is inhabited by men who carry on their tillage like so many other primitive peoples, by cutting down and burning the bush, and manuring with the ashes. Even in the radiant light of a tropical day such a fire is a grand sight.

Much less effective is the impression produced just now by the great western plain as seen from the edge of the plateau. As often as time permits, I stroll along this edge, sometimes in one direction, sometimes in another, in the hope of finding the air clear enough to let me enjoy the view; but I have always been disappointed.

Wherever one looks, clouds of smoke rise from the burning bush, and the air is full of smoke and vapour. It is a pity, for under more favourable circumstances the panorama of the whole country up to the distant Majeje hills must be truly magnificent. It is of little use taking photographs now, and an outline sketch gives a very poor idea of the scenery. In one of these excursions I went out of my way to make a personal attempt on the Makonde bush. The present edge of the plateau is the result of a far-reaching process of destruction through erosion and denudation. The Makonde strata are everywhere cut into by ravines, which, though short, are hundreds of yards in depth. In consequence of the loose stratification of these beds, not only are the walls of these ravines nearly vertical, but their upper end is closed by an equally steep escarpment, so that the

western edge of the Makonde plateau is hemmed in by a series of deep, basin-like valleys. In order to get from one side of such a ravine to the other, I cut my way through the bush with a dozen of my men.

It was a very open part, with more grass than scrub, but even so the short stretch of less than two hundred yards was very hard work; at the end of it the men’s calicoes were in rags and they themselves bleeding from hundreds of scratches, while even our strong khaki suits had not escaped scatheless.

NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR MAHUTA

I see increasing reason to believe that the view formed some time back as to the origin of the Makonde bush is the correct one. I have no doubt that it is not a natural product, but the result of human occupation. Those parts of the high country where man—as a very slight amount of practice enables the eye to perceive at once—has not yet penetrated with axe and hoe, are still occupied by a splendid timber forest quite able to sustain a comparison with our mixed forests in Germany. But wherever man has once built his hut or tilled his field, this horrible bush springs up. Every phase of this process

may be seen in the course of a couple of hours’ walk along the main road. From the bush to right or left, one hears the sound of the axe— not from one spot only, but from several directions at once. A few steps further on, we can see what is taking place. The brush has been cut down and piled up in heaps to the height of a yard or more, between which the trunks of the large trees stand up like the last pillars of a magnificent ruined building. These, too, present a melancholy spectacle: the destructive Makonde have ringed them— cut a broad strip of bark all round to ensure their dying off—and also piled up pyramids of brush round them. Father and son, mother and son-in-law, are chopping away perseveringly in the background—too busy, almost, to look round at the white stranger, who usually excites so much interest. If you pass by the same place a week later, the piles of brushwood have disappeared and a thick layer of ashes has taken the place of the green forest. The large trees stretch their smouldering trunks and branches in dumb accusation to heaven—if they have not already fallen and been more or less reduced to ashes, perhaps only showing as a white stripe on the dark ground.

This work of destruction is carried out by the Makonde alike on the virgin forest and on the bush which has sprung up on sites already cultivated and deserted. In the second case they are saved the trouble of burning the large trees, these being entirely absent in the secondary bush.

After burning this piece of forest ground and loosening it with the hoe, the native sows his corn and plants his vegetables. All over the country, he goes in for bed-culture, which requires, and, in fact, receives, the most careful attention. Weeds are nowhere tolerated in the south of German East Africa. The crops may fail on the plains, where droughts are frequent, but never on the plateau with its abundant rains and heavy dews. Its fortunate inhabitants even have the satisfaction of seeing the proud Wayao and Wamakua working for them as labourers, driven by hunger to serve where they were accustomed to rule.

But the light, sandy soil is soon exhausted, and would yield no harvest the second year if cultivated twice running. This fact has been familiar to the native for ages; consequently he provides in time, and, while his crop is growing, prepares the next plot with axe and firebrand. Next year he plants this with his various crops and

lets the first piece lie fallow. For a short time it remains waste and desolate; then nature steps in to repair the destruction wrought by man; a thousand new growths spring out of the exhausted soil, and even the old stumps put forth fresh shoots. Next year the new growth is up to one’s knees, and in a few years more it is that terrible, impenetrable bush, which maintains its position till the black occupier of the land has made the round of all the available sites and come back to his starting point.

The Makonde are, body and soul, so to speak, one with this bush.

According to my Yao informants, indeed, their name means nothing else but “bush people.” Their own tradition says that they have been settled up here for a very long time, but to my surprise they laid great stress on an original immigration. Their old homes were in the south-east, near Mikindani and the mouth of the Rovuma, whence their peaceful forefathers were driven by the continual raids of the Sakalavas from Madagascar and the warlike Shirazis[47] of the coast, to take refuge on the almost inaccessible plateau. I have studied African ethnology for twenty years, but the fact that changes of population in this apparently quiet and peaceable corner of the earth could have been occasioned by outside enterprises taking place on the high seas, was completely new to me. It is, no doubt, however, correct.

The charming tribal legend of the Makonde—besides informing us of other interesting matters—explains why they have to live in the thickest of the bush and a long way from the edge of the plateau, instead of making their permanent homes beside the purling brooks and springs of the low country.

“The place where the tribe originated is Mahuta, on the southern side of the plateau towards the Rovuma, where of old time there was nothing but thick bush. Out of this bush came a man who never washed himself or shaved his head, and who ate and drank but little.

He went out and made a human figure from the wood of a tree growing in the open country, which he took home to his abode in the bush and there set it upright. In the night this image came to life and was a woman. The man and woman went down together to the Rovuma to wash themselves. Here the woman gave birth to a stillborn child. They left that place and passed over the high land into the valley of the Mbemkuru, where the woman had another child, which

was also born dead. Then they returned to the high bush country of Mahuta, where the third child was born, which lived and grew up. In course of time, the couple had many more children, and called themselves Wamatanda. These were the ancestral stock of the Makonde, also called Wamakonde,[48] i.e., aborigines. Their forefather, the man from the bush, gave his children the command to bury their dead upright, in memory of the mother of their race who was cut out of wood and awoke to life when standing upright. He also warned them against settling in the valleys and near large streams, for sickness and death dwelt there. They were to make it a rule to have their huts at least an hour’s walk from the nearest wateringplace; then their children would thrive and escape illness.”

The explanation of the name Makonde given by my informants is somewhat different from that contained in the above legend, which I extract from a little book (small, but packed with information), by Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my results agree exactly with the statements of the legend. Washing?

Hapana—there is no such thing. Why should they do so? As it is, the supply of water scarcely suffices for cooking and drinking; other people do not wash, so why should the Makonde distinguish himself by such needless eccentricity? As for shaving the head, the short, woolly crop scarcely needs it,[49] so the second ancestral precept is likewise easy enough to follow. Beyond this, however, there is nothing ridiculous in the ancestor’s advice. I have obtained from various local artists a fairly large number of figures carved in wood, ranging from fifteen to twenty-three inches in height, and representing women belonging to the great group of the Mavia, Makonde, and Matambwe tribes. The carving is remarkably well done and renders the female type with great accuracy, especially the keloid ornamentation, to be described later on. As to the object and meaning of their works the sculptors either could or (more probably) would tell me nothing, and I was forced to content myself with the scanty information vouchsafed by one man, who said that the figures were merely intended to represent the nembo—the artificial deformations of pelele, ear-discs, and keloids. The legend recorded

by Pater Adams places these figures in a new light. They must surely be more than mere dolls; and we may even venture to assume that they are—though the majority of present-day Makonde are probably unaware of the fact—representations of the tribal ancestress.

The references in the legend to the descent from Mahuta to the Rovuma, and to a journey across the highlands into the Mbekuru valley, undoubtedly indicate the previous history of the tribe, the travels of the ancestral pair typifying the migrations of their descendants. The descent to the neighbouring Rovuma valley, with its extraordinary fertility and great abundance of game, is intelligible at a glance—but the crossing of the Lukuledi depression, the ascent to the Rondo Plateau and the descent to the Mbemkuru, also lie within the bounds of probability, for all these districts have exactly the same character as the extreme south. Now, however, comes a point of especial interest for our bacteriological age. The primitive Makonde did not enjoy their lives in the marshy river-valleys.

Disease raged among them, and many died. It was only after they had returned to their original home near Mahuta, that the health conditions of these people improved. We are very apt to think of the African as a stupid person whose ignorance of nature is only equalled by his fear of it, and who looks on all mishaps as caused by evil spirits and malignant natural powers. It is much more correct to assume in this case that the people very early learnt to distinguish districts infested with malaria from those where it is absent.

This knowledge is crystallized in the ancestral warning against settling in the valleys and near the great waters, the dwelling-places of disease and death. At the same time, for security against the hostile Mavia south of the Rovuma, it was enacted that every settlement must be not less than a certain distance from the southern edge of the plateau. Such in fact is their mode of life at the present day. It is not such a bad one, and certainly they are both safer and more comfortable than the Makua, the recent intruders from the south, who have made USUAL METHOD OF good their footing on the western edge of the CLOSING HUT-DOOR plateau, extending over a fairly wide belt of country. Neither Makua nor Makonde show in their dwellings anything of the size and comeliness of the Yao houses in the plain, especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a Makonde hamlet not far from Newala, on the road to Mahuta, is the

most important settlement of the tribe I have yet seen, and has fairly spacious huts. But how slovenly is their construction compared with the palatial residences of the elephant-hunters living in the plain.

The roofs are still more untidy than in the general run of huts during the dry season, the walls show here and there the scanty beginnings or the lamentable remains of the mud plastering, and the interior is a veritable dog-kennel; dirt, dust and disorder everywhere. A few huts only show any attempt at division into rooms, and this consists merely of very roughly-made bamboo partitions. In one point alone have I noticed any indication of progress—in the method of fastening the door. Houses all over the south are secured in a simple but ingenious manner. The door consists of a set of stout pieces of wood or bamboo, tied with bark-string to two cross-pieces, and moving in two grooves round one of the door-posts, so as to open inwards. If the owner wishes to leave home, he takes two logs as thick as a man’s upper arm and about a yard long. One of these is placed obliquely against the middle of the door from the inside, so as to form an angle of from 60° to 75° with the ground. He then places the second piece horizontally across the first, pressing it downward with all his might.

It is kept in place by two strong posts planted in the ground a few inches inside the door. This fastening is absolutely safe, but of course cannot be applied to both doors at once, otherwise how could the owner leave or enter his house? I have not yet succeeded in finding out how the back door is fastened.

MAKONDE LOCK AND KEY AT JUMBE CHAURO

This is the general way of closing a house. The Makonde at Jumbe Chauro, however, have a much more complicated, solid and original one. Here, too, the door is as already described, except that there is only one post on the inside, standing by itself about six inches from one side of the doorway. Opposite this post is a hole in the wall just large enough to admit a man’s arm. The door is closed inside by a large wooden bolt passing through a hole in this post and pressing with its free end against the door. The other end has three holes into which fit three pegs running in vertical grooves inside the post. The door is opened with a wooden key about a foot long, somewhat curved and sloped off at the butt; the other end has three pegs corresponding to the holes, in the bolt, so that, when it is thrust through the hole in the wall and inserted into the rectangular opening in the post, the pegs can be lifted and the bolt drawn out.[50]

MODE OF INSERTING THE KEY

With no small pride first one householder and then a second showed me on the spot the action of this greatest invention of the Makonde Highlands. To both with an admiring exclamation of “Vizuri sana!” (“Very fine!”). I expressed the wish to take back these marvels with me to Ulaya, to show the Wazungu what clever fellows the Makonde are. Scarcely five minutes after my return to camp at Newala, the two men came up sweating under the weight of two heavy logs which they laid down at my feet, handing over at the same time the keys of the fallen fortress. Arguing, logically enough, that if the key was wanted, the lock would be wanted with it, they had taken their axes and chopped down the posts—as it never occurred to them to dig them out of the ground and so bring them intact. Thus I have