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SCHOOL LAW for

Teachers

Winter, 2010

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U.S. CONSTITUTION

• Did not provide for a free public education for all children

• Responsibility for the education of the citizenry was the states’ rights

• Article 1, Section 8 did provide for the common defense and general welfare of the citizenry, which has been the basis for establishing a universal system of public education.

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14th AMENDMENT

• Establishes due process• Provides for equal protection for all

citizens • Equal Protection Clause prohibits schools

from classifying students on such factors as sex, age, intelligence, marital status, parents' residence, race, pregnancy, test scores, or wealth of the community

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Sources of Educational Law

• Statutory Law - written law established by a legally constituted and elected federal, state, or local body

• Common Law - system of law in which legal principles are derived from usage as expressed through the courts and legal opinions, custom, and precedent

• Administrative Law - formal regulations and decision of governmental agencies and elected officials

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FEDERAL GOVERNMENT

• Influences educational policy

• Funds about 7% of the total amount spent on public elementary and secondary schools

• Law of the Land - overrides any state or local statutes, regulations, or practices.

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STATE GOVERNMENT • Provide free public schools for all children

(F.A.P.E.) • Responsible for establishing and funding

public education • Oregon’s legal framework is the Oregon

Revised Statutes (ORS) • Policies set by Oregon’s State Board of

Education are the Oregon Administrative Rules (OAR)

• http://www.ode.state.or.us

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Key Concepts of Law

1. Respect - Does the action respect the individual’s dignity?

2. Safety - What is the best course to ensure everyone’s safety?

3. Student Welfare – What is good for the student?

4. Fair Warning - Did the teacher, student, or parent know of the rule that was violated?

5. Due Process. Did the individual have an opportunity to hear the charge, tell the other side of the story, and appeal to a higher level?

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Key Concepts of Law

6. Consistency. Is the action consistent with what was done for others?

7. Public Relations Test. What is the effect of a decision on those not directly involved?

8. Consultation. What do colleagues say is the right thing to do?

9. Law and Policy. What laws, rules, and policies apply?

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EQUALITY IN EDUCATION

14th Amendment guarantees equal protection under the law to all citizens under federal and state law

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COMPULSORY ATTENDANCE

• All states have laws to compel students to attend school

• ORS 339.020 states that parents or any "person having control of any child between the ages of 7 and 18 years who has not completed the 12th grade is required to send such child to and maintain such child in regular attendance at school during the entire term."

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Basis of Pupil Assignment to Schools and Classes

• Race as a Factor

• Sex as a Factor

• Marriage or pregnancy as factors

• Exceptional status as factor

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Race as a Factor

– Plessy v. Ferguson (1886) - “Separate but equal”

– Brown v. Board of Education, Topeka, KS (1954) – Desegregation

– Civil Rights Act (1964) Title VI– Plyer v. Doe (1982) - Educational

opportunity for illegal aliens

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DESEGREGATION

Brown v Board of Education (1954) – Segregated schools are inherently

unequal – Despite many subsequent court

decisions, schools are more segregated today than 20 years ago

– Court ordered busing, magnet schools, and other strategies have failed to overcome defacto segregation

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Race as Factor

Parents v. Seattle and Meredith v. Jefferson (2007)

• Limits school districts’ ability to manage the racial makeup of the student bodies in their schools.

• In contrast to the Brown v. Board of Education ruling, students can no longer be assigned to public schools for racial balance.

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Sexual Harassment

• Civil Rights Act of 1964 (Title VII)– Prohibits discrimination because of sex– Includes sexual harassment by school

official against student (1992 case)– Punitive damages awarded for assault

based on sexual orientation (1996 case)– District may be liable for student to

student sexual harassment (1999 case)

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Sex as a Factor

Title IX - Educational Amendments

Act (1972) • Prohibits sexual discrimination in public

and private educational institutions receiving federal aid

• Includes sports, single sex classes, access to classes, enrollment

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Pregnancy as a Factor

Title IX Educational Amendments 1972

Pregnancy Discrimination Act of 1979

Public Law 95-555 • Amends the Civil Rights Act of 1964 to

prohibit exclusion from or discrimination against women because of pregnancy, childbirth or related medical conditions.

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Exceptional Status

• English Language Learners

• Special Education

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English Language Learners

Lau v. Nichols (1974) – Based on Title VI of 1964 Civil Rights

Act which prohibits discrimination on basis of race or national origin

– Schools districts must rectify language deficiency of students with limited English proficiency. “Sink or swim policy” is not OK

– Court did not dictate a specific program

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SPECIAL EDUCATION

Rehabilitation Act of 1973

Public Law 93-112. Section 504 “No one otherwise qualified handicapped

individual shall solely by reason of the handicap, be excluded from any participation in, denied benefits of, or be subject to discrimination under any program receiving Federal assistance.”

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SPECIAL EDUCATION

Education for all HandicappedChildren Act (1975)Public Law 94-142 • All handicapped children to be provided

access to free education • Schools must provide “least restrictive

environment” • Each handicapped child guaranteed an

Individual Education Plan (IEP)

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SPECIAL EDUCATION

Individuals with Disabilities EducationAct (IDEA) (1990)Public Law 101- 476 • Further defined the rights of individuals

with disabilities in public school settings• Reauthorized in 1997 with added parental

rights• Reauthorized in 2004 with attention to the

IEP process, due process and discipline provisions

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Accommodating Disabilities

Rehabilitation Act (1973) Section 504 • Prohibits discrimination against

individuals on basis of a disability • Appropriate accommodations must be

made rather than exclusion or segregation (e.g. students with AIDS)

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FREEDOM OF EXPRESSION

• First Amendment guarantees freedom of expression (speech, press, assembly)

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RIGHTS of STUDENTS

• Tinker v. Des Moines Independent School District (1969)– Wearing of black armbands– School officials may not censure

student expression unless it causes a substantial disruption.

– “Students do not shed their constitutional rights at the schoolhouse door.”

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RIGHTS of STUDENTS

• Assembly– Legal when activities are peaceful,

do not violate schools rules nor result in property damage

• Speech– Rights when attached to school

activities can be limited

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Restrictions on Speech

• Bethel School District v. Fraser (1986) – Schools can punish

students for using “offensively lewd and indecent speech” in the classroom, assemblies, and other school sponsored activities

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Censorship

• Hazelwood School District v. Kuhlmeier (1988)– Student newspaper is not a public forum– School officials may regulate contents of

school-sponsored publications in a reasonable manner

– Courts are less inclined to regulate non-school sponsored publications

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Saluting the Flag

West Virginia Board

of Education v

Barnette (1943) • Public schools may

not force students to salute the flag

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Student Dress

• Regulated by local districts and state courts

• Restrictions on dress and appearance:– Might create a health or safety problem – Does not meet community standards – Disruptive– Identified with gang involvement

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Student Conduct & Safety

• Schools must provide a safe environment for students

• Serious consequences for threats of violence to others or property

• 14th Amendment requires due process of law

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Student Conduct

OREGON LAW: ORS 339.250 • Requires students to comply with rules • Provides for schools to administer

suspension, expulsion, removal, counseling, and issue written information about alternative programs

• Use reasonable physical force to maintain order

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STUDENT DUE PROCESS

Goss v. Lopez (1975)• Due process guidelines for suspension

– Students must know in advance the rules of behavior and disciplinary actions for violating the rules

– Students must receive immediate and informed notice of an infraction and an opportunity to present their side of the story

– Students have the right to appeal the decision

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Disruptive Students in Special Education

Honig v Doe (1988) • Exclusion for more than 10 consecutive days

is change in student’s placement, which requires agreement between school & student’s parents or a court order

IDEA (1997)• SPED students receive same treatment as

those without disabilities unless exclusion is more than 10 days.

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Corporal Punishment

• Ingraham v. Wright (1977)– Student can sue if corporal

punishment is excessive & violates 14th Amendment

• ORS 339.250 – Reasonable physical force can be used

to maintain order – Corporal punishment is prohibited

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Search and Seizure

• 4th Amendment– Protects against unlawful or

unreasonable searches

• New Jersey v T.L.O (1985)– School officials must have reasonable

suspicion and consider objective of search, age, gender of student and nature of infraction

• Law enforcement must have warrant

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DRUG TESTING

• Vernonia School District v Acton (1995)– Random drug testing of athletes is

constitutional• Board of Education of Pottawatomi

County School District v. Earls (2001)– Random drug testing for any

competitive extracurricular activity is constitutional

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Federal Hate Crimes Law

• On Oct. 28, 2009, the Matthew Shepard and James Byrd legislation expanded the legal definition of “hate crime” to include attacks based on sexual orientation.

• A hate crime occurs when the perpetrator selects the victim because of the person’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability.

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Oregon Equality Act (SB2)

• Effective January 1, 2008

• Expands categories protected to include: race, color, religion, sex, sexual orientation, national origin, marital status, age or disability

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STUDENT RECORDS

Family Educational Rights and Privacy Act Public Law 93-380

• Protects the confidentiality and fundamental fairness with respect to the maintenance and use of student educational records– Rights of Parents– Directory Information– Disclosure and Exceptions – Confidentiality of Student Records (IEP)– Confidentiality between students and staff– Video and Student Privacy Issues

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RELIGION in US EDUCATION

• 1st Amendment’s “free exercise” and “establishment clauses” require schools to take a neutral position regarding religious issues

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Prayer at School Events

GRADUATION: Lee v Weisman (1992)

– Prayers organized by school officials at graduation exercises were unconstitutional

SPORTS: Santa Fe School District v Doe (2000)

– Student led prayers at football games were unconstitutional

ORS 327.109: – Prohibits prayer at school-sponsored events

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Religious Music & Displays

Lemon v. Kurtzman (1971)– Established three part test for whether

policy violates 1st amendment establishment clause

• Must have a secular purpose• Must neither advance nor inhibit religion• Must not create excessive entanglement

between religion and school

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Use of School Facilities for Religious Purposes

Equal Access Act (1984)Mergens v. Board of Education of theWestside Community Schools (1990)• Schools can not deny access to students to meet

& engage in religious speech during non-instructional time

ORS 332.172 • School buildings can be used for civic and

recreational purposes "giving equal rights and privileges to all religious denominations and political parties."

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School Libraries

• Island Tree School District 26 v. Pico– School boards may not

order removal of books from school library based on dislike of books

– Removal must be based on rational educational grounds and review policy

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Teachers’ Freedom of Speech

• 1st Amendment affords teachers the rights to freedom of expression

• Free speech is limited to the requirement that such speech does not create material disruption to the educational interest of the school district

• Full 1st Amendment rights outside the school environment

Laws that Protect Employees

• Equal Pay Act (1963)

• Title VII Civil Rights Act (1964)

• Age Discrimination in Employment Act (1967)

• Title IX Educational Amendment Acts (1972)

• Section 504 Rehabilitation Act (1973)

• Americans with Disabilities Act (1990)

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Works Cited• Alexander, K. & Alexander, M. (2009). The Law of Schools,

Students, and Teachers in a Nutshell. West Publishing

• Caskey, M. & McBride, S. (2009) School Law for Teachers [Power Point presentation]. Portland State University.

• Johnson, D. (2002). School Law: A Primer. [Leadership 2000+]. Portland State University.

• National Association of Secondary School Administrators: A Legal Memorandum (1996). School Law: Friend or Foe? National Association of Secondary School Administrators: Reston, VA.

• New York Times. (2007, June). Supreme Court Cases and Decisions: Affirmative Action. Retrieved July 10, 2007 from http://www.nytimes.com/ref/washington/scotuscases_AFFIRMATIVEACTION.html

• Oregon Department of Education. (2005). Discrimination and the Oregon Educator.

• Thieman, G. (2002). Landmark Supreme Court Decisions Affecting US Education. [Power Point presentation]. Portland State University.