Week 4 - Old Dominion University

School Law
ELS 657
This and School Finance will help
you stay out of jail!
History of American Schooling
Rousseau – “public education is one of the
fundamental rules of legitimate government”
Montesquieu – “…the republican form of
government requires education to instill a
desire for freedom and equality, a preference
for public over private interests, and an
appreciation for (ex) knowledge.”
Mass. Law of 1642
Required fathers and masters to see to
children’s and servants (apprentices)
education – public humiliation
Revised in 1647 – apparently the law
five years earlier had failed. Mass.
required taxation for settlements of 50
or more for “Ye Olde Deluder Satan”
Geographic Variations
Distinctions existed between various
regions in the colonies – Cubberley
Good School Conditions
Mixed Conditions
Pauper/Parochial Schools
No Action Group
Good School Conditions
New England (generally) valued
Maine, Vermont, New Hampshire,
Mass., Conn., N.Y., Ohio
Mixed Conditions
Mixed settlements of people had
conflicting ideas about the value and/or
purpose of education
Indiana, Illinois
Pauper/Parochial Schools
Mostly middle colonies with traditional
English ideas (elitist) about education –
somewhat necessary for all – very
necessary for the elite.
No Action Group
Religious freedom and anti- government
states that took no action – or as little
action as possible.
Organizing System of
The age of enlightenment had its impact on
the colonies. By 1755, the religious basis was
By 1770, free public education system similar
to Germany was being considered seriously.
John Adams and Thomas Jefferson (1768)
write essentiality of education to society
1800 – education reality check
Leading spokesperson – Horace Mann
Universal, common right of man
Moral responsibility of predecessors
Moral and social salvation from evil and
Knowledge is the most valuable
Free and public education system
How Do We Pay for This?
Early New England, assessments on
Later New England, assessments on all
Early Middle Colonies, tuition
Later Middle Colonies, tuition and basic
Early Southern, tuition
Later Southern, tuition and very basic
What is the Legal Basis for
Anything not mentioned specifically in
the Constitution became a state
Education is a state function
As such, the State Constitution controls
funding for education
Virginia Constitution – Article
That no free government, nor the blessings of liberty,
can be preserved to any people, but by a firm
adherence to justice, moderation, temperance,
frugality, and virtue; and by the recognition by all
citizens that they have duties as well as rights, and
that such rights cannot be enjoyed save in a society
where law is respected and due process is observed.
That free government rests, as does all progress,
upon the broadest possible diffusion of knowledge,
and that the Commonwealth should avail itself of the
those talents…by assuring their fullest development
by an effective system of education throughout the
Sources of School Law
Court or Case law
Studying school law is like witnessing a
balancing act. On the one hand, the
power of sovereignty rests in legislative
control of schools. On the other hand,
the courts define and restrain that
sovereignty. Educators practice in a
fluid middle ground of state control and
individual freedom.
The legal framework of operations
Rights and freedoms
United States
States and territories
Statutum – it is decided
Act of government expressing a law
Follow furrows or break new ground
Generally, public schools are governed by
state statutes
All 50 states’ constitutions require free public
Rules and regs of schools have statutory
Case law
Judge-made law
Courts interpret statutes
Explain relationships and clear
confusion between statutes,
constitutions, and case law
Courts say “what the law is” (Marbury v.
Apply principles to practice
Marbury v. Madison
It is emphatically the province and duty
of the judicial department to say what
the law is…If two laws conflict with
each other, the court must decide on
the operation of each.
Stare Decisis
Let the decision stand
Unless there are compelling, legal
Blackstone said “…to keep the scale of
justice even and steady, and not liable
to waiver with every new judge’s
Who decides what?
U.S. Constitution limits the power of the
judiciary to decide a judgment and
carry it into effect for a decision
The judicial branch settles conflicts
involving cases or controversies
The Supreme Court decides what is a
case and a controversy
American Court System
See page 15 for state courts
From the State Supreme Court, cases
are heard at the Supreme Court of the
United States – not hypothetical
U.S. Supreme Court will not issue
advisory opinions – State Supreme
Courts may
Chapter 2
Historical Perspective of Public
True or False
1) One function of a state court is to resolve
cases between citizens of different states.
2) A civil action is one initiated by the state for
the purpose of obtaining compliance with
the law.
3) The ruling from the highest court in one
jurisdiction (4th circuit) takes precedence
over a conflicting ruling from the fifth
True or False
4) Common law of the US is composed of
the entire body of law including the
constitutions, statutes, cases, AGOs,
and official rules and regulations.
5) Whenever a law is challenged in court,
the court assumes that the law is
unconstitutional, and the burden of
proof is on the plaintiff.
True or False
6) The US Supreme Court is the highest court
in the land beyond which there is no
7) Common law precedents are established by
8) Stare decisis means stop looking at me.
9) The first public school laws were not
established in this land until 1790.
Some more history beyond
last week!
Ye old deluder Satan 1642, 1647
As per Week 1, our system is based on the
German model of education, not the English
English education did not have “common
schools” until 1870. Prior to that it was
private (called public there) for the wealthy
German education (in parts of the different
countries in Germany) had compulsory
education as early as 1565, then 1618, 1619,
1722, 1750.
Benjamin Rush advocated an education
system that:
Had uniformity of access
Method to pursue a course of study
Organization from primary to secondary to
Benjamin Rush (PA)
Universities will provide masters for
Colleges will provide masters for free
Free school will provide scholars for
colleges and universities
Generate one great, equally enlightened
Feelings, oh, oh, feelings
In the revolutionary setting of our new
country, not only were political changes
Educational ones were embraced as well
These were reflected in the State
Constitutions with words like…”thorough”
“efficient” … “uniform”… “effective”
State Constitutions
Generally, from the mid-1970s courts
have re-examined the issues of
education in “terms of art” as expressed
in the State Constitution
The courts have held that when these
“terms of art” are not met in practice,
they may be invalidated – the courts
may order restructuring
Common Constitutional
State legislature is responsible for
enacting laws to govern schools
Must be cohesive unit (system)
Body politic, controlled by public,
answerable to the people
Free – no charges to limit access
Funded through tax redistribution
Efficient versus effective
Equity issues
Virginia Leads the Way
(in 1779)
That free government rests, as does all
progress, upon the broadest possible
diffusion of knowledge, and that the
Commonwealth should avail itself of the those
talents…by assuring their fullest development
by an effective system of education
throughout the Commonwealth.
McDuffy v. Mass. (1993)
16 young high school students in Mass.
Plaintiffs argued that the Mass. funding
formula denied them an adequate education
in their community – violating Mass
Plaintiffs sued the governor, DOE,
Commissioner of Ed., State Board of Ed., and
the Revenue Dept.
McDuffy case
Plaintiff’s factual claims were:
Inadequacy of education at their schools
Insufficiency of funding for their schools
Mass. inability to develop an adequate
funding formula
McDuffy case
The term “cherish” was used in the 18th
century to impart a meaning not used today.
It would be nurture, nourish, or support now
The court decided that the history of the
founding of public schools in Mass was
essential to the case. 1647 statute, cherish,
and system were all cited by the court
McDuffy case
The court observed the involvement of John
and Samuel Adams in the establishment of
schools in Mass
Court decided that “cherish” and “system”
were not oratory, but obligatory. Mass has an
obligation to provide a system
Remanded to lower court to determine
appropriate funding
Rose v. Council for Better
Education, Inc. (Kentucky)
1989 decision date
Summary question – will a state legislature
be allowed to organize, finance, and maintain
a public school system with plenary (full,
conclusive) authority ignoring specific
constitutional mandates?
Situation – 66 poor districts charged that KY
legislature had not provided for an “efficient
system” of schools as mandated in
Rose case
Court held education is a fundamental right in
Current system did not satisfy “efficient
system” language of the Constitution
School system was not uniform or adequate
System of schools must be adequately funded
to achieve its goals and must be
substantially uniform (my emphasis)
Rose case
Court found overall inadequacy in
comparison with national standards and
standards in adjacent states
Found a great disparity of opportunity
throughout the state. Wide variance in
per-pupil expenditure, curriculum, and
services offered
Rose case
Defendants argued local boards had control
Court maintained that the sole responsibility
lay with the General Assembly for providing
the “system” of schools
Notice definition for “efficient” on p. 40-41
Following this, the General Assembly was
directed to make substantial changes and
restructure the finance distribution system
Judicial Approval of Common
Some states did not like the idea of common
schools for all students
Pauper schools were fine for the poor
Private schools were fine for the wealthy
Commonwealth of PA wanted to maintain that
system saying the Constitution provided for
pauper schools – not common
Commonwealth v. Hartman
1851 Pennsylvania case
This case shows the difficult transition
from pauper schools to common schools
The General Assembly was willing to
fund pauper schools but not common
Court decided that basis is in
interpretation of a state constitution
Commonwealth v. Hartman
At that time the state constitution
provided that the legislature provide for
schools in such a manner that the poor
were taught gratis
Plaintiffs argued that the constitutional
language limited the legislature in what
could be provided
Commonwealth v. Hartman
Courts said the legislature was in error
– the state constitution does not define
a maximum of legislative power, instead
it defines a minimum level.
The rule of law is that a state
legislature has jurisdiction over all
subject on which its legislation is
Expansion of Free Public
First American high school was
established in Boston, 1821
Major expansion of this practice after
the Kalamazoo case in 1872 (Supreme
This influenced other states in justifying
the creation of high schools
Kalamazoo Case
S.Ct. 1872
No previous legislative or judicial
authority had been granted to operate
high schools in Michigan – primary
schools and academies
Predominant college prep academy was
Kalamazoo College
Kalamazoo Case
One Michigan superintendent started a
union high school – merger of districts
to support a high school
This took away students from the
prestigious KC and local taxpayers and
KC filed suit against localities operating
high schools in Michigan at taxpayer
Kalamazoo Case
The lower court found in favor of KC
and the local parents
S.Ct. reversed the ruling opening all of
Michigan for the high school movement
KC went out of business
Tuition and Fees in Schools
Sometimes localities reject their responsibility
to pay for education of OPC
Schools have attempted to levy fees and
tuition to offset rising costs
Most courts have said no tuition or fees for
Some rulings have allowed incidental fees
Most have not allowed fees
Cardiff v. Bismark
North Dakota, 1978 S. Ct. ruled that
textbook fees violate the constitution
Case brought by elementary school
parents challenging authority of school
district to charge textbook rental fees to
Court said free means free – not just
tuition, but texts
Cardiff v. Bismark
State said this was a local school board issue
Court said the state can not abrogate its
authority to maintain a system of schools that
violates the consitution
This case took until 1991 to be implemented
in Virginia
Tried in West Virginia in 1995 (Randolph
County v. Adams) with same result
Hartzell v. Connell
California S. Ct, 1984 found that the
state provision for free public schools
prohibited collection of fees for
curricular or extra curricular activities
Escalating costs required examination of
options for funding
Collected fees of $25 per extra
curricular activity
Hartzell v. Connell
Parents sued
Lower court found for the school district
S.Ct reversed the finding and said that
education was not a commodity for sale
No fees allowed for extra curricular
Charter Schools
Very popular in state legislatures in 1990s
By 2000, about 2/3 of all states had
provisions for charter schools
Originally defined by US Supreme Ct in 1819
– Dartmouth College and Pierce v. Society of
Friends – 1925
Allow some public funds to flow to private
Charter Schools
Lately used to obtain vouchers for
private schools
Redefined by Clinton as public schools
chartered by parents or interests
States may determine what is a charter
Parochiaid v. Governor
1997 Michigan S. Ct ruling saying that in
Michigan the definition of public schools
includes charter schools and that does not
constitute parochiaid (parochial aid) to
religious schools
Michigan never defined a “public” school and
had arbitrary treatment of charter
Approved under a “system” of education
Chapter 3
The Role of the Federal
Review Questions
Benjamin Rush proposed a comprehensive
system of education in the 1880s.
Benjamin Franklin wrote the Virginia
The McDuffy case was finance reform in
The Kentucky finance reform involved the
Rose case
Review Questions
The first American high school was
started in what city, when?
The Kalamazoo case enabled high
schools to start in Michigan.
Most fees are acceptable in public
Land Ordinances
1785, 1787
Continental Congress established this
Common estate in the new nation for
16th section set aside for education
Township – 36 square miles – one
square mile for education
Land Ordinance
Required state legislature and
constitution to oversee the land and the
education program
In Westward expansion, Land
Ordinance required an address of
education in the new state constitution
Could rearrange the 640 acres within
the framework
Reserved State Powers
State assumed to have power in
education matters unless national issue
is at stake
Education has its power through
accepting monies and indirect influence
and support
General Welfare provisions less obvious
Indirect Federal Aid
First Morrill Act, 1862 – gave land to
states for land grant colleges. Could
sell land for that purpose
Second Morrill Act, 1890 – expanded
this authority
Hatch Act, 1887 and Adams Act, 1906,
expanded with categorical grants
Indirect Federal Aid
Smith-Lever Act, 1914 set up extension
services – homemaking and agriculture
Smith-Hughes, 1917 – vocational funds at
high school level
NDEA, 1958 – reaction to Sputnik – math,
science, computer, and foreign language
Higher Education Facilities Act, 1963 college
Indirect Federal Aid
ESEA, 1965 – reading and math or
disadvantaged students
Education Consolidation and Improvement
Act, 1982 – made block grants of ESEA
Chapter 1 – disadvantaged economically and
academically – 90% of program – basic and
concentration grants
Chapter 2 – Eisenhower funds and 29 other areas
Indirect Federal Aid
All Handicapped Children Act, 1975
We will get into these aspects later as
we deal with special education law
Limits of Federal Authority
Article 1, section 8 gives Congress power to
levy taxes and spend monies “to provide for
the common defense and the general welfare
of the United States
James Madison was against spending
Alexander Hamilton was pro
Supreme Court ruled with Hamiltion
Affirmed in 1936 with Ag. Adjustment Act
Limits of Federal Authority
Helvering v. Davis. US Supreme Court
ended a hotly-debated topic – Social
Court ruled yes, Congress can tax and
spend for the general welfare
U.S. v. Lopez, 1995
Federal gun-free school zone legislation
of 1990
US Supreme Ct. found that this can not
be tied to the Commerce legislation
It is still OK to ban guns on school
property or within certain distance.
Shepheard v. Godwin – Virginia case,
Impact aid issue
State can not reduce services to federal
areas exempt from taxation
Wheeler v. Barrera, 1974
U.S. Supreme Court
Involved Title 1 funds and parochial schools
Kansas City, MO parents wanted Title 1
services in their private, parochial school
S.C. said that if the State Constitution does
not permit an action (and that action is not
illegal) the State is not obligated to provide
Bell v. New Jersey and PA,
U.S. Supreme Court
Involved Title 1 monies in two states
Both states misapplied funding
Department of Education wanted money back
Argued feds can not recover spent funds
USSCt disagreed – almost $1.1 (NJ) and
$450K (PA) plus interest
Chapter 4
Governance of Public Schools
Governance Overview
State function
State does not have plenary power
SEA and LEA – must haves
Quasi-judicial functions
School Officers
State Function
General Assembly – education is the
most important aspect of public
SEA – State unit
LEA is base or local unit
SEA, LEA, and schools are a legislative
unit and a body politic – immunity
Impartiality and fairness doctrine
Hortonville v, Hortonville Education
Association, 1976 – U. S. Supreme Court
Can school boards with vested interests sit in
their own judgment?
Dismissals, contract negotiations,
In strike situation, teachers facing dismissal
felt a neutral party was needed
The U.S. Supreme Court did NOT agree
Points to Consider
Did the school board have a personal or
financial stake in the actions?
Was animosity or bias documented?
Did state statute authorize action?
Familiarity, decision-maker status,
negotiator status issues?
Freemont School District v.
Jacobs, 1987
Bus driver fired by supervisor
Driver said the School Board could not
delegate that authority
Courts disagreed as long as standards
Points to Consider
Is it legal (or right) to delegate this
authority beyond the superintendent?
Appeal process?
Do Constitutional protections apply?
State ex rel. Clark v. Haworth
1890, Supreme Court of Indiana
Can the State prescribe books for
Yes, education is a state function, not a
local one
Points to Consider
Ex rel – means ex relatione or upon relation
or information. Instituted by the attorney
general or the district attorney on behalf of
the state.
School boards derive all their power from the
legislature – state function.
Can uniform be uniform without the power
lodged somewhere to make it so?
McGilvra v. Seattle, 1921
Washington case
Can School Board use public funds to
operate a clinic where this is not
addressed by GA, Statute, or policy?
Earlier cases authorized establishing
and funding playgrounds.
Points to Consider
See p. 106 for earlier case for limits in
Why is a clinic different from a
playground? Indispensable, not just
Why different in other states and times?
Board of Education of Boone
Co. v. Bushee, 1994
SC of KY
Can the State Board empower schools
so that site-based decision making can
bypass the local board?
Points to Consider
KERA, 1989
Language of KERA with the responsibilities
divided among the state, local board, and the
school building council
Councils are responsible for: determining
curriculum, instructional practices, discipline,
staff, texts, and instructional materials
Clark v. Jefferson Co., 1982
Can a county operate a day care center
in direct competition with other
Remember McGilvra? 61 years later.
Points to Consider
The services are voluntary and provided
on a fee basis
There are no statutes prohibiting such
Discretionary authority exists with the
Board of Education
Smith v. Dorsey, 1988
Nepotism laws exist in most states
Here the case involved a School Board
member and contracting for teaching
with a spouse
Followed in Augusta County, VA 1988
Points to Consider
Williams had taught from 69-75
In 1988 applied to teach again
Could not (Board said) as sister-in-law
of the Chair
Exemption if regularly employed
School Elections
All states now provide for school board
elections – Virginia the last state to do
Election law is complicated
Equality of voting power is the
controlling factor
School Board Meetings
Executive sessions
Minutes and records
Notice of meetings
Chapter 5
Church and State
Review Questions
The police power of the state refers to the
fact that each state has not only the duty, but
the responsibility to provide for the health,
safety, and general welfare of its people.
Common law specifies that all school board
meetings must be open to the public
regardless of whether or not the state has
“sunshine laws” in effect.
Local school boards are part of a state
Review Questions
State constitutions in every state make
provisions for public schools.
Nepotism is prohibited by the constitution as
applied to contracts where spouses or
immediate family are involved.
The Hortonville case determined that a board
may sit in judgment of a case to which it is a
Review Questions
Local school boards and other public
agencies are classified as having three
functions – fill in.
Executive, quasi-judicial, and quasilegislative
Church and State
This year the US Supreme Court
decided the Cleveland case
Church and state issues have been
most volatile over history
Jefferson’s idea of a wall of separation
that sounded so simple and so good at
the time has become a quagmire today
Founding fathers came here to escape
religious persecution and subsequently,
persecuted others (go figure)
This idea of government not being involved in
the church was so important that it came
(later) to be a part of the Federal case law –
Reynolds v. United States, 1879 USSCt.
The original idea was not to mention religion
in the new Constitution
Pinckney (SC) convinced the
Constitutional Convention to include a
provision not to have a religious test for
public office – the last clause.
As the new states either ratified,
refused to ratify, or proposed
amendments, the first amendment
became pivotal to the Constitution.
First Amendment
Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof; or abridging the
freedom of speech, or of the press;
or the rights of the people
peaceably to assemble and to
petition the Government for a
redress of grievances.
Founding Ideas…
Jefferson and Madison writing back and
Jefferson writing to the Danbury
Baptists in 1802 used the phrase “
…building a wall of separation
between church and State.”
Generally held concept
First US Supreme Court Case
on Religion and State
Reynolds v. United States, 1879 used
Jefferson’s terms “wall of separation”
From that time this became the rule of
It would be tested repeatedly for the
next 122 years
Public and parochial schools were
widespread and diverse in the early US
Everson v. Board of Education, 1947 – US
Supreme Court
New Jersey had a provision in its laws
allowing for parents to be reimbursed for bus
fare if they attended parochial school
Mr. Everson, a taxpayer, did not like this idea
and saw it as public funding of religious
schools – violating the establishment clause
Such reimbursements do not violate
Board of Ed. of Central School
District No. 1 v. Allen, 1968
US Supreme Court ruling coming out of NY
NY State law required school districts to loan
textbooks to students in grades 7-12 who
attended private schools (including religious)
School Board felt this violated the
establishment clause and sued James Allen –
a resident who was using the texts
US Supreme Court found that the NY
law does not violate the First or 14th
(equal protection) amendments.
The State Constitution was framed this
way – it applies only where such
legislation is passed.
This started to pose some difficult
questions to the courts.
Where is the line drawn? Books,
busing, tuition?
States needed some direction and they
found it from the Supreme Court in
Lemon v. Kurtzman, 1971
Lemon v. Kurtzman
PA and RI both provided salary
supplements (15%) and “purchase of
services” to private, religious schools
Parties sued over the establishment
clause and the 14th amendment
The case established a three-pronged
test to determine if a state statute is
Lemon v. Kurtzman
RI and PA established the new statutes in
reaction to the vagueness of the Allen case
discussed earlier
The court found to be constitutional:
1) the statute must have a secular purpose
2) its principal purpose must neither advance
nor inhibit religion
3) must not foster excessive government
entanglement with religion
Right Away States Made
Changes, but to get around
Levitt, 1973 court ruled that services
purchased (grading, compiling reports,
administration, etc.) while not audited,
aided religion – No can do
State legislature changed the wording
to actual cost of services and in Regan
(1980) the SC found it was OK
Nyquist, 1973
State wanted to give monies to nonpublic schools for facility maintenance,
tuition reimbursement, and tax credits
SC found this advanced religion and had
excessive entanglement with
Tax Credits/Deductions
1972, Ohio. Parental reimbursement grant
found unconstitutional
1979, New Jersey. SC found tax benefits to
non-public school parents unconstitutional
Mueller v. Allen, Minnesota, 1983. Provided
for tax relief for parents of public and nonpublic school parents. SC affirmed the state
statute – as a benefit to all parents
Tax Credits/Deductions
Grand Rapids v. Ball, 1985
Offered benefits to parochial schools via
shared time, resources, and education
Courts found this fostered religion
Tax Credits/Deductions
Aguilar v. Felton, 1985
Title 1 funds used to provide services
for qualified students in the parochial
school building
Found to be excessive entanglement
Kiryas Joel Village v. Grumet, 1994
Strict Jewish sect in a NYC community
was the predominant culture for a
school. The School Board carved out a
special district just for this religious
group and it became its own
independent, free district to chose
texts, etc.
Grumet, a taxpayer sued saying this action
violated the establishment clause and
provided tax support for parochial schools
This had been signed into legislation
overwhelmingly by the state legislature and
endorsed by the Governor
SC ruled that this state statute violated
establishment clause
Remember Aguilar v. Felton, 1985? Using
Title 1 funds to provide services within
parochial schools?
Agostini v. Felton, 1997 changed all that.
Justice O’Connor stated that Aguilar is no
longer good law
Payment of Title 1 teachers in parochial
schools is permissible, however, the LEA must
retain all materials, control, must be secular.
Mitchell v. Helms, Louisiana, 2000.
Chapter 2 funds used to service students in
parochial schools
Chapter 2 allows for loaning texts and
materials to private schools. Does that
preclude parochial schools?
SC ruled this does not violate establishment
clause in light of Agostini v. Felton
All these decisions are based on state
constitutions and the law of the state
versus the law of the land
If a state has strict language in its
constitution regarding antiestablishment, it will be unlikely that
establishment will be allowed.
Dickman v. School District No.
62 C, 1961
Equity suit issued by parents not
wanting public school funds used to
supply texts to parochial school
Supreme Court of Oregon interpreting
its constitution
Giving texts can not be justified on child
benefit theory
McCollum, US Supreme Ct,
Two issues brought here
Release time for religious education
Release time using school facilities
violates establishment
Zorach v. Clauson
US Supreme Court, 1952
Similar case to McCollum except
Release time was off school premises
Release time not using school facilities
does not violate establishment
Abington Township v.
Murray v. Curlett
US Supreme Court, 1963
States had mandatory Bible reading and
prayer in school
Madeline Murray
Court ruled state-enforced prayer and
Bible reading were unconstitutional
Wallace v. Jaffree
US Supreme Court, 1985
Alabama case involved a minute of meditation
or silent prayer at school each morning
Teachers were to lead willing students in a
prescribed prayer to “Almighty God, Sustainer,
the Creator, and Supreme Judge of the
Violates the establishment clause
Lee v. Weisman
US Supreme Court case, 1992
Rhode Island case where non-sectarian
prayers were offered by clergy at
Not a first amendment issue
Establishment issue
As such, this practice is unconstitutional
Santa Fe ISD v. Doe
US Supreme Court, 2000
New Mexico case
First regulation required prayer before
football games
When challenged, changed to studentled, student-initiated prayer
Ruled that this violated the
establishment clause
Equal Access Act
Congress passed the EAA in 1984 based
on a case where the University of
Missouri denied a religious group the
use of school facilities based on
establishment clause
In 1990, the US Supreme Court upheld
this act in a Nebraska case, Westside
Community Schools v. Mergens
Bridget Mergens asked the principal of her
high school to start a Christian club (1985)
He denied this based on the establishment
Mergens appealed the decision based on the
federal EEA
Ruled that if student groups exist, all students
can have a club even if religious, political, or
Follow-up to Mergens
HSU v. Roslyn Union Free School District,
Christian club established
Could only born-again Christians be the
School denied charter for the club based on
exclusivity of officer selection
Court ruled officers essential to meaning of
club and to deny charter would violate EAA
Lamb’s Chapel v. Center
Moriches Union FSD, 1993
Supreme Court case involving NY school
district policy regarding use of school facilities
Policy stated welfare of the community, nonexclusive, and open to the general public. It
did not permit religious meetings
Case involved a church showing a film on
child rearing by James Dobson
In not permitting religious meetings, were
their first amendment rights violated?
SC ruled 1st amendment rights violated
West Virginia v. Barnette
West Virginia case to Supreme Court, 1943
What were we in the middle of in 1943?
Failure to salute the flag was deemed an act
of insubordination and would be dealt with
accordingly – seemed OK in light of Gobitis
decision – (PA case salute was political
responsibility – even if religious conviction)
Students in question were Jehovah’s
Witnesses. Saluting was contrary to their
West Virginia v. Barnette
Court overturned the Gobitis decision
and stated there were distinct
Court ruled that requiring a flag salute
violates 1st amendment rights
See last paragraph, first column, page
Jefferson’s wall of separation is
Judge Scalia called for the overturn of
Lemon test
We will have to see what the Supreme
Court has to say about Cleveland’s
Chapter 6
School Attendance
The Establishment Clause and the Free
Exercise Clause in the U.S. Constitution are
found in the Tenth Amendment.
A teacher may hold prayer in the classroom
each morning if the prayer is not state
Students are not required to salute the flag if
it is contrary to their religious beliefs.
Loans of textbooks to parochial schools does
not violate the Establishment Clause of the
First Amendment.
Public funds for transportation of parochial
school students does not violate the Federal
The three-pronged test for determining the
Constitutionality of state aid to parochial
schools was identified in what Supreme Court
The Bible can be used in public schools
for its literary and historic qualities.
Student-initiated prayer at graduation
and football games is Constitutional.
Religious instruction on public school
grounds is constitutional if those who
object do not have to attend.
School Attendance
What gives the State the right to
require under penalty of law to
mandate all children attend school?
What gives the State the authority to
put me in jail if I keep my children out
of school?
Exclusive or official right to do
The State has the right and duty to
make certain its people are educated –
if only for their own protection.
We hospitalize individuals for their own
protection. Restrain, medicate,
institutionalize, etc.
Elevation of society
Protection of democratic republic
Protect liberty
Required education is justified on the
grounds of individual and societal
Required in each State Constitution that
minimum levels be established
That does not prohibit going above the
minimum level
While the State can require education,
it can not arbitrarily omit persons from
Purpose-related exclusions
Residency (place of abode with no
present intention of leaving)
Most now domicile
Not citizenship or alien status
Plyler v. Doe (1982) U.S. Supreme Court
Interesting case. In 1975 Texas was
spending in excess of $50 million in educating
illegal aliens. The Texas legislature passed a
law stating that localities should withhold
educational services to illegal aliens.
After all, illegal entry into the US is a crime
Plyler v. Doe
Texas is spending money to educate illegal
aliens (Martians?)
It did not seem a wise investment of taxpayer
ACLU and Legal Aid sued under the 14th
amendment which says:
“No State shall deprive any person of life,
liberty or property, without due process of
law; nor deny to any person under its
jurisdiction the equal protection of the laws.”
Plyler v. Doe
Texas said these aliens were not under their
ACLU and Legal Aid said yes, they were and
denying them an education was not equal
protection under the law.
What did the Supreme Court say? Guess!
Court said…
We agree with ACLU
Martinez v. Bynum
Involved residency requirement
US Supreme Court, 1983
Basically, two Mexican citizens had a
son born in Texas – which made the
boy an American citizen
Parents lived in Mexico
Sent son to Texas to live with sister and
attend school
Martinez v. Bynum
The sister did not want to become
They all wanted the boy to attend
school in Texas
Texas law said “parent, guardian, or
one having legal control.”
Court said residency requirements were
legal and the boy was not a resident
Compulsory Attendance
First in 1853, Mass. and 1854 in NY
In schooling and other areas, the State has
control over issues above the parents
Child labor was a factor
Alabama had child labor law on books in
1887. It was repealed in 1895 when a
Massachusetts company demanded its
removal conditional to moving there.
Milton Friedman
Nobel laureate economist
Free to Choose
Wanted to overturn compulsory
attendance laws
Why learn if you do not want to or need
It is a general welfare issue – as such,
Pierce v. Society of Sisters,
US Supreme Court case
Oregon was to enact a law requiring all
parents to send their child to public schools
Exceptions noted
An orphan home, run by the Society of
Sisters, operated a school within the home for
years with good success – and money.
Pierce v. Society of Sisters,
Society sued the State saying compulsory
education laws were already on the books
They complied
This would force the children elsewhere and
close the orphanage
State court ruled in favor of the State law
Supreme Court disagreed
State of Wisconsin v. Yoder
US Supreme Court case, 1972
Parents were Old Order Amish
Wisconsin had compulsory attendance to age
After a thorough investigation of the church’s
beliefs, history, and values the Supreme Court
sided with the parents in not requiring more
than grade 8 attendance in public school
Johnson v. Charles City
Supreme Court of Iowa, 1985
US Supreme Court chose not to hear the case
A Fundamental Independent Baptist Church
operated a school – Calvary Baptist Christian
The school and church
1) did not want to comply with the State
oversight, and
Johnson v. Charles City
2) wanted relief under the Yoder case so as
to attend only through grade 8.
The court ruled that the State has a
prevailing (albeit minimal) interest in
oversight and that can not be relinquished.
As to Yoder, the court did not find a
compelling history, value, and belief system
Home Instruction (Schooling)
Growing area of interest – state issue
Estimated that 3-5% of parents now
home school their children – although
that number may be high
Change in demographics
States can regulate home instruction as
a private school, but burden of proof is
on the school to show inadequacies
Swanson v. Guthrie, 1998
US Court of Appeals, 10th Circuit
Not heard by SC on appeal
Annie Swanson’s parents home
schooled her for religious reasons. As
she got older (7th grade) the Guthrie
Public Schools could teach some things
better than the parents could
Swanson v. Guthrie, 1998
Annie was allowed to attend
Next year (and new Superintendent)
School Board denied the request and
adopted a policy of full-time students
Could set a dangerous precedent
Sports, state funding, testing, etc.
Parents sued
Swanson v. Guthrie, 1998
Parental rights issue
Definitive case
Parents wanted the right to direct their
child’s education
They felt they knew best and the school
system should not have the final say
Court agreed with the school system
Murphy v. State of Arkansas
1988 US Court of Appeals case from the
8th Circuit
The Murphy family are devout
Christians who believe it is the parent’s
responsibility to provide for the
educational needs of the children
They home schooled their six children
Murphy v. State of Arkansas
Arkansas has a provision for home schooling
that requires standardized testing and at age
14, a minimum performance test.
If the standardized testing or the MPT do not
place the student within eight months of
grade level, the student must be enrolled in a
public, private, or parochial school.
No such provision exists for the non-public
Murphy v. State of Arkansas
The Murphys claim that their right to free
exercise of religion, due process, and equal
protection were violated in this case
Courts ruled with Arkansas
Curriculum and testing are not heavily
Compelling State interest in general welfare
takes precedence
Maack v. Lincoln SD
1992 Supreme Court of Nebraska case
Children attended school without
immunization for measles
Measles outbreak and the Maack
children (along with 79 others) were
excluded from school until the outbreak
was over or until immunized
Maack v. Lincoln SD
Maacks stated they would not immunize
their children and further the law did
not allow exclusion from school
Claimed unequal protection under law
Court ruled that State had priority in the
general welfare of Maack children and
Supreme Court refused to hear the case
Chapter 7
The Instructional Program
Instructional Programs
Schools are a “marketplace of ideas”
BUT… The State has ultimate authority
in prescribing curriculum and method of
Two overarching tenants:
Robust exchange of ideas, and
Judges are not experts in education
Andrews v. Webber
1886, Supreme Court of Indiana case
The local school system required the
study of music
Father requested his son be excused
Request denied by Superintendent
Son refused to participate and was
Andrews v. Webber
Parent appealed and lower court
reversed the decision
School appealed and the decision was
Schools have the right to set curriculum
Parent had to pay court costs
Meyer v. Nebraska
1923 US Supreme Court case
A Nebraska statute forbade the
instruction of foreign language until
grade 8 and English was the only
language to use
A parochial school teacher taught a
bright ten-year-old boy German
Meyer v. Nebraska
The law was established so immigrants would
speak English and be acculturated into
American society
Court ruled that this violated the 14th
amendment (due process) as it deprived the
student of the property of acquired
Court ruled that language is learned early and
as this and 14th , reversed the Nebraska law
Steirer v. Bethlehem
US Court of Appeals, 3rd Circuit, 1993
US Supreme Court refused to hear
School district required 60 hours of
community service for graduation
Parents and student claimed this
violated 1st, 14th, and 13th amendment
(abolishing slavery)
Court said rights not violated
US Supreme Court case, 1982
A biggie on 1st Amendment
New York case involving “objectionable
books” in the libraries of the Junior and
Senior High Schools
Books were removed and screened by a
When this hit the press, the school board
stated the books were anti-American, antiSemitic, and filthy
Court ruled that the library is a repository of
ideas and that 1st amendment ideas should
flourish here
Nothing is changed in the way books are
added – just removed
Court ruled School Boards can not remove
books just because they dislike ideas in them
Post-Pico – Virgil v. Columbia
US Court of Appeals, 11th Circuit, 1989
Parents objected to a Humanities class
where Chaucer and Aristophanes were
part of the required reading
School Board removed the
“objectionable material”
Other parents filed an injunction against
removing the material
Virgil v. Columbia
Court ruled that per Hazelwood, the
curriculum had the imprimatur of the
school – a de facto endorsement of the
Court ruled that Board could alter the
curriculum and not be in violation of
Supreme Court declined to hear
Mozert v. Hawkins County, TN
US Court of Appeals, 6th Circuit, 1987
County adopted Holt, Rinehart and
Winston reading series in grades 1-8.
Mother objected to content in reading
series as anti-Christian
Principal designed an alternative series
Next year the Board eliminated
alternative reading series
Mozert v. Hawkins County
Parents sued
Court found that participation beyond
reading was not evidenced
Tolerance of divergent religious views
by Supreme Court is civil, not religious.
This reading program did not require
belief, just reading
Reading program stayed
Brown v. Woodland
US Court of Appeals, 9th Circuit, 1994
Whole language approach used in this
California district
More than 10,000 titles in grades one
through six
32 were challenged as “occult-oriented”
and endorsed the religion of Wicca
Brown v. Woodland
Court ruled that 32 of 10,000 is minor
This does not violate the Establishment
Other religions mentioned – Christianity
Court ruled with school system
Cornwell v. State Board of Ed.
US District Court, 4th Circuit – not heard
by US Supreme Court
State Board can prescribe a sex
education program for all school
divisions in the State
Sex ed does not establish religious
dogma or precept
Keefe v. Geanakos
1st US Circuit Court of Appeals, 1969
Senior Honors English class had a copy
of Atlantic magazine with the word
“bastard” included in the text reading
School Board called teacher in and
asked that this not be used again
He declined, was suspended, and
recommended for dismissal
Keefe v. Geanakos
Convoluted case
Teacher could sue for damages
Court ruled that in context there is
limited academic freedom
“Dirty” word can be used if it is used for
a demonstrated educational purpose
Fowler v. Bd. of Ed.
US Court of Appeals, 6th Circuit, 1987
Teacher showed an R rated film (Pink
Floyd – The Wall) on the last day of
school to her students age 14-17
A student was to “block out” nudity
Parents objected
Teacher was terminated
Fowler v. Bd. of Ed.
Lower court ruled teacher behavior was
protected under 1st Amendment
Higher Court disagreed
No job
No back pay
Epperson v. Arkansas
US Supreme Court, 1968
Arkansas enacted legislation making it a
crime to teach evolution
Statute violated 1st Amendment
Edwards v. Aguillard
US Supreme Court, 1987
Louisiana statute required teaching
creation science with teaching of
evolution in a balanced manner
If one is taught or mentioned, the other
must be treated equally
Violates Lemon and Establishment
Lau v. Nichols
US Supreme Court case, 1974
San Francisco did not provide
instruction for non-English speaking
students (Chinese)
Violated CRA of 1964
Either teach ESL or hire a translator for
most children
ESL was chosen
Courts allow great latitude to school
boards in curriculum unless rights are
Courts are very hesitant to become
experts in education
Use common sense
Even though common sense is not all
that common!
Chapter 8
Student Rights
Student Rights - Overview
As a general rule there is a lack of
certainty with regard to student rights
and the courts
Common law establishes authority of
schools under the general welfare
As such, schools must have wide
latitude of authority for controlling the
learning atmosphere and behavior
Common Law
This authority must be tempered with
and inherent concern for constitutional
rights of students and a reasonableness
and humaneness of action
1878 Case (Burpee v. Burton) stated
how we operate – in loco parentis
HOWEVER… not fully in the place
Due Process
14th amendment guarantee
Both are critical in the court rulings on
common law authority of schools to act
in the place of parents
These ideas are generally inviolate
Substantive Due Process
This idea was debated by the framers of the
Generally held that if life, liberty, or property
is taken this can not be done in violation of
constitutional rights of the individual
In other words, if the Constitution gives the
right of assembly, assembly can not be
denied a group based on whether or not
someone agrees with the ideals of the group
Substantive Due Process
In schools, this becomes more complex
Students give up some rights when they
enter the school house
Here reasonableness is a key issue
A balance must be struck between
control and the general welfare and the
rights of the individuals in school
Procedural Due Process
Same base as substantive
Goes back to the Magna Carta
Two basic tenets in procedural:
Rule against bias
Right to a hearing
Substantive Due Process
Originally designed for courts
In 1961 (Dixon) applied to schools or
quasi-judicial procedings
Provides for fundamental fairness and
opportunity for each side to present its
Many court cases revolve around this
Wiemerslage v. Maine
U.S. 7th Circuit Court of Appeals, 1994
Area was posted as no loitering
Students were loitering – discussing
afternoon plans – and names taken by
security officer
Suspended for 3 days
Plaintiff appealed and sued claiming
“loitering” was unconstitutionally vague
Wiemerslage v. Maine
Claimed violation of 1st and 14th
amendment – substantive due process
Court disagreed
Court of appeals disagreed
Policy was designed for public and
student protection
Dunn v. Fairfield
U.S. Court of Appeals, 7th Circuit, 1998
School rules did not allow for guitar
solos at band concerts and did not allow
students to deviate from the
performance schedule
Four students (seniors) did just that
Resulted in an F for students and they
did not graduate with honors
Dunn v. Fairfield
Plaintiffs claimed this violated
substantive due process – 1st
amendment free speech
Both courts disagreed
Court of Appeals questioned the
reasonableness of the rules, but
conceded it was under the purview of
the school
Goss v. Lopez
U.S. Supreme Court, 1975
Nine students were suspended from
Columbus schools for misbehavior
State code allowed suspension of up to
10 days or expulsion
If expulsion, students could appeal
No appeal or hearing for suspension
Goss v. Lopez
Court ruled that there was a
constitutional right to an education
That right could not be taken away
without due process
The right to procedural due process was
inherently involved when fundamental
rights are removed
McClain v. Lafayette County
U.S. Court of Appeals, 5th Circuit, 1982
PE teacher saw a switchblade knife on a
student and reported him to the office
Principal took the knife, sent him to
class, and required parent conference
next day
Informed parent that the boy was
suspended indefinitely – Board appeal
McClain v. Lafayette County
Parent attended the (9) Board meeting
and told her side, questioned witnesses,
and was told the boy was suspended
for the rest of the year
Parent sued for relief and denied
Appealed on denial of procedural due
Indefinite suspension prior to hearing
McClain v. Lafayette County
Parents’ lawyer quoted Goss v. Lopez
Contended that long-term suspension
required a hearing
What did the court decide?
Michael was given an opportunity to tell
his side and confront witnesses – due
process is “a flexible concept”
Sexual Harassment
Franklin v. Gwinnett County
U.S. Supreme Court, 1992
Long and short is that damages can be
awarded to students for violation of
Title IX
Gerber v. Lago Vista
U.S. Supreme Court, 1998
Another unbelievable one!
Started in 8th grade
Parents sued under Gwinnett and asked for
damages from the school district
No one from the building or district level
knew – principal acted appropriately based on
his knowledge
Damages could be collected from teacher
Davis v. Monroe County
U.S. Supreme Court, 1999
Student-on-student sexual harassment
Continued over five months with little
assistance from teacher or principal
Multiple complaints and student finally
was charged with sexual battery (5th
Davis v. Monroe County
Parents sued under Gwinnett and
Lower court found not similar and
dismissed damages and guilt from
What did the SC say?
Board may be liable if acting in
“Deliberate Indifference”
Child Abuse
Arkansas Department of Human
Services v. Caldwell, Arkansas Court of
Appeals, 1992
1988 an AP paddled three 5th grade
students caught smoking
Parent complained to SS and the
caseworker substantiated abuse by AP
Child Abuse, con’t
Appealed and confirmed
Appealed again and under Code (School
Discipline Act) found legal consent for
Reasonable paddling does not
constitute child abuse WHEN THE CODE
Freedom of Student Speech
and Expression
Hair length
School Uniforms
Tinker v. DesMoines
U.S. Supreme Court, 1969
Parents and students decided to protest
Vietnam war by wearing black arm
bands and fasting on two days
Administrators heard about this
Subsequently adopted a plan to ban
Tinker v. Des Moines
Is this free speech or a substantial
disruption to the educational process?
The court ruled that a reasonable
person could not have forecast
“substantial disruption” to school
Reversed and remanded to lower court
Bethel v. Fraser
U.S. Supreme Court, 1986
Bethel High School student running for office
delivered a non-approved speech which
contained lewd language
Advised a priori that what he intended was
Called in next day to explain and informed
that he would not be a candidate for
graduation speaker and suspended 3 days
Bethel v. Fraser
Appealed to school board and denied –
lewd speech
Sued in court as a violation of 1st
amendment free speech rights
District and appellate courts agreed
What did the SC find?
Lewd student speech is not protected
Student Publications
1st amendment rights and student
Hazelwood v. Kuhlmeier, Supreme
Court, 1988
Student newspaper issue – Journalism
class for credit
One article featured student pregnancy
Hazelwood v. Kuhlmeier
Principal reviewed per custom
Found article inappropriate
Censored the article
Students (parents) sued under 1st
What did the court rule?
School may regulate content of articles
Beussink v. Woodland, U.S. District
Court, Missouri, 1998
Student created a homepage on his
own computer, own time, and software
found on the Internet which was highly
critical of the administration of the high
He wanted to voice his own opinion
Beussink v. Woodland
A previous friend accessed the site in
Teacher saw homepage and was upset
Students in other classes saw page
Principal suspended student for 5 days
More students viewed and suspended
for 5-10 days
Beussink v. Woodland
“Clean it up or clear it out” ultimatum
Removed website and returned after 10 days
School policy on unexcused absences was 1
day = 1 letter grade drop
10 days = failure
What to do?
Court ruled 1st amendment not shed at door
of school
Homepage may be Constitutionally protected
Search and Seizure
Most famous case is TLO
U.S. Supreme Court, 1985
2 girls smoking in BR, searched, and
found cigarettes, rolling papers, and MJ
in TLO’s purse
Also found in TLO’s purse letters and
ledgers detailing $ owed for MJ
Called mom and turned evidence over to the
local police
At police HQ, TLO admitted to selling MJ at
high school
Lower court and NJ SC agreed that 4th
amendment rights had been violated
SC disagreed and reversed decision because
search was reasonable and not excessively
Drug Testing
Veronia v, Acton, Supreme Court, 1995
School random tested athletes for drug
use based on danger and prominence
of athletes in the community
Random testing is Constitutional
Cornfield v. Consolidated HS
Student was suspected of “crotching”
Strip search revealed no evidence of
drug crotching
Student sued under 4th, 5th, and 14th
Courts found in favor of school system
– if reasonable
Two More Cases! I promise…
DesRoches v. Caprio and Norfolk, 4th
Circuit Court of Appeals, 1998
Bookbag search is reasonable under
certain conditions – reasonableness
Isiah B. v. State of Wisconsin, Supreme
Court of Wisconsin, 1993
Random locker searches OK
Chapter 9
Rights of Disabled Children
Pupils have an unlimited constitutional right
to exercise free speech in public schools.
Tinker said that there are two standards
which must be met in controlling free speech
or expression – clear and present danger and
substantial disruption.
The more that the state is taking away from
individuals the more formal the due process
A fair and impartial hearing is the basic
element of substantive due process.
According to Goss v. Lopez, students
have a property right in education.
Explain the significance of:
Goss v. Lopez
Bethel v. Frazier
-- Hazelwood v.
--Ingraham v. Wright
What is the difference between substantive
and procedural due process?
The courts will not usually interfere with the
school’s academic program.
Meyer v. Nebraska ruled that the state ban on
teaching foreign language was a valid
exercise of police power of the state.
Academic sanctions for nonattendance
violates due process for students.
Once a pupil has completed all required
courses, issuance of a diploma is a
ministerial duty the school must
Courts have generally ruled that grades
may be reduced as a disciplinary
measure to maintain order in the
Rights of Disabled Children
A History of Neglect
A History
Earliest known school for the handicapped
was in Connecticut - founded by Gallaudet in
1817 - a school for the “deaf and dumb”
Conn. legislature gave $5,000 and opened
with 7 students. In 1819, the leg. gave
23,000 acres. The school sold the land for
$300,000 (angering the legislature).
The next year four other states began similar
New York - #2
Started with private donations
Taken over by the state in 1821 - two
years later
First residential state school for
handicapped students - no tuition like in
Conn., however
Pennsylvania - #3
Initially established in 1820 as a private
school, it was operated by the state in
1821 with an enrollment of 50 students.
It was a residential and a day school for
Tuition was provided by the state
Other States Get on the
Bandwagon - 1823 - 1844
Three additional states begin schools
for handicapped students - Kentucky,
Ohio, and Virginia
These were supported to some degree
by the state, but tuition covered the
major expense
Other early efforts
Seventeen new schools were established
Horace Mann pioneered the Lunatic Hospital
(1830 - Worcester, Mass.)
New York (1832) established a school for the
By 1852 NY, PA, and MA established schools
for the mentally retarded - limited access.
Other early efforts, con’t
1860-1880 there was a lapse in program
development for handicapped students
National Deaf Mute College established in
D.C. (name changed to Gallaudet)
By 1890, schools for mentally handicapped
had started in 6 states - mostly New England
1900 (Chicago) first schools for physically
handicapped students
First Court Rulings
In 1893, a Mass. ruling (Watson v. City of
Cambridge) said that imbecility was grounds
for permanent expulsion
Beattie v. Board of Ed. ruled that capable
handicapped student could be excluded from
school because the handicap had a
“depressing and nauseating effect” on
teachers and students
Turning Points
In 1918 the Soldier’s Rehabilitation Act
passed Congress followed by Smith-Bankhead
Act (1920). Made schools offer vocational
rehabilitation, education, and counseling
services to individuals
By 1944, these services were amended to
include mentally ill and retarded individuals
Brown v. Board of Ed. included these
Turning Points, con’t
In 1971, Penn ARC v. Commonwealth ruled
that retarded children were entitled to a free
public education
In 1972, the Mills case (US District Ct - D.C)
expanded PARC case to include all
handicapped children. “In this court district
there are 22,000…children, and perhaps as
many as 18,000 are not being served.”
Turning Points, con’t
The Mills case was about requiring due
process before education assignment was
changed. They were denied schooling or at
least regular placement.
Actually, the number was about four time
higher than that – almost 90,000 students.
Most of these children never attended school!
Vocational Rehabilitation Act
of 1973
Section 504 of the RA states that “no
qualified handicapped individual shall be
excluded, denied benefits of, or be
discriminated in any manner in any program
or activity receiving federal assistance.”
Included location and notification, free
appropriate education, educational setting,
evaluation and placement, procedural
In 1975 federal legislation EAHCA,
Public Law 94-142 was enacted
Reinforced earlier attempts
Recognized that:
more than 8 million handicapped students
needs not met
more than half not appropriate
more than 1 million excluded entirely
Free appropriate education
Individualized education program
Special education services
Related services
Due process procedures
Least restrictive environment in which
to learn
Dates and Included Students
The act required all handicapped students
between ages of three and eighteen receive
appropriate educational services by 9/1/78
Ages three to twenty-one by 9/1/80
Estimated that only 1/3 of school systems
were ready to enact this by the time frames
Now we dealt with included instead of
excluded students
Court Cases on 94-142
The opposition to this act was
Taxpayers, general education teachers,
parents, school boards feared increased
costs and disruptions to the educational
Many court cases were heard
Findings were consistent
Free appropriate education
Qualification for federal funds
Did not define FAE
Must be consistent with intent of Act
Must be provided in conformity with IEP
Must meet SEA standards
Must include appropriate preschool,
elementary, secondary, and related
Major Court Case
Rowley – a biggie! Amy was a deaf
student. Parents wanted more services
than professionals thought necessary
Supreme Court decision (1982)
Defined a “floor of opportunity” and not
a “ceiling of opportunity” in regards to
provide education benefits to the
handicapped child
Extended School Year
Battle v. Commonwealth (PA, 1980) said that
a state or locality could be required to provide
longer service periods depending on the
child’s IEP
At issue was a constitutional provision limiting
the school year for all students to a maximum
of 180 days - handicapped or not
Similar Crawford v. Pittman (Miss., 1981)
Yaris (Mo., 1986)
Georgia ARC (1983)
Johnson v. Independent School Dist No.
4 of Bixby (10th Circuit, 1990) held that
a limit of 180 days violated the
individualized of IEP.
Procedural Safeguards
As Rowley indicated, procedural safeguards
were a vital component in ensuring
appropriate educational services
Parents must be given notice and opportunity
to participate in the child’s IEP
Conflict and grievance procedures, appeals,
resolution - unbiased and impartial
Procedure Violation
Violation equals violation of free and
appropriate education
Insignificant procedural error will result
in the court declining to “exalt form
over substance”
If findings are not to the satisfaction of
the parent appeal to SEA with a “stay
put” order
Designed to reduce to writing a plan
that takes into account educational
needs, instructional goals and
objectives, specific programs and
services, and the evaluation procedures.
Timothy W. v. Rochester NH
U.S. Court of Appeals - First Circuit. Defined
- all handicapped and does not require a child
to demonstrate benefit as a condition
precedent to participation.
Timothy W. severely handicapped and refused
Reaffirmed that intent of Congress was to
give priority to the most severely
Least Restrictive Environment
3rd, 5th, and 11th Circuit hold Daniel
R.R. two-part test (case of same name)
First, can education in the regular
classroom with use of supplemental
aids and services, can be achieved
satisfactorily for the student?
Second has the school mainstreamed to
the maximum extent appropriate?
LRE con’t
4th, 6th, and 8th Circuits have applied the
test under Roncker v. Walter
Recognized the strong congressional
preference for mainstreaming
For a child not to be mainstreamed Roncker
requires the school show that a segregated
facility is superior and why and whether the
same can be delivered in a mainstream
setting. If yes, not LRE
Terms not found in 94-142
Used in Oberti (3rd Circuit Court of Appeals,
Burden of proof proving compliance with
mainstreaming is on the School – and not on
the parent to prove it is not happening
Here term inclusion is used first time legally
The child - 8 year old Downs child
Florence County v. Carter - Supreme Court
ruled that court may order school districts to
reimburse parents who unilaterally place
children in private schools
Schools did not provide appropriate education
and parents withdrew children and placed in
private schools - to be reimbursed
Costs, con’t
James Zobrest, deaf since birth,
attended Catholic High School. Asked
for intrepreter pursuant to IDEA from
public school while attending private
school. This does not violate the
establishment clause
Zobrest v. Catalina Foothills - U. S.
Supreme Court, 1993
Related Services
Related services means transportation,
support services, speech path,
audiology, psychological services, O.T.,
P.T., medical services, counseling, and
the like
U.S. Supreme Court in Irving v. Tatro
ruled that catheterization is a related
Related Services con’t
Attorney’s fees? Who pays?
Supreme Court ruled in Smith v.
Robinson (1984) that parents could not
claim attorney’s fees under 504, 94142, or related amendments.
Congress amended HCPA in 1986
allowing reasonable attorney’s fees to
parents who win lawsuits
Florence County v. Carter
U.S. Supreme Court, 1993.
Shannon Carter LD student with rather
inadequate IEP and services
Parents protested services and withdrew her
from school enrolling her in Trident Academy
Court ruled SC violated FAPE and ordered
school system to reimburse parents for all
costs associated with sending her to private
Honig v. Doe
US Supreme Court case, 1988
“Stay put” provision is in effect in FAPE
School can not unilaterally exclude a
student from classes for dangerous and
aggressive behavior – student was ED.
John Doe assaulted a student, teacher,
and kicked out a window, cursing and
screaming. Expulsion moved. Stopped.
Chapter 10
Plessy v. Ferguson, 1896 (US SC) was a
result of the 14th amendment. LA
railroad company – separate but equal
See quote at top of Chapter 10
Sarah Roberts (1849) story – separate
but equal
Historical Development – after
a long court silence
Gradually, thanks to NAACP, separate-butequal legal basis was being eroded
Missouri ex rel. Gaines v. Canada (1938) was
a Supreme Court case involving a law
prohibiting blacks from entering the U of M
law school
No other law school
Court ruled school must admit – court action
again taking action on equal protection
Sweatt v. Painter
1950 Texas case. Mr. Sweatt applied to
attend the U of TX law school. Under
Gaines, no black law school existed.
The TGA set up one ASAP – substandard
Sweatt sued and the US SC ruled
separate but equal is frequently not
Admitted and set the stage for Brown
In 1952, five cases from various states
reached the SC on separate, but equal for
public education (KS, SC, VA, DE, DC)
Lower courts (except DE) denied relief to
black students
Deep south, upper south, border state,
congressional district (5th amendment)
Only KS had “permitted, but not required”
legislation to maintain separate facilities
Very slow case – brought in 1952
Heard that year and did nothing until
1953 demanding another argument
Decided in 1954
To be implemented with “all deliberate
Carefully considered, intentional, slowly
Chief Justice Earl Warren
“We conclude in the field of public education
the doctrine of separate but equal has no
place. Separate educational facilities are
inherently unequal.”
Brown II mandated that States had moved
too slowly. In 1969 ruled that by 1970
schools become unitary or else.
Remember This?
Griffin v County Bd of PEC
US SC case, 1964
Brown met with much resistance in VA
In 1956 VA GA enacted legislation to
close mixed schools and cut off state
funding to such schools
Allowed tuition to private, non-sectarian
schools, and extended state retirement
benefits to private school teachers
Griffin v County Bd of PEC
Overturned by the VA Supreme Court,
In 1959, the state abandoned massive
resistance and enacted “freedom of
Tuition grant programs
Repealed compulsory attendance laws
Made school attendance a local choice
Griffin v County Bd of PEC
VA SC upheld the legislation, 1963
SC overturned in 1964
“If it becomes necessary to add new
parties to accomplish this end, the
District Court is free to do so.”
Swan v. CharlotteMecklenburg
US SC case, 1971
De jure segregation existed
Court ruled that busing was an
acceptable remedy
Court still is overseeing the case in NC
Other cases limited by time and original
Chapter 11
What is a tort?
A) A pastry
B) A cutting remark
C) A not so nice woman
D) A civil wrong (other than for a
breach of contract) for which courts
may award damages
Why do we have laws?
To preserve the peace of all citizens
If this is true, then if one citizen suffers
at the hand of another, there needs to
be some form of redress
Tortus – Latin for “twisted”
Activity not part of the mainstream
Tort v. Crime
Crime is breaking the law
Criminal proceedings and jail against
the offender – not the injured person
Tort is an injury caused to another
person where some remedy for the
injury is allowed
Three tort types
Intentional interference
Strict liability
Intentional Interference
Can be a bit misleading
Results from an act of anything from
malice to a practical joke
“Intentional” refers to consequences,
not just the intent of the action
If the party knows the consequences
are substantially certain, it may be
intentional interference
Peace of Mind
Interference with peace of mind
Mental or emotional anguish
If an act is malicious (not just
negligent) there may be recovery
Assault and Battery
Examples of intentional torts
Battery – hitting, touching, physical
Assault – apprehension of battery – a
mental assault
Chastisement of a pupil may constitute
assault and battery if cruel, brutal,
excessive, or done in anger or insolence
Spears v. Jefferson Parish
Court of Appeals of Louisiana, 1994
School system was liable for an
intentional act of a teacher that
produced emotional harm to a student
Justin Spears was a kindergarten
student who was misbehaving in PE
A teacher called the boy (and others) to
sit beside him
Spears v. Jefferson Parish
The boys played with the teacher’s hair and
ears (classroom management ills)
Teacher decided to play a trick on the boys
telling them he would kill them by hanging
them with a jump rope
He took the boys into an office
Another teacher was talking with Jason
Teacher and boys played a trick on Jason
Spears v. Jefferson Parish
Jason walked back into the office where one
of the boys was playing dead
Jason experienced emotional problems
(attachment disorder with mother, failure to
go to the bathroom alone, refusal to wipe
himself, etc.)
Court awarded $100,000 general damages,
$2,100 therapy, and $5,000 to each parent
Strict Liability
Often referred to as liability without
Liability imposed apart from
Intent to interfere with a legally-protected
interest without legal justification for doing
Breach of duty to exercise reasonable care
Abnormally Dangerous
Existence of high degree of risk
Great likelihood of harm
Non-elimination of risk by reasonable
Extent the activity is not common usage
Inappropriateness of activity to place
Extent of value versus danger
Fallon v. Indiana Trail School
Appellate Court of Illinois, 1986
Case involved a sixth grade girl who
suffered spine injuries on a trampoline
Parents sued claiming trampoline was
an abnormally dangerous device (under
strict liability)
Parents also claimed negligence on the
part of the teachers
Fallon v. Indiana Trail School
The trial court ruled that the trampoline
was not abnormally dangerous and no
negligence was evident
Appealed and the higher court agreed
with the lower court ruling
Negligent acts are not expected or intended
(as opposed to intentional torts)
Here the key is a reasonable and prudent
person would have anticipated harmful
Accidents that can be prevented by
reasonable care are not ones of negligence
Standard of Conduct
Various rules apply in different circumstances
– no standard rules
The key is the standard of conduct by the
responsible party (actor)
The court must strike a balance between
conduct and harm – reasonable person
Injury must result from an unreasonable risk
Elements of Negligence
A duty to protect others
Failure to exercise appropriate standard
of care
Existence of a causal connection
between the act and injury (proximate
or legal cause)
An injury, damage, or loss
The duty is to abide by a reasonable conduct
when apparent risks are evident
No duty exists when one could not have
reasonably foreseen the danger of risk
No relationship
Good Samaritan
Standard of Care
As level of risk increases, so does the
standard care
Up to about 7 years of age children can
not be held liable for negligence
Between 7 and 14 years presumed not
capable of negligence until proven
Proximate Cause
Also called legal cause
It is the connection between act and
Must be duty to maintain reasonable
standard of conduct
Negligence must be the substantial
cause of harm
Proximate Cause
A teacher may be relieved of liability of a
student being injured if the principal
allowed them to run in the street and a
student ran in front of a car
The teacher’s role in the proximate cause
or causal relation was too remote
Brown v. Tesack
Supreme Court of Louisiana, 1990
Children got duplicating fluid and
started fires in the projects
One student was injured
Plaintiff argued foreseeability of hazard
Court reversed trial and appellate courts
Brownell v. Los Angeles
Court of Appeals, 1992
Student left school and was
misidentified by gang members as a
rival member
Boy was shot (wounded)
Plaintiffs argued that inadequate
supervision and forseeability were
Brownell v. Los Angeles
Jury awarded plaintiff $120,000
Court of Appeals reversed
Absent were
Gang-related threats
Prior incidents
Johnson v. School District of
Supreme Court of Nebraska, 1998
Music class with 1st graders learning
London Bridge – with chaos
The game got out of hand and resulted
in 50 stitches, blurred vision, and
headaches for Robbie Johnson
Standard of care, direct supervision,
and negligence were issues
Johnson v. School District of
Trial court found for the plaintiff and
awarded $21,000
Supreme Court of Nebraska upheld the
decision based on the idea that the
negligence was the proximate cause of
the injury
Richardson v. Corvallis Public
School District No.1
Mom went into the high school with son
to explain tardiness
Mom walked across a packed-down
snowy path without problem
On returning to car, Mom slipped and
was injured
She sued claiming breach of duty to
warn of hazard – all courts disagreed
Defenses for Negligence
Contributory negligence –
negligence of plaintiff contributed to
Comparative negligence – partial
payment for partial negligence
Assumption of risk – knowledge and
acceptance of danger
Immunity – allowed for certain people
Selected Court Cases
Brief absence from classroom does not
mean negligence
Female student playing football
assumed risks (Hammond v. Carroll
County, 1994)
Required release of liability for
negligence forms are not valid and
violate public policy
Educational Malpractice
Peter W. v. San Francisco (1976) and
Donohue v. Copiage Union Free School
Educational malpractice is not
recognized as a tort
Chapter 12
Defamation and Student Records
Long legal history
Diffamatus – evil enough for the church
to place on trial
1600s libel and slander were referenced
Defamation imputes immorality,
dishonesty, or dishonorable conduct to
another by writing or speaking
Libel v. Slander
Libel involves writing (and TV and
radio) and defamation
Slander involves speaking and
Public figures are often fair game for
libel and slander
Defamation in Schools
Teachers and administrators need to be
A matter of privilege exists – as in
privileged information
Student issues and personnel issues
Conditional versus absolute privilege
Good Faith
Protected if acting in good faith
Without malice
In answer to question
Believe information to be true
Reasonable grounds to believe
Information goes no further than
Hett v. Ploetz
Supreme Court of Wisconsin, 1963
Hett was a speech therapist who did not do a
wonderful job. He had the option of
resigning or being dismissed. He chose the
former and applied for another job.
Hett gave permission to check references –
Ploetz, the previous superintendent
Ploetz told the truth
Hett v. Ploetz
Hett sued Ploetz for libel and damaging
his ability to make a living
Court ruled against Hett
Said telling truth violates libel
Negative recommendation is
conditionally privileged
Desselle v. Guillory
Court of Appeals, Louisiana, 1981
Rumors existed in the high school about
coaches and teachers molesting
Counselor heard of the matter and
reported it to the principal – he would
Desselle v. Guillory
Big mess – confusing statements
Teacher sued counselor for defamation
Court found for counselor and allowed
attorney fees
Fees overturned on appeal
Long and short – qualified privilege
protects parents who share information
about teachers if some truth exists
Milkovich v. Lorain Journal Co.
Supreme Court of the United States,
Reporter wrote that the wrestling coach
lied under oath – in his opinion
Lower court said the article as an
opinion was protected under the 1st
Coach sued for defamation
Milkovich v. Lorain Journal Co.
After fifteen years of appeals and three
trips to the SC, it was found that no
privilege exists for opinion
Allowed coach to sue for damages
Richmond Newspapers v.
Virginia Supreme Court, 1987
Richmond Times Dispatch carried an
article about a disorganized teacher and
named her
Teacher sued for libel and was awarded
one million dollars for compensatory
Richmond Newspapers v.
Supreme Court (VA) agreed that libel
existed and teachers are not public
figures – therefore not required to
prove malice
Reduced award to $100,000 to reporter
and publisher
Student Records
Sensitive grounds
Category 1 and 2 (no longer to be kept
in different locations!)
Information not to be conveyed
“outside relevant educational
Proper release of records is required
FERPA, 1974
FERPA, 1974
Confidential, written release required
Parent and adult student inspections
Ease of location
Identified access of records
Record of access
Directory information release protocol
Fay v. South Colonie
US Court of Appeals, 2nd Circuit, 1986
Difficult case – divorced husband with
joint custody of children was not getting
school information
School did not give the information in
violation of FERPA
FERPA does not allow for damages, but
can under section 1983
Chapter 13
Sovereign Immunity
Long-standing legal tradition
Old English law – the King can do no
Has been held for a long time on a
variety of reasons – money and
precedent being chief
Even though sovereign immunity is
undergoing revision, it is generally held
for public schools as general welfare
Molitar v. Kaneland
Community Unit District #302
Supreme Court of Illinois, 1959
Through negligence of a bus driver there was
an accident and a bus exploded and burned
School system cited sovereign immunity
Court in Illinois eliminated sovereign
immunity from Illinois State Code
Later conditionally reinstated by legislature
Dollar v. Dalton Public Schools
Georgia Court of Appeals, 1999
Mother sued school district after child
fell from playground equipment and
broke her arm
Dismissed on immunity grounds in state
Lower and appeals court upheld
Lentz v. Morris
Supreme Court of Virginia, 1988
Student in Virginia Beach high school was in
PE class playing tackle football where he was
Sued teacher and system for damages citing
negligent supervision
Teacher and system claimed immunity for
acts of his own negligence
Court agreed – trial and Supreme Court of VA
Now, the confusion
Duke v. Grady Municipal Schools, U.S. Court
of Appeals, 10th Circuit, New Mexico, 1997
New Mexico case involving a teacher
dismissal case without due process
Teacher sued and the court ruled that a local
school board is not protected under the 11th
amendment for immunity because it is not an
arm of the state
Minton and Wood may add to confusion
(Board not immune – individuals may be)
Chapter 14
Certification, Contracts, and
Chapter Overview
Certification, Contracts, and Tenure
Education is a state function
Each state may set up its own
certification process for teachers and
revise them at any time
Must have no intent to discriminate and
must not be arbitrary
Early schools were poor and quality
varied greatly
Poor teacher training
Teacher training institutions in Europe in
the mid-1700’s
First American Normal school opened in
Lexington, Mass. in 1839, started by…
Not a good start
As John Swett said in 1872, certification
and licensure are needed to protect the
public from “charlatans, ignoramuses,
and humbugs” masquerading as
Ambach v. Norwick
U.S. Supreme Court, 1979
NY required US citizenship to be
Two otherwise qualified individuals
applied for certification and were denied
Lower court said “no can do”
SC reversed – on loyalty and promoting
civics being a function of education
Wardwell v. Cincinnati
U.S. Court of Appeals, 6th Circuit, 1976
Can a local school system require
residency within its corporate limits for
Wardwell lived outside city limits upon
being hired and refused to move
Sued under Equal Protection and lost 2X
Moral Character Required
Application of Bay, Oregon SC, 1963
Applicant had past felonies – denied
Erb v. Iowa, SC of Iowa, 1974
Had affair with another teacher;
husband showed up at Board meeting
with details
Board moved to revoke license
Erb v. Iowa
What did the State Board do?
What did the Court do?
What did State Supreme Court do?
Do you agree or not?
Guido from New Jersey is your contact
Semester of law devoted to contracts
In the US contracts range from a onepage statement to more than 100
pages of stipulations
Offer and acceptance
Must be competent persons
Must involve specific consideration
Must involve legal subject matter
Must be in writing
Fairplay School Township v. O’Neal,
Supreme Court of Indiana, 1891
1888 teacher was given oral contract to
teach in return for good wages
Not enforceable – too vague
Feldhusen v. Beach Public Schools,
North Dakota SC, 1988
Feldhusen was hired with the specific
provisions to obtain graduate credits
over contract period – and he did not
Contract was not renewed and he sued
Court disagreed with plaintiff
Generally, tenure is the “thing” to have
as a teacher
In Virginia, tenure is a higher ed
concept. Public ed uses the terms
annual contract and continuing contract
What does tenure provide?
All it means is that the system must provide
you with due process before dismissal
So, what are reasons for dismissal?
Just Cause
Scheer v Ottawa County
SC of Oklahoma, 1997
Connie Scheer was a marginal teacher
for three years (probationary period)
The Board decided not to issue her a
continuing contract after three years
Instead they offered her a temporary
position for one year
Scheer v Ottawa County
After the 4th year of teaching the
temporary contract was not renewed
She sued claiming she had taught 4
years and was eligible to receive tenure
District and SC upheld decision
She paid legal costs
SC of PA, 1959
Clara Santee started teaching in 1925
For 1956-57 she taught English and
math at a Junior High school
The following year she was transferred
to a sixth grade position – accepted
under protest
Santee saw this as a demotion
Appealed to Board, Superintendent of
Public Instruction, and to SC
Not a demotion
Santee paid legal costs
Collins v. Faith School Dist.
Interesting case, SC of South Dakota,
Richard Collins taught in the system for
29 years – currently 5th grade
Unofficial part of the curriculum, sex ed,
was reviewed when 2 boys asked a
question about homosexuality
Collins v. Faith School Dist.
He answered rather indiscreetly
School Board fired him following
complaints from parents about his
response as inappropriate for students
School Board directed the
Superintendent to start termination
Collins v. Faith School Dist.
Rather odd hearing ensued with the
Board voting to terminate for
Circuit court upheld the Board decision
State SC found no credible evidence to
dismiss for incompetence with one illadvised answer and overturned with
reinstatement of job and back pay
Willful refusal to obey some order by a
superior officer that is legal to give and
have obeyed
In Virginia, insubordination is cause for
immediate dismissal – it does not even
go through the grievance procedure
Courts uphold some reasons including:
Motive not established
No harm resulted from the act
Punishment did not equal the offense
The order was unreasonable
The order was beyond the authority of
the person to give, and
The order violated Constitutional rights
Gaylord v. Morton County
Court of Appeals of Kansas, 1990
Steve Gaylord went for a job interview
after being denied leave
His wife called in sick for him
He filled out a sick leave form post facto
The afternoon of the interview the
interviewer called his principal for a
recommendation – oopps!
Gaylord v. Morton County
Current principal told Steve to clear out
his desk and that termination
procedures would begin
Board voted to terminate
The district court found that the Board
acted properly
What did the appellate court say?
Termination of James Johnson
Minn. Court of Appeals, 1990
Interesting case
Teaching since 1967, 1970 in the
current district
Over the years he had a range of
evaluations from unsatisfactory to
above average
Termination of James Johnson
In 1987 things began to heat up
Three charges made for dismissal
The court made some interesting
recommendations – grades,
insubordination, and inefficiency
Both courts affirmed dismissal but not
on all the grounds mentioned
Morality clauses in contracts are
Involvement with students is a license
revoker in almost every state
Consenting relationships of adults are a
gray area
Offense of public sensibilities is the
rationale – CA life certificate revoking
Must show a nexus between conduct
and fitness to teach
Rulings can not be too vague or broad
The court cases would indicate that
homosexual or heterosexual conduct
may result in dismissal if activity is
detrimental to the school
Toney v. Fairbanks
Supreme Court of Alaska, 1994
David Toney taught in Idaho in 1980
and had relations with a student who
became pregnant in the 81-82 SY
Deal was worked out with the family
and with the school
Toney applied to teach in Alaska in 82
Toney v. Fairbanks
Toney misrepresented himself in the
application process
In 1992 the student called Fairbanks
school system and informed personnel
of the relationship
Board moved to terminate Toney
What did the lower court rule?
What about the SC?
Hopkins County v. Wood
SC of KY, 1986
This is stupidity to the max
Two tenured teachers (brothers) sold
MJ to 15 year-old girls
Brothers confessed in court and were
Board of Education heard about this
Hopkins County v. Wood
Teachers lied and said no involvement
even though they had signed affidavits
of their involvement – there is no limit
to stupidity!
Board moved to dismiss
Circuit court found in favor of Board
Appellate court found for teachers
SC of KY reversed appellate court ruling
Other Cases
Elvin v. Waterville, SC of Maine, 1990
4th grade teacher had an affair with a
10th grade boy at the feeder high school
SS investigated and teacher
subsequently fired – upheld
Other Cases
Gaylord v. Tacoma, SC Washington,
Homosexual teacher at high school
Confronted by students
Met with principal where teacher
admitted orientation
Principal moved for dismissal
Gaylord v. Tacoma, SC
Washington, 1977
Homosexuality to too vague without
actions and disruption of school
Teacher’s presence in the school
contributed to disruptive climate
Dismissal affirmed
Good Cause
Varies greatly over the country
Both sides of abortion
Discussing alternative lifestyles
As well as more traditional reasons
Abuse or RIF (Zoll case – again
stupidity showing common sense is not
all that common)
Chapter 15
Teacher Rights and Freedoms
Teacher Rights and Freedoms
There is a legal relationship between
teacher and employer
Constitutional rights as a citizen
Statutory regulations governing schools
Contractual conditions of employment
Academic Freedom
German origin – freedom to learn and
freedom to teach
Academic freedom is more an issue in
higher education in the US than it is a
public education issue
Regardless, the 1st amendment is the
“basic repository” of all our rights
First Amendment and Public
A little more narrowly focused
Free speech still exists
BUT, it can cost you your job
Different rules apply to to the
government as employer – if speech
curtails the operation of the
government than that speech can be
US Supreme Court, 1968
Teacher wrote a letter to the editor
opposing a tax increase
Teacher was dismissed
Long and short, teachers may take
open targets on matters of public
interest or concern
Givhan v. Western Line School
US Supreme Court, 1979
Teacher terminated for hostile, loud,
hostile, and arrogant communication
with principal in private conversations
Freedom of speech is guaranteed in
private communications – barring
Stroman v. Colleton School
US Court of Appeals, 4th Circuit, 1993
Upset teacher writes and circulates a
letter which ultimately calls for a “sickout” during the week of finals
Meets with superintendent next day and
is dismissed
Sues claiming 1st amendment rights are
violated as a matter of public concern
Lower court sides with Board
Appellate court agrees, mostly
Agrees that the majority of the letter is
public matter or concern, but the call to
an illegal action is not protected by free
speech but outweighed by public
interest in providing uninterrupted
Teacher Dress Policy
East Hartford Education Association v.
Board of Education, US Court of
Appeals, 2nd Circuit, 1977
Dress policy for men to wear ties
Teacher claimed violation of 1st
amendment rights and privacy
Teacher claimed three areas – quite
well, I must say
“If there is any protected interest in
neckwear, it does not weigh heavily on
the Constitutional scale.”
Court found dress codes are
What if there were no corresponding
codes for women – Title IX violation?
Daury v. Smith
US Court of Appeals, 1st Circuit, 1988
Sad story. Daury was a principal in
Mass. school system
Due to budget cuts and personnel
evaluations, Daury was demoted to a
grade leader
He started “going off” a bit – three
Daury v. Smith
After the third incident he was ordered
to see a psychiatrist before coming back
to school
Sued stating violation of privacy in 9th
and 14th amendments
Courts disagreed
Random, Suspicionless Drug
Tested in Knox County Education Association
v. Knox County Board of Education, US Court
of Appeals, 6th Circuit, 1998
Fourth amendment covers searches including
drug testing
Court had to weigh the individual’s privacy
with the government’s interest in securing
“safety-sensitive” positions
Court ruled testing is legal
Freedom of Religion
Cooper v. Eugene School District, SC of
Oregon, 1986
Oregon has a rule forbidding religious
garb while teaching
Janet Cooper became a Sikh and
donned the white clothes and turban
and explained her religious change
Cooper v. Eugene
Court examined if the law conflicted
with the Oregon Constitution
Court concluded that wearing religious
garb while teaching may endorse a
specific religion
Law did not forbid wearing religious
garb, just while teaching
In summary
Teacher rights are rather limited
As employees of government
As less protected by working for the
As making distinctions between public
concerns – interesting!
Chapter 16
Due Process Rights of Teachers
Teachers’ Due Process Rights
Founded in the Magna Carta signed by
King John at Runnymede – 1215
Today found in our 5th and 14th
Basically, if the federal, state, or local
government deprives you of life, liberty,
or property, due process must be
afforded you
Four Aspects of Due Process
Substantive due process
Procedural due process
Vagueness test
Irrationality and Presumptions test
Substantive Due Process
Comes from the word “substance” of
life, liberty, and property
Substantive rights can not be denied
without a fair hearing
Liberty and property interests form the
Liberty Interests
Liberty came deep in the French culture
– liberty, fraternity, equality
Noblest faculty of man – Rousseau
To act in one’s own best interest
Life, liberty, and the pursuit of ______.
Anything that inhibits one’s ability to act
in best interest – defamation, etc.
Property Interests
Did you read the Roth case? Property
interests can take many forms
Not a need, rather a legitimate claim
Madison said it best – man has a right
to his property and a property in his
rights (well said!)
Tenure is that property of rights
US Supreme Court, 1972
Wisconsin assistant professor on year-to-year
contract was not rehired supposedly for
comments anti-administration
Sued under 1st and 14th amendment
Lower and appellate court found for plaintiff
SC said there is no property or liberty right
protection for non-tenured teachers
Perry v. Sinderman
US Supreme Court, 1972
Professor in Texas – critical of
administration in move to 4-year college
Not rehired
Regents explained for insubordination
Not told reasons and not given a
Perry v. Sinderman
Claimed violation of 1st and 14th
amendment rights
Lower court disagreed
Appellate court agreed
US Supreme Court agreed with
appellate court – de facto tenure
Procedural Due Process
The previous cases dealt with substance
of 1st and 14th amendment rights – now
If you are accused of doing something
that costs you, should you be able to
explain and defend yourself?
That process is the essence of
procedural due process
Procedural Due Process
Dixon v. Alabama required
Notice of hearing containing the specific
charges, and
Opportunity to air both sides of the
issue in “fair play”
Several issues to consider
Procedural Due Process
Courts require procedural due process if
substantive constitutional interests are
Courts have gone as far a telling
institutions to rehire an individual if
procedure is not followed
Procedural Due Process
Two factors are elemental
Hearing and
One has to take place
The second must at least maintain the
appearance of
Hearing Issues
Balancing test
Before or after action
Pre or post deprivation
What standard and extent of proof is
Issue of fairness
Remember Hortonville? Can a school
board act as the agency and the judge?
Yes, it can
The legal system depends on justice
and the appearance of justice
Procedural Due Process
US Supreme Court, 1985
Security guard was hired in 1979 and
on the application checked he had not
been convicted of a felony
Background check indicated he had
been convicted of grand larceny
Notice of termination sent
Procedural Due Process
Post-facto administrative review indicated he
thought the conviction was a misdemeanor
Review approved firing (fired)
Referee recommended reinstatement (hired)
Commission upheld dismissal (fired)
District court turned over dismissal (hired)
Appellate court turned over (fired)
US Supreme Court agreed with appellate
court (toast)
US Supreme Court, 1976
Wisconsin case and education
14th amendment (due process) and
school board firing striking employees
Wis. Supreme court said due process
US Supreme Court disagreed
Vagueness Test
Vague – too vague, unclear as to
standard to be held
Reasonable person has difficulty
No doubt as to understanding by a
normal (reasonable) person
e.g. loyalty oaths
Loyalty Oaths
Subversive activities
Morality oaths
Too vague – equal application
Wieman v. Updegraff
US Supreme Court, 1952
Oklahoma case involving loyalty oaths
Joined organization
Unknowing association
Too vague
Irrationality and Presumptions
A rational connection between the fact
and the end must be presumed
If not, due process is denied
An irrebuttable presumption violates
due process (if A then B; A=B)
Permanent non-resident status is
irrebuttable and violates due process
Cleveland v. LaFleur
US Supreme Court, 1974
Two suits hit the court together (with
the second involving Chesterfield
Pregnant teachers required to quit, not
return for a determined period of time,
and not guaranteed a position
SC overturned lower court rulings and
held that arbitrary dates are
Must not give up property rights in job
for arbitrary, irrational concepts
Chapter 17
Discrimination in Employment
A Biggie!
A word to the wise is sufficient
A word to deficient is wise
Federal legislation has provided various
means to combat employment
discrimination beyond the rights in the
equal protection clause
Race discrimination
Sex discrimination
Sexual harassment
Religious discrimination
Title IX
Equal Pay Act
Age discrimination
Discrimination against persons with
Race Discrimination
Griggs v. Duke Power
USA v. State of South Carolina
Both US Supreme Court cases (71, 77)
Long history and difficult cases
Ruling that:
Belongs to racial minority
Qualified applicant for which employment was
Despite qualifications, rejected
Despite rejection position remained open
Race Discrimination
Hazelwood v. US, 1977
Wygant v Jackson Board of Ed, 1986
Taxman v. Piscataway, 96 (3rd c)
Difficult cases and issues
Sex Discrimination
1960’s started the issue
Title VII
Bell (1982)
Sexual Harassment
A demand that a subordinate grant
sexual favors in order to obtain or retain
a job
Quid pro quo
Hostile environment
Masson v. Dade County
Trautvetter v. Quick, 1990
Religious Discrimination
Civil Rights Act, 1964, Title VII
Ansonia v. Philbrook, 1986 – reasonable
Cowan v. Strafford – magic rock?
Equal Pay Act
Equal pay for equal duties where scales
exist and defensible
Age Discrimination
ADEA, 1967
At least 40, but less than 70
In 1986, at least 70 was removed
Wooden, 1991 – must identify specifics
Nassau v. Arline, 1987
Chalk, 1988
Chapter 18
Collective Bargaining
In Griggs v. Duke Power, the court held
that a plaintiff must prove intentional
In Griggs, the use of general aptitude
tests and a high school diploma were
found to be unrelated to the jobs for
which they were used.
According to Hazelwood, statistical disparity
constitutes a prima facie case of a pattern of
racial discrimination.
To comply with Federal affirmative action
policies, a school board may institute
preferential layoff schemes.
According to Trautvetter v. Quick, sexual
harassment charges can not be litigated if the
relationships are consensual.
Collective Bargaining
What an issue!
First, the research is mixed on the
Achievement – some indication that
controlling for SES, there is slightly
higher student achievement in states
where collective bargaining is allowed
Collective Bargaining
Salaries – significantly higher with
significantly better benefits
Accountability – somewhat higher
Teacher dismissal – significantly more difficult
to dismiss teachers in collective bargaining
Working conditions – significantly more
clearly defined, generally fewer duties and
those are usually paid
Tonight’s Work
Six groups explaining for the class:
The overview concept of collective
Norwalk Teachers Association case and
Anderson Federation of Teachers
Board of Ed. V. New Jersey Education
Association and Indiana State Teachers
Association v. Indianapolis
Six Groups
School Board of City of Richmond v.
Parham and the scope of bargaining
Kenai v. Kenai Education Association and
Collective and Individual Rights,
Constitutional Rights of Individuals, and
Abood v Detroit
Grunwald v. San Bernardino and City of
Madison v. Wisconsin Employment
Relations Commission

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