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  1. 1. Copyright © 2005 William Kritsonis CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLING All Rights Reserved / Forever PAGE 177 This book is protected under the Copyright Act of 1976. Uncited Sources, Violators will be prosecuted. Courtesy, National FORUM Journals CHAPTER 5 LEGAL ISSUES IN AMERICAN SCHOOLING KEY POINTS 1. The Tenth Amendment of the United States Constitution gives states the responsibility for public education. 2. State constitutions provide for public education. 3. Local boards of education get their rights over education through state gov- ernments. 4. Most court decisions have strongly upheld the separation of church and state provision in the Constitution. 5. The First Amendment to the United States Constitution is the key to sepa- ration of church and state decisions. 6. The only involvement of students with religion condoned by the courts has been their participation in activities outside the school without school cred- it. 7. Students are protected under the First Amendment, such as freedom of ex- pression, as long as this expression does not create distractions. 8. Most courts have ruled that schools have a right to keep order in the school and inspect school property such as students’ lockers. 9. Most court rulings have upheld the rights of schools to impose certain pre- requisites for extra-curricular activities.10. Teachers have the same basic protections as other citizens under the Consti- tution, but these rights may be interpreted differently.11. Schools cannot discriminate in hiring practices or termination practices against teachers.
  2. 2. SCHOOLING (2002)PAGE 178CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGA. OVERVIEWThe focus of this chapter is on the legal issues involved in public education.The legal basis of education, the U.S. Constitution, is discussed, followed bylegal issues related to students’ rights and teachers’ rights. Also discussed isthe role of religion and public education.B. KEY TERMS–DEFINITIONSCONSTITUTION - The Constitution of the United States is the foundation forour entire legal and governmental systems. Education is an issue that the Con-stitution does not specifically address. Since the Constitution does not delegatepowers over education to the federal government, nor prohibit such powers tothe states, public education in this country has become a state responsibility.SCHOOL BOARD - Local boards of education are created by state statutes forthe purposes of administering local school districts. They are legally the gov-erning body for the school district; they can act only as a body; individually,members have no power; primary responsibilities are goal setting and policy-making. The boards derive their powers from the state constitution, statestatutes, and court decisions.LAWS:AGE DISCRIMINATION - passed in 1967, the Age Discrimination in Em-ployment Act prohibits discrimination against individuals between the ages of40 and 70 years of age.COMMERCE CLAUSE - empowers Congress with powers to regulate com-merce. Congress uses this to justify involvement in labor/union actions.DESEGREGATION - the tearing down of the dual system of public educationbased on race in America; the principle of “separate but equal” was nullified inwhich the court said that, in regard to public schools, separate is “inherentlyunequal” and the lower courts should act “with all deliberate speed” to deseg-regate public schools.DISCRIMINATION - the denial of rights and privileges because of race, eth-nic identification, sexual orientation, religion, age, social class, politics, or dis-abilities.
  3. 3. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLING PAGE 179ESTABLISHMENT CLAUSE - the first part of the First Amendment requiresthat the government neither advance nor inhibit religion, in effect erecting awall between church and state.EXPULSION - this is a disciplinary action in which students are barred fromattending school for an extended period of time.FIFTH AMENDMENT - protects citizens from being deprived of life, liberty,or property and prohibits requiring an individual to testify against himself/her-self. Provides protection for teachers related to outside work.FIRST AMENDMENT - provides freedom of religion principle; basis for sep-aration of church and state.FOURTEENTH AMENDMENT - mandates that states may not deny equalprotection to citizens. Most widely used as basis for school litigation.FOURTH AMENDMENT - protects citizens from unwarranted search andseizure; basis for decisions regarding search and seizure of students.GENERAL WELFARE CLAUSE - allows Congress to collect taxes to pro-vide for the general welfare of citizens; Congress has used this as a rational forgetting involved in education.LEMON TEST - this is a three-criteria test stemming from Supreme Court cas-es, Lemon vs. Kurtzman (1971). The United States Supreme Court ruled uncon-stitutional a 1968 Pennsylvania statute that permitted direct financial support(state aid) to parochial schools. The statute authorized reimbursement to bepaid directly for certain educational services provided by these schools. Eligi-ble reimbursements were teacher salaries, textbooks, and instructional materi-als that were used specifically for secular purposes. The three criteria are: a. have a secular purpose; b. have a primary effect that neither advances nor inhibits religion; c. avoid excessive governmental entanglement with religion.LOCAL EDUCATION AGENCY (LEA) - local school districts. This is the ba-sic educational unit in all states.NINTH AMENDMENT - states that enumeration of certain rights in the Con-stitution does not deny other rights. Teachers and students have based theirrights related to physical appearance and privacy on this amendment.NO PASS NO PLAY - laws stating that students must meet academic prerequi-sites to retain eligibility for participation in extracurricular activities. Texas re-quires a 70% average in all classes.
  4. 4. SCHOOLING (2002)PAGE 180RELEASED TIME - a practice in the 1960s that allowed students to voluntari-ly attend various religious activities during the school day. This is still allowedas long as the activities occur off the school campus, the students’ attendance isvoluntary and does not receive official school credits.RIGHT TO EDUCATION - the right for students to participate in the Ameri-can educational system has been unquestioned for most children. However,children with disabilities and other health-related problems, as well as thosefrom minority populations, have not always been able to gain equal access topublic schools.SEARCH AND SEIZURE - what is legal? What might be proper in one dis-trict might be considered unconstitutional in a nearby district. What is consid-ered legally proper at one time might be considered a violation of student rightsat a later period.SECULAR CURRICULUM - (temporal or worldly) some parents have con-tested various courses and course material for their children on religiousgrounds. They have been successful in getting their children exempted fromcertain courses, such as sex education and ROTC and from specific class as-signments in certain courses when alternative activities can meet course re-quirements.SEPARATION OF CHURCH AND STATE - basis for this was the FirstAmendment.STATE EDUCATION AGENCY - to carry out the legislative provision of thestate relative to public education.SUSPENSION - a disciplinary action that includes removing students fromschool activities for a short period of time and is usually imposed when the stu-dents’ infractions do not merit expulsion. In pursuing these actions of disci-plinary measures, the schools must assure that all requirements for due processare met.TENURE - a teacher’s benefit that makes it difficult to terminate them; usuallyprovided after several years of successful teaching experience. Permanent jobstatus granted to employees following successful completion of a probationaryperiod.C. SOME PRECEDING THOUGHTS1. What is the constitutional basis for public education? The Constitution does not delegate powers over education to the U.S. gov- ernment, nor prohibit such powers to states; public education in America has become a state responsibility (Tenth Amendment).
  5. 5. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLING PAGE 1812. What is the role of state government? States have readily accepted the primary responsibility for providing pub- lic education to its citizens and have responded by including provisions in their state constitutions for public school programs.3. What are school boards, and how are they involved in public education? School boards are unique governing units. They are involved in education through goal setting, policy making, and administration of local school dis- tricts. They derive their power from the state constitution, state statutes, and court decisions.4. What is the basic governance structure of State Departments of Edu- cation? STATE BOARD OF EDUCATION CHIEF STATE SCHOOL OFFICER STATE DEPARTMENT OF EDUCATION Special Technical Accreditation/ Finance Programs Assistance Recognition5. What is the basis for separation of church and state? The First Amendment to the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exer- cise thereof.” The Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws;” the Fourteenth Amendment has been used to apply the First Amendment provisions to education. Since 1970, the Supreme Court has applied a tripartite test in assessing most establishment clause claims. To withstand scrutiny under this test, governmental action must: a. have a secular purpose;
  6. 6. SCHOOLING (2002)PAGE 182 b. have primary effect that neither advances nor impedes religion; c. avoid excessive governmental entanglement with religion. Often called the Lemon Test (Lemon vs. Kurtzman, 1971).6. What has been the general trend in the court’s ruling on issues such as prayer in public schools, released time for religious activities, and reli- gious influences on school curriculum? The First Amendment contains two phrases dealing with religion and edu- cation. In Everson vs. Board of Education, the Supreme Court ruled the First Amendment was intended to put up a wall between church and state. In the 1960s, the Supreme Court issued two precedents–stating a decision that schools sponsoring daily Bible reading and daily prayer violated the Establishment Clause of the First Amendment. The general trend has been against setting aside time for religious activities in school. In West Virginia State Board of Education vs. Barnette, the court ruled that students could be exempted from making statements of allegiance to the state. Using this ruling, federal courts have concluded that students refus- ing to stand and recite the pledge cannot be forced to do so if participation violates their religious or other personal beliefs and freedom of expression.7. How did the Tinker case affect freedom of expression for students? In 1969 the court ruled that students in school and out of schools are citi- zens who have the protection of the U.S. Constitution. This decision did not give students free reign. Students have to stay within the confines of proper school discipline. Any disruptive behavior can be banned. Freedom of expression does not extend to defamatory, inflammatory, or obscene and vulgar expression. Summary: a. schools can make and enforce reasonable rules even if these could en- croach on freedom of expression; b. armbands, buttons, and other symbolic expressions are protected by the Constitution as long as they are not inflammatory; c. a reduction of students’ rights must be reasonable and focus on the ac- complishment of an educational objective; d. denying rights must be based on objective predictions of disruptions.8. What do the courts say about dress and grooming codes for students? For the most part, the courts have upheld the rights of students to wear what- ever clothing they want as long as it did not create a distraction. These rulings
  7. 7. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLING PAGE 183 are based on the Fourteenth Amendment. School officials wishing to imple- ment dress codes must ensure that their purpose is to prevent distractions from the educational program. Hairstyles are still left up to the lower courts. So far, the Supreme Court has not heard any appeals regarding this issue.9. What are the important court cases dealing with desegregation of pub- lic schools? a. Brown vs. Board of Education, Topeka on May 17, 1954–removed dual system of education; b. Griffin vs. County School Board of Prince Edward County in 1964–un- constitutional to issue vouchers to parents of white students and to close schools in order to circumvent Brown vs. Board of Education de- cision; c. Green vs. County School Board of New Kent County in 1968–if free- dom-of-choice plans actually led to desegregated schools, they were constitutional; if not, they were not; d. Swann vs. Charlote-Mecklenburg Board of Education in 1971–the court ruled on four issues: 1. Using a strict mathematical ratio system to determine the number of white and black students in an entire district was not the intent of the court. 2. One-race schools can exist as long as the district can prove that the assignment of pupils is nondiscriminatory. 3. Neighborhood schools should be abolished in order to reverse de jure segregation. (De jure here means an intentional and deliberate separation of students on the basis of race or ethnic origin.) 4. Bussing should be considered as a major tool with which to de- segregate schools.10. How do teachers’ rights differ from the rights of other citizens? Teachers, like all citizens, enjoy the protection of the First Amendment for freedom of speech. However, in some cases, the freedom of speech en- joyed by teachers is somewhat restricted. On personal appearance for teachers, the courts have occasionally ruled against dress codes for teach- ers, citing that it violates freedom of expression, but in most cases it has upheld dress codes for teachers. On Academic Freedom, teachers can use materials that they have not been instructed to use as long as those materi- als have not been barred. Academic freedom includes the rights of the pro- fessor, teacher, or speaker and the rights of the learner or listener to pursue
  8. 8. SCHOOLING (2002)PAGE 184 knowledge without external restrictions that would inhibit free inquiry. Teachers can use simulation methods. Teachers have the same rights as students and citizens as guaranteed by the U.S. Constitution. Although the courts have taken personal liberties of teachers into consideration when de- termining freedom of speech, they frequently have cited the interest of the public as having priority over these individual liberties.11. What facts are necessary to show age or racial discrimination in hir- ing practices? a. the person belongs to a special minority group; b. the person applied for and was qualified for the position; c. the person was rejected in spite of his/her qualifications; d. the position remained open and the employer sought other applicants.12. For what reasons can tenured teachers be dismissed? a. incompetence; b. immorality; c. insubordination; d. unprofessional conduct; e. neglect of duty; f. unfitness to teach; g. need to reduce professional staff. Tenured personnel may be dismissed for cause. School boards and institu- tions of higher education are required to state specific reasons for dis- missal and grant a hearing.13. What are the due process rules for dismissing a teacher? a. the teacher must be given timely, detailed, written notice of the charges; b. the teacher must be accorded a hearing and sufficient time to prepare; c. the teacher has a right to be represented by legal counsel; d. the teacher may present written and oral evidence, including witnesses; e. the teacher may cross-examine witnesses and challenge evidence; f. the hearing is to be conducted before an impartial body. The U.S. Supreme Court has ruled (in Hortonville District vs. Hortonville Edu- cation Association) that, under the U.S. Constitution, a school board may be that impartial body unless bias can be proven.
  9. 9. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLING PAGE 185 Source: See Hortonville District vs. Hortonville Education Association, 426 U.S. 482 (1976); Bernard, J.M. (1994 April). Ethical and legal dimensions of supervision. ERIC Digest, pp. 1-4. Accessi- ble on the Internet via ERIC at Adapted with special permission.D. DISCUSSION QUESTIONS AND EXERCISES–NoneE. REVIEW ITEMSTrue-False1. The foundation for our legal system is the United States Constitution.2. The PARC court case focused on racial desegregation.3. The U.S. Constitution specifically addresses education.4. Teachers’ rights are exactly the same as personal rights of other citizens.5. It is very difficult to prove racial discrimination in hiring/terminating teachers.Multiple Choice1. The Amendment to the U.S. Constitution which gives states the right to deal with issues not mentioned in the Constitution is _______. a. Fifth b. Tenth c. Fourteenth d. Eighteenth e. none of the above2. Generally, schools are allowed to search a locker if _______. a. lockers are not locked with personal locks b. there is reasonable suspicion c. the student is present d. the student gives permission3. The Barnette decision dealt with _______. a. freedom of expression b. student grades c. teachers’ rights d. termination policies