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  1. 1. CHAPTER 15– Copyright © 2005IMPORTANT LEGALITIES AFFECTING SCHOOLING IN AMERICA William KritsonisPAGE 78 All Rights Reserved / ForeverThis book is protected under the Copyright Act of 1976. Uncited Sources,Violators will be prosecuted. Courtesy, National FORUM Journals CHAPTER 15 IMPORTANT LEGALITIES AFFECTING SCHOOLING IN AMERICAKEY POINTS THE THIRTEEN FEDERAL JUDICIAL CIRCUITS AK WA VT ME MT ND MN NH OR WI NY MA ID SD MI CT RI WY IA OH NV NE NJ IL IN PA UT MO KY MD DE CA CO KS TN Washington, AR WV VA D.C. AZ OK Federal Court NM NC of Appeals HI SC MS AL GA LA Puerto TX Rico FL Guam and N. Marina Islands Virgin Islands
  2. 2. SCHOOLING (2002)PAGE 79CHAPTER 15–IMPORTANT LEGALITIES AFFECTING SCHOOL-ING IN AMERICAA. OVERVIEWChapter 15 presents information regarding important legalities affectingschooling in America. Specific content focuses on federal legislation, impor-tant court cases and decisions, and parts of the Constitution that affect educa-tion in America.B. KEY TERMS–DEFINITIONS – NONEC. SOME PRECEDING THOUGHTS1. Federal legislation affecting education. Land Ordinance of 1785 • first legislation passed at the national level that had an impact on edu- cation; • required one section of each township established in the Northwest Territory be reserved for the establishment of public schools. Northwest Ordinance of 1787 • expressed general commitment for education by the federal govern- ment; • stated that “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged”; • considered by many as the foundation for public education. Morrill Land Grant Act of 1862 • gave 30,000 acres of federal land to each state for each elected repre- sentative to Congress; • purpose of the land was to establish a college for agriculture and me- chanical arts; • eventual donation of 17 million acres of land.
  3. 3. CHAPTER 15– IMPORTANT LEGALITIES AFFECTING SCHOOLING IN AMERICA PAGE 80The Smith-Hughes Act of 1917• provided funds to states to train teachers in the area of vocational edu- cation;• primarily assisted high schools; however, some funds used in junior colleges;• helped establish an extensive network of vocational education in the country;National Defense Education Act of 1958 (Public Law 85-865)• passed after the launching of Sputnik;• primarily enacted as a defense action;• provided unprecedented amounts of federal money for public educa- tion;• emphasized educational improvement in the areas of science and for- eign languages.Vocational Education Act of 1963 (Public Law 88-210)• expanded federal support for vocational education;• main purpose was to assist states in maintaining, extending, and im- proving existing vocational education programs and to provide part- time employment for youths;• provided for $60 million during fiscal year 1964 and $225 million per year thereafter.Bilingual Education Act of 1964• provided funds for school districts to develop and operate special pro- grams for students with limited English-speaking skills;• 1974 amendment removed requirements that students in the program be from low income homes.Elementary and Secondary Education Act of 1965 (Public Law 89-10)• most extensive federal legislation passed dealing with public educa- tion;• focused public education efforts on children from poverty homes;• provided funds for library support;• established services for academic support and remedial instruction;• provided funding for research activities by universities;
  4. 4. SCHOOLING (2002)PAGE 81 • funded programs at state education agencies to support personnel training and planning. Economic Opportunity Act of 1965 • continued efforts at providing services to poor children; • funded Head Start programs. Rehabilitation Act of 1973 (Public Law 93-102) • basically civil rights legislation for the handicapped; • prevented discrimination against children and adults due to disabili- ties; • applied safeguards for school-age disabled children. Education for all Handicapped Children Act of 1975 (Public Law 94-142) • required the provision of a free, appropriate public education for all handicapped children; • mandated that all handicapped children have an Individualized Educa- tional Program (IEP); • required that handicapped children be educated with non-handicapped children as much as possible; • provided parents, students, and schools with due process safeguards; • required that parents be involved in the education of their handicapped children. Mandated that nondiscriminatory assessment practices be used with children. Department of Education Organization Act of 1979 (Public Law 96-88) • established the Department of Education.; • functions came from the Department of Health, Education, and Welfare. Education Consolidation and Improvement Act of 1981 (Public Law 97-35) • consolidated 42 programs into seven programs; • funding came from elementary and secondary block grant authority. Rehabilitation Amendments of 1984 (Public Law 98-221) • revised and expanded Rehabilitation Act of 1973 (Section 504); • provided for the Helen Keller National Center for Deaf/Blind.
  5. 5. CHAPTER 15– IMPORTANT LEGALITIES AFFECTING SCHOOLING IN AMERICA PAGE 82 Reauthorization of the Education of the Handicapped Act Amend- ments (Public Law 99-457) • reauthorized three-year programs under Public Law 94-142; • mandated services for children with disabilities, ages 3-5, by 1990-1991; • provided financial incentives to serve children 0-2 years with disabili- ties. The Drug-Free Schools and Communities Act of 1986 (Public Law 99-570) • authorized funding for FY 87-89; • part of Anti-Drug Abuse Act of 1986; • established programs for drug abuse education and prevention.2. Important court cases affecting education. Commonwealth vs. Hartment (1851) – the Pennsylvania Supreme Court ruled that the state constitution and school laws only establish minimum requirements and that schools could establish more stringent requirements, in this case, mandatory education. Springfield vs. Quick (1859) – the United States Supreme Court ruled that states could collect taxes and tax funds for public educational programs. Kalamazoo Case (1874) – the Michigan Supreme court ruled that the Kalamazoo school district could levy taxes to support high schools. Plessy vs. Ferguson (1896) – the United States Supreme Court upheld a Louisiana law that required railways to provide separate-but-equal facili- ties for white and black individuals. Attorney General of Michigan vs. Lowrey (1905) – the United States Supreme Court upheld the right of state legislature to make and change boundaries of school districts. Pierce vs. Society of Sisters (1925) – the United States Supreme Court ruled that state laws may require the attendance of children in school, but could not regulate whether the school is private or public. Cochran vs. Louisiana State Board of Education (1930) – the United States Supreme Court ruled that state funds could be used to purchase text- books for all school-age children, including those attending private, sectar- ian schools.
  6. 6. SCHOOLING (2002)PAGE 83 Illinois ex. rel. vs. Board of Education (1948) – the United States Supreme Court ruled as unconstitutional a school program that permitted students to attend religious instruction in school during school hours. Illinois ex rel. Mccollum vs. Board of Education (1948) – the United States Supreme Court ruled that school programs permitting religious instruction during school hours, and allowing students to leave their regular classes for the religious classes, was unconstitutional. Sweatt vs. Painter (1950) – the United States Supreme Court ruled that a black student could not be denied admission to the University of Texas Law School for the sole reason of race. Brown vs. Board of Education, Topeka, Kansas (1954) – the United States Supreme Court ruled that children could not be denied admission to public schools on the basic of race; ruling declared segregated public schools to be unconstitutional based on the Fourteenth Amendment to the Constitu- tion. Engel vs. Vitale (1962) – the United States Supreme Court ruled that a New York State law that required the reading of a 22-word, nondenomina- tional prayer unconstitutional. Abington School District vs. Schempp, Murray vs. Curlett (1963) – the United States Supreme Court ruled as unconstitutional a law that required the reading of 10 Bible verses and recitation of the Lord’s Prayer during school hours, on school grounds, conducted by school personnel. Epperson vs. Arkansas (1968) – a law forbidding the teaching of evolution was ruled unconstitutional by the United States Supreme Court. Green vs. County School Board (1968) – the United States Supreme Court declared that a “freedom of choice” plan in a previously segregated school district offers little likelihood for desegregation. The ruling required that an effective plan for desegregation be implemented. Pickering vs. Board of Education (1968) – teachers may express their opinions as long as the school’s regular operation is not disrupted. Tinker vs. Des Moines Independent Community School District (1969) – the United States Supreme Court ruled as unconstitutional the suspension of students wearing armbands or other symbolic expressions unless the wearing of such interferes with school. Swann vs. Charlotte-Mecklenburg Board of Education (1971) – federal court ruling upheld busing as a legitimate means for desegregating
  7. 7. CHAPTER 15– IMPORTANT LEGALITIES AFFECTING SCHOOLING IN AMERICA PAGE 84schools. It gave district courts wide discretion in remedying longstandingsegregated school systems.Pennsylvania Association for Retarded Citizens (PARC) vs. Pennsylvania(1971) – federal court required local schools to provide a free, appropriatepublic education for all school-aged, mentally retarded children.Board of Regents of State Colleges vs. Roth (1972) – after a specified pro-bationary period, teachers have a property interest in continued employ-ment.San Antonio Independent School District vs. Rodriquez (1973) – federalcourt upheld a state funding model where local property taxes are used toprovide a minimum educational program for all students.Sloan vs. Lemon (1973) – the United States Supreme Court ruled as un-constitutional a law allowing for partial reimbursement by the state for tu-ition paid by parents sending their children to private schools.Cleveland Board of Education vs. Lefleur (1974) – board of education mayestablish leave policies for pregnant teachers, but these policies may notcontain arbitrary leave and return dates.Milliken vs. Bradley (1974) – the United States Supreme Court, in a five tofour decision, overturned lower court rulings that required the busing ofchildren between Detroit and suburban school districts to desegregate theDetroit system.Baker vs. Owen (1975) – the United States Supreme Court ruled that astatute allowing for reasonable corporal punishment was constitutional aslong as certain procedural rights were afforded.Hortonville District vs. Hortonville Education Association (1976) – in adue process hearing, a school board may be the impartial body conductingthe hearing.Washington vs. Davis (1976) – under-representation of a group in the workforce does not, in itself, prove unconstitutional employment discrimina-tion, but the employer in this situation must prove that hiring has not beendiscriminatory.Wolman vs. Walter (1977) – the United States Supreme Court ruled thatstates may supply secular texts, standardized tests, diagnostic speech, hear-ing and psychological services, and guidance and remedial services pro-vided on religiously neutral territory to religious, private schools.
  8. 8. SCHOOLING (2002)PAGE 85 Steelworkers vs. Weber (1979) – employers (including school districts) may use affirmative action plans to increase the number of minority em- ployees. Battle vs. Commonwealth (1980) – Third Circuit Court of Appeals ruled that some handicapped children should be afforded extended school year services in cases where significant regression would occur during the sum- mer. Board of Education vs. Rowley (1982) – the United States Supreme court ruled that Public Law 94-142 guaranteed the right of disabled children to a minimally appropriate educational program, not a program designed to maximize the educational performance of students. Firefighters vs. Stotts (1984) – in affirmative action programs, government units may not ignore seniority unless the minority candidates who benefit have personally experienced discrimination. New Jersey vs. T.L.O. (1985) – the United States Supreme Court ruled that while students had Fourth Amendment Rights relative to search and seizure, schools could use “reasonable suspicion” as a reason for searches rather than “probable cause.” Spring Branch Independent School District vs. Stamos (1985) – the Texas Supreme Court upheld the “no-pass no-play” rule in Texas requiring stu- dents to meet certain academic standards before being eligible for ex- tracurricular activities. Day vs. South Park Independent School District (1985) – this case, which will likely disturb educators, upheld the right of a school district to termi- nate an employee simply because the employee had used the employee grievance procedure. District 27 Community School Board vs. The Board of Education of the City of New York (1986) – the court ruled that a child with Acquired Im- mune Deficiency Syndrome (AIDS) could be considered handicapped un- der Section 504 of the Rehabilitation Act of 1973, and therefore eligible for certain protections under the law. Jager and Jager vs. Douglas County School District and Douglas County Board of Education (1987) – this case resulted in an ambiguous opinion that made it unconstitutional for clergy to give a pregame invocation at a high school athletic event. The decision left the door open for other than clergy to give the invocation.
  9. 9. CHAPTER 15– IMPORTANT LEGALITIES AFFECTING SCHOOLING IN AMERICA PAGE 86 Edwards vs. Aguillard (1987) – the United States Supreme Court upheld a lower court’s decision that the Louisiana law, the Balanced Treatment for Creation-Science and Evolution-Science Act, was unconstitutional. School Board of Nassau County vs. Arline (1987) – dismissing a teacher because of physical impairment or contagious disease is unconstitutional. Hoenig vs. Doe (1988) – in this case, the United States Supreme Court ruled that schools had to keep a child with emotional problems in the placement pursuant to the individualized educational program (IEP) unless the parents and school agreed to a change, or until the due process proce- dures for changing placement were carried out. Lehnert vs. Ferris Faculty Association (1991) – employees who are not union members cannot be required to pay dues used for political purposes unrelated to collective bargaining agreements.3. Important United States Supreme Court desegregation cases related to the public schools. Case Decision Brown vs. Board of Edu- The doctrine of separate cation of Topeka (1954) but equal in education is a violation of the Fourteenth Amend- ment. Green vs. County School Local school boards Board of New Kent should immediately County (1968) take whatever steps are necessary to achieve a unitary system. Swann vs. Charlotte- Transportation of stu- Mecklenburg Board of dents to opposite-race Education (1971) school is permissible to achieve desegregation. Keyes vs. School District Proof of intent to segre- No. 1 (Denver) (1973) gate in one part of a dis- trict is sufficient to find the district to be segre- gated and to warrant a district-wide remedy. For purposes of defin- ing a segregated school,
  10. 10. SCHOOLING (2002)PAGE 87 blacks and Hispanics may be considered to- gether. Milliken vs. Bradley In devising judicial (1974) remedies for desegrega- tion, the scope of the desegregation remedy cannot exceed the scope of the violation. Dayton Board of Educa- Judicially mandated de- tion vs. Brinkman (1977) segregation plans can- not exceed the impact of the segregatory prac- tices. Table continues Table continued Case Decision Board of Education of Desegregation decrees Oklahoma City Public are not intended to op- Schools vs. Dowell erate in perpetuity, and (1991) can be dissolved when a district has made good faith effort to comply and to the extent practi- cal has eliminated the vestiges of past discrim- ination. Freeman vs. Pitts (1992) Lower courts can relin- quish supervision of a school district under de- segregation decree in incremental stages be- fore full compliance has been achieved in every area of school opera- tions. Missouri vs. Jenkins Once the effects of (1995) legally imposed segre- gation have been elimi-
  11. 11. CHAPTER 15– IMPORTANT LEGALITIES AFFECTING SCHOOLING IN AMERICA PAGE 88 nated, the goal of de- segregation plans need not be to maintain racial balance but to return control to state and lo- cal authorities. Any re- segregation of neigh- borhood schools that may result is not uncon- stitutional.4. Summary of important major civil rights statues affecting education. Statute Major Provision Civil Rights Act of 1866, Provides all citizens 1870 equal rights under the 42 U.S.C. § 1981 law regardless of race. Civil Rights Act of 1871 Any person who de- 42 U.S.C. § 1983 prives another of his/her rights may be held liable to the in- jured party. Civil Rights Act of 1871 Persons conspiring to 42 U.S.C. § 1985 and deprive another of 1986 his/her rights, or any person having knowl- edge of any such con- spiracy, are subject continues Table to any action to recover damages. Table continued Statute Major Provision Civil Rights Act of 1866, Courts may award rea- 1870 sonable (as amended) attorney fees to the pre- 42 U.S.C. § 1988 vailing party in any ac- tion arising out of the above acts and Title VI of the Civil Rights of 1964.
  12. 12. SCHOOLING (2002)PAGE 89 Civil Rights Act of 1964 Prohibits discrimination Title VI on the 42 U.S.C. § 2000(d) basis of race, color, or national origin. Equal Pay Act of 1963 Prohibits sex discrimi- 29 U.S.C. § 206(D) nation in pay. Civil Rights Act of 1964, Prohibits discrimination Title VII in employment on the 42 U.S.C. § 2000(e) basis of race, color, reli- gion, sex, or national origin. Age Discrimination in Prohibits discrimination Employment Act of 1967 against any individual 29 U.S.C. § 621 with respect to employ- ment unless age is a bona fide occupational qualification. Education Amendments Prohibits sex discrimi- of 1972, Title IX nation in any education 20 U.S.C. § 1681 program or activity re- ceiving federal financial assistance. Rehabilitation Act of Prohibits sex discrimi- 1973 nation against any “oth- (as amended) erwise qualified handi- 29 U.S.C. § 791 capped individual.” Equal Educational Op- Prohibits any state from portunities Act of 1974 denying equal educa- 20 U.S.C. § 1703 tional opportunities to any individual based on his/her race, color, sex, or national origin. Americans with Disabili- Prohibits discrimination ties Act of 1990 against persons with 42 U.S.C. §12112 disabilities. Table continues
  13. 13. CHAPTER 15– IMPORTANT LEGALITIES AFFECTING SCHOOLING IN AMERICA PAGE 90 Table continued Statute Major Provision Individuals with Disabili- Individuals with dis- ties abilities must be guar- Education Act of 1990 anteed a free appropri- 20 U.S.C. § 1400-1485 ate education by pro- grams receiving federal financial assistance. Civil Rights Restoration Amends the Civil Act of 1991 Rights Act of 1964, the 42 U.S.C. § 1981 et seq. Age Discrimination in Employment Act of 1967, and the Ameri- cans with Disabilities Act of 1990 with regard to employment discrim- ination.5. Important U.S. Supreme Court cases affecting teachers’ rights. Case Decision Indiana ex rel. An- Tenure statutes provide derson vs. Branch qualifying teachers with (1938) contractual rights that cannot be altered by the state without good cause. Keyishian vs. Board Loyalty oaths that make of Regents (1967) mere membership in a sub- versive organization grounds for dismissal are unconstitutionally over- board. Pickering vs. Board Absent proof of false state- of Education (1968) ments knowingly or reck- lessly made, teachers may not be dismissed for exer- cising the freedom to speak on matters of public inter- est.
  14. 14. SCHOOLING (2002)PAGE 91 Board of Regents vs. A nontenured teacher does Roth (1972) not have a property right to continued employment and can be dismissed without a statement of cause or a hearing as long as the em- ployee’s reputation or fu- ture employment have not been impaired. Table continued Table continues Case Decision Perry vs. Sindermann Teacher may not be dis- (1972) missed for public criticism of superiors on matters of public concern. Cleveland Board of School board policy requir- Education vs. Le ing that all pregnant teach- Fleur (1974) ers take mandatory leave is unconstitutional. Hortonville Joint A school board may serve School District No. 1 as the vs. Hortonville Edu- impartial hearing body in a cation Association due process hearing. (1976) Washington vs. Davis To sustain a claim of dis- (1976) crimination, an employee must show that the employ- er’s action was a deliberate attempt to discriminate, not just that the action resulted in a disproportionate im- pact. Mount Healthy City To prevail in a First School Amendment dismissal case, District vs. Doyle school district employees (1977) must show that the conduct was protected and was a
  15. 15. CHAPTER 15– IMPORTANT LEGALITIES AFFECTING SCHOOLING IN AMERICA PAGE 92 substantial and motivating decision not to renew the contract, and the school board must prove that it would have reached the same decision in the ab- sence of the protected con- duct. United States vs. Use of the National Teach- South Carolina ers Examinations both as a (1978) requirement for certifica- tion and as a factor in salary determination serves a legitimate state purpose and is not unconstitutional despite its disparate racial impact. Connick vs. Myers The First Amendment (1983) guarantee of freedom of ex- pression does not extend to teachers’ public comments on matters of personal in- terest (as opposed to mat- Table continues ters of public concern).Table continued Case Decision Cleveland Board of A teacher who can be dis- Education vs. Laud- missed only for cause is en- ermill (1985) titled to an oral or written notice of charges, a state- ment of the evidence against him or her, and the opportunity to present his or her side prior to termina- tion.
  16. 16. SCHOOLING (2002)PAGE 93 Garland Independent Teachers can use the inter- School District vs. school mail system and Texas State Teachers school mailboxes to dis- Association (1986) tribute union material. Wygant vs. Jackson Absent evidence that the Board of Education school board has engaged (1986) in discrimination or that the preferred employees have been victims of discrimina- tion, school board policies may not give preferential treatment based on race or ethnicity in layoff deci- sions. School Board of Nas- Persons suffering from sau County vs. Arline contagious diseases are (1987) considered handicapped persons, and discrimination against them based solely on fear of contamination is considered unconstitutional discrimination against the handicapped.6. Important U.S. Supreme Court cases affecting students’ rights. Case Decision Tinker vs. Des School officials cannot lim- Moines (1969) it students’ rights to free expression unless there is evidence of a material dis- ruption or substantial disor- der. Goss vs. Lopez (1975) For suspensions of less than 10 days, the student must be given an oral or written notice of charges, an explanation of the evi- dence against him or her, and the opportunity to re- but the charges beforecontinues Table an
  17. 17. CHAPTER 15– IMPORTANT LEGALITIES AFFECTING SCHOOLING IN AMERICA PAGE 94 objective decision maker.Table continued Case Decision Wood vs. Strickland Students may sue school (1975) board members for mone- tary damages under the Civil Rights Act of 1871. Ingraham vs. Wright Corporal punishment does (1977) not constitute cruel and un- usual punishment under the Eighth Amendment and does not require due pro- cess prior to administration. Board of Education, Censorship by the school Island Trees Union board acting in a narrowly Free School partisan or political manner District vs. Pico violates the First Amend- (1982) ment rights of students. Pyler vs. Doe (1982) The denial of a free public education to undocumented alien children violates the equal protection guarantees of the Fourteenth Amend- ment. Bethel School Dis- School boards have the au- trict vs. Fraser (1985) thority to determine what speech is inappropriate and need not tolerate speech that is lewd or offensive. New Jersey vs. T.L.O. School officials are not re- (1986) quired to obtain a search warrant or show probable cause to search a student, only reasonable suspicion that the search will turn up evidence of a violation of law or school rules. Hazelwood School School officials may limit District vs. Kuhlmier school-sponsored student
  18. 18. SCHOOLING (2002)PAGE 95 (1988) speech as long as their ac- tions are related to a legiti- mate pedagogical concern. Honig vs. Doe (1988) Disruptive handicapped children may be expelled but materials must be kept in their current placement until an official hearing is held. Table continued Table continues Case Decision Franklin vs. Gwinnett The sexual harassment of a (1992) student may be a violation of Title IX for which mon- etary damages can be sought. Vernonia School Dis- Special needs can justify trict vs. “suspicionless” random Acton (1995) searching of students.7. Important parts of the United States Constitution. Amendment I – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the free- dom of speech, or of the press; or the right of the people peaceably to as- semble, and to petition the government for the redress of grievances. Amendment IV – The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall be issued, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment V – No person shall be held to answer for a capital or other- wise infamous crime, unless on a presentment of indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in time of war or public danger; nor shall any person be subject to the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be de-
  19. 19. CHAPTER 15– IMPORTANT LEGALITIES AFFECTING SCHOOLING IN AMERICA PAGE 96 prived of life, liberty or property, without due process of law; nor shall pri- vate property be taken for public use, without just compensation. Amendment X – The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Amendment XIV – Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal pro- tection of the laws. Section 2. Representatives shall be apportioned among the several states according to their respective number, counting the whole number of per- sons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representative in Congress, the Executive and Judi- cial officers of a State, or the members of the Legislature thereof, is denied any of the male inhabitants of such state, being 21 years of age, and citi- zens of the United States, or in any way abridged, except for participation in rebellion, or the crime, the basis of representation therein shall be re- duced in the proportion which the number of such male citizens shall bear to the number of male citizens 21 years of age in such state.D. DISCUSSION QUESTIONS AND EXERCISES – NONEE. REVIEW ITEMS – NONE