School Law D017 Study Guide: Key Historical Perspectives

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lOMoARcPSD|30545138 School Law D017 Study Guide for the Objective Assessment Unit 1 – Introduction – N/A Unit 2 – History and Structure of Schools Module 1: Historical Perspectives of Schooling 1. The Common School Movement – who, where, what, & why? (Page 11 Link) Periods of unparalleled expansion and reform in American public schooling. Originally started for the lower class children to learn letters, skill, and trades in the Old World. Old World Orphans led to creation of asylums, reform schools, orphanages, etc. Urbanization / Industrialization led to more population, and larger lower class. This increased a need for charity schools. Horace Mann is the father of the common school movement. Began in 1837 Massachusetts after becoming the first secretary of the Board of Ed. 2. Compulsory Attendance Laws – federal and state legislation (Page 12 Link) Compulsory attendance laws are those that state legislatures mandate for attendance in public schools. Mass. 1852: Children between 8-14 must attend school for 12 weeks per year, six of which have to be consecutive.

lOMoARcPSD|30545138 Urban School Reform - Professionalization and the Science of Ed: The Rural School Problem & Complexities of National Reform: Redefining State Responsibility in Education: Creating Citizens and Workers - Curriculum Reform and the Aims of Education in a Democracy: 3. Landmark Events in Modern Public Schooling – what, when, and impact? a. Compulsory Attendance Act 1852 - first law requiring student participation in schooling. Parens patriae - prevents parents from keeping their children home from school for agricultural reasons An educated citizenry is of paramount importance to perpetuate a democratic society. Experience throughout history has shown that those societies with high levels of illiteracy and ignorance among their people are most susceptible to domination and tyranny. Mass education is not only the best and surest means of preservation of liberty, but it is also essential to the economic and social welfare of the people. b. National Defense Education Act (NDEA) 1958 - Soviet Satellite, Sputnik, being launched into space was used as a cause to create the National Defense Education Act, an education bill disguised as a defense bill. The House usually turned down education bills because they were deemed socialist. The Act establishes the legitimacy of federal funding of higher education, made substantial funds available for low cost student loans, boosted public and private

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lOMoARcPSD|30545138 colleges and universities. Mostly aimed at science, math, foreign languages, but also expanded libraries and other services. Reagan promoted these ideologies. Results: 1960 college students was 3.6 million. in 1970 rose to 7.5 million. c. The Elementary and Secondary Education Act (ESEA) 1965- Brought education into the forefront of the national assault on poverty, and represented a landmark commitment to equal access to quality education. Driven by Lyndon B. Johnson’s “War on Poverty.” Is an extensive statute that funds primary and secondary education, emphasizing high standards and accountability. Initially given 5 fiscal years. Government re-authorizes the act every five years since. Title I : program created by Dept. of Ed. to distribute funding to schools with a high percentage of students from low-income families. Accounts for 5/6 of the total funds authorized by ESEA. Designed to close the gap between low and middle income families. Title II : support school libraries and textbook acquisition for private and public schools, as well as some funded preschool programs. Title III : “Adult Education Act'' supplementary educational centers and services would receive funding for additional support services to bolster school attendance. Mandated educational programming even when school was not in session, and provided for special education services. Bilingual services were later added.

lOMoARcPSD|30545138 Title IV : Allocated $100 million over a five year period to fund educational research and training. Title V : Supplemented grants created under Public Law 874 to state departments. Title VI : provided definitions and limitations related to the law. Dedicated to education of individuals with disabilities Title VII : bolstered the vocational education act of 1963 Title VIII : provided a definition of gifted and talented and established the Teacher Corps. Title IX : comprehensive federal law that protects individuals from sex-based discrimination in schools or other federally funded programs. d. A Nation at Risk 1983 - delivers a wake up call for our education system. Highlighted problems within education system, illiterate high school students, plummeting performance, international competitors surpassing us, rising tide of mediocrity and idleness e. The Improving America’s Schools Act 1994 - President Clinton’ reauthorization. Educational reforms.

lOMoARcPSD|30545138 f. No Child Left Behind 2002 - President Bush’s reauthorization. Required states to test students in reading and mathematics. g. Every Student Succeeds Act 2015 - President Obama’s reauthorization. Replaced NCLB, modified provisions to standardized testing. 4. Case Law on Civil Rights – Desegregation of Schools a. Plessy v Ferguson Upheld Louisiana state law that allowed for separate but equal accommodations for white and colored races. Plessy bought a first class ticket, refused to move to a different car, was thrown off the train and arrested. Louisiana law required equal but separate coaches. Plessy was 7/8 white, and 1/8 black.But according to Louisiana law he was considered black, and tried for his crimes. Plessy lost in trial. Plessy went to the Louisiana Supreme Court, lost. Plessy went to the US Supreme Court, and lost. Plessy: segregation treats everyone the same way, but ignores the sense of inferiority or implied insults. b. Brown v Board of Ed of Topeka 1954. Opened the door for desegregation and the modern civil rights movement. Segregated schools were inherently unequal. Oliver Brown, father of Linda (3rd grader) who was forced to take a longer bus ride to a further away, all black, school. Doll Test: little children of color identified white dolls as better than black dolls, and when asked which doll they identify with, they would choose the black doll. Proves a sense of

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lOMoARcPSD|30545138 inferiority based upon segregation. Separate but equal facilities were found to be inherently unequal. 5. Schooling – Public v Charter v Private Charter schools - are given additional flexibility to innovate while at the same time being held accountable for student achievement. A significant difference is that the charter is a performance contract. Charter schools must meet the requirements specified in its charter, or be shut down. First emerged in the 1990s. Homeschooling - all states authorized home education in 1990. Most common reason given by parents is dissatisfaction with the environment in schools, or religious concerns. Private School - funded by grants, donations, student tuition, not subject to fed laws Public School - funded through taxes and is subject to all federal and state laws Module 2: Legal Systems and Structure 1. Role of Federal and State Government in Schools State - legal control of public education. The 10th amendment stipulates that the powers not delegated to the US by Constitution, are reserved to the states. State legislature is bicameral - Senate and the House of Representatives. State legislature has absolute power to make laws governing education. Performance based accreditation.Local School Boards of Education. State legislatures can restrict school boards.

lOMoARcPSD|30545138 Federal - General Welfare Clause, congress can lay and collect taxes, duties, imposts and excises, to pay the debts and provide for general welfare of the US. Provides substantial federal support for research and instructional programs in science, math, reading, special education, career and technical, and bilingual education. Commerce Clause, congress is empowered to regulate commerce with foreign nations, among the several states, and with indian tribes has affected operations of public schools. Obligations of Contractual laws. The Department of Education administers more than 100 different programs ranging from services for Native American students to awarding grants to improve teacher quality. 2. Sources of Law Funding Laws… ESEA (1965) - supplied funds for compensatory education programs for low income students. Bilingual Education Act (1968) - provides funding for students with language needs Education for All Handicapped Children Act (1975) - provides funding for students with special needs. McKinney Vento Homeless Assistance Act (1987) - provides services to students experiencing homelessness

lOMoARcPSD|30545138 NCLB (2001) - improving the performance of schools, no child would be left in a failing school. Implemented accountability systems with higher performance, and annual testing. Healthy Hunger Free Kids Act (2010) - requires improved nutritional standards for lunch ESSA (2015) - designed to provide more leeway to states to determine accountability standards. Narrowing the achievement gap between students. States must administer state- wide testing to receive funding. Civil Rights Laws… Section 1983 of Civil Rights Act of 1871 - private right to bring suit for damages against any person who impairs rights secured by the US Constitution and Fed Laws. Used to obtain damages from school officials, and school districts for abridgements of federally protected rights. Section 1981 of the Civil Rights Act of 1866 - prohibits race or ethnicity discrimination in making and enforcing contracts and in the terms and conditions of contractual relationships, and allows for both compensatory and punitive damages. Title VI of the Civil Rights Act of 1964 - prohibits discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance Title VII of the Civil Rights Act of 1964 - prohibits employment discrimination on the basis of color, origin, sex, religion.

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lOMoARcPSD|30545138 Age Discrimination in Employment Act of 1967 - prohibits age-based discrimination Title IX of the Civil Rights Act of 1964 - prohibits sex discrimination against participants in education programs and activities receiving federal financial assistance. Section 504 of the Rehabilitation Act of 1973 - prohibits discrimination in individuals with disabilities in programs and activities receiving federal financial assistance. Americans with Disabilities Act of 1990 - prohibits discrimination of individuals with disabilities in both private and public entities by ensuring equal opportunity for persons with disabilities in employment, state and local government services, public accommodations, commercial facilities, and transportation. State Legislation - prosecutes parents who do not send children to school. Distribution of state funds for charter schools and voucher programs, Federal and State Regulations - supplements to the law that are legally binding. Help explain how the law should be interpreted and implemented. State Depts of Ed draft regulations. Regulations become administrative law or administrative code. 3. Judicial System Judicial Review - a genuine controversy must be initiated by a party with standing and a private right of action to sue. Lower courts also apply precedent when deciding new cases. Requires using precedent when deciding similar cases. Court Procedures - File a complaint with the court clerk.

lOMoARcPSD|30545138 Period of Discovery - both parties gather, review, and analyze evidence Presenting Evidence - ability to persuade judge and jury that they have been wronged Remedies - injunctions such as temp restraining orders. Declaratory relief states rights must be respected. Reinstatement of fired teachers to previous positions. Removal of disciplinary charges from school records. Monetary compensation. Attorney Fee reimbursement. Appeals Process - reviews written record of the evidence but does not hold a hearing for witnesses to be questioned. Class Action Lawsuits - brought on behalf of all similarly situated individuals, must satisfy four rules of civil procedure to specify prerequisites of class members’ commonality of injury/circumstance. Court Structure - Courts will not intervene in a school related controversy if the dispute can be settled in an administrative forum. Subject Matter Jurisdiction - limits the type of cases that a court can consider. Federal courts can only accept cases if there is a federal question involved (constitutional). Child injury on the playground at school, negligence, goes to state court. Lawsuits pertaining to First Amendment violations of free speech being denied, goes to federal court. Geographic Jurisdiction - restricts a court from deciding cases outside of the physical boundaries assigned to that court.

lOMoARcPSD|30545138 Unit 3 – Race, Religion, and Instruction in Public Schools Module 3 – Desegregation in Schools 1. 14 th Amendment – Equal Protection States in part that no state shall deny to any person within its jurisdiction equal protection of the laws. Similarly situated individuals are treated the same. 2. Separate but Equal Doctrine Emanated from 1849 Supreme Court of Massachesetts that legalized the concept in permitting racial segregation in public schools of Boston. Roberts vs. City of Boston. An African American child was compelled by school board rule to attend an elementary school designated for black children, even though other elementary schools were closer to her home. 3. De Jour vs De Facto Segregation De jure - arises by law or by the deliberate act of school officials (unconstitutional) De Facto - results from economic or social factors and doesn’t violate the Constitution 4. Three legal remedies to segregation Strict Scrutiny - used to judge classifications related to origin, race, alienage

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lOMoARcPSD|30545138 Intermediate Scrutiny - judge classifications related to gender and illegitimacy Rational Basis - judge classifications related to sexual orientation, age, disability 5. Landmark cases a. Plessy v Ferguson Upheld Louisiana state law that allowed for separate but equal accommodations for white and colored races. Plessy bought a first class ticket, refused to move to a different car, was thrown off the train and arrested. Louisiana law required equal but separate coaches. Plessy was 7/8 white, and 1/8 black.But according to Louisiana law he was considered black, and tried for his crimes. Plessy lost in trial. Plessy went to the Louisiana Supreme Court, lost. Plessy went to the US Supreme Court, and lost. Plessy: segregation treats everyone the same way, but ignores the sense of inferiority or implied insults. b. Brown vs Board of Education 1954 . Opened the door for desegregation and the modern civil rights movement. Segregated schools were inherently unequal. Oliver Brown, father of Linda (3rd grader) who was forced to take a longer bus ride to a further away, all black, school. Doll Test: little children of color identified white dolls as better than black dolls, and when asked which doll they identify with, they would choose the black doll. Proves a sense of inferiority based upon segregation. Separate but equal facilities were found to be inherently unequal. c. Brown II vs BOE Issued in 1955 , decreed that the dismantling of separate school systems for black and white students could proceed with “All deliberate speed.”

lOMoARcPSD|30545138 d. Swann v Charlotte-Mecklenburg Board of Education Addresses Four Issues 1) Use of Racial Quotas 2) Elimination of One-Race Schools 3) Racial Gerrymandering of Attendance Zones 4) Use of Busing for Remedial Purposes Module 4 – Religion in Public Schools 1. 1 st Amendment a. Establishment Clause Prohibits the government from establishing a religion “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” b. Free Exercise Clause Protects citizens right to practice their religion as they please “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

lOMoARcPSD|30545138 2. Constitutional limits of religious expression for teachers and for students. How are they different? Establishment Clause - challenge the governmental advancement of religion Free Exercise Clause - challenge secular government regulations that hinder practice of religious beliefs. 3. Landmark Cases a. Lemon v Kurtzman Concluded: Neither a state nor the fed govt can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. 3 Part Test to determine if govt acts violate the Establishment Clause 1) Have Secular (religious) purpose 2) Have a primary effect that neither advances nor impedes religion 3) Avoid excessive governmental entanglement with religion b. Wallace v Jaffree (1985) Students have a free exercise right to engage in private devotional activities in public schools so long as they do not interfere with regular school activities. c. The Good News Club v Milford Allowed a private Christian Org. to hold its meetings in a NY public school after school hours. Milford denied the Good News Club Request under its community use policy that allows civic and rec groups to use the school, but not for religious purposes. Milford claimed the Good News Club was practicing religious worship and instruction.

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lOMoARcPSD|30545138 Result: Supreme court rules that if a public school establishes a limited forum for community meetings during non-instructional time, it cannot bar religious groups, even though elementary students attending the school are the central participants in the devotional activities. d. Engel v Vitale The state cannot hold prayers in public schools, even if it is not required and not tied to a particular religion. NYS Board of Regents wrote and authorized a voluntary nondenominational prayer that could be recited by students at the beginning of each day. Engel (New Hyde Park), a parent, sued the district over “Almighty God, we acknowledge our dependence upon thee, and we beg thy blessings upon us, our parents, our teachers, and our country.” The Supreme court ruled unconstitutional public school sponsorship of religion. Module 5 – Curriculum and Instruction 1. Limitations of State Powers in Education a. State role - Education is a direct function of State Govt b. Federal role - Education is not a direct function of the Fed Govt. c. Agencies of State and Federal - ??? 2. ESEA – evolution of ESEA and American education policy a. Purpose b. ESEA 1965

lOMoARcPSD|30545138 1965- Brought education into the forefront of the national assault on poverty, and represented a landmark commitment to equal access to quality education. Driven by Lyndon B. Johnson’s “War on Poverty.” Is an extensive statute that funds primary and secondary education, emphasizing high standards and accountability. Initially given 5 fiscal years. Government re- authorizes the act every five years since. i. IASA Improving America’s Schools Act - Bill Clinton . Included reforms to Title I: providing extra help to disadvantaged students and holding schools accountable for their results at the same level as other students. Reforms to Charter Schools. Safe and Drug-Free Schools. Eisenhower Professional Developments, Increases in Bilingual and immigrant education funding. Impact Aid. Educational Technology focus. ii. NCLB No Child Left Behind - George W Bush. Included reforms… Title I provisions applying to disadvantaged students. Supported standards based education reform. Assessments in basic skills. States had to give assessments at all grade levels for Federal Funding. iii. ESSA Every Student Succeeds Act - Barack Obama. Designed to provide more leeway to states to determine accountability standards. Narrowing the achievement gap between students. States must administer state-wide testing to receive funding c. Entitlements i. Title I-a

lOMoARcPSD|30545138 program created by Dept. of Ed. to distribute funding to schools with a high percentage of students from low-income families. Accounts for 5/6 of the total funds authorized by ESEA. Designed to close the gap between low and middle income families. ii. Title I-c a subset of Title I provides funding specifically to support the learning and development of students who are classified as “Migrants”. The support is very similar to those provided to Title I -a – but targeted specially to migrant education. iii. Title I-d a subset of Title I provides funding specifically to support “neglected, delinquent, or at-risk youth. This typically incorporates: dropout prevention, academic recovery, transition to post-secondary for at-risk youth, truancy, etc. iv. Title II support school libraries and textbook acquisition for private and public schools, as well as some funded preschool programs. v. Title III “Adult Education Act” supplementary educational centers and services would receive funding for additional support services to bolster school attendance. Mandated educational programming even when school was not in session, and provided for special education services. Bilingual services were later added. vi. Title IV Allocated $100 million over a five year period to fund educational research and training.

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lOMoARcPSD|30545138 3. Curriculum Based Case Law a. Plyer v Doe Reasoned that illegal aliens and their children, though not citizens of the US or Texas, are people “in any ordinary sense of the term” and, therefore, are afforded fourteenth amendment protections. Since the state law severely disadvantaged the children of illegal aliens, by denying them the right to an education, and because Texas could not prove that the regulation was needed to serve a “compelling state interest” the court struck down the law. b. Lau v Nicols The SF School district was integrated. As a result, they absorbed 2856 students of Chinese ancestry who were not proficient in English. Only about 1000 with supplemental ELL courses. Classes were taught exclusively in English. Lau was a non-English speaking student in the school and filed a lawsuit. Result: school systems failure to provide supplemental instruction to students of Chinese ancestry who spoke no English, constituted a violation of the California Education Code, as well as the Civil Rights Act of 1964 because it deprived students of an opportunity to participate in the public education program. c. Castenada v Pickard Father claimed the school district was discriminating against his children because of their Mexican descent. The classroom his children were being taught in was segregated, using a grouping system for classrooms based on criteria that were both ethnically and racially discriminatory. Also claimed the school district failed to establish

lOMoARcPSD|30545138 sufficient bilingual education programs. Court system ruled in favor of the School district. The Supreme Court ruled in favor of Castenada, as a result, the court system established a 3 part assessment for determining how bilingual education programs meet the req’s for the Equal Education Opportunity Act of 1974. 1) The program must be based on sound educational theory. 2) The program must be implemented effectively with resources for personnel, instructional materials, and space. 3) After a trial period, the program must be proven effective in overcoming language barriers / handicaps. Unit 4 – Students Rights Module 6 – Constitutional Protections for Students 1. First Amendment and Freedom of speech/press Congress shall make no law … abridging the freedom of speech. Restricts government regulation of private speech, but does not limit or regulate government speech. A government entity such as a public school / university has the right to speak for itself. School rules and regulations that affect speech are valid unless there is a clear abuse of power and discretion by the school. Rules or Regs can be challenged 1) Ultra Vires: beyond the board’s legal authority 2) Vague or overly broad

lOMoARcPSD|30545138 3) Violate one of several constitutional prohibitions such as freedom of expression, religion, privacy, due process, or equal protection. Freedom of speech is not absolute when… 1) Incitement of disruption and breach of peace : Court explained that speech and expression in the public school setting can be curtailed if a school official can “reasonably forecast that the speech of expression would cause material and substantial disruption of the school.” 2) Defamation : 3) True threats of violence and fighting words: 4) Obscenity: 2. Landmark Cases – Student Speech a. Tinker v Des Moines (1969) students and parents decided to publicize their objections to hostilities in Vietnam, and indicated their support for a truce by wearing black armbands to school. Principals were aware, and passed a rule prohibiting students from wearing the armbands. Any student who wore the band would be suspended. Court decided that this was an infringement on students' constitutional rights, and that there was no “forecast of substantial disruption” with school activities. Result: School admins would have to demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom. (Incitement of Disruption) b. Bethel Sch Dist v Fraser (1986)

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lOMoARcPSD|30545138 Student made a lewd speech of sexual innuendos at a student assembly. He was suspended by the school. Court did not revert to the Tinker “Disruption Test.” The court was more concerned with defining the difference between a “political message” and a sexually provocative speech that had no political message at all. Court ruled in favor of the school's suspension, as they have to uphold standards of appropriateness in the school. Result: Gave school authorities the power to determine and censor lewd, vulgar, or indecent student expression. (Non-Disruptive Political Speech is Constitutionally Protected; lewd / vulgar speech with no political message cannot find protection under the US Constitution) c. Hazelwood Sch Dist v Kuhlmeier (1983) Principal deleted two articles from the school newspaper. First described three students’ experiences with pregnancy, Second discussed the impact of divorce. Court ruled that educators do not offend student expression by exercising editorial control over school-sponsored activities as long as there are legitimate pedagogical concerns. Results: Gave school authorities the right to censor student-created content in forums not established for student expression, such as student newspapers. (Schools do not have to fund activities where student expression presents educational concerns) d. Morse v Frederick (2002) The Supreme Court ruled they will give substantial constitutional leeway to teachers and administrators in dealing with drugs in school. Whether the issue pertains to searches for drugs. A student unfurled a large banner at a school event bearing the phrase “Bong

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lOMoARcPSD|30545138 Hits 4 Jesus.” An offending student who had refused to comply with the principal’s order to remove the banner was suspended for 10 days. Principal interpreted the banner as an advocate for smoking marijuana / other drugs. It also promoted drug use as a good thing. Result: Gave school authorities the right to suppress student expression promoting illegal activities, such as illegal drug use. (Student speech celebrating illegal drug use at a school was an offense that did not require the forecast of material and substantial disruption. Danger is far more serious / palpable due to immediate student harm) 3. Fourth Amendment and Search and Seizure 4th Amendment: The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and warrants shall issue, 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. Five Components of the 4th Amendment 1) It enunciates and protects the right of people “to be secure in their persons, houses, papers and effects.” 2) Protects persons from unreasonable searches and seizures 3) Search cannot be instituted without the government showing probable cause or giving evidence that a search is necessary. 4) Search must be specific describing the place to be searched and the articles to be sized.

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lOMoARcPSD|30545138 5) A magistrate or judge is interposed between the individual and the government, requiring that the government justify with evidence the necessity of the search. 4. Landmark Cases - Student Discipline and Search & Seizure a. New Jersey v T.L.O. TLO 14 year old student caught smoking cigarettes in the bathroom. Teacher brought two students to Admins, who questioned each of them. TLO denied allegations, and the second student admitted to smoking. Admin demanded TLO hand over her purse for a search. Admin found cigarettes, and rolling papers. Admin knew rolling papers was for marijuana. Searched TLO further, found a small plastic bag containing grass-like substance and items that could be drug paraphernalia, a pipe, wad of money, piece of paper with the name of students who owed her money. Court held that the search of TLO was reasonable, and just given the circumstances. Result: 4th Amendment does apply to schools, and in order for searches to be constitutionally valid, reasonableness must prevail. Searches conducted on Two Levels 1) Consideration of whether the search is justified at its inception (reasonable suspicion) 2) Reasonableness of the search itself, must be excessively intrusive in light of the age and sex of the student, and nature of infractions. (The legality of a search of a student should depend on the reasonableness, under all circumstances, of the search) b. Horton v Goose Creek Independent School District (1978)

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lOMoARcPSD|30545138 Goose Creek brought in drug sniffing dogs in an attempt to deal with a rampant drug and alcohol problem. Dogs came unannounced, and on a random basis, if dogs indicated a car or locker had substances, the students were required to open the vehicles and lockers for a search. If a dog indicated a student was carrying a substance, they were brought to the office for a search. Result: dog sniffing students was deemed an intrusive and unreasonable search. Search did not have any individual suspicion that a particular student was carrying drugs. Court stated the sniff of the lockers and cars did not constitute a search, and that school officials may search students if they have reasonable cause, but the intrusion on dignity and personal security that goes with the type of canine inspection of the students person involved in this case cannot be justified by the need to prevent abuse of drugs and alcohol when there is no individualized suspicion, and we hold it unconstitutional. c. Vernonia Sch Dis v Acton Official investigation led to the discovery that high school athletes in the Vernonia School District participated in illicit drug use. Officials were concerned that drug use increases the risk of sports-related injuries. Consequently, the school district adopted the Student Athlete Drug Policy which authorizes random urinalysis drug testing of its student athletes. James Acton, a student, was denied participation in his school’s football program when he and his parents refused testing. Result: Reasonableness of the search is judged by balancing the intrusion on the 4th amendment against the promotion of legitimate governmental issues. High school

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lOMoARcPSD|30545138 athletes under state supervision after school are subject to greater control than free adults. Privacy interests compromised by urinary samples do not outweigh the governmental concern of minors safety under state supervision. 5. Fifth and Fourteenth Amendment and Due Process The Fourth and Fourteenth Amendments of the U.S. Constitution together dictate that neither the federal government nor a state can "deprive any person of life, liberty, or property, without due process of law." The U.S. Supreme Court has said that in order to give an individual procedural due process as required by the federal constitution, three basic factors must be present: the person must have proper notice, must be given an opportunity to be heard, and must be given a hearing that is conducted fairly. As a result, the student must be made aware of the infraction, provided the opportunity to present evidence, and have the evidence fairly considered prior to suspension. Fourteenth Amendment: most widely invoked constitutional provision in school litigation. Contains Two Important Clauses… Equal Protection Clause - no state shall deny to any person within its jurisdiction the equal protection of the laws. Similarly situated individuals must be treated the same. Due Process Clause Procedural Due Process- ensures fundamental fairness if the government threatens an individual’s life, liberty or property. Procedure >Notice of the Charges > Opportunity to refute charges > Fair Hearing

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lOMoARcPSD|30545138 Substantive Due Process - shield the individual against arbitrary governmental action that impairs life, liberty or property. 6. Landmark Cases – Due Process a. Dixon v Alabama Manifestly established that procedural due process applied to public schools and other governmental agencies and deviations from the minimal fairness required therein may void any disciplinary action taken against students. A segregated black college expelled six students for unspecified reasons. Presumably because of their participation in demonstrations during a civil rights movement. The college, acting in- parent-locos (in place of absent parent) expelled the students without a hearing. (end of the doctrine that colleges and universities can act in loco parentis to discipline or expel their students) Module 7 – Student Care and Protection 1. FERPA Federal funds may be withdrawn from any education agency or institution that (1) fails to provide parents access to their child’s education records or (2) disseminates such information (with some exceptions) to third parties without parental permission. At age 18 students may exercise the rights previously guaranteed to their parents.

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lOMoARcPSD|30545138 2. Landmark Case - FERPA a. Gonzaga University v Doe Supreme Court overturned an award of damages to a student for an alleged FERPA violation in connection with a private university’s release to the state education department records of an unsubstantiated allegation of sexual misconduct, which resulted in the student being denied an affidavit of good moral character required to become a public school teacher. Court held that individuals cannot bring damage suits for FERPA violations because the law does not create privately enforceable rights; congress must create such rights in unambiguous terms. 3. HIPAA Congress enacted HIPAA in 1996 to, among other things, improve the efficiency and effectiveness of the health care system through the establishment of national standards and requirements for electronic health care transactions and to protect the privacy and security of individually identifiable health information HIPAA Disclosures 1- Disclosure for Treatment 2- Disclosure to family, friends, and others involved in an individuals care 3- Disclosure to prevent a serious and imminent threat 4. Student Safety

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lOMoARcPSD|30545138 a. In Loco Parentis the teacher has the authority and the duty to guide, correct, and punish the child in the accomplishment of educational objectives. The teacher is the substitute for the parent while the child is in school and for those endeavors which bear directly on the school. The teacher, however, does not have unlimited control over the student and, of course, neither does the parent for that matter. 5. Landmark Case – Student Safety a. People v Dukes Student was charged with criminal possession of a switchblade knife found in her bag during an administrative search with metal detectors at a high school. The student sought to have the evidence suppressed. A team of special police officers from the Central Task Force for School Safety had posted signs at the high school announcing the search. The court determined that the knife could be used as evidence and the search was minimally intrusive. 6. Student Discipline – Student Codes of Conduct School boards have implemented zero tolerance policies due to concerns of student safety. 7. Corporal Punishment a. Eighth Amendment (Cruel and unusual punishment) Corporal punishment has been defined as “the infliction of bodily pain as a penalty for disapproved behavior.”

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lOMoARcPSD|30545138 Today more than half the states prohibit corporal punishment. Those states that have no statutes regarding corporal punishment are governed by the common law right of school personnel to reasonably punish students. The theory is that the individual interests of the parent and the child may be subordinated to the interests of the state in good conduct and decorum in the schools. Parental permission is not necessarily required. In the absence of state statutes to the contrary, teachers or administrators may paddle students in spite of opposition from the parents. Where school officials spanked a pupil over the parent’s protest, the federal court held for the school, saying that even though the parents maintain general control of their child’s discipline, nevertheless, the public school “has a countervailing interest in the maintenance of order in the school sufficient to sustain the right of teachers and school officials to administer reasonable corporal punishment. 8. Landmark Case – Corporal Punishment a. Ingraham v Wright 1) seriousness of the offense, 2) the attitude and past behavior of the child, 3) the nature and severity of the punishment, 4) the age and strength of the child, 5) the availability of less severe but equally effective means of discipline. 9. Child Abuse and Treatment Act (1962)

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lOMoARcPSD|30545138 In 1974 the Child Abuse Prevention and Treatment Act was enacted. Provided federal financial assistance to the states that had implemented programs for identification, prevention, and treatment of instances of child abuse and neglect. All 50 states plus the District of Columbia, Puerto Rico, and the Virgin Islands have enacted various forms of child abuse, and neglect statutes. Child Abuse - the physical or mental injury, sexual abuse, negligent treatment, or maltreatment of a child under the age of 18 by a person who is responsible for the child’s welfare under circumstances which indicate that the child’s health or welfare is harmed or threatened thereby, as determined in accordance with regulations prescribed by the Secretary.” 10. Zero Tolerance Zero Tolerance - strict rules limiting administrative discretion in punishment of students are usually imposed for possession of weapons or offenses related to drugs and alcohol Module 8 – Title IX and Gender Equity 1. Title IX – what, when, and impact (1972) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

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lOMoARcPSD|30545138 Title IX permits separation of students by sex in contact sports. However, school districts can determine whether to allow coed participation in contact sports in their efforts to provide equal opportunity. Title IX Protections Sports Participation: substantial proportionality, history & continuing practice, full & effective accommodation, protective equipment / uniforms, locker rooms and practice facilities, allocation of travel, years of experience, compensation and quality coaches, institutional housing and dining facilities and services, nature of publicity, marketing and media services, game and practice time scheduling, facilities for and access to athletic training, medical services, academic tutoring services for student athletes, institutional support services for athletic program, recruiting resources provided to athletic programs Sexual Harassment & Sexual Violence: schools implement strategies to safeguard students from such behavior by school personnel, or peers. Hazing, Bullying, & Cyberbullying: Pregnant & Parenting Student Athletes: LGBTQ Students: Retaliation Against Reporters of Title IX Violations: Title IX Coordinators: 2. Sexual Discrimination

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lOMoARcPSD|30545138 1) Provide interscholastic sports opportunities for both sexes in terms of numbers of participants that are substantially proportionate to the respective enrollments of male and female students 2) Show a history of expanding sports programs for the underrepresented sex 3) Provide enough opportunities to match the sports interests and abilities of the underrepresented sex. 3. Sexual Harassment “The unwanted imposition of sexual requirements in the context of a relationship of unequal power” Employee to Student Harassment: an official who has the authority to address the alleged discrimination must have actual knowledge of the inappropriate conduct and then fail to ameliorate the problem. Failure to respond must amount to deliberate indifference to the discrimination. (Franklin vs Gwinnett County) (Gebser vs Lago Vista) Student to Student Harassment: whether the school board acted with deliberate indifference to known acts of harassment, and whether the harassment was so severe, pervasive, and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit. Courts will consider if someone with authority to act has knowledge of the harassment. Violators can be sued for sexual battery, or intentional infliction of emotional distress. Criminal charges may be filed against perpetrators where force is used or minors are involved. (Davis vs Monroe County)

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lOMoARcPSD|30545138 4. Equity of access Students should be granted equal access in all aspects of education regardless of their sex, and sexual orientation. 5. Deliberate indifference The school's actions are clearly unreasonable. The school intentionally discriminates against a student. The school permits discrimination that is actually known. Unit 5 – Teachers’ Rights Module 9 – Constitutional Protections for Teachers 1. Fifth and Fourteenth Amendment Rights a. Due Process right provided under the Fifth and Fourteenth Amendments of the U.S. Constitution. Just like students, public school employees always have the right to due process, even in situations in which case law has set specific restrictions on other rights. When could a non renewed employee have a right to procedural due process? - If the policies and practices create a valid claim to reemployment (Property) - If nonrenewal significantly damages reputation or standing, foreclosing other employment opportunities (Liberty Right) - If nonrenewal violates fundamental constitutional guarantees like freedom of expression. (Liberty Right)

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lOMoARcPSD|30545138 - If state law or local district policies provide additional due process rights b. Property Rights Courts have established that school employees’ interest in public employment may entail significant “property” and “liberty” rights necessitating due process prior to employment termination. In order to establish a valid property right an individual must have more than an abstract need or desire for a position; there must be a legitimate claim of entitlement grounded in state laws or employment contracts. c. Liberty Interests Fourteenth Amendment liberty rights encompass fundamental constitutional guarantees. To establish infringement of a liberty interest, the court held that the teacher must show that the employer’s action 1) resulted in damage to his or her reputation and standing in the community and 2) imposed a stigma that foreclosed other employment opportunities. 2. First Amendment – Freedom of Expression - Teachers like students do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate. (Tinker vs Des Moines 1969) - Whether the teachers speech involved a matter of public concern (Pickering vs BOE 1968) - If a teachers speech involves both a public concern, and a private concern then the decision rests on the balancing of interests. (Connick vs Myers 1983) - Whether the teacher’s exercise of speech is the motivating factor in a school boards decision to penalize the teacher. (Mt. Healthy vs Doyle 1977) 3. Landmark Cases –

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lOMoARcPSD|30545138 a. Pickering v Board of Ed (Public Concern) Supreme Court held that freedom of speech, while not absolute in all circumstances, is nevertheless sufficiently strong to require the state to show a compelling state interest in order to overcome a teacher's right to speak out on issues of public concern. Court equated teachers' right of free speech with that of other members of the general public to criticize and comment on public policies and issues. A teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. b. Connick v Myers (Public and Private Interest) The balancing of public and private interests with regards to freedom of speech was given new clarity. Connick explains that First Amendment Free speech is protected when the employee speaks out on matters of public concern. Speech or expression exercised by a public employee concerning matters of private or personal interest and not as a citizen upon matters of public concern is not protected by the 1st amendment. Connick and Pickering combined to form a two step process… 1- the initial inquiry is whether the speech is a matter of public concern 2- if the speech is found to be a matter of public concern, then the court must apply the Pickering Balancing Test. he interest of the public employee as a citizen in commenting on matters of public concern must be weighed against the interests of the state, as an employer, to promote effective and efficient public service. c. Garcetti v Ceballos (Pursuant to Duty 2006) Further explained the public employer/employee freedom of speech relationship. Government employers, like private employers, need a significant degree of control over

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lOMoARcPSD|30545138 their employee’s words and actions because without it, there would be little chance for the efficient provision of public services. Garcetti Rule: employing a balancing test that weighs the employer’s interest against the employee’s rights of speech and expression. 4. Employee Dress Codes and Personal Grooming A school board can consider an individual's appearance as one of the factors affecting his suitability for a particular position. If a school board can correctly conclude that a teacher’s style of dress or plumage has an adverse impact on the educational process, and if that conclusion conflicts with the teacher’s interest in selecting his own life style, we have no doubt the interest of the teacher is subordinate to the public interest. 5. Freedom of Religion as applied to teacher All persons have the right of religious freedom as guaranteed by the first amendment. However, religion as with other freedoms, is not without limits. Religious freedom of teachers will be sustained by the courts so long as the exercise of the freedom does not encroach on the rights of students or is not deleterious to the good conduct of the school. Module 10 – Discrimination, Employment, and Liability of Teachers 1. Title VII of the Civil Rights Act of 1964 Nearly all employers are covered by Title VII including public and private employers with at least 15 employees.

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lOMoARcPSD|30545138 Outlaws employment discrimination on the basis of race, color, national origin, sex, and religion in any aspect of employment, these traits are called “protected characteristics” and referred to as “protected classes” Prevents Discriminatory Practices: Disparate Treatment- Protected Class, Treated Differently, Intentional, Prima Facie Case, McDonnell Douglas Test Disparate Impact- Adverse Impact, Subtle, Unintentional. Appear Neutral, Results Impact, Four Fifths Rule, 80% Rule, Less than 80% = Adverse Impact Harassment- Based on protected class, commonly, sexual harassment, any wanted treatment, any protected class. Retaliation- For making a complaint, for participating in investigation, for the employer to take adverse action,can take many forms, action discipline threatening.

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lOMoARcPSD|30545138 2. Affirmative Action A voluntary plan adopted by a school district in an effort to remediate past discrimination in that system. An affirmative action plan adopted by a school district will not be unlawful reverse discrimination under Title VII if…. a) There exists a statistical disparity between the races or sexes in a particular job category b) If the institution was guilty of discrimination in the past c) The plan does not unnecessarily trammel the rights of nonminority employees d) The plan does not stigmatize nonminority employees e) The plan is temporary in nature and is scheduled to terminate upon the achievement of a racially or sexually integrated workforce. 3. Equal Employment Opportunity Commission (EEOC) – what and role Has the authority to investigate charges of discrimination against employers who are covered by the law. Our role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding. If we find that discrimination has occurred, we will try to settle the charge. If we aren't successful, we have the authority to file a lawsuit to protect the rights of individuals and the interests of the public and litigate a small percentage of these cases. When deciding to file a lawsuit, the EEOC considers several factors such as the strength of the evidence, the issues in the case, and the wider impact the lawsuit could have on the EEOC's efforts to combat workplace discrimination. We also work to prevent discrimination before it occurs through outreach, education, and technical assistance programs. 4. FMLA

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lOMoARcPSD|30545138 Family and Medical Leave Act of 1993. Purpose of the Act is to balance the demand of the workplace with the needs of the families, to promote the stability and economic security of families, and to promote national interest in preserving family integrity. Also designed to entitle employees to take reasonable leave for medical reasons for the birth or adoption of a child and for the care of a child or parent who has a serious health condition. Applies to both public and private sectors. 5. Licensure – oversight, issuance, and revocation To qualify for a teaching or leadership position in public schools, prospective teachers and administrators must acquire a valid license or certificate from their state. Revocation: the state is empowered not only to license educators but also to suspend or revoke licensure. Although a local board may initiate charges against the school personnel, only the state can alter the status of their licenses. When revocation or suspension is being considered, employees’ actions outside the school setting that impair teaching effectiveness can be examined. 6. Collective Bargaining The process that entails bilateral decision making in which the teachers’ representative and the school board attempt to reach mutual agreement on matters affecting teacher employment. 7. Contracts – tenure, nonrenewal, and leave of absence

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lOMoARcPSD|30545138 Tenure- After the award of tenure or within a term contract, school boards cannot unilaterally abrogate teachers’ contracts. At a minimum, the teacher must be provided procedural protections consisting of notice of the dismissal charges and a hearing. Leave of Absence- sick leave, personal leave, pregnancy / childcare leave, sabbatical leave, disability leave, family leave, military leave. School boards cannot negotiate leave policies that impair rights guaranteed by the US constitution and various federal and state laws. 8. Personnel Evaluation - Standards for Evaluating Teaching adequacy must be defined and communicated to teachers - Assessment criteria must be applied uniformly and consistently - An opportunity and direction for improvement must be provided to teachers - Procedures specified in state laws and school board policies must be followed 9. Copyrights of Teachers Copyright Law- Copied, Shared, Performed, Displayed - Was the purpose of the use transformative, or different from the original purpose - What is the Nature of the information, citations - Amount of Material Used - Impact on the market with your use of the material, does it hurt the creators work Public Domain- copyright law doesn’t apply

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lOMoARcPSD|30545138 Creative Commons- allows creators to choose how creators use their materials 10. Termination of Employment Pre-Hearing (notification of charges, opportunity for hearing, adequate time to prepare for rebuttal to charges, access to evidence and names of witnesses Hearing (held before impartial tribunal, representation by legal counsel, opportunity to present evidence and witnesses, opportunity to cross examine adverse witnesses) Post-Hearing (Decision based on evidence and findings of hearings, transcript or record of hearing provided, opportunity to appeal an adverse decision) Dismissal Types : Incompetency- generally based on several factors or a pattern of behavior Immorality- teachers and school leaders are viewed as role models whose conduct is influential in shaping the lives of young students, so educators are held to a higher standard than required for the general public Insubordination- teachers cannot persistently ignore reasonable directives and policies of administrators or school boards Unprofessional Conduct- actions directly related to the fitness of educators to perform in their professional capacity Neglect of Duty- when performance does not meet expected professional standards

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lOMoARcPSD|30545138 11. Tort Liability a. Negligence tort Breach of one’s legal duty to protect others from unreasonable risk / harm. Teachers have a duty to provide students with adequate and appropriate instruction prior to commencing an activity that may pose risk of harm. Four Elements must be proven: Duty, Breach of Duty, Causation, Injury Defense: Governmental Immunity, Contributory Negligence, Comparative Negligence, Assumption of Risk b. Intentional tort Conduct must be flagrant, extreme, or outrageous. It must go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in civilized society. When someone intends to perform an action that causes harm to another. Four Types: Battery, Assault, Intentional Infliction of Emotional Distress, False Imprisonment c. Defamation tort Slander: Spoken defamation (includes sign language) Libel: Written defamation (includes pictures, statues, motion pictures) Unit 6 – Students with Disabilities Module 11 – Federal Legislation that Applies to Individuals with Disabilities

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lOMoARcPSD|30545138 1. History of servicing individuals with disabilities- ADA, Section 504, PL 94-142, and IDEA 2. Section 504 of the Rehabilitation Act of 1973 a. Eligibility If the impairment substantially limits a major life activity when it is active b. 504 Plan (1973) (All about ACCESS) Developed to ensure that a child who has a disability identified under the law and is attending an elementary or secondary educational institution receives accommodations that will ensure their academic success and access to the learning environment. c. How differs from IEP 3. IDEA (Individuals with Disabilities Education Act 1990) (BENEFITS) a. Eligibility All children with disabilities have access to a free appropriate public education and related services designed to meet their unique needs. b. IEP Individualized Education Program designed for each child to meet their unique needs c. How differs from a 504 plan -IDEA established a very detailed set of rules that states must follow in providing Free Appropriate Public Education. Section 504 regulations are less prescriptive. - Section 504 prohibits discrimination against all persons with disabilities, including school age children, regardless of whether they require educational services. -Provision of an appropriate education under IDEA will also satisfy Section 504.

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lOMoARcPSD|30545138 - Section 504 applies to all governmental entities that receive federal financial assistance where IDEA applies only to state and local education agencies that receive funds under IDEA. - Parents of children with disabilities may be entitled to services under Section 504. IDEA or Section 504 Test 1) If the plaintiff could have brought essentially the same complaint if the alleged conduct had occurred at a public facility other than a school, then the grounds would not necessarily be under IDEA 2) If an adult at the school could have essentially the same grievance, the grounds for the complaint would not necessarily lie with an action under IDEA. 4. ADA (Americans with Disabilities Act 1990)

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lOMoARcPSD|30545138 a. Eligibility A person with a disability is someone who… - Has a physical or mental impairment that substantially limits one or more major life activities - Has a history or record of such an impairment (cancer in remission) - Is perceived by others as having such an impairment (burns, scars) b. People’s with Disabilities Bill of Rights 1- the right to live independently 2- The right to the equipment, assistance, and support services necessary for full productivity, provided in a way that promotes dignity and independence. 3- the right to an adequate income or wage. 4- the right to accessible integrated and convenient and affordable housing 5- the right to quality physical and mental care 6- the right to training and employment without prejudice / stereotype 7- the right to accessible transportation and freedom of movement 8- the right to bear or adopt and raise children and have a family 9- the right to a free and appropriate public education 10- the right to participate in and benefit from entertainment and recreation 11- the right to equal access to and use all businesses, facilities, and activities 12- the right to communicate freely with all fellow citizens 13- the right to a barrier free environment 14- the right to a legal representation and full protection of all legal rights 15- the right to determine one's own future and make one’s own life choices 16- the right to full access to all voting processes c. Standards of Accessibility Design - Building codes

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lOMoARcPSD|30545138 Set minimum requirements - both scoping and technical - for newly designed and constructed or altered state and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 5. Due process for students with disabilities Under IDEA you can only file a due process complaint for a dispute related to identification evaluation or educational placement of a child with a disability. Substantive - deal with your child’s right to an appropriate education Procedural - the technical aspects of the evaluation or IEP process.

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