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What is Special Education? 1

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Pre-Test

1. You can use the terms disability and handicap interchangeably. T/F 2. The history of special education began in Europe. T/F 3. The first American legislation that protected students with disabilities was passed in the 1950s. T/F 4. All students with disabilities should be educated in special education classrooms. T/F 5. Special education law is constantly reinterpreted. T/F

Answers can be found at the end of the chapter.

8Contemporary Concerns

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Learning Objectives After reading this chapter, you should be able to

• Identify sources of educational funding, and describe how traditional state funding formulas can result in school inequities.

• Cite federal legislation and judicial decisions that affect teachers’ legal responsibilities and civil rights.

• Describe various school choice alternatives and the characteristics of each.

• Describe teachers’ responsibilities to students.

School Funding 8.1

Educate every child as if he were your own. —Rachel McMillan

From its earliest beginnings, public education in the United States has had to deal with vari- ous concerns and controversies. Schools have evolved side by side with an evolving demo- cratic national governing structure. Thus, questions about what education should look like and who it should serve in a democracy have provoked continuing controversies. For exam- ple, in the earliest colonial times, there was no expectation that every citizen should be taxed to provide education for all children; likewise, funding remains an issue today. As well, con- troversies have always surrounded models of schooling. Should the teacher be a “sage on the stage” who delivers lectures to obediently listening pupils? Or is facilitative teaching more appropriate in a democratic society? Can both models exist, with parents allowed to choose between them? Teacher rights and responsibilities have changed over time also. Rules gov- erning teachers’ personal lives, such as the expectation that they should remain unmarried, have been replaced by far looser ethical demands. In short, issues have always arisen and show no signs of disappearing.

In this chapter, we investigate three general topics of concern: school funding, school choice, and teacher rights and responsibilities. Because each topic contains a number of issues and controversies, read about them with an eye to deciding what your own views are and how they might develop in the future as you begin your teaching career.

8.1 School Funding School funding became an issue well before the United States was established as a country. In the 1640s, the Massachusetts colony led the way by requiring any settlement of 50 or more households to hire and pay for a reading and writing teacher. A settlement of 100 or more households taxed property owners for the purpose of establishing a grammar school. The colonial view was that property owners were the wealthier citizens and should, therefore, be expected to fund education. This long-ago view set the precedent for much of today’s school funding, which continues to be provided through state property taxes. The Bill of Rights, established by 1791, made no mention of rights regarding education. This fact, coupled with the tradition of individual colonies creating their own school funding laws, led to little federal spending on education. In fact, colonies and territories applying for statehood were required to agree to fund their own education.

Over time, federal spending on education has increased, particularly in times of need such as during the depression years of the 1930s, or when international competition has arisen, such as in the 1950s, when Russia led the way into space. However, because federal spending on education today constitutes only about 5% to 6% of the total expenditures, local and state revenues are extremely important for school finance. Sources of funding and the percentages provided by each are determined by individual state and local governments. Basically, taxes are generated through a (1) personal income tax placed on individual earnings; (2) state sales tax placed on items of purchase; (3) personal property tax on homes, personal items, and busi- nesses; and (4) privilege tax placed on licenses such as a driver’s licenses, hunting licenses, and so on. In some states, revenue is generated from legalized gambling or (5) a state lottery.

Section 8.1School Funding

Personal Property Tax Historically, an individual’s wealth was measured by land, and taxes were lev- ied accordingly. This situation remains true today regarding public school- ing—the mainstay of financial sup- port for schools comes from revenue generated from personal property taxes. Because a high percentage of tax money for education comes from prop- erty owners, a vote to increase school taxes often faces opposition. For retired homeowners who no longer have chil- dren in school, or those persons on fixed incomes, paying school taxes can be seen as an unwanted and unfair bur- den. Furthermore, some property own- ers complain it is unjust that they must pay for schools, when families who rent apartments or homes are exempt. It should be pointed out, however, that a renter’s landlord must pay the taxes, which no doubt show up as a por- tion of the renter’s monthly payment. Additionally, some parents whose children go to private schools feel they are unfairly saddled by school taxes; after all, they are already burdened by costly tuition fees. Aside from these arguments, others have pointed out that schools are not producing sufficient outcomes, and thus they are undeserving of revenue increases. In those school districts where there is the most dissatisfaction with local schools, attempts to increase taxes are usually unsuccessful.

During the latter part of the 1970s and through the 1980s, many states across the country passed tax and spending limitation laws that fundamentally altered the way schools had traditionally been financed (Carroll, Krop, Arkes, Morrison, & Flanagan, 2005). These laws often led to a decrease in school funding. One of the most well known and well documented of these funding changes occurred with the passage of Proposition 13 in California. This amendment to the state constitution, which passed in 1978, capped the amount of property tax a homeowner would pay and rolled back tax rates. It also shifted the primary source of funding for schools from local property taxes to the state’s general funds (Carroll et al., 2005; Wassmer, 2006). While Proposi- tion 13 reduced tax rates for homeowners, it had the added effect of significantly reducing the tax dollars collected by the state and local counties used for education funding. While other fac- tors have contributed to the reduction in funding across a number of states, many attribute the downturn in school funding to laws such as Proposition 13 (Carroll et al., 2005).

Assess Yourself 1. Issues that affect people’s pocketbooks tend to create the greatest dissension. What do

you think about property taxes being the main source of revenue for schools? Does this type of tax unfairly penalize those who own property? Or does this system seem fair?

2. What alternatives would you propose?

AP Images/Rick Bowmer The fact that education funding at the local level comes from property taxes virtually ensures that the topic will be surrounded by heated debate.

Section 8.1School Funding

Inequities in School Finance The most obvious limitation of school districts’ heavy reliance on local property taxes is the disparity found in local schools. In communities where property valuations are higher, the tax bases will inevitably be larger, which means that the district’s schools will mirror that afflu- ence. Thus, one school district might have an ample operating budget while another district can barely make ends meet.

To better understand this problem, consider reading the now-classic Savage Inequalities: Children in America’s Schools by Jonathan Kozol (1991). After touring schools from East St. Louis, Illinois, to San Antonio, Texas, Kozol reported his findings. In poorer schools, he observed clogged toilets; bathrooms without hot water, soap, or paper products; playgrounds

without swing sets or jungle gyms; and outdated textbooks. The pres- ence of support staff was negligible. At the opposite end of the financial spectrum, Kozol toured schools with carpeted hallways, music suites, and lounges for students. Study halls were fully equipped with the latest technol- ogy, and libraries were stocked with state-of-the-art equipment. There were opportunities for students to perform or study abroad. He noted modern school buildings surrounded by trees and landscaped gardens, with spacious playing fields for sports. In recent years, inequities such as those described by Kozol (1991) have pro- vided an impetus for school finance reform at the federal, state, and judi- cial levels.

Federal Government’s Response The federal government’s role is and has been somewhat limited regarding school finance. However, the Department of Education, a Cabinet-level office created in 1979 by Presi- dent Jimmy Carter, distributes grant money to schools. Most federal assistance has been in the form of categorical aid, money that is earmarked for a specific school need such as a library, computers, reading programs, transportation, or free lunches for economically disadvantaged students. A large portion of categorical grants are reserved for schools with a high proportion of children from low-income families or other children whose special educational needs put them at a disadvantage. The drawback to categorical aid is that there are strings attached; the schools must use the monies only for the designated purposes. There are strict federal guidelines that accompany these dollars. Stringent documentation is required from those schools accepting categorical aid. A national study in 2008 found that the state average dependence on categorical grants was 25 grants. By 2012, the aver- age was 16, with Florida and Montana depending on just one, and Iowa on 64 (Smith, Gas- parian, Perry, & Capinpin, 2013).

1a_photography/iStock/Thinkstock Inequities in education have serious and long- lasting effects on the lives of students and their families.

Section 8.1School Funding

During the 1980s, restrictions on local school administrators eased under the Reagan admin- istration when another type of federal assistance, known as a block grant, was made avail- able. Simply put, block grants are large sums of money that come with fewer federal restric- tions, which means that schools are given more latitude as to how money can be spent to best serve students’ needs. Regardless of the federal government’s role in financing schools, the major financial burden of schools continues to rest on states and the local school districts.

States’ Response In an effort to correct inequities, states are asked to equalize funding among districts by issu- ing flat grants, equalization grants, and foundation grants. A flat grant is the oldest, intro- duced in the mid-19th century. It is also the most unequal method of financing schools. A fixed amount of money is divided by the number of students attending, which explains why it is crucial for districts to keep meticulous records on attendance. Unfortunately, flat grants do not take into consideration the extra costs associated with educating special education or English language learners, or the comparative wealth of a district. An equalization grant addresses the inequities of the flat grant. It requires that wealthier districts give back surplus revenue to the state, which will in turn distribute excess funds to poorer districts. A founda- tion grant is designed to provide poorer districts with state aid to compensate for insufficient local funding. Hence, local school districts that have trouble raising revenue because of low property values can receive assistance from the state to make up for these deficiencies. Most states require a minimum property tax for local communities to qualify for this grant.

Judicial Response In some states, the Department of Education is in conflict with state courts regarding the outcome of inequities in the funding of school systems. One of several landmark court cases affecting school funding was Serrano v. Priest (1971), which charged that the current system for financing schooling in California was unconstitutional. The plaintiffs argued that using property taxes to finance schools violated the Fourteenth Amendment, which provides “equal protection” to all citizens. The Supreme Court of California upheld the parents’ claim that the wealth of the state—not the wealth of property owners from local school districts—should be the determining factor for financing schools because it was clear that property taxes in poorer communities could not compete with property taxes in the wealthier communities. The court instructed the California State Legislature to revise the system to separate school funding from local property taxes.

After this ruling, cases were filed in several other states, including in Texas. In the San Antonio Independent School District v. Rodriguez case, a federal circuit court ruled the same as in the Serrano case. However, in 1973 the U.S. Supreme Court reversed that decision and ruled that this funding practice was not unconstitutional because the right to an education is not guar- anteed by the U.S. Constitution. Nonetheless, the U.S. Supreme Court (1973) did recognize that there were inherent disparities in educational expenditures because of a flawed system of property tax funding. The court noted that these kinds of issues should be addressed by state legislatures or state courts, not by federal courts.

An example of funding inequities subsequently being addressed at the state level took place in 1989. The Texas State Supreme Court found that the system of relying on property taxes for

Section 8.2School Choice

school revenue had led to inequities in pupil expenditures. In response, the Texas State Legis- lature passed “Robin Hood” legislation in 1993 to redistribute funds from wealthier districts to poorer districts (i.e., districts that had lower property values). Since then, a number of cases have been brought before state courts based on the Supreme Court’s San Antonio deci- sion. In early 2014, there were 10 such cases pending. In March of that year, for example, the Kansas Supreme Court declared that the state’s schools were funded inequitably. A second part of the suit, which argued that the state did not provide adequate funding to be in com- pliance with the state’s constitution, was sent back to the lower courts (Heck, 2014). These sister issues—equitable funding and adequate funding—are the primary ones dealt with by the various state courts, and the courts can be quite assertive in their judgments. In 2014, for example, the Washington State Legislature was taken to task by the state’s Supreme Court for repeatedly not providing adequate funding according to the Washington constitution and despite the Court’s orders. As of mid-2014, threats had been made to the legislature by the Court that included leveling fines, forcing property to be sold, or removing other funding from the legislature’s powers (Camden, 2014).

8.2 School Choice Decreases in school funding and the pressure on schools and districts to innovate and improve student achievement have also led to the emergence of a greater number of schooling options. While there have always been calls for more school choice in the United States, the voices have grown louder as the impact of high-stakes testing has expanded (Deming, Hastings, Kane, & Staiger, 2011; Wolf, 2008). School personnel, parents, community members, and lawmakers are asking for more school options and for greater levels of involvement and accountability. States, districts, and a range of organizations have responded. There is now a wider range of schooling options from which parents can choose. So, what exactly are these options, and how do they differ from one another? This section will consider several alternative schooling models: charter schools, magnet schools, private schools, innovation schools, schools within schools, single-sex education, and homeschooling.

Charter Schools In 1991, Minnesota became the first state to pass a law permitting the creation of public schools that could have more flexibility in their governance while still accepting account- ability requirements. Since the 1990s, all but eight states have passed legislation permitting this model, which is known as the charter school. The original idea of the Minnesota model, as designed by progressive education reformers, was that “charter schools could be an effec- tive mechanism for incubating reform and improvement in a small number of experimental schools,” eventually spreading to a wide number of public schools (Fabricant & Fine, 2012, p. 18). It was surmised that “freeing a sector of schools from the red tape and formulaic prac- tices of bureaucratized education, new forms of practice would be unleashed that, in turn, would improve academic performance” (p. 19).

Charter schools are public schools, yet they differ from traditional public schools in many ways. From their beginnings in Minnesota, they have had greater flexibility as to how they operate and the programs they have in place. Charter schools operate under a performance contract, or a charter, which frees them from many of the rules and regulations under which

Section 8.2School Choice

traditional public schools operate. The charter is agreed upon between a local school district, county, state, or sponsoring agency and the organization, agency, or private corporation that plans to run the school. The contract details the school’s mission, program goals, and the stu- dents who will be served by the school. The length of time for which the charter is granted is also outlined in the contract. A charter must be renewed after a specified period of time, gen- erally 3 to 5 years. Many factors are used to determine if a charter is renewed, including stu- dent performance measures and the financial sustainability of the school.

Charter schools can take any number of forms, some innovative, others more traditional. The first Minnesota pub- lic charter school was a Montessori school, a model that was already found nationally, but typically private. Other models have begun small and then, once successful, become more wide- spread. The KIPP Academy (Knowl- edge Is Power Program) is an example of this. KIPP is also an example of a network of charter schools that are run by a non-profit foundation. Other charters, such as the Edison Schools, Inc., are run as a business, using pub- lic funds as a private profit-making endeavor. Finally, there are charters that have been described as “Mom and Pop” schools. These are typically a sin- gle school created by “experienced educators, frustrated with the district bureaucracy and trying to model a different kind of educational strategy for disadvantaged kids” (Fabricant & Fine, 2012, p. 22). The Folk Arts/Cultural Treasures school in Philadelphia is an example. Per- haps the most interesting creation of charter schools came about in New Orleans after 2005’s Hurricane Katrina demolished so much of the city. It is now the country’s one city where the majority of students (78%) attend a charter school.

While charters have greater freedom than traditional public schools, they are held to the same level of accountability when it comes to the academic achievement of their students and the financial state of their schools. Thus, while charter schools might have the freedom to operate differently from other schools, their students typically take the same tests as others in the district and state.

Frequently, charters will focus on new teaching methods or target a segment of students not well served by the traditional school model. Whereas traditional schools must enroll all stu- dents based on where they live, charter schools are not necessarily bound by a specific atten- dance boundary and have the ability to enroll students from a larger geographical area. If the number of students who would like to attend the charter school exceeds the spaces available, a lottery system is often utilized to determine who will be admitted.

Because the original impetus for the charter school movement was to foster innovation, increase school choice, and be more responsive to the needs of students and parents, there

Associated Press/Julio Cortez Tennis star Andre Agassi began a charter school in Newark, NJ, in 2014. Charter schools have become increasingly popular in recent years, as traditional schools have struggled to demonstrate success.

Section 8.2School Choice

has also been greater discretion and latitude given to charter schools to determine what cur- riculum they will use. Support for such innovations is a hallmark of the Race to the Top (RTTT) legislation discussed in earlier chapters.

While the laws of each state differ, charter schools generally receive their funding from the state or district in a manner similar to that of the local school district. Charter schools, how- ever, have to negotiate and often contract outside a district for space to operate. Finding an appropriate physical space to serve a school’s students that has the proper zoning and is affordable is often one of the biggest roadblocks for charter schools to overcome.

Decisions about curriculum, staffing, and budgeting are made by the charter school’s govern- ing board, which is separate from a school district’s school board. Because a charter school is a public school, the teachers must adhere to the same licensing requirements as their coun- terparts in traditional schools. However, the hiring practices for a charter school are often different and are not always bound to follow the guidelines of any union or bargaining agree- ments that may exist with a district. This factor has placed charter schools front and center in the debate over what factors support or limit the impact of public schools to be successful.

Since the charter school movement began in Minnesota, charter schools have increased in popularity throughout most of the United States. By 2012, there were about 4,900 charter schools with an average 400 new schools opening each year (Butrymowicz, 2012). Although charter schools have existed for more than 20 years, they can still be considered a new effort and approach to education, given their varying models, lack of a single educational theoretical basis, and mixed results from testing. One ongoing problem is related to the work expecta- tions of charter school teachers. KIPP teachers, for example, have been found working about 65 hours per week, 25% longer than teachers in their areas’ regular public schools (Fabricant & Fine, 2012). While charter teachers must hold proper credentials, they tend to have less experience than others. One major source of charter teachers has been the Teach for America program, which, while hiring outstanding university graduates, provides little teacher train- ing to prospective educators, who are generally without any experience and who view teach- ing as a transitional job rather than as a real career. Thus, retention and expertise are prob- lems that charter schools often must face. One early, as well as continuing, expectation has been that charter schools would make traditional public schools sit up, take notice, and feel the competitive urge to improve themselves. This, however, does not seem to have been the case. According to David Harris, a mayor’s assistant for charter school development in India- napolis, “The thought was that ‘a higher tide raises all boats,’” but “[i]t’s been a disappoint- ment both in Indianapolis and around the country” (as cited in Butrymowicz, p. 29).

Despite continuing problems and controversies, charter schools have many enthusiastic sup- porters who are willing to participate in the next stages of development. Ben Adams (2012), an education reformer from West Virginia, one of a few states that prohibit charter schools, points to his own state’s struggles to move up from its rock-bottom educational evaluations and sees charter schools as an effective solution. School choice, he argues, is key: “Public charter schools are simply another way to give parents choices in education for their children” (p. 25).

However, it is possible to create a unique model of public education without relying on a special charter. Magnets, as we know, attract only substances containing iron, and magnet schools are designed to attract students with a special interest or from a specific population.

Section 8.2School Choice

Magnet Schools Magnet schools are public schools created in the early 1970s in an effort to help desegregate public schools. The goal was to entice students to attend schools outside their neighborhood and attendance boundary by offering a unique and different school experience. When legisla- tion was passed to create magnet schools, it was explicitly stated that the focus was to have schools that “offer a special curriculum capable of attracting substantial numbers of students of different racial backgrounds” (U.S. Department of Education, 2012, “Program Description,” para. 2).

Magnet programs originally aimed to eliminate, reduce, or prevent “minority group isolation in elementary and secondary schools” while strengthening “students’ knowledge of academic subjects and their grasp of . . . marketable vocational skills” (U.S. Department of Education, 2012, “Program Description,” para. 1). The special curriculum of a magnet school attracts sub- stantial numbers of students from different social, economic, ethnic, and racial backgrounds and provides greater opportunities for voluntary and court-ordered desegregation efforts to succeed. Some of the program choices offered by magnet schools include math and science, gifted and talented, language immersion, performing or visual arts, vocational training, and academic remediation programs (Corwin & Schneider, 2007).

Magnet schools have evolved over time, and balancing racial diversity is no longer center stage. In fact, in 2007, the U.S. Supreme Court ruled in Parents Involved in Community Schools v. Seat- tle School District that students can no longer be assigned to schools through a race-based lot- tery unless the district is still under a court order to desegregate its schools. Magnet schools, however, have maintained their attraction for a diverse group of students and parents.

Magnet schools are similar to charter schools in that they seek to offer unique learning expe- riences that traditional public schools do not offer. However, they still operate under the school district and school board and are bound to follow the same rules as their traditional public school counterparts, whereas charter schools have much more flexibility in hiring and operational management. Magnet school teachers also must follow the same credentialing and licensing guidelines as all other public school teachers.

Magnet schools, like charter schools, have a reputation for being more innovative than tradi- tional schools. The argument is often made that because parents and students choose these schools, students will be more motivated to learn and parents will be more invested in help- ing their schools succeed. Although magnet schools generally earn high praise, it has been said that they do at times “develop bizarre programs, such as one devoted to the care and feeding of animals or another focused on athletic skills” (Corwin & Schneider, 2007, p. 146).

By 2007, more than 1 million students were attending more than 3,000 magnet schools, with 80% of them in urban areas. Well over half of these had been placed in high-minority neigh- borhoods with the purpose of interesting white families in attending, thus continuing the tradition of enhancing integration (Corwin & Schneider, 2007; Greene, 2005).

Private Schools Historically, parents who could afford it have always had the option of sending their children to private schools, which are financially supported by parents or other organizations, rather

Section 8.2School Choice

than with public funds. There are, of course, advantages and disadvantages to private school- ing. One advantage is that because of their small enrollments, private schools can offer a close-knit family atmosphere. Because of their smaller size, private schools can also provide more opportunities for teacher and student involvement. It is easier for students to establish personal relationships with teachers. On the other hand, although private schools are typi- cally supported by tuition and possibly by added grant money, funds for salaries are still lim- ited. Teachers can almost always expect to be paid less than their public school counterparts. A disadvantage for students is that private schools, unlike public schools, are free to accept and retain only those students who comply with their mission. Thus, disruptive students can be expelled more easily when their behavior creates a problem for school officials.

Some parents choose private religious schools for the education of their chil- dren. Generally, there are two types of religious schools: (1) parochial schools, which are generally owned and operated by a church or religious sect, and (2) independent private reli- gious schools that have no legal ties to a church. An elected board of trustees operates the latter. As court rulings over the past decades have confirmed a secu- lar public school curriculum, many par- ents opt for private religious schooling for their children. (There is more about these schools later in this section.)

In addition to private schools with a religious orientation, there are many

that are founded for any number of other reasons, and these are known collectively as inde- pendent schools. Because they typically receive no federal funding or church backing, they are free to engage in the philosophical approach to education of their choosing. This advantage, however, is offset by federal requirements when a school’s students receive funding for ser- vices such as special education or English language learning. In such a case, the school must adhere to federal requirements such as those attached to civil rights: prohibition of discrimi- nation based on race, color, national origin, sex, disability, or age. Often, independent schools choose not to accept federal funding in order to remain truly independent.

Clearly, one of the biggest disadvantages for parents who choose private schooling is the cost factor. Parents pay tuition while simultaneously paying taxes for public school education. However, the advent of school vouchers has permitted some low-income families to send their children to private schools. Case in Point: Using Vouchers to Level the Playing Field describes one such situation. Historically speaking, vouchers were the forerunners of charter schools, being “the preferred trigger for school reform. By providing cash value for each child’s edu- cation, vouchers expected to promote transactions of choice and, in turn, best fit between student and school” (Fabricant & Fine, 2012, p. 17). Voucher programs essentially provide a free market choice, allowing consumers (parents and their children) to opt for the school they consider the best. Vouchers have been viewed as especially helpful to Catholic schools, keeping their registrations strong when they might otherwise lose their student populations to increasingly popular charter schools (Ladner, 2012).

Image Source/Getty Images Private schools offer certain advantages over public schools. The cost, however, can be prohibitive.

Section 8.2School Choice

From their beginning, however, political issues have influenced the success of voucher pro- grams, or lack thereof. For example, the state of Florida created a voucher program that would permit students to attend private schools with financial support. However, legal chal- lenges ensured that eventually the Florida program would die after the Florida Supreme Court declared the program unconstitutional in 2010 (Hess, 2012). Other complaints about voucher programs have come over time from teacher unions, community groups, and poli- cymakers because of redistribution of public tax dollars to private schools (Fabricant & Fine, 2012).

In general, the results of research over the past decade have been mixed, achievement scores showing gains in some places and not in others. Further, there is concern that the advantages that come from being in a class with “motivated and well-behaved classmates and actively engaged parents—will quickly fade away once programs are expanded and voucher schools come to resemble high-poverty public schools” (Kahlenberg, 2003, p. 4). Thus, voucher pro- grams are still new and controversial enough that definitive evaluations of them cannot yet be made.

Case in Point: Using Vouchers to Level the Playing Field Danielle’s 8-year-old son Markus attends a neighborhood school. Although she felt safe send- ing him there for kindergarten and first grade, recent playground bullying incidents have made Markus fearful of going to school each day. Aside from that, there are scant resources available for computer equipment and training. Because Danielle cannot afford a computer in her home, she is afraid Markus lacks computer skills. Realizing she qualifies for a voucher, she begins shop- ping around for a school that better serves her child’s needs. After making a selection, she applies for and receives a voucher, which she gives to the new school. The school turns the voucher over to the local or state government for reimbursement. The voucher has helped to level the financial playing field. Danielle’s concerns about her child’s education have been addressed.

Questions to Consider

3. How do you feel about public tax money being used for this purpose? What are your reasons?

4. If this were your child, would you take the opportunity to use a voucher? Why or why not?

Church-Affiliated Schools Undoubtedly, one of the most pervasive and controversial themes in American history has been the proper role of religion in education. In colonial America, religion and instruc- tion were inseparable. In the Puritan colonies, schooling was church dominated. Two cases in the 20th century determined the destiny of religion in today’s public schools. In 1962, in Engel v. Vitale, the U.S. Supreme Court prohibited prayer in public schools. The follow- ing year, in Abington School District v. Schempp (1963), the U.S. Supreme Court ruled that reading from the Bible in public schools violated the Constitution’s “separation of church and state.” The Bible could be read as prose in a literature class, but not as part of school instruction.

Section 8.2School Choice

Conservative organizations accused the U.S. Supreme Court of “undermining the moral and spiritual forces of public schools” (Spring, 1997, p. 386). In response, there has been a con- siderable increase in the number of children attending parochial, or private religious, schools (estimated to be 1 million). Minority Roman Catholic families are among those who choose parochial schools for their children. In some sites, particularly urban, these students produce test scores well above those of the public schools in the same neighborhoods (Stern, 2003). Although Christian schools have the largest student enrollments, there are religious schools representing many faiths, including Islamic and Jewish.

In recent years, the private sector has started getting involved in public school restructuring by establishing schools. Called private enterprise schools or for-profit schools, their success has been mixed at best. The most well-known enterprise, mentioned earlier in the chapter, is Edison Learning Inc. It has created a network of private schools currently found in about 20 states, and run in collaboration with public school districts. Among its current approaches to education are dropout prevention programs, blended on-site and virtual schools, and a full online curriculum. Its curriculum, according to Edison, is aligned with appropriate national and state standards. Nevertheless, Edison schools have been the subject of criticism, even con- demnation; still, they have continued to expand since their founding in 1991 (Bracey, 2003). Because the schools are envisioned as profit-making endeavors, costs are often cut with profit in mind. Class sizes, for example, might be enlarged. Another approach was to use students for some administrative duties to save the cost of administrators. Yet another was to terminate the original plan to outfit every student with a laptop computer (Saltman, 2005). While Edison Learning and other for-profit schools do still enjoy some popularity, they are finding it difficult to achieve the self-proclaimed ambitious goal of increasing test scores while decreasing costs.

Innovation Schools The school models described previously are the most common school options found in most communities. There are, however, other unique school settings that are gaining prominence. An innovation school is one example. These are public schools that are similar to charter schools in that they have a governing board that makes and oversees all decisions regarding curriculum, staffing, and budget matters. They also share a goal of creating programs that meet the specific needs of the students they serve. Both charter and innovation schools have greater latitude than traditional public schools in terms of major issues such as budget, school schedules, curriculum, planning, professional development time, and the hiring of staff.

Innovation schools differ from charter schools in several ways. They receive no special fund- ing but work within their district’s financial guidelines and expectations. Decision-making and oversight are negotiated with the district superintendent, the school-based governing board, and the local teachers union. An innovation school can be created from the ground up, its initial negotiations taking place with this same team. It is also possible to alter a regular public school to become an innovation school, a move that requires a faculty vote. In the Den- ver public schools, for example, any school community wishing to create an innovation school is required to have support from a majority of the school’s faculty in addition to that of the community.

Because innovation school governance and negotiations are more similar to those of the regu- lar public schools than those belonging to charters are, and because they tend to keep stu- dents from leaving their districts for charter schools elsewhere (taking their funding with

Section 8.2School Choice

them), innovation schools can be more popular with government than char- ters. Colorado, for instance, passed the Colorado Innovation Schools Act in 2008. This legislation encourages schools and districts to design and implement innovative practices in a wide variety of areas and provides a process whereby schools can be granted innovation school status. In Massachusetts, districts were encour- aged to create innovation schools with $15,000 grants from the state’s Race to the Top funds (Vaznis, 2011).

Innovation schools are designed to live up to their names. Examples of such schools in Massachusetts have included programs for the emotional and social well-being of students living in poverty, a K–8 school taught almost entirely in cyberspace, an extended day program designed to offer afternoon tutoring along with art experiences, a multiage program that allows students to advance at their own rate, an arts- focused K–8 program, and a bilingual school (Vaznis, 2011).

Innovation school legislation is seen as a way to provide flexibility to schools and communi- ties and to improve the academic achievement of their students. Because this type of school status has the power to alter the way school funds are traditionally used, change the way staff are hired and placed at a school site, and modify other important aspects of school gover- nance, there is a requirement that all stakeholders in a school community agree to the change. In addition, the schools are accountable for student results just as any other school is.

To a great extent, innovation and magnet schools share much in common, although innova- tion schools possess more flexibility in their governance. In addition, the origin of magnet schools, with their focus on diversity, means that they are more likely to be found in neighbor- hoods with diverse populations of students.

Schools Within Schools Alternatives to traditional methods are sometimes created as a subset of a larger school. These may last but a few years if they are eventually regarded as fads or as no longer applicable to current interests and needs. They might even fall victim to parent groups that protest the redirection of scarce resources, thus affecting their own children who remain in the school’s larger traditional program. The following two examples appear to be standing the test of time, expanding in their utility and popularity with each year.

International Baccalaureate Instituted in 1968 in Geneva, Switzerland, the International Baccalaureate (IB) was designed for high school students whose parents were working in the city’s many international

Blend Images/Hill Street Studios/Getty Images Many innovation schools focus their curriculum on STEM courses (science, technology, engineering, and mathematics) and adopting locally customized school policies.

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agencies, organizations, and businesses. The goal was to provide an education that combined “academic rigor and internationalism” with the ability to “promote and administer an inter- national examination giving access to higher education in all countries” (Walker, 2004, p. 8). The idea grew, spreading to other countries and continents. It began with students from nine countries, and by this century there were IB programs in 1,380 schools in 117 countries, with the largest number in the United States (Walker, 2004). To achieve an IB diploma, students must take courses that reflect an international view, including foreign language. In addition, there is a core program with a “theory of knowledge” course, service requirements, and an extensive final essay. Although an entire school might be devoted to an IB program in some countries, in the United States it is more commonly a school within a school, and typically a public one. In the 1990s, middle and primary grade programs were developed, although these are not as commonly found as the high school programs.

Forest Kindergartens In the United States, a forest kindergarten can most often be found as a school within a Wal- dorf school. This model of early education originated in Denmark in the 1950s and 1960s and then spread across Europe and into the United States (deQuetteville, 2008). It can be adapted to almost any curriculum, including those that have governmental guidelines to follow. At its most basic, a forest kindergarten is designed to take place outdoors in a natural setting and in any but the more dangerous weather conditions. Natural materials, rather than their com- mercial counterparts, are used for learning, play, and art projects.

Most challenging in many urban cases is to find a site that can actually be described as a for- est, even from a small child’s perspective. But with some creativity, such hurdles are over- come, with results showing children developing greater social and academic capability, better coordination, and more imaginative play (Borradaile, 2006).

Single-Sex Education While private schools have a long history of single-sex education, the same has not been true of public schooling. Problems have arisen over the decades with complex legal battles ensu- ing. Generally speaking, it is Title IX of the Education Amendments of 1972 that was largely responsible for shutting down many such public institutions (Gurian, Stevens, & Daniels, 2009; Salomone, 2003). For a law that has had such wide influence, Title IX is quite short: “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.” The responsibility of enforcing Title IX is held by the Office for Civil Rights (OCR) in the Department of Education. Title IX was instrumen- tal in opening up educational opportunities for girls and women that previously had been closed to them, perhaps most famously at Virginia Military Institute and The Citadel in South Carolina. Yet, when research began to point toward positive outcomes attached to single-sex schooling, Title IX became the authority cited by those who opposed such institutions. In 2006, however, the OCR changed the regulations so that “public schools are now allowed to include single-sex classes as a part of their educational program, if they believe those classes will improve student learning and achievement” (Gurian et al., 2009, p. 5).

While single-sex education is certainly not for every student, many advantages have been suggested by those who are closely involved in it (Gurian et al., 2009):

Section 8.2School Choice

• It allows for nontraditional teaching techniques and structures that take into account the different learning styles of boys and girls.

• It eliminates distractions that come from boys and girls being together (flirting, gender-based competition).

• It encourages girls to openly discuss personal issues, thus making it possible to deal with them more quickly, perhaps.

• It helps boys learn self-management by helping each other in classes where others easily understand them.

• Boys can be helped with literacy by the inclusion of more boy-friendly materials. • Girls are encouraged to have interest in math, science, and technology. • Teachers have opportunities to create a curriculum that is gender specific.

Some of the arguments for single-sex education, as represented in this list, are based on the brain research of recent years. For example, it is now known that the language processing areas are different between the two sexes. For males, they tend to be in the left hemisphere and for females in both hemispheres with multiple processing areas. For this reason, girls are usually more developmentally ready for writing and reading when they enter kindergarten or first grade, while boys may find expectations frustratingly difficult. As a second example, the spatial processing areas favor the boys, with their greater possession of testosterone pro- viding more and denser neural connections. The result is that, in general, boys tend to need more space to learn in and more opportunities to move; furthermore, they are often better at spatial learning than girls (Gurian et al., 2009). These two examples of our modern under- standing of the brain’s workings are part of a longer list that has been used to help us rethink the advantages and disadvantages of both co-educational and single-sex classrooms.

Homeschooling Perhaps the type of schooling that grants parents the most control over their children’s education is home- schooling. Whether one refers to Native Americans or to Pilgrims and other early immigrants, homeschool- ing has existed in America from the beginning of human settlement. By 1918, however, every state had a com- pulsory school law: “Most of these were written around the turn of the century with the aim of getting chil- dren, especially immigrant children, off the streets, out of the factories and mines, and into schools where they could be taught the English language and American values” (Gaither, 2008, p. 179). Homeschooling in succeeding decades remained rare until the 1970s, when two groups in particular brought the concept into public and legal consciousness: religiously oriented parents with concerns about the increasing secularization and unruliness of the public schools, and parents who

Associated Press/Sue Ogracki While homeschooling is technically one of the oldest educational traditions in the United States, it was rare until the 1970s. Since then, it has grown in popularity and is legally recognized in all 50 states.

Section 8.2School Choice

were part of the so-called “hippie movement,” who wanted more freeform education for their children than the public schools allowed (Gaither, 2008). The laws of the early 20th century had, for the most part, been taken for granted and ignored by legislatures and the public until the 1970s, when homeschooling parents sought legal validation of their educational prefer- ence. By 1993, all 50 states had recognized the legality of homeschooling (Berlatsky, 2010).

In short, parents who homeschool their children set the structure for learning, choose or design the curriculum, and primarily provide the teaching. Nevertheless, as with the other models discussed, there is a range of homeschooling options. To begin with, virtual schooling, as discussed in Chapter 7, continues to gain new fans. Homeschooling models also include “un-schooling,” whereby the student determines an interest in a certain subject or topic and the parents provide opportunities and materials for the child to learn about the specific topic. In another model, the family joins a local school district’s homeschooling program, in which the district provides the parents with the curriculum to use with their child. Parents can also purchase the curriculum of their choosing, such as that produced by Calvert (see Chapter 7). Because there is such a wide variety of homeschooling options, parents often join other homeschool families to coordinate outings and field trips. A school district might even spon- sor a weekly, or biweekly, meeting for homeschooled children and permit them to participate in athletics, drama, and other special activities.

Although about half of homeschooled children today come from families devoted to giving them a religious education, the remaining students come from families with a wide variety of homeschooling goals (Gaither, 2008). Although the public has largely come to accept the homeschool concept, it remains controversial. For example, one view is that teacher-parents should be certified by their state’s laws, or at least rated as well qualified. There is even con- cern that lack of regulation may be responsible for some cases of child abuse (Downes, 2010). Homeschooling’s Invisible Children (HIC), an organization of former homeschoolers, has taken on the responsibility of tracking child abuse by parents who use it as a cover for their criminal behavior. Between 2000 and mid-2014, close to 100 American children had died at the hands of such parents. Thus, this concern is not an idle one, and HIC’s hope is that “data analysis and research on past cases of abuse and neglect in homeschool settings will help us identify poli- cies that will better safeguard the wellbeing of homeschooled children” (HIC, 2014, para. 1).

Critics of homeschooling also argue that these children miss out on learning that takes place through peer interaction. As a Mississippi school superintendent has asked, “Can home- schooled children cope with social pressures, people skills? More is learned in a classroom and school setting than A-B-Cs” (as cited in Shortt, 2010, p. 89). In response, a professor of educational research, Greg Cizek, says, “It is basically a nonissue. . . . If anything, research shows that because parents are so sensitive to the charge, they expose them [their children] to so many activities” (as cited in Shortt, 2010, p. 89). Recent research focusing on 7,000 home- schooled adults discovered higher levels of civic involvement, more post-secondary educa- tion, and better life satisfaction than among adults who had attended school (Shortt, 2010).

Testing is another topic of contention. Over time, as homeschooling has become increasingly accepted, state laws have become increasingly lenient, including those related to testing. Cur- rently, 25 states require standardized tests at some level for homeschooled children. In some states, parents are permitted to choose any nationally respected test; in others, alternate forms of reporting such as portfolios are accepted. Testing results typically find that home- schooled children score as high, or higher than, school-educated students. As an example, a

Section 8.3Teachers’ Responsibilities and Rights

2006 study showed that homeschooled students scored an average 22.4 on the ACT for col- lege admissions, while the national average was 21.1 (Stossel, 2010).

Finally, advocates of homeschooling claim that homeschooled children do not waste valuable instructional time changing classes or sitting in study halls, and they argue that the family unit is strengthened by the parent’s daily involvement with the children.

Assess Yourself 1. Would you want to teach at one of the alternative schools discussed in this chapter?

Why or why not? If the idea appeals to you, would it be worth a pay cut? Explain your reasoning.

2. How do you feel about homeschooling? Do you think parents can be qualified if they haven’t taken any courses about teaching? Explain your answer.

3. What personal characteristics should parents who want to homeschool their child possess? Explain your answer.

8.3 Teachers’ Responsibilities and Rights No matter what model of schooling you eventually work in, it is important to be aware of your legal responsibilities as well as your rights. This section provides important information for you to consider.

Teacher Responsibilities Toward Students Of course, most teachers will never be sued, but it is good to know when and why it might happen and what to do if it does. Teachers have certain legal responsibilities and can be sued if they are negligent in those duties. To be found negligent, the plaintiff must prove that:

1. the teacher (the defendant) had a duty to protect the student from harm, 2. the duty was breached, and 3. the student was injured mentally or physically (or both) 4. as a result of the breach. Note that the client (plaintiff ) must prove all four conditions

to succeed in a negligence suit against an educator.

Basically, a judge tries to determine whether the defendant’s behavior departed significantly from actions taken by any other “reasonable person” in that position in similar circumstances. If the judge concludes that a teacher did fail to provide a certain “standard of care,” the teacher may have to pay compensatory damages to the client. Compensatory damages are usually awarded in civil (tort) suits; a tort is defined as a legal injury or wrong against a person or property. It is important to realize that criminal, as well as civil, charges can be brought against teachers. Penalties imposed on teachers found guilty of criminal acts include fines and impris- onment (or both) depending on the seriousness of the offense. A teacher’s license or

Section 8.3Teachers’ Responsibilities and Rights

certification status could be suspended or revoked depending on the final out- come. It is possible, however, that there can also be protection for school personnel. In a 2002 case against the Pasco County, Florida schools, the par- ents of a high school student, Ted Niziol, who accidentally and fatally shot himself with a gun in his school parking lot, argued that the teachers, principal, and school security person- nel did not fulfill their obligation to carry out requirements for a gun-free campus. The case was dropped by the court, in part because school person- nel were seen as entitled to limited immunity from prosecution.

Because of the gravity of this topic, the following is a list of some behaviors that could put teachers at legal risk. This list is far from encompassing, so be sure to think of other behaviors that might indicate legal trouble for teachers.

Protect Students From Harm Teachers and school personnel assume the place (role) of parents and guardians while stu- dents are under their care; this is called “in loco parentis,” or “in the place of parents.” The National Education Association (NEA) Code of Ethics states that teachers “shall make reason- able effort to protect the students from conditions harmful to learning or health and safety” (2010, para. 13). The American Federation of Teachers (AFT) Bill of Rights and Responsibili- ties states, “All students and staff have a right to schools that are safe, orderly, and drug free” (1996, para. 3). Thus, teachers are duty bound to ensure a safe environment for students while students are on school property or participating in school-sponsored events such as field trips, athletic contests, or other activities. Responsible teachers take necessary precau- tions to lessen the risk of students’ injuries. Think about this example: A teacher is late for hall duty one morning; in her absence, a fight erupts and a student bystander is hurt. Is the teacher liable? (Most likely yes.) On the other hand, if the teacher had been on duty and was paying attention and the fight still occurred, is the teacher liable now? (More than likely no!)

Let’s look at a related question: What is a teacher’s duty to protect students from impending danger? Obviously, teachers are not fortune-tellers. They cannot accurately predict danger- ous situations. It is unrealistic to think a teacher could prevent mishaps or tragedies from occurring. Nevertheless, in the case above, if the teacher had been on duty as assigned, the injury might not have happened. If a teacher is given advance warning of imminent danger and fails to act on this information, is the teacher liable? (In this case, probably yes.) If, for example, a student reveals to a teacher that she intends to hurt another student, the teacher should notify the building principal at once. A student’s threat against others or against self (a suicidal threat) must be taken seriously; teachers are obligated to report such threats to

Tomloel/Thinkstock Teachers are duty bound to ensure a safe environment for students. Negligence of any kind can result in lawsuits and career consequences.

Section 8.3Teachers’ Responsibilities and Rights

the proper authorities. Most schools today have comprehensive crisis management plans in place, which can be very helpful to a new teacher who may not know what to do in the event of an emergency.

At first glance, many recent court decisions relating to school safety appear to infringe on students’ civil rights; however, on further analysis, it appears that is not necessarily the case. Most courts have upheld the right of school officials to conduct a random search and seizure on school property. Judges grant administrators latitude to conduct searches (even individual and property) when there is a “reasonable suspicion” to believe a student is concealing weap- ons, drugs, or other illegal items. Metal detectors have also been upheld by the courts as con- stitutional (Alexander & Alexander, 2005). These rulings support strong measures taken in schools today as a way to protect the common good. In other words, the end (safety) justifies the means (metal detectors).

In recent years, the horror of school shootings has led to questions about how best to protect students from such previously unthinkable experiences. While bullying issues have generally been assumed to be the most common motivations for these events, careful analysis of them has led to an understanding that it is more likely student-teacher conflict. Thus, teachers have an important responsibility when it comes to positive interactions with their students, especially those who may be psychologically disturbed. While individual schools and districts have created protective devices and plans, there is no widespread agreement on what will be most effective and acceptable. Nationally, much discussion on the topic emerged after the 2012 fatal shootings of 26 children and staff at Sandy Hook Elementary School in Connecti- cut. For example, Arkansas created plans to arm every teacher, an idea that was eventually rejected by the state’s attorney general. In Ohio, the attorney general reviewed his state’s school plans and determined that they were mostly out of date, ineffective, and yet extremely difficult to improve upon. A year after Sandy Hook, attempts at improvement in school safety seemed to be going nowhere with several apparent causes: bureaucratic mishandling, expen- sive and difficult-to-pay- for safety equipment, and disagreements about what is appropriate for school personnel to handle, especially weapons (Brenneman, 2013). The difficult con- versations about how best to protect children in crisis situations are ongoing, particularly as “school safety strategy requires teamwork among all levels of the district―students, teachers, parents, administrators, and community members―and building consensus requires a lot of persistence” (Brenneman, 2013, para. 8).

Safeguard Students’ Privacy In 1974, the United States Congress passed the Buckley Amendment (Family Educational Rights and Privacy Act, P.L. 93-380), referred to as FERPA, which protects students’ privacy rights. In essence, FERPA prohibits the release of students’ test scores and other records to anyone other than courts and school personnel (who have “a right to know”) without written permission from the parents or guardians. Persons designated as having “a right to know” are those who have a “legitimate educational interest” in the student, such as classroom teach- ers. Obviously, teachers should have access to academic files, because the information therein can be extremely useful for individualizing instruction for students. Once students are 18 or older, or at an earlier age if they attend a post-secondary institution, school personnel are not at liberty to discuss or release students’ academic records unless the students grant explicit approval. Otherwise, parents represent their minor children and can have access.

Section 8.3Teachers’ Responsibilities and Rights

Although a teacher cannot be held liable for failing to comply with FERPA, the school district can be, which translates to losing federal funding. To prevent school personnel from inad- vertently violating the Buckley Amendment, school districts have developed strict guidelines and procedures for accessing files, releasing information, and storing files. Beginning teach- ers should be informed at the outset of these procedures and must be willing to comply with FERPA’s regulations. For example, a teacher who allows a student to distribute or call out grades is violating privacy rights under the Buckley Amendment.

Adhere to Copyright Laws Educators must abide by copyright regulations. However, because teachers need quick access to printed materials for the delivery of instruction, those legal guidelines are less binding. To clarify teachers’ rights to photocopy published works, the U.S. Congress in 1976 revised the original Copyright Act of 1909 to include a fair use provision. This clause provides specific guidelines for teachers to adhere to when copying printed materials. A teacher, for example, can make a single copy of a published piece for instruction or research without prior permis- sion from the author if the piece is fewer than 250 words (e.g., a poem). Lengthier pieces of more than 1,000 words or 10% of the printed material (whichever comes first) cannot be copied without the copyholder’s permission. Nevertheless, if a teacher needs something right away for a particular class (making it impossible to obtain the author’s permission in time), the teacher can make the copy—as long as it is from a single work and is used only once per semester in a given course.

In 1980, Congress amended the Copyright Act to include a “fair use” provision relative to computer software programs. In most situations, teachers can now make one backup copy of a software program. Keep in mind that as a rule it is illegal to copy software packages, as well as material off the Internet, unless otherwise stated. The following year, Congress passed

legislation regarding the taping of live television broadcasts. Teachers can legally tape a television show as long as the video is (1) shown only once to any class within the first 10 days of taping, and (2) erased after 45 days. As you can see, teachers cannot collect tapes and create an educational library for future reference.

Even though copyright laws are less stringent on teachers, they must still exercise due care. Teachers need to pay close attention to the guidelines, not only because it is the legal thing to do, but also because they are demonstrat- ing to their students how important it is to respect someone else’s work.

Marting Diebel/Getty Images Most teachers feel a need to use copyrighted materials in their daily teaching. The guidelines for this practice are strict, however.

Section 8.3Teachers’ Responsibilities and Rights

Teach Responsibly An educational malpractice suit is a claim made by a student that a certain teacher or school district failed to adequately prepare him or her to function effectively in a competitive soci- ety. As you can imagine, this type of malpractice suit is very difficult for students to win, primarily because it is virtually impossible to prove that a student’s academic deficiencies were caused by a teacher’s breach of duty (or negligence). There are too many “nonschool” factors― ranging from lack of sufficient nutrition to home conditions that interfere with get- ting homework done―that may have interfered with that student’s progress in school. It is unrealistic to think that any teacher could promise that every student in class will meet cer- tain levels of proficiency (Hartmeister, 1995). The few educational malpractice suits that have succeeded have been claims made by special-education students who had been inaccurately labeled or diagnosed (Hartmeister, 1995). To date, courts steer clear of educational account- ability cases. This may not continue to be the case, however, especially with the increased use of high-stakes tests that determine whether a student passes or graduates. Considering the rise in the number of claims made against other professionals such as doctors and lawyers, it is important to be aware of educational malpractice. (Laws can change, as can public opinion, so stay alert.)

Defend Students’ Freedom of Expression Freedom of expression is a fundamental right protected by the First Amendment to the U.S. Constitution. Tinker v. Des Moines Independent Community School District (1969) was a land- mark case establishing students’ rights to free expression. In response to a group of students wearing black armbands to protest U.S. involvement in Vietnam, the Des Moines School Board instituted a policy forbidding the wearing of armbands. Students who refused to comply were suspended. The U.S. Supreme Court decided that as long as the students’ behavior (i.e., wear- ing armbands) did not disrupt the educational process, the students had the right to do so. This decision ultimately struck down the school’s rule as an abridgement of students’ rights to free expression.

Acknowledge Students’ Right to an Education The U.S. Supreme Court in the Tinker decision also established students’ rights to free educa- tion; hence, schools cannot arbitrarily remove a student from school without due process. The right of due process is protected under the Fourteenth Amendment to the U.S. Constitu- tion. To be deprived of an education curtails a student’s “property” rights; to be suspended or expelled compromises a student’s “liberty” rights.

In Goss v. Lopez (1975), the U.S. Supreme Court ruled that students suspended fewer than 10 days are entitled to oral or written notice of the charges to give them time to respond to the charges. School expulsions and suspensions of more than 10 days require schools to fol- low even more rigorous due process procedures. School districts must inform students in advance of specific behaviors that warrant being removed from school. And when a student faces disciplinary actions, the school must adhere to proper procedures (i.e., due process) for a fair dismissal. (There may be exceptions when imminent danger is an issue.)

Section 8.3Teachers’ Responsibilities and Rights

Report Suspected Cases of Student Abuse or Neglect Most state laws designate teachers as mandated reporters, which means they are legally required to report suspected child abuse. If a teacher has reasonable cause to suspect child abuse and fails to report it, he or she could be held liable. Beginning teachers are often afraid to make reports; they fear the report could come back “unfounded” or “unsubstantiated.” You should know that teachers are not liable if that happens; legislators cannot mandate a per- son to do something and then fail to protect the person for compliance. Mandated reporters are typically immune from prosecution because it is assumed they reported in good faith and without malice based on the information at hand. On the other hand, if a teacher fails to report a suspected abuse case and later the child is seriously hurt, the teacher could be held liable. Penalties for failing to report abuse include fines and jail sentences (or both). It is bet- ter to report than not to report if you have reasonable cause to suspect abuse.

It is important to follow through on any report made, because sometimes cases get lost in the bureaucratic system. The reality is that most state agencies operate on shoestring budgets; consequently, investigators are overworked, underpaid, overstressed, and underappreciated. It is wise to keep in touch with the school counselor because most state agencies are legally required to report back to the counselor on the status of abuse cases. In the meantime, you can offer support and kindness to a student in an abusive situation, because abused children need and deserve all the help they can get. Think about how you might respond in Case in Point: “Will You Keep a Secret?”

Case in Point: “Will You Keep a Secret?” Ms. Gould has been teaching home economics in middle school for many years. Ms. Gould encourages her students to turn to her for support and guidance; her students see her as a mother figure. Late one afternoon, one of her students, Josie, lingers after school, ostensibly to help her clean up. Ms. Gould notices that Josie appears unusually nervous and distracted, so she asks what is wrong. Josie asks, “Will you keep a secret?” Ms. Gould nods her head affir- matively. Josie then reveals that her mom’s behavior has been unpredictable and aggressive lately. The previous night, her mom slapped her several times across the face for failing to do the dishes on time. (Ms. Gould does not notice any apparent signs of swelling or bruising on Josie’s face.) Josie discloses that she is afraid of what her mom will do next. Ms. Gould looks at the clock and realizes that by now the school counselor and the principal have left for the day.

Questions to Consider

1. If you were Ms. Gould, what would you do?

2. Do you think there could be circumstances in which a teacher who suspects abuse decides not to report?

3. Would the age or academic performance of the student make a difference?

For an interactive version of this case study, visit your e-book.

Section 8.3Teachers’ Responsibilities and Rights

Refrain From Engaging in Any Form of Child Abuse In their book Teachers at Risk: Crisis in the Classroom, Villaume and Foley (1993) warned that abuse of students by teachers is equivalent to child abuse and teachers can be held liable for it. Prospective teachers need to have a clear understanding of the different forms of student abuse as their best line of defense against being charged. Teachers must be very careful that their actions do not in any way constitute child abuse, which can take the form of emotional (verbal), physical, or sexual abuse.

Emotional Abuse. Teachers can be held liable for verbal or emotional abuse. According to Philip Villaume, a legal attorney who defends teachers and other professionals charged with white-collar crimes, emotional abuse is defined as “any conduct, action, or words for that matter that would cause mental injury to a child.” It also includes things such as “badgering or overwork- ing students . . . and using corporal punishment” (Villaume & Foley, 1993, p. 18).

Teachers who call students “stupid,” “dumb,” or “slow” are verbally abusing their students. Do you remember former teachers who would belittle or demean students in public? Were you a victim of verbal abuse? Threatening students (idle or not) is emotional blackmail and should be avoided. Even sarcasm disguised as humor should be avoided; students are generally well aware of the underlying intent.

Physical Abuse. Teachers can be held liable for physical abuse. Students who are hit, spanked, or restrained excessively by teachers can file charges against teachers for causing bodily harm or emotional abuse. A teacher may be found liable even in cases where pain is inflicted accidentally or no visible signs of abuse exist.

Some teachers have problems recognizing abuse because of their own unresolved abuse issues. Admittedly, being a victim of severe punishment as a child can evoke intense emotions as an adult. If not dealt with honestly, however, this unfinished business could significantly impair a teacher’s ability to manage students’ misbehavior. Unresolved anger from your past can adversely affect your present relationships with students and others.

Sexual Abuse. Teachers can be held liable for sexual abuse. Any teacher who engages in sexual intimacies with students has blatantly crossed the line and thus faces serious charges. The media have publicized many cases of teachers charged with having illicit relationships with students. Judges tend, understandably, to be very hard on teachers found guilty of sexual mis- conduct with their students. In Franklin v. Gwinnett County Public Schools (1992), the U.S. Supreme Court made it possible for students to collect monetary damages from school dis- tricts that violate Title IX.

Zurijeta/Thinkstock Teachers can be held liable for child abuse if they verbally or physically abuse their students.

Section 8.3Teachers’ Responsibilities and Rights

Simply put, sexual contact with a student (consensual or not) is illegal, and the school employee is the guilty party. A school district can also be held liable when one of its employ- ees is found guilty of sexual harassment. In such cases, the Office for Civil Rights (OCR) in the U.S. Department of Education can discipline schools by withdrawing federal monies.

There are two bits of advice we offer here. First, if you observe any instances of sexual harass- ment, not only against a child but also against someone on staff or yourself,

you should report it to the school administrator immediately. This is particu- larly important in the case of sexual harassment involving students, since they are likely to be more vulnerable and less well able to deal with these kinds of situations than adults. (Singer, 2003, p. 93)

Second, a word of advice related to situations where you might be the accused: The safest policy is to avoid putting yourself in any precarious position that could be misconstrued as a sexual advance. Avoid any hint of impropriety that could be misinterpreted by a vulnerable child. A simple hug could be perceived by a needy or vengeful student as a caress, which could lead to sexual allegations being made against that teacher. To minimize risks, some teachers decide on a “no touch” policy to avoid misunderstandings. Others avoid misunderstanding by hugging from the side with a hand placed around the shoulder. Finally, it is important to remember that “[t]eachers need to know the law. Ignorance is no excuse” (Guillaume, 2012, p. 6).

Assess Yourself 1. Do you think a “no touch” policy is too extreme? After all, there are “good touches,”

such as hugs and pats on the back. Do you think teachers who implement such a policy are overreacting to a few isolated cases? Does the age of the child or grade level make a difference? If so, in what way?

2. As a teacher, describe what your policy might be regarding touching students. What variables would you consider when deciding whether to touch students or not?

Teachers’ Rights At this juncture, you may feel that teachers have no rights, which is not true. Teachers actually do have rights, and you should know what they are in order to protect yourself. It may relieve you to know that teachers can bring legal action against an administration whenever they feel their constitutional rights have been violated. In an increasing number of cases, courts are ruling in teachers’ favor.

As a beginning teacher, you need to understand your own professional employment rights so that you can protect yourself against unfair dismissal practices in addition to false allegations. Professional organizations such as the National Education Association (NEA) and the Ameri- can Federation of Teachers (AFT) offer free advice to teachers who are unsure whether their civil rights have been abridged.

Section 8.3Teachers’ Responsibilities and Rights

Freedom of Expression A teacher’s right to freedom of expression (just like that of any other citizen) is protected under the First Amendment of the U.S. Constitution. However, teachers do not have unlimited free speech, primarily because of the uniqueness of their audience (i.e., impressionable and vulnerable children). This limits what teachers can say and do in a classroom. Spring (1998) enumerates three criteria judges use in cases involving free speech: whether the material or statements made by the teacher were “appropriate for the age of the students, related to the curriculum for that course, and approved by other members of the profession” (p. 273).

Generally, courts have upheld a teacher’s right to criticize a school policy, as long as this action does not interfere with the normal operations of the school. For example, in 1968 in Pickering v. Board of Education of Township High School, the U.S. Supreme Court overturned an appellate court’s decision and found that Pickering (a teacher fired for writing a letter to the local newspaper criticizing the way the school board and superintendent had han- dled tax increases) had not spoken falsely or “recklessly.” Therefore, the school board had no right to dismiss him for exercising his right to free speech (Alexander & Alex- ander, 2005).

Tenure and Employment The Fourteenth Amendment, which protects citizens’ rights to life, liberty, and property, applies to teachers as well. Tenure, which is awarded to teachers after a specified period of time and implies a contract of secure employment, has been interpreted as a “property” right under the law (Fischer & Sorenson, 1996). Courts have ruled that school boards cannot deprive a teacher of “property” without due process. As already mentioned, due process pro- cedures basically protect individuals from arbitrary actions. Tenured teachers, for example, have the right to due tenure process before they can be dismissed. Therefore, before a ten- ured teacher can be dismissed, he or she must receive proper notification in order to respond and defend his or her actions. During a hearing, both sides are given an opportunity to pre- sent their case before a final decision is rendered. Grounds for dismissal vary by state law; however, immorality, insubordination, and incompetence could be causes for dismissal.

Private Life You may be wondering about the extent to which a teacher’s private life can be held up to public scrutiny. In other words, when are teachers officially off duty? Is it anyone’s business what they do on their own time? As a rule, recent court decisions tend to uphold a teacher’s right to a private life unless the conduct creates a “substantial disruption” to the educational process. For example, in Morrison v. State Board of Education (1969), the California Supreme Court ruled that a teacher’s sexual orientation cannot be grounds for losing certification

JGI/Jamie Grill/Getty Images Teachers are protected by the First Amendment, but there are important criteria that are used to evaluate a teacher’s freedoms in the classroom.

Summary & Resources

status unless that conduct becomes a matter of public controversy and thus impairs a teach- er’s effectiveness. Although courts have differentiated between private and public lives, it is important for teachers to consider where their use of technology might lead. Social media such as Facebook and Twitter have their attractions but in many ways can lead to unwanted public disclosures. Thus, caution is warranted in their use. Keep in mind during any commu- nication what might happen if the “wrong” people read what you have written. This might even include potential employers.

Today’s courts generally distinguish between private and professional lives, and judges tend to support a teacher’s right to privacy unless the behavior is seen as “immoral” or incites an unfavorable reaction within the community (Fischer & Sorenson, 1996). Of course, spelling out what is “immoral” is difficult to do. Morality is contingent on many factors, including the national climate, geographic region, and particular locale. And let’s not forget that federal judges are appointed by the president of the United States, with Senate approval; thus, poli- tics enters into the equation. Nonetheless, the greatest influence comes from the values of the citizens in a local community. School boards are particularly sensitive to the sentiments of the people they serve.

Summary & Resources

Chapter Summary This chapter focused on three contemporary concerns and their related issues: school fund- ing, school choice, and teacher responsibilities and rights. The most common way to fund schools has long been through taxing personal property. This has led to inequality and ineq- uities, which have been dealt with in a variety of ways. Federal and state governments have addressed these issues, and judicial responses have helped as well. A number of choices pre- sent themselves to students in the United States when it comes to selecting a preferred model of schooling. Some, such as charter schools and magnet schools, are linked to public fund- ing. In addition, parents can choose private schools or homeschooling. Each model has its strengths and weaknesses. Teacher responsibilities are numerous and, to a great extent, are decreed by law and district policies. At the same time, teachers also have rights, which protect and support them from their first hiring and throughout their careers.

Questions for Further Critical Thinking & Reflection

1. How do you think inequities in school funding can be remedied? Should it be the role of the federal or the state government to provide for most school funding? Explain why.

2. What are the benefits of teaching at one of the alternative schools discussed in this chapter? What are the disadvantages?

3. Do you see the threat of litigation as necessary for ensuring that students’ civil rights are protected? Or do you view it as a “burden” or an exaggerated response?

4. Consider the following cases: A teacher smokes marijuana at home; a teacher lives with a lover without being legally married; a teacher is arrested for driving under the influence (first offense); a teacher frequents a local bar (even on school nights)

Summary & Resources

and stays out rather late; a teacher poses nude for a magazine. If you were a judge or an administrator, how would you rule on these cases? Would the gender of the teacher make any difference in your decisions? Explain your reasoning.

Web Resources The American Federation of Teachers (AFT). The AFT is the second largest teachers union,

after the NEA. Its website provides updated political news as well as helpful links to other information. There are, of course, invitations to join. http://www.aft.org

The National Education Association (NEA). The NEA provides information on current educa- tion news, links to free educational materials, and positions on educational issues. http://www.nea.org

The Magnet Schools of America (MSA). The MSA supports the original focus of magnet schools on desegregation, diversity, and excellence. As such, it is dedicated to being a clearinghouse for information and promoting legislative advocacy for magnet schools. http://www.magnet.edu

The National Alliance for Public Charter Schools. This organization is devoted to establishing new public charter schools and strengthening weak ones. The website offers informa- tion about such schools and why they are important. To find out about your own state, you can make use of the United States interactive map. http://www.publiccharters.org

The National Center for Educational Statistics. Like the NEA, the National Center for Educa- tional Statistics provides current information on education issues but is less likely to take positions on them. Instead, it provides national testing results and statistics. http://www.nces.ed.gov

Education News.org. This site has frequently updated news on education law and policy and links to various educational organizations. http://www.educationnews.org

NBC News-Education Nation. This site has frequently updated stories and commentary about many aspects of education. http://www.nbcnews.com/feature/education-nation

Additional Resources Gurian, M., Stevens, K., & Daniels, P. (2009). Successful single-sex classrooms: A practical guide

to teaching boys & girls separately. San Francisco: Jossey-Bass.

Stern, S. (2003). Breaking free: Public school lessons and the imperative of school choice. San Francisco, CA: Encounter Books.

Summary & Resources

Key Terms block grant Money that is awarded by the federal government to states or local govern- ments with few specific restrictions.

categorical aid Federal financial assistance for specific projects.

charter schools Publicly funded indepen- dent schools that are permitted, by special charter, to engage in experimental or non- traditional education. They may be founded by parents, teachers, or other community groups.

FERPA (Family Educational Rights and Privacy Act) Federal legislation from 1974 that protects the privacy of students’ per- sonally identifiable information. Applies to all educational institutions that receive federal funds.

forest kindergarten Outdoor education for pre-primary age children. Unless the weather is severe, all activities take place in a neighborhood wooded area.

homeschooling School experiences pro- vided totally or mostly in the student’s own home. Some public school districts provide curriculum help and occasional group expe- riences for local homeschooled children.

innovation school A public school that is permitted to engage in innovative and creative programs and without the usual government restrictions.

International Baccalaureate (IB) A pro- gram founded in Geneva, Switzerland, to provide a college preparatory education with an international focus. While IB pro- grams are now found in many countries, the United States has the most.

magnet school A school with special features designed to attract students from a wide geographical area rather than only the immediate neighborhood. Originally viewed as one way to achieve racial and financial diversity among students.

parochial school A school under the juris- diction of a church.

private enterprise school Sometimes referred to as a for-profit school. A pub- lic school under the auspices of a private company.

private school A school that receives no public funding but is financially supported by students’ families or organizations.