Discussions of Chapter 10: "Legal Perspectives on Education"
Kishon
SS203Spring2019Chp10Powerpoint.pptxPresented By: Jordan Hurns, Ernestine Kirkwood, and Joshua Ratliff
Chapter 10
Legal Perspectives on Education
Legal Aspects of Education
A critical component of becoming a teacher is to develop basic familiarity with the legal perspective. Teachers not only need to understand the law as it relates to their right and responsibilities but also must be knowledgeable about the rights of their students. As is readily apparent in the social media by teachers and students. As students and teachers increase their use of these technologies, there are a growing number of challenges in the courts, and policy makers are grappling with what rules of use need to be established.
Learning about the legal aspects of education begins with developing an understanding of the importance of the U.S Constitution and the Bill of Rights. All else evolves from interpretations of the Constitution. Within the boundaries of U.S. law, each state is guided by its own constitution. Several additional sources of laws exist at the federal, state, and local levels, and a number of processes are in place for addressing disputes.
Some laws are developed out of the legislative process. These are referred to as enabling laws, or those that provide opportunity or make it possible for educators to do certain things. Also, laws can impose restrictions or prohibitions. Another form of law, administrative law, is made up of the rules and regulations that the executive branches of government has established a new statue or policy, a government office, such as the U.S. Department of Education and/or the state education department, will develop rules and procedures related to implementing the new policy. These rules and procedures can have the force of law too.
Once legislation is enacted into law and the rules and procedures are in place. If a question of interpretation is raised, then the judicial interpretive process is engaged. The judicial process also is used when it appears that a law has been violated. The sampling of legal topics presented in this chapter includes examples from constitutional law, state and federal statutes, and case law based on court interpretations. All apply directly to schools, teachers, and students.
Legal Provision for Education: The U.S. Constitution
The U.S. Constitution is the fundamental law for the nation. When Congress develops a new statue, it must be in accordance with the U.S. Constitution. When a state legislature develops a new law, it must be in accordance with the U.S. Constitution and that state’s constitution
Three of the amendments to the U.S. Constitution are particularly significant to the governance of education, both public and private. Interpretations by the courts of each of these amendments- the Tenth, First, and Fourteenth- have had profound impacts on the role and purpose of schools, the opportunities of all students to have access to an education, and the responsibilities and rights of teachers, students, and school administrators.
Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people (From All Amendments to the United States Constitution. Published by U.S. Constitution, 2015).
The U.S. Constitution does not specifically provide for public for public education; however, the Tenth Amendment has been interpreted as granting this power to the states. Therefore, education in the United States is not nationalized as it is in many other nations of the world. Each state has provided for education either in its constitution or in its basic statutory law. For example, Part 6, Section 2, of the Ohio Constitution reads:
The General Assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state (From Constitution of the State of Ohio, Section 2, Part 6. Published by the Supreme Court of Ohio, 2015.).
Through such statements, the people of the various states commit themselves to a responsibility for education. The state legislatures are obliged to fulfill this commitment.
First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.
As illustrated in the cases presented later in this chapter, two important clauses in the First Amendment have been applied repeatedly to issues confronting public education: (1) the establishment clause, “Congress shall make no law respecting an establishment of religion,” and (2) the free speech clause, which has direct implications for teacher and student rights.
Fourteenth Amendment
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.
The application of the Fourteenth Amendment to public education as considered in this chapter deals primarily with the equal protection clause; “nor shall any State… deny to any person within its jurisdiction the equal protection of the laws” (From All Amendments to the United States Constitution. Published by U.S. Constitution, 2015). Equal educational opportunity is protected under the Fourteenth Amendment. In effect, the right of citizens of the United States are ensured by the Constitution and cannot be violated by state laws or action.
CHILD BENEFIT THEORY – This theory came from the commentary of Everson v. Board of Education; the use of public funds to provide secular services should benefit the child, not the school or religion. i.e. books, text materials, transportation, etc.
The child benefit theory has penetrated federal legislation.
i.e. the original Elementary and Secondary Education Act of 1965 (ESEA) states that children from families attending private schools must be provided services in proportion to their numbers
No Child Left Behind
TITLE I TEAHCERS IN RELIGIOUS SCHOOLS – In Aguilar v. Felton, the court struck down on the use of Title I funds to pay public school teachers who taught in programs to help low-income students in parochial schools. In Agostini v. Felton, it is determined that under specific safeguards, Title I teachers can be sent to serve disadvantaged students in religious schools.
EQUAL OPPORTUNITY
Title VI of the Civil Rights Act of 1964:
No person... shall, on the grounds of race, color, or national origin, be excluded from participation in, ...denied benefits of, or be subjected to discrimination under any program... receiving federal financial assistance.
Title VII:
It shall be an unlawful practice for an employer (1) to fail, refuse to hire, or discharge any individual, or... discriminate with respect to his compensation, terms, conditions, or privileges of employment, because of race, color, religion, sex, or national origin.
Title IX of the Education Amendments Act of 1972:
No person... shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program... receiving federal financial assistance.
Priorities for funding are based on need rather than specific disability
Top Priority
The child who currently receives no education
The child who is not receiving all the services he or she needs to succeed
Uses of Social Media and The Law
The ever-increasing variety of forms and uses of technology are sources of promises practices for teaching and learning. They also are potential sources of problems for teachers and students and are increasingly playing a part in disciplinary and legal actions
E-mail and Texting
Two of the most ubiquitous forms of technology used in schools are e-mail and texting. E-mail seems to have become the basic form of communication between administrators and teachers. Texting is a basic form of communication between teachers and other teachers and students with other students. Teachers may use e-mail and texting to communicate with students and parents. Problems can arise by hitting the “Send” key before the message is carefully composed or by sending the message to “All” instead of only replying to the original sender. These mistakes can create embarrassing moments. But some can have more serious consequences.
Employer Monitoring of E-Mails
You may wonder whether it is legal for a school district to monitor the e-mails of its teachers or for the college where you are studying teacher education to read your e-mails. If you use the college or school district’s e-mail system, then the answer is yes, it is legal to do so
You can have a problem if inappropriate content is discovered in your e-mails or on your computer
Social Networking Risks
Using cell phones to take and share photos and the extensive social networking through Facebook and Twitter are causing concern and serious problems. Content that is of a personal or sexual nature will become the basis for dismissal as discussed in this chapter’s “Education in the News” feature.
The innocent acts of youth can lead to legal proceedings, as teenagers in several states have discovered with sexting. In several cases, officials have threatened to charge or are actually doing so girls who allegedly sent nude photos of themselves with lewd exhibition and the boys who received the photos with possession of child pornography.
The misuses of social networking by students may be viewed as happening through the innocence of youth. Similar behaviors by teachers are inexcusable, and they are being prosecuted. The recent case in a Los Angeles elementary school of a teacher taking bondage-style pictures of children is a case in point. The teacher had been teaching for more than thirty years. He now is charged with twenty-three counts of committing lewd acts on children.
An unfortunate part of the Los Angeles case, as well as many others, is that nothing was done when one or more of the children reported the teacher’s behavior to other teachers and/or school administration. Adults have a legal responsibility not only to report but also to make sure that possible misdeeds by teachers and students are investigated. Not doing so will make you legally responsible and potentially liable
Cheating With Technology
Another increasing challenge for teachers is to determine when students are using technology to cheat. Instances of using a cell phone while taking a test to snap pictures of test items and having an outsider call in the correct answers are more common than teachers want to believe
Plagiarism on term papers is another problem. Fortunately, several websites and services are available that can be used to catch those who copy from published text.
Teachers must be vigilant in the classroom and, unfortunately, suspicious of how their students are using social media and other forms of technology
Students’ Rights and Responsibilities
The rights of students have changed since the late 1960s. Before 1969, school authorities clearly had the final say on educational matters as long as what they decided was seen as reasonable
The school administration was seen as equivalent to parents in relation to discipline.
A key Supreme Court decision in 1969 changed the balance by concluding that students do not “she their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
These decisions led to several successful student challenges of school policies and procedures.
To Illustrate some of the issues and decisions related to student rights and responsibilities, we present specific court cases here. Note that the cases do not necessarily constitute the last been decided by the courts.
Students’ Rights as Citizens
Through a series of court decisions, all children in the United States have been granted the opportunity for a public school education. Further, although school officials have a great deal of authority, children as students maintain many of the constitutional rights that adult citizens enjoy all the time. As obvious as each of these points might seem, each has been the subject of debate and court decisions
Students’ Right to an Education
Children in the United States have a right to an education; this right is ensured in may state constitutions
It has been further defined by court decisions and is now interpreted to mean that each child has an equal opportunity to pursue education.
The right to an education, however, is not without certain prerequisites
Citizenship alone does not guarantee a free education
Residence does not mean that the student, parent, or guardian must pay real estate taxes; it means that the student must live in the school district in which he or she wants to attend school
Alien and Homeless Children Have The Right to go to School
In 1982, the U.S. Supreme Court ruled in Plyler v. Doe that the children of illegal aliens had a right to a free public education. Although today some continue to question this right, the courts have been consistent in holding that the Equal Protection Clause applies to all
In addition, the Court considered the impact on society of the failure to educate all students
A related problem is the more than 500,000 homeless children in the United States.
Congress addressed this growing problem in 1987 with passage of the Stewart B. Mckinney Homeless Assistance Act, which requires that “each State educational agency shall assure that each child of a homeless individual and each homeless youth have access to a free, appropriate public education” (From Stewart B. Mckinney Homeless Assistance Act. United States District Court, 2006)
Students’ Right to Sue
The U.S. Supreme Court has affirmed that student may sue school board members who are guilty of intentionally depriving students of their constitutional rights
In Wood v. Strickland (1975), the court held that school officials who discipline students unfairly cannot defend themselves against civil rights suits by claiming ignorance of pupils’ basic constitutional rights.
As a result of this decision, Judge Paul Williams, a federal judge in Arkansas, ordered that certain students who had been suspended could seek damages from individual school board members- though not from the school district as a corporate body
From these decisions, it is apparent that the U.S. Supreme Court is taking into account the rights of students
Students’ Right to Due Process
Much of the recent involvement of the courts with student rights has concerned due process of law for pupils.
Due process is guaranteed by the Fourteenth Amendment.
Due process of law means following those rules and principles that have been established for enforcing and protecting the right of the accused.
The application of due process to issues in schools is a recent phenomenon. Historically, schools functioned under the doctrine of in loco parentis (“in the place of a parent”). This doctrine meant that schools could exercise almost complete control over students because they were acting as parent substitutes.
Under doctrine of in loco parentis, the courts have usually upheld the rules and regulations of local boards of education, particularly about pupil conduct.
Procedural Due Process in Cases of Suspension and Expulsion
Zero tolerance policies have complicated the local schools’ ability to balance students’ right to due process and serving students’ educational need.
Procedural due process is scrutinized especially in cases of suspension and expulsion
Procedural due process cases usually involve alleged violations of the Fourteenth Amendment, which provides for the protection of specified privileges of citizens, including notice to the student, impartiality of the hearing process, and the right of representation.
Substantive Due Process and Students’ Rights to Free Speech
Substantive due process frequently addresses questions of students’ constitutional rights to free speech versus the schools' authority to maintain order in support of education.
The Tinker Case (Tinker v. Des Moines Independent Community School District, 1996)
This case involved a school board’s attempt to keep students from wearing black armbands in a protest against U.S. military activities in Vietnam. U.S. supreme Court ruled against the Des Moines school board.
The decision made does not concern aggressive, disruptive action or even group demonstrations, but did make it clear that whatever their age, students have constitutional rights, and that decision has had a wide-spread effect on the operation of schools in the United States.
Bethel School District No. 403 v. Fraser (1986)
Morse et al. v. Frederick, 551 U.S. 393
In conclusion of these cases, the court reduced further student free speech and increased the authority of school administrators. In 2007 in a five-to-four decision, the U.S.Supreme Court ruled that students have lesser protection of their Constitutional rights and that schools may "take steps to safeguard those entrusted to their case from speech that can reasonably be regarded as encouraging illegal drug use."
Students' Rights and Responsibilities in School
To ensure day-to-day orderly operation of schools, boards of education have the right to establish reasonable rules and regulations controlling pupils and their conduct. The right, or privilege, of children to attend school depends on their compliance with the rules and regulations of the school. There were numerous challenges upon the boards' actions such as dress codes and grooming, corporal punishment, the rights of married students, abuse and neglect, student publications' freedom of expression, disabilities, and searches.
Dress Codes and Grooming
A general principle seems to be that if the dress and grooming do not incite or cause disruptive behavior or pose a heath or safety problem, the court ruling is likely to support the students.
Lower court cases dealing with grooming have been decided in some instances in favor of the board of education.
Courts usually refused to uphold dress and hair length regulations for athletic teams or extracurricular groups unless the school proves that the hair or dress interfered with a student's ability to play the sport or preform the extracurricular activity.
Controversy over the length of students' hair or grooming in general is no longer critical because officials and students have a more common ground of agreement about what is acceptable. However as the 20th century unfolds, new questions could be raised in relation to the emergence of some new clothing trend.
Corporal Punishment
In 1977, the U.S. Supreme Court ruled on and finally resolved many of the issues related to corporal punishment.
Ingraham v. Wright, 1977
The opinion established that states may constitutionally authorize corporal punishment without prior hearing or notice and without consent by the student's parents or may as a matter of policy elect to prohibit or limit the use of corporal punishment. It also held that corporal punishment is not in violation of the Eight Amendment.
In response to the greater sensitivity to the student rights, many school districts have adopted administrative rules and regulations to restrict the occasions, nature, and manner of administering corporal punishment.
Sex Discrimination
Until late in the Twentieth Century, educational institutions could discriminate against females, whether they were students, staff, or faculty.
In 1972 The Ninety-Second Congress enacted Title IX of the education Amendments Act to remove sex discrimination against students and employees in federally assisted programs.
An individual can allege that any policy or practice is discriminary by writing a letter of complaint to the secretary of education, next an administrative hearing, and further actions include suing for monetary damages under Title IX, which the U.S. Supreme Court affirmed in the case Franklin v. Gwinnett County Schools(1992).
Marriage and Pregnancy
Until the last ten to twenty years, it was not unusual for school officials to expel students who married.
Some educators reasoned that married students could not preform well in school. They also believed that exclusion would help deter other teenagers from marrying.
School officials today cannot prohibit a student from attending school merely because he or she is married.
Married students are entitled to the same rights as unmarried students
Pregnancy
Today's schools enroll pregnant students without hesitation.
Title IX prohibits their exclusion from school or participation in extracurricular activities.
Schools rearranged their programs so that courses could be offered during after school hours or in the evening to accommodate married and pregnant students. This arrangement gives students the opportunity to work during the day and complete their education at a time that is convenient for them.
Counseling programs were also set in place to assist students with their adjustment to married and family life.
Educators Must Report Suspected Child Abuse and Neglect
Government bodies in the United States have the power to exercise police power, which means government is entrusted with the responsibility of looking after the health, safety, and welfare of all of its citizens.
Government act as guardians to those individuals who are not able to look after themselves. This guardianship extends to the care for children who have been either abused or neglected by their parents.
In 1974, Congress passed the Child Abuse Prevention and Treatment, which provides financial assistance to states that have developed and implemented programs for identifying, preventing, and treating instances of child abuse and neglect.
The severity of this problem has been highlighted by the requirement of mandatory reporting of suspected abuse and neglect to social service agencies.
Formerly, reporting was limited mainly to physicians, but today educators are also required to report instances of suspected abuse and neglect.
Some teachers are reluctant to do so because they fear a breakdown in student-teacher-parent relationships and the possibility of lawsuits alleging invasion of privacy, assault, or slander. Such fear should be diminished, however, by statutes that grant them immunity for acting in good faith.
Student Publications
In general, administrators have the authority to decide the purpose and objectives of student publications. If they conclude that journalistic independence is an objective, it is unlikely that courts would interfere with policies to implement this goal. At the same time, courts would also be unlikely to interfere with a determination by school authorities to exercise oversight, as long as they are not trying to suppress dissent or disfavored ideas.
Scoville v. Board of Education, 1970
Hazelwood School District v. Kuhlmeier (1988)
The U.S. Supreme Court ruled that administrators have board authority to control students expression in official newspapers, theatrical productions, and other forums that are part of the curriculum.
Rights of Students with Disabilities
Before the early 1970s, the access to education of students with disabilities was left to the discretion of different levels of government. In the early 1970s, court decisions established the position that students with disabilities were entitled to an “appropriate” education and to procedural protections against arbitrary treatment.
The Education for All Handicapped Children Act (EAHCA) was implemented to see that students with special needs have appropriate educational opportunities.
Student and Locker Searches
Most courts have refused to subject public school searches to strict Fourth Amendment standards. In general, the Fourth amendment protects individuals from search without a warrant, however the rationale is that school authorizes are obligated to maintain discipline and a sound educational environment and that that responsibility, along with their in loco parentis powers, gives them the right to conduct searches and seize contraband on reasonable suspicion without a warrant.
School authorities do not need a warrant to search student’s locker or a student vehicle on campus.
Reasonable suspicion exists when one has information that a student is in possession of something harmful or dangerous or when there is evidence of illegal activities such as drug dealing.
Peer Sexual Harassment
Title IX prohibits sex discrimination, and this includes students’ harassing other students.
Teasing, snapping bra straps, requesting sexual favors, making lewd comments about one’s appearance or body parts, telling sexual jokes, engaging in physical abuse, and touching inappropriately.
School districts are supposed to have in place a grievance procedure for sex discrimination complaints.
There’s no limit to student sexual harassment.
Rights of LGBT Students
The U.S. Department of Education states: Transgender students are protected from discrimination by federal law. They should use the bathroom of their gender identity. At the local level, different communities are deriving different solutions.
Cyberbullying: An Increasing Problem
The Center for Disease Control and Prevention (CDC) has three elements:
Unwanted aggressive behavior
Involving and or perceived power imbalance
Repeated multiples times or are likely to be repeated
Emerging Challenges
Teachers, students, and administrators must continually be aware of their responsibilities and the legal safeguards that protect students as well as educators. There are likely to be new cases related to drug testing searches weapons, and surely questionable uses of social media. Be sure that you, today as a teacher education candidate and in the future as a teacher, are fully cognizant of your responsibilities under the law.
