school law for teachers dr. tony evangelisto professor of educational administration and secondary...

School LawFor Teachers

Dr. Tony EvangelistoProfessor of Educational Administration and Secondary Education

The College of New JerseyEwing, NJ

This presentation is intended to provide an overview of the major legislation and legal principles that apply to public schools in the U.S.

The material presented is organized around four major focal points:

A. Legal conceptsB. The U. S. Constitution

and Amendments that apply to the schools

C. Specific mandates and restrictions based on court cases at the U.S. Supreme Court level

D. New Jersey laws and their impact

A. Legal Concepts

Legal Concepts

• Laws themselves and their application to specific situations are best understood within the context of the legal principles which are at their basis.

• In recorded history, there has been an evolution in the way in which humans have regarded the law and how it applies to those who govern and who are governed by it.

Lex Talionis

• This is the “Law of the Jungle”

• The powerful use their strength and ferocity to subdue and rule over those who are weaker

• Those who have strength to dominate over others become the leaders and impose their will by physical force

The Code of Hammurabi

• Hammurabi ruled in Mesopotamia around 1,700 B.C. (between the Tigris and the Euphrates Rivers, a region known as the “fertile crescent”)

• He created a code of 282 laws arranged under headings such as trade, family, labor, real estate, and personal property – it was chiseled onto a stone pillar, or stele, and placed where everyone could see it

• The basic principle behind Hammurabi’s Code was “an eye for an eye and a tooth for a tooth”

This is the Code of HammurabiFound in 1902 by DeMorgan

It is currently included in the collection of the Louvre, in Paris

The Laws of the Twelve Tables of

Ancient Rome

• In 451 B.C., Rome’s first written law code was carved onto 12 stone tablets that were set up in the Forum.

• The Twelve Tables of Law showed the strict separation between patricians and plebeians.

• Laws prohibited plebeians from serving as Consuls, entering the Senate, or marrying patricians.

• Yet, by listing laws and punishments, the Twelve Tables protected all citizens from unfair treatment.

The Divine Right of Kings

• This was a clever invention of rulers in the Middle Ages when Europe was under Church influence

• The concept was: The King’s power is granted directly from God and must be obeyed in the same way that God requires submission and obedience; disobeying the King is tantamount to disobeying God, with dire consequences……punishment in Hell for all eternity.

The Magna Carta

• On June 15, 1215, King John of England made peace with barons (who were rebellious over loss of lands in Normandy and heavy taxation) by putting his seal on the Magna Carta.

• It established the principle that the king had to obey the law of the land; i.e., that power is shared with those who are governed.

• In effect, The Magna Carta is the prototype of what evolved into constitutional government.

Constitutional Law

Since the signing of the Magna Carta, many nations have developed systems of laws based on written constitutions created with the consent

of the governed.

Remember that Law represents a system whereby human beings attempt to resolve disputes within the context of a legal system….the laws themselves, the court system, and the procedures proscribed in the legal system created in a political entity (country or state) Truth and justice, two monumental and wonderful ideals in the human realm, are not necessarily involved when cases are decided by the courts and when rulings are handed down

From the one-room schoolhouse at Roscoe Village, Ohio, Circa 1915

1. You will not marry during the 7. You may not smoke cigarettes. term of your contract. 8. You may not dress in bright colors.2. You are not to keep company 9. You may under no circumstances with men. dye your hair.3. You must be home between the 10. You must wear at least two hours of 8 p.m. and 6 a.m. petticoats.4. You may not loiter downtown 11. Your dresses must not be any in ice cream stores. shorter than two inches above5. You may not travel beyond the the ankle. city limits unless you have 12. To keep the schoolroom neat and permission of the chairman of clean, you must sweep the floor at the board. least once daily, scrub the floor at6. You may not ride in a carriage least once a week with hot, soapy or automobile with any man water; clean the blackboards at unless he is your father or least once a day; and start the fire brother. at 7 a.m. so the room will be warm

at 8 a.m.

Elements of School Law that affect

teachers and administrators

• Curriculum• Speech• Discipline• Race & Gender• Special Needs• Personnel • Teacher Rights• Contracts• Torts• Certification• Copyright & Fair Use

Forms of Law

• United States Constitution

• State Constitutions

• Federal and State Statutes

• Regulations

• Common Law

• School Board Policies

B. The Constitution of the United States of America

Constitutional Amendments with Impact on Schools

• Amendment I - 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 a redress of grievances

Constitutional Amendments With Impact on Schools

• Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Constitutional Amendments With Impact on Schools

• Amendment V - No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Judy, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Constitutional Amendments With Impact on Schools

• Amendment VI - In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his

defense.

Constitutional Amendments With Impact on Schools

• Amendment VIII - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Constitutional Amendments With Impact on Schools

• Amendment XIV - All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person which its jurisdiction the equal protection of the laws.

Constitutional Amendments With Impact on Schools

• Amendment X -The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Article Six of the Constitution of the United States

This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The State Court System in New Jersey

Supreme Court Located in Trenton

Superior Court, Appellate Division Hears appeals from Law and Chancery Division cases, administrative agencies, and Tax Court

Law DivisionCivil Division Criminal Division*Hears cases where * Hears cases wheresuing person wants person is accusedmore than $ 5,000 of a serious crime*Special civil part * Hears appealshears cases for from municipalless than $ 5,000 court*Landlord-tenantcases*Small claims (lessthan $ 1,000Administrative Law

Chancery Division General Equity Family Part Probate Part Hears cases where Hears divorces, Hears mattersthe person suing child custody, involvingdoes not want adoptions, and estates andmoney juvenile challenges to

matters wills

The Ultimate Perspective to remember regarding the law:i.e., what will be the ruling in any given case?

The outcome of any case ultimately depends on:•The facts of the case and proof to support them•The ability of the lawyers to make a strong, convincing case•The legal precedents and the extent to which they apply•The perceptions of the judge regarding the case and the precedents•The social, ethical, political, moral temper of the times•Rules of procedure and rules related to evidence

C. Specific Mandates….Court Cases

• The most far-reaching and comprehensive rulings that affect schools have resulted from cases adjudicated by the United States Supreme Court.

• What follows is a review of the Top Ten U.S. Supreme Court rulings that affect public schools in this country

Authors: Charles L. Russo, Julie Underwood, and Nelda Cambron-McCabe. Published in International Journal of Educational Reform, Volume 9, No. 1. January, 2000.

Authors’ note: the cases are orderedby the year in which they were decidedrather than by significance -- exceptthat Brown v. Board of Education isconsidered to be the most important case among these.

The Fourth Amendment applies to search of students by school officials, but search must be reasonable.Police must have “probable cause” for searches -a much higher standard.

T.L.O., and a friend were accused of violating school rules by smoking in the h.s. lavatory. The assistant principal opened herpurse and found cigarettes; upon further search, he found: marijuana, a clay pipe, plastic bags, and written material thatimplicated her in dealing marijuana. Thefamily claimed search was violation of TLO’s Fourth Amendment rights. The Supreme Court ruled in favor of the school.

the first case involving special education in the Supreme Court

The Court ruled that a school district does not have to provide a program that maximizes the potential of a child with a disability; the district is required to provide one that is appropriate and meaningful (I.e., more than trivial)

In 1975, the Texas legislature passed astatute withholding state per pupilallocations for students who were notlegally admitted into the U.S. The lawalso allowed districts to refuse to admitthese children. In Plyler v. Doe, theSupreme Court struck the statute downas unconstitutional. The Court believedthat refusing to admit these residentchildren to schools denied them animportant governmental interest.

This is the leading case on the due process rights of students who face short-term suspensions due to their misbehavior.

High school students in Columbus, Ohio, were suspended without hearings for a variety of infractions. The Supreme Courtheld in favor of the students. It decreed that since the state conferred a property right on students to receive an education, it could not be withdrawn due to misconduct absent fundamentally fair procedures to determine whether the misbehavior had, in fact, taken place. Notice of the charges and an opportunity to respond are essential.

This is the first and only equal protection suit on school finance examined by the Supreme Court. Parents of Mexican-American children filed a class-action suit on behalf of minority and poor students in Texas, alleging that the state’s system of funding, based on the value of taxable property in local school districts, was unconstitutional. The court ruled that the funding scheme did NOT violate the equal protection clause of the l4th Amendment.

This is the seminal case on the First Amendment free speechrights of students in public schools. In this case, junior andsenior high school students were suspended for refusing toremove black armbands they wore to protest Americaninvolvement in the Vietnam conflict. The SupremeCourt ruled in favor of the students. The Court ruled that wearing armbands as aform of passive, nondisruptive protest was thetype of symbolic act that placed the students’actions within the Free Speech Clause of the First Amendment. The Court ruled that school officials lack absolute power and that pupils do not “shed their constitutional rights to freedomof speech or expression at the schoolhouse gate.”

The Court ruled that the reading of the Bible or the recitation of the Lord’s Prayer in public schools violated the Establishment Clause of the First Amendment. It maintained that in order “to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.”

The Court later struck down as unconstitutional: * recitation of state composed prayer

in public schools * statute requiring Bible reading

and recitation of prayers * mandatory posting of Ten

Commandments in schools * statute mandating “moment of silence”

in public school classrooms

In Everson, the Court upheld a statute from New Jersey that permitted local boardsof education to reimburse parents of children who attended religiously affiliatednon-publicschools for the costs of transportation. The Court upheld the statute on the basis that, since education satisfied a secular state purpose, and transportation fit in the general category of other public services that are available to all, the benefit primarily accrued to the children and not to their religiously affiliated schools.

In ruling on two cases [one from Rhode Island andone from Pennsylvania], the Court created the tripartite test that it has since relied on in virtuallyall subsequent cases involving the Establishment Clause: 1) the statute must have a secular legislative purpose. 2) its primary effect must be one that neither advancesnor inhibits religion 3) the statute must not foster “an excessive governmententanglement with religion.”

At issue was the constitutionality of a statute from Oregon which required children to be sent to public schools. The Supreme Court ruled in favor of twononpublic schools that challenged the lawon the grounds that it violated their 14th Amendment Due Process right to the ownership of their property.This is the most important SupremeCourt case dealing with non-publicschools and parental rights to direct the education of their children.

In Brown I, the Court ruled that de juredesegregation in public schools on thebasis of race deprived minority childrenof equal educational opportunities inviolation of the Equal Protection Clauseof the Fourteenth Amendment. Thisoverturned the earlier ruling, in Plessyv. Ferguson, upholding separate/equal.

A year later, in Brown II, the Court began dismantling segregated systems“with all deliberate speed.”

Selected highlights from U.S. Supreme Court rulings

• School may regulate dress as long as the rules are designed to promote the educational mission of the school

• Schools have authority to maintain discipline and order…as long as the rules are written and “not overbroad” [nebulous]

• Schools may use reasonable force to maintain order and discipline

• When safety…is involved, schools may have a duty to investigate…including surveillance, questioning, and searching students, their possessions, or their lockers.

• Searches: there is no expectation of privacy if someone loses a backpack or purse…very thorough and intrusive searches may be justified

• Random drug testing of athletes is constitutionally permissible

• Schools may suspend or expel students…but due process requirements must be adhered to

• As long as procedural requirements are met, most school punishments, including corporal punishment, raise no Constitutional issues [about half of the states in the U.S. permit corporal punishment

Federal Statutory Restrictions on School Programs

• The Copyright Act of 1976– Excessive duplication without permission

of copyrighted materials can violate the law

– The law does allow teachers [the “fair use” doctrine] to make multiple copies for classroom use, but the use must be brief, spontaneous, and not impact on the potential market for or value of the material

The Hatch Amendment of 1990

• All instructional materials used by schools in connection with research or experimenta-tion must be available for parental inspection

• No student may be subjected to psychiatric or psychological testing or treatment which may reveal information concerning political affiliation, psychological problems, sexual behavior or attitudes, or illegal, antisocial, self-incriminating, or demeaning behavior

The Buckley AmendmentFamily Education Rights and Privacy Act

• Parents must be granted access to all records maintained by the school concerning their child

• Parents have a right to request modification of records they believe to be false, misleading, or violative of their child’s privacy

• School records are to be confidential from all others [with limited exceptions]

• Schools may provide directory information• At age 18, the child, not the parent, has access to

the record

D. New Jersey Laws

• New Jersey Administrative Code [NJAC]

Title 6

• Title 18A -- Discipline

New Jersey Administrative CodeTitle 6 – Department of Education

• This Code provides the context that governs schools in the State of New Jersey.

• The Code provides guidelines for all facets of schools: curriculum, personnel, facilities, services, administration, et al.

Selected Chapter titles from Title 6

• Thorough and efficient system of free public schools

• Educational programs for pupils in state facilities

• Personnel• Professional licensure and

standards• Business services• Pupil transportation• Controversies and disputes

• Special education• Health, safety and physical

education• Adult education programs• Bilingual education• Vocational and technical education

programs and standards• County superintendents of schools• Library network services• Evaluation• Academic credentials

Title 18A – New Jersey LawsChapter 37 – Discipline of Pupils

• 18A:37-1 Submission of pupils to authority ------

“ Pupils…shall comply with the rules established…and submit to the authority of the teachers and others in authority over them.”

18A:37-2 Causes for suspension or expulsion of students

“Any pupil who is guilty of continued and willful disobedience, or of open defiance of the authority of the teacher or person having authority over him, or of the habitual use of profanity or of obscene language, or who shall cut, deface or otherwise injure school property, shall be liable for punishment and to suspension or expulsion from school.”

Conduct which shall constitute good cause for suspension

• Continued and willful disobedience

• Open defiance of authority…

• Conduct…[that] constitute[s] a continuing danger to the physical well-being of other pupils

• Physical assault upon another pupil

• Taking, or attempting to take, personal property or money from another pupil…

• Causing substantial damage to school property

• Participation in an unauthorized occupancy

• Incitement which…result(s) in unauthorized occupation

• Incitement which…result(s) in truancy by other pupils

• Knowing possession or knowing consumption without legal authority of alcoholic beverages or controlled dangerous substances on school premises, or being under the influence…while on school premises

Corporal Punishment in New Jersey

• New Jersey’s corporal punishment law holds that “No person employed or engaged in a school…shall inflict or cause to be inflicted corporal punishment upon a pupil attending such school…”

• The 1867 law was modified in 1967 to limit the effect of the statute only to punishment or discipline: “But any such person may, within the scope of his employment, use and apply such force as is reasonable and necessary,” to:

[continued on next slide]

• Force may be used to:– Quell a disturbance that threatens physical

injury to others– Obtain possession of weapons or other

dangerous objects upon the person or within

the control of a pupil– For the purpose of self defense– For the protection of lives and property

Thus, a distinction is made between bodily punishment for wrongdoing (forbidden) and necessary restraint to prevent injury (permissible)

Know the law and follow it• A dictum in the courts is that “Ignorance of the

law is no defense.”• This means, we are all bound by laws, even when

we are not aware of them• The wise person makes it a point to become

familiar with the law --- including school board policies --- and abide by it

• Remember, the law is there to protect the vulnerable from harm….and students are vulnerable by virtue of their youth and ignorance

Thank you for your attention