Final Exam Review-Week 1

Sources of law

Constitutional Law (U.S. or state constitutions, offers constitutional protections-free speech, due process, search and seizure); Statutory Law (written by legislators, federal/state/local, IDEA, NCLB); Administrative Law (federal/state/local, policies/procedures/guidelines, state education policy, school or district policies, AYP); Judicial (Case) Law (resolves conflict between statutory/administrative law and Constitution, results from a court holding, Brown vs. Board of Education)

Constitutional amendments affecting education

1^st Amendment: prohibits government from establishing religion; protects the right to exercise religious beliefs; protects the right to free speech, assembly and petition; regulates congressional powers

4^th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…”

8^th Amendment: “Excessive bail shall not be required, nor excessive fines impressed, nor cruel and unusual punishments inflicted.”

14^th 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 law.” Due process protects the rights of teachers in job loss situations; protects the rights of students who are facing suspension, expulsion or other disciplinary action

Federalism and public schools

Federalism: Powers not delegated to the federal government are reserved to states; Federal Involvement in schools: By accepting federal money, schools must comply with federal law (Article I, Section 8, U.S. Constitution); Federal Supremacy Clause: Federal preempts state law when they conflict (Article VI, U.S. Constitution)

State & Local Control: State Educational Governance (State Board of Education, Texas Education Agency, State Commissioner of Education); School District Governance (Electorate-voters, School Board, District Superintendent)

Individuals with Disabilities Education Act (IDEA)

Guarantees all students receive FAPE in the least restrictive environment (LRE); Board vs. Rowley (schools must allow students to benefit educationally, not maximize their potential); Irving vs. Tatro (schools must provide related services-no MD required-but not medical services-MD required)

Free, appropriate public education (FAPE)

Least restrictive environment, whether or not they have a handicapping condition

What is appropriate for individual students based upon their handicapping conditions (Board of Ed vs. Rowley-deaf student and interpreter)

FAPE is NOT the opportunity for a student to achieve full potential equal to the opportunities of other students

FAPE IS personalized instruction with sufficient support services to permit the student to BENEFIT from instruction

Rowley and FAPE: a district is not violating FAPE if a student is progressing from grade to grade AND the purpose of the act is to provide ACCESS to education, not to maximize potential

What are related services? Do not have to be provided by a licensed physician, but by a school nurse or other qualified person

Individualized Education Program (IEP)

Developed by ARD committee (parent/guardian, general ed/special ed teachers, school/district administrator, psychologist/evaluator); Addresses: current levels of performance, goals for upcoming year, related services needed, assessment methods, participation levels in regular classrooms; reviewed at least once per year

No Child Left Behind (NCLB)

All students have an appropriate chance to be successful. The law incorporates accountability standards, and punitive measures can be taken against schools that fail to meet those standards.

AYP (adequate yearly progress): NCLB seeks to hold schools accountable for student proficiency in core subjects through AYP (looks at proficiency in core subjects, completion rates in high school and participation rates in the testing program, exempting too many students from grade level testing and gives alternative tests which are off grade level)

Walsh’s Four Quadrant Analysis

	No Disability	Disability
No Specially Designed Instruction	Quadrant 1: Regular Ed	Quadrant 2: 504
Special Designed Instruction	Quadrant 3: WBFWR (way behind for whatever reason)	Quadrant 4: Special Ed

NCLB was designed to meet the needs of the Quadrant 3 child

Must work harder on early intervention and pre-referral; find ways to intervene and modify for Quad 3 students in order to close the gaps between where they are and where they should be WITHOUT resorting to special education.

RTI

Final Exam Review-Week 2

Procedural and substantive due process

Procedural due process: state must go through proper procedures before denying life, liberty, or property (access to attorney, fair trial, etc.); Substantive due process: state must be fair in decisions that deny life, liberty, or property (punishment must fit the crime); Considerations: there must be state action, the state must have deprived “life, liberty, or property,” the process due depends of the severity of the deprivation

Due process in disciplinary situations

Suspension: informal notice and hearing; opportunity to respond; “thank you for sharing;” Goss vs. Lopez

Removal to AEP: no federal due process; state due process likely; conference before board; no court appeal allowed; “Manifest Determination”

Corporal Punishment: no process due; possible civil liability; possible criminal liability; Ingraham vs. Wright

Expulsion: full due process; formal notice and hearing; chance to present case; appeals process; “Manifest Determination”

Disciplining special education students

MD ARD to determine whether or not there is a direct and substantial relationship between the child’s disability and the behavior.

Student privacy cases

New Jersey vs. TLO (1985): student searches upheld; “reasonable suspicion” vs. “probable cause;” schools act in loco parentis; search must be justified and reasonable

Vernonia vs. Acto (1995: Drug testing of athletes upheld; reduced expectation of privacy for athletes; minimal invasion of privacy; increased risk of injury

Student expression cases

Tinker vs. Des Moines (1969): symbolic speech protected; speech cannot disrupt school or infringe on others’ rights; students maintain constitutional rights at school

Bethel vs. Fraser (1986): lewd or offensive speech not protected; speech cannot undermine school’s educational mission

Hazelwood vs. Kuhlmeier (1988): speech can be restricted in school-sponsored publications; school does not have to promote controversial speech; school action must be based on pedagogical concern

The use of force

Generally speaking the use of force is justified by a person who is entrusted with the care and supervision of a person or group, the person believes that force is necessary to maintain safety, and there is no time to act in another manner to protect themselves or the group. If an educator can reasonably make a case that physical force was needed to prevent a student from harming himself, another student, a staff member or valuable school property, then that force is justified.

Disciplinary hearings

Suspension and Detention generally cannot be appealed beyond the building principal

AEP Placement & Expulsion: due process required; conference/hearing with student and parents; presentation of evidence and student response; hearing officer considers school recommendation; student may appeal at district level; in some cases, appeal to school board allowed; for AEP placements, school board decision is final; for expulsions, student may appeal at state level

Final Exam Review-Week 3

Types of teacher contracts

Probationary: succession of one-year contracts is given to new teachers; probationary period varies by state/district; district may or may not extend at end of year

Term (tenured): contract generally runs 1-5 years; district may or may not extend at end of term; teachers enjoy more protections

Continuing: automatically renews each year; rarely used today

Due process for termination and non-renewal

Termination: teacher-owned property right; can be terminated if for good cause, financial reasons or RIF; significant due process (notice, hearing, right to appeal)

Non-renewal: property right expiration with end of contract; no constitutional due process; likely state due process (notice, hearing, right to appeal-in most cases); district-show job related deficiencies

Personnel documentation

Burden of proof is always on the employer

When to document is largely a judgment call

Documentation process: oral directive; note to the file (date/description of infraction); formal written documentation (dated/on school letterhead; description of infraction; explanation of investigation; dates and times of prior infractions and meetings, reiteration of directives, warning of disciplinary consequences, signature of employee)

Teacher expression cases

Pickering vs. Board (1968): expression cannot undermine employer/employee relationship; expression cannot interfere with job-related duties; expression cannot include knowingly false statements

Mt. Healthy vs. Doyle (1969): employee at risk for firing cannot be shielded by First Amendment; employment decisions cannot be based on protected rights

Connick vs. Myers (1982): speech on matters of public concern protected; speech on matters of personal interest unprotected

Final Exam Review-Week 4

Establishment and Free Exercise Clauses

First Amendment: “Congress shall make no law respecting the establishment of religion,” (Establishment Clause) “or prohibiting the free exercise thereof.” (Free Exercise Clause)

Religion in schools cases

Engel vs. Vitale (1962): schools cannot require students to pray

Abington vs. Schempp (1963): schools cannot require students to read the Bible

Lemon vs. Kurzmann (1975): state money cannot be used to fund religious schools

Lee vs. Weismann (1992): clergy cannot lead prayers at public school graduation ceremonies

The Lemon Test: policy must have a non-religious purpose; policy cannot enhance or inhibit religion; policy cannot create church/state entanglement

The Lee Test: Policy cannot constitute state endorsement of religion; policy cannot have a coercive effect

The Equal Access Act

Equal Access Act (1984): student-led, non-curriculum clubs must be allowed to meet at a secondary school if: the school accepts federal money, the school has established a limited open forum, the group is student-led, and school participation is custodial, the group does not interfere with educational activities (Equal Access Cases: Widmar vs. Vincent-1981; Westside vs. Mergens-1990)

School Liability cases

Teacher protections from liability: “sovereign immunity;” NCLB provisions

Doe vs. Taylor (1994): student has a right to be free from sexual abuse at school; supervisor can be held liable if “deliberate indifference” is shown

Davis vs. Monroe (1999): schools can be liable if indifferent to student-on-student harassment

NCLB and liability protection

NCLB protects teachers from liability when: they are acting within their scope as an educator; they are acting in a manner that conforms to federal, state and local laws; they are properly licensed and certified; the harm is not caused by willful or criminal misconduct or gross negligence; the harm was not cause by the teacher operating a motor vehicle or other method of transportation. NCLB does NOT apply when: the incident involves an act of criminal violence; involves sexual misconduct; the teacher is under the influence of drugs or alcohol

Family Education Rights and Privacy Act (FERPA)

A parent or student (over 18) has the right to: access educational records; demand consent before records are disclosed; request that educational records be amended; file a complaint if the school violates FERPA; educational records are defined as being directly related to the student, and maintained by the school or organization acting on behalf of the school; the records include written documents, computer files, video and audio tapes, film, and photographs (anything that contains personally identifiable information about a student); NOT FERPA: private notes made by faculty or staff; campus police records; medical records; statistical information that does not reveal any personally identifiable information about a student

Only “directory information” released: without consent (name, address, phone number, email address, dates of school attendance)

Final Exam Review-Week 5

Marketplace of ideas vs. value inculcation

Marketplace of ideas: public school students retain expression rights under the 1^st Amendment, even though they are limited in the public school setting; to deny those rights to public school students teaches them that our cherished Constitutional principle of free speech is nothing more than a platitude; teachers tend to fall here

Value inculcation: popular community values; students attend school to learn, not to teach; it is not the time or place for them to exercise their expression rights and to comment on issues of public concern or interest; the marketplace of ideas (free and open discourse that some view as a cornerstone of our democracy) only serves as a distraction to the fundamental mission of public schools; school board members and upper level administrators fall here

ELCC Standard #6

Administrators must understand “the law as related to education & schooling”

                -Stand on solid legal footing

                -Seek counsel on tricky issues

                -Understand public school governance

                -Understand the legal framework of education

The Role of Public Education in a Democratic Society

                -To provide a marketplace of ideas? (Tinker)

                -To inculcate societal values?

Administrators must strike a balance between these opposing views

Influencing Decisions

                -Understand the constitutional and political context of education policy

                -Understand diverse viewpoints on education

                -Make sound policy decisions

                -Anticipate the effects of leadership decisions

ELLCC Standard #5

Important Constitutional Principles

                -1^st Amendment-free speech, religion

                -4^th Amendment-privacy

                -5^th and 14^th Amendment-due process

Understanding these principles helps you protect the interests of students, parents, teachers, and constituents

ELCC Standard #3

Balancing student rights with school safety and discipline

Understanding federal, state and local laws and policies

                -Special education regulations

                -Access to school facilities

                -Contractual agreements and teacher rights

A Final Word

Legal issues in education do affect student achievement

Understand the letter of the law, as well as the spirit of the law

Create an environment centered on opportunity, fairness, and equity