Davis v monroe county board of education synopsis

Chapter 2 The Law of Education

Introduction

This chapter describes the various agencies and types of law that affect education. It also discusses the organization and functions of the various judicial bodies that have an impact on education. School leadership candidates are introduced to standards of review, significant federal civil rights laws, the contents of legal decisions, and a sample legal brief.

Focus Questions

1. How are federal courts organized, and what kind of decisions do they make?

2. What is law? How is law different from policy?

3. From what source does the authority of local boards of education emanate?

4. How can campus and district leaders remain current with changes in law and policy at the national and state level?

Key Terms

1. Common (case) law

2. Constitutional law

3. Defendant

4. En banc

5. Federalism

6. Legal brief

7. Plaintiff

8. Qualified immunity

9. Regulations

10. Standing

11. Stare decisis

12. State boards of education

13. Statutory law

14. Strict scrutiny

15. Writ of certiorari (writ)

Case Study Confused Yet?

As far as Elise Daniels was concerned, the monthly meeting of the 20 River County middle school principals was the most informative and relaxing activity in her school year. Twice per year, the principals invited a guest to speak to the group. Elise was particularly interested in the fall special guest speaker, the attorney for the state school boards association. Elise had heard him speak several times, so she was aware of his deep knowledge of school law and emerging issues. As the attorney, spoke Elise found herself becoming more anxious. It was as if the attorney was speaking a foreign language. Tinker rules, due process, Title IX, Office of Civil Rights, and the state bullying law. Elise found herself thinking, “The Americans with Disabilities Act has been amended? How am I supposed to keep up with all of this?”

Leadership Perspectives

Middle School Principal Elise Daniels in the case study “Confused Yet?” is correct. School law can be confusing. Educators work in a highly regulated environment directly and indirectly impacted by a wide variety of local, state, and federal authorities. When P–12 educators refer to “the law,” they are often referring to state and/or federal statutes enacted by legislatures ( Fowler, 2009 ). This understanding is correct. The U.S. Congress and 50 state legislatures are active in the law-making business. To make matters more difficult, the law is constantly changing and evolving as new situations arise. For example, 10 years ago few if any states had passed antibullying laws. By 2008, however, almost every state had some form of antibullying legislation on the books. Soon after, the phenomenon of cyberbullying emerged, and state legislators rushed to add cyberbullying and/or electronic bullying to their state education laws. One can only guess at what new real or perceived problem affecting public P–12 schools will be next.

P–12 educators also refer to school board policy as “law.” However, law and policy are not necessarily identical. Fowler (2009 , p. 4) defines policy as “one way through which a political system handles a public problem. It includes a government’s expressed intentions and official enactments.” For example, a school board policy regarding teacher attendance is not a law, but rather a school board’s attempt to address a public problem. Thus, school boards are policy actors, defined as individuals or groups of individuals who directly or indirectly influence public policy.

School boards are not the only education policy actors. Policy actors also include (1) federal and state legislative bodies, federal and state judges, federal and state departments of education, state governors, chief state school officers, local school boards, superintendents, and campus administrators; (2) federal agencies such as the Office for Civil Rights and the Equal Employment Opportunity Commission; (3) professional associations such as the National School Boards Association, the National Association of Secondary School Principals, and the American Association of School Administrators; and (4) various lobbying and other advocacy groups such as the American Civil Liberties Union. These professional association and advocacy groups try to influence policy in various ways, including the filing of amicus curiae (friend of the court) briefs presenting their view of how a court should rule in certain cases. There is little wonder that Elise Daniels feels somewhat overwhelmed by the number of policy actors that affect public education and the constant challenges presented by new and sometimes unfamiliar laws. This chapter presents a brief overview of the types of law that affect education, introduces the primary federal constitutional and statutory laws presented in this text, and outlines the importance of understanding state law and school board policy.

Education and the Legal Arena

An understanding of education and the legal arena starts with a discussion of the United States federalist political system. Frances Fowler (2009) finds that the best way to define a federalist system is to contrast it with unitary government, the other common form of democracy. In a unitary system, only one government in the country has the power to pass laws, raise taxes, and so forth. Local government exists, but can be overruled by the national government. France, Japan, and the United Kingdom are examples of unitary government. In contrast, the United States is a federalist system. A federalist system consists of several sovereign (autonomous) governments sharing powers. In the United States system there are 51 governments: 1 national government and 50 state governments. The federal government cannot abolish state governments, and state governments cannot abolish the federal government. It is generally acknowledged that a federalist system is more difficult than a unitary system of government. However, the design seems to fit well with the Founding Fathers’ fear of dominant central government and with the strong regional ties of the original 13 colonies.

Within the backdrop of federalism , the Founding Fathers’ concern about overly powerful central government led to the idea of separation of powers rather than to a fused or unified government at the national level. Thus, the Founding Fathers constitutionally delegated certain powers to each of the three branches of government (executive, legislative, and judicial) that serve as a balance or check on the powers of the other branches. This seemed like such a good idea that the concept of separation of powers is built into every state constitution ( Fowler, 2009 ). Separation of powers is designed to create conflict as the separate branches of government vie for power. However, the conflict between the legislative and judicial branches can be particularly intense. For example, courts, especially the U.S. Supreme Court and the various state supreme courts, can declare a law or governmental action to be unconstitutional. Thus, a state school finance formula developed by the state legislature, signed into law by the governor, and applied by the state department of education can be declared unconstitutional by the state supreme court. This action by a small group of individuals, often with lifetime appointments, can create considerable heartache as the legislative and executive branches attempt to develop a sound school finance formula within the larger political arena of taxes and allocation of public monies.

Education Law in a Federalist Political System

The contemporary philosopher Jurgen Habermas (2001) presents the following definition of modern law:

Modern law is formed by a system of norms that are coercive, positive, and . . . freedom guaranteeing. The formal properties of coercion and positivity are associated with the claim to legitimacy: the fact that norms backed by the threat of state sanction stem from the changeable decisions of a political lawgiver is linked with the expectation that these norms guarantee the autonomy of all legal persons equally. (p. 447)

Thus, modern law is designed to bring order to chaos by forming a system of forced norms or policies that regulate much of the behavior and actions of citizens. These policies are viewed, at least by Habermas, to be positive in that they enable campus and district leaders to regulate teacher and student behavior in a way that promotes learning while at the same time they promote equity, fairness, and safety. For example, school structures allow for the placement of students in classrooms, teacher handbooks require that teachers supervise students assigned to their classrooms, and school rules outline unacceptable student behaviors that interfere with learning. Boards of education are required to provide a free and appropriate public education for all children regardless of economic status or handicapping condition; administrators are charged with maintaining good order and discipline in schools; and parents may choose to educate their children at home. As Elise Daniels in the opening case study “Confused Yet?” is beginning to understand, a significant amount of ambiguity exists in all phases of modern law ( Sperry, 1999 ). Educators function daily in this ambiguous legal arena, which simultaneously forces compliance by, empowers, and limits the actions, behaviors, and choices of students, teachers, and administrators. ISLLC Standard 5 calls for candidates to promote the success of every student by acting with integrity, fairness, and in an ethical manner. For example, local school boards are empowered to dismiss incompetent teachers and to suspend or expel unruly students. At the same time, teachers and students possess certain rights that limit the power of school boards to dismiss or suspend them. It is the naturally existing tension between the rights of school boards to regulate teacher and student conduct and the legal protection provided to teachers and students that creates the basis for much of the legal conflict in public education. These rights, obligations, and limits weave a multihued tapestry whose design is clear in some places and not in others.

ISLLC Standard 5

ISLLC Standard 6 calls for candidates to have knowledge of policies, laws, and regulations enacted by state, local, and federal authorities that affect schools. For all practical purposes, five forms of federal and state law and policy are the threads from which the tapestry of policies, laws, and regulations enacted by these authorities is woven. These five forms of law include:

ISLLC Standard 6

· Federal and state constitutional law

· Federal and state statutory law

· Federal and state regulations

· Federal and state common (case) law

· State and local school board policy

Federal and State Constitutional Law

The Constitution of the United States, and more specifically the Bill of Rights, was designed primarily to protect citizens from excesses of government and provides the framework for all legal actions. The U.S. Constitution empowers the executive and legislative branches of government to make and enforce certain types of laws and policies and the court system (judicial branch) to interpret and apply these laws and policies to various situations. These interpretations of law by various courts create legally binding opinions or precedents within a particular court’s span of authority (Hilyerd, 2004). All laws passed by federal and state bodies, all state constitutions, all regulations, and all school board policies are subject to the provisions of the U.S. Constitution. There are 24 amendments to the U.S. Constitution (see the Appendix). The amendments most applicable to educational law and featured throughout this text are the First Amendment, the Fourth Amendment, the Fifth Amendment, and the Fourteenth Amendment.

· First Amendment: Ratified with the Bill of Rights in 1791; guarantees the freedoms of religion, speech, press, association, assembly, and petition. The First Amendment is considered so important to our democracy that surprisingly few restrictions apply.

· Fourth Amendment: Ratified with the Bill of Rights in 1791; prohibits unreasonable searches and seizures and the issuance of warrants without probable cause.

· Fifth Amendment: Ratified with the Bill of Rights in 1791; provides (among other things) that a person may not be deprived of life, liberty, or property without due process of law.

· Fourteenth Amendment: Ratified in 1868; extends citizenship status to all persons born or naturalized in the United States and effectively applies the Bill of Rights to the states by prohibiting states from denying due process and equal protection and from abridging the privileges of U.S. citizenship. This amendment also gave Congress the power to enforce these provisions, leading to legislation such as the Civil Rights Act ( Garner, 2006 ).

Statutory Law

Statutory law is conceived, debated, and enacted by the U.S. Congress or by state legislative bodies, subject only to the limitations established by state or federal constitutions. More than any other form of law, statutory law represents the nexus between politics and public education. Federal statutes must be consistent with the U.S. Constitution, and state law must be consistent with the state constitution, federal statutory law, and the U.S. Constitution.

Federal law

The federal government has no authority to interfere with the educational systems within the individual states ( Hilyerd, 2004 ). Consequently, federal statutes are often spending clause laws. These laws are enforced by the threat of the withholding of federal funds unless statutory requirements are met. The Missouri Supreme Court recently reviewed a spending clause provision that protects teachers from liability under certain circumstances ( Dydell v. Taylor , 2011 ). The court concluded that spending clause legislation is “all carrot and no stick.” All a state must do that objects to provisions of the federal government is pass a law saying no to federal money. Naturally, this may be easier said than done. Saying no would mean loss of federal money for, among other things, special education, Title I, Title II, Title IV, and free and reduced lunch reimbursement.

The most significant federal laws impacting education are the civil rights laws, Title IX, No Child Left Behind (NCLB), and various equal employment opportunity laws such as the Americans with Disabilities Act (ADA). Equal employment opportunity laws are discussed in detail later in the text.

The Civil Rights Act is a series of federal statutes enacted after the Civil War and, much later, during and after the civil rights movement of the 1960s. These statutes were implemented to give further force to the concept of personal liberty and equal protection. The Act is particularly germane to the prohibition of discrimination in educational opportunities for students based on race, sex, religion, or color ( Garner, 2006 ). All Civil Rights Acts are enforced by the Office for Civil Rights (OCR). A brief overview includes the following:

· Civil Rights Acts of 1866 and 1870 (42 U.S.C. § 1981): Provides the “full and equal benefit of all laws . . . for the security of persons and property as is enjoyed by white citizens.”

· Civil Rights Act of 1871 (42 U.S.C. § 1983): Sometimes called § 1983 in judicial decisions, this act allows citizens (including students) to bring suit against state actors (school boards, school leaders, and teachers) who deprive them of any rights under law.

· Civil Rights Act of 1964, Title VI: Prohibits exclusion or discrimination under federally funded or assisted programs because of race, color, or natural origin.

· Civil Rights Act of 1964, Title VII: Prohibits discrimination in employment due to race, color, religion, sex, or natural origin. Title VII may well be the most significant antidiscrimination legislation ever passed by the U.S. Congress.

· Civil Rights Act of 1991 (P. L. 102-166): Designed to strengthen and improve federal civil rights laws prohibiting discrimination because of race, color, or natural origin. This act provides for damages in cases of deliberate violation of civil right laws. This act also establishes the concept of disparate impact and student discipline, tracking by race, color, or natural origin, and other disparate treatment based on race, color, or natural origin.

Other federal laws affecting education include the following:

· Title IX. Part of the Education Amendments of 1972, this act was designed to protect students from being denied the benefits of any educational program or activity because of sex. Title IX applies to admissions, athletic programs, course offerings, student-on-student or employee harassment based on sex, physical education, educational programs and activities, and employment. OCR is also responsible for the enforcement of Title IX.

· Equal Educational Opportunities Act (EEOA, 1974). This act was designed to require school districts to establish language programs and eliminate language barriers in schools.

· No Child Left Behind (NCLB) of 2001: The reauthorization of the Elementary and Secondary Education Act, the central federal law in P-12 education. NCLB contains a number of controversial measures intended to improve student achievement and hold states and schools accountable for these improvements. The act is in the process of reauthorization by Congress.

State laws

The U.S. Constitution does not mention education. The 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”) delegates to the individual states the power to establish and regulate public educational systems. Consequently, public education systems are established by individual state constitutions. State constitutions require their respective state legislative bodies to establish systems of public education. For example, Article XI Section of the Missouri constitution reads, “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the general assembly shall establish and maintain free public schools [italics added] for the gratuitous instruction of all persons in this state within ages not in excess of twenty-one years as prescribed by law.”

Other state constitutions have similar provisions requiring the establishment of a public education system within the state. Although some variety does exist, the public education systems for the 50 states and the District of Columbia are remarkably similar. Consequently, some commonalities in state educational law and policy are apparent. For example, state education codes (1) create local school districts and boards of education, (2) define how school districts may consolidate and/or reorganize, (3) define who may and who must attend school, (4) provide guidance for student discipline, (5) designate qualification for public school employees including teachers, principals, and superintendents, (6) outline guidance for the termination of employees, (7) define the number of days and hours students must be in attendance, and (8) set graduation requirements.

State Actors

The key state actors of the PK–12 public education governance system are state governors, legislators, state boards of education (SBEs), chief state school officers (CSSOs), state education agencies (SEAs), and local boards of education ( Education Commission of the States, 2005 ). State boards of education are policy-making bodies that function immediately below the state legislature. According to the Education Commission of the States (2005 ), most state boards share six common legal powers: (1) establishing certification standards for teachers and administrators, (2) establishing high school graduation requirements, (3) establishing state testing programs, (4) establishing standards for accreditation of school districts and preparation programs for teachers and administrators, (5) reviewing and approving the budget of the state education agency, and (6) developing rules and regulations for the administration of state programs. In 32 states, the members of the state board of education are appointed (usually by the governor); boards in 11 states are composed of elected members; and 5 states have a combination of appointed and elected state board members. Minnesota and Wisconsin do not have state boards.

The general supervision and administration of the state’s public education system are delegated to the chief state school officer. The CSSO is an elected position in 14 states. In the other 36 states, the CSSO is appointed either by the governor or by the state board. These individuals head the state education agency, usually called the state department of education. The state departments of education are charged with the administration and enforcement of state board of education policy and statutory law and are responsible for the supervision of all PK–12 educational institutions in a state ( Education Commission of the States, 2005 ).

Regulations

Regulations are developed by various federal and state agencies empowered to interpret, disseminate, and enforce statutory law and state school board policy. As long as the agency stays within the boundaries of the statute or policy, their decisions have the force of law. Two agencies that affect public schools are the federal Department of Education and the departments of education housed at the state level. For example, the U.S. Department of Education is charged with the interpretation, dissemination, and enforcement of the congressional intent that served as the guiding force behind the enactment of the Individuals with Disabilities Education Act (IDEA), the Safe and Drug-Free Schools and Communities Act, and NCLB. These programs are administered at the state level; however, the federal Department of Education establishes the basic guidelines.

In addition to administering federal programs, state departments of education, overseen by the state board of education and the CSSO, are charged with the duty to interpret, disseminate, and enforce state law and state board policy. For example, state departments of education traditionally issue teaching certificates, provide guidelines for the collection and expenditure of public funds, and oversee mandated state testing programs. Regardless of the source, regulations carry the force of law and are backed by the threat of sanctions, usually in the form of loss of funding or accreditation.

School Board Policy

In principle, local boards of education are designed to represent the beliefs and values of the community, oversee the expenditure of public funding, and serve in a direct supervisory capacity for the local school districts. According to the Educational Commission of the States (2005), there are more than 14,000 local school boards operating in the United States. Of these, the vast majority are composed of citizens elected by the registered voters in their particular political subdivision. Several urban areas, however, are moving to have some or all of their school board members appointed by the mayor of the city. Local boards of education can be either fiscally independent or fiscally dependent. Fiscally independent boards (about 90% of the school boards in the United States) are autonomous with respect to local city or county government. Independent boards may raise taxes, set and approve budgets, and allocate resources separately and independently from city or county government boards. Dependent boards are actually an education agency operated by a unit of local government. These boards are dependent on the local government to raise taxes, allocate resources, and approve budgets ( Fowler, 2009 ).

Boards of education are simultaneously empowered and limited by their state constitution, the federal Constitution, state board of education policy, regulations developed by either the state or federal education department, and statutory law. For example, local boards of education are generally empowered by state statute to establish and oversee the public schools in their district, collect and spend public funds, and establish attendance boundaries within their district. Policies of local boards of education must meet the minimum guidelines established by the state legislature or state board of education. Board authority is also limited. For example, boards may collect and spend public funds only in accordance with state law, and they may not violate the basic constitutional rights of teachers or choose to purposefully segregate schools by race. In addition, boards of education may not purposefully disregard federal statutory requirements such as IDEA, state statutory requirements such as tenure laws, or state board of education policies such as graduation requirements.

Boards of education codify and exercise their authority through a set of written policies. As long as a written and legally adopted policy does not violate statutory, regulatory, or constitutional law , it is enforceable, and teachers, students, and administrators must abide by it. Boards enjoy considerable authority and often serve as the final arbiter of disputes within a district. Violating school board policy or authority can be grounds for termination of employment (see, for example, Hearn v. The Board of Public Education [1999] and Lacks v. Ferguson Reorganized School District [1998] , affirming a school board’s authority to terminate the employment of a teacher for violation of school board policy).

School board policy, actions, and decisions are open to the public under state “sunshine” or “open records” laws. Every state provides for the dissemination of school board actions, notice for the time and place of school board meetings, the legitimate reasons for closed session, and the process for closing school board meetings to the public. For example, Missouri state law requires that “all public meetings of public governmental bodies shall be open to the public (and) all public records of public government bodies shall be open to the public for inspection and copying” (RSMo 610.020). In addition to school board decisions, individual administrator and teacher salaries are available to the public. A few states are discussing using student test scores to “rate” or “rank” teachers into quartiles. It can be assumed that aggregate test scores for individual teachers as well as their individual rankings would be available under state open records laws. Naturally some items remain private and are not open to the public. For example, discussions regarding legal issues with the school board attorney, the purchase or lease of property, termination or discipline of employees, and identifiable students or minors are exempt from public disclosure. In addition, school boards must give the public adequate notice of the time, date, and place of each meeting, and agenda items for a legally constituted meeting of the board. For example, a Massachusetts state court held that e-mail communications between school board members regarding the professional competency of the superintendent constituted a meeting of the board and therefore violated the state open records law ( District Attorney v. School Committee , 2009 ).

The Judicial System

Judges in the United States are powerful policy actors. Federal courts can declare a state or federal law unconstitutional, overrule a school board decision, or interpret laws. For example, the U.S. Supreme Court has interpreted Title IX to mean that school districts can be held liable for student-on-student sexual harassment under certain conditions ( Davis v. Monroe County Board of Education , 1999 ). State courts are also important policy actors. State courts play an important role in school finance policy in that several state courts have declared state school finance systems to be unconstitutional ( Fowler, 2009 ). State and federal court decisions result in common or case law.

Common Law

Common (case) law develops from various court decisions that interpret or apply constitutional, statutory, regulatory law, or school board policy to a particular situation. The common law concept has its genesis in the English legal system, dating back to the late Middle Ages. The common law concept is based on the premise that not all legal problems can, or should, be covered by a statute. Consequently, in the English system judges are allowed to create solutions to problems. Later, these decisions are written down and establish precedent for future decisions, unless they are overruled by a new law, statute, or higher court. Because the United States started as an English colony, this system was naturally adopted by the colonies and became the model for the current legal system ( Hilyerd, 2004 ).

Although fraught with ambiguities, common law is especially important to school administrators. For example, the Fourth Amendment to the Constitution provides citizens protection from unreasonable search of their persons and property. The Fourth Amendment does not prohibit all searches, just unreasonable ones. The problem is defining an “unreasonable” search. If a search is unreasonable in one situation, is a similar search unreasonable in every situation?

Consequently, one of the primary functions of the court system is to interpret the legality of actions as applied to specific situations. This body of decisions becomes common law and determines the powers and limitations of official actions for the educational leaders who reside within the jurisdiction of that particular court. Previous decisions set precedents for future decisions of that particular court ( stare decisis ). These decisions serve as precedents and are law for that particular jurisdiction. Decisions from other state or federal courts are persuasive and provide guidance only for that particular jurisdiction.

Many educators assume that the law is stable and that courts establish what can and cannot be done. However, courts decide on the facts of a case only in a particular situation. It cannot always be assumed that a particular decision will apply in all other situations. David J. Sperry (1999) succinctly captures this concept as he explains:

The great myth of the law is that the law is certain, exact, and fixed. The law is not stationary; it is continually evolving as courts reinterpret constitutional and statutory provisions and legislatures enact new laws. This is why best practices in educational law should not be based solely on knowledge of a specific statute, administrative regulation, or court case, but rather on an understanding of the lawmaking process. (p. 11)

Common law represents the dynamic nature of educational law and is the nexus where the tensions between school board authority and the rights of students and teachers converge. It is at this nexus that the questions of ethical and legal decision making often become the lightning rod of controversy. However, common law has established over time some fundamental concepts that school administrators should consistently apply to decision making. Failure to abide by or honor these established principles can lead to serious legal troubles. These principles are discussed in greater detail throughout the remainder of the text as they apply to various legal topics and leadership dilemmas.

The U.S. Legal System

In the U.S. legal system there are two overlapping judicial systems, one state and the other federal. Thus, there are 51 legal systems: 1 federal system and 50 state systems. State legal systems have jurisdiction over matters involving the state constitution and state statutes. The federal system has jurisdiction over legal matters involving the U.S. Constitution, controversies between the U.S. government (in education law this includes school boards and school employees) and citizens (administrators, teachers, students, and parents), and disputes between states or between parties from different states. The two types of systems are similar in organization and function, but vary somewhat in the types of cases considered and the decisions that are rendered. Both state and federal courts are organized in a similar manner. Trial courts function at the entry level. Trial courts hear cases where facts are presented and disputed by both sides. The next level is a series of intermediate courts of appeal. The highest state court and the U.S. Supreme Court serve as the final arbiters of law for their respective jurisdictions.

All court systems are similar in that judges may not solicit or create cases or disputes for judgment. A judge or a panel of judges may not rule a school policy or administrative practice unconstitutional or in violation of a state statute unless someone affected by the policy or practice brings the issue before the court. Persons affected by a practice or policy are said to have standing . For example, suppose that a classroom teacher searches two students for an allegedly stolen ring. The ring is not found, and a question arises as to the reasonableness of the search. Only the parents of the students who were actually searched (or the students themselves, if considered adults) have standing to question the practice before a court.

The legal system hears two types of cases: criminal cases and civil cases. The difference is significant. In criminal cases a jury must use a “beyond a reasonable doubt” standard of proof. This means that the evidence is so strong that there is no reasonable doubt that the defendant committed the crime ( Administrative Office of the U.S. Courts, 2003 ). Civil cases are decided by “a preponderance of the evidence,” meaning whether it is more than likely that the defendant committed the crime or wronged the plaintiff. Local school boards are bound by the preponderance of the evidence standard of proof.

The vast majority of school law cases are civil cases. In civil cases, one person files a complaint with a state or federal court with jurisdiction to hear the case. The court serves a copy of the complaint on the person or school district being accused of some injury. The example of a classroom teacher searching two students would be a civil case. Assume in our example that the parents of the students file a complaint against the teacher (and probably the school district). The complaint is “served” on the teacher. To prepare for trial, both parties engage in discovery, meaning that the two sides must provide information to each other. One common method of discovery is the deposition. In the deposition, a witness is required to answer questions under oath about the case. The answers to the questions are recorded by a court reporter. The written record is provided to both sides ( Administrative Office of the U.S. Courts, 2003 ). There are very few questions of “limits” during discovery. For example, the student attorney may ask the teacher about medications she is taking, about her medical history, or whether she has ever searched a student before. Judges encourage the two sides to try to reach an agreement without going to trial. When the two sides reach an agreement, it is known as a settlement ( Administrative Office of the U.S. Courts, 2003 ). In fact, most education disputes between parents and school boards are settled before going to trial.

Federal Courts

Article III of the United States Constitution establishes the judicial branch as one of the three separate branches of the federal government. Federal courts do not make laws. That is the responsibility of the legislative branch of government. Congress, not the judiciary, controls the types of cases that may be addressed in federal courts. Congress decides how many judges there should be, determines which of the president’s nominees ultimately become federal judges, approves the federal courts’ budget, and appropriates money for the judiciary to operate. At the same time, the Founding Fathers considered an independent judiciary essential to ensure fairness and equal justice for all citizens. Thus, federal justices have lifetime appointments, Congress cannot reduce their salaries, and federal justices can be impeached only for “high crimes and misdemeanors.”

Federal courts deal almost exclusively with questions involving the U.S. Constitution, federal laws, or controversies between states ( Administrative Office of the U.S. Courts, 2003 ).

The areas of most concern to educators are questions involving the U.S. Constitution and federal statutes as these issues apply to the educational arena. It is interesting to note that the federal court system has not always been active in constitutional disputes regarding public education. This changed in 1943 when the U.S. Supreme Court found that the U.S. Constitution “protects the citizens against the State itself and all of its creatures—Boards of Education not excepted” [italics added] ( West Virginia State Board of Education v. Barnette, 1943 ). This ruling serves as one foundation for the principle that boards of education, school administrators, and teachers are bound by the U.S. Constitution.

The federal court system is hierarchically organized around 94 trial courts called federal district courts, 12 courts of appeal called circuit courts or appellate courts, and one Supreme Court. Each state has at least one district court, and more populous states have more than one. For example, there are two federal district courts in Missouri. The Eastern District Court is housed in St. Louis, Missouri and the Western District Court is housed in Kansas City, Missouri. The primary function of these courts is to hear evidence in order to build a factual record of the case, and from this record, to apply the applicable constitutional, statutory, regulatory, or common law to the dispute ( Administrative Office of the U.S. Courts, 2003 ).

The intermediate appellate courts are the 13 multimember Circuit Courts of Appeal. Eleven of these courts have jurisdiction over a group of states (see Figure 2-1 ). In the foregoing example, the U.S. Court of Appeals for the Eighth Circuit serves Missouri and six other states. Consequently, an appeal from either the Eastern or Western District Court of Missouri would be made in the Eighth Circuit Court of Appeals. The primary function of the circuit courts is to decide issues of law. These courts do not hear new evidence, hear from witnesses, or refer decisions to juries. However, these courts may elect to hear oral arguments from attorneys representing both sides of the issue. The panel of judges (usually three, although sometimes circuit courts elect to hear a case en banc , meaning that all of the justices in that circuit hear the case) reviews the written record and hears oral arguments, votes, reaches a decision, and writes an opinion.

The U.S. Supreme Court

The U.S. Supreme Court consists of the Chief Justice of the United States and eight associate justices. The U.S. Supreme Court is the final arbiter

FIGURE 2-1 Geographic Boundaries of United States Courts of Appeal and United States District Courts.

of questions involving the U.S. Constitution and federal statutes. The Court hears appeals from circuit courts and from the highest state courts on issues involving federal questions. A person who loses in a federal court of appeals or the highest court in a state (a state supreme court, for example) may file a petition for a writ of certiorari (writ) , which is a document asking the Supreme Court to review the case ( Administrative Office of the U.S. Courts, 2003 ). The U.S. Supreme Court can hear only cases that are appealed. In other words, a lower court ruling may be of particular interest to several justices on the Court, but these justices may not get involved until the case is appealed. However, the Court is not required to hear or consider every case that is appealed. At least four justices must agree to grant an appeal before a case can be heard and adjudicated by the full Court. The Court usually selects the cases it will consider with great care.

When the court decides to hear a case, the Chief Justice will appoint one of the justices (or him- or herself) to write the opinion. A majority of the members must agree on a decision and the rationale for the decision before the opinion becomes applicable. This agreement among at least five justices forms a majority opinion. Justices who disagree with the majority may elect to issue a dissenting opinion. A concurring opinion may be written by a justice who agrees with either the majority or a dissenting opinion, but for different reasons. However, it is only the majority opinion that creates a precedent and becomes binding on all other governmental institutions in the United States.

Standards of Review

[Note. This section was written by Thomas J. Graca, Vice President, Planning and Development, Eastfield College, Dallas County Community College District, Mesquite, TX. The author gratefully acknowledges Tom’s invaluable contribution.]

In certain cases, particularly First Amendment and equal protection cases in school law, courts apply various standards of review to guide their decisions. Three standards of review apply in different situations: (1) strict scrutiny, (2) middle-tier scrutiny, and (3) rational basis.

The first standard of review is called strict scrutiny. Strict scrutiny applies in cases involving (1) First Amendment rights, (2) the suspect classifications of race, lineage, and national origin, and (3) when the rights of voting, travel, or privacy are implicated. When a court determines that strict scrutiny is the standard that applies, the state (or school district) will almost always lose. In order to prevail, the state must prove that the law or regulation is necessary to achieve a compelling state interest. For example, were a state to require that African American teacher applicants score “x” on the state teacher certification exam, and White teacher applicants score “y” on the state teacher certification exam, most courts would likely use the strict scrutiny standard because race is a suspect classification. Then the state would have the burden of proving that there was no less restrictive means (necessity) to achieve some compelling governmental interest (e.g., diversity in the teaching force). But the argument would need to be compelling. In another example, courts apply strict scrutiny to school district policies that promote racial balances between schools within the district. When courts apply this standard to these policies, the district almost always loses. In other words, their argument is not compelling.

The second standard of review is called either middle-tier scrutiny or intermediate scrutiny. This second standard of review applies to gender classifications and illegitimacy (in lineage). In order to prevail under this middle tier, the state would have to prove that the law or regulation was substantially related to an important interest (juxtapose with necessary and compelling in strict scrutiny earlier). So, in an analogous example to the race example just given, if women had to score “a” on the exam, and men had to score “b” on the exam, the state would have to prove that there is a substantial relationship between the difference in requirements based on gender and an important interest. You should observe that the state would be more likely to win the gender case than the race cases. Do you see why? The difference between compelling and important and the difference between necessary and substantially are key language.

The third standard of review is called rational basis. Rational basis review applies in all other equal protection cases. Some examples of specific cases where rational basis was applied include wealth, age, and mental capacity. In order to prevail under rational basis review, the plaintiff must prove (note that burden has shifted from the state) that the law or regulation is not rationally related to any legitimate interest. When rational basis is applied, the state almost always wins. Consider our teacher certification exam. Imagine that the fee for taking the state’s test was $10,000. Not all people can afford to take a $10,000 test. So, the state is discriminating against people who can’t afford the test. Wealth, however, is not a suspect classification. So, a poor certification candidate would have to prove that there was no relationship between the fee and any legitimate interest. The state would likely argue that the fee pays for a really good test, with really good test security, that will identify really good teachers and that the burden of the fee is rightfully placed on the test taker. Whether you agree with the argument or not, you must admit that it is rational. Whether or not a $10,000 test fee is good policy does not matter. Wealth is not a suspect classification, so the state may discriminate all it likes, as long as it does so rationally to achieve any legitimate government purpose. In other words, school districts must be particularly discriminatory to fail under a rational basis review.

State Courts

State courts are an important policy actor in school law, because the vast majority of school law cases are decided by these courts. State courts hear cases involving state law and state constitutional issues. State court decisions, like state laws, have no meaning in other states. Each state court system is similar in arrangement and is organized much like the federal system into trial courts, intermediate appellate courts, and a court of final arbitration, in most cases a supreme court. However, each state court system is somewhat different. The names and numbers of courts vary from state to state.

In approximately 36 to 38 states, judges are elected by popular vote. In the other states, judges are appointed by the governor and approved by the state senate. Most state court systems and laws are based on the English model. Louisiana created a legal system based on the French civil law system ( Hilyerd, 2004 ).

Elements of a Court Decision

School leaders are expected to know and remain current with various legal rulings and trends that affect education, especially rulings that define the rights of teachers and students. Unfortunately, accessing, reading, and understanding court opinions can be difficult, especially for school administrators, who usually do not have formal legal training. However, an understanding of the organization of most court decisions can aid in this effort. A typical federal court opinion contains the following elements: case name, facts of the case, a review of the procedural history, legal questions, a ruling, justification for the ruling, and the disposition of the case.

Case Name

Cases are usually named after the parties or people involved. The person who brings the suit is the plaintiff and is listed first. The person or governing body being sued is the defendant and is listed second. For example, if teacher Jones brings suit against Consolidated School District, Jones is the plaintiff and Consolidated School District is the defendant. The case would be published as Jones v. Consolidated School District. If Jones prevails at the trial court and the Consolidated School District decides to appeal the ruling or verdict, the School District becomes the appellant (or petitioner) and Jones is considered the appellee (or respondent). The case now lists the appellant first and becomes Consolidated School District v. Jones. In addition to the parties involved, the case name should also contain the proper citation.

Facts of the Case

The facts of the case are a review of the information, written record, and history of the case. The facts of the case should explain who allegedly did what, when, and why.

Legal Questions

The legal questions establish what the court is considering. Assume Jones is bringing suit against Consolidated School District alleging that an illegal search of her personal laptop computer at school by school officials resulted in termination of employment. The question before the court becomes, “Was the search of the personal laptop that led to Jones’ termination reasonable under the circumstances in this situation?” If the search was determined to be reasonable, the termination of Jones would probably stand. If the search is determined to be unreasonable, the termination may be reversed.

Review of Procedural History

This part of the opinion traces the legal history of the case. For example, in Consolidated School District v. Jones, the procedural history would include a summary of the ruling of the trial court. If the case were one of the few selected for review by the U.S. Supreme Court, the procedural history would also include a summary of the circuit court ruling.

Court Ruling

The judgment of the court answers the legal question.

Rationale

Judicial decisions must be based on reason and past decisions, not personal opinion. This section of the opinion outlines the rationale behind the decision and usually contains several previous similar rulings to justify the current decision.

Disposition of the Case

After justifying and issuing a ruling, the court must dispose of the case. If the court finds that the Jones search was not justified under the circumstances, the court will determine a remedy for the injustice. Depending on the situation, this remedy could include back pay, reinstatement, or possibly a monetary award or attorney’s fee. If the Jones search was justified, then the case is dismissed. Appellate courts (circuit courts) and the Supreme Court usually dispose of a case by electing to affirm or uphold the lower court, reverse the lower court (“remand for retrial consistent with this opinion”), or modify (affirm in part, reverse in part). Occasionally a court will find an action by a school official to be unconstitutional but grant qualified immunity.

Qualified immunity may be defined as “immunity from civil liability for a public official who is performing a discretionary function, as long as the conduct does not violate clearly established constitutional or statutory rights” ( Garner, 2006 , pp. 330–331). The U.S. Supreme Court has established a two-pronged test for qualified immunity: (1) whether a federal constitutional right has been violated based on the alleged facts, and (2) assuming that a violation of constitutional rights is established, whether the constitutional right was clearly established at the time of the alleged incident and a reasonable defendant would have understood that the conduct was unlawful ( Saucier v. Katz , 2001 ). For example, assume that the search of Jones’s personal computer did violate her Fourth-Amendment rights. If the search did not violate an established law or court ruling that a reasonable school official would or should have knowledge of, then it is possible that the school official will be granted qualified immunity.