What are the isllc standards

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: