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Chapter 1 . Legal Framework Affecting Public Schools. Historical Development of the U.S. Constitution. The Articles of Confederation were established in 1781 to help govern the U.S.A. These Articles guaranteed each state’s sovereignty and independence.

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Chapter 1


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    1. Chapter 1 Legal Framework Affecting Public Schools

    2. Historical Development of the U.S. Constitution • The Articles of Confederation were established in 1781 to help govern the U.S.A. • These Articles guaranteed each state’s sovereignty and independence. • In 1783, after the Revolutionary War, each state began to act similarly to an independent country-running it’s own affairs with little concern for the Republic. • The Constitution was ratified 3 months after it was signed. (Signing: Sept. 17, 1787, Ratification: From Dec. 7, 1878 to June 21, 1788) • The Constitution adhered to the principle of separation of powers by making 3 separate branches of government-the legislative, judicial, and executive. • Additionally, powers are distributed between a central government, the states, and provinces. Articles VI, however, makes the national government supreme so states are obligated to enforce the U.S. Constitution, federal statutes, and treaties.

    3. Bill of Rights • The Bill of Rights represents the primary source of individual rights and freedoms. The first 10 amendments to the Constitution are viewed as fundamental liberties of free people. • For example, the government can not pass laws prohibiting the freedom of speech. • Others include the freedom of press, assembly, and religion. • Public schools belong to the state so they too must abide to the Bill of Rights when dealing with students and school personnel.

    4. U.S. System of Courts • The 2 types of courts are federal and state. • Federal courts include district courts, appellate courts, and the Supreme Court. • At least one federal court is found in each state with a total of 95 in the U.S. • There are 13 federal circuit courts with Nebraska belonging to the 8th. • State courts are where most educational cases take place because they do not involve federal questions. • State courts are split into courts of general jurisdiction, court of special jurisdiction, courts of limited jurisdiction, and appellate courts.

    5. Federal Court Video (8 min)

    6. The Supreme Court • The Supreme Court is the highest court in the land and there is no appeal beyond the decision of this court. The only way a decision can be overturned is by an amendment to the constitution. • Cases can reach the Supreme Court only based on appeal (by right) or writ of certiorari (by granting from the Supreme Court). • There are 9 members on the Supreme Court, including a Chief Justice, who are all appointed to life terms.

    7. Supreme Court Video (3 min)

    8. Religion in the Public School “Public Schools may not inculcate nor inhibit religion. Schools must be places where religion and religious conviction are treated with fairness and respect.” First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Lemon v. Kurtzman (Lemon Test) • The actions have a secular purpose; • The actions do not have the principal or primary effect of advancing or inhibiting religion; • The actions do not foster an excessive entanglement of government with religion.

    9. 1. Student Prayers Santa Fe Independent School District v. Doe 530 U. S. 290 (2000) The Court ruled prayer over a loudspeaker at a government sponsored eventon government property (football game on district property) is a violation of the Establishment Clause Student Prayer and Religious Discussion Establishment Clause does not prohibit purely private religious speech Students may read Bibles, say grace, say prayer anytime it is not disruptive to the learning process Informal gatherings are ok (Meet at Pole) School may neither discourage or encourage 2. Graduation Prayers and Baccalaureate Activities Lee v. Weisman 505 U. S. 577 (1992) Ruled graduation prayers unconstitutional Baccalaureate Activities “A school may not extend preferential treatment to baccalaureate ceremonies and may in some instances be obligated to disclaim official endorsement of such ceremonies.”

    10. 3. Participation in or Encouragement of Religious Activity Teachers and school administrators or employees, when acting in those capacities, are representatives of the state and are prohibited by the establishment clause from soliciting or encouraging religious activity, and from participating in such activity with students. Employees also are prohibited from discouraging activity because of its religious content, and from soliciting or encouraging anti-religious activity. 4. Religion in School Curriculum Religion is a natural part of history, which is included in the approved curriculum in SC. When the topic is addressed, the emphasis must be purely academic and not devotional. Schools may teach about religion and its influence on areas such as art, music, literature, and social studies. 5. Religious Content in Student Assignments Students may express their beliefs about religion in the form of homework, artwork, and other written and oral assignments free of discrimination based on the religious content of their submissions. Such home and classroom work should be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school.

    11. 6. Distribution of Religious Literature Schools generally shall not permit formal distribution of any materials from any non-school organization, regardless of the content of the materials on school property. Accordingly, students generally should not distribute flyers to all students on a mass level at specific established locations at the school. Students can distribute information on an informal basis that is not disruptive. Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or activities. Schools may impose reasonable time, place, and manner on distribution of religious literature as they do on nonschool literature generally. 7. Student Participation in Religious Events Before and After School There is no legal reason not to allow students to participate in religious events “before and after school,” which do not interfere with instructional time or the educational process.

    12. 8. Religious Holidays Although public schools may teach about religious holidays, including their religious aspects, and may celebrate the secular aspects of holidays, schools may not observe holidays as religious events or promote such observance by students. 9. Released Time for Religious Instruction Subject to applicable State laws, School Boards may allow religious instruction off school property. If allowed, schools may not encourage or discourage participation or penalize those who do attend. 10. Federal Equal Access Act Generally, if secondary public schools have a limited open forum, (allows non-curriculum clubs to meet), the school must allow religious groups the same access to the school media, (PA system, school newspaper, bulletin board).

    13. Students, the Law and Public Schools

    14. REASONABLENESS Administrators must adopt defensible school polices, provide explicit discipline guidelines, ensure parent understanding, and ensure that due process is provided. Essex (2008) states, “Generally, rules are deemed to be reasonable if they are necessary to maintain an orderly and peaceful school environment and advance the educational process (p.48)”

    15. “in loco parentis” • Essex (1999), “While in loco parentis gives school officials latitude to exert authority over students under their supervision, it is not a license to act in an arbitrary or capricious manner. The constitutional rights of students must be respected. The exercise of in loco parentis is limited to school matters involving academics and discipline. Areas outside of these two are reserved to parents.”

    16. Freedom of Expression • The First Amendment to the U.S. Constitution states, “Congress shall make no law…abridging the freedom of speech, or of press or of the rights of peoples to peacefully assemble.” • The Supreme Court in the landmark Tinker case established that students are entitled to all First Amendment guarantees stating: School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They possess fundamental rights which the State must respect…In our system, students may not be regarded as closed-circuit recipients of only that which the state chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speed, students are entitled to freedom of expression of their views.

    17. Freedom of Expression • “School official may restrict freedom of expression where there is evidence of material and substantial disruption, indecent or offensive speech, violation of school rules, destruction of school property, or disregard for authority. In each case, student must be provided minimal due process before any punitive action is taken.” • The First Amendment directly impacts: protests and demonstrations, school-sponsored newspapers, nonschool-sponsored student publications, dress and appearance and controversial slogans.

    18. Court Decisions to Consider • Tinker vs. Des Moines ISD • Bethel vs. Fraser • Hazelwood v. Kuhlmeier

    19. The Fourth Amendment Does the 4th Amendment apply to students in public schools? • No unreasonable search/seizure • Probable cause • Particularity • Warrants 4th Amendment applies to student searches BUT… • School officials are not required to obtain search warrants • Legality of a search conducted by school officials depends on reasonableness of search

    20. Court Decisions to Consider • New Jersey vs. T.L.O. SUMMARY • Students have limited right to privacy in school • School officials must satisfy “reasonableness” standard to search • School officials are not required to obtain warrant THE TEST • Search must be justified at inception Q: Did school officials have reasonable grounds for search? • Search must be reasonably related in scope to circumstances justifying search Q: Were measures used reasonably related to objectives of search and not excessively intrusive in light of age, sex of student and nature of infraction?

    21. Student’s Right to Due Process Due Process--What does it mean? “Due process requires fundamental fairness, fair processes and fair procedures.” • Procedural Due Process—Students right to be adequately notified of pending charges or proceedings and the opportunity to be heard during these proceedings. • Substantive Due Process—Students not subjected to arbitrary or capricious acts by school officials regarding the exercise of their personal rights. • Vagueness Doctrine—Students should not be penalized for behavior that he/she could not reasonably understand to be prohibited • Presumption Standard– Students may not be deprived of rights without assurance that there is sufficient factual evidence.

    22. “Procedural Safeguards and Due Process Standards” • 1. Specific warning must be given about what behavior would result in corporal punishment. • 2. Administration of corporal punishment must take place in the presence of another school official. • 3. Upon request, a written statement must be given to parents regarding reasons for the punishment and the name of the official witness.

    23. Court Decisions to Consider Goss vs. Lopez • Students were suspended for 10 days without a hearing and were not present at the board meeting when suspensions were handed out. Summary Ruling • All students have the right to procedural due process? • Students have the right to explain their conduct to an administrator (short-term suspension). • Students must be given a hearing before the school board for long-term suspensions and expulsion.

    24. Chapter 4 Due Process & Student Safety

    25. Homeland Security • Increased concern for safety across the nation after 9/11 • No Child Left Behind assures schools “plans” are on file regarding maintenance of safe & drug free environments

    26. NSCC guidelines for safe schools: • Identify context in which academic learning should take place in school mission statement. (ie: “to learn in a safe and secure environment free of violence, drugs…”) • Identify procedure for dealing with threats. • Identify potential disasters in your school. (ie: intruders, assault, weapons, kidnappings, child abuse, accidental death, natural disasters…)

    27. NSCC guidelines for safe schools cont. • Control campus access. • Identify roles and responsibilities. • Identify who to call in a crisis. • Provide training for all. • Establish and emergency communication system. • Implement uniform reporting/record-keeping system.

    28. Handling GANG violence • Ensure that school personnel have knowledge of gang identification and management techniques. • Establish policies and procedures to address gang violence at school. • Implement a system to report suspected gang involvement/activity. • May need to ban dress related to gang activity.

    29. School Uniforms • Involve the community in drafting. • Make certain student religious expressions are preserved. • Make certain student rights of expression are preserved within reasonable limits. • Make financial provisions for economically disadvantaged students. • Enforce policies fairly and consistently. • Implement as a component of an overall school safety program. • Present drafts to legal counsel for review. • Review and revise as needed.

    30. Zero Tolerance • Do not use solely to rid of disruptive students. • Involve community in formation of policies regarding zero tolerance. • Recognize that students have constitutional rights while drafting. • Do not move too swiftly with an assumption that it will be a “cure-all” for student mis-conduct. • Upon expulsion of a student, seek alternative educational opportunities. • Consider student history, seriousness of offense, and immediate need to act before punishment. • Follow due process in all manners.

    31. Suspension • Give adequate notice of policies regarding suspension. • Compile a record of information. (Include: description, time, and place of infraction, witnesses, and previous efforts to remedy behavior) • Provide some type of hearing preceded by notification of such. • Provide written or oral notice of charges (Include evidence and opportunity to refute charges). • No delay is necessary between notice and hearing. • Listen to all sides of the issue during the hearing. Students should be allowed to present their side without interruption. • Provide written notification of the actions from the hearing to the parents/guardians (Include: charges, evidence, number of days of suspension, ISS or OSS, conditions for return to school, statement that suspension can be appealed if desired.) • Inform parents/guardians by phone immediately. Follow with written notification promptly.

    32. Expulsion**These steps will meet the standards of due process if implemented correctly.** • Inform student(s), parents/guardians based on school policy of infractions that may result in expulsion. • Student is entitled to written notice of the charges and a right to a fair trial. Written notice must be furnished well in advance of the actual hearing. • The following procedural steps should be considered (at the minimum): 1. Written notice of charges, 2. Right to a fair hearing, 3. Right to inspect evidence, 4. Right to present evidence on student’s behalf, 5. Right to legal counsel, 6. Right to call witnesses, 7. Right to cross-examine, 8. Right against self-incrimination, 9. Right to appeal.

    33. Metal Detectors & Drug Testing • Metal detectors should be used only when there is evidence of student behavior that poses threat to student health and safety. • Drug testing by schools has been deemed legal in the Supreme court pending it is part of the school’s district-wide program on drug education and prevention and is in the district’s interest in combating drug abuse.

    34. CHAPTER 5 Individuals With Disabilities EDAD 859 By: Group 2

    35. 1975- P.L. 94-142 the Education for All Handicapped Children Act: • An act of congress after findings that supported the need. • Congress realized it was in the nations best interest for the federal government to intervene and work with the states collaboratively in addressing the needs of children with disabilities.

    36. 1990- Individuals With Disabilities Education Act (IDEA): • Defines the responsibility of school districts in regards to children with disabilities ages 3-21. The level of financial support is set forth to assist states in meeting their obligations. • This legislation was passed to ensure that all children with disabilities receive a free and appropriate public education in a least restrictive environment.

    37. 2004- Individuals With Disabilities Education Improvement Act (IDEIA): • This act was a reauthorizing of IDEA. • Was signed by the president on November 19th, 2004. • A federal law that ensures that eligible children with disabilities ages 3-21 receive a free and appropriate public education consistent with their individual needs. • It provides new formulas for allocating funds to state and local education agencies. • The act also established substantsive and procedural due process rights.

    38. 2000- National Council on Disability (NCD): • An independent federal agency of fifteen members that were appointed by the president and confirmed by the senate. • Purpose is to promote policies, programs,, practices and procedures designed to assure equal opportunity for individuals with disabilities irrespective of the nature and severity of their disability. • Found every state to be out of compliance (to some degree) with the Individuals with Disabilities Education Act (IDEA).

    39. Disciplining Students with Disabilities: • A suspension of 1-10 days is the same for a child with a disability or without a disability. • Suspension and/or expulsion over 10 days will follow the same guidelines or plan for disabled students unless the disabled student’s behavior manifested from the disability.

    40. Parental Rights in Special Education: • There is to be written consent prior to a school district conducting an initial or reevaluation of a student. • All students have a right to a “Free and Appropriate Public Education” (FAPE). • Parents must have input on a child’s IEP as they know the child best. • Parents have the right to request evaluations by other providers such as an O.T. P.T. or vision specialist etc… • Parents have the right to request meetings and to refuse special education services.

    41. Least Restrictive Environment: • Regular classroom with support from the regular education classroom teacher. • Regular class with support instruction from special education teacher. • Regular class with special resource instruction. • Full time special education class in a regular school. • Full time special school. • Residential school. • Homebound instruction.

    42. Multi-Disciplinary Team (MDT): • MDT meetings are held to discuss the results of initial testing or reevaluation testing to determine if a student qualifies for Special Education Services. • All MDT meetings must have an administrator in attendance or an appointed person who is qualified to provide information, supervise and have knowledge of the availability of resources in the school district. • Students are reevaluated every three years. • Students are eligible for services from ages 3-21 but there are services available for children birth – 3 years old.

    43. Individual Educational Plan (IEP): • A written statement for each child with a disability that describes their educational program. It is developed, reviewed and revised in accordance with IDEA and must meet Rule 51 and IDEA requirements. • Must meet annually. • Can include related services such as O.T., P.T., etc…as needed. • Must be developed and implemented for each public and non public school child who receives special education and related services.

    44. Questions? Check this out! • http://www.ed.gov/about/offices/list/ocr/504faq.html

    45. Chapter 6 School Personnel and School District Liability

    46. Liability • Liability involving school personnel normally falls into two categories: intentional torts and unintentional. • Intentional torts-such as assault, battery, libel, slander, defamation, false arrest, malicious prosecution, and invasion of privacy-require proof of intent or willfulness. • Unintentional torts-such as simple negligence-does not require such proof of intent or willfulness. • In either case, charges may be sustained if the school failed to act appropriately or improperly. • Forseeability, a crucial element in liability cases, is defined as the teacher’s or administrator’s ability to predict that a certain activity may prove harmful. For example, a school would be liable if broken glass panes exist in a doorway.

    47. Student safety • Teachers have a legal duty to instruct students on the proper use of equipment and materials. Failure to do so makes the teacher liable. Examples include use of table saws, welding equipment, science equipment, and athletic equipment and techniques. • There is no clear cut line for procedures for before and after school supervision. Each district must evaluate their own situation and provide the supervision necessary. At the very least, students should be periodically monitored. If problem arise, then full time supervision would be required • A letter informing parents of before and after school monitoring policies should be sent home, signed by the legal guardian, and returned to the school.

    48. General thoughts • School grounds should be accessible and considered safe for visitors. • Personal information regarding students must be kept confidential. • Schools should develop a culture and a set of values that place a high premium on respect of all individuals in the school community. • Items retrieved from students, if not illegal, should be returned to students or their parents in a reasonable time frame and not retained permanently by school personnel. • Well planned liability workshops should be offered periodically to ensure that school personnel are aware of the limits of liability.

    49. Interesting Video (2 min) • News Story

    50. Liability and Student Records Chapter 7 School Law and the Public Schools, 2008 Nathan Essex