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School law for Private School Administrators Important school law cases affecting private school administration. Denise L. Donohue, MCSL Doctoral Candidate Nova Southeastern University Lilly Rangel-Diaz IREACH, Center for Education Advocacy, Inc. Overview of presentation.
Denise L. Donohue, MCSL
Doctoral Candidate Nova Southeastern University
IREACH, Center for Education Advocacy, Inc.
Categories of law and their affect on private schools.
1. Constitutional Law (3% of presentation)
2. Federal and State
statutes and regulations (47%)
3. Common Law (.5%)
4. Contract Law (47.5%)
5. Tort law cases (2%)
Students have a right to Due Process.
First amendment rights of Free Speech can
not be denied without Due Process.
Students were suspended from school for
10 days without Due Process.
Banned school sponsored prayer.
No longer can the bible be read at the
beginning of the school day.
Banned school sponsored prayer at graduation
Banned school sponsored prayer at athletic events.
Federal Laws and regulations
NCLB: No Child Left Behind Title Funds
FERPA: Family Educational Rights and Privacy Act (Buckley Amendment)
FMLA: Family Medical Leave Act – applies if school employees over 50 employees within a 75mile radius.
Civil Rights Act of 1964 – Title VII 2 U.S.C Sec. 2000e-1(a) and
42 U.S.C. Sec. 2000e-2(e)(1). Religious exemption for hiring.
ADA: Americans with Disabilities
Act (1990) Applies to students and employees.
IDEA: Individuals with Disabilities
Education Act (1990)
(IDEIA, 2004) Applies to students.
Section 504: Rehabilitation Act of 1973
Applies to students and employees.
Examples of common regulations include:
Mandatory attendance rules
State History requirements
Registration and teacher certification
See Dept. of Education publication at
ADA, IDEA, 504
Contract law is the predominant law governing private schools. Shaughnessy, (1989).
Three primary sources of Contract Law
Marital status and family situations*
Non-job related inquiries into personal
history and associations
Non-job related education and work
history Shaughnessy, M. (1989)
“Are you a Catholic in good standing with the Church?”
“Is there any condition or situation that may cause you to have a problem with regular attendance?” Shaughnessy, (1991), p. 53
Review and update Handbook annually
communication with parents, supervision, grading
scale & reporting, professionalism (relationships/boundaries).
expectations, student discipline.
sick leave policy, Bishops safe environment with signature page
documentation and employee right to respond.
School is a private entity operating under primarily contract law.
Unless direct and substantial State interest is involved (to warrant public school “status”) constitutional protections do not apply. Areas to review for State interest include state funding, state control, tax exempt status, public benefit or function.
Unless a Due Process procedure is included in the contract or handbook, it does not apply. If it is included in either, it must be followed.
Loss of freedom of speech, due process
Rendell-Baker was a counselor at a private school. She advocated and voiced a position against the private school’s board and was summarily dismissed. She brought suit against the principal (Kohn) for violation of the First Amendment of the Freedom of Speech and Fifth and Fourteen Amendment for the loss of due process.
Even though the school received 90% of its operational income from state funding “the court declined to find the presence of state action significant enough to warrant constitutional protections” (Shaughnessy, 1991, p.10)
Civil rights code of 1964 of non-discrimination against race, color, sex, and national origin stands, except for religion and Civil rights code of 1967 against Age discrimination,
Dolter v. Wahlert High School 483 F. Supp. 266 (1980): Dolter, a female, unmarried teacher at a Catholic school became pregnant and took school to court after they refused to rehire her. Dolter presented evidence that males were rehired who also had pre-marital sex.
Court said there was no entanglement between church and state for them to rule on equal treatment for males and females. Court ruled for Dolter.
Apply rules EQUALLY to males and females.
No union, no grievance procedure,
Common law may indicate a de facto tenure. If teacher is employed for over three years, then expectation of continued employment may exist.
Reutter, E. (1977)
Four elements must be present: duty, violation of duty, proximate cause and injury.
Diamantes, T. & Roby, D. (2000)
Public school case which established that schools only need reasonable cause, instead of probable cause, to search students possessions.
Not applicable to private schools, BUT there should be some policy in place for searches in schools. Desks and lockers are considered school property. Courts will look to ‘reasonable person’ rules to establish tort cases – how was thesearch conducted, justification at its inceptionindividualized suspicion.
Board of regents of State Colleges v. Roth 408 U.S. 564. Retrieved from http://www.law.cornell.
Casebriefs. (2012). Pierce v. Society of Sisters 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 1925
U.S. Retrieved at http://www.casebriefs.com/blog/law/family-law/family-law-keyed-to- weisberg/private-family-choices-constitutional-protection-for-the-family-and-its-
Diamantes, T. & Roby, D. (2000). Student injuries and school: Who is responsible. You be the
judge. The Clearing House, 73 (6), 308-311. Retrieved from http://www.jstor.org/discove
Dixon et. al. v. Alabama State Board ofEducation 186 F. Supp. 945; 1960 U.S. District. LEXIS
3482. Retrieved from http://justice.law.stetson.edu/courses/casedigests/dixon.pdf
Dolter v. Wahlert High School 483 F. Supp. 266 (1980).
Oyez Project: U.S. Supreme Court Media website: The Oyez Project, New Jersey v. T.L.O.
Retrieved from http://oyez.org/cases/1980-1989/1983/1983_83_712
Oyez Project: U.S. Supreme Court Media website: The Oyez Project, Tinker v. Des Moines, 393
U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 733 (1969). Retrieved at http:// www.oyez.org/cases
Reutter, E. (1977). The courts and student conduct. Topeka, KS: NOLPE (ERIC Document
Reproduction Service No. ED 006 406), 1977.
Shaughnessy, M. (1989). School handbooks: Some legal considerations. Washington, D.C.:
Shaughnessy, M. (1991). The law and Catholic schools: Approaching the new millennium.
Washington, D.C.: NCEA.
Steeber v. Benilde-St. Margaret’s High School No. D.C. 739 378, Hennepin County, Minnesota
U.S. Equal Opportunity Employment Commission (2012). Pre-Employment inquires and
marital status or number of children. Retrieved from http://www.eeoc.gov/laws/ practices/inquiries_marital_status.cfm
U.S. Equal Opportunity Employment Commission. (2012). Title VII of the civil rights act of
1964. Retrieved from http://www.eeoc.gov/laws/statutes/titlevii.cfm
U.S. Department of Education. Elementary and Secondary Education.No child left behind
title funds. Retrieved at http://www2.ed.gov/policy/elsec/leg/esea02/index.html
U.S. Department of Education. Elementary and Secondary Education. Family educational rights and privacy act. Retrieved at http://www2.ed.gov/policy/gen/guid/fpco/ferpa /index.html
U.S. Department of Education. (2009). State regulation of private schools. Retrieved from
U.S. Department of Labor. (2012). Wage and hour division: Family and medical leave act.
Retrieved from http://www.dol.gov/whd/fmla/