Education And School Law Order

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EA 031 655

LaMorte, Michael W. School Law: Cases and Concepts. Seventh Edition. ISBN-0-205-34284-1 2002-00-00 486p. Allyn & Bacon, A Pearson Education Company, 75 Arlington Street, Suite 300, Boston, MA 02116 ($96). Tel: 800-666-9433 (Toll Free); Web site: Books (010) Information Analyses (070) MF02/PC20 Plus Postage. Civil Liberties; Constitutional Law; *Court Litigation; Due Process; Educational Finance; Elementary Secondary Education; Federal Government; Federal Legislation; Governance; Legal Problems; *Legal Responsibility; *Public Schools; School Desegregation; *School Law; State Church Separation; State Government; Student Rights; Teacher Rights

This book examines the sizable body of school law that outlines legally defensible decisions. A substantial part of it contains edited, reported, and verbatim decisions. Historical perspective is provided, as well as specific case and statutory law. Chapter 1 discusses sources of law for educators, state school board policies, attorneys-general opinions, and local school board policies. Chapter 2 examines the extent of a state’s and local school system’s authority. Chapter 3 considers student interests, including freedom of expression, discipline, privacy, appearance, pregnancy, and marriage. Chapter 4 examines teacher-related issues including nonrenewal and dismissal, freedom of expression, academic freedom, protesting, teacher bargaining, and political activities. Chapter 5 provides historical perspective for the issues of desegregation. Chapter 6 addresses the legal status of individuals with disabilities. Chapter 7 provides a historical perspective for legal attacks on the financing and adequacy of state school-finance plans. Chapter 8 addresses the extent of a school districts’ liability for damages. Appendices provide additional information enabling the reader to analyze court decisions, engage in legal research, or find educational law material on the Internet. Relevant sections of the U. S. Constitution and amendments, edited federal statutes significant to educators, and a glossary are also provided. (RKJ)

Reproductions supplied by EDRS are the best that can be made from the original document.






U S DEPARTMENT OF EDUCATION Office of Educational Research and Improvement


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SCHOOL LAW Cases and Concepts


ALLYN AND BACON Boston London Toronto Sydney Tokyo Singapore




Series Editor: Arnis E. Burvikovs Editorial Assistant: Matthew Forster Production Coordinator: Susan Brown Marketing Manager: Kathleen Morgan Editorial-Production Service: Matrix Productions Cover Administrator: Kristina Mose-Libon Composition Buyer: Linda Cox Manufacturing Buyer: Julie McNeill

Copyright © 2002, 1999, 1996, 1993, 1990, 1987, 1982 by Allyn & Bacon A Pearson Education Company 75 Arlington Street Boston, MA 02116

All rights reserved. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without the written permission of the copyright owner.

Library of Congress Cataloging-in-Publication Data

La Morte, Michael W. School law : cases and concepts / Michael W. La Morte.-7th ed.

p. cm. Includes index. ISBN 0-205-34284-1 1. Educational law and legislationUnited StatesCases. I. Title.

KF4118 L25 2001 344.73’07dc21 2001018205

Printed in the United States of America 10 9 8 7 5 4 3 2 1 05 04 03 02 01


ISBN 0-205-34284-1

780205 342846




This book is dedicated to my grandfather, Heinrich Schroeder, the only truly politically brave person I have ever known personally. As a young boy living in Nazi Germany in the 1930s, I saw him constantly standing up to the Nazi regime by engaging in conduct that was not allowed by the au- thorities. This included clandestinely listening to the shortwave radio, publicly speaking up against Adolf Hitler and the Nazi regime, and refus- ing to salute the swastika or greet people with the mandatory “heil Hitler.” It should be remembered that this defiance took place during a period when Jewish or politically suspect neighbors disappeared and no one would dare inquire about their disappearance and when a young boy like me was questioned by the gestapo about his grandfather’s activities.

My grandfather refused to conform to the demands of a despotic to- talitarian regime and, as a result, although he was not a Jew, he was sent to a concentration camp. This incarceration was a high price to pay for stand- ing up for his political beliefs.

His example instilled a lifelong respect in me for the importance of living under the rule of law. Instilling students with this notion should be every educator’s goal. It is my hope that the information contained in this book will assist educators in that pursuit.




Table of Cases xiii

Preface xxiii

A Note to Users of This Text xxvii

1 Educational Governance: Sources of Law and the Courts 1

I. Sources of Law 3 A. Federal Level 3

1. Constitution and Amendments 3 a. Historical Perspective 3 b. Due Process and Equal Protection 5

(1) Due Process 6 (2) Equal Protection 8

2. Statutes 9 3. Case Law 10 4. Executive Orders and Attorney General Opinions 11

B. State Level 11 1. State Constitutions 11 2. State Statutes 12 3. Case Law 12 4. State Board of Education, Chief State School Officer,

and State Department of Education 13 5. Attorney General Opinions 13

C. Local Level 14 II. The American Judicial System 14

A. State Court Systems 15 B. Federal Court System 16

1. District Courts 16 2. Courts of Appeals 16 3. Supreme Court 16

6 v



vi Contents

2 Schools and the State 19

I. Compulsory Attendance 19 A. Satisfied by Parochial, Private, or Home

School Attendance 19 Pierce v. Society of Sisters 20 Notes and Questions 22

B. Regulation of Nonpublic Schools 24 C. Home Instruction 25 D. Admission Issues 28

II. Religion in the Schools 29 A. School-Sponsored Prayer and Bible Reading 29

1. Recitation of a State Prayer 30 Engel v. Vitale 30

2. Prayer and Bible Reading 35 School District of Abington Township v. Schempp and Murray v. Curlett 35 Notes and Questions 38

3. Prayers at Graduation Exercises and other Public School-Sponsored Activities 44 a. Prayer at Graduation Exercises 44 Lee v. Weisman 44 Notes and Questions 54 b. Prayer at Other Public School Activities 56

B. Equal Access 58 C. The Teaching of Evolution 61

Edwards v. Aguillard 61 Notes 65

D. Textbooks 66 E. Distribution of Religious Literature 68 F. Released and Shared Time and Religious Instruction 69 G. Religious Holidays 70 H. Suggested Guidelines Regarding Religion

in the Public Schools 71 III. Use of Facilities 74

Lamb’s Chapel v. Center Moriches Union Free School District 75 Notes and Questions 79

IV. Aid to Nonpublic Schools 82 V. School Fees 86

Hartzell v. Connell 86 Notes and Questions 89

VI. Health Services 90 A. Immunization 90

Berg v. Glen Cove City School District 90 Notes 92

B. Distribution of Condoms 93




Contents vii

3 Students and the Law 95

I. Freedom of Expression 96 A. The Tinker Doctrine 96

Tinker v. Des Moines Independent Community School District 96 Notes 103

B. Limiting the Tinker Doctrine 105 1. Nonpolitical Speech 105

Bethel School District No. 403 v. Fraser 105 Notes 110

2. School-Sponsored Expressive Activities 110 Hazelwood School District v. Kuhlmeier 111 Notes and Questions 115

C. Participation in Patriotic Exercises 117 Sherman v. Community School District 21 117 Notes and Questions 118

Suspension, Expulsion, and Disciplinary Transfer 120 A. Suspension 120

Goss v. Lopez 120 Notes and Questions 127

B. Expulsion 128 1. Public School Expulsion 128

Gonzales v. McEuen 128 Notes and Questions 131

2. Private School Expulsion 133 Allen v. Casper 134 Note 136

C. Disciplinary Transfer 137 III. Corporal Punishment 137

Ingraham v. Wright 138 Notes and Questions 142

IV. Search of Students and Lockers 143 A. Student Search 145

New Jersey v. T.L.O. 145 Notes and Questions 150

B. Search for Drugs and Weapons 150 C. Intrusive Search 152 D. Locker Search 154

V. Student Appearance 155 A. Dress 156 B. Uniforms 158 C. Grooming 160

VI. Pregnancy, Parenthood, and Marriage 162 VII. Participation in Extricurricular Activities 163




viii Contents

A. Legal Status of Extracurricular Activities 164 Palmer v. Merluzzi 164 Notes and Questions 167

B. Athletics 168 1. Married Students 169

Beeson v. Kiowa County School District RE-1 169 Notes and Questions 171

2. Gender Equity 171 VIII. School Punishment for Out-of-School Offenses 173

4 Teachers and the Law 176

I. Nonrenewal and Dismissal 176 Board of Regents of State Colleges v. Roth 177 Notes and Questions 181

II. Freedom of Expression 183 A. Tenured Teacher’s Public Expression 184

Pickering v. Board of Education of Township High School District 205 184 Notes 188

B. Nontenured Teacher’s Freedom of Expression 190 Mt. Healthy City School District Board of Education v. Doyle 190 Notes 194

III. Academic Freedom 194 A. Appropriate Material 195

Fowler v. Board of Education of Lincoln County 195 Notes and Questions 199

B. Political Speakers 204 Wilson v. Chancellor 204 Questions 209

IV Drug Testing 209 V. Personal Appearance 211

East Hartford Education Association v. Board of Education of Town of East Hartford 211 Notes and Questions 215

VI. Teacher as Exemplar 215 A. Homosexual Teacher 216

Gaylord v. Tacoma School District No. 10 217 Notes and Questions 224

B. Adulterous Teacher 227 Erb v. Iowa State Board of Public Instruction 227 Note 231

C. Criminal Activities 231 Gillett v. Unified School District No. 276 231 Notes 235




Contents ix

D. Impropriety with Students 236 Barcheski v. Board of Education of Grand Rapids Public Schools 236 Notes 240

VII. Employment Discrimination 240 A. B.

Notes 249 C. Pregnancy 250

Eckmann v. Board of Education of Hawthorn School District 251 Notes and Questions 254

D. Religious Discrimination 256 E. Age Discrimination 257

VIII. Teacher Bargaining 259 Lehnert v. Ferris Faculty Association 260 Notes 265

IX. Political Activities 266

Racial Discrimination 242 Sex Discrimination 245 Marshall v. Kirkland 246

5 School Desegregation 269

I. Historical Perspective 270 A. Separate but Equal Doctrine 270

Plessy v. Ferguson 270 Notes and Questions 278

B. De Jure Public School Segregation Unconstitutional (Brown I) 279 Brown v. Board of Education of Topeka 279 Notes and Questions 283

C. Implementation (Brown II) 283 Brown v. Board of Education of Topeka 284 Notes and Questions 285

Early Desegregation in the South 286 Desegregation in the Non-South 287 A. Intentional Segregative Action 288 B. Interdistrict Integration 289

Sheff v. O’Neill 290 IV. Current Desegregation Issues 296

A. Release from Court Order 296 B. Race-Related Placement 299

1. Magnet Schools 299 2. Weighted Lottery 301

V. Epilogue 302

1 0




6 Individuals with Disabilities and the Law 305

I. The Individuals with Disabilities Education Act 307 A. Eligibility 307 B. Identification and Evaluation of Students 308 C. Substantive Educational Rights 309

Board of Education of the Hendrick Hudson Central School District v. Rowley 309 Notes and Questions 315

D. Individualized Education Programs 316 E. Appropriate Placements 316 F. Related Services 319 G. Procedural Protections 320 H. Discipline 322

Summary 328 I. Transition Services 329 J. Graduation and Competency Exams 330

K. Cost Issues 330 Notes and Questions 331

II. Section 504 of the Rehabilitation Act 332 A. Students and Section 504 333

Thomas v. Atascadero Unified School District 335 Notes 339 Grube v. Bethlehem Area School District 340 Note 343

B. Employees and Section 504 343 III. The Americans with Disabilities Act 345

7 School Finance and School Choice Issues 346

I. School Finance Reform 346 A. Background 346 B. Early Decisions 348 C. Fiscal Neutrality 348 D. Rodriguez 349

San Antonio Independent School District v. Rodriguez 350 Notes and Questions 359

E. Post-Rodriguez Litigation 359 1. Decisions Upholding State Finance Provisions 360 2. Decisions Effecting Reform 361

Rose v. Council for Better Education 362 Notes 369

1 1



Contents xi

II. Choice 370 A. Choice Plans 370

1. Public School Inter- and Intradistrict Open Enrollment 370

2. Interdistrict Specialized Schools and Plans 371 3. Voucher Plan 371 4. Charter Schools 375 5. Private Contractors 376 6. Tuition Tax Credits 376

B. Legal Implications 377 Listing of Selected School Finance-Related Cases 379

8 Educator and School District Liability 383

I. School District Immunity 383 A. Liability under State Law 383 B. Liability under Federal Law 385

1. Liability under 42 U.S.C. § 1983 385 Wood v. Strickland 385 Notes and Questions 390 Carey v. Piphus 391

2. Damages under Title IX 395 a. Teacher-to-Student Harassment 395

Gebser v. Lago Vista Independent School District 395 Notes 399

b. Student-to-Student Harassment 400 Davis v. Monroe County Board of Education 400 Question 405

II. Educator Liability 405 A. Intentional Torts 405 B. Negligence 406

1. Duty of Care 406 2. Standard of Care 406 3. Proximate Cause 407 4. Actual Loss or Injury 407

C. Defenses for Negligence 407 III. Duties of Supervision 408

A. Before and after School 408 B. During School Hours 410 C. Off-Campus Activities 411

IV. Parental Consent 412 V. Malpractice 412

VI. Insurance 414 Questions 414




xii Contents

APPENDIX AAnalyzing a Court Decision 415 APPENDIX BAn Introduction to Research in School Law 418 APPENDIX CThe Constitution of the United States

of AmericaEdited 429 APPENDIX DStatutory Material 435

Title VII of the Civil Rights Act of 1964P.L. 88-352 435 Pregnancy Discrimination Act of 1978EL. 95-555 437 Age Discrimination in Employment Act of 1967 P.L. 90-202 438 Age Discrimination in Employment Act Amendments of 1978P.L. 95-256 439 Age Discrimination in Employment Act Amendments of 1986P.L. 99-592 439 Title IX of the Education Amendments of 1972 P.L. 92-318 440 Section 504 of the Rehabilitation Act of 1973P.L. 93-112 441 Family Educational Rights and Privacy Act of 1974 P.L. 93-380 441 Equal Access Act of 1984 P.L. 98-377 443 Civil Rights-42 U.S.C. §1981-1983 445

Glossary 447

Index 453

1 3



Table of Cases*

Abbott v. Burke 380 Able v. U.S. 226 Abood v. Detroit Bd. of Educ. 266 Acanfora v. Bd. of Educ.

of Montgomery County 224 Agostini v. Felton 84, 85 Aguilar v. Felton 84 Albach v. Olde 167 Alexander v. Holmes County Bd.

of Educ. 287 Allegheny County v. American Civil

Liberties Union 42 Allen v. Casper 134 Altman v. Bedford Central

School Dist. 41 Ambach v. Norwick 182 Anderson v. Creighton 391 Andrews v. Drew Municipal Separate

School Dist. 254 Ansonia Bd. of Educ. v. Philbrook 256 Avery v. Homewood City Bd.

of Educ. 254

B. M. v. Montana 414 Bacon v. Bradley-Bourbonnais

H.S. Dist. 69 Bagley v. Raymond School

Dept. 374 Bailey v. Truby 168 Bangor Baptist Church v. Maine 24 Barber v. Colorado Indep.

School Dist. 161 Barbier v. Connolly 8 Barcheski v. Bd. of Educ. of Grand

Rapids Pub. Schools 236 Barnes v. Bott 408 Bartell v. Palos Verdes Peninsula

School Dist. 409 Battles v. Anne Arundel County Bd.

of Educ. 27 Bauchman v. West H.S. 201

Note: Edited cases are indicated by boldface.

Beaufort County Bd. of Educ. v. Lighthouse Charter School Comm. 375

Beeson v. Kiowa County School Dist. RE-1 169

Belk v. Charlotte-Mecklenburg Bd. of Educ. 301

Bell v. U-32 Bd. of Educ. 116 Bensalem School Dist.

v. Pennsylvania 381 Berg v. Glen Cove City

School Dist. 90 Bethel School Dist. No. 403

v. Fraser 105 Beussink v. Woodland R-IV

School Dist. 104 Bishop v. Colaw 161 Bismarck Pub. School Dist. No. 1

v. State 381 Bivens v. Albuquerque Pub.

Schools 157 Blaine v. Bd. of Educ., Haysville Unified

School Dist. No. 261 161 Blase v. Illinois 379 Blessing v. Mason County Bd.

of Educ. 28 Bluestein v. Skinner 210 Bd. of Educ., Island Trees Union Free

School Dist. No. 26 v. Pico 203 Bd. of Educ., Levittown Union Free

School Dist. v. Nyquist 381 Bd. of Educ. of City School Dist.

of Cincinnati v. Walter 381 Bd. of Educ. of the Hendrick

Hudson Central School Dist. v. Rowley 330

Bd. of Educ. of Long Beach Unified School Dist. v. Jack M. 224

Bd. of Educ. of Oklahoma City Pub. Schools v. Dowell 297




x iv Table of Cases

Bd. of Educ. of the Town of Stafford v. State Bd. of Educ. 85

Bd. of Educ. of the Westside Community Schools v. Mergens 59

Bd. of Regents of State Colleges v. Roth 177

Bob Jones Univ. v. U.S. 86 Boring v. Buncombe County Bd.

of Educ. 200 Boyd v. Harding Academy

of Memphis, Inc. 255 Bradley v. Pittsburgh Bd.

of Educ. 201 Brands v. Sheldon Community

School 168 Brayton v. Monson Pub. Schools 189 Breen v. Kahl 161 Breese v. Smith 161 Breitling v. Solenberger 131 Brigham v. State 382 Britt v. North Carolina State Bd.

of Educ. 382 Bronx Household of Faith v. Community

School Dist. No. 10 80 Brookhart v. Illinois State Bd.

of Educ. 330 Brosnan v. Livonia Pub. Schools 414 Broward County School Bd.

v. Ruiz 411 Brown v. Bathke 254 Brown v. Bd. of Educ. of Topeka

(Brown I) 242, 269, 279, 289, 302 Brown v. Bd. of Educ. of Topeka

(Brown II) 284, 289 Brown v. Bd. of Educ. of Topeka

(Brown III) 298 Brown v. Bd. of Educ. of Topeka

(Brown IV) 298 Brown v. Hot, Sexy and Safer

Productions, Inc. 201 Brown v. Stone 92 Brown v. Unified School District

No. 501 298 Brown v. Woodland Joint Unified

School Dist. 202 Brunelle v. Lynn Pub, Schools 26 Buckley v. Archdiocese of Rockville

Center 400 Burruss v. Wilkerson 348 Burton v. Cascade School Dist.

Union H.S. No. 5 224 Buse v. Smith 382

1 5

Caldwell v. Cannady 174 Calendra v. State College Area School

Dist. 93 California Federal Savings and Loan

Ass’n v. Guerra 255 Cameron v. Bd. of Educ. of Hillsboro,

Ohio City School Dist. 255 Campbell County School Dist. v. State

382 Capitol Square Review and Advisory Bd.

v. Pinette 43 Cardiff v. Bismarck Pub. School

Dist. 89 Carey v. Piphus 385, 391 Carrollton-Farmers Branch Indep.

School Dist. v. Edgewood Indep. School Dist. 382

Cary v. Bd. of Educ. of AdamsArapahoe School Dist. 28-J 203

Castle v. Colonial School Dist. 268 Cedar Rapids v. Garret F. 320 Ceniceros v. Bd. of Trustees of the San

Diego Unified School Dist. 60 Chalk v. U.S. Dist. Court 344 Chandler v. Miller 210 Cheema v. Thompson 43 Chicago Teachers Union Local No. 1

v. Hudson 266 Chipman v. Grant County School

Dist. 163 Chittenden Town School Dist. v. Dept.

of Educ. 374 Citizens Concerned for Separation of

Church and State v. City and County of Denver 41

City of Boerne v. Flores 43 City of Pawtucket v. Sundlun 381 Claremont School Dist.

v. Governor 380 Clark v. Huntsville City Bd.

of Educ. 244 Clark v. Shoreline School Dist.

No. 412 344 Clements v. Bd. of Trustees of the

Sheridan County School Dist. No. 2 174

Cleveland Bd. of Educ. v. La Fleur 250 Clonlara Inc. v. State Bd.

of Educ. 26 Clyde K. v. Puyallup School Dist. 326 Coalition for Adequacy and Fairness in

School Funding, Inc. v. Chiles 379



Coalition for Economic Equity v. Wilson 303

Coalition for Equitable School Funding, Inc. v. State 381

Cochran v. Chidester School Dist. 254

Colin ex. rel. Colin v. Orange Unified School Dist. 60

Columbus Bd. of Educ. v. Penick 289 Comm. for Educational Rights

v. Edgar 379 Comm. for Pub. Educ. and Religious

Liberty v. Nyquist 83, 85 Comm. for Pub. Educ. and Religious

Liberty v. Regan 83 Commonwealth v. Cass 155 Commonwealth v. Douglass 143 Connick v. Myers 188, 200, 225 Cooper v. Aaron 286 Cooper v. Eugene School Dist.

No. 4J 257 Cordrey v. Euckert 316 Cornfield v. Consolidated H.S. Dist.

No 230 153 Cox v. Dardanelle Pub. School

Dist. 189 Craig v. Selma City School Bd. 127 Crockett v. Sorenson 70 Cunico v. Pueblo School Dist. 244 Curtis v. School Comm.

of Falmouth 93

D.B. v. Clarke County Bd. of Educ. 132

Dailey v. Los Angeles Unified School Dist. 410

Dale v. Bd. of Educ., Lemmon Indep. School Dist. 66

Dallam v. Cumberland Valley School Dist. 167

Danson v. Casey 381 Davis v. Monroe County Bd.

of Educ. 400 Day v. South Park Indep.

School Dist. 189 De Michele v. Greenburgh Central

School Dist. No. 7 240 Dennin v. Connecticut Interscholastic

Ath. Conf 343 DeRolph v. State 381 Dibortolo v. Metropolitan School Dist.

of Washington Township 410

Table of Cases xv

Dickens v. Johnson County Bd. of Educ. 127

Dickey v. Robinson 381 Dike v. School Bd. of Orange

County 255 diLeo v. Greenfield 182 Dist. 27 Community School Bd.

v. Bd. of Educ. of the City of New York 339

Doe v. Renfrow 154 Donohue v. Copiague Union Free School

Dist. 413 Drake v. Covington County Bd.

of Educ. 254 Dubuclet v. Home insurance Co. 235 Dupree v. Alma School Dist.

No. 30 379 Duro v. Dist. Attorney, Second Judicial

Dist. of North Carolina 23 Durso v. Taylor 127

East Hartford Educ. Ass’n v. Bd. of Educ. of Town of East Hartford 211

East Jackson Pub. Schools v. Michigan 380

Eckmann v. Bd. of Educ. of Hawthorn School Dist. 251

Ector County Indep. School Dist. V. Hopkins 173

Edgewood Indep. School Dist. v. Kirby 382

Edgewood Indep. School Dist. v. Meno 382

Edwards v. Aguillard 61 Eisenberg v. Montgomery County Pub.

Schools 299 Employment Div., Dept. of Human

Resources of Oregon v. Smith 43 Engel v. Vitale 30 Epperson v. Arkansas 65 EEOC v. Kamehameha Schools/Bishop

Estate 257 EEOC v. READS, Inc. 257 Erb v. Iowa State Bd. of Pub.

Instruction 227 Estate of Thornton v. Caldor, Inc. 256 Everson v. Bd. of Educ. of Township

of Ewing 85

Fair School Finance Council of Oklahoma v. Oklahoma 381




xvi Table of Cases

Fairfax Covenant Church v. Fairfax City School Bd. 81

Farver v. Bd. of Educ. 167 Farrington v. Tokushige 24 Felter v. Cape Girardeau School

Dist. 19 Ferrell v. Dallas Indep. School

Dist. 160 Firefighters Local Union No. 1784

v. Stotts 242 Fleischfresser v. Directors of School

Dist. 200 202 Florey v. Sioux Falls School Dist. 41 Ford v. Manuel 81 Fowler v. Bd. of Educ. of Lincoln

Counhy 195 Fowler v. Williamson 158 Franklin v. Gwinnett County

Schools 395 Freeman v. Flake 160 Freeman v. Pitts 297 Freiler v. Tangipahoa Parish Bd.

of Educ. 66 Fyfe v. Curlee 245

Garcia v. Miera 142 Garnett v. Renton School Dist.

No. 403 60 Gaylord v. Tacoma School Dist.

No. 10 217 Gebser v. Lago Vista Indep. School

Dist. 395 General Electric Co. v. Gilbert 250 Georgia Ass’n of Retarded Citizens v.

McDaniel 315 Gillett v. Unified School Dist. No.

276 231 Gish v. Bd. of Educ. of the Borough of

Paramus 224 Givhan v. Western Line Consolidated

School Dist. 189 Glover v. Williamsburg Local School

Dist. Bd. of Educ. 225 Goetz v. Ansell 119 Gong Lum v. Rice 278 Gonzales v. McEuen 128 Gonzalez v. California State Personnel

Bd. 345 Good News/Good Sports Club v. School

Dist. of the City of Ladue 80 Good News Club v. Milford Central

School 80

1 7

Gosche v. Calvert High School 231 Gosney v. Sonora Indep. School

Dist. 182 Goss v. Lopez 120 Gould v. Orr 380 Grand Rapids School Dist. v. Ball 84 Grant of Charter School Application of

Englewood on the Palisades Charter School 375

Green v. County School Bd. of New Kent County 286

Gregoire v. Centennial School Dist. 80

Griffin v. County School Bd. of Prince Edward County 286

Grigg v. Virginia 26 Griggs v. Duke Power Co. 243 Grove City Coll. v. Bell 249 Grube v. Bethlehem Area School

Dist. 340 Guyer v. School Bd. of Alachua

County 41

Haddle v. Garrison 183 Hall v. Shelby County Bd.

of Educ. 81 Hampton v. Orleans Parish

School Bd. 416 Harlow v. Fitzgerald 391 Harper v. Edgewood Bd. of Educ. 158 Harrah Indep. School Dist.

v. Martin 182 Hartzell v. Connell 86 Hazelwood School Dist.

v. Kuhlmeier 105, 111, 200, 203 Heard v. Payne 93 Hearn v. Savannah Bd. of Educ. 210 Helena Elem. School Dist. No. I

v. Montana 380 Heller v. Hodgin 110 Hennessy v. Webb 384 Herndon v. Chapel HillCarrboro City

Bd. of Educ. 104 Hernandez v. Don Bosco Preparatory

High 137 Hines v. Caston School Corp. 157 Holmes v. Bush 374 Honig v. Doe 323, 324, 326 Hopwood v. Texas 303 Hornbeck v. Somerset County Bd. of

Educ. 380 Horton v. Meskill 379



Hot Springs County School Dist. No. 1 v. Washakie County School Dist. No. / 382

Howard v. Missouri State Bd. of Educ. 240

Hoyem v. Manhattan Beach City School Dist. 411

Hsu v. Roslyn Union Free School Dist. No. 3 60

Hunter v. Bd. of Educ. of Montgomery County 413

IBEW Local 1245 v. Skinner 210 Idaho Schools for Equal Educational

Opportunity v. Evans 379 Immediato v. Rye Neck School

Dist. 104 In re Grossman 216 Indep. School Dist. No. 8 of Seiling

v. Swanson 161 Ingraham v. Wright 138 Irving Indep. School Dist.

v. Tatro 319 Isaacs ex. rel. Isaacs v. Bd. of Educ.

of Howard County 158 Isiah B. v. State 155

Jackson v. Benson 372 Jackson v. Dorrier 160 Jacobson v. Cincinnati Bd.

of Educ. 243 Jantz v. Muci 224 Jefferson v. Ysleta Indep. School

Dist. 143 Jefferson County School Dist. R-1

v. Justus 409 Jeglin v. San Jacinto Unified School

Dist. 156 Jenkins v. Missouri 297, 298 Jenkins v. Talladega City Bd.

of Educ. 153 Jepsen v. Florida Bd. of Regents 249 Johnson v. Ouachita Parish Police

jury 408 Johnson v. Pinkerton Academy 190 Jonathan G. v. Caddo Parish

School Bd. 334 Jordan v. School Dist. of City

of Erie 137

Kadrmas v. Dickinson Pub. Schools 90

Table of Cases xvi i

Kansas v. Stein 154 Kari v. Jefferson County School

Dist. 236 Keyes v. School Dist. No. / 289 Kimble v. Worth County R-HI Bd.

of Educ. 235 Kimel v. Florida Bd. of Regents 258 King v. Saddleback Junior Coll.

Dist, 160 Kinsey v. Salado Indep. School

Dist. 189 Knights of the Ku Klux Klan v. East Baton

Rouge Parish School Bd. 81 Knowles v. Bd. of Educ. 240 Knox County Educ. Assn. v. Knox

County Bd. of Educ. 209 Koenick v. Felton 71 Kraus v. Bd. of Educ. of the City

of Jennings 377 Kukor v. Grover 161 Kotterman v. Killian 382

Labrosse v. Saint Bernard Parish School Bd. 132

Lacks v. Ferguson Reorganized School Dist. R-2 200

Lamb v. Panhandle Community Unit School Dist. No. 2 127

Lamb’s Chapel v. Center Moriches Union Free School Dist. 75

Landstrom v. Illinois Dep’t. of Children and Family Services 154

Lanner v. Wimmer 69 League of United Latin American

Citizens v. Wilson 28 Leandro v. State 381 Lee v. Weisman 39, 44, 56, 377 Lehnert v. Ferris Faculty Ass’n 260 Lemon v. Kurtzman 82 Levitt v. Comm. for Pub. Educ.

and Religious Liberty 82 Lipp v. Morris 118 Lipsman v. New York City Bd.

of Educ. 160 Livingston School Bd. v. Louisiana

State Bd. of Educ. 380 Local Organizing Comm., Million

Man March v. Cook 80 Lujan v. Colorado State Bd. of

Educ. 379 Lynch v. Donnelly 42 Lyons v. Penn Hills School Dist. 133




xviii Table of Cases

Madera v. Bd. of Educ. of the City of New York 137

Maine v. Thiboutot 391 Malnak v. Yogi 70 Marbury v. Madison 17 Marsh v. Chambers 42 Marshall v. Kirkland 246 Matanuska-Sustina Borough School

Dist. v. State 379 Martinez v. School Bd. of Hillsborough

County 339 Martinez v. School Dist. No. 60 150 Massie v. Henry 160 Matter of McMillan 24 May v. Evansville-Vanderburgh School

Corp. 257 Mazanec v. North Judson-San Pierre

School Corp. 26 Mazevski v. Horseheads Central School

Dist. 168 McCann v. Fort Zumwalt School

Dist. 115 McClung v. Bd. of Educ. of City of

Washington C.H. 116 McCollum v. Bd. of Educ. of School Dist.

No. 71 69 McConnell v. Anderson 224 McDaniel v. Thomas 379 McDuffy v. Sec’y of the Exec. Office

of Educ. 380 McInnis v. Ogilvie 380 McInnis v. Shapiro 380 McLean Indep. School Dist.

v. Andrews 173 McNaughton v. Circleville Bd.

of Educ. 173 Meek v. Pittenger 83, 85 Members of the Jamestown School

Comm. v. Schmidt 85 Metzl v. Leininger 71 Milliken v. Bradley (Milliken I) 289 Milliken v. Bradley (Milliken II) 290 Milliken v. Green 380 Mills v. Bd. of Educ. of the Dist.

of Columbia 306, 323 Missouri ex rel. Gaines

v. Canada 279 Missouri v. Jenkins 297 Mitchell v. Helms 84 Monell v. Dep’t. of Social Services of

City of New York 390 Monnier v. Todd County Indep. School

Dist. 258


Monroe v. Pape 391 Montana v. Bd. of Trustees of School

Dist. No. / 203 Monteiro v. Tempe Union High School

Dist. 267 Montgomery v. Carr 168 Moore v. Knowles 240 Morrison v. State Bd. of Educ. 224 Mozert v. Hawkins County Bd.

of Educ. 67 Mt. Healthy City School Dist. Bd.

of Educ. v. Doyle 184, 190, 200 Mueller v. Allen 376 Muka v. Sturgis 41 Muller v. Jefferson Lighthouse

School 68 Murray v. Curlett 35 Murray v. Pittsburgh Bd. of Pub.

Educ. 201

Nat’l Gay Task Force v. Bd. of Educ. of Oklahoma City 225

Nat’l Socialist White People’s Party v. Ringers 81

Nat’l Treasury Employees’ Union v. Von Raab 210

Nebraska v. Faith Baptist Church 24 Neuhaus v. Federico 161 New Jersey v. Massa 25 New Jersey v. T.L.O. 145 New Life Baptist Church Academy v.

Town of East Long Meadow 25 New Mexico State Bd. of Educ.

v. Stoudt 254 New York State Ass’n for Retarded

Children v. Carey 339 Newport News Shipbuilding and Dry

Dock Co. v. EEOC 254 North Dakota v. Rivinius 25 North Dakota v. Shaver 25 North Haven Bd. of Educ. v. Bell 249 Northshore School Dist. No. 417

v. Kinnear. 282 Null v. Bd. of Educ. 26

Olesen v. Bd. of Educ. 157 Olsen v. Oregon 381 Opinion of the Justices 379 Owen v. City of Independence 391

Packer v. Bd. of Educ. 132 Palmer v. Bd. of Educ. ,of the City

of Chicago 194



Palmer v. Merluzzi 164 Parents United for Better Schools,

Inc. v. School Dist. of Philadelphia 94

Patsy v. Bd. of Regents of Florida 391 Pauley v. Bailey 382 Pauley v. Kelly 382 Paulson v. Minidoka County School

Dist. No. 331 89 Peck v. Upshur County Bd.

of Educ. 68 Pegram v. Nelson 167 Peloza v. Capistrano Unified School

Dist. 66 Pennsylvania Ass’n for Retarded

Children v. Pennsylvania 306, 323 People v. Bennett 26 People v. DeJonge 26 Perry v. Sindermann 182 Peter W. v. San Francisco Unified School

Dist. 412 Pfeiffer v. Marion Center Area School

Dist. 163 Phillips v. Anderson County School

Dist. 157 Phoenix Elem. School Dist. No. 1 v.

Green 160 Picarella v. Terrizzi 154 Pickering v. Bd. of Educ. of Township

H.S. Dist. 205 184 Pierce v. Society of Sisters 20 Planned Parenthood v. Clark County

School Dist. 116 Plessy v. Ferguson 270 Plyler v. Doe 28 Poe v. Hamilton 413 Police Dep’t. of the City of Chicago v.

Mosley 74 Poling v. Murphy 110 Ponton v. Newport News School

Bd. 254 Pub. Funds for Pub. Schools of New

Jersey v. Byrne 85 Pyle v. South Hadley School

Comm. 157

R.R. v. Bd. of Educ. of the Shore Regional H.S. Dist. 174

Raleigh v. Indep. School Dist. No. 625 411

Reed v. Rhodes 298 Reform Educational Financing Inequities

Today v. Cuomo 381

Table of Cases xix

Richard v. St. Landry Parish School Bd. 409

Richards v. Thurston 160 Ring v. Grand Forks School Dist.

No. 1 41 Roberts v. Madigan 67 Roberts v. Van Buren Pub.

Schools 189 Robinson v. Cahill 381 Romans v. Crenshaw 171 Romer v. Evans 226 Roncker v. Walter 331 Roosevelt Elem. School Dist. No. 66

v. Bishop 379 Rose v. Council for Better Educ.

362, 380 Rowell v. State 152 Rowland v. Mad River School Dist.

225 Rucker v. Colonial School Dist. 132 Rupp v. Bryant 411 Russo v. Central School Dist.

No. 1 194

S. v. Bd. of Educ., San Francisco Unified School Dist. 174

Salazer v. Honig 90 San Francisco NAACP v. San Francisco

Unified School Dist. 301 Santa Fe Indep. School Dist. v.

Doe 39, 40, 56 San Antonio Indep. School Dist.

v. Rodriguez 350, 382 San Diego Comm. against Registration

and the Draft v. Governing Bd. of Grossmont Union H.S. Dist. 116

Scarnato v. Parker 359, 380 Schafer v. Bd. of Educ. of

Pittsburgh 250 School Admin. Dist. No. 1 v. Commis-

sioner, Dep’t. of Educ. 380 School Bd. of Nassau County

v. Arline 343 School Dist. of Abington Township

v. Schempp 35 School Dist. of Wilkinsburg v.

Wilkinsburg Educ. Assn. 376 Scott v. Commonwealth 382 Seattle School Dist. No. 1 of King

County v. Washington 382 Seemuller v. Fairfax County

School Bd. 189 Serrano v. Priest 348, 379

2 0



xx Table of Cases

Sheff v. O’Neill 290 Sherman v. Communihy School

Dist. 21 117 Shofstall v. Hollins 379 Simmons-Harris v. Goff 273 Simmons-Harris v. Zelman 273 Shumway v. Albany County School

Dist. No. 1 Bd. of Educ. 79 Skeen v. State 380 Skinner v. Railway Executives’

Ass’n. 210 Sloan v. Lemon 83 Smith v. Bd. of School Commissioners

of Mobile County 67 Smith v. West Virginia State Bd. of

Educ. 142 Snyder v. Charlotte Pub. School

Dist. 70 South Carolina Richland County

v. Campbell 381 Spring Branch Indep. School Dist.

v. Stamos 168 Springdale School Dist. v. Grace 330 Stanton v. Brunswick School

Dep’t. 116 State v. Chafin 382 State v. Rivera 26 State Bd. for Elem. and Sec. Educ.

v. Howard 268 State ex rel. Woodahl v. Straub 380 Steirer v. Bethlehem Area School

Dist. 104 Stewart v. Baldwin County Bd.

of Educ. 390 Stoddard v. School Dist. No. 1 182 Stone v. Graham 41 Strout v. Albanese 374 Swann v. Charlotte-Mecklenburg Bd.

of Educ. 287 Swanson v. Guthrie Indep. School

Dist. No. I-1 27 Sweatt v. Painter 279 Sweezy v. New Hampshire 6

Taborn v. Hammonds 182 Taxman v. Bd. of Educ. of Township

of Piscataway 242 Tennessee Small School Systems

v. McWherter 381 Texas v. Johnson 119 Texas v. Project Principle 245 Texas City Indep. School Dist.

v. Jorstad 324


Thomas v. Atascadero Unified School Dist. 335

Thomas v. Washington County School Bd. 244

Thomasson v. Perry 226 Thompson v. Carthage School

Dist. 152 Thompson v. Engelking 379 Tibbs v. Bd. of Educ. of the Township

of Franklin 173 Timothy v. Rochester School

Dist. 315 Tinker v. Des Moines Indep.

Community School Dist. 96 Titus v. Lindberg 409 Todd v. Rush County Schools 151 Trinity United Methodist Parish

v. Bd. of Educ. of the City School Dist. of Newburgh 80

Truelove v. Wilson 384 Tudor v. Bd. of Educ. of Borough

of Rutherford 68 Tuttle v. Arlington County

School Bd. 301 Tyler v. Hot Springs School Dist.

No. 6 245

Unified School Dist. No. 229 v. State 380

Unified School Dist. No. 501 v. Smith 298

U.S. v. Bd. of Educ. for the School Dist. of Philadelphia 256

U.S. v. Eichman 119 U.S. v. LULAC 245 U.S. v. South Carolina 245 United Teachers of New Orleans

v. Orleans Parish School Bd. 210

Van Dusartz v. Hatfield 389 Vernonia School Dist. 47J

v. Acton 151 Vincent v. Voight 382 Virgil v. School Bd. of Columbia

County 203

Wagenblast v. Odessa School Dist. 412

Wallace v. Jaffree 39 Wards Cove Packing Co.

v. Atonio 243 Warren v. Nat’l Ass’n of Secondary

School Principals 173



Washakie County School Dist. No. 1 v. Herschler 382

Washegesic v. Bloomingdale Pub. Schools 40

Weaver v. Nebo School Dist. 225 Webb v. McCullough 150 Webster v. New Lenox School

Dist. 66 Wessmann v. Gittens 300 West v. Derby Unified School

Dist. 104 West Virginia State Bd. of Educ.

v. Barnette 119 Wiley v. Franklin 70 Williams v. Ellington 153 Willis v. Anderson Community School

Corp. 151

Table of Cases xxi

Willoughby v. Lehrbass 419 Wilson v. Chancellor 204 Wimberly v. Labor and Industrial Rela-

tions Comm’n of Missouri 255 Wisconsin v. Yoder 23 Withers v. State 381 Wolman v. Walter 83, 85 Wood v. Strickland 385 Wygant v. Jackson Bd. of Educ. 243

Yeo v. Town of Lexington 116

Zamora v. Pomeroy 137 Zobrest v. Catalina Foothills School

Dist. 318 Zorach v. Clauson 69 Zweite!’ v. Joint Dist. No. 1 28

2 2




Public school educators are aware that courts play a significant role in es- tablishing educational policy. Decisions, especially by the federal judiciary over the last fifty years, in such areas as school desegregation, separation of church and state, freedom of expression, student rights, individuals with disabilities, and personnel issues attest to the extent and magnitude of ju- dicial influence. Foremost among the many reasons for the increased court involvement during these years has been the perception, especially by those who perceive they are being treated unfairly by governmental action, that the judiciary was a receptive and efficacious branch of government.

Judicial activity has produced a sizable body of school law with which educators should be familiar if they wish to conduct themselves in a legally defensive manner. Those educators who fly by the seat of their pants or who act on the basis of what they think the law “should be” may be in difficulty if sufficient thought is not given to the legal implications and ramifications of their policies or conduct. Consequently, this text pro- vides introductory material for those educators and laypersons interested in K-12 educational issues, who have little or no knowledge of, or back- ground in, school law. This group would include teachers, school admin- istrators, school board members, preservice teachers, and public school students and their families.

It would be difficult for a one-volume work to cover all of the signif- icant topics in school law. Therefore, this text attempts to emphasize school law issues having direct impact at the school-building level. When appropriate, a historical perspective is provided in addition to case and statutory law.

Chapter 1 offers sufficient background to facilitate comprehension of succeeding chapters. Included in this chapter is a discussion of topics of underlying importance with which educators may be unfamiliar: the legal significance of the sources of law under which educators operate, federal and state constitutions, federal and state statutes, state school board policy, attorney general opinions, local school board policy and local school pol- icy, the significance of the Fourteenth Amendment’s Due Process and Equal Protection provisions as a basis for many school lawsuits, the im- portance of case law in establishing educational policy, and the organiza- tion of the American dual court system.




xxiv Preface

Chapter 2 examines the extent of the state’s and local school system’s authority when patrons disagree with educational policy. A reading of the court decisions in this chapter reveals the judiciary’s attempt to establish a balance between the legitimate demands or objections of individuals to- ward education policy and school authorities’ perception of their responsi- bility to the greater population. School law issues selected to illuminate this area include compulsory school attendance, religion in the schools, use of school facilities, aid to nonpublic schools, school fees, and health services.

This writer has found that issues pertaining to students and teachers are of particular interest to school law students; therefore, Chapters 3 and 4, which address these topics, comprise a major portion of the text. Chap- ter 3 presents material pertinent to student interests, such as freedom of expression; suspension, disciplinary transfer, and expulsion; corporal pun- ishment; search of students; student appearance; pregnancy, parenthood, and marriage; participation in extracurricular activities; and school pun- ishment for out-of-school offenses. Chapter 4 examines such teacher- related issues as nonrenewal and dismissal; freedom of expression; academic freedom; drug testing; dress; the teacher as an exemplar; em- ployment discrimination based on race, sex, pregnancy, religion, and age; teacher bargaining; and political activities of teachers.

Chapter 5 provides a historical legal perspective to the issues of school desegregation. Early desegregation efforts in the South and more recent desegregation endeavors in non-Southern states are examined. Such current issues as the release from desegregation court orders and the race-related placement of students are also reviewed.

Chapter 6, written by Professor John Dayton, addresses the legal status of individuals with disabilities. Historical perspective is provided for this im- portant area of school law in addition to an in-depth examination of major legislation and court decisions. Emphasis is given to the Individuals with Disabilities Education Act, the 1997 Amendments, and the 1999 regulations.

Chapter 7 provides a historical perspective to the legal attacks on the financing and adequacy of state school finance plans. These legal issues emerged in the early 1970s and continue to be litigated in many states. Also discussed is the school reform measure known as school choice. Legal decisions addressing such school choice issues as voucher pro- grams, tuition reimbursement policies, and charter schools are presented. A knowledge of the complexities of school finance is not necessary for an understanding of the material in this chapter.

Chapter 8 addresses the extent, if any, of educator and school district liability for damages as a result of their official action or inaction. Because the law in this area varies considerably among the states, emphasis is given to such general concepts as duty and standard of care, school district immu- nity, duties of supervision, and malpractice. Liability for damages under Title IX pertaining to teacher-to-student and student-to-student harassment




Preface xxv

is also presented. Tort law is a highly specialized branch of law that is ex- ceedingly complicated; therefore, this chapter makes the reader aware of the potential of liability for damages resulting from improper behavior.

Appendices provide additional information enabling the reader to gain a broader perspective. Appendices A and B are designed to be primers for the reader who wishes to become more adept at analyzing court decisions or engaging in school-related legal research. Appendix B is designed to provide rudimentary legal-research methodology and infor- mation on primary and secondary legal resources available to those inter- ested in legal research. Computer-minded readers may be interested in the brief section discussing legal material available on the Internet. Appendix C contains sections of the U.S. Constitution and amendments that are most relevant for educators. Appendix D contains edited federal statutes having significance for educators. A glossary of often-used legal terminology is in- cluded for the reader ‘s convenience in better understanding the edited court decisions. An index lists many school law topics for facilitating their reference.

Edited, reported, verbatim decisions constitute a substantial portion of this book. Such decisions provide a rich source of information, enabling a reader to gain insight and an understanding of school law that cannot be obtained through secondary analysis. The reading of a judge’s or justice’s written opinionmajority, concurring, or dissenting provides valuable philosophical underpinnings for a thorough understanding of judicial ra- tionale. It also enables the reader to relate a court’s legal rationale to a spe- cific factual context. Emphasis is on substantive school law issues. Deleted from the edited cases is material not related to the issue being examined, material pertaining to technical legal matters, and procedural legal issues that are of primary interest to attorneys. Students of school law are en- couraged to read entire unedited court opinions in those areas of school law in which they have a particular interest. Case citations are provided to facilitate this endeavor.

Inclusion in this text of a particular decision was based on several factors, which included selecting the case decided by the highest-level court that had addressed the specific school law issue under considera- tion, thereby providing the widest applicability; the case that best repre- sented the majority of cases in areas where the law was not well settled; or the case that best illustrated the historic evolvement of the case law under consideration.

Notes and questions follow many of the edited decisions. The notes are designed to provide helpful information such as background material, additional citations for those interested in pursuing further the issue under consideration, the extent to which the law is well settled, or other views if the law is not well settled. Provocative questions are included to illuminate the topic and foster discussion.




xxvi Preface

This book has not been written with the intention of expressing opin- ions for or against views espoused by school administrators, teachers, or students, nor to contend that the judiciary is a meddlesome institution thwarting the efforts of educators. Rather, the book’s purpose is to provide those who are involved in public education with a rudimentary knowl- edge base for making educationally sound decisions within the legal framework. Having such knowledge may reduce the tendency to act on the basis of what the law should be rather than what it is. In that sense, this book stresses the descriptive, not the prescriptive.

The author assumes that public school students learn best about law and order through its observance by knowledgeable teachers, school ad- ministrators, and school board members. And because an important aspect of public school education is the inculcation in students of the notion that we are a “nation of laws and not of men,” educators must be familiar with school law to abide by the law. This is of considerable concern to the author because of his experience as a youth under Adolf Hitler in Nazi Germany. It was observed that one strategy a dictator such as Hitler used to strengthen and solidify his power was the systematic breakdown of law in Germany. As the law was increasingly disregarded, the power of the Nazis increased, and the country became a “nation of men and not of laws.”

Students in my school law classes over the years deserve a special word of thanks, not only for their scintillating and penetrating questions but also for sharing with me those school law topics they deemed impor- tant as they carried out their school-related responsibilities. Over the years, several studentsRobert Meadows, Betty Hull, Jeffrey Williams, Pat McCollum, and Neil McIntyrehave made valuable contributions, and they have my gratitude. A special thank-you is due Professor John Dayton, Department of Leadership, College of Education, at the Univer- sity of Georgia. His chapter, entitled “Individuals with Disabilities and the Law,” is a welcome addition to this seventh edition. He is a delightful col- league who continues to share his valuable insights and suggestions. Ad- ditionally, over the years, Dr. Joe Falzon, Professional Associate with the National Education Association, has been generous in providing me with statistical data. Dan Long, Technical Assistant to the Reporter of Decisions at the United States Supreme Court, has been most helpful in providing me with the most current Court citations. Of course, any failure of omis- sion or commission in this book is the sole responsibility of the author.

This book does not serve as a substitute for competent legal advice should it be needed. However, in addition to a knowledge of school law, an understanding of the material in this book should help to foster a more fruitful exchange with an attorney when that is necessary.

Finally, it was a delight to have the opportunity of again revising this text, as the examination of school law issues continues to be, for me, an ex- citing and rewarding enterprise.

‘ 26



A Note to Users of This Text

This textbook borrows from the teaching traditions of the legal commu- nity. It is a “casebook” not unlike those routinely used in the preparation of lawyers in law schools. Such texts are collections of actual court opin- ions, in which instructional material and exposition are minimized, and through which students are expected on their own to induce legal princi- ples. Casebook authorswho must also be considered to be editors if one is to understand the essence of a casebookselect, edit, and arrange judi- cial opinions to facilitate extracting what the author considers to be im- portant points of law. Brief written comments and questions assist in this process. Accordingly, this author intends the presentation of cases herein not as supplementary illustrations of the textual material but rather as the book’s primary raw material.

A major advantage ascribed to discovering the law from casebooks is the opportunity to learn both legal rationale and reasoning. To this end, students encounter noteworthy examples of judicial decision making and engage, themselves, in such reasoning. Although a knowledge of specific information is essential, understanding legal rationale and learning to en- gage in legal reasoning are more important, in this author’s view, than ac- quiring an encyclopedic knowledge of specific laws. The author submits that educators must be able to do more than merely recite laws affecting schools, and readers looking for a comprehensive treatment of school law in this text will be frustrated. Few factual patterns encountered by the practicing educator will match perfectly an explicit legal rule. Having a broad understanding of legal precedent combined with staying abreast of school law developments will provide the educator on the firing line with a background to deal with the host of novel situations that may be faced.

This text may be used with a Socratic method of teaching. When em- ploying this teaching strategy, the instructor assigns a group of cases to be read and analyzed, and in class he or she calls individually on students orally to “brief” the cases (see Analyzing a Court DecisionAppendix A). The instructor attempts through questioning to draw from students rele- vant legal principles; in this process, students are challenged to the limits of their abilities to make increasingly fine observations and distinctions; and criticism of the student’s recitation is provided. Initially, this individ- ual questioning may not always be pleasant for students, but they soon learn that casual readings of cases for their main ideas are insufficient;

2 7 xxvii



xxviii A Note to Users of this Text

instead, cases must be read slowly, deliberately, and repeatedly. The tech- nique demands thorough preparation from both instructor and student. This method prepares students well for written examinations consisting of complex, hypothetical fact patterns, which students are required to ana- lyze in accordance with applicable law.

This author successfully employed this demanding method in his school law classes. He has found that analyzing case law does indeed cause students to restructure their thinking on the law. Additionally, the promise of reciting in class motivates most students to superb perfor- mance, which unquestionably enhances learning. Inducing students to think on their feet and to perform under pressure seems to be highly ap- propriate in the preparation of educational leaders. Whether or not other instructors choose to complement this casebook with the Socratic method, it is hoped that the cases speak to at least the rudiments of an enormous, diffuse body of law and that the book will challenge readers to further study.

Finally, for those instructors who have access to a law library, a class visit is highly recommended. Such a visit has a number of advantages. It not only provides an opportunity to discuss and locate legal material (see An Introduction to Research in School LawAppendix B), but it also lessens the common perception that a law library is a forbidding place where only lawyers are welcome. Introducing students in this manner to the various reporter systems, Index to Legal Periodicals, law reviews, state materials, Shepard’s Citations, “slip” opinions, United States Law Week, and MartindaleHubbell Law Directory (a listing and rating of attorneys and law firms by state) has always been a well-received class activity.





Educational Governance: Sources of Law and the Courts

Governance in America is based on the notion that we are “a nation of laws and not of men.” Consequently, those involved in making and en- forcing public school policy should ensure that their actions are lawful. Educational policy may not be enforced arbitrarily or capriciously but must be based on such appropriate legal authority as federal or state con- stitutional or statutory provisions, state board of education or state de- partment of education regulations, case law, or local school board policy.

Several forces operate, however, that at times make it difficult for those who administer public schools to function in a lawful manner. These forces include a federal system of government composed of several levels and corresponding branches that bear on the educational enter- prise, changing and sometimes conflicting laws or policies emanating from these levels and branches, and a climate of legal uncertainty sur- rounding certain controversial educational issues that become highly politicized.

Under the federal system, the three levels of governmentfederal, state, and localall have a voice in educational matters, although not nec- essarily in unison. Difficulties may develop when areas of educational governance overlap considerably in responsibility among the three levels of government and their corresponding branchesexecutive, legislative, and judicial. These difficulties are exacerbated not only by the unclear de- lineation of authority but also in determining with certainty which au- thority is supreme when irreconcilable conflicts exist.

Although education is not specifically mentioned in the federal Con- stitution, the federal government has had a historic involvement in it. In fact, programs under various federal laws pertaining to K-12 education in recent years have made up nearly 7 percent of the total amount of money expended for public elementary and secondary education. Perhaps of greater importance has been the pervasive and significant force of the

2 9 1




federal judiciary in influencing educational policy. Controversial educa- tion issues such as racial segregation in schools, financing of schools, due process for both students and teachers, the role of religion in the schools, search of students and teachers, and the extent to which students and teachers may engage in freedom of expression have all been addressed by the federal judiciary.

State government has plenary power* over public education, and this power is carried out by constitutional and statutory provisions, executive acts, state board of education policies, and actions of chief state school of- ficers. The roles of governmental participants vary among the state gov- ernments. The extent of state authority over local school systems is also not uniform; however, it is generally considered to be directly propor- tional to the state’s financial contribution to public education.

The degree of authority that local school systems have over educa- tional matters depends on a state’s constitutional and statutory provisions. These local powers may be delegated or implied. Although it is the pre- vailing belief that public schools are controlled locally, many students of educational governance suggest that a so-called myth of local control may be operating. They argue that in many instances, especially when the state is heavily involved in financing education, the state has more meaningful power over education policy than the local school system does.

Because each level of government is inextricably intertwined in pub- lic educational governance, problems have often arisen for building-level educators, for instance, when one level or branch of government does not agree with policies or decisions made by another level or branch. Misun- derstanding on the part of educators may also exist regarding the legiti- mate role of each of the levels of governance. Examples of these conflicts abound: a local school system not wishing to allow after-hours use of its schools to certain types of groups but forced to do so by a federal court order; “wealthy” local school systems barred, as a result of a state supreme court decision, from appreciably supplementing the state-financed pro- gram; and local school systems having to accept an amount of disruption by students wishing to express themselves on political, social, or economic matters, protected by a United States Supreme Court decision.

The difficulty of attempting to administer schools in a lawful manner is compounded when educators, unfamiliar with the nuances of the legal system, perceive that there are seeming inconsistencies and occasionally acrimonious disagreement among judges in certain court decisions. Such a situation occurs when a decision is changed one or more times as an ed- ucational issue winds its way through the appellate process. Occasionally, this process reveals sharp philosophical differences among judges. The lack of consistency in court decisions regarding certain issues is also trou-

*This plenary power is diminished, of course, when the state accepis federal education funds, which requires compliance with federal mandates.




Educational Governance: Sources of Law and the Courts 3

bling to some educators. They often find it difficult to understand why an educational practice has court approval in one state or area of federal ju- risdiction and not in another. The legitimacy of a federal court overruling a state court’s decision is also not always completely understood, espe- cially when such a ruling increases the difficulty of administering schools because of strong local, state, or regional disagreement with such a ruling.

School administrators often view themselves as working in a climate of uncertainty as to the legality of their administrative decisions. This may be due to an insufficient knowledge of constitutional law as it pertains to educational matters or an inadequate knowledge of recent court decisions. Relying on what is perceived as sound educational practice in making ad- ministrative decisions is helpful, but it is not always a guarantee that the practice will avoid conflict with case law.

One remedy for ensuring lawful administrative conduct and reduc- ing conflict and misunderstanding among educators is a systematic study of the sources of law under which educators operate. Such a study follows and is designed to illuminate the legitimate role of the various levels of government and their component branches. Although sources of law may be examined in various ways, a particularly fruitful method is to analyze those sources that spring from each level of government.


A. Federal Level

At the federal level, the Constitution and its amendments, statutes, rules and regulations of administrative agencies, case law, presidential execu- tive orders, and attorney general opinions all constitute sources of law under which educators operate.

1. Constitution and Amendments Although the federal Constitution does not contain the word educa-

tion, constitutional interpretation by the judiciary has had unquestionable impact on educational policymaking. Particularly significant is the judi- ciary’s interpretation of the Fourteenth Amendment to the Constitution. A brief examination of this amendment may be helpful, on the basis both of its historical origins and of its requirements for due process and equal pro- tection of the law as they pertain to educational matters.

a. Historical Perspective. Prior to the adoption of the Fourteenth Amendment in 1868, Americans, under the federal system of government, had a particular kind of dual relationship with state and national govern- ments regarding their civil rights. This came about largely as a result of skepticism, if not an outright distrust, of central government that existed after the Revolutionary War as a consequence of experiences under British





rule. To ensure that a central government would not again run roughshod over an individual’s civil rights, a Bill of Rights was added to the Consti- tution shortly after that document was ratified. Protections afforded those early Americans under the Bill of Rights included freedoms regarding re- ligion, speech, press, peaceable assembly, and petitioning for a redress of grievances; a right to bear arms; protection against unreasonable searches and seizures; guarantee of a grand jury indictment in capital offenses; pro- tection against being subject to double jeopardy or self-incrimination; the right of due process; the right to own property; the right to have a speedy trial by an impartial jury; and protection against excessive bail and cruel and unusual punishments. These protections, however, were those that Americans had against their central government. They did not automati- cally have these rights against their state government as a result of the in- clusion of the rights in the federal Constitution.

Protection of civil rights against state action was provided by state constitutions, and every state, as it was accepted into the Union, provided for a Bill of Rights similar to that found in the federal Constitution. It should be noted, however, that prior to the adoption of the Fourteenth Amendment, if a state’s constitution did not contain a provision for guar- anteeing, for instance, freedom of speech or religion, an American did not necessarily have those protections against his or her state. Although state constitutions may have contained language that afforded individuals their civil rights, as a practical matter, state-guaranteed civil rights protections were not always uniformly applied.

In the years preceding the Civil War, another factor influenced the dual relationship Americans had with their state and federal governments. For the most part, Americans, during that time, thought of themselves pri- marily as citizens of the state within which they resided and citizens of the United States secondarily. An individual considered himself a Virginian or New Yorker first, for instance, and an American citizen second.

This dual relationship with state and central governments and the historic primary allegiance to one’s state was significantly altered by the adoption of the Fourteenth Amendment to the Constitution in 1868. This amendment provided, in part, that:

All persons born or naturalized in the United States and subject to the juris- diction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the priv- ileges or immunities of citizens of the United States. Nor shall any State de- prive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

From a constitutional standpoint, the juxtaposition of the phrases “citizens of the United States and of the State wherein they reside” is most revealing, because the United States is mentioned first. The legal significance of this juxtaposition and subsequent language of the amendment have been




Educational Governance: Sources of Law and the Courts 5

interpreted as establishing national citizenship as being primary where certain questions dealing with individual rights are concerned.

This amendment, which was intended initially to guarantee rights to newly freed slaves, has also provided protection for the individual from var- ious forms of arbitrary or capricious state action. Because the amendment affords national citizenship primacy regarding constitutional rights, an in- dividual is shielded against state action that may run counter to guarantees he or she has as a citizen of the United States. Under this concept, a state can- not deprive a person of rights he or she has as an American. As a result of federal court action, for instance, teachers may not arbitrarily be dismissed without due process. Neither may students be deprived of their freedoms pertaining to religion by school board policy that allows Bible reading or school-sponsored prayers during normal school hours. These are the kinds of rights individuals have as United States citizens, and no state action, local administrative conduct, or local school board policy may violate them.

Under the Fourteenth Amendment, a state and those operating under its auspices (such as local school systems) must honor those rights, guaranteed by the Constitution, federal statutes, and case law, that a per- son has as a result of being an American. From a constitutional standpoint, these rights must be observed by the state and those operating under the color of the state, and they may not be infringed upon as a result of a state or local election, state or local administrative action, or state court action.

It should be noted that not all constitutional scholars agree with this type of interpretation of the Fourteenth Amendment. Proponents of a “states’ rights theory” for American government have reluctantly accepted certain court decisions based on the Fourteenth Amendment and have adamantly refused to abide by others. Objection to the amendment by such groups is often based on the method used to gain its ratification. Rat- ification of the amendment was a required step for readmittance to the Union after the Civil War. Additionally, it is argued that courts should fol- low the jurisprudence of original intention. Under this doctrine, courts should be guided solely by the literal text of the Constitution and the specific, ascertainable intentions of the framers and not the ruminations of latter-day judges.

b. Due Process and Equal Protection. In addition to establishing the primacy of national citizenship with the protection of certain individ- ual rights, the Fourteenth Amendment also provides for due process and equal protection of the law. These two concepts stem from an ideal of fair- ness in applying the law, and they are not necessarily mutually exclusive. In cases dealing with educational matters where the Fourteenth Amend- ment is cited, it is generally alleged that either (or both) due process or equal protection of the law has been denied. Although extremely complex in a legal sense, these concepts may best be understood by keeping in





mind that they require government officials, which of course includes educators, to be fair as they conduct governmental business. This necessi- tates reasonable and noncapricious action, in addition to abiding by statute and case law, on the part of public school officials when dealing with clients or personnel.

[1] Due Process. In the broadest sense, a person has received due process of law under the Fourteenth Amendment when he or she has been treated essentially the same by state action or local government action as another person has under similar circumstances when he or she is subject to deprivation of life, liberty, or property. Under this concept, governmen- tal action may not be unreasonable or capricious, and when clients are not treated alike there must be a sound basis for dissimilar treatment.

Although the line between substance and procedure is often quite hazy, some have drawn a distinction between so-called procedural and substantive due process of law. According to this view, procedural due process, in the larger sense, deals with the question of whether or not a person has been accorded fair and proper treatment or procedure when apprehended or tried in a court. Accused persons must be given twelve jurors, for instance, if everyone else in their circumstances is given twelve jurors. Evidence to be presented against them must have been obtained properly, and their trials must be conducted according to established pro- cedures. Questions dealing with procedural due process in the educational arena have received much attention, particularly in the area of suspension and expulsion from school. Substantive due process essentially deals with the question of fair treatment of persons by those acting under the color of the state and also with the question of the fairness and reasonableness of laws, regulations, and policies in the light of our constitutional heritage. The Fifth Amendment also contains a due process clause, and although there are similarities with the Fourteenth Amendment provision, the Fifth Amendment is considered exclusively to be protection against the federal government.

As is the case with many concepts, due process resists definition in the dictionary sense. It is a dynamic rather than a static concept. The defi- nition in each instance depends largely on a combination of the specific facts in a situation, the law governing the situation, the particular time in history in which judgMent is being rendered, and the predilections of the individual judge(s) rendering the decision. The Supreme Court, for in- stance, has never unanimously agreed on a standard for due process. Yet, it is the body that renders the ultimate and final decision regarding whether or not due process has been denied. This point, in addition to a discussion of the question of due process, was asserted by Justice Frank- furter in Sweezy v. New Hampshire, 354 U.S. 234 (1957):

To be sure, this is a conclusion based on a judicial judgment in balancing two contending principlesthe right of the citizen to political privacy, as

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Educational Governance: Sources of Law and the Courts 7

protected by the Fourteenth Amendment, and the right of the State to self- protection. And striking the balance implies the exercise of judgment. This is the inescapable judicial task in giving substantive content, legally enforced, to the Due Process Clause, and it is a task ultimately committed to this Court. It must not be an exercise of whim or will. It must be an overriding judgment founded on something much deeper and more justifiable than personal preference. As far as it lies within human limitations, it must be an impersonal judgment. It must rest on fundamental presuppositions rooted in history to which widespread acceptance may be fairly attributed. Such a judgment must be arrived at in a spirit of humility when it counters the judgment of the State’s highest court. But, in the end, judgment cannot be es- capedthe judgment of this Court. (pp. 266-67)

A basic issuethe balance between an individual’s rights and the ne- cessity to protect the larger societyis addressed by courts when depriva- tion of due process is alleged. Courts must determine whether or not a regulation, policy, law, lower-court decision, or action on the part of some- one who had a duty to perform was warranted in either limiting or con- doning a person’s actions. A review of decisions involving educational matters reveals that courts consider many factors when examining alleged deprivation of due process by school officials. Foremost among these fac- tors is whether, overall, the school official’s judgment was educationally sound. Additionally, courts examine whether an official’s actions were guided primarily by administrative convenience or represented the spirit of a conformity-minded, arrogant majority when there should have been a willingness on the part of the majority to accept a degree of nondisruptive deviance.

A brief discussion of social contract theory may amplify the genesis of the due process idea. Although the theory was discussed as early as Plato, its more familiar philosophical underpinnings were advanced by political philosophers several centuries ago, notably, Thomas Hobbes (Leviathan), John Locke (Two Treatises of Government), and Jean Jacques Rousseau (The Social Contract). Locke, whose social contract theory is prob- ably the one most familiar in the English-speaking world, attacked the di- vine right of kings theory. He contended that societies were organized and ruled by the consent of the governed and not by one who had potential for becoming autocratic. Furthermore, he asserted that individuals by their nature had certain rights, which included life, liberty, and property. When by their own volition individuals left the primitive state of nature and agreed to be governed, they made a social contract with government that protected these natural rights. The justification for the state’s existence, ac- cording to Locke, was based on its ability to protect these rights better than individuals could on their own. The price individuals paid for govern- mental protection was a diminution of the freedom they had in the state of nature. This freedom was extremely limited, however, because it existed in an environment where there was greater potential for the “law of the jun- gle” and “might makes right” to prevail.

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Many modern-day political theorists agree that the original thoughts of Locke and others regarding the social contract have come to stand for several propositions concerning the individual’s relationship to govern- ment. T’hese propositions include the notion that government rests on the consent of the governed; persons willingly yielded the freedom they had in the state of nature because they thought the state could offer them certain protections they could not provide for themselves; and although persons relinquished the freedom they had in the state of nature, their entering into a social contract with government included the government’s guarantee against an arbitrary, capricious, and unreasonable denial of their rights of life, liberty, and property when they and the government interacted.

These propositions have considerable implications for educators. In accordance with social contract theory, school authorities not only have a legitimate but a mandatory role to play in protecting health and safety and in maintaining order. Students violating legitimate school rules may be subject to appropriate punitive action. Yet, school authorities may not act arbitrarily, capriciously, or unreasonably toward individuals when pro- tecting the majority, and due process must be provided when a liberty or property interest is involved.

121 Equal Protection. Constitutional authorities contend that the Equal Protection Clause was inserted in the Fourteenth Amendment to en- sure that former slaves would be provided the same civil protections as white Americans. Under this notion, blacks (referred to as Negroes at the time of the clause’s adoption) would not only have their civil rights pro- tected, but they would also have the benefit of applicable laws. Although originally intended to ameliorate the transition from slavery to free status, the equal protection provision has had a dramatic effect in influencing pol- icy in American public education.

From an educational standpoint, the Equal Protection Clause repre- sents the legal basis for prohibiting unreasonable classifications. Although some type of classification is often necessary in laws, rules, or policies, ar- bitrariness may not play a part. Methods of classifying students in public schools have often been based on such factors as sex, age, intelligence, marital status, parents’ residence, race, pregnancy or motherhood, con- duct, test scores, and wealth of their community. For these methods of classification to conform with equal protection guarantees, a reasonable relationship must exist between the objective to be accomplished and the type of classification employed. Also, if the state renders a benefit to one person within a class, all within that class must receive the benefit equally; and if one person within a class is deprived of a benefit by the state, all within that class must be deprived equally. This concept was expressed many years ago by the United States Supreme Court in garbier v. Connolly, 113 U.S. 27 (1885), when it stated:

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Educational Governance: Sources of Law and the Courts 9

Class legislation, discriminating against some and favoring others, is pro- hibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment. (p. 32)

The principal idea inherent in equal protection, as in due process, is the concept of fairness. And as is the case with due process, whether or not equal protection has been granted or denied depends on a balancing of several elements. These include sociological and psychological factors, sound educational policy, the benefit of a larger good to society as a result of the classification, contemporary customs and mores, and the protection of the individual’s rights in the light of these considerations.

Courts have often employed a two-level test for measuring classifi- cations against the Equal Protection Clause. One is a “rational basis” test, which is employed when a “fundamental interest” is not involved. Under this test, there must be a sound reason for the classification, and all those classified alike must be treated as uniformly as possible. Additionally, the burden of proof is on the complainant to demonstrate that a challenged law or policy has no rational basis to achieve a legitimate state objective. By using this test, the United States Supreme Court has commonly exer- cised restraint in holding legislation in violation of the equal protection provision of the Fourteenth Amendment.

A strict-scrutiny test is applied when a “fundamental interest” or “sus- pect classification” is involved. A presumption of constitutional validity dis- appears when a classification is “suspect.” Examples of such classification include race, national origin, alienage, indigency, and illegitimacy. To date, one’s sex has not been considered a suspect classification. The strict scrutiny test was discussed by the United States Supreme Court in Ply ler v. Doe, 457 U.S. 202 (1982). The Court explained that some classifications are more likely than others to reflect deep-seated prejudice rather than legislative rational- ity in pursuit of some legitimate objective. It also stated that certain groups have historically experienced “political powerlessness” and thus have needed special protection from the majority. In situations where a suspect class or fundamental right is involved, the Court indicated that it is appro- priate to enforce the mandate of equal protection by requiring the state to demonstrate that its classification has been precisely tailored to serve a com- pelling governmental interest. Although the complainant has the burden of proof when the rational basis test is used, under the strict-scrutiny test the burden of proof is placed upon the state to show that the law or policy in question is necessary to accomplish a compelling state interest.

2. Statutes Congress has enacted many statutes that provide educators with

sources of law. The legal basis for this congressional involvement derives from the so-called General Welfare Clause in Article I of the United States

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Constitution. Some of the areas the national legislature has dealt with over the years include vocational education (Vocational Education Act of 1963); defense (National Defense Education Act of 1958); elementary and sec- ondary education (Elementary and Secondary Education Act of 1965); civil rights (Civil Rights Act of 1964*); protecting information concerning stu- dents (Family Educational Rights and Privacy Act of 1974*); sex discrimi- nation (Title IX of the Education Amendments of 1972*); with disabilities children (Section 504 of the Rehabilitation Act of 1973,* the Education for all Handicapped Children Act of 1975, renamed the Individuals with Dis- abilities Act of 1990, the Individuals with Disabilities Education Act of 1990, and the Individuals with Disabilities Education Act of 1997); bilin- gual education (Bilingual Education Act of 1968 and Title VII of the Ele- mentary and Secondary Education Act of 1965); and pregnancy bias (Pregnancy Discrimination Act of 1978*).

Although local and federal educational agencies may occasionally disagree over the purpose and administration of federal statutes, compli- ance at the local level with controversial federal legislation has often been attained by the threat of a lawsuit, the lure of federal money, or a threat of a cutoff of federal funds already being received.

3. Case Law Case law refers to principles of law established by courts. It is largely

based on legal precedents declared in earlier court decisions in which there were similar factual situations. It is believed that following precedent affords a greater likelihood that citizens will be treated equally, and it has the added advantage of allowing a degree of predictability in future dis- putes. Under the doctrine of stare decisis, for instance, a court may stand by precedent and thereby not disturb a settled point of law. Although gener- ally guided by precedent, courts are not bound by it in reaching a decision. A court may decide that the factual situation in the case being decided is not sufficiently similar to the one offering precedent or that the legal or philosophical rationale in the precedent-setting case no longer applies.

Federal courts, especially in the last several decades, have established a sizable body of case law. As a result, federal case law has been an influ- ential, if not significant, force in educational policymaking over the last half century. Federal courts have addressed such issues as racial segrega- tion, questions of equity in state methods for financing education, separa- tion of church and state, due process and equal protection considerations involving both students and teachers, the extent of freedom of expression for students and teachers, and dress and grooming standards for students and teachers. Precedent established by the federal judiciary in these areas provides educators with a significant source of law. Unfortunately, the case

*See Appendix D for material pertaining to this legislation.

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Educational Governance: Sources of Law and the Courts 11

law is not always well settled, and conflicting opinions may occur among the federal district courts and courts of appeals. In this event, educators must follow the case law established for their particular jurisdiction; how- ever, vigilance must be exercised to ascertain appellate or Supreme Court actions that may reverse or modify existing case law. Therefore, it is vital that educators have a thorough understanding of well-settled case law and also be familiar with those relating to areas of the law where it is not.

Although not always clearly understood by educators, a decision of the United States Supreme Court has the full force of law and may be al- tered or modified only by another High Court decision or an amendment to the Constitution.* Unfortunately, High Court decisions have not always beep observed by local school systems. Desegregation decisions and those dealing with Bible reading and recitation of sectarian prayers during school hours are prime examples. Because the Court does not have an enforcement arm, compliance with a decision must often be gained by continued court action, which may include requesting writs of injunction or mandamus.

4. Executive Orders and Attorney General Opinions The president of the United States may issue an executive order that

applies to education. Once issued, it would be a source of law for educators. The attorney general of the United States may be asked to provide an

official opinion pertaining to a constitutional or statutory educational pro- vision or a controversial educational practice. Such an opinion may be thought of as advisory and does not represent as compelling a source of law as case law.

B. State Level

Major state-level sources of law include the state’s constitution, statutes, case law, state board of education policy, state department of education di- rectives, rules and regulations of administrative agencies, executive orders, and attorney general opinions. As discussed previously, these state-level sources of law may not deprive individuals of the due process or equal pro- tection of the laws they have as persons under the Fourteenth Amendment.

1. State Constitutions All state constitutions contain language committing the state to a re-

sponsibility for providing education. Although the constitutional termi- nology varies, it often takes the form of requiring that the legislature

*Article III of the Constitution provides that the Supreme Court has appellate jurisdiction “with such exceptions, and under such regulations as the Congress shall make.” Therefore, congressional action could conceivably restrict the Court’s jurisdiction.

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ensure the establishment and maintenance of a thorough and uniform or efficient system of schools. Such broad language is recognized as the ulti- mate authority within a state for furnishing education. Constitutional pro- visions may designate constitutional offices for education officials, such as state superintendent of schools and state board members. Constitutional provisions may also specify the creation of local school systems, method of selection and number of members for local school boards, qualifications and selection of local school superintendents, and authority and possibly limitations for local taxation for school purposes. A review of constitu- tional provisions pertaining to educational matters among the states re- veals a wide range of format, from a few general designations in some states to a large number that are rather specific in other states.

Many states also have due process and/or equal protection of the law requirements similar to those found in the amendments to the federal Constitution. Consequently, state courts are often asked to interpret these in an educational context.

2. State Statutes State statutes represent a significant source of law for educators.

They are often more explicit than state constitutional provisions, and their purpose is to bring a more specific outline to broad constitutional direc- tives or to codify case law. Statutes may regulate governmental functions such as the method of selection, terms, and responsibilities of state-level education officials. They may also stipulate the type of local or regional school systems; the method of selection, responsibilities, and terms of local school officials; and the powers of local education units.

State statutes often deal with financing of the public schools, tax in- struments, and the degree to which these instruments may be employed to raise local revenue. Often teacher-pupil ratios are specified, as are the teaching of certain subjects, minimum and maximum ages for subjection to compulsory education laws, length of school day and year, and rules re- garding suspension and expulsion of students.

State statutes may also address areas dealing with personnel, such as tenure, retirement, collective bargaining or professional negotiation, meet- and-confer provisions, and fair dismissal procedures. Details pertaining to teaching certificates may be written into law, although this area is usually covered by state board of education policies.

3. Case Law State court decisions can greatly aid educators in sensitive areas

where there is no policy direction from statute law, the constitution, the state board of education, or local rules and regulations. A decision by one state’s highest court does not serve as binding precedent in another state. However, such an opinion does provide educators with the rationale or

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C. Local Level

Sources of law with which educators in a local school system are most fa- miliar are the local school board policies, rules, or regulations and their in- dividual school’s rules or regulations. Such local sources of law, among school systems, are widely dissimilar in regard to their length, compre- hensiveness, and compliance with federal and/or state constitutional or statutory provisions. In many instances, building-level administrators rely on this authority in dealing with such issues as administering corporal punishment, suspending a student, searching a student, censorship of the school newspaper or yearbook, student or teacher refusal to participate in patriotic exercises, use of a school building by members of the community, and dress and grooming standards for both students and teachers.


A dual judicial system composed of state and federal courts exists in the United States. The federal court system has its basis in the United States Constitution, which may be limited by acts of Congress or rulings of the United States Supreme Court. State court systems have their basis in state constitutional provisions or statutory enactments.

In some instances, state and federal courts have concurrent jurisdic- tion, which presents a unique interplay between the two legal systems. Having concurrent jurisdiction provides a prospective litigant with a choice in selecting the judicial system in which he or she wishes to initiate court action. Federal courts may be used, however, only if it can be shown that a federal question exists, and they may not interfere with state court pro- ceedings unless a federal question is present, such as an alleged abridge- ment of a constitutional right.

When concurrent jurisdiction exists, plaintiffs will naturally select the court system perceived to be more sympathetic to their cause of action. From the mid-1950s through the mid-1980s, plaintiffs viewed the federal judiciary in this light due to the activist reputation of the Supreme Court. During that time, many cases were brought to the federal courts that his- torically would have been brought to state courts. That impetus no longer exists, however, because the Court can no longer be considered to be an activist one.

Prior to instituting court action, with few exceptions, one must ex- haust all local and state administrative remedies before seeking a redress of grievances through court litigation. Failure to exhaust these administra- tive remedies by the plaintiff may result in a court’s refusal to grant stand-,ing required for a hearing before the court.

Proceedings in school law often involve suits dealing with questions of due process and equal protection of the law brought in a branch of civil

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Educational Governance: Sources of Law and the Courts 1 3

philosophy of another state’s highest legal body regarding an area of con- flict. There is no appeal of a decision of a state’s highest court unless a fed- eral issue is involved.

There are notable exceptions, but in general, state courts historically have been reluctant to overturn existing school policies in the absence of clearly unreasonable, capricious, or arbitrary conduct on the part of school officials. Consequently, plaintiffs, when possible, have often opted to have their day in federal court instead of a state court.

4. State Board of Education, Chief State School Officer, and State Department of Education The specific roles of the state board of education, the chief state

school officer, and the state department of education vary considerably among the states; yet, these offices collectively and individually provide an important source of law for educators. Functional diversity among these offices in the various states often stems from different constitutional or statutory provisions and the political dynamism of the individuals as- sociated with these offices. The formal relationship among the state board of education, the chief state school officer, and the state department of ed- ucation is rarely detailed in state legislation. Therefore, in practice, the re- lationship often depends on the individuals involved. Occasionally, educators at the local level are not sufficiently familiar with the dif- ferences in authority among the three divisions. Consequently, pro- nouncements from one of these authorities may be viewed mistakenly as agreed-upon policy emanating from the state level.

Although the duties and responsibilities of state boards of education also vary, their primary function is to adopt the necessary policies, rules, and regulations to implement legislation and constitutional requirements. When not in conflict with constitutional decrees, these policies, rules, and regulations have the force of law.

The chief state school officer’s role does not have uniformity among the states. This person administers the state department of education, the agency that deals directly with the local school systems. The department is the bureaucratic mechanism through which state policy is transmitted to local systems.

5. Attorney General Opinions As the state’s legal counsel, the attorney general may be asked for

an opinion regarding an educational question when a constitutional or statutory provision is not clear or when case law does not serve as a dis- tinct precedent. Such attorney general opinions serve as useful guides for the educator, but they do not represent the same degree of authority as a decision by a state’s courts or by a federal court in whose jurisdiction the state lies.




Educational Governance: Sources of Law and the Courts 1 5

law termed equity law. The regular court system usually administers equity law, as separate courts do not normally exist to deal with it. However, in this type of action there is generally no jury, and the judge(s) is the sole de- terminer of what constitutes due process or equal protection, subjectonly to review by a higher court. Equity judgments regarding due process and equal protection are generally made on the basis of many variables, such as a close examination of the particular facts of a case, decisions in previous cases, and possibly the introduction of social science findings. If arbitrary or capricious conduct on the part of a governmental official can be demon- strated, the likelihood increases that either due process or equal protection has been denied. On the other hand, if educationally sound reasons are of- fered by the educator in attempting to explain the actions or conduct in dis- pute, the likelihood increases that due process or equal protection has been afforded. Ultimately, however, the judge(s) must determinegiven a par- ticular factual situation, present societal mores, actual or possible incon- venience or danger to society, precedent, and constitutional and other rightswhere the balance lies between providing an individual with his or her constitutional rights and the legitimate demands of the larger society.

A. State Court Systems

Each state has the responsibility of establishing its own judicial system. Al- though this has resulted in the creation of fifty independent state court systems, certain basic similarities exist among them. Common to most states’ judicial systems is a court of original jurisdiction and some sort of appellate structure.

In most instances, cases dealing with educational matters are initi- ated in the state’s appropriate court of original jurisdiction. These courts are called circuit courts, district courts, courts of common pleas, or supreme courts (New York only), but in many states they are referred to as superior courts. Most litigation is settled in these courts, and they serve as the sole determiner of the facts in most cases.

Intermediate appellate courts constitute a second level of many state court systems. Approximately half of the states have established interme- diate appellate courts, and they are called courts of appeals, appellatedi- visions or departments of the superior courts, appellate divisions of the supreme court (New York only), or appeals courts. Where present, these appellate-level courts provide a tribunal between the trial court and the state’s highest court of last resort. Unlike courts of original jurisdiction, state appellate courts do not engage in factual inquiries; rather, these courts determine questions of law. Opinions are based on a written record provided by the court of original jurisdiction.

A state’s highest-level court is generally called the supreme court; however, it may be called the court of appeals, supreme judicial court, or

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the supreme court of appeals. Most state supreme courts rarely have orig- inal jurisdiction except under specific conditions mandated by state law. Their basic function is to review lower-court decisions on appeal. Purely state matters may not be appealed beyond a state’s supreme court; how- ever, if a federal question is involved an appeal may be made to the federal courts or the United States Supreme Court if the state is a party.

B. Federal Court System

By constitutional design, the federal judiciary was established as a separate and independent branch of the United States government. Subsequent fed- eral legislation has provided for a federal judicial system, which presently includes district courts, courts of appeals, and the United States Supreme Court. A litigant must raise a federal question to have standing in a federal court. When dealing with educational issues, this may be accomplished by alleging violation of a federal statute, such as 42 U.S.C. § 1983, or of amend- ments to the Constitution, such as the First, Fourth, Fifth or Fourteenth.

1. District Courts The district court, of which there are more than ninety, is the court of

original jurisdiction in the federal judicial system. Each state has at least one district court, and many states have between two and four districts. A district may be divided into divisions, and cases may be heard in different locations within those divisions.

2. Courts of Appeals Courts of appeals represent the intermediate appellate level of the

federal court system. Their primary function is to review appeals from dis- trict courts within the circuit, and decisions by a court of appeals are bind- ing on the lower federal courts in the circuit. A decision by one court of appeals may stand as a persuasive decision for other courts of appeals, but it does not stand as binding authority Courts of appeals base their deci- sions on the trial court’s proceedings and any briefs filed by concerned parties. A case may be remanded to a lower court for further proceedings when the appellate court finds that the facts presented in the written record are insufficient to render a decision. The nation is divided into thir- teen federal judicial circuits, comprising eleven geographic regions and the District of Columbia Circuit and Federal Circuit (see Figure 1-1).

3. Supreme Court The Supreme Court is the highest-level court in the federal judicial

system, and there is no appeal from a decision rendered by this court. When ruling on the constitutionality of a federal statute or practices within

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Educational Governance: Sources of Law and the Courts 17

a state or local subdivision, such a ruling can be overturned only by an amendment to the Constitution or by a subsequent ruling by the Court. Nine justices including one chief justice make up the Court. As with other federal judges, their appointment is for life, and their compensation can- not be reduced during their tenure.

Most cases reach the Supreme Court by means of a writ of certiorari. Under this method, an unsuccessful litigant in a lower-court decision pe- titions the Court to review the case, setting forth reasons why the case should be granted a writ. A case is accepted for review only if four justices vote to grant certiorari. Acceptance for review under this “rule of four” indicates that at least four members of the Court consider the case to have sufficient merit to be considered by the entire Court. Denial of certiorari leaves the decision of the lower court undisturbed and applicable only in the lower court’s jurisdiction. Such a denial does not have the force of a written decision, which directly addresses the merits of a case.

The Court’s term begins on the first Monday in October and usually lasts for nine months. The number of cases docketed during a term has in- creased significantly. More than 6,000 cases have been docketed in recent years, whereas 2,313 cases were docketed in 1960 and 1,460 in 1945. Al- though the Court decides between 200 and 250 cases in a term, formal written opinions are rendered in approximately half of these decisions.

Court decisions dealing with educational matters have had a signifi- cant impact on educational policy in the last several decades. Many diffi- cult social-policy decisions have been made by the Court because other branches or levels of government were unable to agree or were unwilling to make them. This has prompted some observers to suggest that the United States Supreme Court may have become the modern-day American oracle. However, a different judicial philosophy, as a result of appointments made between 1969 and 1991, has made the Court less inclined to effect social change in recent years, thereby somewhat diminishing this perceived role.

Some educators have doubts about the authority under which the Supreme Court determines questions of constitutionality. Although this right of judicial review is not explicitly provided for in the United States Constitution, many scholars agree that the framers of the Constitution ex- pected the Court to assume this function. This notion was addressed by Alexander Hamilton in The Federalist, No. 78, in which he asserted:


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