Ch. 5 Legal Issues in American Schooling - Dr. William Allan Kritsonis

1. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLING
PAGE 177
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CHAPTER 5
LEGAL ISSUES IN AMERICAN SCHOOLING
KEY POINTS
1. The Tenth Amendment of the United States Constitution gives states the
responsibility for public education.
2. State constitutions provide for public education.
3. Local boards of education get their rights over education through state gov-
ernments.
4. Most court decisions have strongly upheld the separation of church and
state provision in the Constitution.
5. The First Amendment to the United States Constitution is the key to
separation of church and state decisions.
6. The only involvement of students with religion condoned by the courts has
been their participation in activities outside the school without school
credit.
7. Students are protected under the First Amendment, such as freedom of
expression, as long as this expression does not create distractions.
8. Most courts have ruled that schools have a right to keep order in the school
and inspect school property such as students’ lockers.
9. Most court rulings have upheld the rights of schools to impose certain
prerequisites for extra-curricular activities.
10. Teachers have the same basic protections as other citizens under the
Constitution, but these rights may be interpreted differently.
11. Schools cannot discriminate in hiring practices or termination practices
against teachers.
Copyright © 2005
William Kritsonis
All Rights Reserved / Forever

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CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLING
A. OVERVIEW
The focus of this chapter is on the legal issues involved in public education.
The legal basis of education, the U.S. Constitution, is discussed, followed by
legal issues related to students’ rights and teachers’ rights. Also discussed is
the role of religion and public education.
B. KEY TERMS–DEFINITIONS
CONSTITUTION - The Constitution of the United States is the foundation for
our entire legal and governmental systems. Education is an issue that the
Constitution does not specifically address. Since the Constitution does not
delegate powers over education to the federal government, nor prohibit such
powers to the states, public education in this country has become a state
responsibility.
SCHOOL BOARD - Local boards of education are created by state statutes for
the purposes of administering local school districts. They are legally the
governing body for the school district; they can act only as a body;
individually, members have no power; primary responsibilities are goal setting
and policy-making. The boards derive their powers from the state constitution,
state statutes, and court decisions.
LAWS:
AGE DISCRIMINATION - passed in 1967, the Age Discrimination in
Employment Act prohibits discrimination against individuals between the ages
of 40 and 70 years of age.
COMMERCE CLAUSE - empowers Congress with powers to regulate
commerce. Congress uses this to justify involvement in labor/union actions.
DESEGREGATION - the tearing down of the dual system of public education
based on race in America; the principle of “separate but equal” was nullified in
which the court said that, in regard to public schools, separate is “inherently
unequal” and the lower courts should act “with all deliberate speed” to
desegregate public schools.
DISCRIMINATION - the denial of rights and privileges because of race,
ethnic identification, sexual orientation, religion, age, social class, politics, or
disabilities.

3. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLING
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ESTABLISHMENT CLAUSE - the first part of the First Amendment requires
that the government neither advance nor inhibit religion, in effect erecting a
wall between church and state.
EXPULSION - this is a disciplinary action in which students are barred from
attending school for an extended period of time.
FIFTH AMENDMENT - protects citizens from being deprived of life, liberty,
or property and prohibits requiring an individual to testify against himself/her-
self. Provides protection for teachers related to outside work.
FIRST AMENDMENT - provides freedom of religion principle; basis for
separation of church and state.
FOURTEENTH AMENDMENT - mandates that states may not deny equal
protection to citizens. Most widely used as basis for school litigation.
FOURTH AMENDMENT - protects citizens from unwarranted search and
seizure; basis for decisions regarding search and seizure of students.
GENERAL WELFARE CLAUSE - allows Congress to collect taxes to
provide for the general welfare of citizens; Congress has used this as a rational
for getting involved in education.
LEMON TEST - this is a three-criteria test stemming from Supreme Court
cases, Lemon vs. Kurtzman (1971). The United States Supreme Court ruled
unconstitutional a 1968 Pennsylvania statute that permitted direct financial
support (state aid) to parochial schools. The statute authorized reimbursement
to be paid directly for certain educational services provided by these schools.
Eligible reimbursements were teacher salaries, textbooks, and instructional
materials that were used specifically for secular purposes. The three criteria
are:
a. have a secular purpose;
b. have a primary effect that neither advances nor inhibits religion;
c. avoid excessive governmental entanglement with religion.
LOCAL EDUCATION AGENCY (LEA) - local school districts. This is the
basic educational unit in all states.
NINTH AMENDMENT - states that enumeration of certain rights in the
Constitution does not deny other rights. Teachers and students have based their
rights related to physical appearance and privacy on this amendment.
NO PASS NO PLAY - laws stating that students must meet academic
prerequisites to retain eligibility for participation in extracurricular activities.
Texas requires a 70% average in all classes.

4. SCHOOLING (2002)
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RELEASED TIME - a practice in the 1960s that allowed students to
voluntarily attend various religious activities during the school day. This is still
allowed as long as the activities occur off the school campus, the students’
attendance is voluntary and does not receive official school credits.
RIGHT TO EDUCATION - the right for students to participate in the
American educational system has been unquestioned for most children.
However, children with disabilities and other health-related problems, as well
as those from minority populations, have not always been able to gain equal
access to public schools.
SEARCH AND SEIZURE - what is legal? What might be proper in one
district might be considered unconstitutional in a nearby district. What is
considered legally proper at one time might be considered a violation of
student rights at a later period.
SECULAR CURRICULUM - (temporal or worldly) some parents have
contested various courses and course material for their children on religious
grounds. They have been successful in getting their children exempted from
certain courses, such as sex education and ROTC and from specific class
assignments in certain courses when alternative activities can meet course
requirements.
SEPARATION OF CHURCH AND STATE - basis for this was the First
Amendment.
STATE EDUCATION AGENCY - to carry out the legislative provision of the
state relative to public education.
SUSPENSION - a disciplinary action that includes removing students from
school activities for a short period of time and is usually imposed when the
students’ infractions do not merit expulsion. In pursuing these actions of
disciplinary measures, the schools must assure that all requirements for due
process are met.
TENURE - a teacher’s benefit that makes it difficult to terminate them; usually
provided after several years of successful teaching experience. Permanent job
status granted to employees following successful completion of a probationary
period.
C. SOME PRECEDING THOUGHTS
1. What is the constitutional basis for public education?
The Constitution does not delegate powers over education to the U.S.
government, nor prohibit such powers to states; public education in
America has become a state responsibility (Tenth Amendment).

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2. What is the role of state government?
States have readily accepted the primary responsibility for providing
public education to its citizens and have responded by including provisions
in their state constitutions for public school programs.
3. What are school boards, and how are they involved in public education?
School boards are unique governing units. They are involved in education
through goal setting, policy making, and administration of local school
districts. They derive their power from the state constitution, state statutes,
and court decisions.
4. What is the basic governance structure of State Departments of
Education?
5. What is the basis for separation of church and state?
The First Amendment to the Constitution states that “Congress shall make
no law respecting an establishment of religion, or prohibiting the free
exercise thereof.” The Fourteenth Amendment provides that no state shall
“deny to any person within its jurisdiction the equal protection of the
laws;” the Fourteenth Amendment has been used to apply the First
Amendment provisions to education. Since 1970, the Supreme Court has
applied a tripartite test in assessing most establishment clause claims. To
withstand scrutiny under this test, governmental action must:
a. have a secular purpose;
Accreditation/
Recognition
Technical
Assistance
Finance Special
Programs
STATE BOARD OF EDUCATION
CHIEF STATE SCHOOL OFFICER
STATE DEPARTMENT OF EDUCATION

6. SCHOOLING (2002)
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b. have primary effect that neither advances nor impedes religion;
c. avoid excessive governmental entanglement with religion.
Often called the Lemon Test (Lemon vs. Kurtzman, 1971).
6. What has been the general trend in the court’s ruling on issues such as
prayer in public schools, released time for religious activities, and
religious influences on school curriculum?
The First Amendment contains two phrases dealing with religion and
education. In Everson vs. Board of Education, the Supreme Court ruled the
First Amendment was intended to put up a wall between church and state.
In the 1960s, the Supreme Court issued two precedents–stating a decision
that schools sponsoring daily Bible reading and daily prayer violated the
Establishment Clause of the First Amendment. The general trend has been
against setting aside time for religious activities in school.
In West Virginia State Board of Education vs. Barnette, the court ruled that
students could be exempted from making statements of allegiance to the
state. Using this ruling, federal courts have concluded that students
refusing to stand and recite the pledge cannot be forced to do so if
participation violates their religious or other personal beliefs and freedom
of expression.
7. How did the Tinker case affect freedom of expression for students?
In 1969 the court ruled that students in school and out of schools are
citizens who have the protection of the U.S. Constitution. This decision did
not give students free reign. Students have to stay within the confines of
proper school discipline. Any disruptive behavior can be banned. Freedom
of expression does not extend to defamatory, inflammatory, or obscene
and vulgar expression.
Summary:
a. schools can make and enforce reasonable rules even if these could
encroach on freedom of expression;
b. armbands, buttons, and other symbolic expressions are protected by the
Constitution as long as they are not inflammatory;
c. a reduction of students’ rights must be reasonable and focus on the
accomplishment of an educational objective;
d. denying rights must be based on objective predictions of disruptions.
8. What do the courts say about dress and grooming codes for students?

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For the most part, the courts have upheld the rights of students to wear
whatever clothing they want as long as it did not create a distraction. These
rulings are based on the Fourteenth Amendment. School officials wishing to
implement dress codes must ensure that their purpose is to prevent
distractions from the educational program. Hairstyles are still left up to the
lower courts. So far, the Supreme Court has not heard any appeals regarding
this issue.
9. What are the important court cases dealing with desegregation of
public schools?
a. Brown vs. Board of Education, Topeka on May 17, 1954–removed dual
system of education;
b. Griffin vs. County School Board of Prince Edward County in 1964–
unconstitutional to issue vouchers to parents of white students and to
close schools in order to circumvent Brown vs. Board of Education
decision;
c. Green vs. County School Board of New Kent County in 1968–if
freedom-of-choice plans actually led to desegregated schools, they
were constitutional; if not, they were not;
d. Swann vs. Charlote-Mecklenburg Board of Education in 1971–the
court ruled on four issues:
1. Using a strict mathematical ratio system to determine the number
of white and black students in an entire district was not the intent
of the court.
2. One-race schools can exist as long as the district can prove that
the assignment of pupils is nondiscriminatory.
3. Neighborhood schools should be abolished in order to reverse de
jure segregation. (De jure here means an intentional and deliberate
separation of students on the basis of race or ethnic origin.)
4. Bussing should be considered as a major tool with which to
desegregate schools.
10. How do teachers’ rights differ from the rights of other citizens?
Teachers, like all citizens, enjoy the protection of the First Amendment for
freedom of speech. However, in some cases, the freedom of speech
enjoyed by teachers is somewhat restricted. On personal appearance for
teachers, the courts have occasionally ruled against dress codes for
teachers, citing that it violates freedom of expression, but in most cases it
has upheld dress codes for teachers. On Academic Freedom, teachers can

8. SCHOOLING (2002)
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use materials that they have not been instructed to use as long as those
materials have not been barred. Academic freedom includes the rights of
the professor, teacher, or speaker and the rights of the learner or listener to
pursue knowledge without external restrictions that would inhibit free
inquiry. Teachers can use simulation methods. Teachers have the same
rights as students and citizens as guaranteed by the U.S. Constitution.
Although the courts have taken personal liberties of teachers into
consideration when determining freedom of speech, they frequently have
cited the interest of the public as having priority over these individual
liberties.
11. What facts are necessary to show age or racial discrimination in
hiring practices?
a. the person belongs to a special minority group;
b. the person applied for and was qualified for the position;
c. the person was rejected in spite of his/her qualifications;
d. the position remained open and the employer sought other applicants.
12. For what reasons can tenured teachers be dismissed?
a. incompetence;
b. immorality;
c. insubordination;
d. unprofessional conduct;
e. neglect of duty;
f. unfitness to teach;
g. need to reduce professional staff.
Tenured personnel may be dismissed for cause. School boards and
institutions of higher education are required to state specific reasons for
dismissal and grant a hearing.
13. What are the due process rules for dismissing a teacher?
a. the teacher must be given timely, detailed, written notice of the charges;
b. the teacher must be accorded a hearing and sufficient time to prepare;
c. the teacher has a right to be represented by legal counsel;
d. the teacher may present written and oral evidence, including witnesses;
e. the teacher may cross-examine witnesses and challenge evidence;

9. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLING
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f. the hearing is to be conducted before an impartial body. The U.S.
Supreme Court has ruled (in Hortonville District vs. Hortonville
Education Association) that, under the U.S. Constitution, a school
board may be that impartial body unless bias can be proven.
Source: See Hortonville District vs. Hortonville Education Association, 426 U.S. 482 (1976); Bernard,
J.M. (1994 April). Ethical and legal dimensions of supervision. ERIC Digest, pp. 1-4.
Accessible on the Internet via ERIC at www.ed.gov. Adapted with special permission.
D. DISCUSSION QUESTIONS AND EXERCISES–None
E. REVIEW ITEMS
True-False
1. The foundation for our legal system is the United States Constitution.
2. The PARC court case focused on racial desegregation.
3. The U.S. Constitution specifically addresses education.
4. Teachers’ rights are exactly the same as personal rights of other citizens.
5. It is very difficult to prove racial discrimination in hiring/terminating
teachers.
Multiple Choice
1. The Amendment to the U.S. Constitution which gives states the right to
deal with issues not mentioned in the Constitution is _______.
a. Fifth b. Tenth c. Fourteenth d. Eighteenth
e. none of the above
2. Generally, schools are allowed to search a locker if _______.
a. lockers are not locked with personal locks
b. there is reasonable suspicion c. the student is present
d. the student gives permission
3. The Barnette decision dealt with _______.
a. freedom of expression b. student grades c. teachers’ rights
d. termination policies

10. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLING
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f. the hearing is to be conducted before an impartial body. The U.S.
Supreme Court has ruled (in Hortonville District vs. Hortonville
Education Association) that, under the U.S. Constitution, a school
board may be that impartial body unless bias can be proven.
Source: See Hortonville District vs. Hortonville Education Association, 426 U.S. 482 (1976); Bernard,
J.M. (1994 April). Ethical and legal dimensions of supervision. ERIC Digest, pp. 1-4.
Accessible on the Internet via ERIC at www.ed.gov. Adapted with special permission.
D. DISCUSSION QUESTIONS AND EXERCISES–None
E. REVIEW ITEMS
True-False
1. The foundation for our legal system is the United States Constitution.
2. The PARC court case focused on racial desegregation.
3. The U.S. Constitution specifically addresses education.
4. Teachers’ rights are exactly the same as personal rights of other citizens.
5. It is very difficult to prove racial discrimination in hiring/terminating
teachers.
Multiple Choice
1. The Amendment to the U.S. Constitution which gives states the right to
deal with issues not mentioned in the Constitution is _______.
a. Fifth b. Tenth c. Fourteenth d. Eighteenth
e. none of the above
2. Generally, schools are allowed to search a locker if _______.
a. lockers are not locked with personal locks
b. there is reasonable suspicion c. the student is present
d. the student gives permission
3. The Barnette decision dealt with _______.
a. freedom of expression b. student grades c. teachers’ rights
d. termination policies