School Law

1
School Law

• ELS 657
• This and School Finance will help you stay out of
  jail!

2
History of American SchoolingFoundations

• Rousseau public education is one of the
  fundamental rules of legitimate government
• Montesquieu the republican form of government
  requires education to instill a desire for
  freedom and equality, a preference for public
  over private interests, and an appreciation for
  (ex) knowledge.

3
History

• Mass. Law of 1642
• Required fathers and masters to see to childrens
  and servants (apprentices) education public
  humiliation
• Revised in 1647 apparently the law five years
  earlier had failed. Mass. required taxation for
  settlements of 50 or more for Ye Olde Deluder
  Satan

4
Geographic Variations

• Distinctions existed between various regions in
  the colonies Cubberley (1934)
• Good School Conditions
• Mixed Conditions
• Pauper/Parochial Schools
• No Action Group

5
Good School Conditions

• New England (generally) valued education
• Maine, Vermont, New Hampshire, Mass., Conn.,
  N.Y., Ohio

6
Mixed Conditions

• Mixed settlements of people had conflicting ideas
  about the value and/or purpose of education
• Indiana, Illinois

7
Pauper/Parochial Schools

• Mostly middle colonies with traditional English
  ideas (elitist) about education somewhat
  necessary for all very necessary for the elite.
• PA, NJ, DE, MD, VA, GA, SC, LA

8
No Action Group

• Religious freedom and anti- government states
  that took no action or as little action as
  possible.
• RI, KY, TN, NC, MS, AL

9
Organizing System of Education

• The age of enlightenment had its impact on the
  colonies. By 1755, the religious basis was over.
• By 1770, free public education system similar to
  Germany was being considered seriously.
• John Adams and Thomas Jefferson (1768) write
  essentiality of education to society

10
1800 education reality check

• Leading spokesperson Horace Mann
• Universal, common right of man
• Moral responsibility of predecessors
• Moral and social salvation from evil and poverty
• Knowledge is the most valuable property
• Free and public education system

11
How Do We Pay for This?

• Early New England, assessments on parents
• Later New England, assessments on all
• Early Middle Colonies, tuition
• Later Middle Colonies, tuition and basic
• Early Southern, tuition
• Later Southern, tuition and very basic

12
What is the Legal Basis for This?

• Anything not mentioned specifically in the
  Constitution became a state function.
• Education is a state function
• As such, the State Constitution controls funding
  for education

13
Virginia Constitution Article 1

• That no free government, nor the blessings of
  liberty, can be preserved to any people, but by a
  firm adherence to justice, moderation,
  temperance, frugality, and virtue and by the
  recognition by all citizens that they have duties
  as well as rights, and that such rights cannot be
  enjoyed save in a society where law is respected
  and due process is observed.
• That free government rests, as does all
  progress, upon the broadest possible diffusion of
  knowledge, and that the Commonwealth should avail
  itself of the those talentsby assuring their
  fullest development by an effective system of
  education throughout the Commonwealth.

14
Sources of School Law

• Constitutions
• Statutes
• Court or Case law
• Regulations

15
Conundrum

• Studying school law is like witnessing a
  balancing act. On the one hand, the power of
  sovereignty rests in legislative control of
  schools. On the other hand, the courts define
  and restrain that sovereignty. Educators
  practice in a fluid middle ground of state
  control and individual freedom.

16
Constitutions

• The legal framework of operations
• Fluid
• Rights and freedoms
• United States
• States and territories

17
Statute

• Statutum it is decided
• Act of government expressing a law
• Follow furrows or break new ground
• Generally, public schools are governed by state
  statutes
• All 50 states constitutions require free public
  schools
• Rules and regs of schools have statutory effect

18
Case law

• Judge-made law
• Courts interpret statutes
• Explain relationships and clear confusion between
  statutes, constitutions, and case law
• Courts say what the law is (Marbury v. Madison)
• Apply principles to practice

19
Marbury v. Madison

• It is emphatically the province and duty of the
  judicial department to say what the law isIf two
  laws conflict with each other, the court must
  decide on the operation of each.

20
Stare Decisis

• Let the decision stand
• Unless there are compelling, legal contradictions
• Precedent
• Blackstone said to keep the scale of justice
  even and steady, and not liable to waiver with
  every new judges opinion.

21
Who decides what?

• U.S. Constitution limits the power of the
  judiciary to decide a judgment and carry it into
  effect for a decision
• The judicial branch settles conflicts involving
  cases or controversies
• The Supreme Court decides what is a case and a
  controversy

22
American Court System

• See page 15 for state courts
• From the State Supreme Court, cases are heard at
  the Supreme Court of the United States not
  hypothetical situations
• U.S. Supreme Court will not issue advisory
  opinions State Supreme Courts may

23
(No Transcript)
24
Chapter 2

• Historical Perspective of Public Schools

25
Review

• True or False
• One function of a state court is to resolve cases
  between citizens of different states.
• A civil action is one initiated by the state for
  the purpose of obtaining compliance with the law.
• The ruling from the highest court in one
  jurisdiction (4th circuit) takes precedence over
  a conflicting ruling from the fifth circuit.

26
True or False

1. Common law of the US is composed of the entire
   body of law including the constitutions,
   statutes, cases, AGOs, and official rules and
   regulations.
2. Whenever a law is challenged in court, the court
   assumes that the law is unconstitutional, and the
   burden of proof is on the plaintiff.

27
True or False

1. The US Supreme Court is the highest court in the
   land beyond which there is no appeal.
2. Common law precedents are established by courts.
3. Stare decisis means stop looking at me.
4. The first public school laws were not established
   in this land until 1790.

28
Some more history beyond last week!

• Ye old deluder Satan 1642, 1647
• As per Week 1, our system is based on the German
  model of education, not the English
• English education did not have common schools
  until 1870. Prior to that it was private (called
  public there) for the wealthy
• German education (in parts of the different
  countries in Germany) had compulsory education as
  early as 1565, then 1618, 1619, 1722, 1750.

29
1770s

• Benjamin Rush advocated an education system that
• Had uniformity of access
• Method to pursue a course of study
• Organization from primary to secondary to
  university

30
Benjamin Rush (PA)

• Universities will provide masters for colleges
• Colleges will provide masters for free schools
• Free school will provide scholars for colleges
  and universities
• Generate one great, equally enlightened family

31
Feelings, oh, oh, feelings

• In the revolutionary setting of our new country,
  not only were political changes embraced
• Educational ones were embraced as well
• These were reflected in the State Constitutions
  with words likethorough efficient
  uniform effective

32
State Constitutions

• Generally, from the mid-1970s courts have
  re-examined the issues of education in terms of
  art as expressed in the State Constitution
• The courts have held that when these terms of
  art are not met in practice, they may be
  invalidated the courts may order restructuring

33
Common Constitutional Elements

• State legislature is responsible for enacting
  laws to govern schools
• Must be cohesive unit (system)
• Body politic, controlled by public, answerable to
  the people
• Free no charges to limit access
• Funded through tax redistribution

34
Problems

• Efficient versus effective
• Cherish
• Uniform
• Equity issues

35
Virginia Leads the Way (in 1779)

• That free government rests, as does all progress,
  upon the broadest possible diffusion of
  knowledge, and that the Commonwealth should avail
  itself of the those talentsby assuring their
  fullest development by an effective system of
  education throughout the Commonwealth.

36
Cases

• McDuffy v. Mass. (1993)
• 16 young high school students in Mass.
• Plaintiffs argued that the Mass. funding formula
  denied them an adequate education in their
  community violating Mass Constitution
• Plaintiffs sued the governor, DOE, Commissioner
  of Ed., State Board of Ed., and the Revenue Dept.

37
McDuffy case

• Plaintiffs factual claims were
• Inadequacy of education at their schools
• Insufficiency of funding for their schools
• Mass. inability to develop an adequate funding
  formula

38
McDuffy case

• The term cherish was used in the 18th century
  to impart a meaning not used today. It would be
  nurture, nourish, or support now
• The court decided that the history of the
  founding of public schools in Mass was essential
  to the case. 1647 statute, cherish, and system
  were all cited by the court

39
McDuffy case

• The court observed the involvement of John and
  Samuel Adams in the establishment of schools in
  Mass
• Court decided that cherish and system were
  not oratory, but obligatory. Mass has an
  obligation to provide a system
• Remanded to lower court to determine appropriate
  funding

40
Rose v. Council for Better Education, Inc.
(Kentucky)

• 1989 decision date
• Summary question will a state legislature be
  allowed to organize, finance, and maintain a
  public school system with plenary (full,
  conclusive) authority ignoring specific
  constitutional mandates?
• Situation 66 poor districts charged that KY
  legislature had not provided for an efficient
  system of schools as mandated in Constitutuion

41
Rose case

• Court held education is a fundamental right in KY
• Current system did not satisfy efficient system
  language of the Constitution
• School system was not uniform or adequate
• System of schools must be adequately funded to
  achieve its goals and must be substantially
  uniform (my emphasis)

42
Rose case

• Court found overall inadequacy in comparison with
  national standards and standards in adjacent
  states
• Found a great disparity of opportunity throughout
  the state. Wide variance in per-pupil
  expenditure, curriculum, and services offered

43
Rose case

• Defendants argued local boards had control
• Court maintained that the sole responsibility lay
  with the General Assembly for providing the
  system of schools
• Notice definition for efficient on p. 40-41
• Following this, the General Assembly was directed
  to make substantial changes and restructure the
  finance distribution system

44
Judicial Approval of Common Schools

• Some states did not like the idea of common
  schools for all students
• Pauper schools were fine for the poor
• Private schools were fine for the wealthy
• Commonwealth of PA wanted to maintain that system
  saying the Constitution provided for pauper
  schools not common

45
Commonwealth v. Hartman

• 1851 Pennsylvania case
• This case shows the difficult transition from
  pauper schools to common schools
• The General Assembly was willing to fund pauper
  schools but not common schools
• Court decided that basis is in interpretation of
  a state constitution

46
Commonwealth v. Hartman

• At that time the state constitution provided that
  the legislature provide for schools in such a
  manner that the poor were taught gratis
• Plaintiffs argued that the constitutional
  language limited the legislature in what could be
  provided

47
Commonwealth v. Hartman

• Courts said the legislature was in error the
  state constitution does not define a maximum of
  legislative power, instead it defines a minimum
  level.
• The rule of law is that a state legislature has
  jurisdiction over all subject on which its
  legislation is unlimited

48
Expansion of Free Public Schools

• First American high school was established in
  Boston, 1821
• Major expansion of this practice after the
  Kalamazoo case in 1872 (Supreme Ct.)
• This influenced other states in justifying the
  creation of high schools

49
Kalamazoo Case

• S.Ct. 1872
• No previous legislative or judicial authority had
  been granted to operate high schools in Michigan
  primary schools and academies
• Predominant college prep academy was Kalamazoo
  College

50
Kalamazoo Case

• One Michigan superintendent started a union high
  school merger of districts to support a high
  school
• This took away students from the prestigious KC
  and local taxpayers and KC filed suit against
  localities operating high schools in Michigan at
  taxpayer expense

51
Kalamazoo Case

• The lower court found in favor of KC and the
  local parents
• S.Ct. reversed the ruling opening all of Michigan
  for the high school movement
• KC went out of business

52
Tuition and Fees in Schools

• Sometimes localities reject their responsibility
  to pay for education of OPC
• Schools have attempted to levy fees and tuition
  to offset rising costs
• Most courts have said no tuition or fees for
  tuition
• Some rulings have allowed incidental fees
• Most have not allowed fees

53
Cardiff v. Bismark

• North Dakota, 1978 S. Ct. ruled that textbook
  fees violate the constitution
• Case brought by elementary school parents
  challenging authority of school district to
  charge textbook rental fees to children
• Court said free means free not just tuition,
  but texts

54
Cardiff v. Bismark

• State said this was a local school board issue
• Court said the state can not abrogate its
  authority to maintain a system of schools that
  violates the consitution
• This case took until 1991 to be implemented in
  Virginia
• Tried in West Virginia in 1995 (Randolph County
  v. Adams) with same result

55
Hartzell v. Connell

• California S. Ct, 1984 found that the state
  provision for free public schools prohibited
  collection of fees for curricular or extra
  curricular activities
• Escalating costs required examination of options
  for funding
• Collected fees of 25 per extra curricular
  activity

56
Hartzell v. Connell

• Parents sued
• Lower court found for the school district
• S.Ct reversed the finding and said that education
  was not a commodity for sale
• No fees allowed for extra curricular activities

57
Charter Schools

• Very popular in state legislatures in 1990s
• By 2000, about 2/3 of all states had provisions
  for charter schools
• Originally defined by US Supreme Ct in 1819
  Dartmouth College and Pierce v. Society of
  Friends 1925
• Allow some public funds to flow to private schools

58
Charter Schools

• Lately used to obtain vouchers for private
  schools
• Redefined by Clinton as public schools chartered
  by parents or interests
• States may determine what is a charter school

59
Parochiaid v. Governor

• 1997 Michigan S. Ct ruling saying that in
  Michigan the definition of public schools
  includes charter schools and that does not
  constitute parochiaid (parochial aid) to
  religious schools
• Michigan never defined a public school and had
  arbitrary treatment of charter applications
• Approved under a system of education

60
Chapter 3

• The Role of the Federal Government

61
Review Questions

• Benjamin Rush proposed a comprehensive system of
  education in the 1880s.
• Benjamin Franklin wrote the Virginia
  Constitution.
• The McDuffy case was finance reform in Mass.
• The Kentucky finance reform involved the Rose case

62
Review Questions

• The first American high school was started in
  what city, when?
• The Kalamazoo case enabled high schools to start
  in Michigan.
• Most fees are acceptable in public schools.

63
Land Ordinances

• 1785, 1787
• Continental Congress established this
• Common estate in the new nation for education
• 16th section set aside for education
• Township 36 square miles one square mile for
  education

64
Land Ordinance

• Required state legislature and constitution to
  oversee the land and the education program
• In Westward expansion, Land Ordinance required an
  address of education in the new state
  constitution
• Could rearrange the 640 acres within the framework

65
Reserved State Powers

• State assumed to have power in education matters
  unless national issue is at stake
• Education has its power through accepting monies
  and indirect influence and support
• General Welfare provisions less obvious today

66
Indirect Federal Aid

• First Morrill Act, 1862 gave land to states for
  land grant colleges. Could sell land for that
  purpose
• Second Morrill Act, 1890 expanded this
  authority
• Hatch Act, 1887 and Adams Act, 1906, expanded
  with categorical grants

67
Indirect Federal Aid

• Smith-Lever Act, 1914 set up extension services
  homemaking and agriculture
• Smith-Hughes, 1917 vocational funds at high
  school level
• NDEA, 1958 reaction to Sputnik math, science,
  computer, and foreign language
• Higher Education Facilities Act, 1963 college
  buildings

68
Indirect Federal Aid

• ESEA, 1965 reading and math or disadvantaged
  students
• Education Consolidation and Improvement Act, 1982
  made block grants of ESEA
• Chapter 1 disadvantaged economically and
  academically 90 of program basic and
  concentration grants
• Chapter 2 Eisenhower funds and 29 other areas

69
Indirect Federal Aid

• All Handicapped Children Act, 1975
• We will get into these aspects later as we deal
  with special education law issues

70
Limits of Federal Authority

• Article 1, section 8 gives Congress power to levy
  taxes and spend monies to provide for the common
  defense and the general welfare of the United
  States
• James Madison was against spending
• Alexander Hamilton was pro
• Supreme Court ruled with Hamiltion
• Affirmed in 1936 with Ag. Adjustment Act

71
Limits of Federal Authority

• Helvering v. Davis. US Supreme Court ended a
  hotly-debated topic Social Security
• Court ruled yes, Congress can tax and spend for
  the general welfare

72
Cases

• U.S. v. Lopez, 1995
• Federal gun-free school zone legislation of 1990
• US Supreme Ct. found that this can not be tied to
  the Commerce legislation
• It is still OK to ban guns on school property or
  within certain distance.

73
Cases

• Shepheard v. Godwin Virginia case, 1968
• Impact aid issue
• State can not reduce services to federal areas
  exempt from taxation

74
Wheeler v. Barrera, 1974

• U.S. Supreme Court
• Involved Title 1 funds and parochial schools
• Kansas City, MO parents wanted Title 1 services
  in their private, parochial school
• S.C. said that if the State Constitution does not
  permit an action (and that action is not illegal)
  the State is not obligated to provide services.

75
Bell v. New Jersey and PA, 1983

• U.S. Supreme Court
• Involved Title 1 monies in two states
• Both states misapplied funding
• Department of Education wanted money back
• Argued feds can not recover spent funds
• USSCt disagreed almost 1.1 (NJ) and 450K (PA)
  plus interest

76
Chapter 4

• Governance of Public Schools

77
Governance Overview

• State function
• State does not have plenary power
• SEA and LEA must haves
• Quasi-judicial functions
• School Officers
• Elections
• Meetings

78
State Function

• General Assembly education is the most
  important aspect of public government
• SEA State unit
• LEA is base or local unit
• SEA, LEA, and schools are a legislative unit and
  a body politic immunity
• Impartiality and fairness doctrine

79
Cases

• Hortonville v, Hortonville Education Association,
  1976 U. S. Supreme Court
• Can school boards with vested interests sit in
  their own judgment?
• Dismissals, contract negotiations, employment.
• In strike situation, teachers facing dismissal
  felt a neutral party was needed
• The U.S. Supreme Court did NOT agree

80
Points to Consider

• Did the school board have a personal or financial
  stake in the actions?
• Was animosity or bias documented?
• Did state statute authorize action?
• Familiarity, decision-maker status, negotiator
  status issues?

81
Freemont School District v. Jacobs, 1987

• Colorado
• Bus driver fired by supervisor
• Driver said the School Board could not delegate
  that authority
• Courts disagreed as long as standards existed

82
Points to Consider

• Is it legal (or right) to delegate this authority
  beyond the superintendent?
• Appeal process?
• Do Constitutional protections apply?

83
State ex rel. Clark v. Haworth

• 1890, Supreme Court of Indiana
• Can the State prescribe books for localities?
• Yes, education is a state function, not a local
  one

84
Points to Consider

• Ex rel means ex relatione or upon relation or
  information. Instituted by the attorney general
  or the district attorney on behalf of the state.
• School boards derive all their power from the
  legislature state function.
• Can uniform be uniform without the power lodged
  somewhere to make it so?

85
McGilvra v. Seattle, 1921

• Washington case
• Can School Board use public funds to operate a
  clinic where this is not addressed by GA,
  Statute, or policy?
• Earlier cases authorized establishing and funding
  playgrounds.
• No

86
Points to Consider

• See p. 106 for earlier case for limits in
  Washington
• Why is a clinic different from a playground?
  Indispensable, not just convenient.
• Why different in other states and times?

87
Board of Education of Boone Co. v. Bushee, 1994

• SC of KY
• Can the State Board empower schools so that
  site-based decision making can bypass the local
  board?
• YES

88
Points to Consider

• KERA, 1989
• Language of KERA with the responsibilities
  divided among the state, local board, and the
  school building council
• Councils are responsible for determining
  curriculum, instructional practices, discipline,
  staff, texts, and instructional materials

89
Clark v. Jefferson Co., 1982

• Can a county operate a day care center in direct
  competition with other businesses?
• Remember McGilvra? 61 years later.
• YES

90
Points to Consider

• The services are voluntary and provided on a fee
  basis
• There are no statutes prohibiting such action
• Discretionary authority exists with the Board of
  Education

91
Smith v. Dorsey, 1988

• Nepotism laws exist in most states
• Here the case involved a School Board member and
  contracting for teaching with a spouse
• NOT ALLOWED!! CHECK YOUR STATE!
• Followed in Augusta County, VA 1988

92
Points to Consider

• Williams had taught from 69-75
• In 1988 applied to teach again
• Could not (Board said) as sister-in-law of the
  Chair
• Exemption if regularly employed
• LISTEN TO THIS!

93
School Elections

• All states now provide for school board elections
  Virginia the last state to do so
• Election law is complicated
• Equality of voting power is the controlling factor

94
School Board Meetings

• Procedures
• Executive sessions
• Voting
• Minutes and records
• Quorum
• Notice of meetings
• Bylaws

95
Chapter 5

• Church and State

96
Review Questions

• The police power of the state refers to the fact
  that each state has not only the duty, but the
  responsibility to provide for the health, safety,
  and general welfare of its people.
• Common law specifies that all school board
  meetings must be open to the public regardless of
  whether or not the state has sunshine laws in
  effect.
• Local school boards are part of a state agency.

97
Review Questions

• State constitutions in every state make
  provisions for public schools.
• Nepotism is prohibited by the constitution as
  applied to contracts where spouses or immediate
  family are involved.
• The Hortonville case determined that a board may
  sit in judgment of a case to which it is a party.

98
Review Questions

• Local school boards and other public agencies are
  classified as having three functions fill in.
• Executive, quasi-judicial, and quasi-legislative

99
Church and State

• This year the US Supreme Court decided the
  Cleveland case
• Church and state issues have been most volatile
  over history
• Jeffersons idea of a wall of separation that
  sounded so simple and so good at the time has
  become a quagmire today

100
History

• Founding fathers came here to escape religious
  persecution and subsequently, persecuted others
  (go figure)
• This idea of government not being involved in the
  church was so important that it came (later) to
  be a part of the Federal case law Reynolds v.
  United States, 1879 USSCt.
• The original idea was not to mention religion in
  the new Constitution

101
History

• Pinckney (SC) convinced the Constitutional
  Convention to include a provision not to have a
  religious test for public office the last
  clause.
• As the new states either ratified, refused to
  ratify, or proposed amendments, the first
  amendment became pivotal to the Constitution.

102
First Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the rights of the
  people peaceably to assemble and to petition the
  Government for a redress of grievances.

103
Founding Ideas

• Jefferson and Madison writing back and forth
• Jefferson writing to the Danbury Baptists in 1802
  used the phrase building a wall of separation
  between church and State.
• Generally held concept

104
First US Supreme Court Case on Religion and State

• Reynolds v. United States, 1879 used Jeffersons
  terms wall of separation
• From that time this became the rule of law
• It would be tested repeatedly for the next 122
  years
• Public and parochial schools were widespread and
  diverse in the early US

105
Cases

• Everson v. Board of Education, 1947 US Supreme
  Court
• New Jersey had a provision in its laws allowing
  for parents to be reimbursed for bus fare if they
  attended parochial school
• Mr. Everson, a taxpayer, did not like this idea
  and saw it as public funding of religious schools
  violating the establishment clause
• Such reimbursements do not violate establishment

106
Board of Ed. of Central School District No. 1 v.
Allen, 1968

• US Supreme Court ruling coming out of NY
• NY State law required school districts to loan
  textbooks to students in grades 7-12 who attended
  private schools (including religious)
• School Board felt this violated the establishment
  clause and sued James Allen a resident who was
  using the texts

107
Allen

• US Supreme Court found that the NY law does not
  violate the First or 14th (equal protection)
  amendments.
• The State Constitution was framed this way it
  applies only where such legislation is passed.

108
But

• This started to pose some difficult questions to
  the courts.
• Where is the line drawn? Books, busing, tuition?
• States needed some direction and they found it
  from the Supreme Court in Lemon v. Kurtzman, 1971

109
Lemon v. Kurtzman

• PA and RI both provided salary supplements (15)
  and purchase of services to private, religious
  schools
• Parties sued over the establishment clause and
  the 14th amendment
• The case established a three-pronged test to
  determine if a state statute is constitutional

110
Lemon v. Kurtzman

• RI and PA established the new statutes in
  reaction to the vagueness of the Allen case
  discussed earlier
• The court found to be constitutional
• 1) the statute must have a secular purpose
• 2) its principal purpose must neither advance nor
  inhibit religion
• 3) must not foster excessive government
  entanglement with religion

111
Right Away States Made Changes, but to get around
law

• Levitt, 1973 court ruled that services purchased
  (grading, compiling reports, administration,
  etc.) while not audited, aided religion No can
  do
• State legislature changed the wording to actual
  cost of services and in Regan (1980) the SC found
  it was OK

112
Nyquist, 1973

• State wanted to give monies to non-public schools
  for facility maintenance, tuition reimbursement,
  and tax credits
• SC found this advanced religion and had excessive
  entanglement with government

113
Tax Credits/Deductions

• 1972, Ohio. Parental reimbursement grant found
  unconstitutional
• 1979, New Jersey. SC found tax benefits to
  non-public school parents unconstitutional
• Mueller v. Allen, Minnesota, 1983. Provided for
  tax relief for parents of public and non-public
  school parents. SC affirmed the state statute
  as a benefit to all parents

114
Tax Credits/Deductions

• Grand Rapids v. Ball, 1985
• Offered benefits to parochial schools via shared
  time, resources, and education programs
• Courts found this fostered religion

115
Tax Credits/Deductions

• Aguilar v. Felton, 1985
• Title 1 funds used to provide services for
  qualified students in the parochial school
  building
• Found to be excessive entanglement

116
Establishment

• Kiryas Joel Village v. Grumet, 1994
• Strict Jewish sect in a NYC community was the
  predominant culture for a school. The School
  Board carved out a special district just for this
  religious group and it became its own
  independent, free district to chose texts, etc.

117
Establishment

• Grumet, a taxpayer sued saying this action
  violated the establishment clause and provided
  tax support for parochial schools
• This had been signed into legislation
  overwhelmingly by the state legislature and
  endorsed by the Governor
• SC ruled that this state statute violated
  establishment clause

118
Establishment

• Remember Aguilar v. Felton, 1985? Using Title 1
  funds to provide services within parochial
  schools?
• Agostini v. Felton, 1997 changed all that.
  Justice OConnor stated that Aguilar is no longer
  good law
• Payment of Title 1 teachers in parochial schools
  is permissible, however, the LEA must retain all
  materials, control, must be secular.

119
Establishment

• Mitchell v. Helms, Louisiana, 2000.
• Chapter 2 funds used to service students in
  parochial schools
• Chapter 2 allows for loaning texts and materials
  to private schools. Does that preclude parochial
  schools?
• SC ruled this does not violate establishment
  clause in light of Agostini v. Felton

120
Establishment

• Remember
• All these decisions are based on state
  constitutions and the law of the state versus the
  law of the land
• If a state has strict language in its
  constitution regarding anti-establishment, it
  will be unlikely that establishment will be
  allowed.

121
Dickman v. School District No. 62 C, 1961

• Equity suit issued by parents not wanting public
  school funds used to supply texts to parochial
  school students
• Supreme Court of Oregon interpreting its
  constitution
• Giving texts can not be justified on child
  benefit theory

122
McCollum, US Supreme Ct, 1948

• Two issues brought here
• Release time for religious education
• Release time using school facilities violates
  establishment

123
Zorach v. Clauson

• US Supreme Court, 1952
• Similar case to McCollum except
• Release time was off school premises
• Release time not using school facilities does not
  violate establishment

124
Abington Township v. SchemppMurray v. Curlett

• US Supreme Court, 1963
• States had mandatory Bible reading and prayer in
  school
• Madeline Murray
• Court ruled state-enforced prayer and Bible
  reading were unconstitutional

125
Wallace v. Jaffree

• US Supreme Court, 1985
• Alabama case involved a minute of meditation or
  silent prayer at school each morning
• Teachers were to lead willing students in a
  prescribed prayer to Almighty God, Sustainer,
  the Creator, and Supreme Judge of the world.
• Violates the establishment clause

126
Lee v. Weisman

• US Supreme Court case, 1992
• Rhode Island case where non-sectarian prayers
  were offered by clergy at graduation
• Not a first amendment issue
• Establishment issue
• As such, this practice is unconstitutional

127
Santa Fe ISD v. Doe

• US Supreme Court, 2000
• New Mexico case
• First regulation required prayer before football
  games
• When challenged, changed to student-led,
  student-initiated prayer
• Ruled that this violated the establishment clause

128
Equal Access Act

• Congress passed the EAA in 1984 based on a case
  where the University of Missouri denied a
  religious group the use of school facilities
  based on establishment clause
• In 1990, the US Supreme Court upheld this act in
  a Nebraska case, Westside Community Schools v.
  Mergens

129
Mergens

• Bridget Mergens asked the principal of her high
  school to start a Christian club (1985)
• He denied this based on the establishment clause
• Mergens appealed the decision based on the
  federal EEA
• Ruled that if student groups exist, all students
  can have a club even if religious, political, or
  philosophical

130
Follow-up to Mergens

• HSU v. Roslyn Union Free School District, 1996
• Christian club established
• Could only born-again Christians be the officers?
• School denied charter for the club based on
  exclusivity of officer selection
• Court ruled officers essential to meaning of club
  and to deny charter would violate EAA

131
Lambs Chapel v. Center Moriches Union FSD, 1993

• Supreme Court case involving NY school district
  policy regarding use of school facilities
• Policy stated welfare of the community,
  non-exclusive, and open to the general public.
  It did not permit religious meetings
• Case involved a church showing a film on child
  rearing by James Dobson
• In not permitting religious meetings, were their
  first amendment rights violated?
• SC ruled 1st amendment rights violated

132
West Virginia v. Barnette

• West Virginia case to Supreme Court, 1943
• What were we in the middle of in 1943?
• Failure to salute the flag was deemed an act of
  insubordination and would be dealt with
  accordingly seemed OK in light of Gobitis
  decision (PA case salute was political
  responsibility even if religious conviction)
• Students in question were Jehovahs Witnesses.
  Saluting was contrary to their beliefs.

133
West Virginia v. Barnette

• Court overturned the Gobitis decision and stated
  there were distinct differences
• Court ruled that requiring a flag salute violates
  1st amendment rights
• See last paragraph, first column, page 226

134
Trends

• Jeffersons wall of separation is deteriorating
• Judge Scalia called for the overturn of Lemon
  test
• We will have to see what the Supreme Court has to
  say about Clevelands situation

135
Chapter 6

• School Attendance

136
Review

• The Establishment Clause and the Free Exercise
  Clause in the U.S. Constitution are found in the
  Tenth Amendment.
• A teacher may hold prayer in the classroom each
  morning if the prayer is not state promulgated.
• Students are not required to salute the flag if
  it is contrary to their religious beliefs.

137
Review

• Loans of textbooks to parochial schools does not
  violate the Establishment Clause of the First
  Amendment.
• Public funds for transportation of parochial
  school students does not violate the Federal
  Constitution.
• The three-pronged test for determining the
  Constitutionality of state aid to parochial
  schools was identified in what Supreme Court case?

138
Review

• The Bible can be used in public schools for its
  literary and historic qualities.
• Student-initiated prayer at graduation and
  football games is Constitutional.
• Religious instruction on public school grounds is
  constitutional if those who object do not have to
  attend.

139
School Attendance

• What gives the State the right to require under
  penalty of law to mandate all children attend
  school?
• What gives the State the authority to put me in
  jail if I keep my children out of school?
• STATE PREROGATIVE

140
STATE PREROGATIVE

• Exclusive or official right to do something
• The State has the right and duty to make certain
  its people are educated if only for their own
  protection.
• We hospitalize individuals for their own
  protection. Restrain, medicate,
  institutionalize, etc.

141
STATE PREROGATIVE

• Elevation of society
• Protection of democratic republic
• Protect liberty
• Required education is justified on the grounds of
  individual and societal interest.

142
STATE PREROGATIVE

• Required in each State Constitution that minimum
  levels be established
• That does not prohibit going above the minimum
  level
• While the State can require education, it can not
  arbitrarily omit persons from education

143
Restrictions

• Purpose-related exclusions
• Residency (place of abode with no present
  intention of leaving)
• Most now domicile
• Not citizenship or alien status

144
Cases

• Plyler v. Doe (1982) U.S. Supreme Court
• Interesting case. In 1975 Texas was spending in
  excess of 50 million in educating illegal
  aliens. The Texas legislature passed a law
  stating that localities should withhold
  educational services to illegal aliens.
• After all, illegal entry into the US is a crime

145
Plyler v. Doe

• Texas is spending money to educate illegal aliens
  (Martians?)
• It did not seem a wise investment of taxpayer
  dollars.
• ACLU and Legal Aid sued under the 14th amendment
  which says
• No State shall deprive any person of life,
  liberty or property, without due process of law
  nor deny to any person under its jurisdiction the
  equal protection of the laws.

146
Plyler v. Doe

• Texas said these aliens were not under their
  jurisdiction
• ACLU and Legal Aid said yes, they were and
  denying them an education was not equal
  protection under the law.
• What did the Supreme Court say? Guess!
• Court said
• We agree with ACLU

147
Martinez v. Bynum

• Involved residency requirement
• US Supreme Court, 1983
• Basically, two Mexican citizens had a son born in
  Texas which made the boy an American citizen
• Parents lived in Mexico
• Sent son to Texas to live with sister and attend
  school

148
Martinez v. Bynum

• The sister did not want to become guardian
• They all wanted the boy to attend school in Texas
• Texas law said parent, guardian, or one having
  legal control.
• Court said residency requirements were legal and
  the boy was not a resident

149
Compulsory Attendance

• First in 1853, Mass. and 1854 in NY
• In schooling and other areas, the State has
  control over issues above the parents
• Child labor was a factor
• Alabama had child labor law on books in 1887. It
  was repealed in 1895 when a Massachusetts company
  demanded its removal conditional to moving there.

150
Milton Friedman

• Nobel laureate economist
• Free to Choose
• Wanted to overturn compulsory attendance laws
• Why learn if you do not want to or need to?
• It is a general welfare issue as such, legal.

151
Pierce v. Society of Sisters, 1925

• US Supreme Court case
• Oregon was to enact a law requiring all parents
  to send their child to public schools
• Exceptions noted
• An orphan home, run by the Society of Sisters,
  operated a school within the home for years with
  good success and money.

152
Pierce v. Society of Sisters, 1925

• Society sued the State saying compulsory
  education laws were already on the books
• They complied
• This would force the children elsewhere and close
  the orphanage
• State court ruled in favor of the State law
• Supreme Court disagreed

153
State of Wisconsin v. Yoder

• US Supreme Court case, 1972
• Parents were Old Order Amish
• Wisconsin had compulsory attendance to age 16
• After a thorough investigation of the churchs
  beliefs, history, and values the Supreme Court
  sided with the parents in not requiring more than
  grade 8 attendance in public school

154
Johnson v. Charles City

• Supreme Court of Iowa, 1985
• US Supreme Court chose not to hear the case
• A Fundamental Independent Baptist Church operated
  a school Calvary Baptist Christian Academy
• The school and church
• 1) did not want to comply with the State
  oversight, and

155
Johnson v. Charles City

• 2) wanted relief under the Yoder case so as to
  attend only through grade 8.
• The court ruled that the State has a prevailing
  (albeit minimal) interest in oversight and that
  can not be relinquished.
• As to Yoder, the court did not find a compelling
  history, value, and belief system present.

156
Home Instruction (Schooling)

• Growing area of interest state issue
• Estimated that 3-5 of parents now home school
  their children although that number may be high
• Change in demographics
• States can regulate home instruction as a private
  school, but burden of proof is on the school to
  show inadequacies

157
Swanson v. Guthrie, 1998

• US Court of Appeals, 10th Circuit
• Not heard by SC on appeal
• Annie Swansons parents home schooled her for
  religious reasons. As she got older (7th grade)
  the Guthrie Public Schools could teach some
  things better than the parents could

158
Swanson v. Guthrie, 1998

• Annie was allowed to attend
• Next year (and new Superintendent) School Board
  denied the request and adopted a policy of
  full-time students only
• Could set a dangerous precedent
• Sports, state funding, testing, etc.
• Parents sued

159
Swanson v. Guthrie, 1998

• Parental rights issue
• Definitive case
• Parents wanted the right to direct their childs
  education
• They felt they knew best and the school system
  should not have the final say
• Court agreed with the school system

160
Murphy v. State of Arkansas

• 1988 US Court of Appeals case from the 8th
  Circuit
• The Murphy family are devout Christians who
  believe it is the parents responsibility to
  provide for the educational needs of the children
• They home schooled their six children

161
Murphy v. State of Arkansas

• Arkansas has a provision for home schooling that
  requires standardized testing and at age 14, a
  minimum performance test.
• If the standardized testing or the MPT do not
  place the student within eight months of grade
  level, the student must be enrolled in a public,
  private, or parochial school.
• No such provision exists for the non-public
  schools

162
Murphy v. State of Arkansas

• The Murphys claim that their right to free
  exercise of religion, due process, and equal
  protection were violated in this case
• Courts ruled with Arkansas
• Curriculum and testing are not heavily restricted
• Compelling State interest in general welfare
  takes precedence

163
Maack v. Lincoln SD

• 1992 Supreme Court of Nebraska case
• Children attended school without immunization for
  measles
• Measles outbreak and the Maack children (along
  with 79 others) were excluded from school until
  the outbreak was over or until immunized

164
Maack v. Lincoln SD

• Maacks stated they would not immunize their
  children and further the law did not allow
  exclusion from school
• Claimed unequal protection under law
• Court ruled that State had priority in the
  general welfare of Maack children and others.
• Supreme Court refused to hear the case

165
Chapter 7

• The Instructional Program

166
Instructional Programs

• Schools are a marketplace of ideas
• BUT The State has ultimate authority in
  prescribing curriculum and method of delivery
• Two overarching tenants
• Robust exchange of ideas, and
• Judges are not experts in education

167
Andrews v. Webber

• 1886, Supreme Court of Indiana case
• The local school system required the study of
  music
• Father requested his son be excused
• Request denied by Superintendent
• Son refused to participate and was suspended

168
Andrews v. Webber

• Parent appealed and lower court reversed the
  decision
• School appealed and the decision was overturned
• Schools have the right to set curriculum
• Parent had to pay court costs

169
Meyer v. Nebraska

• 1923 US Supreme Court case
• A Nebraska statute forbade the instruction of
  foreign language until grade 8 and English was
  the only language to use
• A parochial school teacher taught a bright
  ten-year-old boy German

170
Meyer v. Nebraska

• The law was established so immigrants would speak
  English and be acculturated into American society
• Court ruled that this violated the 14th amendment
  (due process) as it deprived the student of the
  property of acquired knowledge
• Court ruled that language is learned early and as
  this and 14th , reversed the Nebraska law

171
Steirer v. Bethlehem

• US Court of Appeals, 3rd Circuit, 1993
• US Supreme Court refused to hear
• School district required 60 hours of community
  service for graduation
• Parents and student claimed this violated 1st,
  14th, and 13th amendment (abolishing slavery)
• Court said rights not violated

172
Pico

• US Supreme Court case, 1982
• A biggie on 1st Amendment
• New York case involving objectionable books in
  the libraries of the Junior and Senior High
  Schools
• Books were removed and screened by a committee

173
Pico

• When this hit the press, the school board stated
  the books were anti-American, anti-Semitic, and
  filthy
• Court ruled that the library is a repository of
  ideas and that 1st amendment ideas should
  flourish here
• Nothing is changed in the way books are added
  just removed
• Court ruled School Boards can not remove books
  just because they dislike ideas in them

174
Post-Pico Virgil v. Columbia

• US Court of Appeals, 11th Circuit, 1989
• Parents objected to a Humanities class where
  Chaucer and Aristophanes were part of the
  required reading
• School Board removed the objectionable material
• Other parents filed an injunction against
  removing the material

175
Virgil v. Columbia

• Court ruled that per Hazelwood, the curriculum
  had the imprimatur of the school a de facto
  endorsement of the content
• Court ruled that Board could alter the curriculum
  and not be in violation of Pico
• Supreme Court declined to hear

176
Mozert v. Hawkins County, TN

• US Court of Appeals, 6th Circuit, 1987
• County adopted Holt, Rinehart and Winston reading
  series in grades 1-8.
• Mother objected to content in reading series as
  anti-Christian
• Principal designed an alternative series
• Next year the Board eliminated alternative
  reading series

177
Mozert v. Hawkins County

• Parents sued
• Court found that participation beyond reading was
  not evidenced
• Tolerance of divergent religious views by Supreme
  Court is civil, not religious. This reading
  program did not require belief, just reading
• Reading program stayed

178
Brown v. Woodland

• US Court of Appeals, 9th Circuit, 1994
• Whole language approach used in this California
  district
• More than 10,000 titles in grades one through six
• 32 were challenged as occult-oriented and
  endorsed the religion of Wicca

179
Brown v. Woodland

• Court ruled that 32 of 10,000 is minor
• This does not violate the Establishment clause
• Other religions mentioned Christianity included
• Court ruled with school system

180
Cornwell v. State Board of Ed.

• US District Court, 4th Circuit not heard by US
  Supreme Court
• State Board can prescribe a sex education program
  for all school divisions in the State
• Sex ed does not establish religious dogma or
  precept

181
Keefe v. Geanakos

• 1st US Circuit Court of Appeals, 1969
• Senior Honors English class had a copy of
  Atlantic magazine with the word bastard
  included in the text reading
• School Board called teacher in and asked that
  this not be used again
• He declined, was suspended, and recommended for
  dismissal

182
Keefe v. Geanakos

• Convoluted case
• Teacher could sue for damages
• Court ruled that in context there is limited
  academic freedom
• Dirty word can be used if it is used for a
  demonstrated educational purpose

183
Fowler v. Bd. of Ed.

• US Court of Appeals, 6th Circuit, 1987
• Teacher showed an R rated film (Pink Floyd The
  Wall) on the last day of school to her students
  age 14-17
• A student was to block out nudity
• Parents objected
• Teacher was terminated

184
Fowler v. Bd. of Ed.

• Lower court ruled teacher behavior was protected
  under 1st Amendment
• Higher Court disagreed
• No job
• No back pay

185
Epperson v. Arkansas

• US Supreme Court, 1968
• Arkansas enacted legislation making it a crime to
  teach evolution
• Statute violated 1st Amendment

186
Edwards v. Aguillard

• US Supreme Court, 1987
• Louisiana statute required teaching creation
  science with teaching of evolution in a balanced
  manner
• If one is taught or mentioned, the other must be
  treated equally
• Violates Lemon and Establishment

187
Lau v. Nichols

• US Supreme Court case, 1974
• San Francisco did not provide instruction for
  non-English speaking students (Chinese)
• Violated CRA of 1964
• Either teach ESL or hire a translator for most
  children
• ESL was chosen

188
Basically

• Courts allow great latitude to school boards in
  curriculum unless rights are deprived
• Courts are very hesitant to become experts in
  education
• Use common sense
• Even though common sense is not all that common!

189
Chapter 8

• Student Rights

190
Student Rights - Overview

• As a general rule there is a lack of certainty
  with regard to student rights and the courts
• Common law establishes authority of schools under
  the general welfare
• As such, schools must have wide latitude of
  authority for controlling the learning atmosphere
  and behavior

191
Common Law

• This authority must be tempered with and inherent
  concern for constitutional rights of students and
  a reasonableness and humaneness of action
• 1878 Case (Burpee v. Burton) stated how we
  operate in loco parentis
• HOWEVER not fully in the place

192
Due Process

• 14th amendment guarantee
• Substantive
• Procedural
• Both are critical in the court rulings on common
  law authority of schools to act in the place of
  parents
• These ideas are generally inviolate

193
Substantive Due Process

• This idea was debated by the framers of the
  Constitution
• Generally held that if life, liberty, or property
  is taken this can not be done in violation of
  constitutional rights of the individual
• In other words, if the Constitution gives the
  right of assembly, assembly can not be denied a
  group based on whether or not someone agrees with
  the ideals of the group

194
Substantive Due Process

• In schools, this becomes more complex
• Students give up some rights when they enter the
  school house
• Here reasonableness is a key issue
• A balance must be struck between control and the
  general welfare and the rights of the individuals
  in school

195
Procedural Due Process

• Same base as substantive
• Goes back to the Magna Carta
• Two basic tenets in procedural
• Rule against bias
• Right to a hearing

196
Substantive Due Process

• Originally designed for courts
• In 1961 (Dixon) applied to schools or
  quasi-judicial procedings
• Provides for fundamental fairness and opportunity
  for each side to present its case
• Many court cases revolve around this issue

197
Wiemerslage v. Maine

• U.S. 7th Circuit Court of Appeals, 1994
• Area was posted as no loitering
• Students were loitering discussing afternoon
  plans and names taken by security officer
• Suspended for 3 days
• Plaintiff appealed and sued claiming loitering
  was unconstitutionally vague

198
Wiemerslage v. Maine

• Claimed violation of 1st and 14th amendment
  substantive due process violated
• Court disagreed
• Court of appeals disagreed
• Policy was designed for public and student
  protection

199
Dunn v. Fairfield

• U.S. Court of Appeals, 7th Circuit, 1998
• School rules did not allow for guitar solos at
  band concerts and did not allow students to
  deviate from the performance schedule
• Four students (seniors) did just that
• Resulted in an F for students and they did not
  graduate with honors

200
Dunn v. Fairfield

• Plaintiffs claimed this violated substantive due
  process 1st amendment free speech
• Both courts disagreed
• Court of Appeals questioned the reasonableness
  of the rules, but conceded it was under the
  purview of the school

201
Goss v. Lopez

• U.S. Supreme Court, 1975
• Nine students were suspended from Columbus
  schools for misbehavior
• State code allowed suspension of up to 10 days or
  expulsion
• If expulsion, students could appeal
• No appeal or hearing for suspension

202
Goss v. Lopez

• Court ruled that there was a constitutional right
  to an education