On average, a teacher violates the law on a daily or weekly basis. Why? Because approximately 75 percent of everything that a teacher does in a typical school day is affected by school law. These violations are generally not intentional, but result from a misunderstanding or lack of knowledge that a law exists. This makes sense after one understands the vast expanse of school law: all of the statutory law, case law, and statutory regulations that affect school districts, certified and noncertified employees, students, and taxpayers as they relate to the operation of a school district.
The goal of this entry is twofold: (1) to provide a basic overview of school law, and (2) to heighten awareness of the role the law plays in the school as well as its impact on K–12 educators. Consequently, this entry will serve to heighten awareness that schools function in the midst of a complex legal environment that affects all aspects of public education.
Legal Impact On Schools
Public schools do not operate in a vacuum. They function in an environment that is responsive to external factors, which include parents, the business sector, and the religious community. One increasingly important external influence is the law. It is undeniable that statutes, regulations, and case law are now becoming major factors shaping public education.
As external groups attempt to monitor public education, there is an accompanying concept that state legislatures are enacting more statutes to regulate public education. For example, in 2006 alone, the Illinois General Assembly enacted more than sixty-five new laws that affected public education. To appreciate the extensive scope of school law, it is necessary to understand the numerous sources of laws that affect public education.
The U.S. Constitution does not address public education. More specifically, the word “education” is not found in the Constitution. Therefore, according to its Tenth Amendment, any powers not delegated to the federal government are reserved for the states. Therefore, education is an issue for which states have primary responsibility.
Despite the lack of expressed constitutional authority to govern education, however, the federal government— specifically, the executive and legislative branches—has a significant impact on public education. Specifically, legislative acts such as No Child Left Behind and the Individuals with Disabilities Education Act are federal statutory provisions with which state and local educators must comply. How can this occur if the federal government does not have any reserved powers to govern education? The answer is “money.” The federal government can require certain actions by conditioning federal monies to schools upon compliance with its specifications. Thus, a state or local school district could decline the money and be free of the federal requirements, but for most districts, it is not financially feasible to bypass the federal financial assistance.
Each of the fifty states has a constitution that provides a framework for how it will provide free public education to elementary and secondary students. Most state constitutions include a provision on how public schools will be funded as well as a statement regarding the educational and curricular goals for local schools.
The legislature of each state plays a tremendous role in shaping public education via the enactment of statutory laws that affect state, regional, and local educational agencies. It is essential to realize that local schools can operate only within the parameters the state sets forth for local schools. Statutes are often broad policy statements and do not contain the specific directions necessary to operationalize the policy. For instance, one state enacted a law that there would be state curricular standards for all public schools, but did not provide the specific standards for each curricular area or grade level—it was left to the state educational agency to create regulations to make the statute functional.
Key Legal Issues For Teachers
Throughout the United States, certain legal issues continue to come to the forefront in public school districts. These are discussed briefly here.
As we live in an increasingly litigious society, the issue of liability is of growing concern to school districts as well as school employees. Civil liability is the type of liability most often incurred by school districts and employees. It is a noncriminal liability (usually monetary damages) and consists of either tort or contractual liability. A tort is a private injury, other than a breach of contract, for which the law provides a remedy in an action for damages. The two types of tort most often alleged in a school setting are negligence and intentional (willful/wanton) misconduct.
Negligence is the failure to exercise that degree of care that an ordinary person would exercise under similar conditions. The elements for negligence are (a) a legal obligation that a school or employee owed a victim, (b) a breach of that obligation, and (c) damages that proximately result. In other words, negligence is liability that results from an “accident” that should not have occurred had employees been doing their job correctly. Most states have some type of statutory protection for school districts and their employees against liability for negligent actions.
On the other hand, intentional (willful/wanton) misconduct is an intentional act or an act committed under circumstances exhibiting a reckless disregard for the safety of others. It may also include the failure to exercise ordinary care to prevent injury after knowledge of impending danger. This results in personal liability because the employee acted unreasonably or in a manner outside of his or her official capacity.
Under federal law, public schools have an obligation to provide a free and appropriate public education for all students between the ages of 3 and 21. Dating back to 1975, the federal government has taken the lead to ensure that students with a disability receive an individualized education program to determine an appropriate education in the least restrictive environment with their nondisabled peers. In 2004, Congress made its most recent reauthorization of the law, the Individuals with Disabilities Education Act.
Parents of students with a disability who believe their child is not receiving adequate educational services can contest the level of services being offered by the public school. Federal law provides for a due process hearing in which an impartial hearing officer will hear the case and render a binding decision. Ultimately, the case can be reviewed by a federal district court. Depending upon the nature of the disability, students can also be afforded benefits under the Americans with Disabilities Act or Section 504 of the Rehabilitation Act.
As noted in the famous 1969 Supreme Court case, Tinker v. Des Moines School District, students do not lose their constitutional rights once they enter the school grounds. Granted, their rights are not co-terminus with adults’ constitutional rights, but nonetheless, students still have constitutional protections. In the school environment, the most frequently used protections are those in the First, Fourth, and Fourteenth amendments to the U.S. Constitution.
The First Amendment protects employees’ and students’ rights to freedom of press, petition, assembly, religion, and most notably, speech. Students sometimes erroneously believe they have unabridged rights to free speech. This right, however, is not absolute or without limitation. Courts have consistently held that the legal standard is to find the balance between preserving the educational integrity of the school versus protecting the speech rights of students.
The specific legal standard a court must employ depends upon the nature of the student speech. Courts have developed three categories of student speech: (1) student communication that takes place at school, but not as part of the curriculum; (2) communication that is part of a school program/curriculum; and (3) non-school-sponsored speech occurring off-campus. Curricular speech can be most easily regulated, whereas speech occurring totally off-campus (no “nexus” to the school) is afforded the most legal protection. All other speech occurring at school can be regulated only if it causes a material and substantial disruption to the educational environment.
The other major First Amendment protection relating to public education deals with religion. The First Amendment to the U.S. Constitution provides that Congress “shall make no law respecting an establishment of religion” and, furthermore, that it will “make no law … prohibiting the free exercise thereof.” The primary accusation, though, is that a school official has taken an action that infringes upon the district’s perceived obligation to be “religion free.” This concept, however, is not consistent with case law, which clearly provides that schools are to be neutral toward religion. In practice, school officials have great difficulty implementing neutral policies toward religion. Such difficult issues often include distribution of literature and use of school facilities by religious organizations.
The Fourth Amendment protects students from “unreasonable” search and seizure. The reasonableness of a search in the school context is determined by balancing the student’s legitimate expectation of privacy (when such expectation exists) against the need of the school to perform the search to maintain order and discipline. Case law provides that school administrators do not need the same level of proof to search a student (or his or her personal effects) as would a law enforcement officer. Specifically, school officials need only “reasonable suspicion” that a crime or violation of state law or school rule has been or is about to be committed. In reviewing the legality of a search, courts must ensure that the search was justified at its inception, and that it was reasonably related in scope to the circumstances that originally justified the search (given the age and sex of the student as well as the nature of the infraction). The U.S. Supreme Court has extended permissible school searches to include the use of random urinalysis drug testing of extracurricular participants.
Finally, the Fourteenth Amendment provides public school employees and students the benefits of due process as well as equal protection of the law. The equal protection clause protects classifications of people and ensures that “similarly situated” people are not treated differently. The level of review that a court will afford an equal protection allegation depends upon the status of the victim. Only victims that are considered a “suspect classification” (based upon race, national origin, sex, or alienage) receive the highest level of scrutiny.
Regarding the due process clause, the Constitution provides that due process be afforded before there is a deprivation of “life, liberty, or property.” Procedural due process consists of two primary components: notification of the complaint against you as well as an opportunity to respond to those charges. The extensiveness of the notice and response depends upon the severity of what the accused could be deprived of. For example, a student who is about to be suspended from school will have a lesser expectation of due process than would a tenured teacher who might be terminated. That stands to reason because of the detailed procedures the law provides to terminate a tenured teacher.
- Alexander, K., & Alexander, M. D. (2005). American public school law (6th ed.). Belmont, CA: Thomson-West.
- Fischer, L., Schimmel, D., & Stellman, L. R. (2003). Teachers and the law (7th ed.). Boston: Allyn & Bacon.
- McCarthy, M. M., Cambron-McCabe, N. H., & Thomas, S. B. (2003). Public school law: Teachers’ and students’ rights (5th ed.). Boston: Allyn & Bacon.
- Valente, W. D., & Valente, C. M. (2005). Law in the schools (6th ed.). Upper Saddle River, NJ: Prentice Hall.
- Yell, M. L. (2006). The law and special education (2nd ed.). Upper Saddle River, NJ: Prentice Hall.
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