Legal considerations and education
•Als PPTX, PDF herunterladen•
3 gefällt mir•1,657 views
Program administrators need comprehensive training. The Georgia 40-Hour Director's Training credential provides an excellent overview. http://altheapenn.tripod.com/id20.html
Empfohlen
Empfohlen
Weitere ähnliche Inhalte
Was ist angesagt?
Was ist angesagt? (20)
Andere mochten auch
Andere mochten auch (20)
Ähnlich wie Legal considerations and education
Ähnlich wie Legal considerations and education (20)
Mehr von Althea Penn, M.Ed.Adm, ODP, PDS, NAC
Mehr von Althea Penn, M.Ed.Adm, ODP, PDS, NAC (15)
Legal considerations and education
- 1. Legal Considerations and Education Professional Summary Althea Penn August 21, 2012
- 2. Introduction • Legal Framework for Public Education • Federal Role in Education • State Role in Education • The Law and Professional Personnel • Tort Liability • The Law and Students • Classification Practices
- 3. Legal Framework of Public Education • All three units of government – federal, state, and local-exercise authority over public education
- 4. Federal Role in Education • The United States Constitution – States given power over education through the Tenth Amendment • Federal Statutes – Elementary and Secondary Education Act of 1965 – No Child Left Behind Act of 2002 – Civil Rights Acts of 1964 & 1991 • Federal Administrative Agencies – Department of Education – Office of Civil Rights – Equal Employment Opportunity Commission – Environmental Protection Agency
- 5. The U.S. Constitution • The Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
- 6. The First Amendment • Congress shall make no law respecting and establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.
- 7. The Fourteenth Amendment • Historical Background • “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive 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.” • Procedural vs. Substantive Rights
- 8. State Role in Education • State Constitutions • State Statutes • State Administrative Agencies • Local Level (school districts and service centers)
- 9. Judicial Role in Education – Court System Federal Courts U.S. Supreme Court U.S. Circuit Courts (13) U.S. District Courts (89) State Courts State Supreme Court Intermediate Appellate Courts Courts of General Jurisdiction (Superior and Circuit Courts) Courts of Limited Jurisdiction (Municipal and Small Claims)
- 10. The Law and Professional Personnel • Certification • Contracts – Offer and acceptance – Competent parties – Consideration – Legal subject matter – Proper form • Termination of Employment – Tenure – Dismissal Procedures
- 11. Discrimination in Employment • Race and Gender – Title VII f the civil Rights Act of 1964 • Sexual Harassment – Title VII of the Civil Rights Act of 1964 – Quid pro quo sexual harassment – Hostile environment sexual harassment • Disabilities – Americans with Disabilities Act of 1973 – Section 504
- 12. Sexual Harassment • Litigated under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 • Includes – Sexual bribery – Sexual imposition – Gender harassment – Sexual coercion – Sexual behavior Discourage with: No-tolerance policy Wide dissemination of policy Easy complaint filing Prompt and objective investigation Appropriate remedial action
- 13. Discrimination in Employment • Age Discrimination (ADEA) – Title VII f the civil Rights Act of 1964 • Religious Discrimination – First Amendment – Fourteenth Amendment – Title VII f the civil Rights Act of 1964 – EEOC • Maternity Discrimination – Fourteenth Amendment – Family and Medical Leave Act of 1993 – Americans with Disabilities Act of 1973 – Section 504
- 14. Tort Liability Tort = civil wrong (not contracts) for which a court can award damages To establish negligence: Duty Standard of care Proximate cause Injury Defense against negligence: Contributory negligence Assumption of risk Comparative negligence Governmental immunity
- 15. The Law and Students School Records Equal Access Act Released Time for Religious Instruction State Aid to Private Schools School Fees Transportation Textbooks, Courses, and Supplies Extracurricular Activities • School Improvement – No Child Left Behind Act of 2001
- 16. The Law and Students Compulsory School Attendance Residency Requirements Vaccinations Curriculum Students with Aids Freedom of Expression Prayer and Bible Reading Discipline Corporal punishment Expulsions and Suspensions Search and Seizure Student Appearance Freedom of Speech and Press Freedom of Association and Assembly
- 17. Student Classification Practices Fourteenth Amendment • Gender • Marriage and pregnancy • Age • Ability • The Disabled
- 18. The Law and State Issues • School Desegregation • Church-State Relations – Free exercise clause • Vouchers • School Prayer and Bible Reading – Lemon v. Kurtzman • Released Time for Religious Instruction • Religion in the Curriculum – Lemon Test – First amendment Creation v. Evolution • Use of Facilities – Equal Access Act
- 19. Financing Education • State School Taxes – Fiscally Independent – Fiscally Dependent – Brown v. BoE Topeka – Educational Needs Standard – Fiscal Neutrality Standard – The Rodriguez Case
- 20. Summary • Federal influence (Constitution, Supreme Court decisions, Congressional enactments) • Constitutional provisions (Article I, Section 10, and the First, Fourth, Fifth, and Fourteenth Amendments) • Litigation topics (desegregation, religion, finance schemes, and sexual harassment) • Supreme Court decisions (corporal punishment, search and seizure, freedom of expression, classification practices-sex, marriage, pregnancy, ability grouping, and handicaps)
Hinweis der Redaktion
- If administrators’ legal decisions are not based on accurate knowledge, it would appear that even those with extensive experience are at risk of encountering legal difficulties. The tendency of school administrators to make decisions based on experience or intuition could lead them into legal difficulty. (p. 197)
- All statutes enacted at the federal, state and local levels as well as state constitutions and local regulations and ordinances are subordinate to the Constitution.The Federal Constitution is distinguishable in its provision to protect fundamental rights of all citizens of the United States. Although the Constitution does not make a reference to education, it does impact the operation and management of schools, particularly with respect to amendments, which protect the individual rights of students, faculty and staff.The state sets the boundaries in its frameworks; the district explicates the goals and objectives for all students; the school develops a program of studies based upon district goals; and the classroom teacher implements and adds to the district curriculum, in the process of developing courses and units that operationalize the district objectives (p. 2).
- The First Amendment contains two essential clauses regarding religion--the establishment clause and the free exercise clause. The establishment clause prohibits the state from passing laws that aid a religion or show preference of one religion over another. The free exercise clause prohibits the state from interfering with individual religious freedoms.The combined effect of these two clauses compels public schools as state agencies to maintain a neutral position regarding religious matters in their daily operations.
- By virtue of the First Amendment to the Constitution, teachers are afforded rights to freedom of expression. Within limits, they enjoy the same rights and privileges regarding speech and expression as other citizens. Free speech by teachers, however, is limited to the requirement that such speech does not create material disruption to the educational interest of the school district. Teachers are afforded First Amendment rights outside the school environment. They may speak on issues that interest themselves and the community as well, even though their speech may not be deemed acceptable by school district officials.
- Statutes represent an act of the legislative branch of government. Statutes are the most abundant source of law affecting public schools. School district policy, rules and regulations are generally based on statutory law. State legislators grant local school boards the authority to adopt and enforce reasonable rules and regulations necessary for the operation and management of schools.
- Case law is generally reflected in judge-made or common law, as distinguished from statutory law. Common law consists of the judgments, opinions and decisions of courts adopting and enforcing preceding usages and customs called precedents. State courts are a part of each state’s judicial system with the responsibility of hearing cases involving issues related to state constitutional law, state statutes, and common law. Many education cases are heard in state courts, because they do not involve a federal question.
- Numerous considerations:Constitutional Rights of TeachersPrivilege doctrineFreedom of Speech and ExpressionPersonal appearanceRight of PrivacyFreedom of religionTeaching the curriculum Terms and Conditions of Teacher EmploymentLocal Board of Education PoliciesState and Federal LawsTruthfulness on application processProfessional Practices Commission/Standards Commission (Georgia)Certification and teaching assignmentsContractsTenureReduction-in-ForceGrievance ProceduresDismissalLiberty and Property interestsStigmatizing ReasonsIncompetence, Insubordination and Neglect of DutyBurden of Proof for non-tenured teachersImmorality issues-moral turpitudeHeterosexual, homosexual conduct with students and non-studentsTransexualityPublic LewdnessFelony-misdemeanorDrugsProcedural Due Process
- It shall be an unlawful employmentpractice for any employeeto fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms and conditions or privileges of employment, because of such individual’s race, color, religion, sex or national origin;The plaintiff carries the initial burden of establishing a prima facie case of employment discrimination.The burden shifts to the defendant to refute the prima facie case by demonstrating that a legitimate nondiscriminatory purpose forms the basis for its actions.If the defendant is successful in its contention, then the burden shifts back to the plaintiff to show that the defendant’s actions were a mere pretext for discrimination. If, of course, the defendant can demonstrate the absence of a discriminatory motive, there is no need for step three. Discrimination based on sex is also covered under Title IX of the Education Amendments Act of 1972, 20 U.S.C. which prohibits sexual discrimination by public and private educational institutions receiving federal funds. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against any otherwise qualified person who has a disability with respect to employment, training, compensation, promotion, fringe benefits, and terms and conditions of employment.The ADA is similar to Section 504 and not only protects students with disabilities but any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded by others as having such an impairment.Section 504 is a federal civil rights statue which protects the rights of persons with disabilities. Section 504 prohibits discrimination against disabled persons, including both students and staff members, by school districts receiving federal financial assistance. Included in the regulations is the requirement that disabled students be provided a free appropriate public education.
- Tort Liability - A "tort" is an injury to another person or to property, which is compensable under the law. Categories of torts include negligence, gross negligence, and intentional wrongdoing. To give rise to a legal claim in tort, an act (or inaction) must satisfy four elements: 1.there must be a legal duty of care to another person; 2.there must be a breach of that duty; 3.the claimant must have suffered damages, and 4.the damages must have been proximately caused by the breach of duty.Intentional torts such as assault, battery, libel, slander, defamation, false arrest, malicious prosecution and invasion of privacy require proof of intent or willfulness; whereas simple negligence, as an unintentional tort, does not require such proof of intent or willfulness.
- In the landmark Tinker case, the U.S. Supreme Court for the first time held that students possess the same constitutional rights as adults and that these rights do not end at the school house door. Protests and demonstrations are considered forms of free expression. Thus, students are afforded the right to participate in these activities.As long as these activities are peaceful, and do not violate school rules or result in destruction of school property, they cannot be disallowed.Student Records, Defamation and PrivacyBuckley Amendment ActPosting of Grades and correcting other students’ papersDefamationLibel and SlanderRight of Privacy Under FERPA, 20 U.S.C. § 1232g, a parent or eligible student has a right to inspect and review the student’s education records and to seek to have them amended in certain circumstances. A parent or eligible student must also provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from education records. Exceptions to this requirement are set forth in § 99.31(a). Student TestingLimitations of the schoolCompetency testsTeaching what is tested
- US Patriot Act While the intent of this act is to address potential terrorist acts in the United States, it does implicate public school in the following manner:School leaders are required under authorized investigations by the FBI to produce books, records, paper documents or other items.The legal authority for defining the curriculum of public schools resides with the legislature. Based on constitutional provisions in a few states, this duty is shared between the legislature and the state board of education. Extracurricular ActivitiesConditions may be attached to participation in extracurricular activitiesStudent Discipline27 states ban corporal punishmentProtection from unreasonable search and seizure must be balanced with the need to maintain a safe school environmentStudents with disabilitiesAs discussed in Chapter 6, a principal must be very aware of the laws, acts, and legislation concerning students with disabilitiesThe most significant act, IDEA, assures that students with disabilities 1) receive a free appropriate education, 2) are prepared for employment and independent living, 3) have their rights protected, and 4) receive appropriate services from the state Search and SeizureFourth AmendmentReasonable suspicionRight of privacyDog searchesLiability for illegal searchConsent- “in loco parentis”Searches of person, lockers, desks, book bags and automobilesReligious Activities in Public SchoolsFirst Amendment RightsTeaching of religionEqual Access LawWall of SeparationPrayer and Bible readingPosting of Ten CommandmentsUse of public fundsThe First Amendment guarantees citizens the right to peacefully assemble. Freedom of association is included within this right of assembly since teachers as citizens are entitled to the same rights and privileges provided other citizens.
- Mandatory RequirementsIDEA succeeded Public Law 94-142, to the Education of All Handicapped Children Act of 1975.The IDEA essentially guarantees a disabled child, ages 3 to 21, the right to a free, appropriate education in public schools.This act also establishes substantive and procedural due process rights.
- The Lemon v. Kurtzman and Early v. Dicenso cases are perhaps the most significant early cases involving state aid to parochial schools. These cases arose when Rhode Island and Pennsylvania laws providing assistance to parochial schools, their students and teachers were challenged by various citizens and taxpayers. The U.S. Supreme Court subsequently held that a law providing a state subsidy for nonpublic school teachers’ salaries is unconstitutional, even when the funds are paid only to teachers of secular subjects.Public schools may not display religious exhibits or other visual materials. It may be appropriate, however, for public school teachers to acknowledge and explain the various holidays of all cultural and religious groups as a unit in cultural heritage or some other related subject, as long as a secular purpose is served. Commencement exercises and any type of school sponsored prayer at athletic contests is deemed to be a violation of the First Amendment. The principle of neutrality mandates that public schools must remain neutral in all matters relating to religion. Congress attempted to address facility use when it passed the Equal Access Act in 1984 for the expressed purpose of providing student religious clubs equal opportunities to access high school facilities as other non-curricula clubs enjoyed. Under federal statute, it is unlawful for any public secondary school that has created a “limited open forum” to deny access to student-initiated groups on the basis of religious, political or philosophical content of their speech.A limited open forum exists when an administrator allows one or more non-curricula related student groups to meet on school premises during non-instructional time.The observance of holy days by public school is clearly an unconstitutional activity, if conducted in a devotional atmosphere. The First Amendment prohibits states from either aiding religion or showing preference of one religion over another. Public schools may not celebrate religious holidays. There should be no worship or devotional services, religious pageants or plays of any nature held in the school. However, certain programs may be conducted, if a secular purpose is clearly served.
- They may also levy taxes and develop a systematic method of distributing school funds. School districts are agents of the state but do not possess broad powers to levy taxes and are subject only to the powers delegated to them by the legislature. School finance programs have been challenged under both federal and state constitutions. Most challenges have focused on issues regarding equity of finance programs with respect to tax burdens. Other challenges involve assertions that parents and their children are denied the benefits of an equal educational opportunity based on disparities in tax revenue and distribution of revenue among school districts within a state. The compelling aspect of the Rodriquez ruling was that Texas case did not interfere with a “fundamental” right since education, while undeniably of high importance, is not recognized by the High Court as being among those guaranteed by the Constitution.
- Federal Role in Education - Education is primarily a State and local responsibility in the United States. Laws reflect societal sentiments, and courts and legislative bodies at both state and federal levels play an increasingly prominent role in the domain of public education. Laws are being enacted that place additional responsibilities on schools to provide a range of services to meet the educational needs of students. Judicial interpretations of constitutional and statutory mandates are having a profound impact on school policies and practices. Educators must be cognizant of this legal activity because no longer can they plead "ignorance of the law" as a viable defense for violating protected rights. School leaders need to understand personal and professional ethics codes and possible conflicts between legal and ethical concerns.Lunenburg, F.C. & Ornstein, A.C. (2004). Educational administration (4th ed.). Belmont, CA: Wadsworth