Supremacy Clause (Article VI, Section 2)
General Welfare Clause (Article 1, Section 8; Preamble to the U.S. Constitution)
Obligation of Contracts Clause (Article 1, Section 10)
First Amendment
: provides freedoms of religion in the Establishment and Free
Exercise clauses
(separation of church and state) and freedom of speech rights.
Fourth Amendment
: protects against unreasonable search and seizure.
Fifth Amendment
: guarantees due process rights.
Eighth Amendment
: addresses cruel and unusual punishment.
Tenth Amendment
: grants States’ rights, state controls matters not addressed in US Constitution.
Fourteenth Amendment:
provides equal protection for all citizens and due process.
– law written by the legislative branch of government
: Equal Access Act of 1984- PL 98-377, 20 U.S.C. 4071, – denial of Equal Access prohibited. It is unlawful for a public secondary school that receives federal funds and has created a limited open forum to deny recognition of student-initiated groups on the basis of religious, political, or philosophical content at on campus meetings.
: Family Educational Rights and Privacy Act of 1974, PL 93-380, 20 U.S.C. 1232G – student privacy rights regarding school records. Pupils’ cumulative records are not public records. Only those persons with a legitimate educational interest may have access to the records without parental permission. Parents and guardians have a right to challenge incorrect records. Non custodial parents may see records but have no right to challenge records.
No Child Left Behind Act of 2001
: Elementary and Secondary Education Act, PL 107-110, 20 U.S.C. 6301 – purpose to ensure that all children have a fair, equal, and significant opportunity to obtain a high quality education and reach proficiency on state academic achievement standards.
: PL 88-352, 42 U.S.C. 2000E – It is unlawful to discriminate in employment against any individual with respect to race, color, religion, sex, or national origin.
PL 92-318, 20 U.S.C. 1681 – School districts that are recipients of federal financial assistance may not discriminate against students in respect to gender.
Case Law
– refers to principles of law established by courts; based on legal precedents.
The federal court system is comprised of three levels:
district court (court of trial), court of appeals, and the highest court of the land, the U.S. Supreme Court.
California is in the Circuit of the Federal Court System.
California is in the 9th Circuit of the Federal Court System.
writ of certiorari
The Supreme Court grants a writ of certiorari when at least four justices have agreed to hear a case at the Supreme Court level. If a case is denied “cert” the decision of the lower court stands.
California State Constitution
California State Constitution provides students with the guarantee of a free public education.
The legislature is endowed with plenary (full, entire) authority to
create subordinate agencies essential to the effective supervision and management of public schools.
The legislature may delegate the supervision and management of public schools to
municipalities and counties instead of to separate school boards.
The legislature maintains (within constitutional limits) the power to
establish qualifications, number, composition, method of election, and removal of agencies designated to operate the school system.
The legislature has authority to
establish curriculum, what is taught in public schools
The legislature has the power to
establish public school system.
Workers’ compensation.
School employees are covered by Workers’ compensation.
School property is considered to be
state property.
Regulations and laws governing public education are found in
the California Education Code and California Administrative Code, Title V.
The California Education Code
– the collection of statutes that regulates the organization and administration of the California public school system.
The RODDA Act of 1975,
Gov. Code sections 3540 – 3549.3 – California legislation that authorizes teacher collective bargaining.
PERB, Public Employees’ Relations Board established by the RODDA Act. PERB conducts hearings relative to unfair labor practices.
In California, any impasse in teacher collective bargaining negotiations requires
School officials must report attacks or threats against school employees to .
Written opinions by the Attorney General are
not binding.
Case Law
– refers to principles of law established by courts; based on legal precedents.
The California state court system is comprised of:
superior court (court of trial), court of appeals, and the highest court of appeals, the California Supreme Court
• Title V is the administrative code (rules and regulations) established by the California Department of Education to
interpret and implement the California Education Code
California State Board of Education – established by the California Constitution. Educ. Code sections 33000-33080.
The board must oversee the efficiency of the public school system.
State Superintendent of Public Instruction – established by the California Constitution. Educ. Code sections 33100-33193
list the powers and duties of the position.
County Boards of Education
– established by the state legislature.
Governance hierarchy
• California State Board of Education
• State Superintendent of Public Instruction
• County Boards of Education
• County Superintendents of Schools
• Local Boards of Education
• School District Superintendents
• Principals
Compulsory attendance in California
: Education Code section 48200 – all children between the ages of 6 and 18 must attend a public full time day school unless otherwise exempted.
Private tutoring exemption
– Educ. Code section 48224 – teacher must hold valid California teaching credential in the grades taught, 3 hours a day, 175 days a year.
Private school exemption
– Educ. Code section 48222 – children enrolled in a full time private school
Pierce v. Society of Sisters, 268 U.S. 510,
– affirmed the doctrine of private school compulsory attendance requirements.
Plyler v. Doe, 457 U.S. 202
– funding for children who are in the country illegally cannot be withheld from public, local schools
Engle v. Vitale, 370 U.S. 421
– recitation of a state written and sponsored prayer
School District of Abington Township v. Schempp, and Murray v. Curlett, 374 U.S. 203
– prayers and Bible reading in the classroom
Lee v. Weisman, 505 U.S. 577
– prayers mandated or organized by school officials at graduation exercises are unconstitutional.
Lemon v. Kurtzman, 403 U.S. 602
– Lemon test – a three-part Establishment Clause test. A governmental practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive entanglement with religion.
Edwards v. Aguillard, 482 U.S. 578
– teaching of evolution versus creationism
Good News Club v. Milford Central School, 533 U.S. 98
– relying on the viewpoint discrimination test, the court allowed a religious club that engaged in religious activities to meet after school.
Hartzell v. Connell, 35 Cal. 3d 899
– the imposition of fees for educational activities offered by public high schools violates free school guarantee of the California Constitution.
Berg v. Glen Cove, 853 F.Supp. 651
– immunization upon entry to school
School immunization in California
– Health and Safety Code section 120335; waiver in Health and Safety Code section 120365.
Tinker v. Des Moines, 393 U.S. 503
– Students’ rights to freedom of speech and freedom of expression
Bethel School District v. Fraser, 478 U.S. 675
– upheld public schools’ authority to punish students and to prohibit students’ use of vulgar, obscene, lewd, and offensive speech in public discourse.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260
– upheld authority of school officials to censor school newspaper written by students as a curricular activity.
Sherman v. Community School District, 980 F.2d 437 –
Pledge of Allegiance
California patriotic exercises
– Education Code section 52720
Goss v. Lopez, 419 U.S. 565
– upheld students’ rights to due process prior to exclusion from school in cases of suspension and expulsion in public schools. Due process rights require written notification of charges, right to a fair hearing, and appeal rights.
Gonzalez v. McEuen, 435 F.Supp. 460
– public school expulsion
Allen v. Casper, 622 N.E.2d 367
– contract law generally governs issue of student expulsion from a private school.
California suspension and expulsion procedures,
Education Code sections 48900-48900.7, 48910, 48911, 48915, 48918.
Teachers can dismiss students from classroom for
two consecutive days.
Ingraham v. Wright, 430 U.S. 651
– corporal punishment
California corporal punishment
– violation of California Education Code section 49000.
New Jersey v. T.L.O., 469 U.S. 325
– justifies student searches based on reasonable suspicion.
Jeglin v. San Jacinto, 827 F.Supp. 1459
– California Dress Code that prohibits student from wearing gang related clothing in public high schools.
Palmer v. Merluzzi, 868 F.2d 90
– due process for extracurricular activities
Beeson v. Kiowa County, 567 P.2d 801
– married students rights
Teacher classification
– certificated employees include credentialed persons such as teachers, counselors, school psychologists, and administrators. Classified employees provide support, such as janitorial services, cafeteria, etc.
California – Teacher evaluation
California – Teacher evaluation under the Stull Act – Educ. Code sections 44660-44664
Certificated employees who are evaluated are entitled to receive a written copy of the evaluation
at least 30 days prior to the last day of school scheduled on the calendar.
Progressive discipline –
oral warning, a written warning delivered to the employee, a letter of reprimand to be placed in the employee’s file, an unsatisfactory evaluation, suspension with pay, and dismissal.
California – teachers are classified as probationary
for the first two years of service with a school district.
The school district must notify a probationary employee
on or before March 15 of the employee’s second consecutive school year of employment of the decision not to reelect him or her for the next school year; otherwise the employee is automatically reelected.
Probationary teachers are entitled to
written notice of intent not to re- employ.
Board of Regents v. Roth, 408 U.S. 564
– no reason for nonrenewal required for non tenured teacher
Tenure status is a
statutory right to continued employment.
Pickering v. Board of Education, 391 U.S. 563
– established that public school teachers have the First Amendment right of freedom of expression.
Teachers with tenure can be dismissed for
California Education Code sections 44943 and 44944 cite
the grounds for teacher dismissal.
California Education Code sections 44955 -44957 cite the
dismissal procedures for permanent teachers.
School principals earn tenure as
Permanent teachers who are dismissed due to declining enrollment have
39-month reemployment rights.
Probationary teachers employed by a district for two consecutive years become permanent when
re-elected for a third year of employment.
A permanent classified employee may not be dismissed without
notice and a hearing. A classified employee must receive written notice of a layoff forty-five days in advance of the layoff.
Mt. Healthy District v. Doyle, 429 U.S. 274
– upheld a nontenured teacher’s freedom of expression.
Fowler v. Board of Education, 819 F.2d 657
– academic freedom or abdication of teaching duty/
Wilson v. Chancellor, 418 F.Supp.1358
– academic freedom to bring in political speakers
East Hartford v. East Hartford, 562 F.2d 838
– 1st Amendment rights of teacher who didn’t want to wear a tie were not violated.
Fuhr v. City of Hazel Park, 364 F.3d 753
– teacher not chosen to coach boys team because of her gender – discrimination
Eckmann v. Board of Education, 636 F.Supp.1214
– pregnant teacher was dismissed because she decided not to get married – discrimination
Lehnert v. Ferris Faculty, 500 U.S. 507
– teacher bargaining – agency shop structure upheld, but dues of non members can not be used for political lobbying.
Plessy v. Ferguson, 163 U.S. 537
– established doctrine of “separate but equal.”
De jure
– legitimate state of affairs that has force of law behind it. By right.
Brown v. Board of Education of Topeka, 347 U.S. 483
– overturned Plessy v. Ferguson.
Brown v. Board of Education of Topeka (Brown II), 349 U.S. 294
– desegregation must end with all deliberate haste
Brown decision formed basis for mainstreaming
in Special Education.
Sheff v. O’Neill, 733 A.2d 925
– interdistrict integration, choice plans
De facto
– must be accepted, but does not have sanction of laws. In fact.
Individuals with Disabilities Education Improvement Act (IDEIA) of 2004, 20 U.S.C. §1401,
provides legal rights and procedural protection for children with disabilities.
Child Find/Zero Reject
– the LEA must locate all children with disabilities located within the district, including children in public schools, private schools, and homeless children. The LEA may not exclude children because of the severity of the disability.
Non-discriminatory assessment
– the assessment must be multi disciplinary and cannot discriminate. Children must be assessed in all areas of suspected disability.
Free Appropriate Public Education
Individualized Educational Program
Least Restrictive Environment
– to the maximum extent appropriate, children with disabilities should be educated with children who do not have disabilities. The IEP may require other arrangements in order to provide a FAPE.
Due Process
– the LEA must notify parents of their procedural rights and safeguards.
Students must not be expelled, suspended, or punished for manifestations of their
disability. FAPE must be provided when a removal is necessary.
Hudson v. Rowley, 458 U.S. 176
– child performs better than average child in her class. Court rule that she is receiving adequate services.
Section 504 of the Rehabilitation Act of 1973, PL 93-112, 29 U.S.C. 794
– prohibits discrimination against students with disabilities in programs receiving federal funds. Requires reasonable accommodations.
Thomas v. Atascadero, 662 F.Supp.376
– exclusion of student based on HIV/AIDS violates Rehabilitation Act, Section 504.
Grube v. Bethlehem, 550 F.Supp.418
– student with one kidney is otherwise qualified to play football and cannot be discriminated against because of his disability.
The Americans with Disabilities Act (ADA), 42 U.S.C. §12132,
extends antidiscrimination protections in employment, public accommodations, transportation, and telecommunications.
Serrano v. Priest, 487 P.2d 1241
– California finance case. Education is a fundamental right. Established standard of fiscal neutrality. The quality of a child’s education could not be based on the wealth of a child’s local school district. Must be based on the wealth of the state as a whole.
San Antonio v. Rodriguez, 411 U.S. 1
– school finance case in Texas. Education is not among rights afforded explicit protection under the Federal Constitution.
Rose v. Council, 790 S.W.2d 186
– Kentucky finance case. Violation of Kentucky constitution.
Zelman v. Simmons-Harris, 536 U.S. 639
– US Supreme Court determined Cleveland voucher program met the criteria of the Lemon test and did not violate the Establishment Clause of the 1st Amendment.
Williams v. State of California settlement
– parents must be notified annually of right to hearing regarding lack of materials, state of campus, status of teaching credentials. Not necessary to provide more than one copy of textbooks to each student. No duty to provide textbooks to nonpublic schools.
– a private or civil wrong.
Intentional torts
– assault, battery, defamation
– duty of care, standard of care, action by reasonable and prudent person, actual loss or injury, proximate cause, requires proof of damage.
Proximate cause
– the relation or nexus between defendant’s action and resulting injury.
Teachers have liability protection within
scope of duties performed.
Court decides liability relative to adequate
Assumption of risk
– may be available as a defense when injured party knew of possible danger; either by agreement or actions voluntarily accepted the possibility of harm.
Comparative negligence
– the injury was partly the fault of several persons
Contributory negligence
– the injured party contributed to his/her injury
Responsibility for supervision of students at off-campus activities
same as on campus.
Wood v. Strickland, 420 U.S. 308 –
addresses the issue of school board member immunity from liability.
Carey v. Piphus, 435 U.S. 247 –
court will not award large punitive damages where little or no actual harm occurred. Only nominal damages will apply.
Parents are liable for
tortious conduct of their children.
Peter W. v. San Francisco, 131 Cal.Rptr.854
– educational malpractice case. Plaintiff’s position was not upheld. District issued diploma, yet student does not have basic academic skills.
Gebser v. Lago Vista, 524 U.S. 274
– teacher to student harassment – school district not liable when they had no knowledge of the harassment.
Davis v. Monroe County, 526 U.S. 629
– student to student harassment – school district was liable when they had actual knowledge of the harassment, the harassment was ongoing and caused harm, and the district acted with deliberate indifference.
Requirements for reporting suspected child abuse are cited in the California Penal Code. Written reports must be submitted within
36 hours.
The Copyright Act of 1976
established guidelines for the use of copyrighted material in a reasonable manner without the owner’s consent.
Fair Use Guidelines:
single copies may be made by or for a teacher for scholarly research or use to teach a class; multiple copies are restricted by brevity – not more than 10% of the work, spontaneity – not enough time to request permission to use the material, and cumulative effect – copied for one course and limited to one class term.
Public domain
– public ownership of writings, documents, or publications that are not protected by copyright or in which the copyright has expired.