The Legal Rights and Responsibilities of Teachers

Issues of Employment and Instruction

Allan G. Osborne, Jr., Charles J. Russo

• Publisher: Corwin
• Year: 2011
• Print ISBN: 9781412975469
• eBook ISBN: 9781452239118
• Edition: 1
• Topic: Education
• Subtopic: Education General

"Now teachers have an absolute desk reference that could be called ?How to Stay in the Classroom and Out of the Courtroom!"
—John Casper, District Achievement Gap Coordinator
Kentucky Department of Education

"Reading this book is the next best thing to taking a class on education law. It could well serve as the resource for such a class!"
—Deanna Brunlinger, Science Teacher
Elkhorn Area High School, WI

Everything teachers need to know about education law

Do you know what you can and can?t do and say in your school? Most teacher education programs offer little, if any, instruction on education law. When teachers need advice regarding employment or instructional issues, they may find the search frustrating, time-consuming, or costly. Teachers will find the answers to their most frequently asked legal questions in this easy-to-read book. Key topics include:

• Certification, tenure, evaluation, and dismissal
• Collective bargaining and teacher contracts
• Constitutional rights of teachers
• Discrimination and harassment
• Academic freedom
• Grading policy and integrity of student records
• Copyright law
• Safety

Also covered are tort liability, teachers? responsibilities regarding the safety and well-being of their students, and teachers? protection from defamation. Educators will find practical suggestions, vignettes, and summaries of judicial opinions with real-world applications. Don?t wait for a problem to arise. Read this book and be prepared.

 

1

Introduction: The
Historical and
Legal Foundations
of Public Education

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KEY CONCEPTS IN THIS CHAPTER

• The Roots of Public Education in America
• Constitutional Provisions Applicable to Education
• Important Statutes Governing Education
• Case or Common Law

INTRODUCTION

Public education in America has grown significantly from its early beginnings in colonial times. What was once considered to be primarily the responsibility of the family is now a major function of governments at all levels. Currently, there are approximately 98,793 public schools¹ serving students in grades kindergarten through 12 in the 13,862 school districts in the United States.² These districts and schools serve approximately 49,300,000 students³ who are taught by 3,180,000 million teachers.⁴ Public education in this country has become a major source of expenditure at the federal, state, and local levels with over $520 billion being spent annually⁵ at an average of $10,889 per student.⁶ Further, although they are beyond the scope of this book, nonpublic schools and home schooling families educate in excess of another 6 million students.⁷ Initially, the responsibility for public education was borne almost exclusively by local communities. However, during the past two centuries, state and federal governments have increasingly become involved in the running and financing of public schools.

This chapter begins with a brief overview of the history of public education from its meager beginnings as a purely local function in colonial times to the present day in which the federal government is involved in education more than ever. Next, the chapter provides a primer on the legal foundations of public education. This section includes a synopsis of the major constitutional and statutory provisions governing public education. Throughout this book the authors reference decisions by federal and state courts. Readers lacking the background knowledge of court systems should consult “Resource A: Court Systems and the Authority of Courts,” at the back of the book, which provides an overview of the organization of federal and state court systems. Readers who are unfamiliar with legal materials also may wish to consult “Resource B: Legal Resources and References,” which provides information on reading and understanding legal citations.

A BRIEF HISTORY OF PUBLIC EDUCATION IN AMERICA

When settlers first arrived on the shores of what is now the United States, the task of educating children was the responsibility of the family and was done largely at home. During these times parents taught their children the rudiments of reading, writing, and arithmetic. Much of what children were taught was based on what they needed to know in an agrarian society. Thus, boys were also expected to acquire basic vocational skills and girls learned how to run a household. As the nation developed and expanded, formal schools became more common but were largely private institutions that educated children whose parents could afford to pay tuition. Even so, the first publicly supported secondary school, Boston Latin, was founded in 1635.

In 1647, Puritans in Massachusetts enacted what became known as the “Ye old deluder Satan” law requiring towns of 50 households to provide instruction in reading and writing to their children, and towns of 100 households or more to establish grammar schools to prepare children for the universities. One main purpose of the law, and thus its name, was to combat the attempts of Satan to keep people ignorant of the scriptures. Even though this law provided for the establishment of schools, attendance was not compulsory, but rather was at parental discretion. Students generally attended school for only a few weeks during the winter; they studied in poorly equipped schoolhouses and were taught by untrained teachers.⁸

The idea of publicly financed schools did not take hold until the mid-19th century, when social reformers in Massachusetts, Connecticut, and New York succeeded in passing legislation that required school attendance and provided for tax-supported schools. Massachusetts passed the first compulsory school law in 1853, and New York followed suit one year later. Early schools, particularly in rural areas, were supported partially by property taxes and partially by tuition paid by parents. More options existed in the cities, where many schools were operated by churches.

The idea of publicly financed schools did not take hold until the mid-19th century, when social reformers in Massachusetts, Connecticut, and New York succeeded in passing legislation that required school attendance and provided for tax-supported schools.

Education remained principally a local and state function until the mid-20th century, when Congress passed the National Defense Education Act of 1958 (NDEA),⁹ largely in response to the Soviet Union’s launch of Sputnik, and the Elementary and Secondary Education Act of 1965 (ESEA),¹⁰ now reauthorized as the No Child Left Behind Act (NCLB).¹¹ These two landmark pieces of legislation sought to improve instruction in commonly neglected subjects such as science, mathematics, and foreign languages and to expand educational opportunities to students from poor families. The NDEA marked the first time the federal government directly intervened in public school policy and curricula, when Congress earmarked funds to support more intense instruction in science and mathematics. The ESEA, on the other hand, provided funds for school districts that had large numbers of children living in poverty. The legislation also funded Head Start, a program designed to help prepare low-income toddlers for school. Although these were not the first pieces of educational legislation passed by Congress, the NDEA and ESEA did mark the beginning of the federal government’s increased involvement in public education. During this period many school officials began to see public education as the key to individual success and the nation’s prosperity.

Unfortunately, since public schools in many areas of the country were still segregated by race midway through the 20th century, educational opportunities were not fully available to all children during this time. That began to change in the second half of the 20th century when public schools became instrumental in assuring equal opportunity to all citizens. Initially, change came about through court orders, but further change was instituted through federal legislation. In 1954, in its landmark school desegregation ruling, Brown v. Board of Education (Brown), the Supreme Court characterized education as “perhaps the most important function of state and local governments.”¹² Chief Justice Warren, writing for the unanimous Court, pointed out that education was necessary for citizens to exercise their most basic civic responsibilities:

Unfortunately, since public schools in many areas of the country were still segregated by race midway through the 20th century, educational opportunities were not fully available to all children during this time. That began to change in the second half of the 20th century, when public schools became instrumental in assuring equal opportunity to all citizens.

In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the State has undertaken to provide it, is a right that must be made available to all on equal terms.¹³

Two decades later, in Lau v. Nichols,¹⁴ the Supreme Court insisted that the failure to provide remedial English language instruction to non-English-speaking students violated Section 601 of Title VI of the Civil Rights Act of 1964.¹⁵ The Court held that denying such students the chance to receive remedial instruction denied them meaningful opportunities to participate in public education. The Court emphasized that recipients of federal funds were bound by Title VI of the Civil Rights Act of 1964, and a Department of Health, Education, and Welfare regulation required public school systems, as recipients of federal assistance, to take affirmative steps to rectify language deficiencies.

Federal involvement in public education reached a new height one year later in 1975 when Congress passed the Education for All Handicapped Children Act,¹⁶ currently known as the Individuals with Disabilities Education Act (IDEA).¹⁷ This landmark legislation mandated that all states provide a free, appropriate public education in the least restrictive environment for all students with disabilities between the ages of 3 and 21. The IDEA required school officials to develop individualized education programs for all students with disabilities who required special education and related services. The IDEA also provided parents with unprecedented rights and created an elaborate system for the resolution of disputes that might develop over the provision of special education services. The IDEA not only opened the doors of our public schools to children who had previously been excluded but also provided a guarantee that the education they received would be meaningful.

The 1983 publication of an extensive report on the condition of the country’s public schools, A Nation at Risk: The Imperative for Educational Reform, generated much interest and controversy.¹⁸ This report suggested that students from other developed countries outperformed U.S. students on international measures. In response, most states implemented educational reform laws that mandated more frequent testing of students in core academic subjects and that increased state-mandated curriculum requirements. This led to the passage of the No Child Left Behind Act (NCLB)¹⁹ almost two decades later. The key purposes of the NCLB are to improve the academic achievement of students, assure that students are taught by highly qualified personnel, make school systems accountable for student achievement, require school systems to use effective, research-based teaching methods, and afford parents choices in educational programs.²⁰ The NCLB provides for accountability through annual testing and the use of proven instructional methods.²¹ It represents the federal government’s most extensive involvement in public education to date. Even so, the NCLB affords states flexibility in terms of setting standards, choosing tests, and spending federal dollars, but the states must show results.

LEGAL FUNDAMENTALS OF EDUCATION

There are four sources of law in the United States: constitutions, statutes, regulations, and judicial opinions. These sources exist at both the federal and state levels. A constitution is the fundamental law of a nation or state, while a statute is an act of a legislative body—a law enacted by Congress or another legislative body.²² Statutes must be consistent with their controlling constitutions. Inasmuch as most statutes are general mandates, they are typically supplemented by implementing regulations or guidelines written by officials in the agencies that are charged with their implementation and enforcement. Regulations are thus more sp...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright
• Contents
• Preface
• Acknowledgments
• About the Authors
• 1. Introduction: The Historical and Legal Foundations of Public Education
• 2. School Governance and the Teacher
• 3. Basic Constitutional Rights and Freedoms
• 4. Employment Terms and Conditions
• 5. Collective Bargaining
• 6. Prohibitions Against Employment Discrimination
• 7. Teacher Discipline, Dismissal, and Due Process
• 8. Curricular and Instructional Issues
• 9. Tort Liability
• Resource A: Court Systems and the Authority of Courts
• Resource B: Legal Resources and References
• Resource C: Basic Legal Research: Maintaining Currency in an Evolving Legal Environment
• Glossary of Terms, Acronyms, and Abbreviations
• Index