CED614 Session II Associate Professor Harvey Hoyo National University- Costa Mesa

Influences on School Laws Laws & student rights Special Education & Laws The Ethical Test The Professional School Counselor

From your perspective, what are the key influences of school law?

The influences on school law Constitution Statutes (Legislation) Regulations (Codes) Legal Decisions (Case Law)

From your previous session, write the Constitutional Amendment you feel most impactful to the role of the school counselor? Why?

Constitutional Amendments and Schools 1 st Amendment Freedom of press, religion, assembly, petition 4 th Amendment Search and seizure 5 th Amendment Due process

Constitutional Amendments and Schools 10 th Amendment Powers left to the states 14 th Amendment Due process and equal protection for citizens

What were the two case laws that impacted student rights from the standpoint of gender equity and discrimination?

Federal CASE Laws Impacting Discrimination Civil Rights Act of 1964 No person in the United States shall on the grounds of race, color, or national origin, be excluded from participation in or be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. Title IX Prohibits discrimination on the basis of gender 9

There are two ways to categorize laws. One of them is statutes- write down the other type.

Your Answer is..... Case Law – refers to principles of law established by courts; based on legal precedents. Statute – a state or federal law.

In the last session you studies several examples of case law that impacted the schools: Select one from the following which you feel will have the most impact on your in your role as a school counselor. Was it… Tinker v. Des Moines Bethel School District v. Fraser Hazelwood School District v. Kuhlmeier Goss v. Lopez WHY?

Your answer: deals with the rights of school to limit student expression Tinker v. Des Moines – Students’ rights to freedom of speech and freedom of expression Bethel School District v. Fraser – 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 – upheld authority of school officials to censor school newspaper written by students as a curricular activity. Goss v. Lopez – upheld students’ rights to due process prior to exclusion from school in cases of suspension and expulsion in public schools.

STUDENTS AND THE LAW: Corporal Punishment – violation of California Education Code. New Jersey v. T.L.O. – justifies student searches based on reasonable suspicion. Jeglin v. San Jacinto - California Dress Code prohibits students from wearing gang related clothing in public high schools.

SCHOOL DESEGREGATION Plessy v. Ferguson established doctrine of “separate but equal.” Brown v. Topeka overturned Plessy v. Ferguson. Brown decision formed basis for mainstreaming in Special Education. De facto – must be accepted, but does not have sanction of laws. (In fact). De jure – legitimate state of affairs that has force of law behind it. (By right).

Quick Write # 6 Key Legal Concepts “Substantial Educational Disruption” Due Process Zero Tolerance Liability Misfeasance Malfeasance Nonfeasance

Duty to Protect Counselors have a duty to anticipate foreseeable dangers and take necessary precautions to protect students in their care. Specifically, counselor’s duties include: adequate supervision, maintenance of equipment and facilities, and heightened supervision of high-risk activities. Failing to Exercise a Reasonable Standard of Care The degree of care exercised by a "reasonable" counselor is determined by factors such as: (a) the training and experience of the counselor in charge, (b) the student’s age, (c) the environment in which the injury occurred, (d) the type of instructional activity, (e) the presence or absence of the supervising counselor, and (f) a student’s disability, if one exists. Proximate Cause Was there a connection between the breach of duty by the counselor and the student’s injury? Was the injury a natural and probable cause of the wrongful act (i.e., failure to supervise), and ought to have been foreseen in light of the attendant circumstances?" (Scott v. Greenville, 1965). Actual Injury Was there an actual physical or mental injury.

CONFIDENTIALITY —Ethical Concept —What is said between two people will remain secret and will not be shared without consent PRIVILEGED COMMUNICATION —Legal Concept —Protects from Forced Disclosure — YES: School Counselors & School Social Workers — NO: School Nurses & School Psychologists LEGAL EXCEPTIONS TO CONFIDENTIALITY —Child Abuse & Neglect —Potential harm to self and/or others RECORDS —Educational Records (FERPA) — Private Records - “kept in sole possession of the maker” (no FERPA) Confidentiality

FEDERAL FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT —Educational Records – records that are directly related to a student and maintained by an educational agency (does not include records that are “kept in the sole possession of the maker of the record.” — Parents (and eligible students) have the right to:  Inspect and review the student’s records  Seek amendment of the student’s records that are inaccurate  Consent to disclosures of personally identifiable information —Schools may charge a fee for a transcript copy —Consent is not required when disclosure is:  to other school officials with legitimate interests  to officials of another school or postsecondary institution  connected to financial aid for which the student has applied  to the juvenile justice system  organizations conducting studies for educational agencies or institutions (no personal identification)  accrediting organizations  to the parents  to comply with a subpoena  in connection with a health or safety emergency FERPA

NO FEDERAL OR STATE LAWS REQUIRING PARENT PERMISSION FOR STUDENT ASSISTANCE SERVICES SPECIAL EDUCATION AND SECTION 504 REQUIRE PARENT NOTIFICATION RECOMMENDATION Involve parents at the earliest time and fullest extent possible. Long term solutions depend on parent support. Parent Permission / Notification

Counselor Guidelines ● Check with your principal prior to advising to parents the need for outside assessments or services COUNSELOR GUIDELINES ● Rather than recommending that a family seek assistance in the community, present outside assistance as an option. Provide the family with a list of many providers. Seeking for Outside Services

SPECIAL EDUCATION / INDIVIDUALS WITH DISABILITIES Least Restrictive Environment – initially identified special education children should be placed in the most basic special ed program (RSP) which may include participation in regular education classes for part of the day unless IEP requires other arrangements to deal with more restrictive needs. Americans with Disabilities Act (ADA) extends antidiscrimination protections for disabled students in a school setting. Hudson v. Rowley – child performs better than average child in her class. Court rules that she is receiving adequate services. Thomas v. Atascadero – exclusion of student based on HIV/AIDS violates Rehabilitation Act, Section 504. Student entitled to services required for handicapped persons.

Students’ Rights in Disciplinary Actions Students have a right to an education; in suspension situations that last longer than 10 days, the following due process must be met: 23 A written notice specifying charges and the time and place of a fair, impartial hearing A description of the procedures to be used, including the nature of evidence and names of witnesses The right of students to legal counsel; to cross- examine; to present their own evidence A written or taped record of the proceedings as well as the findings and recommendations The right of appeal

Suspensions of students with exceptionalities must take into account whether the behavior was linked to the exceptionality. Manifestation Determination

When up for a possible suspension, why must a special education student be treated differently?

“By consulting with the case carrier, we have confirmed that the disability does not impair the student’s judgment in this case.- manifestation determination”

Adherence: laws & policies Ethical Standards Community Standards

Professional Organization Continuing Education Principal’s Annual Evaluations District Due Process Procedures The Courts

“You are always on duty”

A dual relationship exists when a counselor serves in the capacity of both a counselor and at least one other role with the same student or parent.

Ethical Test Test of Justice Test of Publicity Test of Universality

You’re a professional school counselor- act like one! The goal of the National University School Counseling Program = think like a counselor