1. { Who Makes the Laws for Educators? Legal Basics – Chapter One Jeff Linton

2. “Public schools of the US are governed by a diverse set of laws. While public education is a state responsibility, the federal government and individual localities, through city councils and school boards, also take a hand in the oversight of schools. Therefore laws pertaining to schools and classrooms are established by a complex interplay among these level of governance.” p. 5 Educational Laws come from 3 places: Constitutional Law, Statutory Law, and Common Law Introduction

3.  Even though the Federal Constitution does not mention Education, it does say “Congress shall provide for the general welfare of the United States,” and politicians have interpreted this as being able to make decisions about our schools.  10 th 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.”  Thus, the states are in charge of public education, and so we technically have 50 different systems of public schooling. Constitutional Law

4.  Many commonalities, but also some important differences.  State superintendents:  26 states: state school board appoints  9 states: governor appoints  15 states: they are elected  Local School Districts throughout the US  A few states have 1, single statewide district  Some elect superintendents, other appoint  Some boards are elected, others have boards chosen by mayors or city councils Constitutional Law

5.  Laws passed by either federal Congress or state legislatures  Center on standards and funding for specific education initiatives  Examples include National Defense Education Act (aims to stimulate schools to improve math, science, and foreign language education, 1957) and Economic Opportunity Act (centered around civil rights issues and desegregation)  Currently working on national standards  State statutes provide school funding formulas, basic conditions for schools, duties for school boards, certification requirements, etc Statutory Laws

6.  “Developed over time through an accumulation of of court decisions, customs, and general civic principles.” p. 8  When laws come about because of court decisions, not state or federal congress  Example – in loco parentis, or educators having the authority to act in place of parents, came about from a court decision Common Law

7.  Teachers and administrators have certain “freedoms” that are protected by the Constitution, statutory, or common law:  Freedom of speech outside of school environment  Freedom of speech inside the classroom  Freedom from undue restrictions on personal appearance  Freedom to lead their lives in privacy  Freedom of association  Freedom of religion  Protection from arbitrary, capricious, or discriminatory actions or dismissal  Due process  “Schools authorities and courts have to balance individual rights against the needs of schools in order to effectively conduct the business of education” p. 11 Freedom and the Law

8.  “Course of proceedings following established rules that ensure the protection of individual rights.” p. 11  Causes school boards to give employees a fair hearing whenever property and liberty interests are involved.  Property Interests: Dismissed: from a tenured position, during the terms of a contract, or when there is a clearly implied promise of continued employment (this is subjective, get it in writing!!!)  Liberty Interests: public charge that might seriously damage a teacher’s standing and association in the community or a charge that would impose a stigma or other disability such as to foreclose a range of opportunities for that teacher  Tenured teachers receive formal hearings, non- tenured teachers usually do not Due Process

9. { Freedom of Expression in Speech, Conduct, and Association Legal Basics – Chapter Two

10.  1968 – Supreme Court ruled teachers can not be dismissed for public criticism of their school system (in fact, they said teachers are the most likely to be informed and have valid opinions)  Case provided guidelines for public employee Free Speech:  Employees are entitled to constitutional protection on matters of public concern  Public officials are barred from recovering damages from defamatory statements unless the statements are made with reckless regard to the truth and the teacher’s comments are detrimental to the system, rather than constituting only a difference of opinion – p. 16 Freedom of Speech

11.  However, because criticizing an immediate supervisor could seriously undermine the effectiveness of the working relationship, criticism can be legitimately limited without damaging the basic right of free speech  School employees can only speak out on matters that concern the public interest and are not simply school matters Freedom of Speech

12. { EXAMPLE!!! Freedom of Speech

13.  1994 – A teacher criticized a Miss. School Board for canceling the art program at the Junior High  Teacher also criticized the superintendent’s “vindictive and retaliatory style of management”  Superintendent re- assigned the teacher to the Junior High saying “Well, I thought you’d want to go, as much fuss as you kicked up over this.”  Teacher sued, charging that the transfer was in direct retaliation for his public criticism and violated his rights under the Free Speech Clause of the Constitution Freedom of Speech – Ex.

14.  Court of Appeals agreed and ruled that teacher’s criticism was protected because it dealt with a matter of public concern  Case was strong enough to present to a jury for consideration of monetary damages  School Administrators MUST be aware of any actions that might considered retaliatory or vindictive Freedom of Speech – Ex.

15.  Such issues can be resolved with proper communication!!!!  Problems might be solved without incident if teachers (and students) deal with their grievances through in-school grievance procedures before making them public  School Caf. ex Freedom of Speech

16. “One’s manner of dress and grooming, use of makeup, and other aspects of personal appearance” – p. 18 Freedom of Conduct

17.  Standard of “reasonableness,” defers between locales (CA different from KA)  “Regulation of dress must be tied to the effect of one’s personal appearance on learning (for students) and job performance (for educators)” – p.19 – p.19  School boards can not regulate hair because that would give them control of educators’ hair both in and out of school. Freedom of Conduct

18.  “When personal appearance is an expression of heritage, race, or culture and does not impair the educational process, the courts grant some protection for such expression.” –p. 20  Headdress example Freedom of Conduct

19.  “Reasonableness”  Means schools may enforce a teacher dress code when those codes represent a compelling interest related to the school’s educational mission  Open to interpretation  Depends on the effectiveness of the arguments in individual cases! Freedom of Conduct Educators are held to standards in their private lives that other citizens may not be Courts have developed flexible rules that provide for balancing the public’s interests in schools against the private interests of school employees Thus, the courts have upheld school boards in regulating personal conduct within reasonable limits Most issues surround sexual conduct and marijuana

20.  Joining of Groups – thus association  Courts have determined “membership in an organization cannot be the basis for denying employment or for dismissal from employment  Educators are permitted to actively participate in employee organizations or unions as long as such activity does not harm the educational process  Educators cannot be punished for social or political activism during nonschool hours Freedom of Association

21. { Professional Responsibility and Tort Liability Legal Basics – Chapter Three

22.  An injury or wrongful action for which the legal system may provide a remedy  Civil wrong committed by a person against another person or that person’s property with a resulting injury  The courts may provide monetary compensation if the injury, and not necessarily physical injury, results from unreasonable conduct  Educators may be sued for willful or negligent actions What is a tort? p. 25

23.  Parents are the ones that most often threaten to sue for grievances, but most of the time this can be turned aside by rational discussion with principals  Legal test for torts examines 3 areas:  Existence of a legal duty  Did the defendant owe the plaintiff a duty?  A breach of that duty  Did the defendant do or not do something with regard to the duty?  A casual connection between the breach and the injury  Did the negligence cause the injury? What is a tort? p. 26 Gym teacher example – 2 out of 3

24.  STRICT LIABILITY  INTENTIONAL INTERFERENCE  NEGLIGENCE  This is the area that most often affects teachers Classes of Torts

25.  STRICT LIABILITY  Intentional behavior by someone that causes harm  Will not be imposed unless the activity is classified as “hazardous”  Involves being liable for student safety  Courts can invoke this even if a person has been injured through no identifiable fault of anyone  The fact that an accident occurred can make one liable, even if though not strictly at fault for someone’s injury  Adopted to place damages on the person best able to bear the burden Classes of Torts p. 27

26.  STRICT LIABILITY  Often caused by not removing or otherwise rendering harmless an existing hazard – Chemistry Teacher example  Educators can guard against Strict Liability:  Be certain to give clear and exact directions, especially safety precautions  Make sure equipment is maintained and safety equipment is readily available Classes of Torts

27.  Intentional Interference  One person interferes with another, causing harm  Unreasonably punishing students  Voluntary but does not need to be hostile  Example: practical joke that causes injury  Chair Example Classes of Torts p.28

28.  Intentional Interference  Six Types:  False imprisonment: intent to restrict the movement of student (confine a student for an unreasonable time or in a wrongful manner)  Assault: When one is put in fear of harm by the actions of another (no physical harm needed)  Battery: physical contact with another in a rude and angry manner (Horseplay, practical jokes, and pranks can also be forms of)  Even if corporal punishment is permissible by law, if the punishment is too severe or unwarranted, it is battery Classes of Tort p. 29

29.  Intentional Interference  Six Types continued:  Defamation: slander(oral) or libel (written)that causes ridicule or disrepute (injuring someone’s reputation)  Statements about individual’s skills, qualifications, or ethics that interfere with a pursuit of an education or profession… must be untrue and cause monetary loss!  Intentional Emotional Distress: conduct that creates unreasonable emotional pain  Boy clowning around example  Trespass of Personal Property: unreasonable interference with property belonging to another person (ex. School locker searches) Classes of Torts p. 29

30.  Defamation in terms of teachers vs. administrators (slander & libel)  VERY seldom do teachers win cases against principals about their evaluations  Some states grant absolute immunity for the evaluation process  In other states, teachers can not win libel cases unless they prove the administrator was acting out of malice  District vs. District example Classes of Torts

31.  Negligence  Conduct that falls below an established standard of care and results in injury to a person  Duty of care is established and a breach of that duty causes or results in injury  Circumstances of injury were foreseeable and might have been avoided with better judgment Classes of Torts p. 31

32.  Negligence  Based on four elements  Duty of Care: teachers and administrators have a duty to provide a safe environment and to protect students from unreasonable risk of harm (Courts rule in favor of teachers if they find the responsible persons could not reasonably have foreseen the danger, ex. Risk that arises suddenly)  Standard of Care: the care a reasonable and prudent person might exercise under given circumstances (courts decided what action should be taken to prevent injury and then determine whether that action was taken)  In loco parentis – educators don’t have more liability than parents  Boiling pot of water example Classes of Torts p. 32 & 33

33.  Negligence  Based on four elements  Proximate or Legal Cause: Connection between an act and a resulting injury (Did a teacher’s negligent conduct lead to a pupil’s injury?)  Injury or Actual Loss: Some real injury must occur in order for damages to be awarded in cases of negligence Classes of Tort Note: up to age 7, children can not be charged with negligence, and so supervision and protection from harm by educators is more important

34.  Aides, interns, and other paraprofessionals must meet the standard of care that a teacher would be held to in the same or similar circumstances!  Solid training is a necessary preventative for legal issues Paraprofessionals

35. { Strict Liability, Intentional Interference or Negligence? An elementary school teacher has a paper slicer in their room. One day, after cutting out some papers, the teacher walks to the other side of the room, leaving the slicer open. A child walks over and seriously cuts herself….. Strict Liability

36. { Strict Liability, Intentional Interference or Negligence? A recess aide allows students to play tackle football, even though school rules says students are not allowed to play anything with contact during recess. During the football game, a boy breaks his arm. Negligence

37. { Strict Liability, Intentional Interference or Negligence? A boy in Mr. Johnson’s sixth grade class is constantly talking and always distracting the rest of the class. Mr. Johnson finally snaps and tapes the boy’s mouth shut. Intentional Interference (False Imprisonment)