Serving Art Educators
and Students Since 1994
School Law for the Educator
With all the lawsuits in education today, it has become very important for the teacher and administrator to be well versed in school law in order to protect themselves from litigation. School law changes all the time due to appeals and new court cases that challenge existing laws. In addition, activist judges create new laws when they are instead only to make rulings from existing law.
It is hard to keep abreast of these issues and this is the reason why an educator needs to subscribe to law journals and/or attend school law workshops at annual educator conventions. One important organization that has monthly updates is the Education Law Association. You will also receive an annual summary of cases and how they impact educators.
It is also important to keep a small library available for reference. Four of the most important law books are School Law and the Public Schools: A Practical Guide for Educational Leaders
Areas where it pays to have a good command of school law are with searches, free speech, and discipline. Here are a few basics:
Search and Seizure
There are several cases important cases impacting school searches; United States vs Ross [456 U.S. 798, 822-23, 1982], Veronica School District 47J vs Acton [515 U.S. 646, 654-66, 1995], Thompson vs Carthage School District [87 F.3d, 979, 982, (8th Circuit) 1996], and Board of Education of ISD 92 of Pottawatomie County vs Earls [636 U.S. 822, 828, 2002]. From these cases, it has been determined that any school employee can't do a search without just cause. There has to be at least one solid witness or strong circumstantial evidence to search a student. As a rule, teachers should not conduct searches. Let your principal handle this matter.
School employees should have an adult witness present when conducting a search. Under no circumstances should a strip search be conducted. Lockers may be searched at any time because they are considered property of the school.
Free Speech
This is an ever transforming subject due to recent developments in technology. There have been cases involving posts by students to such sites as Facebook and YouTube that involved threats and other strong language. Can a school district limit speech on these sites by suspending these students?
Free speech in the schools includes religious issues, technology issues, student protests, obscenity, and speech during school events. Educators must know when the line is crossed with free speech issues. One rule of thumb is that if the speech causes a severe disruption in the educational process, it can be stopped. The problem lies with defining exactly what a severe disruption entails.
Student Discipline and Due Process
Believe it or not, but some states still allow corporal punishment. Although the issue has cooled down recently, many cases involved injuries to students from corporal punishment. Due process is more of a concern to school administrators because they have the power to suspend a student. Principals must exercise due process before suspending and/or expelling a student. This means that they conduct an informal hearing and examine the evidence. They also have to give "adequate notice." This means that the charges should be very clear and given to parents in writing. Some school districts have lost lawsuits to students who were suspended and/or expelled without due process or adequate notice. Schools can't charge a student with an offense and then find them guilty of another.
Student Safety
Some recent developments in school law with student safety include the following:
School's duty of care toward students is not limited to school
Schools are responsible for students who are dropped off early by parents.
school districts do not have a duty to supervise students driving off school property.
A school district's duty of care toward a student generally ends when it relinquishes custody of the student, the duty continues when the student is released into a potentially hazardous situation, particularly when the hazard is partly of the school district's own making.
Schools owe a duty of care towards students traveling to and from school.
This means that schools are now responsible for the safety of children as soon as they leave their parents. Of course this means that schools have to find ways to keep parents from dropping off children early to the school for free babysitting services.
Teachers have a right to supervise students to keep them safe from harm. This means that there must be supervision on the playground, in the classroom, on the bus, in the hallways, and at school events. Teachers act "in loco parentis." This means that they stand as an unofficial guardian of a student while at school. There must be a "standard of care" that is used with students. Of course there are gray areas. What exactly is adequate supervision? This is why it is important to keep up to date on court cases to get a feel for what they consider adequate supervision.
Teachers must take necessary steps to secure medical attention for students. Attempts should be made to notify parents of any accidents that require some form of care. Teachers should carry liability insurance if they transport students in their personal vehicles. Usually school discourage this due to litigation.
Teachers and administrators must contact the proper authorities if child abuse occurs on school grounds- or if it's suspected to be occurring at home. The Canadian Child Welfare Act 
[Archive] requires this and as is in the U.S., no action can be taken against a school employee when reporting an incident without "malice or without grounds." Even if a teacher reports an incident to a principal, they can still be liable if the principal does not report the act. We suggest that teachers follow up with their administrators when making reports to ensure that compliance has been met.
Zero Tolerance
"After four years of implementation, the National Center for Education Statistics found that schools employing zero-tolerance policies are still less safe than those without such policies. Intended to improve school safety by ensuring student compliance with rules, zero tolerance has become an excuse to treat all children needing corrective measures the same. Zero-tolerance discipline attempts to send a message by punishing both major and minor incidents severely. Zero tolerance policies do not provide guidance or instruction and often breed student distrust toward adults, nurturing an adversarial attitude. Suspended students suffer academically. Critics of zero tolerance argue that such polices worsen problems in the long term by excluding at-risk students and increasing dropout rates." [1]
Since the incident at Columbine High School, many districts have adopted zero tolerance policies. There have been many court cases that have resulted. Some districts go overboard and even expel a student who brings in an inch long plastic GI Joe gun. Strangely enough, these policies have actually increased violence and have punished many good students.
Because of all the negative research against zero tolerance, a school would be wise not to adopt these policies. Following are a few articles dealing with zero tolerance:
http://www.abanet.org [Archive]
http://www.naspcenter.org
http://epsl.asu.edu [Archive]
http://www.akdart.com
http://www.arc.org
http://eric.uoregon.edu [Archive]
http://civilrightsproject.ucla.edu
Se_xual Harassment (Separated because some schools filter out web pages with this word)
Title VII of the 1964 Civil Rights Act introduces laws concerning this type of harassment. There are a variety of se_xual harassment situations. There is student-to-student harassment, teacher-to-student harassment, student-to-teacher harassment, teacher-to-teacher harassment, parent-to-student harassment, and school administrator-to-student and teacher. The Office for Civil Rights offers guidance on these issues. There must be published guidelines in this area in every school. Procedures for reporting infractions should also be made public. A teacher and administrator have a duty to report to the proper authorities any suspected incidents. A teacher must use reasonable care with students to discourage any of these actions.
Some actions that may have innocent intentions may be considered harassment. Femenist.org [Archive] has a good list of these behaviors: (Some words are divided to keep this page from being blocked by school computers)
Leering
Wolf whistles
Discussion of one's partner's se_xual inadequacies
Se_xual innuendo
Comments about women's bodies
'Accidentally' brushing se_xual parts of the body
Lewd & threatening letters
Tales of se_xual exploitation
Graphic descriptions of po_rnography
Pressure for dates
Se_xually explicit gestures
Unwelcome touching and hugging
Se_xual sneak attacks, (e.g., grabbing br_easts or but_tocks)
Sabotaging women's work
S_exist and insulting graffiti
Demanding, ("Hey, baby, give me a smile")
Inappropriate invitations (e.g., hot tub)
Se_xist jokes and cartoons
Hostile put-downs of women
Exaggerated, mocking 'courtesy'
Public humiliation
Ob_scene phone calls
Displaying po_rnography in the workplace
Insisting that workers wear revealing clothes
Inappropriate gifts (ex. lingerie)
Hooting, su_cking, lip-smacking, & animal noises
Pressing or rubbing up against the victim
Se_xual assault
Soliciting se_xual services
Stalking
Leaning over, invading a person's space
Indecent exposure
None of these activities should be allowed to occur in a school with either school employees or students.
Special Education (Also covered on this page)
Perhaps the single biggest area of lawsuits centers around special education issues. The Individuals with Disabilities Education Act requires much of a school and its employees. There must be a system in place to identify students with potential handicaps. There is a set amount of time that an evaluation and case conference can be held. All special education students must have an individualized Educational Plan (IEP) and it must be followed by school employees.
The majority of lawsuits involve what is called the "least restrictive environment." Parents and educators sometimes have different ideas of what this means. Some parents believe it means "preferred treatment plan." Schools simply must give special education students access to everything other students are getting with some restrictions. Restrictions may include exclusion from certain events, personal assistance in certain subjects and a host of other items. Special education law is a category all to itself and should be studied by teachers to insure compliance and avoid litigation.
In Conclusion
In short, schools and school employees must have at least a rudimentary understanding of school law. Many teacher preparation programs do not have adequate preparation for school law and teachers need to study this area on their own. Lawsuits can't be entirely avoided due to frivolace lawsuits, but they can be drastically reduced.
Links
Separation of Church and State [Archive]
Freedom of Religion in the Public Schools
Teachers and the Law [Archive]
Free Speech Rights of Students [Archive]
School Law Resources from the National School Boards Association [Archive]
A Legal Guide for Teachers, Administrators, and the Community [Archive]
See information about copyright on IAD.
