schools and the law 4th ed

7/31/2019 Schools and the Law 4th ED

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Schools and the Law

EDLD 611


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No Child Left Behind

Signed into law in January 2002 Thislaw provides the most extensive federal

involvement in public schools in the

history of the United States


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Four Guiding Principles Schools must be held accountable for student achievement

Parents must be given a greater degree of choice

Selection of academic, intervention, and professional

development programming must be based on scientificallyresearched evidence demonstrating effectiveness

States and LEAs must be afforded added flexibility andlocal control to both facilitate funding acquisition andallocation and to use funds in a manner that best

addresses locally specific educational needs


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Accountability Yearly academic assessments of students

between grades three and eight in reading,mathematics, and science

Adequate yearly progress targets

Rewards and sanctions for performance

States and LEAs must establish a system ofmonitoring and tracking data to ensure that all

groups are meeting minimum levels ofperformance

The State and the LEA must deliver assessmentdate to the public


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Adequate Yearly Progress

Starting point or base year was 2001/2002

States established which indicator they use

lowest achieving percentage for subgroups the school at the 20th percentile in the

percentage of students meeting the proficient

level

States had the opportunity to establish howrigorous the standards are going to be


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Highly Qualified Teachers andParaprofessionals

Must be in affect by the 05/06 school year

Paraprofessionals were also required to meetminimum qualifications

Associates Degree

Completion of a paraprofessional certificate (Praxis)

Paraprofessionals hired before 1/8/02 had four years tomeet these qualifications

May not engage in direct instructional service withoutthe supervision of the teacher


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Disclosure

Assessments must be presented to the public inan understandable and practical manner


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Sanctions 2 consecutive years of not making AYP and

parents will be afforded school choice within thedistrict. Transportation provided

2 additional years of non-performance andcorrective action is taken

Replacement of school staff

Selection of new curriculum and Prof. Development.

Establishment of decentralized management model

Extension of the school day or school year

Appointment of an external expert

Restructuring the school organization


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Programming Accountability

Reports must be submitted describing programimpact and progress in meeting goals

Parental Choice Gives parents more rights to school choice,

especially in regards to non-performing schools

Establishes the parents right to know

Schools must notify parents yearly about studentprogress, assessment data, and lists of highly

qualified teacher and paraprofessionals


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Focus on What Works Greater emphasis onprograms that have researched bases success

Targeting Assistance Provides funds to helpstudents with the greatest academic needs

Addressing Needs of Underperforming andUnderrepresented Populations Provides funds fortraditionally underrepresented populations

Building Instructional Capacity Added emphasison professional development

Creating a Solid Learning Foundation Stressesthe importance of good foundation programs, i.e.Reading First, Early Reading First


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Creating a Safe Learning EnvironmentProvides additional money for Title IV andalso established limit financial liability levelsfor teachers and other school personnelwhen enforcing state, federal and localdisciplinary rules/laws

Flexibility and Local Control GreaterFlexibility = Increased Accountability

Eligibility Lowered the % required to beeligible for School Wide Title I programs


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Enhanced Data Monitoring andCommunication Systems Focus on usingdata to assist in decision concerning studentacademic and social needs

Greater Authority and Discretion overProgramming Relaxes the rules on federalprograms to allow individualization for theLEA

Consolidation Eliminated some paperworkbut allowing consolidation of reports onFederal Programs


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New Regulations

Limited English Proficiency/English

Language Learner Rules

Under the regulations, newly arriving limited English

proficient students to the United States enrolled in school

for fewer than twelve months are exempt from one

administration of the reading/language arts

assessment.

These LEP students still need to take the English

language proficiency assessment, in order to be

counted toward meeting the 95 percent assessment

participation requirement for AYP determinations forreading/language arts


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While newly arriving LEP students still must take

the mathematics assessment, their scores are

not required to be included for AYP purposes.!"

Beginning in the 2007-08 school year, newlyarriving LEP students must also take state

science assessments.


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Conclusion One of the most extensivepieces of education legislation in recent

history Only time will tell how will it will

work and what types of lasting affects itwill have on improving student

achievement


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Religious Influences and

Accommodations in Public Schools

Three landmark cases have been the main-stay indetermining how schools deal with Religious activities

at school

Abington School Dist. v. Schempp, No.

142, SUPREME COURT OF THE UNITEDSTATES, 374 U.S. 203; 83 S. Ct. 1560; 10 L. Ed. 2d844; 1963 U.S. LEXIS 2611, February 27-28, 1963,

Argued, June 17, 1963, Decided ** Together with No.119, Murray et al. v. Curlett et al., Constituting the

Board of School Commissioners of Baltimore City, oncertiorari to the Court of Appeals of Maryland, arguedFebruary 27, 1963.

School Sponsorship of prayer violated the First Amendment
http://localhost/var/www/apps/conversion/current/Legal%20Briefs%20-%20Administrators%20Guide/Abington%20v.%20Schempp%20374%20U.S.%20302.dochttp://localhost/var/www/apps/conversion/current/Legal%20Briefs%20-%20Administrators%20Guide/Abington%20v.%20Schempp%20374%20U.S.%20302.doc


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Engel v. Vitale, No. 468, SUPREME COURTOF THE UNITED STATES, 370 U.S. 421;82 S. Ct. 1261; 8 L. Ed. 2d 601; 1962 U.S.LEXIS 847; 20 Ohio Op. 2d 328; 86

A.L.R.2d 1285, April 3, 1962, Argued, June25, 1962, Decided The court ended by quoting James Madison, It

is proper to take alarm at the first experiment on

our liberties. The court has consistently held thatstate-sponsored religious expression violates theU.S. Constitution.
http://localhost/var/www/apps/conversion/current/Legal%20Briefs%20-%20Administrators%20Guide/Engel%20v.%20Vitale%20370%20U.S.%20421.dochttp://localhost/var/www/apps/conversion/current/Legal%20Briefs%20-%20Administrators%20Guide/Engel%20v.%20Vitale%20370%20U.S.%20421.doc


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Lemon v. Kurtzman, No. 71-1470, SUPREME COURT OF THE UNITEDSTATES , 411 U.S. 192; 93 S. Ct. 1463; 36L. Ed. 2d 151; 1973 U.S. LEXIS85, November 8, 1972, Argued, April 2,1973, Decided The statute must have a secular purpose;

The primary effect of the statute must neither

advance nor inhibit religion; and The statute must not foster excessive

entanglement with religion.
http://localhost/var/www/apps/conversion/current/Legal%20Briefs%20-%20Administrators%20Guide/Lemon%20v.%20Kurtzman%20403%20U.S.%20602.dochttp://localhost/var/www/apps/conversion/current/Legal%20Briefs%20-%20Administrators%20Guide/Lemon%20v.%20Kurtzman%20403%20U.S.%20602.doc


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Silent Prayer

This takes place everyday, and of course thereis no way to prevent this from happening

In some cases even moments of silence arequestionable, depending on how the schoolrepresents this time


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Voluntary Spoken Devotionals

Lee v. Weisman, No. 90-1014 , SUPREMECOURT OF THE UNITED STATES , 505 U.S.

577; 112 S. Ct. 2649; 120 L. Ed. 2d 467; 1992

U.S. LEXIS 4364; 60 U.S.L.W. 4723; 92 Cal.

Daily Op. Service 5448; 92 Daily Journal DAR

8669, November 6, 1991, Argued, June 24,

1992, Decided

This was very controversial decision especially forschools in the south (Bible Belt)
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Devotionals Initiated by Private Actors Courts will generally not allow students to deliver

proselytizing graduation speeches.

Questionhas the school established and open forum for

student expression in commencement exercises? Doe v. Santa Fe Indep. Sch. Dist., No. 97-

40150, UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT, 168 F.3d 806; 1999 U.S. App.

LEXIS 3157, February 26, 1999, Decided, As Revised

March 17, 1999. Rehearing and Rehearing En Banc

Denied April 7, 1999, Reported at: 1999 U.S. App. LEXIS6250. Certiorari Granted November 15, 1999, Reported

at: 1999 U.S. LEXIS 7492.
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Issue: Whether petitioners policypermitting student-led, student-initiatedprayer at football games violates the

Establishment Clause of the FirstAmendment.

Once again, the court interprets theEstablishment Clause to prohibit thecoercion of belief among schoolstudents.


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One Nation Under God Newdow v. United States Cong., No. 00-16423 , UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT , 292 F.3d 597;2002 U.S. App. LEXIS 12576; 2002 Cal. Daily Op. Service 5700;2002 Daily Journal DAR 7229, March 14, 2002, Argued andSubmitted, San Francisco, California, June 26, 2002,

Filed, Reprinted as amended at Newdow v. U.S. Cong., 328 F.3d466, 2002 U.S. App. LEXIS 28040 (9th Cir. Cal., 2002) Stay grantedby Newdow v. United States Cong., 2002 U.S. App. LEXIS 12826(9th Cir., June 27, 2002) Amended by, Rehearing denied by,Rehearing, en banc, denied by Newdow v. United States Cong., 321F.3d 772, 2003 U.S. App. LEXIS 3665 (9th Cir., 2003) Amended by,Rehearing denied by, Rehearing, en banc, denied by Newdow v.United States Cong., 328 F.3d 466, 2003 U.S. App. LEXIS 26867,

2003 Cal. Daily Op. Service 1724 (9th Cir. Cal., 2003) 9th Court said that by including Under God in the pledge, it promoted a

believe in monotheism
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Elk Grove Unified Sch. Dist. v. Newdow, No. 02-1624, SUPREME COURT OF THE UNITEDSTATES , 542 U.S. 1; 124 S. Ct. 2301; 159 L. Ed.2d 98; 2004 U.S. LEXIS 4178; 72 U.S.L.W. 4457;

17 Fla. L. Weekly Fed. S 359, March 24, 2004,Argued, June 14, 2004, Decided, he LEXISpagination of this document is subject to changepending release of the final published version., USSupreme Court rehearing denied by Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 961, 125 S.Ct. 21, 159 L. Ed. 2d 851, 2004 U.S. LEXIS 4886(U.S., Aug. 23, 2004)

Supreme Court reversed 9th Circuit


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The law is clear that you cannot requirea student to recite the pledge. They

cannot be punished for refusing to

participate


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Removal of Religiously Oriented

Materials from Classrooms

KENNETH ROBERTS, MARC NELSON, and ZAY NELSON,Parents and Next Friends of Kelly Nelson and Amy Nelson, and

DEBRA J. WHITE, Parent and Next Friend of Kelly White, Plaintiffs-

Appellants, v. KATHLEEN MADIGAN and ADAMS COUNTY

SCHOOL DISTRICT NO. 50, Defendants-Appellees, ANTI-

DEFAMATION LEAGUE OF B'NAI B'RITH, AMERICAN CIVILLIBERTIES UNION FOUNDATION OF COLORADO, INC., and

AMERICAN JEWISH CONGRESS, Amici Curiae

No. 89-1014 UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT 921 F.2d 1047; 1990 U.S. App. LEXIS 21683; 19

Fed. R. Serv. 3d (Callaghan) 530


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Displaying the Ten Commandments

Stone v. Graham, No. 80-321, SUPREMECOURT OF THE UNITED STATES, 449 U.S. 39;

101 S. Ct. 192; 66 L. Ed. 2d 199; 1980 U.S.

LEXIS 2; 49 U.S.L.W. 3369, November 17, 1980,

Decided, Petition for Rehearing Denied January

12, 1981.

There is still great concern in this area. If taking this

chance, be sure not to purchase with public funds
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CAPITOL SQUARE REVIEW AND ADVISORY BOARD,

ET AL., PETITIONERS v. VINCENT J. PINETTE,

DONNIE A. CARR AND KNIGHTS OF THE KU KLUX

KLAN No. 94-780 SUPREME COURT OF THE UNITED

STATES 515 U.S. 753; 115 S. Ct. 2440; 132 L. Ed. 2d650; 1995 U.S. LEXIS 4465; 63 U.S.L.W. 4684; 95 Cal.

Daily Op. Service 4990; 95 Daily Journal DAR 8540; 9

Fla. L. Weekly Fed. S 241


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COUNTY OF ALLEGHENY ET AL. v.

AMERICAN CIVIL LIBERTIES UNION,

GREATER PITTSBURGH CHAPTER, ET AL.

No. 87-2050 SUPREME COURT OF THEUNITED STATES 492 U.S. 573; 109 S. Ct.3086; 106 L. Ed. 2d 472; 1989 U.S. LEXIS 3468;

57 U.S.L.W. 5045


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Student and Community Devotional MeetingsDuring Non-instructional Time

Equal Access Act

EAA1984 If a federally assisted public secondaryschool provides a limited open forum for noncurriculumstudent group to meet during non-instructional time, it

cannot deny access to specific student groups because of

religious, political, or philosophical content of their

meetings. If the meetings have a religious orientation,school employees can attend only in a non-participatorycapacity to maintain discipline.


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Bd. of Educ. of Westside Cmty. Sch. v.Mergens, No. 88-1597 , SUPREME

COURT OF THE UNITED STATES , 496

U.S. 226; 110 S. Ct. 2356; 110 L. Ed. 2d191; 1990 U.S. LEXIS 2880; 58 U.S.L.W.

4720, January 9, 1990, Argued, June 4,

1990, Decided
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Meetings of Community Groups

Lamb's Chapel v. Center Moriches Union FreeSch. Dist., No. 91-2024, SUPREME COURT OF

THE UNITED STATES, 508 U.S. 384; 113 S. Ct.

2141; 124 L. Ed. 2d 352; 1993 U.S. LEXIS 4019;

61 U.S.L.W. 4549; 93 Cal. Daily Op. Service

4130; 93 Daily Journal DAR 7045; 7 Fla. L.

Weekly Fed. S 369, February 24, 1993,

Argued, June 7, 1993, Decided
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The Court makes itself clear. Speech maynot be proscribed. simply because it is

religious speech. Justice Scalia, in his own

inimitable way, wrote a concurring opinionthat took exception to the reliance on the

Lemontest:


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Like some ghoul in a late-night horror movie thatrepeatedly sits up in its grave and shuffles abroad afterbeing killed and buried, the Lemon test stalks ourEstablishment Clause jurisprudence once again,frightening little children and school attorneys of

Center Moriches Union Free School District. Its mostrecent burial, only last Term, was, to be sure, not fullysix feet under: Our decision in Lee v. Weisman, 505U.S. 577, 586-587 (1992), conspicuously avoidedusing the supposed test but also declined the invitationto repudiate it. Over the years, however, no fewer thanfive of the currently sitting Justices have, in their ownopinions, personally driven pencils through thecreatures heart


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Good News Club v. Milford Cent.Sch., No. 99-2036 , SUPREME COURTOF THE UNITED STATES , 533 U.S.

98; 121 S. Ct. 2093; 150 L. Ed. 2d 151;2001 U.S. LEXIS 4312; 69 U.S.L.W.4451; 2001 Cal. Daily Op. Service 4737;2001 Daily Journal DAR 5858; 2001

Colo. J. C.A.R. 2934; 14 Fla. L. WeeklyFed. S 337, February 28, 2001,

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The case is related to Lambs Chapel. Notethat the use of facilities was outside the normalschool day. Most schools have created alimited public forum and cannot discriminate

against activities solely because they arereligious in nature. Viewpoint discrimination isunconstitutional. Schools and school systemsare well advised to fashion policies which

permit the use of facilities by outside groups,including religious groups, under carefullycrafted conditions.


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Distribution of Religious Literature

Gideons

Age makes a difference

Courts believe that the older children are more likely tobe able to determine what is school sponsored


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Accommodations for

Religious Beliefs Release-Time Programs

Still may not use classrooms

Can be released from campus


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Devotional Activities in Public Schools -

Recommendations for Practice

Lower courts continue to render decisions all along theseparation/ accommodation continuum. even though the

U.S. Department of Education is supporting greater

government accommodation of religion in public schools

than it was in the 1970s and 1980s. School personnel

would be wise to adhere to court rulings in their respectivejurisdictions when there is a direct conflict with the

Department's Guidance. The Executive Director ofAmericans United for Separation of Church and State has

asserted that school officials are placed "between a rock

and a hard place in either obeying the interpretation of lawfrom the administration, or following the dictates of their

local federal courts.


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Rather than providing clarification regardingpermissible religious activities in public schools,

the federal Guidancemay actually generate morelitigation as courts and legislative bodies attempt to

identify permissible religious influences and theappropriate church/state relationship in public

schools. The Supreme Court has espoused a

separationist position in a few cases," but it seems

to be redefining the notion of governmentalneutrality toward religion with an emphasis on

equal treatment of religious and secular expression

and groups.


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Public schools already are experiencing some effects ofthe doctrine shift toward religious accommodation, and

there may be significant future implications. Observable

religious activities in public schools will likely increase and

reflect preferences of the community's dominant religious

group. This, in turn, may stimulate additional EstablishmentClause challenges from members of minority sects,

asserting that they are unconstitutionally being subjected to

the will of the religious majority. Although the exact nature

of the controversies cannot be predicted, it seems assured

that church/state disputes involving schools will continue togenerate a steady stream of litigation in the foreseeable

future.


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Notwithstanding the evolving nature of the law inthis domain, legal developments to date provide

some guidance for school personnel as they make

daily decisions regarding permissible and

impermissible religious activities in public schools. School-sanctioned prayer during the public school day

violates the Establishment Clause, regardless of whether

student participation is voluntary.

Students can engage in silent prayer in public schools, but

school personnel cannot promote such silent devotionals.


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Public schools cannot sponsor religiousobservances in school events includinggraduation exercises and extracurricular activi-ties.

Graduation ceremonies can be (but do not haveto be) designated a forum for studentexpression, where content based restrictions arenot placed on students' speeches, includingreligious messages.

If school authorities maintain control ofgraduation speeches, proselytizing contentwould have to be eliminated.


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Public schools cannot allow students todetermine by election to have student led

prayers before athletic events.

Public schools cannot permanently display

sectarian documents, but they can recognizereligious holidays in an objective manner.

If a federally assisted high school has created alimited forum for non-curriculum student groups

to meet during non-instructional time, all studentgroups, including religious groups, must be

allowed equal access.


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Public schools cannot discriminate againstreligious viewpoints in creating a forum forcommunity groups to use school facilities whenclasses are not in session, even if a religiousgroup targets children attending the school.

School authorities would be wise to bar religiousorganizations from distributing sectarianliterature in public schools, whereas individualstudents have a free expression right to

distribute such literature during non-instructionaltime in conformance with reasonable schoolregulations.


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Teachers cannot proselytize students, butthey can teach aboutreligion,

Release-time programs in which studentsreceive religious instruction off public

school grounds during the school day do

not violate the Establishment Clause.


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Students can be excused from observances andinstructional assignments in public schools for

religious reasons if the exemption does not

interfere with their educational progress ormanagement of the school.

Teaching creationism or intelligent design inpublic school science classes advances

religious beliefs.


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Although the Establishment Clauserestricts the promotion of theistic and anti-

theistic religious beliefs, most claims that

secular public school instruction advancesanti-theistic doctrine have not been

successful.

R li i i th P bli S h l


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Religion in the Public School

Curriculum

For much of the 20th century, religion hasbeen a key part of the public school

curriculum. In the 1960s the Supreme Court

triggered a shift in the place of religion inpublic education. To date, this topic is in and

out of the courts on a regular basis. Lemon v.

Kurtzman and Abington v. Schempp are used

continually to try and decide school districtsinvolvement with religion and the public school

curriculum.


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Speech that appears to be sponsored orendorsed by the school can be restricted

by school officials in order to maintain

consistency with educational goals,whereas private speech is likely to be

protected under the First Amendment

unless it is disruptive to the educationalenvironment.


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Teaching about Religion in the FormalCurriculum

Most Bible course taught in school will not

withstand the tests of the First Amendment Courses that have a great deal of material about

the New Testament will have a harder time being

approved by the courts that those courses that

deal primarily with the Old Testament Courts question the resurrection, virgin birth, and other

miracles that take place


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When schools allow community andreligious groups to control the curriculum,

it is almost certain to be in conflict with

the First Amendment


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If the school offers a Bible Course it should: Course content and materials should be controlled by the

school

Teachers should be selected in the same manner as other

teachers Teachers should be certified

The personal religious beliefs of the teacher should not bea selection criteria

Teachers should not attempt to indoctrinate the children

with a particular religious believe If money is taken from outside sources, this money should

be accepted with no conditions


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Teachers Rights Regarding the Curriculum Courts are very concerned about teachers who

teach and appear to endorse religion Helland v. South Bend Community Sch. Corp., No. 96-

1079, UNITED STATES COURT OF APPEALS FOR THESEVENTH CIRCUIT, 93 F.3d 327; 1996 U.S. App. LEXIS20560; 71 Fair Empl. Prac. Cas. (BNA) 1621; 68 Empl.Prac. Dec. (CCH) P44,201, June 6, 1996,

ARGUED, August 15, 1996, DECIDED, Certiorari DeniedJanuary 21, 1997, Reported at: 1997 U.S. LEXIS 555.

Downing v. W. Haven Bd. of Educ., Civ. Action No. 3:00CV 525 (SRU), UNITED STATES DISTRICT COURT FORTHE DISTRICT OF CONNECTICUT, 162 F. Supp. 2d 19;2001 U.S. Dist. LEXIS 14373, August 24, 2001, Decided
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Very important to remember that ateachers views are considered to be the

schools views. Again, this becomes

even more serious when working withelementary school students who have

difficulty separating the school views

from the teachers views


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Students Rights Regarding the Curriculum

There is friction between the courts and what theDepartment of Education is saying about student

rights concerning religion and the school.

Guidance on Constitutionally Protected Prayer inPublic Elementary and Secondary Schools.

http://www.ed.gov/policy/gen/guid/religionandsch

ools/prayer_guidance.html
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The heart of the issue is what if the student speech could beconsidered as school sponsored.

Denooyer v. Merinelli, No. 92-2080, UNITED STATES COURTOF APPEALS FOR THE SIXTH CIRCUIT, 1993 U.S. App. LEXIS30084, November 18, 1993, Filed, NOT RECOMMENDED FORFULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 24 LIMITSCITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24BEFORE CITING IN A PROCEEDING IN A COURT IN THESIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ONOTHER PARTIES AND THE COURT. THIS NOTICE IS TO BEPROMINENTLY DISPLAYED IF THIS DECISION ISREPRODUCED., Rehearing Denied November 18, 1993,Reported at: 1993 U.S. App. LEXIS 36723. Reported in TableCase Format at: 12 F.3d 211, 1993 U.S. App. LEXIS 36506.

Hansen v. Ann Arbor Pub. Schs, No. 02-CV-72802-DT , UNITEDSTATES DISTRICT COURT FOR THE EASTERN DISTRICT OFMICHIGAN, SOUTHERN DIVISION , 293 F. Supp. 2d 780; 2003U.S. Dist. LEXIS 21920, December 5, 2003, Filed
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In all cases the courts are concerned thatthe school district makes reasonable

efforts to accommodate a students

religious beliefs before imposingrestrictions


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Challenges to the Secular Curriculum Since the 60s public schools have been viewed as

public bodies that are hostile to religion

Many groups continue to sue schools because

there is a perceived push toward secularhumanism (An outlook or philosophy thatadvocates human rather than religious values)

Brown v. Woodland Joint Unified Sch. Dist., No. 92-15772, UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT, 27 F.3d 1373; 1994 U.S. App.LEXIS 14673; 94 Cal. Daily Op. Service 4455; 94 DailyJournal DAR 8251, October 6, 1993, Argued, Submitted,San Francisco, California, June 15, 1994, Filed
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Student Support Services, CharacterDevelopment, and Diversity Programs

Involved volunteer clergy to conduct groupcounseling on secular issues such as race,

divorce, peer pressure, discipline, and drugs

Court did not allow this because it did not providethe same opportunities to non-clergy volunteers

Schools should be careful when dealing withCharacter and Diversity issues that they do not

add a religious angle to the presentations


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Secular Holiday Programs and Challengersto the Music Curriculum You cannot force students to participate in

religious holidays or perform music that is in

violation of their religious beliefs. As long as holiday activities are educational, the

courts have left them alone.

Most vocal music contains or has some religiousorigin and the courts will not require them to bedropped from the curriculum

Performing music in church settings has alsobeen found to be legal. (Better acoustics, etc.)


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Sex Education Programs

Sex education programs are legal in every state.It is a good idea to get parental permission that

gives the parents an opportunity to opt out of the

program

When teaching abstinence, it is important toleave the religious reference out of the

curriculum.


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Evolution, Creation Science, andAcademic Freedom

Epperson v. Arkansas, No. 7, SUPREME

COURT OF THE UNITED STATES, 393U.S. 97; 89 S. Ct. 266; 21 L. Ed. 2d 228;1968 U.S. LEXIS 328, October 16, 1968,

Argued, November 12, 1968, Decided The issue in this case is a popular object of

contention. Most recently, some states haveattempted to pass laws which require the equaltreatment of creationism if evolution is taught
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Edwards v. Aguillard, No. 85-1513, SUPREME COURT OF THE UNITED

STATES, 482 U.S. 578; 107 S. Ct. 2573; 96

L. Ed. 2d 510; 1987 U.S. LEXIS 2729; 55U.S.L.W. 4860, December 10, 1986,


Even with the recent changes in First

Amendment analysis, it is still unlikely that thecourts will allow states to pass laws which further

particular religious beliefs in the public schools.
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Exemptions from the Secular Curriculum When parents find specific school-sponsored

activities to be offensive to their religious beliefs,they argue that the Free Exercise Clause entitlesthem to an exemption from the activity.

West Virginia State Bd. of Educ. v. Barnette, No.591, SUPREME COURT OF THE UNITED STATES, 319U.S. 624; 63 S. Ct. 1178; 87 L. Ed. 1628; 1943 U.S. LEXIS490; 147 A.L.R. 674, March 11, 1943, Argued, June 14,1943, Decided

The court clearly stated that educators cannot compel

expression of belief. This includes asking students to standfor the pledge. Students, who do not wish to participate, haveno right to interfere with the rights of participants; therefore,they can be disciplined for disruption.

R li i i th P bli S h l C i l
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Religion in the Public School Curriculum

- Recommendations for Practice

Decisions regarding what to include or exclude fromthe public school curriculum have always required

value judgments, but today school officials are wise to

make special efforts to consider the implications of

these decisions from an even wider variety ofperspectives. While some rules may be extrapolated

from these cases, school personnel are advised to

consult the various legal standards for analyzing

Establishment Clause and free exercise challenges,

and Guidancefrom the Department of Education, aswell as rulings from local jurisdictions when analyzing

a specific issue.


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Ideally, the various sources will offercongruent interpretations, but when

discrepancies arise, it is advisable to defer

to the case law of the local jurisdiction.Nonetheless, some practical

recommendations may be helpful in making

daily decisions regarding the role of religion

in the public school curriculum.


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Public school personnel may not teach religion,but may teach about religion when material is

presented objectively as part of a secular

program of study (e.g., comparative religion,

culture studies). In fact, involvement of religion inthe secular curriculum has been recommended.


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Courses that focus on the Bible are vulnerable toEstablishment Clause challenges when the

material includes religious doctrine; accounts of

miracles are taught as literal truth; or community

groups control hiring decisions, curriculumchoices, or implementation of the programs of

study. Even if public school officials control

selection of teachers for such courses, staffing

decisions should not be based on teachers'

religious beliefs.


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Courses in religious practices (e.g.,Transcendental Meditation) or instructional

methods that are driven by religious beliefs (e.g.,

Anthroposophy) are likely to be unconstitutional.

Instruction and activities about religious rituals orpractices must be academic. Role plays and

other experiential activities should be presented

in an historical context and should not resemble

religious practice.


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Classroom speech is considered schoolsponsored expression, which can be regulated

for legitimate educational reasons that do not

discriminate on the basis of viewpoint.

Consequently, teacher proselytizing isprohibited. Similarly, teachers must not disregard

portions of the prescribed curriculum that conflict

with their own philosophical or religious beliefs.


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When student speech may reasonably beperceived as school-sponsored speech, school

officials may regulate it when there are

educational reasons for doing so and the

regulation is viewpoint neutral. Where possible,school personnel are advised to make efforts to

accommodate student religious speech in an

alternate forum. Student speech may be

regulated when it causes, or will foreseeable

cause, a substantial disruption to the educational

environment.


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Choral repertoires that incidentally includereligious music or perform at religious venues foreducational reasons are likely to be upheld.

Activities related to the study of holidays thathave both religious and secular meanings arelikely to withstand Establishment Clausescrutiny.

School policies regarding the science curriculumshould neither discredit evolution nor promote

creation science. Teachers may address avariety of theories of the origin of humankind aslong as the theories are presented objectivelywith supporting scientific evidence.


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When school policies are neutral and generallyapplied, the policy is likely to be upheld even if

there is an incidental burden to a student's

religious beliefs.

Students may be released from the public schoolcurriculum to receive religious instruction off

school grounds. However, public school officials

are cautioned to avoid excessive entanglement

with religious groups in coordinating theseopportunities for instruction.


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Copyright Law

The Exclusive Rights and Limitations ofCopyright

Exclusive Rights

Fair Use Recent Copyright Legislation

T.E.A.C.H.

The Digital Millennium Copyright Act (DMCA)

Copyright Term Extension Act (The CTEA, TheSonny Bono Act)

Copyright Laws Recommendations for


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Copyright Laws - Recommendations for

Practice

Online access to copyrighted materials opensschools to limited liability; these institutions needto be proactive and unambiguous in their policiesabout institutional responsibilities;

Students and staff must observe and adhere tothe fact that there are restrictions on the use ofcopyrighted materials whether in hard copy oronline;

Additional copyright protections may be available

to creators of materials used in distanceeducation and this information must also belisted in any school policy;


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Copyrighted materials may now have additionalyears of protection and school personnel may

need to apply for continued permission to employ

such creations or ensure that fair use is

applicable; Assume that Web-based material is copyrighted

and investigate to make sure it is not;

Prepare acceptable use policies for online and

hard copy materials that offer proper guidancefor copyright restrictions and provide sanctions

for inappropriate activity.

C S


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Charter Schools

Charter schools are public schools that areformed by a charter between a designatedchartering authority and those who wish tooperate a school. State legislatures grant

charter schools autonomy from many laws andregulations that apply to other public schools.In exchange for this autonomy, charter schoolsmust achieve the educational goals that are

established in the charter. Failure to meetthese goals may result in the closing of theschool


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Are Charter Schools Public Schools Five States prohibit funding of private schools:

Alaska, Hawaii, Michigan, SOUTH CAROLINA,and New Mexico

Twelve States only permit the funding of publicschools: Connecticut, Delaware, Florida, Indiana,Missouri, New Jersey, NORTH CAROLINA,Oklahoma, Rhode Island, Texas, Washingtonand Wyoming

Four States permit funding of private schools,only if they are under the exclusive control of thestate: California, Massachusetts, New Mexico


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Charter Schools and School Finance Charter Schools have made numerous pleas

to the courts to allow them more funding,

claiming that there rights under the equalprotection clause have been violated


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Charter Schools and Race Care has to be taken that Charter Schools

do not discrimination on the basis of race:

Beaufort County Bd. of Educ. v. LighthouseCharter Sch. Comm., Opinion No. 25583

, SUPREME COURT OF SOUTH CAROLINA

, 353 S.C. 24; 576 S.E.2d 180; 2003 S.C. LEXIS

22, April 16, 2002, Heard; December 4, 2002,

Reheard, January 27, 2003, Filed

Charter Schools - Recommendations for
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Charter Schools - Recommendations for

Practice

Courts appear to agree that charter schools arepublic schools, despite their autonomy from state

regulations.

Legislators should monitor the economic impact

of charter schools on school districts. Legislators should analyze whether charter

schools have sufficient funding to provide for

their students' educational needs.


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Policy makers should explain differences in employmentlaw (such as collective bargaining) between charter

schools and traditional public schools.

Legislators should consider advising charter schools toadopt race-neutral approaches to ensure that their racial

compositions are reflective of the surrounding schooldistricts.

Charter schools that are located in segregated schooldistricts probably have to adhere to the requirements of

court ordered desegregation decrees even if they are

sponsored by entities that are not under federal courtsupervision.

Collective Bargaining In


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Collective Bargaining In

Public Schools

Discussion!

Good or Bad..

For teachers

For students

For tax payers

S h l F di Liti ti


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School Funding Litigation

Affi ti A ti


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Affirmative Action

These policies were designed toincrease employment or educational

opportunities for both underrepresented

groups as well as those who facedhistoric discrimination


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Employment Affirmative Action plans that have been approved

by the courts must be justified by a compellinggovernment interest tailored narrowly to overcomehistoric patters of discrimination and developed to

withstand careful scrutiny The courts used a four point test to describe

narrowly tailored: The test considered the necessity, flexibility and duration

of the proposed relief

The potential effectiveness of alternative remedies The goals and their relationship to the relevant market The impact of the relief on those impacted by the policy


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Education The best policies utilized factors that were race

neutral, contained multiple criteria, and were

narrowly tailored

After desegregation has been obtained, racecannot be used as criteria for admission to

school


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The legal battles today are framed interms of affirmative action, which is a

current campaign issue. Courts have

clearly stated that quotas, based solely,on race are not permissible when making

decisions related to contracts,

employment, and admission toprograms.


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BARBARA GRUTTER, Petitioner v. LEEBOLLINGER et al. No. 02-241

SUPREME COURT OF THE UNITED STATES

539 U.S. 306; 123 S. Ct. 2325; 156 L. Ed. 2d304; 2003 U.S. LEXIS 4800; 71 U.S.L.W. 4498;

91 Fair Empl. Prac. Cas. (BNA) 1761; 84 Empl.

Prac. Dec. (CCH) P41,415; 2003 Cal. Daily Op.

Service 5378; 16 Fla. L. Weekly Fed. S 367


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Parents Involved in Cmty. Sch. v. SeattleSch. Dist. No. 1, (No. 05-908), (No. 05-

915), SUPREME COURT OF THE

UNITED STATES, 551 U.S. 701; 127 S.Ct. 2738; 168 L. Ed. 2d 508; 2007 U.S.

LEXIS 8670; 75 U.S.L.W. 4577; 20 Fla. L.

Weekly Fed. S 490, December 4, 2006,Argued , June 28, 2007, * Decided*
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Boston's Children First v. City ofBoston, No.03-2470 , UNITED STATES

COURT OF APPEALS FOR THE FIRST

CIRCUIT, 395 F.3d 10; 2005 U.S. App.LEXIS 1006, January 18, 2005, Decided

Affirmative Action - Recommendations
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for Practice

Close examination of the policy environment surrounding theconcept of affirmative action relating to education andemployment created circumstances unlikely to be settledwithout court intervention. Competing forces vied for eithermore expedient race based remedies or more conservative,status quo positions. These differences were difficult to

accommodate in the policy environment. Differences inemployment and admissions standards were affected by pastdiscrimination and racially biased practices. Remedies, to be

judicially successful, must be narrowly tailored in promotingcompelling state interests. The prevailing standard of strictscrutiny, compelling state interest, and narrowly tailored plans

continued to serve as a parameter for determining theconstitutionality of affirmative action plans. When consideringrace conscious programs, the following should be considered:


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The plans must be temporary in nature andterminate upon successful integration of workers

or students.

A lay off plan favoring minority teachers with less

seniority than non-minority teachers was toointrusive and drastic to survive a challenge.

Hiring goals favorable to minority teachers could

be acceptable because the denial of future

employment opportunity was not as intrusive asthe loss of an existing job.


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Districts under court orders to desegregate werenot bound by the impermissible use of race in

designing and implementing admissions policies.

If the purpose of a school's admissions process

was narrowly tailored to serve the purpose of astate's compelling interest in improving the

quality of education and remedying past

discrimination, the use of race or ethnicity could

be used as a factor.


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Admissions policies built on a race neutral basisand multiple criteria could be applied fairly and

equitably, thereby constituting a proven policy

development direction. In developing race

neutral criteria for public school and public stateuniversity admissions policies, the use of

multiple criteria such as class rank or social

economic status, instead of race, could prove

instructive.


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School administrators should immediatelyreview and update admissions and student

assignment plans that were designed to

remedy past discrimination in school

districts formerly under desegregation court

orders.

School Desegregation during an


98/131

g g g

Era of Judicial Disengagement

On May 17, 1954, the United StatesSupreme Court heard its most important

educational case and made perhaps its

most significant ruling in Brown v. Boardof Education of Topeka, Kansas.
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Facts: This decision consolidated casesfrom Kansas, South Carolina, Virginia,and Delaware. A companion case,Bolling v. Sharp, dealt with the sameissue in the District of Columbia, thoughunder the Fifth Amendment. Theplaintiffs contended that the education

being received underPlessy v. Fergusonwas not equal and could not be madeequal.
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Issue: Whether separate but equalschools for African-Americans deprive

African-American students of equal

protection under the law, even when,under the Plessystandard, physicalfacilities and other tangible factors are

equal.


101/131

Previous History: The district court in Kansas haddenied relief. In the South Carolina case, the districtcourt denied the requested relief; however, the courtdid order equalization of the facilities. On remand, thecourt found that substantial equality had beenachieved. In the Virginia case, the court denied therequested relief; however, the court orderedequalization in physical plants, curricula, andtransportation. In the Delaware case, the DelawareCourt of Chancery had granted admission to schoolspreviously attended only by Caucasian students on the

grounds that the African-American schools wereinferior with respect to teacher training, pupil-teacherratio, extracurricular activities, physical plant, and timeand distance involved.


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Holding: Separate but equal schools forAfrican-Americans are inherently

unequal.


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Significance: Brownand its progenyended segregation in public schools;

however, it took a long time for the

promise ofBrownto be realized.


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Plessy v. Ferguson, No. 210, SUPREMECOURT OF THE UNITED STATES, 163

U.S. 537; 16 S. Ct. 1138; 41 L. Ed. 256;

1896 U.S. LEXIS 3390, Argued April 13,

1896., May 18, 1896

Desegregation The Fourteenth
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Amendment

After the Civil War, Congress enacted and thepeople ratified the Thirteenth, Fourteenth, andFifteenth Amendments in order to protect therights of former slaves. In 1871, Congress

enacted the Civil Rights Act of 1871. Manystudents and teachers have used section 1983to gain access to federal courts because theybelieve that their civil rights have been

violated. President Johnson signed the CivilRights Act of 1964. Title VI and Title VII protectemployees and students from discrimination.


106/131

42 U.S.C. 1983Any person who, under the color of anystatute, ordinance, regulation, custom, orusage, of any State or territory or the District of

Columbia, subjects, or causes to be subjected,any citizen of the United States or other personresiding within the jurisdiction thereof to thedeprivation of any rights, privileges, orimmunities secured by the Constitution and

laws, and shall be liable to the party injured inan action at law, suit in equity, or other properproceeding for redress.


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Litigation Involving School Desegregation The 1990s: Half A Step Backward

Missouri v. Jenkins (Jenkins 1) This case was more about taxes being mandated by

the courts than it was about desegregation

The courts determined that since the state would notpay for desegregation, than the federal judges would

mandate tax increases to pay for them
http://localhost/var/www/apps/conversion/current/Legal%20Briefs%20-%20Administrators%20Guide/Missouri%20v.%20Jenkins%20515%20U.S.%2070.dochttp://localhost/var/www/apps/conversion/current/Legal%20Briefs%20-%20Administrators%20Guide/Missouri%20v.%20Jenkins%20515%20U.S.%2070.doc


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Missouri v. Jenkins (Jenkins II) The court reversed the authority of

bestowed to the federal judges to impose

taxes This was the last case on desegregation heard

by the Supreme Court.


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Having taken a major stepforward in Brown 1, the Nation

cannot allow the progress tatwas achieved to slip by returning

to a time when many children

suffered due to inequitableeducational opportunities.

English Language Learners


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English Language Learners

This is a topic of great controversythroughout the United States. American

is currently divided over the needs of

language minority students. There isgreat debate over English being

established as the official language of

this country.


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Methodological Definitions There aremany different types of programs toaddress the needs of ELL students.However, the improvement of theseprograms regardless of philosophy isbecoming hard to fund each year. Thecurrent administration continues to

decrease the amount of money allocatedto help educate non-English speakingstudents.


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Bilingual education Focus is on transition bilingual education with an emphasis on rapidtransition to English

English as a Second Language, or ESL Most often used when the population of non-English speaking

students is small. These are generally pull out programs that utilizeELS teachers or paraprofessionals that are not bilingual

Immersion or Structured Immersion Sheltered English the subject is taught in the target language

English. Materials are modified and only Basic English skills arelearned.

Dual Immersion Probably the best method for both ELL students and English

speaking students. Utilizes two teachers that sometimes team-teachsubjects in both languages. This allows an enriching activity for allstudents in the class.


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Foundational Legal Rights of EnglishLanguage Learners

Lau v. Nichols, No. 72-6520 , SUPREMECOURT OF THE UNITED STATES , 414U.S. 563; 94 S. Ct. 786; 39 L. Ed. 2d 1;1974 U.S. LEXIS 151, December 10, 1973,

Argued, January 21, 1974, Decided

Students have their a right to have theirlanguage skill needs met as soon aspossible
http://0-web.lexis-nexis.com.library.winthrop.edu/universe/document?_m=9dd9748e64dbf1f50f2a60d3489a1947&_docnum=1&wchp=dGLzVzz-zSkVb&_md5=a0f7874501fcbda336036567322d85c9http://0-web.lexis-nexis.com.library.winthrop.edu/universe/document?_m=9dd9748e64dbf1f50f2a60d3489a1947&_docnum=1&wchp=dGLzVzz-zSkVb&_md5=a0f7874501fcbda336036567322d85c9


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Referenda Outlawing Bilingual Education Is being used to allow schools the least

expensive manner to deal with ELL students

Given the wording of these laws, schools willsoon be litigated under the 14th amendment

and Civil Rights statues.


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The Equal Educational Opportunities Actand Castaneda:Defining Appropriate

Action

If students continue to fail in public schools,and consequently are not able to obtain

Adequate Yearly Progress, the question will

become if schools are in violation of the

equal protection laws.


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Equal Educational Opportunities Act Castaneda v. Pickard, No. 79-

2253, UNITED STATES COURT OF

APPEALS, FIFTH CIRCUIT. UNIT A, 648F.2d 989; 1981 U.S. App. LEXIS

12063, June 23, 1981
http://0-web.lexis-nexis.com.library.winthrop.edu/universe/document?_m=e43e3bf86a143bdb42b2dea8e2b35d4d&_docnum=1&wchp=dGLzVzz-zSkVb&_md5=651884ace1340124bf704dd115f7a8b1http://0-web.lexis-nexis.com.library.winthrop.edu/universe/document?_m=e43e3bf86a143bdb42b2dea8e2b35d4d&_docnum=1&wchp=dGLzVzz-zSkVb&_md5=651884ace1340124bf704dd115f7a8b1


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Castaneda established a series of three questionsused to determine whether appropriate action isbeing pursued to overcome language barriers:

Is the school system pursuing a program bases on aneducational theory recognized as sound or at least as

legitimate experimental strategy by some of the experts in

the field?

Is the program reasonably calculated to implement thattheory?

After being used for enough time to be a legitimate trial, hasthe program produced satisfactory results?

English Language Learners -

R d ti f P ti


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Recommendations for Practice

Based on research in early literacydevelopment and second language

acquisition, the following features of

effective early literacy programs arerecommended for young ESOL students.

Oral language and literacy development issupported by the student's native language.


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Development and learning begin at an early age, and thelanguage young children have heard since birth is the

language they have used to begin to construct their

knowledge and form meaningful communicative

relationships. All young children come to school with

knowledge and learning from home. Successful earlychildhood programs acknowledge and build upon this prior

knowledge. Wherever possible, young ESOL learners

should receive their initial reading instruction in their native

language. The body of research in second language

acquisition shows that literacy learning is easiest when the

initial instruction is in the student's native language

because literacy skills are easily transferred from the first to

the second language.


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Moreover, use of the native language builds a connectionbetween the home and school. ESOL students' families

should be encouraged to read and talk to their children in the

family's native language if this is their strongest language.

ESOL students' interaction with their families in their native

language will give them the richest possible languagefoundation, advancing the learning of their first language as

well as English, in both academic and social situations.

These experiences will allow young children to associate

reading with meaning from the very beginning so that they do

not word call, that is, pronounce words from print when they

do not understand them.


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Adequate time is provided for students to acquireliteracy skills in English.

It is well documented that all children learn at differentrates. This principle is especially true for young ESOLlearners, who follow developmental patterns that are

distinctly different from those of native English speakers.Young ESOL learners should not be hurried prematurelyinto formal literacy instruction in any language or intomoving from reading in their native language to reading inEnglish. Oral or social language proficiency, which can be

achieved within 23 years, should not be equated withacademic proficiency or literacy in a language.


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Literacy, cognitive, and conceptual development of ESOLstudents should be interlaced. Research shows that for

young children in particular, the stronger the native

language foundation, especially when learned in formal

schooling environments, the greater the academic success

in English literacy development. Of course, not all newEnglish language learners or their families have had formal

schooling opportunities. Therefore, accountability systems

that hold teachers and schools responsible for English

literacy development for ESOL learners in an unrealistic

time frame may, in the long run, hinder the students'

chances for academic success.


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Instruction and materials are developmentallyappropriate.

ESOL students who are at early stages of schooling (pre-K-Grade 2) need to experience developmentallyappropriate instruction that will help them develop oral and

written language proficiency in one or more languages.This kind of instruction engages children in meaningfulinter-actions with adults, other children, concrete materials,and print materials. Moreover, the materials that are usedneed to be comprehensible to the learner and meet their

developmental, cognitive, social, and cultural needs, whichfor young ESOL learners include language proficiency.


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In developmentally appropriate classrooms, studentsspend most of their time in rich language environments in

which they observe, touch, listen, talk, and interact. Early

reading and writing instruction is largely informal, playful,

and based on oral language activities and personal

experiences. Activities that typically challenge the attentionspan of young learners, such as sitting quietly and listening

for long periods, and printing neatly on fine-lined paper,

should be limited. Standards-based instruction, as

described in ESL Standards for Pre-K-12 Students

(TESOL, 1997) and Integrating the ESL Standards Into

Classroom Practice: Grades Pre-K-2 (TESOL, 2001),should be incorporated into developmentally appropriate

practices.


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Literacy programs are meaning-based andbalanced. ESOL learners need to understand why people read and

write in order to be motivated to excel in their own literacydevelopment. A preponderance of isolated skills, such as

intensive phonics program that is not firmly grounded inbooks and stories, does not foster overall readingcomprehension. A balanced literacy program will teachskills within the context of meaningful interactions withtexts that elicit students' emotional and intellectualresponses to ideas, characters, and events. Using

children's literature, preferably from a wide variety ofcultural backgrounds, will be a key part of any suchprogram.


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Effective literacy programs seek both literacy andcontent development, assert that students within

the program are learning the same content as

native-English-speaking children, and look

beyond the classroom for literacy experiences.


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Assessment is reliable, valid, and ongoing. Many young children cannot demonstrate the

knowledge and skills they possess if they areassessed with methods more appropriate toolder learners or those designed for nativeEnglish speakers. In order to more accuratelyassess the literacy development of young ESOLlearners, a variety of formal and informal toolsshould be used. Assessments that only focus onphonics, spelling skills, and writing content andstyle may be vulnerable to linguistic interferencefrom the native language.


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Teachers should be aware that errors onassessments of English literacy skills can bedevelopmental in nature and will disappear overtime as students acquire English languageproficiency. By continually using reliable, valid,

and fair assessments, teachers are able tomodify their instruction and tailor it to theindividual needs of ESOL learners. Gatheringclassroom data on an ongoing basis, asdescribed in Scenarios for ESL Standards-based

Assessment (TESOL, 2001) keeps teachersappraised of student progress toward theattainment of ESL standards.


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Professional preparation and developmentis continually provided for educatorsregarding linguistic and cultural diversity.

The presence of English language learners and

culturally diverse classroomslong acharacteristic only of major citiesis more andmore becoming the norm throughout the country.


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In order to face the challenges that come with adiverse classroom, all educators and

administrators need to have both pre- and in-

service training opportunities in linguistic and

cultural diversity, and in principles of first andsecond language development. It is also critical

for the early childhood educator to understand

the linguistic and cultural backgrounds of their

children in order to facilitate learning and build

cross-cultural understandings with their families.


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The End

schools and the law 4th ed

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