Knowing laws that affect educators can clarify rights and responsibilities and minimize negative consequences
A few years ago, a colleague of mine at a local middle school lamented that he had to stop being a volunteer leader for his church’s youth group. When I asked him why, he said he had heard someone on talk radio say that there was a new state law that we couldn’t be public school teachers and also work with youth in our own place of worship who were also our students in the local school. He was greatly relieved when I corrected him and told him that there was no such law, nor would it be constitutional (see the First Amendment as well as Title VII of the Civil Rights Act of 1964), and that he had every freedom to practice his religion on his own time, including working with youth in his church, but that he should not promote his personal faith while teaching his public school pre-algebra class.
In today’s litigious world, teachers can be very anxious, worried about being accused of all sorts of inappropriate behaviors and statements, not all of which are accurate, and wondering about their legal recourse. They can also operate in the classroom completely unaware that they are violating students’ rights or breaking a local, state, or Federal law, then suffer the consequences of that ignorance when prosecuted for their actions. They also want to support students and colleagues who are suffering an injustice and need advocacy. Knowing their school laws may be the first step to relief.
A Quick Review
A look at some of our education laws demonstrates the direct impact of school law on our professional practices. Teachers may be surprised to find that there is no fundamental right to education guaranteed by the Constitution. Public education is a right protected in state constitutions, not by the federal government, which gets us into very complex waters when it comes to funding: Impoverished areas lack the property taxes and other funding sources to pay for local schooling, so should wealthier areas subsidize impoverished areas because the education of all citizens benefits the general state welfare? See San Antonio Independent School District v. Rodriguez (1972) to start discussion on this.
Brown v. Board of Education (1954) declared that, “separate educational facilities are inherently unequal,” and ordered the end of legally mandated, race-segregated schools. In 2007, when looking at affirmative action and competitive high schools in Seattle, Parents Involved in Community Schools v. Seattle School District No. 1 found that the denial of admission to a public school because of a student’s race in the interest of achieving racial diversity is unconstitutional. Lau v. Nichols (1974) found that, under Title VI of the Civil Rights Act of 1964, which bans educational discrimination on the basis of national origin, students with limited English proficiency have rights to equal treatment in schools, including “linguistically appropriate accommodations.”
What about the right to attend school? In 1975 Texas, they passed a law denying enrollment in their public schools to anyone not legally admitted to the country, and to withhold state funds for the education of such children. In Plyler v. Doe (1982), the Supreme Court took up the case, and their question was, “Whether denying undocumented children of illegal immigrants the right to attend public school constitutes discrimination based on alienage that violates the Equal Protection Clause of the Fourteenth Amendment?” Their ruling: Yes, it does, and the Texas law was unconstitutional. Justice Brennan, in writing for the majority, said,
“[E]ducation has a fundamental role in maintaining the fabric of our society” and “provides the basic tools by which individuals might lead economically productive lives to the benefit of us all.” Further … the children of such illegal entrants “can affect neither their parents’ conduct nor their own status,” and “legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”
There is extensive education law on state curriculum as well. Epperson v. Arkansas (1968), for example, declared an Arkansas statute that made teaching of evolution in public schools illegal violated the Establishment Clause. The justices in Edwards v. Aguillard (1987) found that a Louisiana law requiring the equal treatment of evolution and creation science in public school classrooms unconstitutional. Kitzmiller v. Dover (2005) found that intelligent design was not science and to mandate science teachers in Dover read a statement aloud to students during lessons on evolution indicating intelligent design was a viable alternative to evolution was unconstitutional.
In a recent curriculum case, teachers in a Maryland school district did not violate religious liberty or free speech rights of students by requiring them to do homework assignments and hear presentations about Islam: “[The] Court finds that world history course had a secular purpose, not an endorsement of religion. Applying [the Lemon test], the panel determined that the school officials had the secular purpose of studying religion on a comparative basis.” (February 21, 2019 by David L. Hudson Jr., February 21, 2019 post, “4th Circuit rejects challenge by student who objected to Islam study in World History course,” https://mtsu.edu/first-amendment/post/199/4th-circuit-rejects-challenge-by-student-who-objected-to-islam-study-in-world-history-course).
In other laws, the Equal Protection Clause of the Fourteenth Amendment of the Constitution, furthered by Title VII of the Civil Rights Act of 1964 protects teachers at public schools from discrimination based on race, sex, and national origin, and Title IX of the Education Amendments of 1972 protects against discrimination based on sex at educational institutions that receive federal financial assistance. Teachers are allowed to join labor groups and run for political office as long as those efforts don’t interfere with their school responsibilities. Teachers are not allowed to be terminated or demoted due to pregnancy, nor can they be denied a promotion for pregnancy. Yes, principals and teachers can search students’ lockers and backpacks (New Jersey v. TLO (1985)), and yes, schools can have metal detectors, but they are not allowed to be used only on certain groups of students and not others.
Let’s keep all those special education laws on the radar as well, including Section 504 of the Rehabilitation Act of 1973 in which public schools are required to have a 504 coordinator, and to make reasonable changes to instruction and setting so students with disabilities can be successful. Disabilities include anything that
…substantially limits one or more of major life activities … Attention Deficit Disorder (ADD), epilepsy, food allergies, dwarfism, bi-polar disease and many more. Under these circumstances, schools may not ban or prevent students from obtaining the full benefits of a solid education based on a student’s disability and reasonable request for accommodations.
Reasonable accommodations include things like extra time for taking tests, removing distractions from a student’s work area, letting students stand during class, providing a graphic organizer if needed, providing an audio recording of text if visually challenged, giving a “heads up” notice to students before transitions, providing a collapsible aperture (interlocking L’s) so students can focus on just one segment of text when reading, among others.
Turning to students’ rights and freedom of expression, Public Law 98-377, the Equal Access Act, requires schools to grant equal access to student groups that wish to meet for religious, political, or philosophical purposes, if the school allows other types of non-curriculum-related student groups to meet. And yes, students have a right to express opinions and beliefs in school, including wearing black arm bands as a statement against what they feel is an unjust war, as long as it doesn’t disrupt the class or school activities:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate … School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect … In the absence of specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.
– Justice Abe Fortas, writing for the majority, Tinker v. Des Moines Independent Community School District (1969)
In Bethel School District No. 403 v. Fraser (1986), however, the Supreme Court identified limitations on student expression after a student made a vulgar speech at a school assembly and the school disciplined him for it. The Court declared that the student’s speech, “…failed the ‘substantial disorder’ part of the Tinker test. Chief Justice Warren Berger, writing for the majority, said that schools have a responsibility to instill students with ‘habits and manners of civility as values.’ The effect of Fraser’s speech … was to undermine this responsibility; therefore, he did not receive First Amendment protection for it.”
Note that in Hazelwood School District v. Kuhlmeier (1988), when a principal censored articles in the school paper about pregnancy among students, the Supreme Court further restricted student expression. The Court declared that Tinker v. Des Moines (1969)
…didn’t apply since the school newspaper was a school-sponsored activity. According to the Court, when an activity is school sponsored, school officials may censor speech as long as such censorship is reasonably related to legitimate educational concerns. The Court went on to define these concerns broadly, stating that school officials would have the right to censor material that is, ‘ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences, or inconsistent with shared values of a civilized social order.’
In sum, principals and schools are allowed to censor student newspapers, literary magazines, and theatrical productions.
Yes, students have the right to stay silent and seated during the Pledge of Allegiance, and no, schools are not allowed to start the day or any activity with a prayer or promote religion [see the Establishment Clause of the First Amendment, Engel v. Vitale (1962), and Abington School District v. Schempp (1963)]. Interestingly, in Elk Grove Unified School District v. Newdow (2004) in which a father didn’t want his daughter to say the Pledge of Allegiance because of its inclusion of, “Under God,” the 9th Circuit found that Congress’s 1954 act adding the words “under God” to the Pledge and the school district policy requiring it be recited both violated the First Amendment’s establishment clause.
In 2019, Kennedy v. Bremerton School District questions whether or not a sports coach can lead voluntary prayer after the sporting event when he is such an influential authority upon students and represents the school in that moment on the field. As of this writing, the Supreme Court has refused to hear the case.
In addition, when states and localities attempt to pass laws regarding religious teachings in schools, Lemon v. Kurtzman (1971) clarifies that statutes “Must have a secular legislative purpose; must have primary effects that neither inhibit nor advance religion, and cannot foster an ‘excessive government entanglement with religion.’ This is the go-to test for many legislative debates. We cannot promote religious beliefs and practices in public schools,but we can teach about the influences of religion. Would any of these rulings pertain to our current school practices?
In Pickering v. Board of Education (1968), the Supreme Court found that teachers had a First Amendment right to speak on matters of public importance, meaning the school system couldn’t punish or fire a teacher for writing an editorial in a local paper that was critical of the school system. This is clarified, however, with, “Teachers may not materially disrupt the educational interest of the school district, nor may teachers undermine authority or adversely affect working relationships at the school” (education.findlaw.com/teachers-rights/teachers-different-freedoms-and-rights-article). Wait, it gets messier: What about teachers discussing politics in class or posting on Facebook or Instagram? It’s actually not well protected under the law. In Garcetti v. Ceballos (2006) and later in Mayer v. Monroe County Community School (2007), the Supreme Court declared that teachers can speak outside the classroom, but rights to free speech in the classroom and while doing anything pursuant to their jobs are not protected:
The Supreme Court, in Garcetti v. Ceballos, a case where a prosecutor was transferred and denied a promotion after questioning the credibility of a deputy sheriff, greatly restricted the freedom of speech of public employees by holding that speech pursuant to one’s official duties that harms one’s employer can lead to discipline. In other words, a tweet from an account identifying the speaker as a teacher at a particular school criticizing the school or the district (or perhaps a student or student’s parent) may lead to discipline or termination if it could potentially damage the employer.
In a second case, again involving an angry prosecutor, a lawyer was terminated after circulating a questionnaire about the alleged mismanagement of the district attorney’s office. This is also where the court highlighted the line between private work matters (not protected), and “matters of public concern” (protected): the office’s internal management was of no concern to the public, but a tweet about, say, a political election might be protected.
What’s the best practice for teachers? If you must use social media, include disclaimers that note that your speech is your personal opinion and not related to your employment. Also, avoid speaking about work-related matters unless … the speech is protected as discussion related to working conditions and collective bargaining.
And in Mayer v. Monroe County Community School (2007), the court stated:
A teacher hired to lead a social studies class can’t use it as a platform for a revisionist perspective that Benedict Arnold wasn’t really a traitor, when the approved program calls him one; a high school teacher hired to explicate Moby Dick in a literature class can’t use Cry, The Beloved Country instead, even if Paton’s book better suits the instructor’s style and point of view; a math teacher can’t decide that calculus is more important than trigonometry and decide to let Hipparchus and Ptolemy slide in favor of Newton and Leibniz.
– Underwood, J. (2017/2018). School districts control teachers’ classroom speech.
Phi Delta Kappan, 99(4), 76-77
This is just a taste of what’s circulating around us, affecting each of us—including our students—in real time and real ways, as we walk to the front of the room to explain Punnett squares in our genetics unit. The law protects us and our students, but to avail ourselves of its best intent, we need to be up to speed and aware. Legal savvy on the part of classroom educators has achieved some of the greatest moments in student and professional advocacy over the decades, but it takes reading up on school law, or at least having an initial understanding of our rights and our responsibilities. Here are some recommended resources to get started:
- American Public School Law by Kern Alexander and M. David Alexander
- School Law and the Public Schools: A Practical Guide for Educational Leaders by Nathan L. Essex
- School Law: What Every Educator Should Know, A User-Friendly Guide by David Schimmel, Louis Fischer
The laws of any given country are some of the clearest expressions of that country’s values and identity. To know ourselves and to progress as a civil and compassionate society, we need to understand our laws. Teaching students and operating schools blind to those laws can do real damage. When working with young adolescents so focused on fairness and progressively nuanced ethics, in particular, it’s wise for us to know school laws, help students interpret those laws, and use that knowledge in the service of student learning and teacher professionalism. With this, we file for the plaintiff: successful middle schools everywhere. It is entered on the merits alone, and without objection.
The Importance of Knowing School Law — An Interview with Chris Toy
Chris Toy, a veteran middle school teacher and principal, has taught a popular graduate school course in school law for teachers and administrators for years. He does very little lecture, choosing instead to conduct the course through case studies, classroom simulations, and mock court activities. When asked to consider the importance of educators knowing school law, he writes,
I’m still amazed that an introduction to school law doesn’t appear to be a required part of stepping into a classroom and working with students; we need to keep up to date. In my course, we use current, often undecided, appellate court cases because things are changing FAST. Any teacher or administrator not up to speed on transgender issues, charter schools and funding, digital citizenship, or family privacy rights will quickly find themselves in the news and possibly in court.
Yes, educators need to know the classic history of school law, such as Brown v. Board of Education, Tinker, Rowley, etc. Those set the stage for so many things such as students’ rights, equal access, Free Appropriate Public Education guaranteed by the Rehabilitation Act of 1973, and more. Educators also must know recent landmark cases—Newdow, Endrew v. Douglas County, Grimm v. Gloucester County—to avoid depriving students and their families of important rights.
The most crucial thing teachers and administrators need to keep in mind are their legal rights and responsibilities as caretakers acting in loco parentis: “in place of the parents.” Most teachers have pretty much forgotten what they learned about the Bill of Rights. And more importantly, they may never have engaged in conversations and situations in schools and classrooms where the fundamental rights of students, parents, teachers, administrators, and citizens come into conflict. Few teachers understand that there are important differences and similarities in how the freedoms of speech, religion, privacy, equal access, and equal protection apply in schools. Of course, one class in school law will NOT make educators competent to address legal issues that have spun out of control, but they will have a better chance of sensing that a situation MAY be a legal issue that needs to be referred to a supervisor.
I share my MR. T (Model, Reflect, Transfer) strategy in the course, but the most important one that educators ignore at their own peril is taking time to Reflect. Most legal fights in school law can probably be prevented if a teacher or other decision maker takes a few seconds to stop in the heat of a situation and reflect on the legal implications of what is happening or about to happen, rather than yielding to a knee jerk response. This reflection element really resonates with my graduate students in the course. After one class, one student suggested I add a sound bite to my slide on the importance of reflecting before acting, recommending Dave Brubeck’s, “Take Five.”
Sound legal advice.
— Chris Toy, via e-mail interview, March 10, 2019