School Law

1. School Law EDLD 611 WINTHROP UNIVERSITY Basic Concepts

2. Bill of Rights Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Winthrop Educational Leadership

3. Amendment II A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed Amendment III No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Winthrop Educational Leadership

4. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Winthrop Educational Leadership

5. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Winthrop Educational Leadership

6. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Winthrop Educational Leadership

7. Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. Winthrop Educational Leadership

8. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Winthrop Educational Leadership

9. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Winthrop Educational Leadership

10. AMENDMENT XIV Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment. Section 1.All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Winthrop Educational Leadership

11. The Fourteenth Amendment guarantees due process of law and fundamental fairness… This made states”no state will deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of laws” Schools are State Organizations and are bound to the Bill of Rights of the State and Federal Governments. Winthrop Educational Leadership

12. What does the Constitution of the United States do? Primary purpose is to protect the fundamental rights of all citizens. These rights include – personal, property and political freedoms. The Constitution itself does not make reference to education, however, it does impact the operation and management of the school district. It also protects the rights of students, faculty and staff while they are engaged in the normal activities of school. Winthrop Educational Leadership

13. The 10th amendment of the constitution does not mention education, consequently the operations and functions of the public schools are addressed in the State Constitutions. Each State Constitution may cover more than the Federal Constitution, but it must meet all of the requirements stated in the Federal Constitution. When laws are made that conflict with either the Federal or State Constitution, either Constitution will prevail. Winthrop Educational Leadership

14. Statutes are developed by the legislative branch of the government. In most cases school rules, policies and procedures are based on State Statutes. Statutes are always subject to review by the Judicial Branch of the Government. The Judicial Branch of the Government is primarily concerned with the constitutionality of the Statute, whether State or Federally founded. Winthrop Educational Leadership

15. The State Legislature grants the local school board the authority to adopt and enforce reasonable rules and regulations. However, school districts must be able to relate all school rules and regulations to the appropriate State Statute or in some cases the State or Federal Constitutions. Winthrop Educational Leadership

16. Case Law Case law generally relies on past cases. (precedents) The court is required to use previous rulings in similar cases to determine the outcome of present, related situations. Case law is considered as “unsettled law” as occasionally the court will render conflicting rulings. A ruling by a federal, district, or appellate court may only affect educational policy makers in that particular jurisdiction. Only the Supreme Court may make a decision that will affect all schools in the nation. Winthrop Educational Leadership

17. School Board Policies School Board policies present the basic rules and law that school personnel are required to follow. School Board policy should be legally defensible and not conflict with Federal and State Statutes, case law, or State and Federal Constitutions. Once all legal requirements are met, the School Board must follow and adhere to it’s on policies. When Board do not follow their own policies that are open to legal challenges and litigation. Winthrop Educational Leadership

18. The Court System • The same structure in both Federal and State Courts: Trial Courts, Intermediate Courts of Appeal, and the Supreme Court • No court can take it upon themselves to decide on an issue, unless that issue is first presents to them. Winthrop Educational Leadership

19. Courts Generally Perform Three Types of Judicial Functions • Settle controversies through applying basic principles of law to specific factual circumstances. • Interpret legislative enactments, and • Determine the constitutionality of legislative or administrative mandates. • When the laws are vague or uncertain, the courts must rely on legal precedents for direction. Winthrop Educational Leadership

20. Federal Courts • Deal with cases involving federal or constitutional issues, or cases in which the parties are residents of different states. • Includes – District Courts, Appellate Courts and the Supreme Court. • 95 Federal District Courts – At least one in every State – Some States with as many as Four District Courts. Winthrop Educational Leadership

21. Federal Appellate Courts • 13 Federal Circuit Courts, including 11 with geographic jurisdiction over a number of states and territories • Many judges on the various Courts of Appeals; Primary function of this court is to review the proceedings of lower courts to determine if there has been an error in of law. • The Appellate Court may make a judgment on the case or remand the case back to the lower court. • South/North Carolina are covered by the 4th Circuit Court of Appeals. This court is located in Richmond, Virginia. Winthrop Educational Leadership

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23. South Carolina Columbia Charleston Florence Greenville North Carolina Raleigh Greenville New Bern Wilmington Greensboro Winston/Salem Charlotte Ashville Statesville Federal District Courts Winthrop Educational Leadership

24. Q: Who appoints federal judges? Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution. The names of potential nominees often are recommended by senators or sometimes members of the House who are of the President's political party. The Senate Judiciary Committee typically conducts confirmation hearings for each nominee. Article III of the Constitution states that these judicial officers are appointed for a life term. The federal Judiciary, the Judicial Conference of the United States, and the Administrative Office of the U.S. Courts play no role in the nomination and confirmation process. Winthrop Educational Leadership

25. Q: How are new judgeships created? Court of appeals and district court judgeships are created by legislation that must be enacted by Congress. New judgeships were last created in July 2003, under Public Law 107-273, which established 15 new district court judgeships. The Judicial Conference (through its Judicial Resources Committee) surveys the judgeship needs of the courts every other year. A threshold for the number of weighted filings per judgeship is the key factor in determining when an additional judgeship will be requested. Other factors may include geography, number of senior judges, and mix of cases. The Judicial Conference presents its judgeship recommendations to Congress. Winthrop Educational Leadership

26. Q: What are the qualifications for becoming a federal judge? The Constitution sets forth no specific requirements. However, members of Congress, who typically recommend potential nominees, and the Department of Justice, which reviews nominees' qualifications, have developed their own informal criteria. Winthrop Educational Leadership

27. Q: How is a chief judge selected? One is not nominated or appointed to the position of chief judge (except for the Chief Justice of the United States); they assume the position based on seniority. The same criteria exists for circuit and district chiefs. The chief judge is the judge in regular active service who is senior in commission of those judges who are (1) 64 years of age or under; (2) have served for one year or more as a judge; and (3) have not previously served as chief judge. Winthrop Educational Leadership

28. Q: How many courts of appeals are there? There are 13 judicial circuits, each with a court of appeals. The smallest court is the First Circuit with six judgeships, and the largest court is the Ninth Circuit, with 28 judgeships. A list of the states that compose each circuit is set forth in Title 28 of the U.S. Code, Section 41. The number of judgeships in each circuit is set forth in Title 28 of the U.S. Code, Section 44. Winthrop Educational Leadership

29. Q: How many district courts are there? There are 89 districts in the 50 states, which are listed with their divisions in Title 28 of the U.S. Code, Sections 81-144. District courts also exist in Puerto Rico, the Virgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. In total there are 94 U.S. district courts. Some states, such as Alaska, are composed of a single judicial district. Others, such as California, are composed of multiple judicial districts. The number of judgeships allotted to each district is set forth in Title 28 of the U.S. Code, Section 133. Winthrop Educational Leadership

30. State Courts • State courts deal primarily with cases that apply to the State’s constitutional law. • Most education cases are heard in State Courts as they rarely involve a Federal question. • Almost all State Courts have at least three tiers of courts. (Trial, Appeals and Supreme) Winthrop Educational Leadership

31. South Carolina Court System http://www.judicial.state.sc.us/ Winthrop Educational Leadership

32. North Carolina Court System http://www.nccourts.org/ Winthrop Educational Leadership

33. The Appellate Court Opinion • Case (Citation) Generally contains the name of the people or organizations involved. The party initiating the complaint is called the “plaintiff”. The party against the suit is against is called the “defendant”. The plaintiff’s name always comes first. (Owen v. Baker) – If the case is appealed the party initiating the appeal is called the appellant and the other party is called the appellee. Winthrop Educational Leadership

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35. U.S. Supreme Court Decisions • United States Reporter (U.S.), the official reports of the Supreme Court Decisions. • Supreme Court Reporter (Sup. Ct. or S.Ct.), published by West Publishing Company. • United States Supreme Court Reporter (L.Ed.), published by Lawyers Cooperative Publishing Company. Winthrop Educational Leadership

36. Example: Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1992). In the first citation, 369 refers to the volume in the United States Reporter; 186 refers to the page in which the case can be found. The second citation, 82, refers to the volume of the Supreme Court Reporter; 691 refers to the page in which the case can be found. In the third citation, Lawyer’s Edition, 7 refers to the volume; 2d refers to the second edition and 633 refers to the page and in which the case can be found; and the 1992 refers to the year in which the decision was rendered. Either of these three sources may be used to locate a U.S. Supreme Court case. Winthrop Educational Leadership

37. Plaintiff? Epperson Defendant? Arkansas 393? Volume U.S. United States Reporter 97? Page Number 89? Volume S.Ct. Supreme Court Reporter 266 Page Number (1968) Year the decision was rendered Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266 (1968) Winthrop Educational Leadership

38. Lets Do Research! http://www.winthrop.edu/dacus/default.htm Winthrop Educational Leadership

39. Case Title (Citation) The reference to the legal authority for a point of law which includes the case name, the volume of the report or reporter, the page number on which it appears, and court. If more than one is in reporter, e.g., Skalnik v. Town of Sperry, 527 P.2d 860 (Okla. 1974). Action The term covers all the formal court proceedings, including the decision and the enforcement of penalties. Facts Something that took place; an act; something actual and real; an incident that occurred; an event; a thing done; something that exists and is real as opposed to opinion or supposition; events which are proven in the evidence heard by a court and upon which the law operates. Components/Elementary of a Legal Brief Winthrop Educational Leadership

40. Issue(s) A legal point of dispute between two or more parties to the litigation which, if it is a matter of law, should be resolved by the court or, if it is a matter of fact, should be resoled by the jury. Lower Ct. Court of which an appeal is made. Holding Decision by a court; rule of law relied on by a court in making its decision in a case Decision Finding by the court Concur To agree with; e.g., a concurring opinion of an appellate judge is one that agrees with the majority opinion though it may be for different reasons. Dissent To disagree; a judge's disagreement with the majority opinion rendered Components cont. Winthrop Educational Leadership

41. Sample Legal Brief • Goss v. Lopez • 419 U.S. 565 (1975) • Facts: Students in the Columbus, Ohio, public schools brought this suit. The students claimed that their constitutional right to due process had been violated when they were suspended temporarily without a hearing prior to their suspensions. The Ohio Code provides for free education for all students between the ages of six and twenty-one. Principals may suspend students for misconduct for up to ten days or expel them. In such cases, the school officials must notify parents of the suspension or expulsion within twenty-four hours and include a notice of the reasons. Suspended students may appeal to the board of education. The suspensions of the ten students, who brought this action, occurred during a period of widespread unrest in the Columbus public schools. Winthrop Educational Leadership

42. Issue: Whether students may be suspended for ten days or less without due process of law. • Previous History: The district court held that due process applies when students are suspended from school for ten days or less. • Holding: Suspensions of ten days or less are not de minimis. Due process is required before school officials can suspend students. Winthrop Educational Leadership

43. Reasoning: Under Ohio law, the plaintiffs had a right to public education; therefore, school officials must accord them due process before depriving them of protected interests. Schools have broad authority to establish and enforce standards of conduct; however, such authority is subject to constitutional limitations. Students have a property interest under the Fourteenth Amendment to an education. The court reasoned that “the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.” The Due Process Clause also protects liberty interests to a good name and reputation from arbitrary action by the state. Short suspensions are less intrusive on students’ rights than are expulsions; however, exclusion from the educational system for ten days is not de minimis. Winthrop Educational Leadership

44. Reasoning cont. • In order to protect property and liberty interests, courts cannot permit school systems to impose suspensions in any way they deem appropriate. If due process applies, what process is due? Due process requires notice and a hearing prior to suspension for ten days or less. A hearing consists in giving the student “an opportunity to explain his/her version of the facts.” • The court stopped short of requiring more extensive due process protections—right to counsel, confronting and cross examining witnesses, and compulsory process for witnesses—in suspensions of ten days or less. The court recognized that requiring extensive due process protections in short-term suspensions would overwhelm the resources of the schools. Providing students and their parents with notice and an informal hearing to tell their version of the incident “will provide a meaningful hedge against erroneous action.” The court further noted that more extensive due process requirements are required in long-term suspensions. Winthrop Educational Leadership

45. Significance: Goss established that due process is required before students may be suspended for ten days or less. The nature of the due process required will depend upon the severity of the consequences for the students. In general, suspensions, of ten days or less, require notice and an opportunity to be heard. Longer suspensions usually require a formal hearing with the opportunity to present witness, the opportunity to subpoena witness, the opportunity to confront witnesses, and the right to counsel. Winthrop Educational Leadership

46. How We Are Going To Write Legal Briefs • Citation = Goss v. Lopez, 419 U.S. 565 (1975) • Facts = State, in your words, the pertinent facts of the case. • Issue = What do we want to know? • Previous History = “Precedent” What happened in matters like this before? • Holding = What did the court decide? • Reasoning = Why did the court decide this? • Significance = Why is this important to us and what did it teach us? Winthrop Educational Leadership