School law for Private School Administrators Important school law cases affecting private school administration. Denise L. Donohue, MCSL Doctoral Candidate Nova Southeastern University Lilly Rangel-Diaz IREACH, Center for Education Advocacy, Inc.
Overview of presentation Categories of law and their affect on private schools. 1. Constitutional Law (3% of presentation) 2. Federal and State statutes and regulations (47%) 3. Common Law (.5%) 4. Contract Law (47.5%) 5. Tort law cases (2%)
*Constitutional Law* • The Constitution of the United States and the Bill of Rights are the framework for public school law. • Public schools are governmental agencies and administers of public schools are public officials.
All Federal regulations, and State constitutions and state regulations, must follow the Constitution and Bill of Rights. • Public school policies must follow these documents.
Critical Amendments pertaining to Public School Law • Amendment I. – Freedom of speech, press, assembly, petition of government. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” • Amendment IV – No unreasonable search or seizure. • Amendment V – No person shall be deprived of life, liberty, or property without due process of law. • Amendment XIV – State law must follow federal law (Amendment V).
Critical Court Cases pertaining to Public School Law • Dixon v. Alabama State Board of Ed. (1961) Students have a right to Due Process. • Tinker v. Des Moines (1969) First amendment rights of Free Speech can not be denied without Due Process. • Goss v. Lopez (1974) Students were suspended from school for 10 days without Due Process.
Interesting court cases applicable to faith-based schools • Engle v. Vitale (1962) Banned school sponsored prayer. • Abington School District v. Schempp (1963) No longer can the bible be read at the beginning of the school day. • Lee v. Weisman (1992) Banned school sponsored prayer at graduation ceremonies. • Jones v. Clear Creek ISD (1992) Banned school sponsored prayer at athletic events.
* Federal and State statutes and regulations* Federal Laws and regulations NCLB: No Child Left Behind Title Funds http://www2.ed.gov/policy/elsec/leg/esea02/index.html FERPA: Family Educational Rights and Privacy Act (Buckley Amendment) FMLA: Family Medical Leave Act – applies if school employees over 50 employees within a 75mile radius. Civil Rights Act of 1964 – Title VII 2 U.S.C Sec. 2000e-1(a) and 42 U.S.C. Sec. 2000e-2(e)(1). Religious exemption for hiring.
Laws pertaining to disabilities ADA: Americans with Disabilities Act (1990) Applies to students and employees. IDEA: Individuals with Disabilities Education Act (1990) (IDEIA, 2004) Applies to students. Section 504: Rehabilitation Act of 1973 Applies to students and employees.
State statutes and regulations Examples of common regulations include: Mandatory attendance rules State History requirements Registration and teacher certification See Dept. of Education publication at www.ed.gov/admins/comm/choice/regprivschl/index.html
Pierce v. Society of Sisters 268 U.S. 510 (1925) • 1922 Oregon Compulsory education act required all children from 8 to 16 to attend public school. • School Sisters operated state approved academies and orphanages. • Supreme Court ruled States could not require students to attend only public schools because 14th amendment provides a liberty interest for parents to decide their child’s education.
Lilly Rangel-Diaz – Laws to know governing students with disabilities ADA, IDEA, 504
Common Law or Case Law • “Common law consists of the judgments, opinions, and decisions of courts adopting and enforcing preceding usages and customs…case law relies on past court decisions, which are called precedents” (Essex, 2012, p.3). • Case law applies to the jurisdiction in which it was determined. Does not apply to other jurisdictions outside its area.
Contract Law Contract law is the predominant law governing private schools. Shaughnessy, (1989). Three primary sources of Contract Law • Teacher/Staff contracts • Faculty/Personnel Handbook • Student/Family Handbook
Basic elements of a contract • Mutual assent – legal offer and acceptance. • Legally competent parties • Consideration – generally involves money. • Subject matter that is legal(ie. Non-discriminatory) • Proper legal form – based upon state requirements.
Faculty/Staff Contract • Primary document governing relationship between employer and employee. • States wages, number of days worked per year, teaching and non-teaching duties, probationary period, “at will” clause.Includes reference to the Faculty and Student handbook as part of the employee contract. • Violation of Church’s teaching is cause for dismissal*. • Signature of contract includes acceptance of Handbooks.
Interviewing • Impermissible inquiries when hiring: Marital status and family situations* Non-job related inquiries into personal history and associations Non-job related education and work history Shaughnessy, M. (1989) • Civil Rights Act of 1964: Non-discrimination clause on the basis of Race, color, religion, sex, national origin. • Civil Rights Act against Age Discrimination 1967: can not discriminate against age. • Americans with Disabilities Act (1990). *http://www.eeoc.gov/laws/practices/inquiries_marital_status.cfm
Interviewing continued • Permissible inquiries when hiring: “Are you a Catholic in good standing with the Church?” “Is there any condition or situation that may cause you to have a problem with regular attendance?” Shaughnessy, (1991), p. 53
Faculty Handbooks Review and update Handbook annually Include: • Philosophy, Mission, Vision, Goals, Objectives • Teaching duties: curriculum guides, lesson plans/instruction, communication with parents, supervision, grading scale & reporting, professionalism (relationships/boundaries). • Non-teaching duties: attendance at school meetings, extra-curricular expectations, student discipline. • Personnel issues: dress code, leaving building during school day, sick leave policy, Bishops safe environment with signature page (if applicable). • Supervision & evaluation policies: Formative/summative, written documentation and employee right to respond.
Loss of Constitutional Protections of: • First Amendment of Freedom of Speech • Fifth Amendment of Due Process School is a private entity operating under primarily contract law. Unless direct and substantial State interest is involved (to warrant public school “status”) constitutional protections do not apply. Areas to review for State interest include state funding, state control, tax exempt status, public benefit or function. Unless a Due Process procedure is included in the contract or handbook, it does not apply. If it is included in either, it must be followed.
Loss of the 1st , 5th and 14th Amendments • Rendell-Baker v. Kohn 457 U.S. 830 (1982) Loss of freedom of speech, due process Rendell-Baker was a counselor at a private school. She advocated and voiced a position against the private school’s board and was summarily dismissed. She brought suit against the principal (Kohn) for violation of the First Amendment of the Freedom of Speech and Fifth and Fourteen Amendment for the loss of due process. Even though the school received 90% of its operational income from state funding “the court declined to find the presence of state action significant enough to warrant constitutional protections” (Shaughnessy, 1991, p.10)
“Violation of Church’s teaching is cause for dismissal.” Faculty Contract. Civil rights code of 1964 of non-discrimination against race, color, sex, and national origin stands, except for religion and Civil rights code of 1967 against Age discrimination, Dolter v. Wahlert High School 483 F. Supp. 266 (1980): Dolter, a female, unmarried teacher at a Catholic school became pregnant and took school to court after they refused to rehire her. Dolter presented evidence that males were rehired who also had pre-marital sex. Court said there was no entanglement between church and state for them to rule on equal treatment for males and females. Court ruled for Dolter. Apply rules EQUALLY to males and females.
“Violation of Church’s teaching is cause for dismissal.” Faculty Contract. • Bob Jones University v. United States 103 S.Ct. 2017 (1983). The private university discriminated on the basis of raceand lost its non-profit status as a result. The state made a “compelling interest” case for racial equality for exempt status and won.
“Violation of Church’s teaching is cause for dismissal.” Faculty Contract. • Steeber v. Benilde-St. Margaret’s High School No. D.C. 739 378, Hennepin County, Minnesota (1978). Teacher protested the non-renewal of her contract following her remarriage after a civil divorce. Rules were written in teacher contract. Courts ruled for view of church teaching based upon contract law.
“Violation of Church’s teaching is cause for dismissal.” Faculty Contract. • Weithoff v. St. Veronica School 210 N.W. 2d 108 Michigan (1973). Teacher was not rehired because of her marriage to an ex-priest. Court ruled for school, but because new rules requiring teachers to be practicing Catholics was not promulgated, court assessed damages due to plaintiff (teacher).
No unions required in Catholic Schools • National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) No union, no grievance procedure, no tenure. Common law may indicate a de facto tenure. If teacher is employed for over three years, then expectation of continued employment may exist.
Student Handbooks • This is contract between student/family and school. Have student/family read and sign handbook signature page each year indicating they have read and agree to handbook policies. Handbook must be promulgated. Policies which are not promulgated are not enforceable. • Can’t include everything in Handbook, so use phrase such as “the principal is the final recourse in all disciplinary situations and may waive any disciplinary rule for just cause at his or her discretion” (Shaughnessy, M., 1989, p. 62)
Guidelines for the development of rules of conduct • Rule must be published to students • Rule must have a legitimate educational purpose. • Must have a rational relationship to the educational purpose • Meaning of the rule must be clear Reutter, E. (1977)
Students do not have 1st or 5th Amendment rights (Freedom of speech or due process). • Handbook dictates any “due process” procedure such as a Notice and Hearing. If this exists it must be done.
Special Tort Cases • Negligence • Corporal punishment • Search and seizure • Defamation
Negligence • Definition: “Failure to exercise a reasonable standard of care that results in harm or injury to another person” Essex, 2010, p.170. Four elements must be present: duty, violation of duty, proximate cause and injury.
Sample case: Titus v. Lindberg 228 1A. 2d 65 (N.J., 1967) • The school administrator was found liable of student injury when a student was hurt before school. The administrator was at the school and knew that students gathered before school opened. No rules were established regarding early arrivals and no supervision was provided. Diamantes, T. & Roby, D. (2000)
Corporal Punishment • May be allowed by state statute • Punishment should be for the correction of a misbehavior (not academic failure) • Punishment should not leave a permanent or lasting injury • Punishment must be administered with an appropriate instrument • The number of blows should probably not exceed three. Shaugnessy, 1989, p. 87
Search and Seizure • New Jersey v. T.L.O. 105 S.Ct. 733 (1985) Public school case which established that schools only need reasonable cause, instead of probable cause, to search students possessions. Not applicable to private schools, BUT there should be some policy in place for searches in schools. Desks and lockers are considered school property. Courts will look to ‘reasonable person’ rules to establish tort cases – how was thesearch conducted, justification at its inceptionindividualized suspicion.
Defamation • Definition: “Includes both libel (what is written) and slander (what is spoken). Defamation is that which tends to injure the reputation; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him…” Black’s Law Dictionary
Defamation continued • Administrators need to take care that all written documentation is behaviorally-based, verifiable, and objective since both student and personnel files are viewable to all parties. • Keep subjective written observations in a separate file.
Summary • Know the source of law which pertains to the situation. Is it Constitutional law, common law, contract law or law based on a Federal or State Statute? Don’t forget individual torts based on negligence! • Review and update Contracts and all Handbooks or Personnel Policy manuals at least annually. Most all Private School Law is based on Contract Law.
References Board of regents of State Colleges v. Roth 408 U.S. 564. Retrieved from http://www.law.cornell. edu/supct/html/historics/USSC_CR_0408_0564_ZS.html Casebriefs. (2012). Pierce v. Society of Sisters 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 1925 U.S. Retrieved at http://www.casebriefs.com/blog/law/family-law/family-law-keyed-to- weisberg/private-family-choices-constitutional-protection-for-the-family-and-its- members/pierce-v-society-of-sisters/ Diamantes, T. & Roby, D. (2000). Student injuries and school: Who is responsible. You be the judge. The Clearing House, 73 (6), 308-311. Retrieved from http://www.jstor.org/discove r/10.2307/30189606?uid=3739600&uid=2129&uid=2&uid=70&uid=3739256&sid= 55922820093 Dixon et. al. v. Alabama State Board ofEducation 186 F. Supp. 945; 1960 U.S. District. LEXIS 3482. Retrieved from http://justice.law.stetson.edu/courses/casedigests/dixon.pdf Dolter v. Wahlert High School 483 F. Supp. 266 (1980).
References • Essex, N. (2012). School law and the public schools. Upper Saddle River, NJ: Pearson. • Justia.com U.S. Supreme Court Center. (2012). Rendell-Baker v. Kohn 457 U.S. 830 (1982) • Retrieved from http://supreme.justia.com/cases/federal/us/457/830/ • Oyez Project: U.S. Supreme Court Media. The Oyez Project, Bob Jones University v. United • States 103 S.Ct. 2017 (1983). Retrieved at http://www.oyez.org/cases/1980- 1989/1982/1982_81_3 • Oyez Project: U.S. Supreme Court Media. The Oyez Project, Goss v. Lopez, 419 U.S. 565, 95 • S.Ct. 729, 42 L.Ed.2d 725 (1975). Retrieved at http://www.oyez.org/cases/1970-1979 • 1974/1974_73_898 • Oyez Project: U.S. Supreme Court Media. The Oyez Project, National Labor Relations Board v. • Catholic Bishop of Chicago, 440 U.S. 490 (1979). Retrieved from http://www.oyez.org • /cases/1970-1979/1978/1978_77_752
References Oyez Project: U.S. Supreme Court Media website: The Oyez Project, New Jersey v. T.L.O. Retrieved from http://oyez.org/cases/1980-1989/1983/1983_83_712 Oyez Project: U.S. Supreme Court Media website: The Oyez Project, Tinker v. Des Moines, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 733 (1969). Retrieved at http:// www.oyez.org/cases 1960-1969/1968/1968_21 Reutter, E. (1977). The courts and student conduct. Topeka, KS: NOLPE (ERIC Document Reproduction Service No. ED 006 406), 1977. Shaughnessy, M. (1989). School handbooks: Some legal considerations. Washington, D.C.: NCEA. Shaughnessy, M. (1991). The law and Catholic schools: Approaching the new millennium. Washington, D.C.: NCEA.
References Steeber v. Benilde-St. Margaret’s High School No. D.C. 739 378, Hennepin County, Minnesota (1978). U.S. Equal Opportunity Employment Commission (2012). Pre-Employment inquires and marital status or number of children. Retrieved from http://www.eeoc.gov/laws/ practices/inquiries_marital_status.cfm U.S. Equal Opportunity Employment Commission. (2012). Title VII of the civil rights act of 1964. Retrieved from http://www.eeoc.gov/laws/statutes/titlevii.cfm U.S. Department of Education. Elementary and Secondary Education.No child left behind title funds. Retrieved at http://www2.ed.gov/policy/elsec/leg/esea02/index.html U.S. Department of Education. Elementary and Secondary Education. Family educational rights and privacy act. Retrieved at http://www2.ed.gov/policy/gen/guid/fpco/ferpa /index.html
References U.S. Department of Education. (2009). State regulation of private schools. Retrieved from http://www2.ed.gov/admins/comm/choice/regprivschl/index.html U.S. Department of Labor. (2012). Wage and hour division: Family and medical leave act. Retrieved from http://www.dol.gov/whd/fmla/