examples of legal issues in education

10 Ethical and Legal Issues in Education

“A child born to a Black mother in a state like Mississippi… has exactly the same rights as a white baby born to the wealthiest person in the United States. It’s not true, but I challenge anyone to say it is not a goal worth working for.”

Thurgood Marshall

Learning Objectives

• Define a code of ethics in education
• Explore legal protections for students US schools
• Explore legal protections for educators in US schools
• Describe foundational legal cases that impact US schools

Pause and Ponder – Can the teacher use this book?

A high school English teacher is planning to have his students read The Bluest Eye by Toni Morrison. Set during the Great Depression, the main character searches for her identity and sense of self. In addition, there are themes of race, class, exploitation, and sex in the novel. Can the teacher include this book in his reading list for the year even though it was banned by the Parent Teacher Association (PTA)?

Actually, there is no clear answer for this teacher. The National Education Association (NEA) Code of Ethics suggests a standard of reasonableness. When making decisions as a teacher, ethics oftentimes presents a ‘gray area’ and does not always provide a definitive resolution.

In this chapter, we review the roles and responsibilities of teachers in today’s public schools as they relate to ethical and legal issues in education. We explore ethical teaching, along with legal parameters, established through case law and set up in the U.S. Constitution and its amendments. Rights for both teachers and students are examined, and current implications are discussed.

Ethics in Education

When you think of your favorite teacher, it is not often that you consider whether he or she was ethical. Yet professional ethics and dispositions, as well as the legal responsibilities of teachers, are central in defining how students view their favorite teacher. Ethics provides a foundation for what teachers should do in their roles and responsibilities as an educator. It is a framework that a teacher can use to help make decisions about what is right or wrong in a given situation.

Teachers are not only responsible for their students but also in the long term, for the growth and development of their community. Today’s students are tomorrow’s leaders, workers, policy makers, thinkers, dreamers, and voters. It is not a stretch to say that teachers really do hold the future in their hands. To that end, developing an ethical and liberatory approach to teaching is crucially important.

Deeper Dive: Liberatory Education

Liberatory education has been discussed in a prior chapter. Here is a reminder – Liberatory Education

10.1 ​What is a Code of Ethics?

Most professions have a Code of Ethics that binds its members together through shared values and purpose. This professional Code of Ethics is a widely accepted standard of practice that outlines the accountability of its members to those they serve as well as to the profession itself (Benninga, 2013). Here are some examples of Ethics Codes :

Varying Codes of Ethics in Educational Organizations

Each of the statements on ethics from these teacher professional organizations complements the others, outlining expected behaviors and dispositions, identifying professional intent, and solidifying commitments that are expected from educators in their roles representing public schools throughout the state and nation.

Let’s see how a Code of Ethics could impact the scenario that opened this chapter. Recall that the high school English teacher wanted to include a controversial book on his reading list for the school year that has been banned from use. He believes this book will provide a rich experience for his students and provide stimulating class discussion and debate around identity and race. In determining whether or not to incorporate the text, the teacher must ask himself if he is truly presenting different points of view. In so doing, the teacher is adhering to the National Education Association (NEA) Code of Ethics, specifically Principle I, Item 2:

Principle I: Commitment to the Student:

The educator strives to help each student realize his or her potential as a worthy and effective member of society. The educator therefore works to stimulate the spirit of inquiry, the acquisition of knowledge and understanding, and the thoughtful formulation of worthy goals.

In fulfillment of the obligation to the student, the educator shall not unreasonably deny the student access to varying points of view (National Education Association, 2019, para. 8).

With this Code of Ethics in mind, this teacher could argue that reading this book stimulates the spirit of inquiry and knowledge acquisition, and not reading the book would unreasonably deny the students access to varying points of view.

Code of Ethics in Action

Consider the ethical dilemmas that are present every day in the classroom and the ethical decisions that a teacher must make. Consider how each decision that a teacher makes impacts the functioning of the school, the well-being of the students, and the personal goals of the teacher in pursuit of the profession of teaching and supporting student learning.

There is not always one right “answer” in any given situation. A Code of Ethics provides guidelines to help guide your decision making and teaching practice. It helps with what you should do. It does not provide specific directions on what to do or even how to do it.

Ethical decisions take place every day in our classrooms. Oftentimes, you may believe that treating students equally is an ethical approach. But if you go into a classroom, you may notice a teacher calling on a shy student and not calling on another student who usually dominates the discussion. Is this equal? Is this fair? These are two different things. The teacher is clearly treating the two students differently. The NEA Code of Ethics guides your teaching behaviors by placing your students at the center of your practice. Always consider that you must treat all students equitably, not necessarily the same or equally.

Critical Lens – What is Equity and what is the difference with Equality?

What is equity? – It is the continual process of looking for and removing things that create disparity. Equity requires providing people what they need to succeed in the proportion to which they need it. Equity can not be achieved with a neutral approach. Meeting students where they are at is an equitable approach.

Equity vs Equality

A professional Code of Ethics governs a teacher’s relationships, roles, conduct, interactions, and communication with students, as well as families, administrators and the larger community. It provides educators with a way to regulate personal conduct and ethical decision making. It does not tell a teacher why they should do something. Having an informed awareness of statutes, laws, and other legal influences will assist you in defining your role as an ethical teacher who is also fair and responsible. It is essential for an effective educator working under any code of ethics to understand diverse student needs and deliver equity in practice.

Pause and Ponder

What are your own personal ethical beliefs having to do with education? What might be some ways to practice no harm?  What situations could you envision in teaching that would require ethical decision-making?

One topic that’s not commonly covered in codes of ethics for teachers is a continuous commitment to examining and addressing one’s own biases. As  mentioned elsewhere in this text, as humans, our bias reflects the implicit values and beliefs of the community and society. Our biases influence how we interact with students, their experiences in school, and even their outcomes and opportunities. Here’s an example of how this works. Recently, researchers found that even in online classrooms, teachers’ racial and gender bias can influence whether students get referred to gifted programs or special education programs.

Activity – Personal Biases

Watch this film and consider your own biases

• What does my headscarf mean to you? with Yassmin Abdel-Magied
• Provide an example of a time personal bias impacted a decision in your work.
• What might you do as a teacher  to continually assess whether and how you are bringing your personal biases into the classroom?

10.2 Education and the Law

What does discrimination look like in the classroom.

Discrimination in the classroom can be overt or covert and can take many forms. The following list provides broad ways that discrimination could be identified in the classroom.

• Treating people inequitably based on social categories, e.g., race, nationality, language (see more below about Protected Classes)
• Treating people unequally and/or oppressively because they belong to a marginalized group
• Behavior that results in subordinating or continuing to subordinate a marginalized group

Protected Classes and Federal Laws Protecting Individuals’ Civil Liberties

Federal laws explicitly protect certain classes of people, called protected classes, from discrimination. This means that it is illegal for any federal or state organization or public entity to discriminate against someone based on their protected class(es) status.

Critical Lens – Protected Classes

• Race – The socially constructed categorization of people based on racialized characteristics
• Color – The amount of melanin in a person’s skin determining their coloring
• National Origin – The nation where a person was born or where their ancestors come from
• Religion – The US Constitution gives people the right to freedom of religion and schools must accommodate the religious needs of students
• Sex – Gender-based policies that favor a specific gender are prohibited in schools. It is important to note that the state of Oregon has further laws that extend the protected class status to individuals based on sexuality and gender identity
• Marital Status – A school cannot discriminate against an individual based on their marital status
• Disability – The American with Disabilities Act (ADA) defines disability as any mental or physical impairment that limits major life activity
• Age – Age discrimination particularly relates to personnel in schools in that age cannot be a discriminatory factor in hiring, retaining or compensating employees

10.3 The U.S. Constitution and the 1st and 14th Amendments

Significant, ground-breaking court cases have influenced the practice of public schools throughout history and many verdicts have come from the U.S. Supreme Court. The majority of these cases focus on the First and Fourteenth Amendments.

The First Amendment of the U.S Constitution

It addresses the freedom of speech, religion, press, and the right to petition the government, and assemble peaceably (U.S. Constitution, First Amendment).

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.

First Amendment of the U.S. Constitution ratified in 1791

Courts have been called to answer questions about the freedoms outlined in the First Amendment as they relate to teachers and students (American Library Association, 2006). Cases include the dismissal or suspension of personnel due to issues such as religious clothing, political symbols and speaking profanity at a school assembly .

Critical Lens – Tinker v. Des Moines

Tinker v. Des Moines

A school district in Des Moines passed a rule that students could not wear armbands to protest the Vietnam War.  In Tinker v. Des Moines, the students argued that the district was violating their right to freedom of speech and the Supreme Court ruled in favor of the students. The Court also ruled that the only time school or school personnel could impinge on a student’s right to freedom of speech was if they could show that the behavior significantly interfered with “the requirements of appropriate discipline in the operation of the school.”

The Supreme Court in Washington, D.C., has settled many cases in our country’s history about how the U.S. Constitution, especially the First and Fourteenth Amendments, relates to public schools.

In Bartels v. Iowa (1923) , the Supreme Court upheld a conviction of a teacher for teaching German to students. The English-only movement in schools that many attribute to contemporary times has its roots in some of the xenophobia that was used to justify World War 1. Later, In Griswold v Connecticut (1965) the court ruled that the right to teach foreign languages is protected by the First Amendment of the constitution.

The First Amendment rights provides teachers a degree of protection for in-class curricular speech. In Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico (1982) , the Supreme Court found that the school board could not restrict certain books in the school system’s libraries because school board members disagreed with the content. Doing so was found to be a violation of the First Amendment and our protection with regards to freedom of speech.

Critical Lens – First Amendment Protections

• Freedom of speech is the right for individuals to speak freely without fear of censorship or reprisal from the government. The right to freedom of speech applies to both school personnel and students. For example, a teacher might bring legal action against a school if they are fired for talking about issues of public interest like a school board election. Another example is that students have the right to exercise their freedom of speech through protests or messages on their clothing.
• Freedom of exercise limits government interference and actions on individuals’ religious beliefs and individuals’ practices in relation to their religious beliefs
• Freedom of press protects print and electronic media from censorship. This may apply in certain cases to school newspapers and media releases.
• Freedom of assembly ensures the right that people can gather together peacefully as long as they are not engaging in illegal or criminal activities. This may apply in certain cases to students’ right to form and participate in group protests in schools.

These rulings have come into conflict over the years due to school systems also having the right to set the curriculum. This school system precedent was upheld in Krizek v. Board of Education (1989) when a non-tenured English teacher showed an “R”-rated film to high school students and her contract was not renewed. The district court found that the teacher’s First Amendment rights were not violated, rather the school board acted reasonably in determining that the film was inappropriate. (We’ll discuss tenure in more depth later in this chapter.)

The Fourteenth Amendment of the U.S. Constitution

It guarantees equal opportunity for due process and equal protection to all who live within the jurisdiction of the United States. This amendment was ratified in 1868 and written specifically to protect the rights of recently freed enslaved people.

Ensuring that this opportunity applies to all persons, it reads:

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.

Fourteenth Amendment of the U.S. Constitution ratified in 1868, Section 1

The Fourteenth Amendment provides a guarantee that a state cannot take away constitutional rights or privileges as identified in the U.S. Constitution (National Constitution Center, 2020). It has three primary clauses:

• The Incorporation Doctrine extended the rights guaranteed in the Bill of Rights to state governments. This means that any state laws that violate the rights granted by the Constitution at the federal level would be overturned.
• The Due Process Clause affirms that states may not deny any person “life liberty, or property, without due process of law.”
• The Equal Protection Clause establishes that states may not “deny to any person (citizen or non-citizen) within its jurisdiction the equal protection of the laws.”

Both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment significantly impact education. The Equal Protection Clause is examined throughout this chapter as it relates to foundational legal cases, racial issues, and LGBTQ+ rights and discrimination. Next, we will consider how the Due Process Clause affects educators and students.

Activity – Scenario

Which legal  protections might apply to this case?

Soledad Garcia was born with Cerebral Palsy in Texas in 1955. She had no access to schooling and her Mexican-American  parents could not afford to send her to a specialized facility and so she stayed at home. Which of the following protections might have helped Soledad’s family as they  advocated for her education?

10.4 What Federal Laws Protect Students and/or Educational Personnel’s’ Civil Rights?

The civil rights act of 1964.

Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, or national origin by constraining private, non-government parties from discriminatory behavior in any program or activity that receives federal funds, e.g., schools and school related programs. Title VII of the Civil Rights Act mandates that it is unlawful for employers to discriminate against an individual in hiring, retention, and compensation because of the individual’s race, color, religion, sex, or national origin.

The Individuals with Disabilities Act (IDEA)

IDEA was enacted in 1975 to ensure that children with disabilities had access to a free appropriate public education beginning at age 3 through age 21. The law provides guidance to states and school districts about special education services. One important mandate from the 2004 reauthorization of IDEA provides guidance to states and school districts to analyze and remediate the overrepresentation of racially, ethnically, culturally, and/or linguistically marginalized students in special education services.

The Family Educational Rights and Privacy Act (FERPA)

FERPA was written to ensure the privacy of students’ educational records. It applies to any school or district that is receiving federal funds. FERPA is covered in more detail later in this chapter.

Title IX of the Education Amendments of 1972

Title IX prohibits discrimination on the basis of sex in programs and activities that receive federal funds, including schools. Some example provisions relate to discrimination on the basis of pregnancy, participation in athletic and/or STEM activities, hiring based on gender, and/or sexual harassment.

Section 504 of the Rehabilitation Act of 1973

Section 504 prohibits employment discrimination against an individual with a disability when they can perform the essential job functions with reasonable accommodations. This act focuses on employers in organizations receiving federal funding, including schools.

The Americans with Disabilities Act (ADA)

ADA prohibits discrimination against individuals with disabilities in employment, schools, transportation, public and private services, and accommodations. This law applies to all public entities whether or not they receive federal funding.

No Child Left Behind (NCLB) Title III – Every Student Succeeds Act

NCLB’s Title III mandated the creation of funding and support for school districts so that they could better serve students learning English as an additional language, often called English Language Learners (ELLs). The act created the Office of English Language Acquisition with a mission and budget to “close the achievement gap” between students learning English as an additional language and native-English speaking students.

Every Student Succeeds Act (ESSA)

The Every Student Succeeds Act (ESSA) was signed into law in 2015 (Every Student Succeeds Act, 2015). It replaces the No Child Left Behind (NCLB) Act that was enacted in 2002. ESSA requires states to be more accountable for the achievement of students within their public schools. Its purpose is to provide equitable opportunity for students with diverse backgrounds to include those living in poverty, minorities, special needs, and English language learners.

ESSA provides school districts more control in how they set education standards and determine consequences for low-achieving schools in their districts. States provide an accountability framework to the federal government that assures that all students receive a high-quality education. States are responsible for having an accountability plan and specifying the accountability measures that they and their school districts will follow (Lee, n.d.).

The state educational plan must include how each school within the state will:

• maintain academic standards;
• provide annual testing in grades 3-8 in reading and math;
• identify accountability measures that look at academic achievement, progress, English language proficiency, and high school graduation rates; and
• measure school success by kindergarten readiness, advanced placement coursework, college readiness, and chronic absenteeism or discipline rates (Every Student Succeeds Act, 2015).

Schools must provide to the federal government a plan that outlines how they will ensure that students learn and achieve in their schools. If underperforming in any of the above areas, schools must additionally present a plan for improvement.

For more information, you can visit the U.S Department of Education

Critical Lens – No Child Left Behind: Two perspectives

What supporters said:

• Acknowledgement of the inequities between US public schools and that some schools had been failing kids for decades
• Raise preparation requirements for teachers- make sure they are qualified

What critics said:

• Over-testing of students which causes students to disengage
• Teachers lost valuable teaching time
• Overreach of federal government
• Prioritized rote memorization and basic processes
• Publicly sanctioned schools, many of them minority serving, for not meeting established goals, thereby perpetuating negative stereotypes
• Ignored assessment frameworks that recognize multiple and

Food and Nutrition Services USDA Departmental Regulation 4330-2

This USDA regulation was established to ensure that programs, activities, and institutions that receive financial assistance from the USDA (including school cafeterias) comply with civil rights laws and do not discriminate against individuals based on their protected class status.

Activity – Reflection

In terms of Soledad, the student mentioned above, almost all of the legal protections mentioned here could have applied to her case but most notably IDEIA which provided significant access to students living with disabilities. Before 1975, if a student had a disability, they were excluded from the US educational system. The Civil Rights Act of 1964 advocated for racial justice and laid the foundation for other marginalized groups, including those who live with disabilities, to access education? Because of Soledad’s various marginalized identities, multiple laws bear on her situation.

Have More Questions about Federal Laws Related to Discrimination in Educational Environments? See the following resources:

• Race and National Origin Discrimination (Takes you to a US Department of Education page) 
• Sex Discrimination (Takes you to a US Department of Education page)
• Disability Discrimination (Takes you to a US Department of Education page)
• Age Discrimination (Takes you to a US Department of Education page)

Due Process

For educators and students, due process requires considering whether a constitutional right has been infringed upon by the state, and then affords the accused student, teacher, school district or state the right to a fair and impartial trial. Generally speaking, the due process clause of the 14th amendment entitles students and educators to an impartial trial or hearing when certain constitutional rights are infringed by the state.

All members of the school community have the right to due process with the purpose of providing a fair trial. The central premise of due process is fairness. A school district can be sued if others believe the district acted in an unfair or unreasonable way. This legal argument can be made on behalf of a teacher, student, parent, or community member. Anyone who believes that they were unfairly or unreasonably impacted by a policy or procedure of the school can institute a legal case against the school.

In the Supreme Court case Hortonville Independent School District No. 1 v. Hortonville Education Association (1976) , the Justices ruled that the school board was able to deliver due process in a reasonable manner when it fired teachers who went on strike after contract negotiations failed. The teachers were asked to return to work but refused. They were then terminated. The teachers argued that their dismissal violated their due process and should be reviewed by an impartial decision maker. The court did not agree, citing instead that the school board was viewed as the impartial decision maker, and they did not need to be independent from the issue.

Schools in the United States accept responsibility for children as they enter through their doors, and teachers have responsibilities that relate to educating students as well as providing physical, social, and emotional safety to all children, beyond teaching the required curriculum. Because of the diverse nature of schools, the U.S. court system helps to balance teachers’ and students’ responsibilities and rights.10.5 Foundational Legal Cases

Throughout U.S. history, there have been many notable court cases heard by the Supreme Court related to public education in the United States (National Constitution Center, 2015). Select foundational legal cases are highlighted below:

Examples of Foundational Legal Cases in Education

Activity – Scenario Legal Case

Which Legal cases might apply to this situation?

Rebecca welcomed Moise Francois to Beavercreek Elementary. His mother had none of the usual  documentation but she  did have an ID card and a local address on a utilities bill which helped to establish that this was their elementary school. Rebecca knew that legally the schools never asked for social security cards or any other kind of immigration or naturalization paperwork due to the landmark Plyer vs Doe case. She also knew that she could place Moise in an ESL classroom for his first day which would help to ease him into the US school system. The school had a plan for its English Language Learners, as required by law per the landmark Lau vs Nichols case (both cases explained below).

Lau v. Nichols (1974)

A group of Chinese American students who were learning English as an additional language sued their school system for violating their 14th Amendment rights by not providing them enough language support to be successful in school. The Lau v. Nichols case was grounded in the Civil Rights Act of 1964 as it discriminated against the students based on their national origin. The Court ruled in favor of the students and codified the civil right to be instructed in a language or through a method (such as ESL) that is understandable. The Court ruling laid the needed groundwork for the argument that national origin discrimination extends to language-based discrimination because language and national origin are inherently interconnected.

Deeper Dive –  Federal Court Rulings Related to Discrimination in Educational Environments

Where Can I Find More Information about Federal Court Rulings Related to Discrimination in Educational Environments?

• Case Summaries Related to Protected Classes [Takes you to a United States Department of Justice page}
• The Stanford Equality of Opportunity and Education Project [ introduction page ] has curated this list of landmark US legal cases related to equality and opportunity in K-12 education

Throughout U.S. history, courts have become more involved in helping school districts make decisions that affect how localities and states conduct schooling (Thomas, 2019). As diversity increases throughout the United States, school policies and procedures continue to be challenged in our court systems. When pursuing legal action, the goal is to ensure that schools provide a fair and reasonable system of education for all students.

10.6 State Oversight

Each state must follow its respective State Constitution as well as the U.S. Constitution when defining the role and responsibilities of public schools within their state. Although education is a responsibility of the state, school districts have authority over their individual schools as it relates to curriculum and discipline. Rights are afforded to teachers in normal day-to-day functioning and when appealing grievances as it relates to such things as contracts, policies, denial of tenure, or suspension. Students must also adhere to this authority, unless it overrides a student’s constitutional rights.

States provide a wide range of oversight. They identify the minimum licensure requirements for educators. States also dictate what educators must do within that state to maintain their teaching licenses. State laws provide guidelines regarding how schools are organized based on funding. The legislature and Governor of each state allocate a certain amount of funding to school districts throughout their state. School districts then decide how those funds are spent. State legislatures and courts have intervened to help reduce funding disparities among poorer and wealthier school districts to better ensure that all students have equal access to education. States also create a state board of education, set-up school districts throughout the state, and establish school boards for each district. State laws also help to define student discipline and due process policies.

Examples of state involvement within public schools include:

• Creating school districts
• Allocating a budget to school districts
• Regulating schools throughout those districts
• Establishing the organizational structure for schools
• Defining policies and functions of the school
• Setting minimum curriculum requirements for schools
• Defining licensure requirements for educators, and
• Determining working conditions (National Conference of State Legislatures, 2020).

10.7 State of Oregon

If you are planning to get licensed in the state of Oregon, be sure to review the appendix on Civil Rights in Oregon.

In this section, you will learn about state laws that protect individual civil liberties and prohibit discrimination in educational settings. It is important that you are familiar with these laws and how they are applied in schools because teachers are considered “state actors” who act on behalf of the state.

Oregon Revised Statutes Relevant to Educational Settings

Oregon Revised Statutes (ORS) are codified laws of the State of Oregon. These are released every two years so it is important to know current laws related to discrimination in educational settings, and also that you can access the ORSs in future through this website

Protected Classes and State Laws Protecting Individuals’ Civil Liberties

In the State of Oregon, sexual orientation is a protected class. This extends the federally recognized protected classes to include sexual orientation. Sexual orientation is an individual’s physical and/or emotional attraction to other individual(s) or not. Some terms used to describe a person’s sexual orientation may be heterosexual (straight), gay, lesbian, bisexual, pansexual, or asexual.

What Protections are Individuals Afforded Under The Oregon Constitution?

Article I of the Oregon Constitution is a bill of rights of the privileges, immunities, and authorities that may be legally and morally claimed by the citizens of the state within the bounds of reason, truth, and the accepted standards of behaviors. These rights include:

• Natural rights inherent in people
• Freedom of worship
• Freedom of religion
• No religious qualification for office
• No money to be appropriated for religion
• No religious test for witnesses or jurors
• Freedom of speech and freedom of the press
• Equality of privileges and immunities of citizens
• Assemblages of people; instruction of representatives; application to legislature
• Taxes and duties; uniformity of taxation

Deeper Dive – Information about Oregon State Laws Related to Discrimination in Educational Environment

Where Can I Find More Information about Oregon State Laws Related to Discrimination in Educational Environments?

• The Oregon Secretary of State keeps an archive of all Oregon Administrative Rules (OARs) for the Oregon Department of Education
• The Oregon State Legislature maintains an archive of Oregon Revised Statutes (ORSs)

10.8 Rights of Teachers

Teaching License

As discussed previously, the first step in becoming a legally-recognized teacher is to earn a teaching license. Each state has different requirements for earning a teaching license, as they define the specific dispositions, knowledge, and skills needed to obtain and maintain employment within a school in that state. In Oregon, the process is overseen by The Teacher Standards and Practices Commission. If you choose to complete an undergraduate or graduate degree program in order to teach, you will be working toward fulfilling the requirements of a teaching license in the state where your institution is located. Many states have reciprocity with other states’ teaching licenses, meaning that you can earn a teaching license in one state and still go teach in another one, as long as you also complete the requirements for earning a teaching license in that new state.

Once a teacher applies for and receives a job at a school, they receive a teaching contract. A teaching contract is a written agreement between the school system and the teacher and serves as a legal document identifying the roles and responsibilities for the teaching position. If the school board negotiated with a teacher’s union, then the policies and regulations of the union will also be identified in the contract. The teaching contract must be signed by the teacher, school, and ratified by the school board to be binding. The teaching contract is binding unless it is breached, should either party fail to perform as agreed during the time frame specified in the teaching contract. Be aware that each state has a different definition of the types of teaching contracts that are presented to teachers within the state.

You may have heard of the word “tenure” in discussions about teaching contracts. Tenure protects teachers from arbitrary dismissal by school officials. Tenure derived from the Pendleton Civil Service Act of 1883, which was originally established as a merit system for government workers. Tenure rights for teachers in the United States date back to 1909, when the NEA lobbied for these rights. States define tenure laws for teachers in public schools, including elements like probationary periods and termination procedures. A school district can dismiss a tenured teacher for justifiable reasons such as noncompliance, immoral conduct, committing a crime, and insubordination. A teacher can also be dismissed for financial reasons, such as when a school district has a deficiency of funds.

Tenure does not guarantee a teacher a job for life, nor does it offer lifetime employment security (Hart, 2010). The focus of tenure is on supporting and protecting good teachers. It is an earned process that mandates due process. The benefits of a continuing contract or tenure are that a school must show cause in order to dismiss you because you, as the teacher, have due process rights. Advocates for tenure see its benefits for teachers in that it “significantly strengthens legal protections embodied in civil service, civil rights, and labor laws” and “protects a range of discriminatory firings not covered under race and gender anti- discrimination laws” (Kahlenberg, 2015, p. 7). In addition, teacher tenure has been shown to increase morale and overall teacher involvement within a school and collaboration among colleagues. Tenure affords teachers the ability to question and engage with school leadership as it relates to the functioning of a school and in building a strong school culture, which has been linked to increased academic achievement for students (Lee & Smith, 1996).

Presently, some states are changing their legislation as it relates to teacher tenure. The Every Student Succeeds Act (ESSA) and Race to the Top grants through the U.S. Department of Education both require states to evaluate student achievement and teacher effectiveness. Certain state legislatures view teacher tenure as a barrier to these initiatives because it is more difficult for school districts to dismiss tenured teachers for poor performance, and as a result, relatively few tenured teachers are fired (Goldhaber & Hansen, 2010). Therefore, some states have begun to change tenure laws to adhere to the accountability requirements stipulated by the U.S. Department of Education as it relates to teacher evaluation and student achievement. As a result, some tenure systems have been removed or revamped with annual contracts requiring satisfactory performance. Florida, Indiana, North Carolina, and Kansas have eliminated tenure completely (Underwood, 2018). Additional states are also currently contemplating limiting or removing tenure for teachers.

Activity – Licensure Requirements

Look up licensure requirements for the state where you want to teach. What do you notice? What kinds of knowledge, training, and experience are you required to have? How is your understanding assessed before you are granted a license?

Unions and Participation in Professional Organizations

The National Education Association (NEA) and American Federation of Teachers (AFT) are two of the largest teacher labor unions and professional organizations in the United States at present. Both have been in existence for more than 100 years and support teachers, along with other school personnel. As unions, both organizations support their members with collective bargaining, whereby they work alongside teachers as they negotiate with their respective school districts to resolve disputes, as well as to lobby Congress for state and federal legislation that would impact educational related issues, including teacher rights and responsibilities. In some states, teacher unions will support your right to strike as a means of collective bargaining.

You can join the union that is present in your school or even start one, but since not all states recognize unions, the NEA or AFT may not be able to assist you with collective bargaining or school board negotiations, depending on your state of employment. Collective bargaining is legal in Oregon and Washington. Collective bargaining is illegal in Virginia, North Carolina, South Carolina, Georgia, Alabama, Texas, and Arizona. You may hear these referenced as  “ right to work states ,” which means that employees have a right to work without being forced to join a union. Even so, each professional organization provides support, a rich network of educators, and professional development around issues and opportunities that can be beneficial for your teaching practice.

It is not often that educators are permitted to strike because they are employed by the state and are considered vital to public service. Still, some teachers do strike regardless of state laws that may prevent them from striking, as we saw in 2018 in West Virginia, Kentucky, and Oklahoma. When teachers go on strike, the impacted school board can obtain a court injunction to order teachers back to the school and teachers can lose pay for each day on strike. In many states, they can also be dismissed from their teaching positions for striking.

Activity – Advocacy

You may have heard of the #RedforEd movement, which involves teachers striking or protesting in many different states as a way to advocate for students. Watch this video to learn more about this movement from the National Education Association (NEA)

Academic Freedom

Many teachers consider academic freedom to be a constitutional freedom outlined by the First Amendment. Because a teacher is a state employee and has signed a legally binding teaching contract, the teacher has a legal obligation to adhere to the rules and regulations identified by the school board and the laws of the state and federal government. A teacher represents the school and cannot do whatever they want in the classroom. Likewise, a teacher does not have complete freedom of speech to say whatever he or say wishes either. All teachers must follow guidelines represented in their teacher contract and the policies and procedures of the school board.

While the legal system has afforded teachers the right to select appropriate class materials, the educational purpose, the age and sophistication of students, and the context and length of time to complete assignments must all be considered. For example, if you wanted to teach the muscular system in human anatomy in your sixth grade science curriculum, but this content is not taught until tenth grade, you would not be able to change the curriculum framework set by the school district per your teaching contract.

If an activity aligns to your curriculum framework and you have followed the guidelines set forth by the school board, you could, for example, have a speaker come into your classroom to talk about an aspect of your curriculum or use an article published in the newspaper. Doing so would not be in breach of your contract. As you prepare for class instruction, consider your assigned curriculum, review school policies, and ask your school principal or other mentor teachers for guidance.

Academic freedom basically refers to the freedom of teachers to communicate information and share curricular material, without legal interference. In many cases, teachers were allowed a fair amount of academic freedom in creating and teaching their coursework. However, this has been notably changing in a highly politicized and divided nation.

Freedom of Speech and Expression

Pause and Ponder – Teacher Rights

Imagine a teacher published an opinion piece in the local newspaper. In the editorial, they were very critical of a policy that the school board had just passed. They also included many allegations that were not accurate. The community reacted very strongly on both sides of the issue. What rights does this teacher have for freedom of expression outside of their position as a teacher in this school district?

Outside of the classroom, freedom of expression for a teacher has been challenged in the court system if administration or general public determined that the speech or behavior was disruptive to the effectiveness of a school. Because a teacher has a professional responsibility to their school, educators must be careful about what they say, both at school and outside of school. It is also important for teachers to be mindful about what they post on social media, even if it is their personal account.

In the Pickering v. Board of Education (1968) case, the Supreme Court reversed a lower court ruling and found that the teacher’s First Amendment right to free speech had been violated after he was dismissed by the school board for writing and publishing a letter in the local newspaper criticizing the board. The court held that teachers were able to voice concerns, even if those concerns were unfavorable to the school, as long as the regular school operations were not disrupted. In the case, the court’s opinion was that the plaintiff’s First Amendment rights to free speech were not lost because a school district believes the speech is not in its “best interest.” After this ruling, the teacher in this case was reinstated to his position.

This influential case regarding First Amendment rights and freedom of speech for public school teachers established precedent that public employees have the ability to speak out on issues of public concern, even as state or government employees. Even so, the rights of public employees continue to be challenged in the U.S. court system.

In Connick v. Myers (1983) , the Supreme Court again reversed a lower court decision and ruled that speech of public employees is protected only when they speak on matters of public concern. The case results here showed that the rights of public service employees must be balanced between matters of public importance and an employer’s interest to maintain a disruptive free workplace.

Similar to freedom of speech, a teacher’s freedom of expression can also be called into question as it relates to personal presentation and dress. Court cases surrounding dress code requirements established by school boards and imposed on teachers in their local schools have established some legal precedent, but this also continues to be a hotly debated topic. As a public school teacher, can you exercise your own ‘personal liberty’ in how you dress?In East Hartford Education Association v. Board of Education (1977) , a public school teacher was reprimanded for failing to wear a necktie while teaching an English class. Joined by his teachers union, he sued the board of education on the basis that the admonishment for the dress code violated his rights to free speech and privacy. This case was heard in the U.S. Court of Appeals who found that the school board was justified in imposing the dress code. As a teacher and public servant in a position of trust, the court felt that this professional requirement and overall governance by the school board on the appearance of its teachers was warranted.

For many teachers and students alike, dress and personal appearance is considered a freedom of expression. Geographic diversity and individual school culture can also be a factor in what is allowed or not allowed as it relates to dress codes in schools across the United States (Sternberg, n.d.). What is acceptable in southern California may or may not be in West Virginia or Vermont. School principals often become the main authority for ensuring compliance (Waggoner, 2008). A standard of reasonableness is useful when crafting a successful dress code, along with clarity of language and flexibility dependent on the situation to determine appropriate dress and professional presentation. Review the dress code for your school and district to ensure that you are in compliance.

Critical Lens – In the News

In the fall of 2020, a teacher at a charter school in Texas says she was fired after wearing a mask with “Black Lives Matter” written on it ( Pygas, 2020 ).  The school told her the mask was a violation of the dress code and asked her to avoid wearing the mask due to the “current political climate.”  When she stated in an email that she would not stop wearing the mask, the school said she had “effectively resigned her position,” since she did not intend to follow the established policy.  Dress codes are one part of the professional behavior you may be expected to follow once you sign a teaching contract, so it is important to know exactly what your dress code policy says and what your rights are. Similar incidents have occurred in Oregon. Check out the  controversy in Newberg, Oregon and how they banned freedom of expression regarding Black Lives Matter  and LGBTQ rights: https://www.opb.org/article/2023/01/17/newberg-oregon-school-district-rescinds-policy-on-controversial-symbols-in-lawsuit-settlement/

Liability and Teachers

Now, imagine an elementary school teacher is outside with their students on the playground. Two children ask if they can climb on the climbing wall. The teacher agrees and begins to walk over so they can monitor their play. At that very moment, a child falls off the monkey bars she was playing on and begins to cry. The teacher quickly walks over to the fallen child and notices that she has a cut on her arm. Can this teacher be sued for negligence?

When at school, educators have a responsibility that is referred to by the courts as “in loco parentis” or “in place of parents.” This means that while in school it is the responsibility of educators to make similar judgments as it relates to the safety of children that a parent might make. Because an educator is legally responsible for the safety of children under their supervision, a teacher is considered negligent if they fail to protect a child from injury or harm.

Accidents happen, and there are multiple ways that a child could be injured, such as in the playground scenario described above, in the lab of a science classroom, or even running down the hallway. However, if it is determined that negligence did occur, or even if a parent believes that negligence took place, a liability suit can be brought against the teacher or the school. The person who was harmed can bring civil or criminal charges against the student or teacher who threatened harm. In addition, a teacher can be dismissed and lose his or her teaching license as well as be criminally or civilly charged.

Protections exist for teachers that limit liability. These include:

• A reasonable attempt was made to anticipate a dangerous condition;
• Proper precautions were instituted to include establishing rules and procedures to prevent injury;
• Students were warned of possible danger; and
• The teacher provided proper supervision (Legal Information Institute, n.d.).

The Supreme Court of Wyoming held in Fagen v. Summers (1972) that the teacher did everything possible to keep students safe following a playground accident, citing that “a teacher cannot anticipate the varied and unexpected acts which occur daily in and about the school premises.” Schools and/or teachers are generally not held responsible for accidents occurring on school property under these types of circumstances.

In another playground accident in Louisiana several years later, Partin v. Vernon Parish School Board (1977) , the judge reiterated the importance of a teacher demonstrating a “high degree of care” for students under his or her supervision, while confirming the earlier decision and citing that “the teacher is not the absolute insurer of the safety of the children she supervises.” In both of these cases, the teacher was not found guilty of any negligence based on the above criteria.

Teachers can have a lawsuit brought against them for civil liability or civil statutes if it is believed that:

• a student has been mistreated or abused either verbally, physically, emotionally, or sexually by the teacher.
• a teacher discriminated against a child due to his or her gender, race, or a special need(s).
• a teacher treated certain children unfairly, such as through grading practices.
• offensive material was assigned by the teacher (Legal Information Institute, n.d.).

Once you begin teaching, your school and state will have specific policies regarding liability protection for teachers.

Critical Lens:  Who Gets to Define “Offensive”?

What happens if what some families deem offensive is the lived experience of others? For example, a teacher in Texas was placed on administrative leave when some families complained about posters on the “walls” of her virtual Bitmoji classroom ( Fitzsimons, 2020 ). These virtual “posters” depicted affirmations of LGBTQ+ communities and the Black Lives Matter Movement.  But what about the students who see themselves in these LGBTQ+ and Black Lives Matter posters?  How do we create classroom communities that are inclusive of various cultures and perspectives, while also acknowledging that some groups deem certain cultures and perspectives as “offensive”?

Teacher Privacy

Privacy is considered to be a protection in the U.S. Constitution under the Fourth Amendment as it relates to unreasonable searches and seizures (U.S. Constitution, Fourth Amendment).

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.

Fourth Amendment of the United States Constitution ratified in 1789, revised 1992

In the Supreme Court case, O’Connor v. Ortega (1987) , the court ruled that public employees retain their Fourth Amendment rights with regard to administrative searches in the workplace. The Court held that a standard of reasonableness was sufficient for work-related intrusions by public employers. It cited that an employee’s expectation of privacy may be unreasonable when the intrusion into the office is by a supervisor rather than a law enforcement official while conducting normal business functions. For teachers, the school is considered a public place and therefore there are minimal limitations placed on search and seizure. However,  your personal effects, such as a phone or bag, do not belong to the workplace and if searched, require a warrant. For your own protection as a teacher, use care when deciding what to bring into the school.

Critical Lens – Teachers and Copyright Laws

A Word about Teachers and Copyright Laws

Teachers are not exempt from copyright laws, and you must be careful about the materials you use in your classroom. In the Copyright Act of 1976, Congress established guidelines for the duplication of copyrighted works. According to the law, teachers may make a single copy of a chapter of a book, an article, a short story, short essay or poem, a diagram, chart or picture. Educators may make multiple copies of copyrighted work for the use in the classroom provided they meet specific guidelines of brevity, spontaneity, and cumulative effect.

Teachers also need to be mindful of copyright laws involving electronic media. Pay attention to copyright laws for using videos, DVDs, and software programs. Be aware that internet laws are still evolving, and it is best to check with their librarian or media specialist in your school building.

Religions and Schools

The First Amendment separates religion from the business of the state. Government is prohibited from imposing religious beliefs on any person. Public school serves as a state government service and therefore it must be neutral and not promote religious beliefs on anyone in the school. The practice of religion in schools has been challenged from prayer in schools, to religion in the curriculum, religious clubs and access to public school facilities, to artifacts and clothing.

Critical Lens – Supreme Court Cases on Religion in Schools

The Supreme Court has continuously upheld the separation of religion from the school environment (ACLU Legal Bulletin, 2020).

The courts have upheld that there is a separation between church and state even to the extent of one’s own personal beliefs. In 1980, a teacher refused to teach a city-designed curriculum that she said violated her own religious beliefs. In the Palmer v. Board of Education of the City of Chicago (1980) decision, the court recognized that a teacher can have personal views that might be different from the curriculum, but upheld that the mandate of the school district to provide an education requires that teachers “cannot be left to teach the way they please.”

10.9 Rights of Students

Students share many of the same constitutional rights to ensure protection as adults. Several sections outlined below parallel those shown above under Teacher Rights, but with additional emphasis on the students themselves.

Courts have mandated that for a school to operate safely it needs to have broad authority to establish rules and regulations as it relates to student conduct within the school. This means that parents agree to give some level of control to schools when they enroll their child in the public school system. The courts have also insisted that students do not lose all of their constitutional rights and a school’s influence is not absolute.

Schools have an obligation to provide a safe and orderly learning environment. Reasonable limits are put in place regarding language, such as banning offensive language, to assure appropriateness and respect. Forms of expression for students that are protected in schools include:

• the right to wear religious clothing and talk about religion,
• to be free from bullying and harassment, and
• to be free from racial or national origin discrimination (United States Courts, n.d.).

Protecting students’ rights to political speech was explored in Tinker v. Des Moines Independent School District (1969) , which served as a landmark Supreme Court case and the decision upheld that free speech was permitted in schools. This ruling was later challenged in 1986 when a student used what was considered ‘vulgar’ language by the school in a speech at an assembly. The student was reprimanded by the school and the student sued the school claiming that his constitutional right to freedom of speech had been violated. The case went to the U.S. Supreme Court where the court decided in Bethel School District No. 403 v. Fraser (1986) that a school is not required to permit offensive or disruptive speech on school grounds at a school sanctioned event because offensive speech or language disrupts the educational mission of the school and is inappropriate for a school setting.

Freedom is also limited as it relates to a student newspaper. In Hazelwood School District v. Kuhlmeier (1988) , the U.S. Supreme Court decided that a student newspaper can be regulated for “legitimate pedagogical concerns” allowing a school to remove articles that school officials deemed inappropriate for the school community. The decision went further, allowing a school to determine if the speech was written in a reasonable manner for members of the school community and ensuring that it did not contain language that was “ungrammatical, poorly written, inadequately researched, biased, prejudiced, vulgar or profane, or unsuitable for immature audiences.” The court found that because a school newspaper is not intended to have a public forum, a school can limit speech by imposing reasonable constraints if it is determined the speech would disrupt a classroom and the normal functioning of a school.

In the present day, free speech as it relates to the Internet is the same for teachers as it is for students. If it is found that the speech posted online ‘substantially disrupts’ the functioning and purpose of a school, disciplinary actions can be taken against either cohort.

Schools have the right to limit forms of expression–including speech, digital communication, and dress–when they interfere with the pedagogical mission and goals of a school.

In Doninger v. Niehoff (2008) , a student’s derogatory comments posted online were found to make a substantial disruption to the school. A blog post contained language that would be prohibited within the school and was disruptive to the work and discipline of the school. A Court of Appeals held that even though the online comments were made off campus, the speech could be restricted to promote school-related goals on campus. This case relates to disruptive speech and cyberbullying. It underscores school responsibility in maintaining a safe environment for students.

The speech of students and teachers is constitutionally protected, but the extent of the speech, as it relates to the mission and goals of a school, must always have a legitimate pedagogical focus and direction. This holds true whether it is in print in a school newspaper, in the local newspaper, or in electronic format. It is true if it is part of the curriculum or in a theater production on school grounds. Speech is influenced both on and off campus and can come under the school’s authority both in-person and online.

Dress codes have been challenged by students claiming that they impinge on freedoms of speech and expression. Courts have upheld that school boards can impose student dress codes to include symbols, clothing, and jewelry if it is believed to have the potential to disrupt a school’s functioning.

In addition to supporting free speech as discussed above, the Tinker v. Des Moines (1969) case also weighed in regarding dress code. During the Vietnam War, students planned to wear armbands to protest the War. Their principal tried to limit these protests by banning armbands. The court ruled against the school, holding that there was no evidence that students wearing armbands would disrupt school functioning.

In 2006, a student wore a shirt to school that other students found offensive and which depicted a particular political viewpoint. He was asked to cover the shirt based on the off-putting image and speech. He refused and was given a disciplinary referral. In Guiles v. Marineau (2006) , the student then sued the school administrators to have the disciplinary referral expunged from his record and to disallow the school from enforcing the dress code policy against him. The District court held that the school was entitled to enforce its dress code policy, but upon appeal, the U.S. Court of Appeals ruled that the shirt was protected speech under the First and Fourteenth Amendments.

In another case, B.H. and K.M. v. Easton Area School District (2013) , students were suspended for wearing bracelets that showed support for breast cancer awareness. In this case, the judge ruled in favor of the students. The school district then elevated the case to the Supreme Court, but the court refused to hear the case, stating that the message on the bracelet did not use lewd language and was not disruptive to the purpose of education. The First Amendment requires schools to see all student views equally, as long as they are not obscene or disruptive, irrespective of the message expressed (Sherwin, 2017).

Pause and Ponder – Dress Code

Andrew Johnson, a high school wrestler in New Jersey who wore his hair in cheekbone-length dreadlocks. Moments before Johnson was about to go to the mat for a match, the referee told him he wouldn’t be allowed to compete because his hair was too long.

Do you think this was an ethical decision?

What are the equity implications ion this?

The purpose of a dress code is to provide an optimal learning environment. However, the learning environment can be restrictive if it includes  gender-biased language that results in stricter enforcement of rules for female minority students and groups belonging to a particular culture.  A gender-neutral dress code is recommended, and those who create the policy should attempt to gather student input when revising the school dress code.   (Barrett, 2018).

Pay attention to the news–you are likely to hear many examples of dress code violations that systematically oppress certain groups. For example, a school in Houston made the news in early 2020 [2] for their dress code policy. The policy required male students to keep their hair “ear-length or shorter,” thus banning dreadlocks. One male student, De’Andre Arnold was told he would have to cut his dreadlocks in order to walk at graduation. Despite complaints, the school district stood by its policy. In August, a federal court ruled this policy was discriminatory.

The American Civil Liberties Union also provides guidance on student rights as they relate to school dress codes, gender, and self-expression:

• Views are protected by the First Amendment and therefore schools cannot ban symbols or slogans or messages that they disagree with on student shirts, buttons, wristbands, or other garments or accessories.
• While public schools can establish dress codes, they cannot treat boys and girls differently, censor viewpoints, or force students to conform to gender stereotypes under federal law.
• Students are allowed to wear clothing that aligns with their gender identity and expression (ACLU Fact Sheet, 2016).

Schools and administrators must be aware of the constitutional rights of students and protect these freedoms. Schools can assert certain restrictions as they relate to freedom of speech and expression, but at the same time they also need to be cognizant of student diversity and cultural differences, as well as gender distinctions, and economic disparities.

Think about some of your experiences with dress codes. Which cultures were normalized, and which were marginalized? Here are a few ideas to get you started.

• Gender and sexuality: Were males and females held to different standards? (For example, were females expected to wear skirts or not to wear strappy shirts? See the #Iamnotadistraction movement [3] or the Let Her Learn report [4] advocating for female bodies not to be hyper-regulated and sexualized in dress codes.)
• Race: Were certain hairstyles or traditions allowed or not? (For example, Black hair styles [5] are frequently at risk of marginalization, along with Black and Brown bodies in general [6] .) Or, are certain racial groups punished more frequently [7] for dress code violations?
• Religion: Are head coverings and facial hair regulated? (For example, the Air Force updated their policy [8] in February 2020.)
• Socioeconomic: Were certain types of clothing allowed or not? (For example, some dress codes limit cheap plastic flip flops but allow more expensive leather ones.)

Search and Seizure

Imagine that a teacher suspects a student has illegal drugs in her backpack. They noticed the student at her locker placing a small bag in the front pocket. The teacher immediately reports their suspicions to the principal. What should be the next step? The school administrator must have a “reasonable suspicion” based on facts specific to the student or the situation. A “hunch” is not sufficient. Rather, the principal must believe that searching the student will turn up evidence of violating a school rule or law. “Reasonable” is based on what is being searched for and the age of the student.

The Fourth Amendment of the Constitution protects U.S. citizens from unlawful search and seizure of possessions. If there is probable cause for a search, a warrant is required from the court system before a person can be searched. Because of the nature and purpose of school, courts have allowed schools to both search and seize possessions if there is probable cause.

Personal materials, including lockers, are not supposed to be searched without reasonable suspicion that a student is in violation of the law or a school rule.

In New Jersey v. T.L.O. (1985) , the Supreme Court established a standard of reasonableness for student searches conducted at school and by public school personnel. While the Fourth Amendment disallowing unreasonable search and seizure still applies, if school administrators have a reasonable suspicion that a student has either broken the law or violated a school rule, the search is justified. In this case, the student was found smoking in the bathroom, a violation of school rules, and taken to the principal’s office where her purse was searched based on a reasonable assumption that the student had cigarettes in her purse.

Random drug tests have historically been permissible for both teachers and students. In the Supreme Court case Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002) , the court held that athletes can be randomly tested for drugs to protect the safety of the school and to ensure a drug-free school. The safety and well-being of the school outweighed the privacy rights of students who were voluntarily participating in the sporting events. The Court concluded that while the students participating in extracurricular activities have limited Fourth Amendment rights, within the school setting there is a lesser expectation of privacy, and the students’ rights must be balanced against the school’s interest in keeping illegal drug use to a minimum (Staros & Williams, 2007).

In 2005, a 13-year old student was called out of class and questioned by police officers with school officials present regarding neighborhood burglaries. His parents were not contacted, nor was he read his Miranda rights, such as the right to remain silent, leave the room, or have access to a lawyer. The child confessed to the crime but later sought to suppress his confession based on not receiving any indications of his rights while he was in police custody in the school conference room. This case, J.D.B. v. North Carolina (2011) , was later heard by the Supreme Court where they ruled that age should have been considered in deciding whether the student was in police custody within the school grounds. The justices went on to state that there are psychological differences between an adult and a child, and when police are involved in questioning students, they must use “common sense” due to the developmental differences of children. The Miranda warnings should have been applied in this case in a manner appropriate for the student prior to his questioning.

Search has also been controversial with the use of video surveillance and metal detectors in schools. Currently, courts have held that if school safety has been threatened, means of surveillance can be introduced into the school, but that extensive surveillance using video or metal detectors can hinder reasonableness of the surveillance and violate Fourth Amendment protections. The intent of school policies and procedures are consistently to provide and maintain “a safe, secure, healthy, and disruption-free learning environment” that is conducive and supportive to teaching and learning (Vacca, 2014, p. 5).

Privacy of Records

In 1974, Congress passed the Family Educational Rights and Privacy Act (FERPA), also called the Buckley Amendment. This was an Amendment to the Elementary and Secondary Education Act (ESEA) of 1965. FERPA is a federal law that protects the privacy of student educational records. FERPA requires schools to allow parents and students access to official school records. It also requires schools to provide procedures for parents to challenge the accuracy or completeness of information in their child’s record. Parents retain the rights of access to their child’s school record until the child reaches the age of eighteen or is enrolled in a postsecondary institution.

The intent of FERPA is to protect student privacy and improve parental access to their child’s information within the school. It does not guarantee access to all school records on a child, such as personal teacher notes, letters of reference, grade books, or correspondence with a principal. These items are exempted from view. There may also be files or information that are kept separate from a student’s file to protect the privacy rights of other students in the school.

FERPA guidelines require schools to:

• Inform parents annually of their rights regarding their child’s records.
• Provide parents access to their child’s records.
• Maintain procedures that allow parents to challenge and if needed, amend inaccurate information.
• Protect parents from disclosure of confidential information to third parties without their consent (Family Educational Rights and Privacy Act, 1974).
• Allow students to opt out of testing

Deeper Dive – FERPA

What is FERPA?

This brief yet comprehensive video will outline what the Family Educational Rights and Privacy Act is and how it impacts students both at the K-12 and higher education levels.

Video Link: What is FERPA? Student Privacy 101

Have more questions about the role of FERPA in educational settings?

• United States Department of Education: Protecting Student Privacy: Frequently Asked Questions
• United States Department of Education: Protecting Student Privacy: K-12 School Officials

10. 10 Current Implications

Throughout the history of schools in the United States, ethics and the function of laws have evolved as society has changed. To date, current issues continue to be addressed in our nation’s public schools and within our court systems. While others exist as well, below are three current issues within education and society as a whole.

Racial Issues

Today, racial concerns remain a key issue for schools and society at large. In T.B. et al. v. Independent School District 112  (2019) , African American students filed a complaint against white students in Minnesota. They claimed they had been harassed and the school did not intervene to remove racism, harassment, and discrimination nor did it protect their rights to safe and equal access to education within the school environment. This is required as part of the Equal Protection Clause under the Fourteenth Amendment of the U.S. Constitution and Title VI of the Civil Rights Act of 1964. As of this writing, the case remains open in the court of appeals.

Title VI of the Civil Rights Act of 1964 states, “ No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”  (Civil Rights Act, 1964).

Racial harassment continues to occur in schools to the present day. As a teacher, you are responsible for enforcing policies and procedures that are appropriate within the classroom to maintain a safe environment for all students. Immediate action is required to respond to bullying and intimidation, such as speaking up and talking with the offending students and reporting the action to your principal when you hear or see questionable behavior or actions within your school. Regular professional development and training can additionally help inform and support teachers. A culture of inclusion and acceptance is required by school leadership that permeates throughout the school and community.

LGBTQ+ Rights and Discrimination

Discrimination based on sexual orientation and gender identity are important issues in today’s schools. For LGBTQ+ teachers, Title VIII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of race, color, religion, sex, or national origin (Civil Rights Act, 1964). For students, Title IX under the Office of Civil Rights of the U.S. Department of Education bans sex discrimination in schools and reads “ No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient to which this subpart applies”  (U.S. Department of Education, 2015) .

Students or teachers who believe they have been discriminated against can bring litigation under the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause in Section 1 of the Fourteenth Amendment states:

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  (U.S. Constitution, Fourteenth Amendment) .

In addition, in 1984 Congress passed the Equal Access Act requiring federally-funded secondary schools to uphold students’ First Amendment rights to conduct meetings and hold an open forum with equal access to extracurricular student groups or clubs (Equal Access Act, 1984).

In  Davis v. Monroe County Board of Education  (1999) , the mother sued the school system on behalf of her fifth-grade daughter for failing to prevent sexual harassment by another student. The Supreme Court upheld that there is an implied right to education under Title IX and found that the school board acted with deliberate indifference, ignoring the mother’s complaints of harassment that were serious and systematic.

In  Nabozny  v.  Podlesny  (1996) , the Court of Appeals ruled that public schools and their officials could be held liable for failing to protect homosexual students from antigay harassment and harm. Since signed into law in 2009, schools must follow the Matthew Shepard Hate Crimes Prevention Act (2009). This law expanded the federal hate crime law, to include crimes motivated by the victim’s actual or perceived gender, sexual orientation, gender identity or disability.

On the basis of sexual orientation and/or gender identity, students receive protection from bullying by other students, teachers, and school staff and cannot be discriminated against in school by being unfairly denied access to facilities, sports teams, or clubs. Both anti-bullying and school nondiscrimination laws support and protect LGBTQ+ students. In addition, sexual harassment guidelines are provided through the Office for Civil Rights at the U.S. Department of Education (2020b). It is the responsibility of a school to take meaningful steps to support and protect all students.

10.11 Mandatory Reporting

Protection from emotional or physical abuse is considered a primary right of children. Mandatory Reporting requires educators to report any signs of child abuse. Children often can’t or won’t speak up if their parents, caregivers, or third-party individuals are abusing them. They rely on you and others in the community to recognize when something isn’t right and to act upon your suspicions in order to​ help protect them.

Warning signs include:

• Physical signs present on the child
• Behavioral signs or statements made by the child, or
• Behavioral signs or statements made by the parent or ​caregiver.

Any single concern may or may not mean that abuse is occurring. But observing any of these indicators — especially when more than one is present —​ should prompt you to think about what might be happening and report your suspicions.​ Oregon’s children are relying on you and others in the community to observe, recognize and report concerns of child abuse.

Read this guidance document [Links to external site] from the Oregon Department of Human Services: Child Welfare detailing what you can do about child abuse.

Who is required to report? Find out about mandatory reporting requirements by State at RAINN.org Any “public or private official,” which includes: School employee, including an employee of a higher education institution, healthcare professionals, social workers, etc

Deeper Dive – Reports

When must reports be made?  Reports must be made immediately. Reports should be oral and can be made by telephone or other modes of communication.

Have more questions about your role as a mandatory reporter?

• Visit the Oregon Department of Human Services’ website Mandatory Reporting of Child Abuse [Links to external site] for more resources and tools

Activity – Legal Cases

• What cases have you heard in the news recently related to legal and ethical issues in schools?
• Did the decisions align with the ones you read about in this chapter or differ?
• Why do you think the outcomes were what they were?

During this chapter, you have learned about how ethical and legal issues impact education. A professional Code of Ethics influences a teacher’s practice by outlining standards that ensure that all teachers demonstrate integrity, impartiality, and ethical behavior to assure that students receive a fair and equitable education. Teachers and students do not give up their constitutional rights when entering into public schools in the United States; however, the courts have declared that there is a difference between teacher and student rights outside of a school and those inside the school. Rights and responsibilities must align to state and federal law, as well as the safety of students, and the mission of the public school. Case law has provided guidance for schools on procedures and regulations as well as the roles and responsibilities of teachers and students. The legal cases highlighted in this chapter are significant to the purpose and goals of public schooling throughout the United States. There continue to be challenges over time, especially as society changes and the United States becomes more diverse and local communities attempt to influence local schooling. A robust legal system is needed to maintain a fair and responsible system of education that supports all students. Understanding ethical and legal issues related to education will help you make informed decisions as an educator in the US public school system.

AFT: Academic Freedom. Retrieved from https://www.aft.org/position/academic-freedom Carter, Stephen L., (1996)

Butler, G. T., & Marsh, J. (2008). Foreword: Celebr d: Celebrating the Lif ating the Life and Legacy of Thur e and Legacy of Thurgood Marshall good Marshall. Mississippi College Law Review, 27(2). https://dc.law.mc.edu/cgi/viewcontent.cgi?article=1590&context=lawreview

Dreon,Oliver. (2017). Education Ethics and Conduct Toolkit. Commonwealth of Pennsylvania. Retrieved from https://www.pspc.education.pa.gov/Promoting-Ethical-Practices-Resources/Ethics-Toolkit/Pages /

Education Legislation | Bill tracking. (2023, August 9). https://www.ncsl.org/research/education/education-bill-tracking-database.aspx

Foundations of American Education: A Critical Lens by Melissa Wells and Courtney Clayton is licensed under a Creative Commons 

History: Brown v. BOE. (2009). Retrieved from https://www.history.com/topics/black-history/brown-v-board-of-education-of – Topeka

Justin, R. (2020, August 19). Texas school district’s dreadlocks ban “discriminatory,” court rules. The Texas Tribune. https://www.texastribune.org/2020/08/18/texas-school-dreadlocks-ban/

Lattimore, K. (2017, July 17). When Black Hair Violates The Dress Code. NPR. https://www.npr.org/sections/ed/2017/07/17/534448313/when-black-hair-violates-the-dress-code

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Meyers, Seth. (2019). Psychology Today. Sussex Publishing. Retrieved from https://www.psychologytoday.com/us/blog/insight – is-2020/201504/7-signs-people-integrity

NEA: National Education Association (2017). Code of Ethics. Retrieved from http://www.nea.org/home/30442.htm

New York State Education Department. (2017) Ofce of Ofce Initiatives. Retrieved from http://www.highered.nysed.gov/tcert/ resteachers/codeofethics.html

Premium Source Publishing. (2007). The Guidelines to Classroom Copying. Retrieved from https://www.custompublisher.com/ blog/2007/10/11/the-guidelines-to-classroom-copying-what-are-brevity-spontaneity-and-cumulative-efect/

PSPC. (n.d.). Educator Ethics and Conduct Toolkit. Professional Standards and Practices Commission. https://www.pspc.education.pa.gov/Promoting-Ethical-Practices-Resources/Ethics-Toolkit/Pages/default.aspx

Samuels, C. A. (2021, April 30). Why Do Schools Hang On to Discriminatory Dress Codes? Education Week. https://www.edweek.org/leadership/why-do-schools-hang-on-to-discriminatory-dress-codes/2020/03

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Yasemin Copur-Gencturk, Ian Thacker, Joseph R. Cimpian, Teacher bias in the virtual classroom, Computers & Education, Volume 191, 2022, 104627, ISSN 0360-1315, https://doi.org/10.1016/j.compedu.2022.104627 .

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10.1 “Quote” by commons.wikimedia.org is licensed under CC BY 4.0

10.2 “Lincoln memorial at night” by commons.wikimedia.org is licensed under CC BY 4.0

10.3 “Enfranchise freedom unchain” by johnhain , Creazilla is licensed under CC BY 4.0

10.4 “6 Big Changes Coming To Public Schools And Politics Thanks To The Supreme Court’s Union Smashdown” by The Federalist , is license under CC BY 4.0

10.5 “Speech Bubble” by Public Domain Pictures is in the Public Domain, CC0

10.6 “Free Speech Sign” by Free SVG is in the Public Domain, CC0

10.7 “Search and Seizure” by Maxpixel is in the Public Domain, CC0

10.1 – “Imagining Liberatory Education Futures” by Knowledgeworks , YouTube is licensed under CC BY 4.0

10.2 – “Equity Vs Equality” by Beyer High YouTube, YouTube is licensed under CC BY 4.0

10.3 – “What does my headscarf mean to you?” by Yassmin Abdel-Magied, Youtube is licensed under CC BY 4.0

10.4 – “Student Privacy 101: FERPA for Parents and Students” by U.S. Department of Education, Youtube is licensed under CC BY 4.0

10.5 – “President Obama signs the Every Student Succeeds Act” by Washington Post, Youtube is licensed under CC BY 4.0

10.6 – “What Red for Ed Means” by National Education Association, YouTube is licensed under CC BY 4.0

10.7 – “Outrage After High School Wrestler Forced To Cut Dreadlocks Or Forfeit Match | NBC Nightly News” by NBC News, YouTube is licensed under CC BY 4.0

10.8 – “UN Free & Equal: #YouthLead us toward a fearless future” by UN Human Rights, YouTube is licensed under CC BY 4.0

10.9 – “Mandatory Reporting of Childabuse” by Oregon Department of Human Services (ODHS), Youtube is licensed under CC BY 4.0

Foundations of Education Copyright © 2023 by Lisa AbuAssaly George; Dr. Kanoe Bunney; Ceci De Valdenebro; and Tanya Mead is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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7 What are the Ethical and Legal Issues in Schools?

Myra Haulmark and Jennifer Beasley

Let’s examine some of the rights guaranteed to all Americans and how those rights change once they enter school. We will also answer some of the most common questions held by students. What is free speech? Is it protected in school? How safe am I in my possessions? Do I have any expectation of privacy when it comes to my things? A good understanding of students’ rights benefits everyone: the students who exercise them, the teachers who challenge them, and the democratic society which lives by them.  Lawsuits have become increasingly common in our society and many Americans act and speak out of the fear of being taken to court. In any environment, one must be conscious of how their words and actions will affect others.

A thoughtless statement or inappropriate physical contact might land you in court. This is especially true in schools, where daily contact, high emotions and stressful circumstances can all come together at the wrong moment. As such, it is good to understand the rights of students trying to express themselves and the rights of teachers trying to keep a safe, orderly learning environment. Few people know their constitutional rights, and even fewer teachers & students know how their constitutional rights change once they enter the ‘semi-public/semi-private” classroom.

• A cheerleader is suspended for using inappropriate language on social media after school.
• Male Texas student suspended for violating dress code by wearing nail polish.
• Student suspended for having a BB gun in his bedroom during virtual class.
• Broward teacher banned over alleged sexual comments.
• Teacher fired after being accused of forcing student to dig waste out of toilet.

All of the above cases are real and recent headlines. The cases represent a variety of the legal and ethical areas of the teaching profession that exist today. Since the majority of teacher preparation candidates do not have legal backgrounds, this chapter exists to provide an overview of some of the pitfalls that can plague not only the new teacher but those that have been in the profession for years. The legal landscape of the teaching profession seems to be ever evolving with increasingly complex ethical and moral challenges. While this chapter will in no way be all inclusive, it will provide you some basics and food for thought.

Objectives and Key Terms

In this chapter, readers will…

• Distinguish the difference between laws and ethics and explain how both are necessary for teachers
• Identify several ways that ethics are involved with teachers day to day activities
• Describe the hierarchy of school systems
• Identify several key areas of the law related to student and teachers

Key terms in the chapter are…

Individuals with Disabilities Education Act (or IDEA)

Least restrictive environment.

• In loco parentis
• Due process

Educator Ethics

https://vimeo.com/126979216

Key moments: Regulatory Framework 10:53 | An Ethical Framework 12:12 | Trajectory Decision Making 12:45

This section of the chapter will discuss professional ethics and the teaching profession with the takeaway being that you will be able to discern the difference between your legal responsibilities and ethical ones and the impact that your ability to make sound decisions will keep you from potentially hurting a student and your teaching career.  Knowing your ethical responsibilities and how to practice ethical decision making can mitigate the teacher’s risk. Having some training in ethical decision making can serve as a foundation to build your philosophy of education.

So why discuss ethics? Within teaching there is a unique set of ethical relationships and legal obligations that are embedded in the work of a teacher. Teachers have this awesome responsibility to build moral character and be an example of that too. In the article section “What Professional Ethics Mean” Dr. Troy Hutchings (2016) states:

From preschool to high school teachers have an enormous impact on students. At the heart of the matter, the teacher’s relationship to a student is a special kind of power as students can be considered impressionable and malleable. Because of this power there can be the potential abuse of power. We all have seen headlines of this “abuse” of power and generally once we see these headlines, they are not only violations of ethical standards that are occurring, but now illegal behaviors.

Questions for you to think about are:

Does the lack of ethical decision making happen all at once?

Where does it go wrong?

What types of ethical decisions do teachers make that may fly under the radar?

What are ethics?

“Ethics is knowing the difference between what you have a right to do and what is right to do.”  Supreme Court Justice Potter Stuart Ethics refers to well-founded standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness, or specific virtues. Ethics, for example, refers to those standards that impose the reasonable obligations to refrain from rape, stealing, murder, assault, slander, and fraud. Ethics can also be defined as a system or code of morality embraced by a person or group.

Ethical standards also include those that enjoin virtues of honesty, compassion, and loyalty; as well as including standards relating to rights, such as the right to life, the right to freedom from injury, and the right to privacy.

But ethics applies as much to the behavior of the atheist as to that of the devout religious person. Religion can set high ethical standards and can provide intense motivations for ethical behavior. Ethics, however, cannot be confined to religion nor is it the same as religion.

How are ethics different from laws?

Laws are related but more formal, they are written and they must be followed. Ethical norms tend to be broader and more informal than laws. Although most societies use laws to enforce widely accepted moral standards and ethical and legal rules use similar concepts, ethics and law are not the same. An action may be legal but unethical or illegal but ethical.

Howe (1986) specifically mentions that ethical judgement consists of six characteristics: appreciation for moral deliberation, empathy, knowledge, reasoning, courage and interpersonal skills. So you may be thinking that’s great – I have those characteristics most of the time so I should be fine! What is the problem with this line of thinking? The problem becomes the reliance solely on a teacher’s personal code of ethics that may rely on many varying moral standards.

“That’s why we, as a profession, need to shift away from the idea that our personal sense of ethics — driven in large part by our upbringing and our life experiences — is enough to help us navigate all the situations we face in the classroom. Even the expectations and norms that evolve in each school vary so much that they alone can’t serve as the sole guide to our decisions. And along with the need for collective understanding of the challenges we face as professionals, we need to acknowledge the inherent risks — ethical, practical and often legal — teachers face on a daily basis…”

Ryan, Cooper, Bollick (2016) put it like this: “some people’s codes of ethics are like a beacon and some are a dim light in a dark room” therefore clarifying the need to have written codes of ethics for teachers. However, where some professions such as attorneys and medical doctors have this universal code, there is not yet a standard code of ethics accepted for all teachers. Some short strides have been made with NEA (National Education Association) and NASDTEC (National Association of State Directors of Teacher Education and Certification) but most states rely on their own individual codes or teachers adhere to district policy on behavior, often in the form of codes of conduct where there are disciplinary actions if there is a violation of those codes of conduct.

Take some to review the below Codes of Ethics from state and national organizations? Which are more detailed and provide the clearest standards?

Arkansas Code of Ethics

NEA (National Education Association)

NASDTEC (National Association of State Directors of Teacher Education and Certification)

What do you think? Many teachers make decisions in isolation out of fear they will spark the perception they are being unethical.

https://vimeo.com/457957892

In the above video, Dr. Troy Hutchins speaks with teachers about the need for a code of ethics or a common decision making framework for ethics.  Describe what might go through a new teacher’s mind as they are encountering an ethical decision they may need to make – What can be done to help teachers make ethical decisions and ask for assistance if needed? What can a teacher do to mitigate any negative perceptions if they talk to someone about an ethical dilemma? What can the school do to support teachers?

Ethics Case Studies:

https://youtu.be/fGQbLSEPN5w

Social Media Dilemma

https://youtu.be/5OMjeXdaoHk

Out for a Drink

https://youtu.be/B0UEFSmxkbg

Ride Dilemma

https://youtu.be/cmiaLxCUDkw

Parent Teacher Relationship

https://youtu.be/it4a24xvHuU

Coach Dilemma

Schools and the Law

The Hierarchy of the System

Who oversees school systems? The public school governing system is actually a hierarchy (March, 1978). There are several tiers to this hierarchy beginning with the federal level and ending with the individual teachers. It is a pyramid of administrators doing everything they can to educate today’s students.

Federal and State

While some may believe that administration of schools starts with the federal government, the truth is that on the federal level there is very little involvement in education, even in funding (Federal Role, n.d.). The federal government sets some guidelines for education, such as the “Every Student Succeeds Act”, but not specific ones such as curriculum taught. In actuality, the states have most of the power over their own schools and what they teach (Education Commission of the States [ECS], 1999). The states set what the students will learn and what standards they have to meet. This means that if a child is meeting their grade level standard in Tennessee they may or may not be meeting the Virginia standards for that grade level. States try to decide what knowledge is imperative for students to learn before they move on to the next grade or even college (ECS, 1999).

The “Common Core Standards” are an attempt to “level the playing field.”  The process began in 2009 with a group of state governors and school officials.   The idea was to create real-life, relevant learning goals that could be adopted by states, and lead to our students learning the same things at the same time.  With this idea, that same student in Tennessee would be working on the same standards as the student in Virginia.  The CCS, however, were not mandated by the federal government, nor created by the federal government and this is important to know.  It was a state initiative and states had the right to adopt the standards or not.   Not all states have adopted the CCS, and some adopted the standards and then repealed them.   More information on the Common Core Standards can be found at Common Core State Standards Initiative .

Michigan adopted the standards in 2010.  Michigan has used the CCS to create our learning standards.   Michigan’s curriculum standards can be found on the Michigan Academic Standards Page .

States also choose the standards that the teachers must meet (ECS, 1999). The state wants the teacher to be able to educate the students to achieve the set standards. There are things that every state requires, but each of them has their own variation. Every state requires the teacher to have a college degree and some form of standardized testing to be able to teach in their public school system. There are national tests available, but each state requires different ones. Teachers moving to a different state may be required to complete a new test or even a new course before gaining certification in that state.

States have the largest financial role in the schools. Very little funding comes from the federal government. Most of the federal funding is applied for by the individual school in the form of a grant for a special purpose (Federal Role, n.d.). The states provide teacher salaries and the money required to run each individual school.  Schools may also have a Parent/Teacher Association  which can help to raise additional funds for individual schools.  (ECS, 1999).

Hierarchy Tiers on a District Level

School Board

Superintendent

Each state is broken up into districts (ECS, 1999). Most administration deals on a small level, either within the district, or in the individual school (March, 1978). The districts each have their own school board made of elected members (Office of the Education Ombudsman, n.d.). Those boards decide how their schools will achieve the standards set by the state. They will also decide anything else they believe the schools should be doing to service their district’s children. Some of these things include overseeing the curriculum and helping to promote better teaching techniques (Education Administrators, n.d.). The board has to have all schools achieving at a level set by the state, so they use their resources to push the schools to achieve the standards they have set (ECS, 1999).

A superintendent is chosen to oversee the schools in the district (ECS, 1999).  While the school board is elected by the community, the superintendent is hired by the school board.  Anyone who meets the qualifications may apply.  The school board conducts interviews and makes the decision on which individual to hire.  Sometimes individuals from within the district are  hired, and other times the individual hired comes from outside of the district.  They are in charge of making sure the schools are doing what is required by the school board. They make routine visits to schools to check on how they are doing. They work with the principals and teachers to see that children are getting the most out of each school day.

Principal and Assistant Principal

The district hires principals to oversee each individual school. These principals are there to see that the teachers are doing their job and the children are getting the education they deserve (Office of the Education Ombudsman, n.d.). They are responsible for scheduling, planning the daily activities, and managing the overall activities of the school (Office of the Education Ombudsman, n.d.). Principals make routine visits to classrooms to make sure they are running smoothly and that teachers are making the most of their instructional time. Another difficult duty of the principal is the budget for the school. The principal must decide how to best spend the school’s money (Education Administrators, n.d.).

The schools also have assistant principals. These administrators help the principal in the daily activities of the school. They also handle most of the discipline problems leaving the principal available to focus on other duties (Education Administrators, n.d.).

Each school district  is responsible for the hire of their teachers.  In some districts there is a hiring committee formed to interview and recommend teachers to hire.  In other districts the school board interviews and there are some districts where the individual school will conduct interviews and make a recommendation to the board.

The teacher is the one with the most direct affect on students. They ultimately decide what happens in the classrooms (ECS, 1999). When the door closes every morning it is up to the teacher to make an effective use of time and get children to those standards set by the state. If children in their classrooms are not performing well, the teacher is held responsible.  It’s vital that we hire individuals with the “right stuff” to make learning fun and a successful experience for children.

Teachers and the Law: Rights and Responsibilities

Read Bonus Module: Legal Issues in Teaching

https://kstatelibraries.pressbooks.pub/EDCI702/chapter/bonus-module-legal-issues-in-teaching/

Once you have completed all of the necessary requirements of your educator preparation program to earn a teaching license in your state, there will be ongoing work for you to not only maintain it but protect it as well. Each state has specific laws in place to protect both the student and teacher, in addition each state may also have certain sets of laws that prohibit someone from becoming licensed as well. Immoral conduct and willful neglect of duty are some of the most common reasons that teachers are fired today. The above paragraphs overview the role ethics impact a teacher’s daily decision making and the following paragraphs will overview some of the laws and results of court cases that may impact your work as a teacher. (Teachers’ Rights in the Classroom )

Freedom of Expression

A court case in which a teacher criticized the school board’s financial policies and was fired. He took the case to the Supreme Court and won. Teachers are guaranteed the right to express their opinions and beliefs under the First Amendment, as long as they do not disrupt the business of the school and the learning environment.

Pickering v. Board of Education of Township High School (1968)

• Teacher wrote a letter-to-the-editor about school board tax/revenue spending and was then fired by the school board.
• Teacher sued the school board in violation of 1st Amendment rights.
• SCOTUS 9-0:  The school board, as a government agency, violated both the 1st and 14th amendments of the teacher.  SCOTUS ruled that teachers, though employed by the school district/government, were still private citizens and their free speech, as long as not slanderous or false, was protected from firing by the school board/government.

Pickering Balance Test for Freedom of Expression for Teachers:

• Need for harmony in the workplace.
• Close working relationship – does the speech violate it.
• The time, place, and manner of the speech.
• The context of the dispute.
• The degree of public interest in the speech.
• Does the speech impede or impair the teacher’s ability to perform their duties.

Mt. Healthy City Board of Education v. Doyle (1977)

• A teacher claimed he was not rehired due to his Free Speech activities.
• The teacher in question had, during the same year, become hostile with other teachers and school employees, swore at students, and committed obscene gestures at work.
• SCOTUS 9-0: While the teacher did engage in free speech activities, his firing was not a result of those free speech activities, nor did his free speech activities factor into his firing.  His ‘behavior’ had been documented by the school prior to his free speech activities.

Academic Freedom

Fowler v. Board of Education of Lincoln County (1987)

• Fowler was fired after showing an R-rated movie (Pink Floyd – The Wall) to students as a reward on the last day of class, a movie she had not personally seen and did not watch with the student.
• Fowler said her termination was unlawful under Free Speech and the tradition of academic freedom.
• Ruling by Federal court: Free speech only applies when it is expressive or communicative.  Because Fowler did not watch the movie with the students to explain or answer questions and/or the movie did not have an inherent educational value, she could not claim free speech or academic freedom and her termination was lawful.

Wilson v. Chancellor (1976)

• A government teacher had various political party speakers come in and talk to their class; however, when a Communist was invited the school board banned all political speakers before the presentation date.
• Does banning ‘all political speakers’ violate the 1st and 14th amendment?
• Federal District court ruled that the school district violated the teachers freedom of expression as part of the teachers established method of instruction of inviting guest speakers germane to the topic of instruction.  Banning ‘all political speakers’ in this instance was unconstitutional.

Copyright Laws

• Protects the intellectual property of authors
• Must receive permission from author to reproduce materials
• Many items on the internet are also copyrighted
• Some authors give permission for copying to teachers for use in their classroom

Fair Use Guidelines

• Policies which specify limited use of copyright materials for educational purposes
• Can make one copy for planning purposes
• Can make copies for one time use in class
• Pages from consumable materials may not be copied
• Cannot create a collection of works
• Cannot charge students

Students and the Law

https://youtu.be/dj2dBLi7zvQ

Overview of Special Education Law

Special Educational Needs

Three people on the margins.

The First Person: In 1761 a six-year-old girl was captured from West Africa, given the name Phillis Wheatley, and sold into slavery in the City of Boston. By the time she was 17, Phillis had taught herself to read and write and had developed a special love and talent for poetry. Her owner was a wealthy businessman and sought to improve his reputation by publishing an anthology of her poems. Unfortunately he encountered stiff resistance from publishers because few people at that time believed Africans to be capable of the thought and imagination needed to write poetry. People who heard of her poetry were skeptical and inclined to think that it was faked. Eventually, to save his own reputation, the owner assembled a tribunal of 18 prominent judges—including the governor of Massachusetts and John Hancock, one of the signers of the Declaration of Independence—to assess the young woman’s mental capacity. After cross-examining her, the judges finally decided that Ms. Wheatley was, after all, capable of writing poetry (Robinson, 1982).

The Second Person: A century later, a child named Helen Keller lost her sight and hearing as a result of illness during infancy. In spite of this misfortune, though, Helen devised a language of gestural signs for communicating with a tutor, and was soon also using Braille to study both French and Latin. At ten she wrote and published a short story. Yet like Ms. Wheatley, Ms. Keller also faced substantial, chronic skepticism about her capacities. Prominent educators accused her of plagiarizing others’ writings and merely “parroting” others’ ideas without understanding them (Keller, 1954; Bogdan, 2006). Eventually, as with Wheatley, a panel was assembled—though this time the members were professional experts about disabilities—to determine whether Ms. Keller was in fact capable of writing what she published. The panel decided that was indeed capable, though only by a slim margin (five judges vs. four judges).

The Third Person: In 1978, Sue Rubin was born with a disability that limited her speech to disordered bursts of sound and occasionally echoing phrases of other people. She was labeled autistic because of her symptoms, and assumed to be profoundly retarded. With support and encouragement from her mother and others, however, Sue eventually learned to type on a keyboard without assistance. She learned to communicate effectively when she was about 13 and was able to go to school. Since then she has made many presentations about autism at conferences and recently co-edited a book about autism, titled Autism: The Myth of the Person Alone (Bogdan, et al., 2005).

One of these individuals experienced racial discrimination and the other two experienced physical disabilities, but notice something important: that all three were defined by society as disabled intellectually. Initially, their achievements were dismissed because of widespread assumptions—whether about race or disability—of their inherent incompetence. All three had to work harder than usual, not only to acquire literacy itself, but also to prove that their literacy was genuine and worthy of respect.

Since the time of Phillis Wheatley, North American society has eliminated slavery and made some progress at reducing certain forms of racism, though much remains to be done. In 1954, for example, the United States Supreme Court ruled that public schools could not be segregated by race, and in doing so recognized, at least legally, the moral obligation of society to provide all citizens with the best possible education. It has taken longer to recognize legally the rights and competence of persons with disabilities, but events and trends beginning in the 1970s have begun to make it happen. This chapter begins by explaining some of these and how they have altered the work of teachers.

Growing Support for People with Disabilities: Legislation and Its Effects

Since the 1970s political and social attitudes have moved increasingly toward including people with disabilities into a wide variety of “regular” activities. In the United States, the shift is illustrated clearly in the Federal legislation that was enacted during this time. The legislation partly stimulated the change in attitudes, but at the same time they partly resulted from the change. Three major laws were passed that guaranteed the rights of persons with disabilities, and of children and students with disabilities in particular. Although the first two affected teachers’ work in the classroom, the third has had the biggest impact on education.

Rehabilitation Act of 1973, Section 504

This law—the first of its kind—required that individuals with disabilities be accommodated in any program or activity that receives Federal funding (PL 93-112, 1973). Although this law was not intended specifically for education, in practice it has protected students’ rights in some extra-curricular activities (for older students) and in some child care or after-school care programs (for younger students). If those programs receive Federal funding of any kind, the programs are not allowed to exclude children or youth with disabilities, and they have to find reasonable ways to accommodate the individuals’ disabilities.

The definition of a disability under Section 504 is much broader than under another law providing special education services, “The Individuals with Disabilities Education Act.”  Therefore, many of our students may receive special services under the umbrella of Section 504.  These students will be in general education classrooms and you will have to make the necessary accommodations for them.

Americans with Disabilities Act of 1990 (or ADA).

This legislation also prohibited discrimination on the basis of disability, just as Section 504 of the Rehabilitation Act had done (PL 101-336, 1990). Although the ADA also applies to all people (not just to students), its provisions are more specific and “stronger” than those of Section 504. In particular, ADA extends to all employment and jobs, not just those receiving Federal funding. It also specifically requires accommodations to be made in public facilities such as buses, restrooms, and telephones. ADA legislation is therefore responsible for some of the “minor” renovations in schools that you may have noticed, such as wheelchair-accessible doors, ramps, and restrooms, and public telephones with volume controls.

As its name implied, this legislation was more focused on education than either Section 504 or ADA. It was first passed in 1975 and has been amended several times since, including most recently in 2004 (PL 108-446, 2004). In its current form, the law guarantees the following rights related to education for anyone with a disability from birth to age 21.  In Michigan, services are provided for individuals with disabilities until the age of 26.

• Free, appropriate education: An individual or an individual’s family should not have to pay for education simply because the individual has a disability, and the educational program should be truly educational (i.e. not merely caretaking or “babysitting” of the person).
• Due process: In case of disagreements between an individual with a disability and the schools or other professionals, there must be procedures for resolving the disagreements that are fair and accessible to all parties—including the person himself or herself or the person’s representative.
• Fair evaluation of performance in spite of disability: Tests or other evaluations should not assume test-taking skills that a person with a disability cannot reasonably be expected to have, such as holding a pencil, hearing or seeing questions, working quickly, or understanding and speaking orally. Evaluation procedures should be modified to allow for these differences. This provision of the law applies both to evaluations made by teachers and to school-wide or “high-stakes” testing programs.
• Education in the “least restrictive environment”: Education for someone with a disability should provide as many educational opportunities and options for the person as possible, both in the short term and in the long term. In practice this requirement has meant including students in general education classrooms and school activities as much as possible, though often not totally.
• An individualized educational program: Given that every disability is unique, instructional planning for a person with a disability should be unique or individualized as well. In practice this provision has led to classroom teachers planning individualized programs jointly with other professionals (like reading specialists, psychologists, or medical personnel) as part of a team.  Parents are also a part of this team, and when students are old enough, they can be a part of this process also.  These plans, often referred to as an “IEP”, are reviewed annually and revised.  In some cases, these can be reviewed each semester, or as needed.

Considered together, these provisions are both a cause and an effect of basic democratic philosophy. The legislation says, in effect, that all individuals should have access to society in general and to education in particular. Although teachers certainly support this philosophy in broad terms, and many have welcomed the IDEA legislation, others have found the prospect of applying it in classrooms leads to a number of questions and concerns. Some ask, for example, whether a student with a disability will disrupt the class; others, whether the student will interfere with covering the curriculum; still others, whether the student might be teased by classmates. Since these are legitimate concerns, I will return to them at the end of this chapter. First, however, let me clarify exactly how the IDEA legislation affects the work of teachers, and then describe in more detail the major disabilities that you are likely to encounter in students.

Responsibilities of Teachers for Students with Disabilities

The IDEA legislation has affected the work of teachers by creating three new expectations. The first expectation is to provide alternative methods of assessment for students with disabilities. The second is to arrange a learning environment that is as normal or as “least restrictive” as possible, and the third is to participate in creating individual educational plans for students with disabilities.

Alternative Assessments

Assessments are used in education to determine the strengths of our students, and areas that need further development, and then use that information to plan educational experiences.  In the context of students with disabilities, assessment refers to gathering information about a student in order both to identify the strengths of the student, and to decide what special educational support, if any, the student needs. In principle, of course, these are tasks that teachers have for all students: assessment is a major reason why we give tests and assignments, for example, and why we listen carefully to the quality of students’ comments during class discussions. For students with disabilities, however, such traditional or conventional strategies of assessment often seriously underestimate the students’ competence (Koretz & Barton, 2003/2004; Pullin, 2005). Depending on the disability, a student may have trouble with

• holding a pencil,
• hearing a question clearly,
• focusing on a picture,
• marking an answer in time even when he or she knows the answer,
• concentrating on a task in the presence of other people, or
• answering a question at the pace needed by the rest of the class.

There are many more concerns a student may have, but the point is that we will be dealing with a variety of needs among all of our students, whether they qualify for special education services or not.  The challenge for teachers is meeting the wide variety of needs of our students.  ALL STUDENTS CAN LEARN!  What they learn, how they learn it, and the time it takes to learn it will vary among all of our students.  Keep an open mind always and be willing to make any adaptations that will benefit students.

Traditionally, teachers have assumed that all students either have these skills or can learn them with just modest amounts of coaching, encouragement, and will power. For many other students, for example, it may be enough to say something like “Remember to listen to the question carefully!” For students with disabilities, however, a comment like this may not work and may even be insensitive. A student with visual impairment need not be reminded to “look at the page closely” or “at what I am writing on the board”; doing so will not cause the student to see the chalkboard more clearly—though the reminder might increase the student’s anxiety and self-consciousness.

We also hear teachers tell students to “try harder”, or to “do it again and this time concentrate or pay attention to your work” when they are not successful with a task, or when students ask a question.  Please don’t do this!   When students ask a question, are not successful with an assignment, or stop working, these are all indicators that they are struggling and need support.  Whether they are general education students or students receiving special services, they need to have questions answered and guidance given.  Simply telling them to “try again” or “try harder” is insulting and disrespectful.  Responding in this way will quickly lead to students who may shut down and stop making attempts at their work.  When this happens, we have more problems.

There are a number of strategies for modifying assessments in ways that attempt to be fair and that at the same time recognize how busy teachers usually are. One is to consider supplementing conventional assignments or tests with portfolios, which are collections of a student’s work that demonstrate a student’s development over time, and which usually include some sort of reflective or evaluative comments from the student, the teacher, or both (Carothers & Taylor, 2003; Wesson & King, 1996). Another is to devise a system for observing the student regularly, even if briefly, and informally recording notes about the observations for later consideration and assessment. A third strategy is to recruit help from teacher assistants, who are sometimes present to help a student with a disability; an assistant can often conduct a brief test or activity with the student, and later report on and discuss the results with you.  Keep in mind that an assessment does not always mean a test.  Projects and observation can also be powerful and effective assessments.

If you reflect on these strategies, you may realize that they may sometimes create issues about fairness. If a student with a disability demonstrates competence one way but other students demonstrate it another, should they be given similar credit? On the other hand, is it fair for one student to get a lower mark because the student lacks an ability—such as normal hearing—that teachers cannot, in principle, ever teach? These ethical issues are legitimate and important.

As educators, it is our responsibility to help ALL students learn.  We know that every person learns differently, so why would we try to teach all students in the same way?  It’s not possible. Therefore, we have to help students understand that “equal” and “fair” are two different ideas.  In our classrooms, we cannot treat students equally and have each of them be successful. . We have to adapt to their learning needs.  We will talk more about this later, but we have to talk with our students from the very first day about the practices of the classroom.  They have to understand there will be times when they will be doing things differently from their friends, or vice versa, and it’s all in the name of learning; learning that meets their individual needs.

The IDEA legislation calls for placing students with disabilities in the least restrictive environment (or LRE), defined as the combination of settings that involve the student with regular classrooms and school programs as much as possible. The precise combination is determined by the circumstances of a particular school and of the student. A kindergarten child with a mild cognitive disability, for example, may spend the majority of time in the regular kindergarten, working alongside and playing with non-disabled classmates and relying on a teacher assistant for help where needed. An individual with a similar disability in high school, however, might be assigned primarily to classes specially intended for their need, but nonetheless participate in some school wide activities alongside non-disabled students. The difference in LREs might reflect teachers’ perceptions of how difficult it is to modify the curriculum in each case; rightly or wrongly, teachers are apt to regard adaptation as more challenging at “higher” grade levels. By the same token, a student with a disability that is strictly physical might spend virtually all his or her time in regular classes throughout the student’s school career.  In this case, adjustment of the curriculum would not be an issue.

For you, the policy favoring the least restrictive environment means that if you continue teaching long enough, you will very likely encounter a student with a disability in one or more of your classes, or at least have one in a school-related activity for which you are responsible. It also means that the special educational needs of these students will most often be the “mildest.” Statistically, the most frequent forms of special needs are learning disabilities, which are impairments in specific aspects of learning, and especially of reading. Learning disabilities account for about half of all special educational needs—as much as all other types put together. Somewhat less common are speech and language disorders, cognitive disabilities, and attention deficit hyperactivity disorders (abbreviated ADHD). Because of their frequency and of the likelihood that you will meet students for whom these labels have been considered, I describe them more fully later in this chapter, along with other disability conditions that you will encounter much less frequently.

Individual Educational Plan

The third way that IDEA legislation and current educational approaches affect teachers is by requiring teachers and other professional staff to develop an annual individual educational plan (or IEP) for each student with a disability. The plan is created by a team of individuals who know the student’s strengths and needs; at a minimum it includes one or more classroom teachers, a “resource” or special education teacher, and the student’s parents or guardians. Sometimes, too, the team includes a school administrator (like a vice-principal) or other professionals from outside the school (like a psychologist or physician), depending on the nature of the child’s disability. An IEP can take many forms, but it always describes a student’s current social and academic strengths as well as the student’s social or academic needs. It also specifies educational goals or objectives for the coming year, lists special services to be provided, and describes how progress toward the goals will be assessed at the end of year. IEPs originally served mainly students in the younger grades, but more recently they have been extended and modified to serve transition planning for adolescents with disabilities who are approaching the end of their public schooling (West, et al., 1999). For these students, the goals of the plan often include activities (like finding employment) to extend beyond schooling as such.

If you have a student with an IEP, you can expect two consequences for teaching. The first is that you should expect to make definite, clear plans for the student, and to put the plans in writing. This consequence does not, of course, prevent you from taking advantage of unexpected or spontaneous classroom events as well in order to enrich the curriculum. But it does mean that an educational program for a student with a disability cannot consist only of the unexpected or spontaneous. The second consequence is that you should not expect to construct an educational plan alone, as it is commonly done when planning regular classroom programs. When it comes to students with disabilities, expect instead to plan as part of a team. Working with others ensures that everyone who is concerned about the student has a voice. It also makes it possible to improve the quality of IEPs by pooling ideas from many sources—even if, as you might suspect, it also can challenge professionals to communicate clearly and cooperate respectfully with team members in order to serve a student as well as possible.

A student in your class refuses to recite the Pledge of Allegiance. Can you send that student to the principal’s office?

• It depends!

Students Rights

https://www.youtube.com/watch?v=HFZgce7TZRI

Student Rights Explained

https://www.youtube.com/watch?v=ntEQfooBxTk&t=25s

Religion and Public Schools

The founding fathers deliberated for days on end when writing the first draft of our nation’s Constitution and later the Bill of Rights. They agonized over wording; argued over semantics. It is likely they had no idea just how successful this “great experiment in democracy” would turn out to be. Equally likely is this: they never once considered how these rights would pertain to young students in the classroom. The landmark case of Tinker v. Des Moines School District clearly defined the benchmark for how rights may be exercised and when they may be curtailed:

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.… On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.

… Our problem lies in the area where students in the exercise of [their] rights collide with the rules of the school authorities.”

Constitutional Topic: Student Rights

In other words, one doesn’t surrender his or her constitutional rights by attending school. However the courts have recognized that the unique nature of the school environment requires that certain liberties be suppressed in the interest of maintaining a safe, orderly learning environment. According to the doctrine of “in loco parentis” school officials are more than government officials; they are, in a legal sense, the temporary parents of their students. Just what exactly that allows them to do and say is a matter of debate and has led to numerous legal challenges, many involving the Supreme Court.

The 1st Amendment

Freedom of Speech, Expression & Religion

Perhaps the most quoted court decision on the subject, Tinker v. Des Moines was a battle over students’ 1st amendment rights, specifically the right to free speech. High school students John Tinker, 15, and Christopher Eckhardt, 16, decided to show their opposition to the Vietnam War by wearing black armbands to school. Administrators countered by banning armbands and threatened disciplinary actions for any students violating the rule. Tinker and Eckhardt wore their armbands and were suspended, not allowed back until they agreed to stop violating school rules. Tinker’s father subsequently sued and lost in District Court. The Appellate Court was unable to reach a decision and the case was passed up to the Supreme Court, who overturned the District Court’s decision and ruled in favor of the plaintiffs. The court stated that if the student’s actions did not disrupt the learning environment, or advocate or cause harm to themselves or others, it was permissible. This has been the rationale in virtually every other opinion held by the court regarding student’s constitutional rights. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

While a student’s right to free speech is protected, it is not a blanket protection covering any form of protest. A recent example of this is Morse v. Frederick , also known as the “Bong Hits 4 Jesus” case. Morse v. Frederick, 127 S. Ct. 2618 (2007) This case is particularly eye-opening in that the offense occurred off school grounds. Frederick, a high school student, displayed a banner at a local parade featuring the phrase “Bong Hits 4 Jesus,” a reference to marijuana use. Morse, a school official, noticed the banner and instructed the student to take it down. When Frederick refused, he was suspended by Morse and the decision was upheld by the school board. Frederick sued, claiming protection under his 1st amendment rights. This time the Supreme Court sided with the school board, noting “ … schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, [therefore] the school officials in this case did not violate the First Amendment…” This fits with the consistent message of the courts – a student’s Constitutional rights will be protected only as long as their exercise does not endanger the health or academic progress of others.

Other cases regarding the Rights of Free Speech & Expression:

West Virginia v. Barnette , 1943 – The court ruled that it is unconstitutional to require students to salute the American flag. The 1st amendment not only protects freedom “of” expression but also freedom “from” expression. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

Bethel School District v. Fraser , 1986 – Washington high school student Matthew Fraser was suspended for using sexually explicit language in a speech given on school grounds. The court sided with the school, affirming that schools can prohibit “lewd, indecent or plainly offensive” language. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)

Guiles v. Marineau , 2004 – A 14- year old student in Vermont was suspended for repeatedly wearing a T-shirt depicting President George W Bush as an alcoholic and a cocaine addict. The shirt contained both written and visual depictions of banned substances. The court sided with the student, citing two factors: 1) the shirt did not advocate the use of illegal drugs and 2) the shirt did not cause significant disruptions to the learning environment. Guiles v. Marineau, 461 F.3d 320, 324-25 (2d. Cir. 2006)

Summary – A student’s exercise of speech or expression is legal and constitutionally protected so long as it doesn’t:

• endanger the public
• disrupt the learning environment
• advocate the use of illegal substances or other violations of the law

Student Expression Quiz

https://mclellan.law.msu.edu/quizzes/student-expression-quiz

4th Amendment

Unreasonable Search & Seizure

https://youtu.be/yexA13FDYxQ

https://www.youtube.com/watch?v=tY4fPF6dijU

The student’s desire for freedom of speech can only be matched by their desire for privacy and for security of their possessions. The right of school officials to search a student’s belongings is a contentious issue, and few teachers know the limits of their authority and few students understand the extent of their rights. Just as Tinker v. Des Moines set the standard for the protection of 1st Amendment rights, so did another case set the precedent for search & seizure: New Jersey v. T. L. O. , 469 U.S. 325 (1985).

Two female high school students were caught smoking in the restroom and assistant principal Theodore Choplick confronted them. One of the two admitted her wrongdoing but the other student (T.L.O.) denied it. Choplick searched T.L.O.’s purse and discovered cigarettes, drugs and drug paraphernalia, along with a large amount of money. T.L.O. was tried and convicted in court on charges of delinquency. The student countered that the school had violated her 4th amendment rights, depriving her of protection against unreasonable search and seizure (i.e. searching without a warrant) and the evidence should be inadmissible. The Supreme Court disagreed, stating: “a school official may properly conduct a search of a student’s person if the official has a reasonable suspicion that a crime has been or is in the process of being committed, or reasonable cause to believe that the search is necessary to maintain school discipline or enforce school policies.”

This is a departure from the court’s usual position requiring “probable cause” for government officials to search someone without a warrant. This change, although appearing slight, has enormous ramifications. School officials may search someone based solely upon a well-grounded suspicion, not iron-clad evidence of wrongdoing. This is analogous to the difference between “reasonable doubt” and “beyond a shadow of a doubt.” This threshold however applies only to school personnel and NOT to law enforcement officials on school grounds. The court has been careful not to slide down that slippery slope. In the court’s decision, they state that a teacher’s right to protect him- or herself and the safety of their students is on par with the rights of firefighters, EMS, OSHA officials, etc. The right to privacy must be balanced against the public’s right to safety. In a school, the balance is tilted toward protecting safety and maintaining order, even if it is at the expense of student rights.

The issue of locker searches has not come to the Supreme Court. As the locker is school property and therefore “public space” it is not afforded the same protections as a student’s personal possessions.

State of Iowa v. Marzel Jones (2003) – A student whose locker was cleaned out by school personnel. Finding a small amount of marijuana, the student was charged. Marzel claimed 4th amendment protection against unreasonable search & seizure but was denied by the State Supreme Court who “noted that the search occurred on school grounds, ‘where the State is responsible for maintaining discipline, health, and safety.’(Bd. of Ed. of Indep. Sch. Dist. 92 v. Earls, 536 U.S. 822)”.  State of Iowa vs. Marzel Jones, Appellee 02-505 (2003).

Another issue of concern has been the constitutionality of drug screenings for student-athletes.

Vernonia School District v. Acton (1995) – 7th grade Oregon student James Acton signed up to play football but refused to take a mandatory urine test. Drug testing was administered to athletes after a recent ‘explosion’ in drug-use and the related discipline problems which arose. Citing public health concerns and noting the prevalence of student-athletes involved in drug-related incidents, the school board deemed urinalysis a necessary requirement for participation in sports. The Supreme Court agreed and upheld their decision. Once again, the desire to protect public health overrode student’s desire for privacy.  Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)

Summary – School personnel may search a student and their belongings if the health & welfare of the public is at risk or they have a ‘reasonable suspicion’ that a crime has been, is being, or will be committed

5th & 14th Amendment

The Right to Due Process

These amendments protect an individual’s right to a fair trial and must be considered whenever “a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him…” Wisconsin v. Constantineau, 400 U.S. 433 (1971)

1). This includes the enforcement of disciplinary actions such as suspension or expulsion. The expectations of a fair trial are very different however, depending on the circumstances. Disciplinary expulsion is treated differently than an ‘academic dismissal.’ Claire La Roche makes the point by citing Barnard v. Inhabitants of Shelburne: “Misconduct is a very different matter from failure to attain a standard of excellence in studies…. A public hearing may be regarded as helpful to the ascertainment of misconduct and useless or harmful in finding out the truth as to scholarship.” (emphasis added)

According to La Roche’s interpretation of the courts, the following are necessary in the expulsion of a student on disciplinary grounds:

• a timely & formal hearing
• a detailed explanation of the charges
• a strict adherence to the schools stated policy
• a ‘punishment that fits the crime’

She goes on: “To ensure fundamental fairness, decisions must be based on the facts and supported by the evidence. Moreover, punishment should be commensurate with the severity of the offense. Consequently, it is important for schools to establish guidelines and be consistent with sanctions.”

Other Miscellaneous Cases

The following are other judgments handed down by the Supreme Court:

School uniforms and dress codes are intended to stop disruptions to the learning process by banning lewd, obscene or offensive clothing. As such, the courts have ruled them constitutional despite students pleading for “the freedom of expression” and the lesser-known “freedom to see skin.”

Corporal punishment (physically disciplining a student) barely passed a constitutional challenge in 1977 with a divided court ruling 5-4 that it is neither “cruel and unusual punishment” nor a denial of due process. ( Ingraham v. Wright , 430 U.S. 651 [1977])  While corporal punishment is not allowed in Michigan, there are states where it is still legal.

The censorship of school newspapers was upheld with the understanding that the school is not a “forum of public expression.” Further, the justices declared that a school “need not tolerate student speech that is inconsistent with its basic educational mission.” ( Hazelwood v. Kuhlmeier , 484 U.S. 260 [1988]).

Additional Information

Religion and the Law

• Prayer, or other religious activities cannot be initiated by the school or teacher
• Prayer and other religious activities are permitted if initiated by students
• Schools must give religious organizations the same access to facilities as they give other secular organizations
• Prayer permitted in school if initiated by students, and does not interfere with the functioning of the school; all students not required to participate
• Schools cannot teach a particular religion, but may teach the history of religion, comparative religions, or the role of religion in the history of the United States or other countries
• No religious symbols permitted

Civil Rights Act of 1964 prohibits discrimination based on race, color or national origin.

Title IX prohibits discrimination based on gender.

Family Education Right and Privacy Act (FERPA): makes school records open to parents and students; must inform parents of their rights regarding records; must provide access; must create procedures for allowing students and parents to challenge and/or amend information believed to be inaccurate; protects against disclosure of confidential information to third parties without consent.

In summary, within teaching there is a unique set of ethical relationships and legal obligations that are embedded in the work of a teacher. Teachers have the responsibility to build moral character and be an example of that too. Adhering to a shared code of ethics can assist teachers in mitigating risk and protecting students and themselves.

The federal government makes general regulations for education and contributes very little funding for the schools (Federal Role, n.d.).

The states have most of the power because they are able to set the standards for teachers and students, and they fund the public school system almost completely (ECS, 1999).

The district has the power in the area entrusted to them by the state. Each district has an elected school board that determines how state standards are achieved and anything else they see fit to better the students’ education (Office of the Education Ombudsman, n.d.).

The superintendent oversees the schools in the district and makes sure they are following what is set by the states and the district (ECS, 1999).

The principals manage their individual school with assistance from the assistant principal (Office of the Education Ombudsman, n.d.).

The teachers instruct the students in accordance with the standards set before them by all levels of the hierarchy.

Watch the following video with this question in mind:  Freedom of speech remains a hot topic in schools. What do you think about the court’s ruling on Frederick’s banner? What elements of this case relate to the more current case described below. What elements are different?

https://shibbolethsp.jstor.org/start?entityID=https%3A%2F%2Fidp.uark.edu%2Fopenathens&dest=https://www.jstor.org/stable/20694791&site=jstor

Untangling Legal Issues that Affect Teachers and Student Teachers

https://www.findlaw.com/education/teachers-rights/teachers-rights-basics.html

Teachers Rights Basics

https://lawshelf.com/videocoursesmoduleview/the-basic-structure-of-education-law/

The Basic Structure of Education Law

https://www.youtube.com/watch?v=3xLo0ZiY6mE&t=1s

Code of Ethics for Arkansas Educators Training Video

Did You Get It?

Quiz for this chapter

Test your vocabulary skills!

Modified from “Foundations of Education and Instructional Assessment” by Alyschia Conn, Jasmine Tucay and Sarah Wolff licensed under CC BY-SA 4.0 and “Education 2010 – Introduction to Education ” by Brenda Alward.

https://en.wikibooks.org/wiki/Social_and_Cultural_Foundations_of_American_Education/Philosophy_and_Ethics/Ethical_Teaching

Ethics refers to well-founded standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness, or specific virtues.

Introduction to Education Copyright © 2021 by Myra Haulmark and Jennifer Beasley is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License , except where otherwise noted.

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The first amendment, 10 important supreme court cases about education.

October 30, 2015 | by Jonathan Stahl

Education is a hallmark of civic life in America, so it’s no surprise that it’s been at the center of many landmark controversies over the years. Here are 10 Supreme Court cases related to education that impacted both constitutional law and the public school experience.

10.  Brown v. Board of Education (1954)

Arguably the most well-known ruling of the 20 th century, Brown overturned Plessy v. Ferguson and established that “separate educational facilities are inherently unequal.” The Warren Court’s unanimous decision explained that the separate-but-equal doctrine violated the Equal Protection Clause of the 14 th Amendment , and ordered an end to legally mandated race-segregated schools. While the Brown decision marked only the beginning of a prolonged struggle to achieve actual integration, its impact cannot be understated.

9.  Engel v. Vitale (1962) and 8. Abington School District v. Schempp (1963)

This pair of cases shaped the modern understanding of how the Establishment Clause of the First Amendment constrains prayer in public schools. In Engel, the Court struck down a New York State rule that allowed public schools to hold a short, nondenominational prayer at the beginning of the school day. The Court decided that these prayers amounted to an “official stamp of approval” upon one particular kind of prayer and religious service, and said that, since teachers are agents of the federal government, the scheme violated the Establishment Clause.

The reasoning in Engel was also applied in Schempp , in which the Court struck down a Pennsylvania policy that required all students to read 10 Bible verses and say the Lord’s Prayer at the beginning of each day. While a student could get an exemption with a parent’s note, the Warren Court decided that this still amounted to an unconstitutional government endorsement of a particular religious tradition.

7.  Lemon v. Kurtzman (1971)

This case adjudicated a different sort of Establishment Clause challenge, where the controversy dealt with a statute providing financial support for teacher salaries and textbooks in parochial schools. The Burger Court unanimously decided that this financial aid scheme violated the Establishment Clause and delineated the governing precedent for Establishment Clause cases known as the Lemon test. Under Lemon , statutes (1) must have a secular legislative purpose; (2) must have primary effects that neither inhibit nor advance religion; and (3) cannot foster an “excessive government entanglement with religion.” The Court held that this scheme violated the third prong of the Lemon test.

6.  Wisconsin v. Yoder (1972)

Among the litany of public school cases from the Warren and Burger eras is the landmark Free Exercise Clause decision in Yoder . Wisconsin mandated that all children attend public school until age 16, but Jonas Yoder, a devoutly religious Amish man, refused to send his children to school past eighth grade. He argued that his children didn’t need to be in school that long to lead a fulfilling Amish life of farming and agricultural work, and that keeping his children in school for such a length of time would corrupt their faith. The Court unanimously agreed, saying that the values of public school were in “sharp conflict with the fundamental mode of life mandated by the Amish religion.” It carved out an exception for Yoder and others similarly situated.

5.  San Antonio Independent School District v. Rodriguez (1972)

Like most U.S. public schools, the San Antonio Independent School District in Texas was funded in part by local property taxes. The District sued the state on behalf of the students in its district, arguing that since property taxes were relatively low in the area, students at the public schools were being underserved due to the lack of funding compared to wealthier districts. They argued that the Equal Protection Clause of the 14 th Amendment mandates equal funding among school districts, but the Court ultimately rejected their claim. It held that there is no fundamental right to education guaranteed in the Constitution, and that the Equal Protection Clause doesn’t require exact “equality or precisely equal advantages” among school districts.

4.  Tinker v. Des Moines (1969)

At the height of the Vietnam War, students in the Des Moines Independent Community School District in Iowa wore black armbands to school as an expression of their dissatisfaction with U.S. foreign policy. The district passed a rule prohibiting the armbands as part of a larger dress code, and students challenged the ban as a violation of the Free Speech Clause of the First Amendment . The Court agreed with the students and struck down the ban, saying that the school has to prove that the conduct or speech “materially and substantially interferes” with school operations in order to justify the ban. This case is notable for its impact on First Amendment jurisprudence regarding distinctions between conduct and speech, as well as for its extension of free speech protections to students.

3.  New Jersey v. TLO (1985)

After a student (“TLO”) was caught smoking cigarettes in school, she was confronted by the school’s vice principal, who forced the student to hand over her purse. The vice principal then searched her purse, found drug paraphernalia and called the police; the student was eventually charged with multiple crimes and expelled from the school. Her lawyer argued that the evidence should not have been admissible in court because it violated the student’s Fourth Amendment protection against unreasonable searches and seizures. The Supreme Court decided that the Fourth Amendment does constrain the actions of school officials, and that students have a legitimate expectation of privacy when in school. Yet TLO’s sentence was ultimately upheld because the particular search in question was found to be “reasonable.”

2.  United States v. Lopez (1995)

In 1990, President George H.W. Bush signed the Gun-Free School Zones Act, which prohibited the possession of firearms in designated school zones. Lopez, a 12 th -grade student at a Texas high school, was caught carrying a gun at his school and was charged under the statute. He challenged his conviction and the Gun-Free School Zones Act, saying that Congress did not have the constitutional authority to ban guns in school zones. In one of the narrowest readings of the Commerce Clause since the Lochner era , the Court struck down the law and ruled that Congress had exceeded its authority. They explained that the possession of a gun does not have a substantial effect on interstate commerce, and that these sorts of regulations could only be passed by state governments.

1.  Parents Involved in Community Schools v. Seattle (2007)

In 2003, the Supreme Court ruled in Gratz v. Bollinger and Grutter v. Bollinger that race-based classifications, as used in affirmative-action policies, must be “narrowly tailored” to a “compelling government interest,” like diversity. In light of this, the Seattle School District established a tiebreaker scheme for admission to competitive public schools in the district, in which racial diversity played a role in the ultimate decision. The policy was challenged, and the Supreme Court was tasked with deciding if the Equal Protection Clause had any bearing on the case. It determined that its earlier decisions for college affirmative action do not apply to public schools and that racial diversity is not a compelling government interest for public school admission. Furthermore, they held that the denial of admission to a public school because of a student’s race in the interest of achieving racial diversity is unconstitutional.

BONUS: Friedrichs v. California Teachers Association (Pending)

The Court made the decision to hear this case in June, and will hear oral arguments this term. Friedrichs is a First Amendmen t challenge to the practices of public unions. The Court will determine whether requiring teachers to pay for union activities that are not explicitly political speech violates the First Amendment. While the Court has previously held such “fair share” fees to be constitutional, some commentators think that the Roberts Court may be willing to reverse the precedent. If they rule that the scheme is permissible, the Court must also decide whether an opt-out system for political activities is constitutional.

Jonathan Stahl is an intern at the National Constitution Center. He is also a senior at the University of Pennsylvania, majoring in politics, philosophy and economics.

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Chapter 5: Ethical & Legal Issues in Education

Unlearning Box

A high school English teacher is planning to have his students read The Bluest Eye by Toni Morrison . Set during the Great Depression, the main character searches for her identity and sense of self. In addition, there are themes of race, class, exploitation, and sex. Can the teacher include this book in his reading list for the year even though it was banned by the Parent Teacher Association (PTA)?

Actually, there is no clear answer for this teacher. The National Education Association (NEA) Code of Ethics suggests a standard of reasonableness . When making decisions as a teacher, ethics oftentimes presents a ‘gray area’ and does not always provide a definitive resolution.

In this chapter, we review the roles and responsibilities of teachers in today’s public schools as they relate to ethical and legal issues in education. We explore ethical teaching, along with legal parameters, established through case law and set up in the U.S. Constitution and its amendments. Rights for both teachers and students are examined, and current implications are discussed.

Chapter Outline

• What Is A Code of Ethics?

Code of Ethics in Action

Due process, every student succeeds act (essa), state oversight, teaching license, contract, and tenure, unions and participation in professional organizations, academic freedom, freedom of speech and expression, liability and teachers, teacher privacy, religion and schools, search and seizure, privacy of records, students with special needs, racial issues, freedom of speech, lgbtq+ rights and discrimination, ethics in education.

When you think of your favorite teacher, it is not often that you consider whether he or she was ethical. Yet professional ethics and dispositions, as well as the legal responsibilities of teachers, are central in defining how students view their favorite teacher. Ethics provides a foundation for what teachers should do in their roles and responsibilities as an educator. It is a framework that a teacher can use to help make decisions about what is right or wrong in a given situation.

​ What is a Code of Ethics?

Most professions have a Code of Ethics that binds its members together through shared values and purpose. This professional Code of Ethics is a widely accepted standard of practice that outlines the accountability of its members to those they serve as well as to the profession itself (Benninga, 2013).

For educators, this shared Code of Ethics is outlined by various educational organizations, as shown in Table 5.1.

Table 5.1:  Varying Codes of Ethics in Educational Organizations

Each of the statements on ethics from these teacher professional organizations complements the others, outlining expected behaviors and dispositions, identifying professional intent, and solidifying commitments that are expected from educators in their roles representing public schools throughout the state and nation.

Let’s see how a Code of Ethics could impact the scenario that opened this chapter. Recall that the high school English teacher wanted to include a controversial book on his reading list for the school year that has been banned from use. He believes this book will provide a rich experience for his students and provide stimulating class discussion and debate around identity and race. In determining whether or not to incorporate the text, the teacher must ask himself if he is truly presenting different points of view. In so doing, the teacher is adhering to the National Education Association (NEA) Code of Ethics, specifically Principle I, Item 2:

Principle I: Commitment to the Student

The educator strives to help each student realize his or her potential as a worthy and effective member of society. The educator therefore works to stimulate the spirit of inquiry, the acquisition of knowledge and understanding, and the thoughtful formulation of worthy goals.

In fulfillment of the obligation to the student, the educator s hall not unreasonably deny the student access to varying points of view (National Education Association, 2019, para. 8).

With this Code of Ethics in mind, this teacher could argue that reading this book stimulates the spirit of inquiry and knowledge acquisition, and not reading the book would unreasonably deny the students access to varying points of view.

As you consider the following scenario, think about the ethical dilemmas that are present and the ethical decisions that this teacher must make. Consider how each decision that this teacher makes impacts the functioning of the school, the well-being of the students, and the personal goals of the teacher in pursuit of the profession of teaching and supporting student learning. (Note: If you are using a downloaded version of this text and cannot load the interactive activity below, please turn to Appendix A to participate.)

As you gathered from this activity, there is not always one right “answer” to any given situation. A Code of Ethics provides moral standards to help guide your decision making and teaching practice. It helps with what you should do. It does not provide specific directions on what to do or even how to do it.

In the above scenario, the teacher is questioning her beliefs about academic integrity and whether the repercussions of reporting the act of cheating will cause this student unreasonable harm. The NEA Code of Ethics under Principle I, Item 4 states that part of a teacher’s responsibility is to make a reasonable effort to protect the student from conditions that could be harmful to learning (National Education Association, 2019, para. 10).

Depending on the teacher’s interpretation, she might believe that she should not report the student for cheating because it would impact his grade point average and cause more stress for his mother . Another teacher might interpret this situation differently, believing instead that this student would be harmed if she were to ignore the transgression by not being held accountable and not having an opportunity to learn an important lesson about cheating.

Ethical decisions take place every day in our classrooms. Oftentimes, you may believe that treating students equally is an ethical approach. But if you go into a classroom, you may notice a teacher calling on a shy student and not calling on another student who usually dominates the discussion. Is this equal? The teacher is clearly treating the two students differently. This is what we refer to in education as good teaching practice. The NEA Code of Ethics guides your teaching behaviors by placing your students central to your practice. Always consider that you must treat all students equitably, not necessarily equally.

A professional Code of Ethics governs a teacher’s relationships, roles, conduct, interactions, and communication with students, as well as families, administrators and the larger community. It provides educators with a way to regulate personal conduct and ethical decision making. It does not tell a teacher why he or she should do something. Having an informed awareness of statutes, laws, and other legal influences will assist you in defining your role as an ethical teacher who is also fair and responsible.

Pause and Ponder

What are your own personal ethical beliefs?  What situations could you envision in teaching that would require ethical decision-making?

The U.S. Constitution and the 1st and 14th Amendments

Significant, ground-breaking court cases have influenced the practice of public schools throughout history and many have come from the U.S. Supreme Court. The majority of these cases focus on the First and Fourteenth Amendments.

The First Amendment addresses the freedom of speech, religion, press, and the right to petition the government, and assemble peaceably (U.S. Constitution, First Amendment).

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.

-First Amendment of the U.S. Constitution ratified in 1791

Courts have been called to answer questions about the freedoms outlined in the First Amendment as they relate to teachers and students (American Library Association, 2006). From wearing religious or political symbols to speaking profanity at a school assembly, the consequence of dismissal or suspension has been petitioned to the courts questioning the reasonableness or fairness of the accusation or offense.

For the first time in U.S. history in Bartels v. Iowa (1923) , the Supreme Court affirmed that a teacher has First Amendment rights and provided teachers a degree of protection for in-class curricular speech. In Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico (1982) , the Supreme Court found that the school board could not restrict certain books in the school system’s libraries because school board members disagreed with the content. This was found to be a violation of the First Amendment and our protection with regards to freedom of speech.

These rulings have come into conflict over the years due to school systems also having the right to set the curriculum. This school system precedent was upheld in Krizek v. Board of Education (1989) when a non-tenured English teacher showed an “R”-rated film to high school students and her contract was not renewed. The district court found that the teacher’s First Amendment rights were not violated, rather the school board acted reasonably in determining that the film was inappropriate. (We’ll discuss tenure in more depth later in this chapter.)

The Fourteenth Amendment of the U.S. Constitution guarantees equal opportunity for due process and equal protection to all who live within the jurisdiction of the United States. This amendment was ratified in 1868 and written specifically to protect the rights of recently freed enslaved people.

Ensuring that this opportunity applies to all persons, it reads:

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.

– Fourteenth Amendment of the U.S. Constitution ratified in 1868, Section 1

The Fourteenth Amendment provides a guarantee that a state cannot take away constitutional rights or privileges as identified in the U.S. Constitution (National Constitution Center, 2020). It has three primary clauses:

• Citizenship Clause, which grants citizenship to those born or naturalized in the United States;
• Due Process Clause, which affirms that states may not deny any person “life liberty, or property, without due process of law”; and
• Equal Protection Clause, which establishes that states may not “deny to any person within its jurisdiction the equal protection of the laws”.

Both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment significantly impact education. The Equal Protection Clause is examined throughout this chapter as it relates to foundational legal cases, racial issues, and LGBTQ+ rights and discrimination. Next, we will consider how the Due Process Clause affects educators and students.

For educators and students, due process requires considering whether a constitutional right has been infringed upon, and then affords the accused student, teacher, school district or state the right to a fair and impartial trial. If an individual believes an action is unfair or unjust, the Due Process Clause of the Fourteenth Amendment allows the accused to have an unbiased trial or hearing.

All members of the school community have the right to due process with the purpose of providing a fair trial. The central premise of due process is fairness. A school district can be sued if it is believed that it was unfair or unreasonable. This legal argument can be brought by a teacher, student, parent, or community member. Anyone who believes that they were unfairly or unreasonably impacted by a policy or procedure of the school can bring a legal case against the school.

In the Supreme Court case Hortonville Independent School District No. 1 v. Hortonville Education Association (1976) , the Justices ruled that the school board was able to deliver due process in a reasonable manner when it fired teachers who went on strike after contract negotiations failed. The teachers were asked to return to work but refused. They were then terminated. The teachers argued that their dismissal violated their due process and should be reviewed by an impartial decision maker. The court did not agree, citing instead that the school board was viewed as the impartial decision maker, and they did not need to be independent from the issue.

Foundational Legal Cases

Throughout U.S. history, there have been many notable court cases heard by the Supreme Court related to public education in the United States (National Constitution Center, 2015). Select foundational legal cases are highlighted in Table 5.2.

Table 5.2:  Examples of Foundational Legal Cases in Education

Throughout U.S. history, courts have become more involved in helping school districts make decisions that affect how localities and states conduct schooling (Thomas, 2019). As diversity increases throughout the United States, school policies and procedures continue to be challenged in our court systems. When pursuing legal action, the goal is to ensure that schools provide a fair and reasonable system of education for all students.

The Every Student Succeeds Act (ESSA) was signed into law in 2015 (Every Student Succeeds Act, 2015). It replaces the No Child Left Behind (NCLB) Act that was enacted in 2002. ESSA requires states to be more accountable for the achievement of students within their public schools. Its purpose is to provide equitable opportunity for students with diverse backgrounds to include those living in poverty, minorities, special needs, and English language learners.

ESSA provides school districts more control in how they set education standards and determine consequences for low-achieving schools in their districts. States provide an accountability framework to the federal government that assures that all students receive a high-quality education. States are responsible for having an accountability plan and specifying the accountability measures that they and their school districts will follow (Lee, n.d.).

The state educational plan must include how each school within the state will:

• maintain academic standards;
• provide annual testing in grades 3-8 in reading and math;
• identify accountability measures that look at academic achievement, progress, English language proficiency, and high school graduation rates; and
• measure school success by kindergarten readiness, advanced placement coursework, college readiness, and chronic absenteeism or discipline rates (Every Student Succeeds Act, 2015).

Schools must provide to the federal government a plan that outlines how they will ensure that students learn and achieve in their schools. If underperforming in any of the above areas, schools must additionally present a plan for improvement.

The Court System and Education

Just as laws regulate society, they also standardize the teaching practice and schools throughout the United States. The U.S. judicial system is designed to address challenges to laws or policies within education in an impartial manner and one based on fairness.

When considering your teaching practice and the role of schools within your local community, be aware of the influence of state and federal laws. As you review case law in one state or across the United States, you will notice that there are several defensible decisions for one single issue. This makes the role and responsibility of schools less clear and more open to ambiguity.

Schools in the United States accept responsibility for children as they enter through their doors, and teachers have responsibilities that relate to educating students as well as providing physical, social, and emotional safety to all children, beyond teaching the required curriculum. Because of the diverse nature of schools, the U.S. court system helps to balance teachers’ and students’ responsibilities and rights.

Legal arguments can be heard in state or federal courts depending on the allegations from the plaintiff, the person or entity that has a complaint. Before hearing a case related to education, state policies prefer that the plaintiff follow procedures set forth by the local school board. The issue is discussed in the school and if not settled equitably, it is then taken to the school board for an impartial hearing.

If the decision is not agreed upon, the complaint can be taken to the school superintendent for review. If the accused is still not satisfied with the decision issued, they can take their complaint to the state board of education or state superintendent. In addition, at any time the complaint can be taken to the lower court in the jurisdiction of the school. A teacher or a student can also take their complaint to the U.S. Department of Education’s Office of Civil Rights (OCR) which investigates the complaint to determine if a civil rights law has been violated (U.S. Department of Education, 2020c).

States have a responsibility to provide a minimum public education to each child in their respective jurisdiction. Thus, each state has a compulsory attendance statute , which is a law requiring children to attend school based on specific age ranges. For example, in Virginia, students are required to attend school between the ages of 5 and 18 (Compulsory Attendance, 2020).

Each state must follow its respective State Constitution as well as the U.S. Constitution when defining the role and responsibilities of public schools within their state. Although education is a responsibility of the state, school districts have authority over their individual schools as it relates to curriculum and discipline. Rights are afforded to teachers in normal day-to-day functioning and when appealing grievances as it relates to such things as contracts, policies, denial of tenure, or suspension. Students must also adhere to this authority, unless it overrides a student’s constitutional rights.

States provide a wide range of oversight. They identify the minimum licensure requirements for educators. States also dictate what educators must do within that state to maintain their teaching license. State laws provide guidelines regarding how schools are organized based on funding. The legislature and Governor of each state allocate a certain amount of funding to school districts throughout their state. School districts then decide how those funds are spent. State legislatures and courts have intervened to help reduce funding disparities among poorer and wealthier school districts to better ensure that all students have equal access to education. States also create a state board of education, set-up school districts throughout the state, and establish school boards for each district. State laws also help to define student discipline and due process policies.

Examples of state involvement within public schools include:

• Creating school districts
• Allocating a budget to school districts
• Regulating schools throughout those districts
• Establishing the organizational structure for schools
• Defining policies and functions of the school
• Setting minimum curriculum requirements for schools
• Defining licensure requirements for educators, and
• Determining working conditions (National Conference of State Legislatures, 2020).

Within a state, courts serve a certain geographical area or jurisdiction. When a state court makes a decision, it does not necessarily become state law. It is also important to note that with multiple decisions being made in multiple courts across a state, decisions will sometimes conflict between the different lower circuit courts. As such, judges tend to review case law from previous cases to find precedents that align to their interpretation of the law when making a ruling on a specific case.

Laws influence the functioning of public schools in the United States. This includes the role and responsibilities of teachers and students and the policies and procedures outlined in the teacher and student handbooks as it relates to schooling. Because state courts are different and each follow their own State Constitution, there tends to be a multitude of state laws to choose from on an issue or topic when making a ruling. Only the federal Supreme Court opinion influences national statutory precedent.

Neither the state nor the school district’s power is unlimited. The judicial system provides the necessary checks and balances. Because of this balance of power, a school has limits on its control, operations, and functioning. It must also provide evidence of effectiveness and document adherence to state and federal laws.

Stop & Investigate

Look up legislation [1] in your state. What kinds of cases are being brought, and what decisions are being made?

Rights of Teachers

As a teacher, you have certain protected rights related to your legal employment, membership in unions and other professional organizations, academic freedom, freedom of speech and expression, liability, privacy, and religion. It is important to be aware of the rights you do have, as well as the limits of your legal protection.

As discussed in Chapter 1 , the first step in becoming a legally-recognized teacher is to earn a teaching license . Each state has different requirements for earning a teaching license, as they define the specific dispositions, knowledge, and skills needed to obtain and maintain employment within a school in that state. If you choose to complete an educator preparation program (like an education major in college), you will be working toward fulfilling the requirements of a teaching license in the state where your institution is located. Many states have reciprocity with other states’ teaching licenses, meaning that you can earn a teaching license in one state and still go teach in another one, as long as you also complete the requirements for earning a teaching license in that new state. Oftentimes, reciprocity means getting a second teaching license is as simple as taking a test, or it may require a few additional classes or trainings. In most states, you will need a valid teaching license to teach in public schools; private schools may or may not require a teaching license, depending on the state.

Look up your state’s licensure requirements. What do you notice? What kinds of knowledge, training, and experience are you required to have? How is your understanding assessed before you are granted licensure?

Once a teacher applies for and receives a job at a school, they receive a teaching contract . A teaching contract is a written agreement between the school system and the teacher and serves as a legal document identifying the roles and responsibilities for the teaching position. If the school board negotiated with a teacher’s union, then the policies and regulations of the union will also be identified in the contract. The teaching contract must be signed by the teacher, school, and ratified by the school board to be binding. The teaching contract is binding unless it is breached, should either party fail to perform as agreed during the time frame specified in the teaching contract. Each state has a different definition of the types of teaching contracts that are presented to teachers within the state, but some traditional types of teaching contracts are explained in Table 5.3.

Table 5.3:  Comparison of Teaching Contracts

You may have heard of the word “tenure” in discussions about teaching contracts. Tenure protects teachers from arbitrary dismissal by school officials. Tenure derived from the Pendleton Civil Service Act of 1883, which was originally established as a merit system for government workers. Tenure rights for teachers in the United States date back to 1909, when the NEA lobbied for these rights. States define tenure laws for teachers in public schools, including elements like probationary periods and termination procedures. A school district can dismiss a tenured teacher for justifiable reasons such as noncompliance, immoral conduct, committing a crime, and insubordination. A teacher can also be dismissed for financial reasons, such as when a school district has a deficiency of funds.

Tenure does not guarantee a teacher a job for life, nor does it offer lifetime employment security (Hart, 2010). The focus of tenure is on supporting and protecting good teachers. It is an earned process that mandates due process. The benefits of a continuing contract or tenure are that a school must show cause in order to dismiss you because you, as the teacher, have due process rights. Advocates for tenure see its benefits for teachers in that it “significantly strengthens legal protections embodied in civil service, civil rights, and labor laws” and “protects a range of discriminatory firings not covered under race and gender antidiscrimination laws” (Kahlenberg, 2015, p. 7). In addition, teacher tenure has been shown to increase morale and overall teacher involvement within a school and collaboration among colleagues. Tenure affords teachers the ability to question and engage with school leadership as it relates to the functioning of a school and in building a strong school culture, which has been linked to increased academic achievement for students (Lee & Smith, 1996).

Presently, some states are changing their legislation as it relates to teacher tenure. The Every Student Succeeds Act (ESSA) and Race to the Top grants through the U.S. Department of Education both require states to evaluate student achievement and teacher effectiveness. Certain state legislatures view teacher tenure as a barrier to these initiatives because it is more difficult for school districts to dismiss tenured teachers for poor performance, and as a result, relatively few tenured teachers are fired (Goldhaber & Hansen, 2010). Therefore, some states have begun to change tenure laws to adhere to the accountability requirements stipulated by the U.S. Department of Education as it relates to teacher evaluation and student achievement. As a result, some tenure systems have been removed or revamped with annual contracts requiring satisfactory performance. Florida, Indiana, North Carolina, and Kansas have eliminated tenure completely (Underwood, 2018). Additional states are also currently contemplating limiting or removing tenure for teachers.

The National Education Association (NEA) and American Federation of Teachers (AFT) are two of the largest teacher labor unions and professional organizations in the United States at present. Both have been in existence for more than 100 years and support teachers, along with other school personnel. As unions, both organizations support their members with collective bargaining, whereby they work alongside teachers as they negotiate with their respective school districts to resolve disputes, as well as to lobby Congress for state and federal legislation that would impact educational related issues, including teacher rights and responsibilities.

You can join either organization, but since not all states recognize unions, the NEA or AFT may not be able to assist you with collective bargaining or school board negotiations, depending on your state of employment. Collective bargaining is illegal in Virginia, North Carolina, South Carolina, Georgia, Alabama, Texas, and Arizona. You may hear this referenced as a “ right to work state ,” which means that employees have a right to work without being forced to join a union. Even so, each professional organization provides support, a rich network of educators, and professional development around issues and opportunities that can be beneficial for your teaching practice.

It is not often that educators are permitted to strike because they are employed by the state and are considered vital to public service. Still, some teachers do strike regardless of state laws that may prevent them from striking, such as we saw in 2018 in West Virginia, Kentucky, and Oklahoma. When teachers go on strike, the impacted school board can obtain a court injunction to order teachers back to the school and teachers can lose pay for each day on strike. In many states, they can also be dismissed from their teaching positions for striking.

You may have heard of the #RedforEd movement, which involves teachers striking or protesting in many different states as a way to advocate for students. Watch this video to learn more about this movement from the National Education Association (NEA).

Many teachers consider academic freedom to be a constitutional freedom outlined by the First Amendment. Because a teacher is a state employee and has signed a legally binding teaching contract, the teacher has a legal obligation to adhere to the rules and regulations identified by the school board and the laws of the state and federal government. A teacher represents the school and cannot do whatever he or she wants in the classroom. Likewise, a teacher does not have complete freedom of speech to say whatever he or say wishes either. All teachers must follow guidelines represented in their teacher contract and the policies and procedures of the school board.

While the legal system has afforded teachers the right to select appropriate class materials, the educational purpose, the age and sophistication of students, and the context and length of time to complete assignments must all be considered. For example, if you wanted to teach the muscular system in human anatomy in your sixth grade science curriculum, but this content is not taught until tenth grade, you would not be able to change the curriculum framework set by the school district per your teaching contract.

If an activity aligns to your curriculum framework and you have followed the guidelines set forth by the school board, you could, for example, have a speaker come into your classroom to talk about an aspect of your curriculum or use an article published in the newspaper. This would not be in breach of your contract. As you prepare for class instruction, consider your assigned curriculum, review school policies, and ask your school principal or other mentor teachers for guidance.

Pause & Ponder

Imagine a teacher publishes an opinion piece in the local newspaper. In the editorial, they were very critical of a policy that the school board had just passed. They also included many allegations that were not accurate. The community reacted very strongly on both sides of the issue. What rights does this teacher have for freedom of expression outside of their position as a teacher in this school district?

Freedom of expression for a teacher outside of the classroom has been challenged in the court system if it was felt that the speech or behavior was disruptive to the effectiveness or efficiency of a school. Because a teacher has a professional responsibility to their school, educators must be careful about what they say, both at school and outside of school.

In the Pickering  v. Board of Education (1968) case, the Supreme Court reversed a lower court ruling and found that the teacher’s First Amendment right to free speech had been violated after he was dismissed by the school board for writing and publishing a letter in the local newspaper criticizing the board. The court held that teachers were able to voice concerns, even if those concerns were unfavorable to the school, as long as the regular school operations were not disrupted. In the case, the court’s opinion was that the plaintiff’s First Amendment rights to free speech were not lost because a school district believes the speech is not in its “best interest.” After this ruling, the teacher in this case was reinstated to his position.

This influential case regarding First Amendment rights and freedom of speech for public school teachers established precedent that public employees have the ability to speak out on issues of public concern, even as state or government employees. Even so, the rights of public employees continue to be challenged in the U.S. court system.

In Connick v. Myers (1983) , the Supreme Court again reversed a lower court decision and ruled that speech of public employees is protected only when they speak on matters of public concern. The case results here showed that the rights of public service employees must be balanced between matters of public importance and an employer’s interest to maintain a disruptive free workplace.

Similar to freedom of speech, a teacher’s freedom of expression can also be called into question as it relates to personal presentation and dress. Court cases surrounding dress code requirements established by school boards and imposed on teachers in their local schools have established some legal precedent, but this also continues to be a hotly debated topic. As a public school teacher, can you exercise your own ‘personal liberty’ in how you dress?

In East Hartford Education Association v. Board of Education  (1977) , a public school teacher was reprimanded for failing to wear a necktie while teaching an English class. Joined by his teachers union, he sued the board of education on the basis that the admonishment for the dress code violated his rights to free speech and privacy. This case was heard in the U.S. Court of Appeals who found that the school board was justified in imposing the dress code. As a teacher and public servant in a position of trust, the court felt that this professional requirement and overall governance by the school board on the appearance of its teachers was warranted.

For many teachers and students alike, dress and personal appearance is considered a freedom of expression. Geographic diversity and individual school culture can also be a factor in what is allowed or not allowed as it relates to dress codes in schools across the United States (Sternberg, n.d.). What is acceptable in southern California may or may not be in West Virginia or Vermont.

School principals often become the main authority for ensuring compliance (Waggoner, 2008). A standard of reasonableness is useful when crafting a successful dress code, along with clarity of language and flexibility dependent on the situation to determine appropriate dress and professional presentation. Review the dress code for your school and district to ensure that you are in compliance.

Critical Lens: In the News

In the fall of 2020, a teacher at a charter school in Texas says she was fired after wearing a mask with “Black Lives Matter” written on it ( Pygas, 2020 ).  The school told her the mask was a violation of the dress code and asked her to avoid wearing the mask due to the “current political climate.”  When she stated in an email that she would not stop wearing the mask, the school said she had “effectively resigned her position,” since she did not intend to follow the established policy.  Dress codes are one part of the professional behavior you may be expected to follow once you sign a teaching contract, so it is important to know exactly what your dress code policy says and what your rights are.

Now, imagine an elementary school teacher is outside with their students on the playground. Two children ask if they can climb on the climbing wall. The teacher agrees and begins to walk over so they can monitor their play. At that very moment, a child falls off the monkey bars she was playing on and begins to cry. The teacher quickly walks over to the fallen child and notices that she has a cut on her arm. Can this teacher be sued for negligence?

When at school, educators have a responsibility that is referred to by the courts as “ in loco parentis ” or “in place of parents”. This means that while in school it is the responsibility of educators to make similar judgements as it relates to the safety of children that a parent might make. Because an educator is legally responsible for the safety of children under their supervision, a teacher is considered negligent if they fail to protect a child from injury or harm.

Accidents happen, and there are multiple ways that a child could be injured, such as in the playground scenario described above, in the lab of a science classroom, or even running down the hallway. However, if it is determined that negligence did occur, or even if a parent believes that negligence took place, a liability suit can be brought against the teacher or the school. The person who was harmed can bring civil or criminal charges against the student or teacher who threatened harm. In addition, a teacher can be dismissed and lose his or her teaching license as well as be criminally or civilly charged.

Protections exist for teachers that limit liability. These include:

• A reasonable attempt was made to anticipate a dangerous condition;
• Proper precautions were instituted to include establishing rules and procedures to prevent injury;
• Students were warned of possible danger; and
• The teacher provided proper supervision (Legal Information Institute, n.d.).

The Supreme Court of Wyoming held in Fagen v. Summers (1972) that the teacher did everything possible to keep students safe following a playground accident, citing that “a teacher cannot anticipate the varied and unexpected acts which occur daily in and about the school premises.” Schools and/or teachers are generally not held responsible for accidents occurring on school property under these types of circumstances.

In another playground accident in Louisiana several years later, Partin v. Vernon Parish School Board (1977) , the judge reiterated the importance of a teacher demonstrating a “high degree of care” for students under his or her supervision, while confirming the earlier decision and citing that “the teacher is not the absolute insurer of the safety of the children she supervises.” In both of these cases, the teacher was not found guilty of any negligence based on the above criteria.

Teachers can have a lawsuit brought against them for civil liability or civil statutes if it is believed that:

• a student has been mistreated or abused either verbally, physically, emotionally, or sexually.
• a teacher discriminated against a child due to his or her gender, race, or a special need(s).
• a teacher treated certain children unfairly, such as through grading practices.
• offensive material was assigned by the teacher for homework (Legal Information Institute, n.d.).

Once you begin teaching, your school and state will have specific policies regarding liability protection for teachers.

Critical Lens: Who Gets to Define “Offensive”?

What happens if what some families deem offensive is the lived experience of others? For example, a teacher in Texas was placed on administrative leave when some families complained about posters on the “walls” of her virtual Bitmoji classroom ( Fitzsimons, 2020 ). These virtual “posters” depicted affirmations of LGBTQ+ communities and the Black Lives Matter Movement.  But what about the students who see themselves in these LGBTQ+ and Black Lives Matter posters?  How do we create classroom communities that are inclusive of various cultures and perspectives, while also acknowledging that some groups deem certain cultures and perspectives as “offensive”?

Privacy is considered to be a protection in the U.S. Constitution under the Fourth Amendment as it relates to unreasonable searches and seizures (U.S. Constitution, Fourth Amendment).

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.

-Fourth Amendment of the United States Constitution ratified in 1789, revised 1992

In the Supreme Court case, O’Connor v. Ortega (1987) , the court ruled that public employees retain their Fourth Amendment rights with regard to administrative searches in the workplace. The Court held that a standard of reasonableness was sufficient for work-related intrusions by public employers, citing that an employee’s expectation of privacy may be unreasonable when the intrusion into the office is by a supervisor rather than a law enforcement official in conducting normal business functions.

For teachers, the school is considered a public place and therefore there are minimal limitations placed on search and seizure. All places in a school building and on school grounds are considered public space. This means all classrooms, teacher desks, offices, even student lockers are considered a part of the workplace and can be searched, and items seized. Personal belongings are separate from this public workspace. This means your personal effects, such as a phone or bag, do not belong to the workplace and if searched, require a warrant. For your own protection, use care when deciding what to bring into the school.

The First Amendment separates religion from the business of the state. Government is prohibited from imposing religious beliefs on any person. Public school serves as a state government service and therefore it must be neutral and not promote religious beliefs on anyone in the school. Religion in schools has been challenged from prayer in schools, to religion in the curriculum, religious clubs and access to public school facilities, to artifacts and clothing.

The Supreme Court has continuously upheld the separation of religion from the school environment (ACLU Legal Bulletin, 2020), as shown in Table 5.4.

Table 5.4:  Supreme Court Cases on Religion in Schools

The courts have upheld that there is a separation between church and state even to the extent of your own personal beliefs. In 1980, a teacher refused to teach a city-designed curriculum that she said violated her own religious beliefs. In the Palmer v. Board of Education of the City of Chicago (1980) decision, the court recognized that a teacher can have personal views that might be different from the curriculum, but upheld that the mandate of the school district to provide an education requires that teachers “cannot be left to teach the way they please.”

Rights of Students

Students share many of the same constitutional rights to ensure protection as adults. Several sections outlined below follow those shown above under Teacher Rights, but with additional emphasis on the students themselves.

Courts have mandated that for a school to operate safely it needs to have broad authority to establish rules and regulations as it relates to student conduct within the school. This means that parents agree to give some level of control to schools when they enroll their child in the public school system. The courts have also insisted that students do not lose all of their constitutional rights and a school’s influence is not absolute. Within the U.S. legal and educational systems, control is defined as a standard of reasonableness which was similarly stated in multiple examples above.

Schools have an obligation to provide a safe and orderly learning environment. Reasonable limits are put in place regarding language, such as banning offensive language, to assure appropriateness and respect. Forms of expression that are protected in schools include:

• the right to wear religious clothing and talk about religion,
• to be free from bullying and harassment, and
• to be free from racial or national origin discrimination (United States Courts, n.d.).

Protecting students’ rights to political speech was explored in Tinker v. Des Moines Independent School District (1969) . It served as a landmark Supreme Court case and the decision upheld that free speech was permitted in schools.

This ruling was later challenged in 1986 when a student used what was considered ‘vulgar’ language by the school in a speech at an assembly. The student was reprimanded by the school and the student sued the school claiming that his constitutional right to freedom of speech had been violated. The case went to the U.S. Supreme Court where the court decided in Bethel School District No. 403 v. Fraser (1986) that a school is not required to permit offensive or disruptive speech on school grounds at a school sanctioned event because offensive speech or language disrupts the educational mission of the school and is inappropriate for a school setting.

Freedom is also limited as it relates to a student newspaper. In Hazelwood School District v. Kuhlmeier (1988) , the U.S. Supreme Court decided that a student newspaper can be regulated for “legitimate pedagogical concerns” allowing a school to remove articles that school officials deemed inappropriate for the school community. The decision went further, allowing a school to determine if the speech was written in a reasonable manner for members of the school community and ensuring that it did not contain language that was “ungrammatical, poorly written, inadequately researched, biased, prejudiced, vulgar or profane, or unsuitable for immature audiences.” The court found that because a school newspaper is not intended to have a public forum, a school can limit speech by imposing reasonable constraints if it is determined the speech would disrupt a classroom and the normal functioning of a school.

In the present day, free speech as it relates to the Internet is the same for teachers as it is for students. If it is found that the speech posted online ‘substantially disrupts’ the functioning and purpose of a school, disciplinary actions can be taken against either cohort.

In Doninger v. Niehoff (2008) , a student’s derogatory comments posted online were found to make a substantial disruption to the school. A blog post contained language that would be prohibited within the school and was disruptive to the work and discipline of the school. A Court of Appeals held that even though the online comments were made off campus, the speech could be restricted to promote school related goals on campus. This case relates to disruptive speech and cyberbullying. It underscores school responsibility in maintaining a safe environment for students.

The speech of students and teachers is constitutionally protected, but the extent of the speech, as it relates to the mission and goals of a school, must always have a legitimate pedagogical focus and direction. This holds true whether it is in print in a school newspaper, in the local newspaper, or in electronic format. It is true if it is part of the curriculum or in a theater production on school grounds. Speech is influenced both on and off campus and can come under the school’s authority both in-person and online.

Dress codes have been challenged by students and teachers alike as a form of freedom of speech and expression. Courts have upheld that school boards can impose student dress codes to include symbols, clothing, and jewelry if it is believed to have the potential to disrupt a school’s functioning.

In addition to supporting free speech as discussed above, the Tinker v. Des Moines (1969) case also weighed in regarding dress code. During the Vietnam War, students planned to wear armbands to protest the War. The principal tried to limit these protests by banning armbands. The court ruled against the school, holding that there was no evidence that students wearing armbands would disrupt school functioning.

In 2006, a student wore a shirt to school that other students found offensive and which depicted a particular political viewpoint. He was asked to cover the shirt based on the off-putting image and speech. He refused and was given a disciplinary referral. In Guiles v. Marineau (2006) , the student then sued the school administrators to have the disciplinary referral expunged from his record and to disallow the school from enforcing the dress code policy against him. The District court held that the school was entitled to enforce its dress code policy, but upon appeal, the U.S. Court of Appeals ruled that the shirt was protected speech under the First and Fourteenth Amendments.

In another case, B.H. and K.M. v. Easton Area School District (2013) , students were suspended for wearing bracelets that showed support for breast cancer awareness. In this case, the judge ruled in favor of the students. The school district then elevated the case to the Supreme Court, but the court refused to hear the case, stating that the message on the bracelet did not use lewd language and was not disruptive to the purpose of education. The First Amendment requires schools to see all student views equally, as long as they are not obscene or disruptive, irrespective of the message expressed (Sherwin, 2017).

The purpose of a dress code is to provide an optimal learning environment. It can also do the opposite with gender-biased language that results in stricter enforcement of rules for female minority students rather than other sub-groups. A gender-neutral dress code is recommended, along with gathering student input when revising the school dress code and ensuring that female students are not ‘victim-blamed’ (Barrett, 2018).

Pay attention to the news–you are likely to hear many examples of dress code violations that systematically oppress certain groups. For example, a school in Houston made the news in early 2020 [2] for their dress code policy that required male students to keep their hair “ear-length or shorter,” thus banning dreadlocks. One male student, De’Andre Arnold was told he would have to cut his dreadlocks in order to walk at graduation. Despite complaints, the school district stood by its policy. In August, a federal court ruled this policy was discriminatory.

The American Civil Liberties Union also provides guidance on student rights as they relate to school dress codes, gender, and self-expression:

• Views are protected by the First Amendment and therefore schools cannot ban symbols or slogans or messages that they disagree with on student shirts, buttons, wristbands, or other garments or accessories.
• While public schools can establish dress codes, they cannot treat boys and girls differently, censor viewpoints, or force students to conform to gender stereotypes under federal law.
• Students are allowed to wear clothing that aligns with their gender identity and expression (ACLU Fact Sheet, 2016).

Schools administrators must be aware of the constitutional rights of students and protect these freedoms. Schools can assert certain restrictions as they relate to freedom of speech and expression, but at the same time they also need to be cognizant of student diversity and cultural differences, as well as gender distinctions, and economic disparities.

Think about some of your experiences with dress codes. Which cultures were normalized and which were marginalized? Here are a few ideas to get you started.

• Gender and sexuality: Were males and females held to different standards? (For example, were females expected to wear skirts or not to wear strappy shirts? See the #Iamnotadistraction movement [3] or the Let Her Learn report [4] advocating for female bodies not to be hyper-regulated and sexualized in dress codes.)
• Race: Were certain hairstyles or traditions allowed or not? (For example, Black hair styles [5] are frequently at risk of marginalization, along with Black and Brown bodies in general [6] .) Or, are certain racial groups punished more frequently [7] for dress code violations?
• Religion: Are head coverings and facial hair regulated? (For example, the Air Force updated their policy [8] in February 2020.)
• Socioeconomic: Were certain types of clothing allowed or not? (For example, some dress codes limit cheap plastic flip flops but allow more expensive leather ones.)

Imagine that a teacher suspects a student has illegal drugs in her backpack. They noticed the student at her locker placing a small bag in the front pocket. The teacher immediately reports their suspicions to the principal. What should be the next step? The school administrator must have a “reasonable suspicion” based on facts specific to the student or the situation. A “hunch” is not sufficient. Rather, the principal must believe that searching the student will turn up evidence of violating a school rule or law. “Reasonable” is based on what is being searched for and the age of the student.

The Fourth Amendment of the Constitution protects U.S. citizens from unlawful search and seizure of possessions. If there is probable cause for a search, a warrant is required from the court system before a person can be searched. Because of the nature and purpose of school, courts have allowed schools to both search and seize possessions if there is probable cause.

In New Jersey v. T.L.O. (1985) , the Supreme Court established a standard of reasonableness for student searches conducted at school and by public school personnel. While the Fourth Amendment of disallowing unreasonable search and seizure still applies, if school administrators have a reasonable suspicion that a student has either broken the law or violated a school rule, the search is justified. In this case, the student was found smoking in the bathroom, a violation of school rules, and taken to the principal’s office where her purse was searched based on a reasonable assumption that the student had cigarettes in her purse.

Random drug tests have historically been permissible for both teachers and students. In the Supreme Court case Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002) , the court held that athletes can be randomly tested for drugs to protect the safety of the school and to ensure a drug free school. The safety and knowledge of the drug free school outweighed the privacy rights of students who were voluntarily participating in the sporting events. The Court concluded that while the students participating in extracurricular activities have limited Fourth Amendment rights, within the school setting there is a lesser expectation of privacy, and the students’ rights must be balanced against the school’s interest in keeping illegal drug use to a minimum (Staros & Williams, 2007).

In 2005, a 13-year old special education student was called out of class and questioned by police officers with school officials present regarding neighborhood burglaries. His parents were not contacted, nor was he read his Miranda rights, such as the right to remain silent, leave the room, or have access to a lawyer. The child confessed to the crime but later sought to suppress his confession based on not receiving any indications of his rights while he was in police custody in the school conference room. This case, J.D.B. v. North Carolina (2011) , was later heard by the Supreme Court where they ruled that age should have been considered in deciding whether the student was in police custody within the school grounds. The Justices went on to state that there are psychological differences between an adult and a child, and when police are involved in questioning students, they must use “common sense” due to the developmental differences of children. The Miranda warnings should have been applied in this case in a manner appropriate for the student prior to his questioning.

Search has also been controversial with the use of video surveillance and metal detectors in schools. Currently, courts have held that if school safety has been threatened, means of surveillance can be introduced into the school, but that extensive surveillance using video or metal detectors can hinder reasonableness of the surveillances and violate Fourth Amendment protections. The intent of school policies and procedures are consistently to provide and maintain “a safe, secure, healthy, and disruption-free learning environment” that is conducive and supportive to teaching and learning (Vacca, 2014, p. 5).

In 1974, Congress passed the Family Educational Rights and Privacy Act (FERPA) , also called the Buckley Amendment. This was an Amendment to the Elementary and Secondary Education Act (ESEA) of 1965. FERPA is a federal law that protects the privacy of student educational records. FERPA requires schools to allow parents and students access to official school records. It also requires schools to provide procedures for parents to challenge the accuracy or completeness of information in their child’s record. Parents retain the rights of access to their child’s school record until the child reaches the age of eighteen or is enrolled in a postsecondary institution.

The intent of FERPA is to improve parental access to their child’s information within the school. It does not guarantee access to all school records on a child, such as personal teacher notes, letters of reference, grade books, or correspondence with a principal. These items are exempted from view. There may also be files or information that is kept separate from a student’s file to protect the privacy rights of other students in the school.

Passed in 1978, the General Education Provisions Act is an amendment to FERPA. It additionally provides access to parents, guardians, and the students themselves on research collected on students. The Act also states that no student is required to participate in testing nor can students be questioned about their personal beliefs, such as sexual attitudes or behaviors, political affiliations, or income. It also limits asking about feelings or behaviors, such as psychological or mental issues.

In total, the FERPA guidelines require schools to:

• Inform parents annually of their rights regarding their child’s records.
• Provide parents access to their child’s records.
• Maintain procedures that allow parents to challenge and if needed, amend inaccurate information.
• Protect parents from disclosure of confidential information to third parties without their consent (Family Educational Rights and Privacy Act, 1974).

As a teacher, you want to consider information and data collected on students carefully. Any information collected must serve a legitimate goal for both instruction and the school. The privacy of student educational records must be protected, and official records and confidential documents securely stored.

Classroom discipline has been presented in the courts to assist in decisions regarding the reasonableness of discipline procedures from both teachers and schools. While the U.S. court system upholds that a school has the authority to enforce standards, it also recognizes that this authority is not without restrictions. For example, suspensions and time outs cannot limit students and their right to a public education.

The purpose of discipline is to modify the behavior of a student who is disrupting learning and the functioning of the school. The school has the right to preserve the rights of other students by enforcing disciplinary actions if it is determined that the enforcement is fair and reasonable and supports the education process.

Students who have disciplinary actions brought against them have the right to procedural due process. This was upheld in Goss v. Lopez (1975) . The Supreme Court ruled that any suspension of a student requires procedural due process that provides the student both oral and written notice, as well as an explanation and evidence of the charges. The student then has the right to explain their side of the argument and provide evidence. It is important that all students be afforded due process. The student and parent or guardian must be provided all of the evidence that makes the school’s case and have an opportunity to speak in their defense.

All students have a right to a Free Appropriate Public Education (FAPE) as part of their educational entitlement in the United States. This is supported through the Rehabilitation Act of 1973 , Section 504 which addresses protection for students with disabilities (U.S. Department of Education, 2010). In 1975, the Education for All Handicapped Children Act was signed into law to support states in protecting the rights and meeting the needs of students with disabilities. This law was amended in 1997 and is currently the Individuals with Disabilities Education Improvement Act (IDEIA) (2004).

This law guarantees every child with a disability access to a free appropriate public education. The IDEIA Act requires schools to make accommodations for students with disabilities and to create individual education programs in the least restrictive way for each student that has a special need (Individuals with Disabilities Education Act, 2003). Public schools must provide reasonable and safe accommodations for students with disabilities, and at the same time provide them with an equitable education. You read about the specific disability categories listed in this act in Chapter 2 .

The intent of IDEIA is to provide equal educational opportunity and protection for students. This basic access includes consistent specialized instruction and services that are individually designed for students to provide similar educational benefits to a child with special needs (U.S. Department of Education, 2020a). Individual states and local educational systems can choose services and programs in cooperation with a parent or guardian.

Current Implications

Throughout the history of schools in the United States, ethics and the function of laws have evolved as society has changed. To date, current issues continue to be addressed in our nation’s public schools and within our court systems. While others exist as well, below are three current issues within education and society as a whole.

Today, racial concerns remain a key issue for schools and society at large. In T.B. et al. v. Independent School District 112 (2019) , African American students filed a complaint against white students in Minnesota. They claimed they had been harassed and the school did not intervene to remove racism, harassment, and discrimination nor did it protect their rights to safe and equal access to education within the school environment. This is required as part of the Equal Protection Clause under the Fourteenth Amendment of the U.S. Constitution and Title VI of the Civil Rights Act of 1964. As of this writing, the case remains open in the court of appeals.

Title VI of the Civil Rights Act of 1964 states, “ No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (Civil Rights Act, 1964).

Racial harassment continues to occur in schools to the present day. As a teacher, you are responsible for enforcing policies and procedures that are appropriate within the classroom to maintain a safe environment for all students. Immediate action is required to respond to bullying and intimidation, such as speaking up and talking with the offending students and reporting the action to your principal when you hear or see questionable behavior or actions within your school. Regular professional development and training can additionally help inform and support teachers. A culture of inclusion and acceptance is required by school leadership that permeates throughout the school and community.

Freedom of speech continues to be challenged in our schools. In B.L. v. Mahanoy Area School District (2019) , a court of appeals in Pennsylvania held that a school district violated a student’s First Amendment rights when they removed her from a school event for a Snapchat message. The message was sent by the student on a weekend and away from the school. The case made it to the U.S. Supreme Court, and the final ruling on Mahanoy Area School District v. B.L. (2021) found that the student had First Amendment rights to free speech and that the school’s decision to suspend her was wrong. The court used the ruling of Tinker v. Des Moines Independent Community School District (1969) in its opinion stating that the student’s message was posted off campus and was not controlled by the school. Therefore, the First Amendment protected the student when she engaged in off-campus speech similar to a community citizen.

In another case, Ali   v.   Woodbridge Township School District (2020) , a high school history teacher in New Jersey was terminated in 2016 from his teaching position for altering curriculum and teaching what the school believed were “conspiracy theories.” The teacher appealed to the courts, stating that his dismissal was discriminatory, and he was wrongfully terminated on the basis of his race, ethnicity, and religion. The case was resolved in 2020 after the court of appeals upheld the lower court’s decision in favor of the school and the teacher’s dismissal, stating that the teacher does not have the right to decide what is taught in the classroom; rather, that is the public school’s responsibility.

Discrimination based on sexual orientation and gender identity are important issues in today’s schools. For LGBTQ+ teachers, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of race, color, religion, sex, or national origin (Civil Rights Act, 1964). For students, Title IX under the Office of Civil Rights of the U.S. Department of Education bans sex discrimination in schools and reads “ No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient to which this subpart applies” (U.S. Department of Education, 2015) .

Students or teachers who believe they have been discriminated against can bring litigation under the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause in Section 1 of the Fourteenth Amendment states:

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 (U.S. Constitution, Fourteenth Amendment) .

In addition, in 1984 Congress passed the Equal Access Act requiring federally-funded secondary schools to uphold students’ First Amendment rights to conduct meetings and hold an open forum with equal access to extracurricular student groups or clubs (Equal Access Act, 1984).

In Davis v. Monroe County Board of Education (1999) , the mother sued the school system on behalf of her fifth-grade daughter for failing to prevent sexual harassment by another student. The Supreme Court upheld that there is an implied right to education under Title IX and found that the school board acted with deliberate indifference, ignoring the mother’s complaints of harassment that were serious and systematic.

In Nabozny v. Podlesny (1996) , the Court of Appeals ruled that public schools and their officials could be held liable for failing to protect homosexual students from antigay harassment and harm. Since signed into law in 2009, schools must follow the Matthew Shepard Hate Crimes Prevention Act (2009). This law expanded the federal hate crime law, to include crimes motivated by the victim’s actual or perceived gender, sexual orientation, gender identity or disability.

On the basis of sexual orientation and/or gender identity, students receive protection from bullying by other students, teachers, and school staff and cannot be discriminated against in school by being unfairly denied access to facilities, sports teams, or clubs. Both anti-bullying and school nondiscrimination laws support and protect LGBTQ+ students. In addition, sexual harassment guidelines are provided through the Office for Civil Rights at the U.S. Department of Education (2020b). It is the responsibility of a school to take meaningful steps to support and protect all students.

What cases have you heard in the news recently related to legal and ethical issues in schools? Did the decisions align with the ones you read about in this chapter or differ? Why do you think the outcomes were what they were?

During this chapter, you have learned about how ethical and legal issues impact education. A professional Code of Ethics influences a teacher’s practice by outlining standards that ensure that all teachers demonstrate integrity, impartiality, and ethical behavior to assure that students receive a fair and equitable education. Teachers and students do not give up their constitutional rights when entering into public schools in the United States; however, the courts have declared that there is a difference between teacher and student rights outside of a school and those inside the school. Rights and responsibilities must align to state and federal law, as well as the safety of students, and the mission of the public school. Case law has provided guidance for schools on procedures and regulations as well as the roles and responsibilities of teachers and students. The legal cases highlighted in this chapter are significant to the purpose and goals of public schooling throughout the United States. There continue to be challenges over time, especially as society changes and the United States becomes more diverse. A robust legal system is needed to maintain a fair and responsible system of education that supports all students. Understanding ethical and legal issues related to education will help you make informed decisions as an educator in our public school system within the United States.

• https://www.ncsl.org/research/education/education-bill-tracking-database.aspx ↵
• https://www.texastribune.org/2020/08/18/texas-school-dreadlocks-ban/ ↵
• https://responsiblesexedinstitute.org/rsei-blog/iamnotadistraction-how-dress-code-policies-sexualize-young-bodies/ ↵
• https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2017/04/final_nwlc_Gates_GirlsofColor.pdf ↵
• https://www.npr.org/sections/ed/2017/07/17/534448313/when-black-hair-violates-the-dress-code ↵
• https://www.edweek.org/leadership/why-do-schools-hang-on-to-discriminatory-dress-codes/2020/03 ↵
• https://kappanonline.org/pavlakis-roegman-dress-codes-gender-race-discrimination/ ↵
• https://www.military.com/daily-news/2020/02/11/air-force-issues-new-guidelines-beards-turbans-and-hijabs.html ↵

Benchmark used in legal proceedings to determine if decisions were reasonable within the circumstances in which they were made or enacted.

A widely accepted standard of practice that outlines the accountability of its members to those they serve as well as to the profession itself.

Prevents the government from making laws that infringe upon the freedom of religion, speech, press, assembly, or right to petition the government. Adopted in 1791.

Addresses citizenship rights, equal protection, and due process, especially for freed enslaved people. Adopted in 1868.

2015 reauthorization of the Elementary and Secondary Education Act (1965) and No Child Left Behind Act (2002). Shifted accountability provisions to individual states.

Standards-based reform passed in 2001 as a reauthorization of the 1965 Elementary and Secondary Education Act. Increased educational accountability through standardized testing.

A law requiring children to attend school based on specific age ranges.

Earned after meeting state-established requirements (such as courses and testing) in order to become a teacher. Requires periodic renewal.

Agreements among different states to honor teaching licenses earned in other states, sometimes with additional requirements added (like testing).

A written agreement between the school system and the teacher and serves as a legal document identifying the roles and responsibilities for the teaching position.

Protects teachers from arbitrary dismissal by school officials. Derived from the Pendleton Civil Service Act of 1883.

Largest labor union in the U.S., established in 1857 to represent educators.

Second largest labor union for teachers in the U.S., founded in Chicago in 1916.

Idea that educators and scholars should be able to express academic ideas without interference or punishment, usually defended with the First Amendment.

Meaning "in place of parents." Responsibility of educators to make similar judgements as it relates to the safety of children that a parent might make.

An amendment to the Elementary and Secondary Education Act (ESEA) of 1965 that protects the privacy of student educational records.

Stipulation of IDEiA that students with special needs must receive specially designed instruction, including special education and accommodations, that allows them to make meaningful progress toward the curriculum and their individual learning goals. All of these services must be provided at public expense.

Passed in 1973 to prohibit discrimination based on disability. Includes Section 504.

Specific section of the 1973 Rehabilitation Act that forbids organizations (including schools) from excluding or denying services to individuals with disabilities. Individual student accommodations are documented in personalized 504 plans.

1975 legislation that established a foundational set of protections for individuals with disabilities in U.S. public schools, including (a) a free education for all students between the ages of 3 and 18, (b) education in community schools when appropriate, (c) non-discriminatory evaluation to identify educational needs, (d) parent involvement in decision making, and (3) an individualized learning plan.

Pronounced "idea"; 2004 reauthorization of the Education for All Handicapped Children Act (EAHCA) that defines 14 specific disability categories. Also called IDEA.

Part of the Civil Rights Act of 1964 that prohibits employers from discriminating against individuals because of race, color, religion, sex, or national origin.

Part of Civil Rights Act of 1964 that bans bans discrimination based on sex in places such as schools.

1984 legislation requiring federally-funded secondary schools to uphold students’ First Amendment rights to conduct meetings and hold an open forum with equal access to extracurricular student groups or clubs.

2009 legislation that expanded the federal hate crime law to include crimes motivated by the victim’s actual or perceived gender, sexual orientation, gender identity or disability.

Foundations of American Education: A Critical Lens Copyright © by Melissa Wells and Courtney Clayton is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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Landmark US Cases Related to Equality of Opportunity in K-12 Education

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*denotes US Supreme Court Case

School Finance

Serrano v. Priest (CA, 1971)

The 1971 case, also referred to as Serrano I, was the first of three cases called  Serrano v. Priest .  Students of Los Angeles County public schools and their families argued that the California school finance system, which relied heavily on local property tax, disadvantaged the students in districts with lower income. The California Supreme Courtfound the system in violation of the Equal Protection Clause because there was too great a disparity in the funding provided for various districts.

*San Antonio Independent School District v. Rodriguez (TX, 1973)

Parents of students in a Texas school district argued that the school finance system in Texas, which relied on local property tax for funding beyond that provided by the state, disadvantaged the children whose districts were located in poorer areas. Unlike the state court in  Serrano v. Priest , the Supreme Court found that the system did not violate the Equal Protection Clause after determining that the system did not intentionally or substantially discriminate against a class of people.

Robinson v. Cahill (NJ, 1973)

Prior to this case, the New Jersey public school funding system relied heavily on local property tax.  The New Jersey Supreme Court found that this system violated the state constitutional guarantee of access to a “thorough and efficient” public education system.

Levittown v. Nyquist (NY, 1982)

The New York school finance system also relied on local property tax, and several districts with low funding challenged the system.  The New York Court of Appeals recognized inequality in the per-pupil spending between districts but concluded that the disparity was not great enough to jeopardize the constitutional right to education.

Abbott v. Burke (NJ, 1985-2011)

New Jersey’s Education Law Center claimed that New Jersey’s school finance system both disadvantaged students in low-income districts and contributed to significant differences in the adequacy of education offered in poor districts compared to wealthy districts.  The New Jersey Supreme Court found the system unconstitutional and ordered that the state implement a program to ensure that funding in the “Abbott Districts” would be comparable to that of the wealthier districts.

Rose v. Council for Better Education (KY, 1989)

The Kentucky Supreme Court found the state school finance system in violation of the Kentucky constitution, formally recognizing adequate education as a fundamental constitutional right.  The Court ordered the state to adhere to seven specific goals in its education reform. 

DeRolph v. State (OH, 1997)

Ohio’s school finance system, which relied heavily on local property tax and contributed to disparities between wealthier and poorer school districts, was found unconstitutional by the Ohio Supreme Court. The Ohio constitution requires that the state provide a certain level of education.  The court called for decreased reliance on property tax as well as other reforms, but the finance system was found unconstitutional several more times in subsequent cases  DeRolph II  and  DeRolph III .

Campaign for Fiscal Equity v. State of New York (NY, 2001-2006)

The Campaign for Fiscal Equity argued that New York’s school finance system was unconstitutional because it failed to provide adequate funding to public schools, thus denying students access to the constitutionally-guaranteed right to a basic education. The Court of Appeals ordered the state to reform the system to ensure students would have the opportunity to receive an adequate education.

Desegregation

*Brown v. Board of Education (1954)

Prior to this case, the "separate but equal doctrine" allowed public schools to deny admission to students based on race.   The Supreme Court unanimously found that segregation of public schools violated the Equal Protection Clause on the basis that segregation was psychologically harmful to black students. The case outlawed state-sanctioned segregation of public schools.

*Green v. County School Board (1968)

Although  Brown v. Board of Education  made de jure segregation, or segregation by law, illegal in public schools, public school districts were still experiencing de facto segregation.  This case found that "freedom of choice" plans, which allowed students to choose the public school they attended, did not adequately address the issue of integrating public schools. The Court declared that school districts must adopt realistic plans for active integration.

*Swann v. Charlotte-Mecklenburg Board of Education (1970)

Before this case was heard by the Supreme Court, a district court had ordered that busing be used to integrate public schools in the Charlotte-Mecklenburg school district.  The Supreme Court unanimously upheld the district court's decision.

*Keyes v. School District No. 1 (1973)

In one of the first cases involving segregation in the northern United States, Latino and African-American students claimed that their Denver school district was practicing de jure segregation.  The Supreme Court found that the district could not consider a school desegregated simply because it had both Latino and African-American students, as both groups of students were similarly discriminated against.  The Court also ruled that if a significant portion of the school district were shown to be de jure segregated, the rest of the district could be assumed to practice de jure segregation (as opposed to de facto segregation) unless the district were able to prove otherwise.

*Milliken v. Bradley (1974)

This case concerns plans for public school integration across districts.  A district court had ordered a system to integrate a segregated Detroit school district; this system involved busing students into and out of neighboring school districts that were not de jure segregated.  The Supreme Court found that this ruling was unconstitutional and specifically that integration could only be legally enforced in districts that displayed de jure segregation.

*Washington v. Seattle School District No. 1 (1981)

A Washington state initiative prevented districts from enforcing mandatory busing policies.  A school district in Seattle, which relied on such a policy to integrate its schools, challenged the initiative in court.  The Supreme Court found the initiative in violation of the Equal Protection Clause because it clearly targeted integration efforts and primarily disadvantaged minority students.

*Freeman v. Pitts (1992)

A school district in Georgia had been found to be segregated several decades earlier and ordered to desegregate by eliminating segregation in six specific areas.  After four of the areas had been accounted for, the district court supervising the school district ceased to supervise those four areas but continued to oversee the integration of the other two.  The Supreme Court upheld the district court’s decision, ruling that a court did not need to maintain control of a school district’s desegregation efforts in all areas if the district was compliant; it only needed to supervise the areas that had not yet been integrated. 

*Missouri v. Jenkins (1995)

A district court sought to remedy de facto segregation in a Missouri school district.  The court ordered a number of changes, including higher pay for teachers and staff that would be funded through increased taxes.  The Supreme Court found that the plan proposed by the district court was unconstitutional because the segregation was de facto and only affected a single school district.  The plan, which would have affected multiple districts, did not fall within the district court’s scope of power.

*Parents Involved in Community Schools v. Seattle School District (2006)

This case concerned the student placement practices of two school districts.  The districts normally allowed students to choose which school they attended, unless a school was overenrolled. In that case, with the goal of racial balance within schools in mind, the districts looked to race as one of the primary factors in placing the student.  The Supreme Court found this practice unconstitutional.  The districts had either not been segregated or had already achieved integration, and the goal of racial balance was found not to be well-defined enough to justify using students’ as the sole factor in their placement.

Sheff v. O’Neill (2008, Connecticut Supreme Court)

The 2008 settlement of the Sheff v. O’Neill case was one of several settlements following a 1996 hearing.  Students in Hartford, Connecticut argued that the city’s schools were segregated and that minority students were not receiving the same resources as white students. District lines had been drawn such that students in the city were separated from students in the suburbs. The Connecticut Supreme Court found the districting unconstitutional and ordered the state to remedy the segregation. Over the following years, various settlements called for the creation of charter and magnet schools to increase racial diversity in Hartford.

Language Equity

*Lau v. Nichols (1974)

Non-English-speaking Chinese-American students in San Francisco claimed that they were being denied equal protection by the school system’s failure to provide additional English language instruction.  While the Supreme Court ruled in favor of the students, it did so by relying on Section 601 of the 1964 Civil Rights Act rather than the Equal Protection Clause; Section 601 protects against discrimination on the basis of national origin. This case paved the way for future decisions regarding bilingual education.

*Plyler v. Doe (1982)

A Texas law allowed the state to withhold school funds for undocumented children.  The Supreme Court found that this law violated the Fourteenth Amendment rights of these children because it discriminated against them on the basis of a factor beyond their control, and because this discrimination could not be found to serve a large enough state interest.

Gender Equity/Title IX (Focused on K-12 Only)

Force v. Pierce City R-VI School District (1983)

A female middle-school student was unable to try out for her school’s football team, as the tryouts were restricted to boys only.  She claimed that the school’s policy violated her Fourteenth Amendment equal protection rights.  The district court ruled in the student’s favor, finding that the school offered no justifiable reason for preventing girls from trying out.

Sharif by Salahuddin v. New York State Education Department (1989)

The state of New York awards merit scholarships to high-achieving high-school students.  Prior to this case, scholarships were awarded based solely on SAT scores.  There was evidence to show, however, that female students received lower SAT scores than males, and that SAT scores were not adequate predictors of female student performance in college.  When female students challenged the practice in court, a federal court determined that the reliance exclusively on SAT scores discriminated against female students and ordered that the state consider high school grades in conjunction with SAT scores in determining scholarship eligibility.

Pfeiffer v. Marion Center Area School District (1990)

A female high school student was dismissed from her school’s National Honor Society (NHS) chapter upon discovery that she was pregnant.  The NHS faculty council cited the student’s engaging in premarital sex as the reason for her dismissal, claiming that this behavior was inconsistent with the values expected of NHS members. The district court found no violation of Title IX. However, the Court of Appeals found that the district court had ignored testimony that the NHS had not dismissed a male student who had also publically admitted to fathering a child while unmarried and ordered the district court to consider this evidence.

*Franklin v. Gwinnett County Public Schools (1992)

A female high school student had been sexually harassed by a teacher.  Faculty and administration at the school had discouraged the student from pressing charges against the teacher, and the student sought monetary damages.  The Supreme Court ruled that the student could indeed sue for damages under Title IX.

Chipman v. Grant County School District (1998)

Female high school students who were unmarried mothers were denied admission to their school’s National Honor Society (NHS).  The NHS chapter claimed that the denial was based on the girls’ characters.  However, the court ruled that the chapter had violated Title IX by discriminating against pregnant women.

Pennsylvania Association of Retarded Children v. Commonwealth (1971)

Prior to this case, a Pennsylvania law allowed public schools to deny admission to students with cognitive disabilities.  The district court hearing the case found the law unconstitutional and required that the state ensure the right to free education for children with disabilities at an appropriate level for the individual child. 

Mills v. Board of Education of District of Columbia (1972)

Shortly after the  PARC v. Commonwealth  decision, several children challenged the District of Columbia public schools in court for both expelling and refusing admission to disabled students.  The schools argued that they did not have the funding or resources to provide an education to disabled children. The district court found the practice in violation of the Equal Protection Clause and ordered the school board to provide equal access to education for disabled students.

*Board of Education v. Rowley (1982)

A New York public school refused to provide a sign-language interpreter for a deaf student, claiming that her academic performance and progress demonstrated that she did not need one.  The student’s parents argued that the school denied her access to education at a level equal to that of her peers. However, the Supreme Court found that the school was providing the child with a free and appropriate public education (FAPE), guaranteed to children with disabilities under the Education for All Handicapped Children Act (EHA, later revised and now called the Individuals with Disabilities Education Act (IDEA)). The Court determined that the school was not responsible for providing a maximally beneficial education and that FAPE could be achieved even if the instruction provided only some educational benefit.

*Smith v. Robinson (1984)

The parents of a boy with cerebral palsy brought suit against his school district for transferring him to a school with inadequate resources.  Before bringing the case to court, the parents had gone through the administrative process detailed in the Education for All Handicapped Children Act (EHA).  The Supreme Court determined that since the EHA was designed to be comprehensive, disabled students and their families must rely only on the EHA in making such claims against schools.

*Honig v. Doe (1988)

The EHA (now IDEA) contains a “stay-put” clause, which states that, in cases where a school wishes to take disciplinary action against a student with disabilities, the school cannot remove the student from the program set in that student’s Individualized Education Program (IEP) until the new plan has been agreed upon by the parents.  A student with an IEP who had been threatened with expulsion brought suit against his school for violating the stay-put clause.  The Supreme Court confirmed that schools must adhere to the stay-put clause, although they can take other disciplinary actions (e.g. a ten-day suspension) if they suspect a student’s behavior may be dangerous.

*Forest Grove School District v. T.A. (2009)

A student with learning disabilities switched from a public school to a private school after the public school failed to meet his needs as a student (a free and appropriate public education, or FAPE). A hearing officer ordered that the public school district reimburse the student for the private school expenses. However, the student had not been receiving special education at the public school. The Supreme Court ruled that the school could be forced to reimburse the student if FAPE had not been provided, regardless of whether the student had previously received special education.

« Section 4: Lawsuits

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Educational administration and legal issues

Educational administrators must navigate a myriad of legal considerations in their daily decision-making and leadership practices. From ensuring compliance with education laws and regulations to addressing legal risks and liabilities, educational administrators play a critical role in promoting legal compliance, safeguarding students' rights, and maintaining the integrity of educational programs and services.

In this blog, we will explore the legal landscape in education and how it affects educational administration.

The crucial role of educational administrators

Educational administrators do much more than administrative tasks . They shape the direction, effectiveness, and success of educational institutions at all levels, from preschools to universities. Their responsibilities encompass a wide range of managerial, leadership, and administrative functions that are essential for the smooth operation and continuous improvement of educational programs and services.

Charting a course for community and school success

Educational administrators provide leadership and strategic direction for their institutions. They develop and articulate a clear vision that aligns with educational standards and the needs of the community. They handle issues like low budgets, large student-teacher ratios, and student poverty. They provide solutions that will lead to positive change and growth, which include implementing school policies, integrating new curricula, and allocating resources. 1

Cultivating a culture of collaboration and growth that helps support teachers and the community

Educational administrators foster a positive organizational culture and climate that supports teaching, learning, and professional growth. They promote collaboration, communication, and teamwork among faculty, staff, students, and parents, creating a sense of belonging and shared purpose within the educational community. 1

Ensuring legal compliance for student well-being

Educational administrators are responsible for ensuring compliance with legal and regulatory requirements at the local, state, and federal levels while meeting the needs of students and educators. These requirements apply to the school facilities, curricula, instruction, and overall environment. Administrators ensure classrooms are clean and safe for students and teachers. They are responsible for hiring qualified teachers and for making sure students receive an education that follows the appropriate standards. 2

KU Course Connection: ELPS 752: Education Law

The Education Law course surveys the wide variety of legal questions and problems that relate to educational policy and practice. Education law is a complex topic that encompasses law related to school finance, rights of teachers, and implications of these on students. The course prepares school administrators and other educators to perform their duties in accordance with state and federal law and with respect for the legal rights of students, teachers, parents, and patrons. It is also appropriate for law students with an interest in the topic.

Legal foundations of education

The legal foundations of education provide the framework for ensuring that all students have access to quality education and that educational institutions operate within legal boundaries. At the core of these foundations is the constitutional framework for education, which varies from country to country.

Federal level

In the United States, the Constitution does not explicitly mention education. The 10th Amendment reserves powers not delegated to the federal government to the states, including the authority over education. 3

Federal laws still significantly govern education by establishing standards, regulations, and funding mechanisms for educational institutions. In the United States, federal laws provide funding and guidelines for K-12 education. One of these laws is the Individuals with Disabilities Education Act (IDEA), which “makes available a free appropriate public education to eligible children with disabilities throughout the nation and ensures special education and related services to those children.” 4

Court decisions, such as Brown v. Board of Education , have shaped constitutional interpretations related to education, particularly regarding issues of segregation and equal educational opportunities. However, there is no federal right to education. The court decisions and policies that have positively impacted education have led us more to an idea that all children have the right to an equal education regardless of race, income, location, etc., guaranteed by the U.S. Constitution. 3

State level

The regulation of education is largely left up to state and local governments. State laws vary widely but often address issues such as curriculum standards, teacher certification, and school funding. Recently, states have passed various laws regarding cultural and societal issues. These laws have been made to dictate what teachers can say and teach and many of them involve race and gender. 5

Key legal issues in educational administration

Educational administrators face a variety of legal issues that shape their decision-making and management practices within educational institutions. Key legal issues in educational administration include:

• Student rights and discipline: Educational administrators must navigate legal considerations related to student rights, such as freedom of speech, privacy, and due process. They are responsible for implementing disciplinary policies and procedures that adhere to legal standards while ensuring a safe and supportive learning environment for all students 6
• Special education and IDEA compliance: Administrators must ensure compliance with the Individuals with Disabilities Education Act (IDEA) and other laws governing special education services. This includes providing appropriate accommodations, services, and support to students with disabilities, 4 as well as ensuring the development and implementation of Individualized Education Programs (IEPs) in accordance with legal requirements
• Teacher employment and labor laws: Educational administrators must adhere to federal and state labor laws governing teacher employment, including hiring practices, contracts, tenure, and dismissal procedures. They are responsible for ensuring compliance with laws related to wages, working conditions, and employee rights 7
• School finance and funding: Public school districts receive funding from local, state, and federal governments through taxes, grant programs, and other means. Administrators are responsible for equitable distribution of resources, compliance with funding formulas and regulations, and budgetary constraints. They must be transparent in financial management and reporting 8
• Bullying and harassment policies: Administrators are responsible for implementing and enforcing policies and procedures to address bullying, harassment, and discrimination in schools. They must comply with federal and state laws, such as Title IX and state anti-bullying statutes, to ensure a safe and inclusive learning environment for all students 9

Empowering high school students: Advocacy and support

High school students occupy a unique position within the public school system, facing a variety of challenges and opportunities as they pursue their education and prepare for the future. Educational administrators, including school principals and school officials, play a crucial role in ensuring that high school students receive the support and resources they need to thrive academically, socially, and emotionally.

One important aspect of supporting high school students involves understanding and addressing the ethical and legal issues that affect their educational experience. This includes safeguarding student's constitutional rights, promoting academic freedom, and upholding principles of ethical decision-making within the school environment. Educational administrators must navigate complex legal frameworks, such as the Student Succeeds Act and state regulations, to create inclusive and equitable learning environments that foster student achievement and school success.

Furthermore, school districts and educational organizations have a responsibility to advocate for policies and practices that prioritize the needs of high school students. This may involve collaborating with school boards and community stakeholders to address issues such as school safety, bullying prevention, and access to extracurricular activities. By championing the rights and well-being of high school students, educational administrators contribute to the overall success and vitality of the educational system.

Future trends and evolving legal issues

Educational policies significantly influence the practices and operations of schools, shaping various aspects of teaching, learning, and school administration. As education continues to evolve, several future trends and emerging legal issues are expected to shape the landscape of education law.

For instance, in early 2020, the global education landscape experienced a seismic shift due to the onset of the COVID-19 pandemic, leading to the widespread adoption of distance learning as schools grappled with unprecedented challenges.

This rapid integration of technology to facilitate student-teacher connectivity during the crisis merely expedited existing trends in educational technology . Significant investments have been made in recent years, totaling billions of dollars, to modernize classrooms with advanced educational technology.

Curriculum and civil rights

Increasing diversity, equity, and inclusion initiatives in schools may lead to legal debates and disputes over affirmative action policies, transgender rights, religious freedoms, and other civil rights issues. States have always had more power over schools, but it wasn’t until recently we saw mass use of this power. States are enforcing laws regarding banned books, lessons on race and gender, and the rights of certain students.

These laws bring into question violations of civil rights and freedom of speech and how these rights extend to students but not teachers. Moral, societal, and cultural issues have seemed to leak into education and “at least 64 laws have passed in half the country reshaping what students can learn and do at school, restricting what teachers can say about race, American history, and/or constrain lessons on gender identity, sexuality and LGBTQ issues.” 10

Several lawsuits throughout the country have been filed on behalf of teachers, school districts, and parents regarding these new policies in schools. For the most part, states and local governments have the final say in the policies they decide to integrate into their schools, but those policies still need to comply with the U.S. Constitution. How these lawsuits are ruled will be a real testament to the future of education.

Using emerging technology to enhance educational experiences

Another area of growing concern is technology in education . As technology continues to play an increasingly prominent role in education, there is growing concern that these implementations are going too fast, and security and privacy measures are being overlooked. 11 While technology can enhance lessons and be a vital resource in education, educators can face a range of legal issues related to technology integration, data privacy, intellectual property rights, and digital citizenship.

Ensuring compliance with laws such as the Family Educational Rights and Privacy Act (FERPA) and the Children’s Online Privacy Protection Act (COPPA) is essential for protecting students’ personal information and maintaining data security in educational settings. There are some exceptions to FERPA that allow teachers to use technology without parental permission. The technology must have “a legitimate educational interest and limits the resharing of information.” 12 AI tools might not fall under the FERPA exception, and schools need to do extensive research before exposing students to these tools. Even if the school deems a tool is safe to use, they must get parental permission. 12

The role of the National Education Association

The National Education Association (NEA) plays a pivotal role in advocating for the rights and interests of educators across the United States. As the largest professional organization representing educators, the NEA is committed to promoting the welfare of teachers, advancing the quality of education, and advocating for policies that benefit both educators and students.

Through its advocacy efforts, the NEA influences education policy at the national level, working to ensure equitable access to quality education for all students. By supporting ongoing professional learning, advocating for fair and ethical practices, and championing the well-being of educators, the NEA contributes significantly to the improvement of the public school system and the enhancement of student learning outcomes.

Empowering educational administrators through ongoing professional learning and professional development

Ongoing professional learning and development are essential for educational administrators to stay abreast of emerging trends, best practices, and legal requirements in the field of education.

As stewards of the school environment, administrators must continually refine their skills, deepen their knowledge, and engage in ethical decision-making to effectively lead their school districts and foster a supportive school culture. Through participation in educator preparation programs, workshops, seminars, and conferences, administrators can enhance their leadership abilities, improve student outcomes, and create a positive school environment conducive to student success.

In the end, by prioritizing ongoing professional learning and development, educational administrators can help cultivate a culture of excellence, empower school personnel, and ensure that ethical and legal issues are addressed proactively within the school community.

Unlock your full potential in educational leadership

Ready to make a difference in education through a better understanding of the complex world of education and legal issues? Don't wait to apply to the comprehensive online master's program in educational administration at the University of Kansas School of Education and Human Sciences for your opportunity to excel.

KU's program helps those who want to make a difference gain the expertise and skills needed to lead with confidence and address critical issues facing educational administrators today.

Connect with a KU admissions outreach advisor now to explore your options and take the first step toward becoming an educational administration leader.

• Retrieved on April 5, 2024, from linkedin.com/pulse/crucial-role-educational-leadership-shaping-future-dr-kim-moore-cttpe
• Retrieved on April 5, 2024, from indeed.com/career-advice/finding-a-job/what-is-educational-administration
• Retrieved on April 5, 2024, from teachingchannel.com/k12-hub/blog/constitutional-right-education/
• Retrieved on April 5, 2024, from sites.ed.gov/idea/about-idea/
• Retrieved on April 5, 2024, from washingtonpost.com/education/2022/10/18/education-laws-culture-war/
• Retrieved on April 5, 2024, from findlaw.com/education/student-conduct-and-discipline/discipline-and-punishment-constitutional-rights-of-students.html
• Retrieved on April 5, 2024, from findlaw.com/education/teachers-rights/teachers-rights-basics.html
• Retrieved on April 5, 2024, from pgpf.org/budget-basics/how-is-k-12-education-funded
• Retrieved on April 5, 2024, from justice.gov/crt/title-ix
• Retrieved on April 5, 2024, from washingtonpost.com/education/2023/03/17/legal-challenges-gender-critical-race-theory/
• Retrieved on April 5, 2024, from news.bloomberglaw.com/privacy-and-data-security/student-data-guardrails-draw-scrutiny-as-digital-learning-grows
• Retrieved on April 8, 2024, from govtech.com/education/k-12/cite23-ai-tools-raise-new-legal-questions-for-k-12

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11: Ethics and Legal Issues in Education

Learning objectives.

• Identify the importance of ethics and the ethical practices of teachers.
• Recognize the responsibilities of teachers as role models.
• Determine individual values and code of ethics in becoming a teacher.
• Compare the New York State Code of Ethics for Educators with the National Education Association (NEA) Code of Ethics.
• Explain why integrity is an essential disposition for teachers.
• Identify liability of teachers concerning copyright laws, mandated reporting and academic freedom.
• Explain the FERPA law
• Identify landmark legal cases in education and their importance in students’ rights in schools.

What the teacher is, is more important than what he teaches -Karl Meninge

Teachers as Professional Role Models

Teachers are important role models for their students both in and out of the classroom.  Whether teachers are in school or involved in community functions, there are high standards of behavior expected of them. What is meant by the term professionalism?  The term professionalism relates to a certain level of degree, skill or expertise in one’s specialized area. Indeed, teachers must obtain schooling, required clinical experience and certain tests in order to enter the field of teaching. In addition to this level of knowledge, teachers must demonstrate integrity, impartiality and ethical behavior in the classroom and in their conduct with parents and coworkers. Teachers must model strong character traits, such as reliability, honesty, respect, lawfulness, patience, fairness, responsibility and collaboration.

In Loco Parentis translates to “in place of parent”. Historically schools are basically responsible for students while in the hands of teachers. Therefore, teachers have a great deal of responsibility for the welfare of their students.

Foundations of Education Copyright © by SUNY Oneonta is licensed under a Creative Commons Attribution 4.0 International License , except where otherwise noted.

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8 Ethical and Legal Issues in Education

Unlearning Box

A high school English teacher is planning to have his students read The Bluest Eye by Toni Morrison . Set during the Great Depression, the main character searches for her identity and sense of self. In addition, there are themes of race, class, exploitation, and sex. Can the teacher include this book in his reading list for the year even though it was banned by the Parent Teacher Association (PTA)?

Actually, there is no clear answer for this teacher. The National Education Association (NEA) Code of Ethics suggests a standard of reasonableness . When making decisions as a teacher, ethics oftentimes presents a ‘gray area’ and does not always provide a definitive resolution.

In this chapter, we review the roles and responsibilities of teachers in today’s public schools as they relate to ethical and legal issues in education. We explore ethical teaching, along with legal parameters, established through case law and set up in the U.S. Constitution and its amendments. Rights for both teachers and students are examined, and current implications are discussed.

Chapter Outline

Ethics in education, the u.s. constitution and the 1st and 14th amendments, rights of teachers, rights of students, current implications.

When you think of your favorite teacher, it is not often that you consider whether he or she was ethical. Yet professional ethics and dispositions, as well as the legal responsibilities of teachers, are central in defining how students view their favorite teacher. Ethics provides a foundation for what teachers should do in their roles and responsibilities as an educator. It is a framework that a teacher can use to help make decisions about what is right or wrong in a given situation.

​ What is a Code of Ethics?

Most professions have a Code of Ethics that binds its members together through shared values and purpose. This professional Code of Ethics is a widely accepted standard of practice that outlines the accountability of its members to those they serve as well as to the profession itself (Benninga, 2013).

For educators, this shared Code of Ethics is outlined by various educational organizations, as shown in Table 5.1.

Table 8.1:  Varying Codes of Ethics in Educational Organizations

Each of the statements on ethics from these teacher professional organizations complements the others, outlining expected behaviors and dispositions, identifying professional intent, and solidifying commitments that are expected from educators in their roles representing public schools throughout the state and nation.

Let’s see how a Code of Ethics could impact the scenario that opened this chapter. Recall that the high school English teacher wanted to include a controversial book on his reading list for the school year that has been banned from use. He believes this book will provide a rich experience for his students and provide stimulating class discussion and debate around identity and race. In determining whether or not to incorporate the text, the teacher must ask himself if he is truly presenting different points of view. In so doing, the teacher is adhering to the National Education Association (NEA) Code of Ethics, specifically Principle I, Item 2:

Principle I: Commitment to the Student

The educator strives to help each student realize his or her potential as a worthy and effective member of society. The educator therefore works to stimulate the spirit of inquiry, the acquisition of knowledge and understanding, and the thoughtful formulation of worthy goals.

In fulfillment of the obligation to the student, the educator s hall not unreasonably deny the student access to varying points of view (National Education Association, 2019, para. 8).

With this Code of Ethics in mind, this teacher could argue that reading this book stimulates the spirit of inquiry and knowledge acquisition, and not reading the book would unreasonably deny the students access to varying points of view.

Code of Ethics in Action

Ethical decisions take place every day in our classrooms. Oftentimes, you may believe that treating students equally is an ethical approach. But if you go into a classroom, you may notice a teacher calling on a shy student and not calling on another student who usually dominates the discussion. Is this equal? The teacher is clearly treating the two students differently. This is what we refer to in education as good teaching practice. The NEA Code of Ethics guides your teaching behaviors by placing your students central to your practice. Always consider that you must treat all students equitably, not necessarily equally.

A professional Code of Ethics governs a teacher’s relationships, roles, conduct, interactions, and communication with students, as well as families, administrators and the larger community. It provides educators with a way to regulate personal conduct and ethical decision making. It does not tell a teacher why he or she should do something. Having an informed awareness of statutes, laws, and other legal influences will assist you in defining your role as an ethical teacher who is also fair and responsible.

Significant, ground-breaking court cases have influenced the practice of public schools throughout history and many have come from the U.S. Supreme Court. The majority of these cases focus on the First and Fourteenth Amendments.

The First Amendment addresses the freedom of speech, religion, press, and the right to petition the government, and assemble peaceably (U.S. Constitution, First Amendment).

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.

-First Amendment of the U.S. Constitution ratified in 1791

Courts have been called to answer questions about the freedoms outlined in the First Amendment as they relate to teachers and students (American Library Association, 2006). From wearing religious or political symbols to speaking profanity at a school assembly, the consequence of dismissal or suspension has been petitioned to the courts questioning the reasonableness or fairness of the accusation or offense.

For the first time in U.S. history in Bartels v. Iowa (1923) , the Supreme Court affirmed that a teacher has First Amendment rights and provided teachers a degree of protection for in-class curricular speech. In Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico (1982) , the Supreme Court found that the school board could not restrict certain books in the school system’s libraries because school board members disagreed with the content. This was found to be a violation of the First Amendment and our protection with regards to freedom of speech.

These rulings have come into conflict over the years due to school systems also having the right to set the curriculum. This school system precedent was upheld in Krizek v. Board of Education (1989) when a non-tenured English teacher showed an “R”-rated film to high school students and her contract was not renewed. The district court found that the teacher’s First Amendment rights were not violated, rather the school board acted reasonably in determining that the film was inappropriate.

The Fourteenth Amendment of the U.S. Constitution guarantees equal opportunity for due process and equal protection to all who live within the jurisdiction of the United States. This amendment was ratified in 1868 and written specifically to protect the rights of recently freed enslaved people.

Ensuring that this opportunity applies to all persons, it reads:

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.

– Fourteenth Amendment of the U.S. Constitution ratified in 1868, Section 1

The Fourteenth Amendment provides a guarantee that a state cannot take away constitutional rights or privileges as identified in the U.S. Constitution (National Constitution Center, 2020). It has three primary clauses:

• Citizenship Clause, which grants citizenship to those born or naturalized in the United States;
• Due Process Clause, which affirms that states may not deny any person “life liberty, or property, without due process of law”; and
• Equal Protection Clause, which establishes that states may not “deny to any person within its jurisdiction the equal protection of the laws”.

Both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment significantly impact education. The Equal Protection Clause is examined throughout this chapter as it relates to foundational legal cases, racial issues, and LGBTQ+ rights and discrimination. Next, we will consider how the Due Process Clause affects educators and students.

Due Process

For educators and students, due process requires considering whether a constitutional right has been infringed upon, and then affords the accused student, teacher, school district or state the right to a fair and impartial trial. If an individual believes an action is unfair or unjust, the Due Process Clause of the Fourteenth Amendment allows the accused to have an unbiased trial or hearing.

All members of the school community have the right to due process with the purpose of providing a fair trial. The central premise of due process is fairness. A school district can be sued if it is believed that it was unfair or unreasonable. This legal argument can be brought by a teacher, student, parent, or community member. Anyone who believes that they were unfairly or unreasonably impacted by a policy or procedure of the school can bring a legal case against the school.

In the Supreme Court case Hortonville Independent School District No. 1 v. Hortonville Education Association (1976) , the Justices ruled that the school board was able to deliver due process in a reasonable manner when it fired teachers who went on strike after contract negotiations failed. The teachers were asked to return to work but refused. They were then terminated. The teachers argued that their dismissal violated their due process and should be reviewed by an impartial decision maker. The court did not agree, citing instead that the school board was viewed as the impartial decision maker, and they did not need to be independent from the issue.

As a teacher, you have certain protected rights related to your legal employment, membership in unions and other professional organizations, academic freedom, freedom of speech and expression, liability, privacy, and religion. It is important to be aware of the rights you do have, as well as the limits of your legal protection.

Unions and Participation in Professional Organizations

The National Education Association (NEA) and American Federation of Teachers (AFT) are two of the largest teacher labor unions and professional organizations in the United States at present. Both have been in existence for more than 100 years and support teachers, along with other school personnel. As unions, both organizations support their members with collective bargaining, whereby they work alongside teachers as they negotiate with their respective school districts to resolve disputes, as well as to lobby Congress for state and federal legislation that would impact educational related issues, including teacher rights and responsibilities.

You can join either organization, but since not all states recognize unions, the NEA or AFT may not be able to assist you with collective bargaining or school board negotiations, depending on your state of employment. Collective bargaining is illegal in Virginia, North Carolina, South Carolina, Georgia, Alabama, Texas, and Arizona. You may hear this referenced as a “ right to work state ,” which means that employees have a right to work without being forced to join a union. Even so, each professional organization provides support, a rich network of educators, and professional development around issues and opportunities that can be beneficial for your teaching practice.

It is not often that educators are permitted to strike because they are employed by the state and are considered vital to public service. Still, some teachers do strike regardless of state laws that may prevent them from striking, such as we saw in 2018 in West Virginia, Kentucky, and Oklahoma. When teachers go on strike, the impacted school board can obtain a court injunction to order teachers back to the school and teachers can lose pay for each day on strike. In many states, they can also be dismissed from their teaching positions for striking.

Academic Freedom

Many teachers consider academic freedom to be a constitutional freedom outlined by the First Amendment. Because a teacher is a state employee and has signed a legally binding teaching contract, the teacher has a legal obligation to adhere to the rules and regulations identified by the school board and the laws of the state and federal government. A teacher represents the school and cannot do whatever he or she wants in the classroom. Likewise, a teacher does not have complete freedom of speech to say whatever he or say wishes either. All teachers must follow guidelines represented in their teacher contract and the policies and procedures of the school board.

While the legal system has afforded teachers the right to select appropriate class materials, the educational purpose, the age and sophistication of students, and the context and length of time to complete assignments must all be considered. For example, if you wanted to teach the muscular system in human anatomy in your sixth grade science curriculum, but this content is not taught until tenth grade, you would not be able to change the curriculum framework set by the school district per your teaching contract.

If an activity aligns to your curriculum framework and you have followed the guidelines set forth by the school board, you could, for example, have a speaker come into your classroom to talk about an aspect of your curriculum or use an article published in the newspaper. This would not be in breach of your contract. As you prepare for class instruction, consider your assigned curriculum, review school policies, and ask your school principal or other mentor teachers for guidance.

Freedom of Speech and Expression

Freedom of expression for a teacher outside of the classroom has been challenged in the court system if it was felt that the speech or behavior was disruptive to the effectiveness or efficiency of a school. Because a teacher has a professional responsibility to their school, educators must be careful about what they say, both at school and outside of school.

In the Pickering  v. Board of Education (1968) case, the Supreme Court reversed a lower court ruling and found that the teacher’s First Amendment right to free speech had been violated after he was dismissed by the school board for writing and publishing a letter in the local newspaper criticizing the board. The court held that teachers were able to voice concerns, even if those concerns were unfavorable to the school, as long as the regular school operations were not disrupted. In the case, the court’s opinion was that the plaintiff’s First Amendment rights to free speech were not lost because a school district believes the speech is not in its “best interest.” After this ruling, the teacher in this case was reinstated to his position.

This influential case regarding First Amendment rights and freedom of speech for public school teachers established precedent that public employees have the ability to speak out on issues of public concern, even as state or government employees. Even so, the rights of public employees continue to be challenged in the U.S. court system.

In Connick v. Myers (1983) , the Supreme Court again reversed a lower court decision and ruled that speech of public employees is protected only when they speak on matters of public concern. The case results here showed that the rights of public service employees must be balanced between matters of public importance and an employer’s interest to maintain a disruptive free workplace.

Similar to freedom of speech, a teacher’s freedom of expression can also be called into question as it relates to personal presentation and dress. Court cases surrounding dress code requirements established by school boards and imposed on teachers in their local schools have established some legal precedent, but this also continues to be a hotly debated topic. As a public school teacher, can you exercise your own ‘personal liberty’ in how you dress?

Critical Lens: In the News

In the fall of 2020, a teacher at a charter school in Texas says she was fired after wearing a mask with “Black Lives Matter” written on it ( Pygas, 2020 ).  The school told her the mask was a violation of the dress code and asked her to avoid wearing the mask due to the “current political climate.”  When she stated in an email that she would not stop wearing the mask, the school said she had “effectively resigned her position,” since she did not intend to follow the established policy.  Dress codes are one part of the professional behavior you may be expected to follow once you sign a teaching contract, so it is important to know exactly what your dress code policy says and what your rights are.

Liability and Teachers

Now, imagine an elementary school teacher is outside with their students on the playground. Two children ask if they can climb on the climbing wall. The teacher agrees and begins to walk over so they can monitor their play. At that very moment, a child falls off the monkey bars she was playing on and begins to cry. The teacher quickly walks over to the fallen child and notices that she has a cut on her arm. Can this teacher be sued for negligence?

When at school, educators have a responsibility that is referred to by the courts as “ in loco parentis ” or “in place of parents”. This means that while in school it is the responsibility of educators to make similar judgements as it relates to the safety of children that a parent might make. Because an educator is legally responsible for the safety of children under their supervision, a teacher is considered negligent if they fail to protect a child from injury or harm.

Accidents happen, and there are multiple ways that a child could be injured, such as in the playground scenario described above, in the lab of a science classroom, or even running down the hallway. However, if it is determined that negligence did occur, or even if a parent believes that negligence took place, a liability suit can be brought against the teacher or the school. The person who was harmed can bring civil or criminal charges against the student or teacher who threatened harm. In addition, a teacher can be dismissed and lose his or her teaching license as well as be criminally or civilly charged.

Protections exist for teachers that limit liability. These include:

• A reasonable attempt was made to anticipate a dangerous condition;
• Proper precautions were instituted to include establishing rules and procedures to prevent injury;
• Students were warned of possible danger; and
• The teacher provided proper supervision (Legal Information Institute, n.d.).

The Supreme Court of Wyoming held in Fagen v. Summers (1972) that the teacher did everything possible to keep students safe following a playground accident, citing that “a teacher cannot anticipate the varied and unexpected acts which occur daily in and about the school premises.” Schools and/or teachers are generally not held responsible for accidents occurring on school property under these types of circumstances.

Teachers can have a lawsuit brought against them for civil liability or civil statutes if it is believed that:

• a student has been mistreated or abused either verbally, physically, emotionally, or sexually.
• a teacher discriminated against a child due to his or her gender, race, or a special need(s).
• a teacher treated certain children unfairly, such as through grading practices.
• offensive material was assigned by the teacher for homework (Legal Information Institute, n.d.).

Once you begin teaching, your school and state will have specific policies regarding liability protection for teachers.

Critical Lens: Who Gets to Define “Offensive”?

What happens if what some families deem offensive is the lived experience of others? For example, a teacher in Texas was placed on administrative leave when some families complained about posters on the “walls” of her virtual Bitmoji classroom ( Fitzsimons, 2020 ). These virtual “posters” depicted affirmations of LGBTQ+ communities and the Black Lives Matter Movement.  But what about the students who see themselves in these LGBTQ+ and Black Lives Matter posters?  How do we create classroom communities that are inclusive of various cultures and perspectives, while also acknowledging that some groups deem certain cultures and perspectives as “offensive”?

Teacher Privacy

Privacy is considered to be a protection in the U.S. Constitution under the Fourth Amendment as it relates to unreasonable searches and seizures (U.S. Constitution, Fourth Amendment).

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.

-Fourth Amendment of the United States Constitution ratified in 1789, revised 1992

For teachers, the school is considered a public place and therefore there are minimal limitations placed on search and seizure. All places in a school building and on school grounds are considered public space. This means all classrooms, teacher desks, offices, even student lockers are considered a part of the workplace and can be searched, and items seized. Personal belongings are separate from this public workspace. This means your personal effects, such as a phone or bag, do not belong to the workplace and if searched, require a warrant. For your own protection, use care when deciding what to bring into the school.

Religion and Schools

The First Amendment separates religion from the business of the state. Government is prohibited from imposing religious beliefs on any person. Public school serves as a state government service and therefore it must be neutral and not promote religious beliefs on anyone in the school. Religion in schools has been challenged from prayer in schools, to religion in the curriculum, religious clubs and access to public school facilities, to artifacts and clothing.

The Supreme Court has continuously upheld the separation of religion from the school environment (ACLU Legal Bulletin, 2020), as shown in Table 5.4.

Table 5.4:  Supreme Court Cases on Religion in Schools

The courts have upheld that there is a separation between church and state even to the extent of your own personal beliefs. In 1980, a teacher refused to teach a city-designed curriculum that she said violated her own religious beliefs. In the Palmer v. Board of Education of the City of Chicago (1980) decision, the court recognized that a teacher can have personal views that might be different from the curriculum, but upheld that the mandate of the school district to provide an education requires that teachers “cannot be left to teach the way they please.”

Students share many of the same constitutional rights to ensure protection as adults. Several sections outlined below follow those shown above under Teacher Rights, but with additional emphasis on the students themselves.

Courts have mandated that for a school to operate safely it needs to have broad authority to establish rules and regulations as it relates to student conduct within the school. This means that parents agree to give some level of control to schools when they enroll their child in the public school system. The courts have also insisted that students do not lose all of their constitutional rights and a school’s influence is not absolute. Within the U.S. legal and educational systems, control is defined as a standard of reasonableness which was similarly stated in multiple examples above.

Schools have an obligation to provide a safe and orderly learning environment. Reasonable limits are put in place regarding language, such as banning offensive language, to assure appropriateness and respect. Forms of expression that are protected in schools include:

• the right to wear religious clothing and talk about religion,
• to be free from bullying and harassment, and
• to be free from racial or national origin discrimination (United States Courts, n.d.).

Protecting students’ rights to political speech was explored in Tinker v. Des Moines Independent School District (1969) . It served as a landmark Supreme Court case and the decision upheld that free speech was permitted in schools.

This ruling was later challenged in 1986 when a student used what was considered ‘vulgar’ language by the school in a speech at an assembly. The student was reprimanded by the school and the student sued the school claiming that his constitutional right to freedom of speech had been violated. The case went to the U.S. Supreme Court where the court decided in Bethel School District No. 403 v. Fraser (1986) that a school is not required to permit offensive or disruptive speech on school grounds at a school sanctioned event because offensive speech or language disrupts the educational mission of the school and is inappropriate for a school setting.

In the present day, free speech as it relates to the Internet is the same for teachers as it is for students. If it is found that the speech posted online ‘substantially disrupts’ the functioning and purpose of a school, disciplinary actions can be taken against either cohort.

In Doninger v. Niehoff (2008) , a student’s derogatory comments posted online were found to make a substantial disruption to the school. A blog post contained language that would be prohibited within the school and was disruptive to the work and discipline of the school. A Court of Appeals held that even though the online comments were made off campus, the speech could be restricted to promote school related goals on campus. This case relates to disruptive speech and cyberbullying. It underscores school responsibility in maintaining a safe environment for students.

The speech of students and teachers is constitutionally protected, but the extent of the speech, as it relates to the mission and goals of a school, must always have a legitimate pedagogical focus and direction. This holds true whether it is in print in a school newspaper, in the local newspaper, or in electronic format. It is true if it is part of the curriculum or in a theater production on school grounds. Speech is influenced both on and off campus and can come under the school’s authority both in-person and online.

Dress codes have been challenged by students and teachers alike as a form of freedom of speech and expression. Courts have upheld that school boards can impose student dress codes to include symbols, clothing, and jewelry if it is believed to have the potential to disrupt a school’s functioning.

In addition to supporting free speech as discussed above, the Tinker v. Des Moines (1969) case also weighed in regarding dress code. During the Vietnam War, students planned to wear armbands to protest the War. The principal tried to limit these protests by banning armbands. The court ruled against the school, holding that there was no evidence that students wearing armbands would disrupt school functioning.

In 2006, a student wore a shirt to school that other students found offensive and which depicted a particular political viewpoint. He was asked to cover the shirt based on the off-putting image and speech. He refused and was given a disciplinary referral. In Guiles v. Marineau (2006) , the student then sued the school administrators to have the disciplinary referral expunged from his record and to disallow the school from enforcing the dress code policy against him. The District court held that the school was entitled to enforce its dress code policy, but upon appeal, the U.S. Court of Appeals ruled that the shirt was protected speech under the First and Fourteenth Amendments.

In another case, B.H. and K.M. v. Easton Area School District (2013) , students were suspended for wearing bracelets that showed support for breast cancer awareness. In this case, the judge ruled in favor of the students. The school district then elevated the case to the Supreme Court, but the court refused to hear the case, stating that the message on the bracelet did not use lewd language and was not disruptive to the purpose of education. The First Amendment requires schools to see all student views equally, as long as they are not obscene or disruptive, irrespective of the message expressed (Sherwin, 2017).

The purpose of a dress code is to provide an optimal learning environment. The American Civil Liberties Union provides guidance on student rights as they relate to school dress codes, gender, and self-expression:

• Views are protected by the First Amendment and therefore schools cannot ban symbols or slogans or messages that they disagree with on student shirts, buttons, wristbands, or other garments or accessories.
• While public schools can establish dress codes, they cannot treat boys and girls differently, censor viewpoints, or force students to conform to gender stereotypes under federal law.
• Students are allowed to wear clothing that aligns with their gender identity and expression (ACLU Fact Sheet, 2016).

Pay attention to the news–you are likely to hear many examples of dress code violations that systematically oppress certain groups. For example, a school in Houston made the news in early 2020 [1] for their dress code policy that required male students to keep their hair “ear-length or shorter,” thus banning dreadlocks. One male student, De’Andre Arnold was told he would have to cut his dreadlocks in order to walk at graduation. Despite complaints, the school district stood by its policy. In August, a federal court ruled this policy was discriminatory.

Search and Seizure

Imagine that a teacher suspects a student has illegal drugs in her backpack. They noticed the student at her locker placing a small bag in the front pocket. The teacher immediately reports their suspicions to the principal. What should be the next step? The school administrator must have a “reasonable suspicion” based on facts specific to the student or the situation. A “hunch” is not sufficient. Rather, the principal must believe that searching the student will turn up evidence of violating a school rule or law. “Reasonable” is based on what is being searched for and the age of the student.

The Fourth Amendment of the Constitution protects U.S. citizens from unlawful search and seizure of possessions. If there is probable cause for a search, a warrant is required from the court system before a person can be searched. Because of the nature and purpose of school, courts have allowed schools to both search and seize possessions if there is probable cause.

In New Jersey v. T.L.O. (1985) , the Supreme Court established a standard of reasonableness for student searches conducted at school and by public school personnel. While the Fourth Amendment of disallowing unreasonable search and seizure still applies, if school administrators have a reasonable suspicion that a student has either broken the law or violated a school rule, the search is justified. In this case, the student was found smoking in the bathroom, a violation of school rules, and taken to the principal’s office where her purse was searched based on a reasonable assumption that the student had cigarettes in her purse.

Random drug tests have historically been permissible for both teachers and students. In the Supreme Court case Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002) , the court held that athletes can be randomly tested for drugs to protect the safety of the school and to ensure a drug free school. The safety and knowledge of the drug free school outweighed the privacy rights of students who were voluntarily participating in the sporting events. The Court concluded that while the students participating in extracurricular activities have limited Fourth Amendment rights, within the school setting there is a lesser expectation of privacy, and the students’ rights must be balanced against the school’s interest in keeping illegal drug use to a minimum (Staros & Williams, 2007).

In 2005, a 13-year old special education student was called out of class and questioned by police officers with school officials present regarding neighborhood burglaries. His parents were not contacted, nor was he read his Miranda rights, such as the right to remain silent, leave the room, or have access to a lawyer. The child confessed to the crime but later sought to suppress his confession based on not receiving any indications of his rights while he was in police custody in the school conference room. This case, J.D.B. v. North Carolina (2011) , was later heard by the Supreme Court where they ruled that age should have been considered in deciding whether the student was in police custody within the school grounds. The Justices went on to state that there are psychological differences between an adult and a child, and when police are involved in questioning students, they must use “common sense” due to the developmental differences of children. The Miranda warnings should have been applied in this case in a manner appropriate for the student prior to his questioning.

Search has also been controversial with the use of video surveillance and metal detectors in schools. Currently, courts have held that if school safety has been threatened, means of surveillance can be introduced into the school, but that extensive surveillance using video or metal detectors can hinder reasonableness of the surveillances and violate Fourth Amendment protections. The intent of school policies and procedures are consistently to provide and maintain “a safe, secure, healthy, and disruption-free learning environment” that is conducive and supportive to teaching and learning (Vacca, 2014, p. 5).

Classroom discipline has been presented in the courts to assist in decisions regarding the reasonableness of discipline procedures from both teachers and schools. While the U.S. court system upholds that a school has the authority to enforce standards, it also recognizes that this authority is not without restrictions. For example, suspensions and time outs cannot limit students and their right to a public education.

The purpose of discipline is to modify the behavior of a student who is disrupting learning and the functioning of the school. The school has the right to preserve the rights of other students by enforcing disciplinary actions if it is determined that the enforcement is fair and reasonable and supports the education process.

Students who have disciplinary actions brought against them have the right to procedural due process. This was upheld in Goss v. Lopez (1975) . The Supreme Court ruled that any suspension of a student requires procedural due process that provides the student both oral and written notice, as well as an explanation and evidence of the charges. The student then has the right to explain their side of the argument and provide evidence. It is important that all students be afforded due process. The student and parent or guardian must be provided all of the evidence that makes the school’s case and have an opportunity to speak in their defense.

Throughout the history of schools in the United States, ethics and the function of laws have evolved as society has changed. To date, current issues continue to be addressed in our nation’s public schools and within our court systems. While others exist as well, below are three current issues within education and society as a whole.

Racial Issues

Today, racial concerns remain a key issue for schools and society at large. In T.B. et al. v. Independent School District 112 (2019) , African American students filed a complaint against white students in Minnesota. They claimed they had been harassed and the school did not intervene to remove racism, harassment, and discrimination nor did it protect their rights to safe and equal access to education within the school environment. This is required as part of the Equal Protection Clause under the Fourteenth Amendment of the U.S. Constitution and Title VI of the Civil Rights Act of 1964. As of this writing, the case remains open in the court of appeals.

Title VI of the Civil Rights Act of 1964 states, “ No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (Civil Rights Act, 1964).

Racial harassment continues to occur in schools to the present day. As a teacher, you are responsible for enforcing policies and procedures that are appropriate within the classroom to maintain a safe environment for all students. Immediate action is required to respond to bullying and intimidation, such as speaking up and talking with the offending students and reporting the action to your principal when you hear or see questionable behavior or actions within your school. Regular professional development and training can additionally help inform and support teachers. A culture of inclusion and acceptance is required by school leadership that permeates throughout the school and community.

Freedom of Speech

Freedom of speech continues to be challenged in our schools. In B.L. v. Mahanoy Area School District (2019) , a court of appeals in Pennsylvania held that a school district violated a student’s First Amendment rights when they removed her from a school event for a Snapchat message. The message was sent by the student on a weekend and away from the school. The case made it to the U.S. Supreme Court, and the final ruling on Mahanoy Area School District v. B.L. (2021) found that the student had First Amendment rights to free speech and that the school’s decision to suspend her was wrong. The court used the ruling of Tinker v. Des Moines Independent Community School District (1969) in its opinion stating that the student’s message was posted off campus and was not controlled by the school. Therefore, the First Amendment protected the student when she engaged in off-campus speech similar to a community citizen.

In another case, Ali v. Woodbridge Township School District (2020) , a high school history teacher in New Jersey was terminated in 2016 from his teaching position for altering curriculum and teaching what the school believed were “conspiracy theories.” The teacher appealed to the courts, stating that his dismissal was discriminatory, and he was wrongfully terminated on the basis of his race, ethnicity, and religion. The case was resolved in 2020 after the court of appeals upheld the lower court’s decision in favor of the school and the teacher’s dismissal, stating that the teacher does not have the right to decide what is taught in the classroom; rather, that is the public school’s responsibility.

LGBTQ+ Rights and Discrimination

Discrimination based on sexual orientation and gender identity are important issues in today’s schools. For LGBTQ+ teachers, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of race, color, religion, sex, or national origin (Civil Rights Act, 1964). For students, Title IX under the Office of Civil Rights of the U.S. Department of Education bans sex discrimination in schools and reads “ No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient to which this subpart applies” (U.S. Department of Education, 2015) .

Students or teachers who believe they have been discriminated against can bring litigation under the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause in Section 1 of the Fourteenth Amendment states:

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 (U.S. Constitution, Fourteenth Amendment) .

In addition, in 1984 Congress passed the Equal Access Act requiring federally-funded secondary schools to uphold students’ First Amendment rights to conduct meetings and hold an open forum with equal access to extracurricular student groups or clubs (Equal Access Act, 1984).

In Davis v. Monroe County Board of Education (1999) , the mother sued the school system on behalf of her fifth-grade daughter for failing to prevent sexual harassment by another student. The Supreme Court upheld that there is an implied right to education under Title IX and found that the school board acted with deliberate indifference, ignoring the mother’s complaints of harassment that were serious and systematic.

In Nabozny v. Podlesny (1996) , the Court of Appeals ruled that public schools and their officials could be held liable for failing to protect homosexual students from antigay harassment and harm. Since signed into law in 2009, schools must follow the Matthew Shepard Hate Crimes Prevention Act (2009). This law expanded the federal hate crime law, to include crimes motivated by the victim’s actual or perceived gender, sexual orientation, gender identity or disability.

On the basis of sexual orientation and/or gender identity, students receive protection from bullying by other students, teachers, and school staff and cannot be discriminated against in school by being unfairly denied access to facilities, sports teams, or clubs. Both anti-bullying and school nondiscrimination laws support and protect LGBTQ+ students. In addition, sexual harassment guidelines are provided through the Office for Civil Rights at the U.S. Department of Education (2020b). It is the responsibility of a school to take meaningful steps to support and protect all students.

During this chapter, you have learned about how ethical and legal issues impact education. A professional Code of Ethics influences a teacher’s practice by outlining standards that ensure that all teachers demonstrate integrity, impartiality, and ethical behavior to assure that students receive a fair and equitable education. Teachers and students do not give up their constitutional rights when entering into public schools in the United States; however, the courts have declared that there is a difference between teacher and student rights outside of a school and those inside the school. Rights and responsibilities must align to state and federal law, as well as the safety of students, and the mission of the public school. Case law has provided guidance for schools on procedures and regulations as well as the roles and responsibilities of teachers and students. The legal cases highlighted in this chapter are significant to the purpose and goals of public schooling throughout the United States. There continue to be challenges over time, especially as society changes and the United States becomes more diverse. A robust legal system is needed to maintain a fair and responsible system of education that supports all students. Understanding ethical and legal issues related to education will help you make informed decisions as an educator in our public school system within the United States.

• https://www.texastribune.org/2020/08/18/texas-school-dreadlocks-ban/ ↵

Benchmark used in legal proceedings to determine if decisions were reasonable within the circumstances in which they were made or enacted.

A widely accepted standard of practice that outlines the accountability of its members to those they serve as well as to the profession itself.

Prevents the government from making laws that infringe upon the freedom of religion, speech, press, assembly, or right to petition the government. Adopted in 1791.

Addresses citizenship rights, equal protection, and due process, especially for freed enslaved people. Adopted in 1868.

Largest labor union in the U.S., established in 1857 to represent educators.

Second largest labor union for teachers in the U.S., founded in Chicago in 1916.

Idea that educators and scholars should be able to express academic ideas without interference or punishment, usually defended with the First Amendment.

Meaning "in place of parents." Responsibility of educators to make similar judgements as it relates to the safety of children that a parent might make.

Part of the Civil Rights Act of 1964 that prohibits employers from discriminating against individuals because of race, color, religion, sex, or national origin.

Part of Civil Rights Act of 1964 that bans bans discrimination based on sex in places such as schools.

1984 legislation requiring federally-funded secondary schools to uphold students’ First Amendment rights to conduct meetings and hold an open forum with equal access to extracurricular student groups or clubs.

2009 legislation that expanded the federal hate crime law to include crimes motivated by the victim’s actual or perceived gender, sexual orientation, gender identity or disability.

EESE 2010 Introduction to Education Copyright © 2022 by Angela Hooser and Janna McClain is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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What Are Some Legal Issues In Education?

Nabeel ahmad.

• August 27, 2020

If you have a question or concern about special education law, school administration, federal standards, or the overall rights of a student, please feel free to read this article over and over again that will further help you understand what are some legal issues in education.

Table of Contents

Legal issues in education 2020

Legal issues in public schools rely on security, safety and protection of students. Schools have a legitimate commitment to give all students a safe and quiet learning experience. Yet, some of the times things get confused when they need to offset students’ privileges with this commitment.

Bullying, one of the current issues in education. Is a conduct proposed to threaten or hurt another student. This conduct can be verbal or physical, and incorporates (however isn’t restricted to):

• Offering hostile comments about an individual’s sex, sexual orientation, identity, or religion.
• Spreading explicit pictures or bits of gossip about somebody.
• Wearing dresses or different things intended to threaten (like group hues).
• Physical acts like punching or stumbling somebody.

Bullying that happens online is called cyberbullying. Cyberbullying typically occurs outside of school, yet a few court decisions recommend schools reserve the option to rebuff it at times.

Numerous states have hostile to tormenting laws that expect schools to pay attention to bullying. On the off chance that a school overlooks the issue, they might be abusing those laws. Contingent upon the circumstance, they may likewise be violating government laws, similar to approach insurance laws and additionally Title IX of the Education Amendments of 1972.

Your initial step shall ensure that the school admits your child is being bullied. On the off chance that it doesn’t stop, an education lawyer can assist you with understanding your lawful choices.

Bullying is one of the top ten legal issues in education.

Facilities for students with disabilities

The federal Individuals with Disabilities in Education Improvement Act (IDEIA) necessitates that schools make an Individualized Education Program (IEP) for every student with a disability. It should cover how to address the student’s issues in a least prohibitive way that could be available.

Any disability that can influence learning is commonly covered, including:

• Attention Deficit Disorder (ADD)
• Severely and Profoundly Mentally Retarded (SPMR)
• Bi-polar disorder

These students are likewise covered under Section 504 of the Rehabilitation Act. Area 504 additionally covers numerous students with medical problems like asthma, diabetes, or seizures. Schools may need to make reasonable accommodations to permit these students to do things like take prescriptions or have an associate in class.

Injuries in school

The idea of “premises liability,” where the proprietor of a property is answerable for guarding the property for guests, likewise applies to schools. This is one of the top ten legal issues in education.

Mishaps can and do occur—even in safe schools. Be that as it may, if a student gets injured on the grounds that the school was careless, guardians can record a case against the school or school area.

Guardians can likewise consider schools liable for not making appropriate moves if a child is being bullied or turns out to be sick and injured.

Freedom of speech and religion

The US Supreme Court decided in 1969 that students don’t leave their entitlement to free speech at the school entryway. Yet, that doesn’t mean they have boundless rights to state anything they desire.

Schools can restrict students’ entitlement to state or wear things that could be problematic, including:

• T-shirts promoting drug use
• Speech that crosses the line into bullying
• Sexually explicit speech

Generally, they can’t restrict students’ very own demeanor of their religion. Additionally, if the school permits student interest clubs like chess or environmental clubs, it should likewise permit others it may not concur with, similar to religious or LGBTQ clubs.

Code of conduct

Most schools have composed sets of accepted rules and control strategies sketching out workforce and students’ privileges and duties, alongside punishments for defying the norms. Rules can run from a clothing regulation to what students can bring to class.

By and large, these principles likewise apply at off-grounds school-related occasions.

Yet, students likewise reserve an option to protection. Educators can’t self-assertively look through a student’s very own things searching for restricted things. They should have motivation to accept the student has one of these things.

Students likewise reserve the privilege to appeal a punishment, particularly on the off chance that it incorporates suspension or expulsion. .

Problems in schools and solutions

Managing a high school and bringing together departments and campuses to achieve the mission is always a big challenge for school management.

Changing schools’ frameworks with high innovation and technological instruments to help the academic and management processes will make it simple to accomplish their objectives.

To prevail in regular errands of schools, there is a developing interest to modernize public educational institutes with cloud, portable and advanced technology to improve operational effectiveness and deal with the foundation viably

Here are some ordinarily watched school management issues, and how technology can be utilized to do things right:

10 most common  problems with school system

• Paper-based processes
• Online Registration
• Admission & Enrollment
• Course Management
• Teacher Evaluation
• Communication & Collaboration
• Classroom Management Strategy
• Student Monitoring
• Revenue Management
• Forecasting the academic achievement

1. Paper-based processes

Educational foundations are troubled by lumbering desk work and manual processes and they think that it’s hard to keep up records on attendance, fees, admissions, transport, etc., and track the information they need. Utilizing School Management System, robotize academic processes to spare time and diminish staff remaining burden.

If problems like this go unsorted, they can give a whole new level to the top ten legal issues in education.

2. Online Registration

Students no longer need to stand for hours in the line to pay fees. Rearrange enrollment and charge assortments with online structures, with the capacity to send programmed notices, cautions and updates through email, SMS alarms and message pop-ups from cell phones.

3. Admission and Enrollment

Schools and universities are discovering hard to accomplish admission and enrollment targets. Adjusting individuals, processes and innovation with basic and easy to understand cloud-based training programs will assist establishments with overseeing data from inquiry and application to admission and enrollment.

4. Course Management

Structuring a course educational program that can adjust to the changing needs of the organization is pivotal. With a Course Management System foundations can achieve a ton with restricted assets. Make and track course-work, tasks, and test papers in a favorable study hall condition to help the objective of graduating students.

5. Teacher Evaluation

Following the advancement of instructors and assessing the viability of educators’ work is huge. Teacher assessment framework improves correspondence and coordinated effort among evaluators and instructors. Student’s input will gauge educator’s exhibition in the homeroom and the mechanized assessment measure improves student learning aptitudes, accomplishment and achievement.

6. Communication and Collaboration

There is clearly no stage to provide consistent communication between students, directors, staff and teachers. Additionally, expanding student discipline occurrences occur because of a huge communication gap among students and instructors. Web and versatile based training for the management framework improves communication through moment notices and alarms by means of email, SMS and push messages to keep the constituents educated at each progression of the excursion to assemble relationships and improve student retention.

7. Classroom Management Strategy

Schools are thinking that it’s hard to deal with late students, and settle indiscipline and conduct issues. Improve classroom condition with discipline following and discipline the board framework to effortlessly deal with late students and clueless non attendances.

8. Student Monitoring

Educators are battling to screen student’s exercises including participation, leave, discipline, tasks, and so forth. School executives are inadequate in result-based observing apparatuses to follow student progress. Mechanize and smooth out student participation and absenteeism utilizing student data framework which conveys constant announcements of student exercises to help adapting needs.

9. Revenue Management

It is hard for organizations to adapt to their funds and track their charge assortments and commitments. Consistently interface and draw in with students, guardians and graduated class to fortify relationships and drive more prominent success.

10. Forecasting the academic achievement

Foundations can’t oversee data and there are unlimited deferrals in taking choices dependent on complete examination. Dashboard reports and canny examination are valuable markers for teachers to analyze participation, tasks, grades, and so forth and anticipate student results. Utilizing information examination will assist foundations with recognizing underperforming students in risk and send assets to improve accomplishment and achievement.

This further clarifies what are some legal issues in education.

Nabeel Ahmad is the founder and editor-in-chief of Legal Inquirer. Apart from Legal Inquirer, he is a serial entrepreneur, and has founded multiple successful companies in different industries.

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4 Legal Issues in Higher Education

Industry Advice Education

For professionals in higher education, learning how to anticipate, recognize, and minimize legal risks and threats is a crucial skill.

“The vast majority of people don’t need to know everything about every law,” says Joseph McNabb , a professor within Northeastern University’s Graduate School of Education . “But you need a baseline understanding of how certain laws impact higher education in order to help you make better decisions.”

Institutions of higher education operate in a complex legal environment that includes laws related to financial aid, admissions, licensure, and privacy. Failure to adhere to these laws can result in costly lawsuits, negative attention, and loss of federal resources.

“At Northeastern, our goal is to prepare student affairs professionals, advisors, deans of students, and other higher ed professionals to recognize these legal issues and deal with them in an informed way,” McNabb says.

The most common legal issues that higher education professionals encounter include ones pertaining to discrimination, accessibility, free speech. Read on to learn how four of these laws are applicable to colleges and universities.

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Common Legal Issues in Higher Education

Title IX of the Education Amendments of 1972 protects people from discrimination based on sex in education programs or activities that receive federal financial assistance. According to the U.S. Department of Education (ED), these agencies include approximately 7,000 postsecondary institutions.

Some key areas in which higher education institutions have Title IX obligations include:

• Recruitment, admissions, and counseling
• Financial assistance
• Sex-based harassment
• Treatment of pregnant and parenting students
• Single-sex education

For example, a higher education institution may be in violation of Title IX if it offers an athletic team for one sex without an alternative option for the other. Other violations might include preventing a pregnant student from participating in classes or extracurricular activities; failing to follow rules and procedures for reporting and enforcing policies on sexual assault; and failing to protect students who face negative consequences, increased harassment, or disciplinary measures because they filed a Title IX complaint or lawsuit.

Real-World Example In 2012, a college student, identified as John Doe, attended a student newspaper event on a cruise ship. While the student crossed a crowded dance floor, another student was sexually assaulted, turned around, saw him, and assumed it was his fault. Doe was arrested, and college officials found him responsible before the criminal investigation concluded. Video of the night ultimately showed that Doe was not at fault, and the case was dismissed. Last year, a jury found that Doe was denied a fair process, which was in violation of Title IX, and he was awarded more than $100,000 in damages.

Americans with Disabilities Act (ADA)

Under Title II and Title III of the Americans with Disabilities Act , both public and private colleges and universities must make their programs accessible to students with disabilities. This includes accommodations for extracurricular activities, as well as any in-class requirements.

To meet this requirement, higher education institutions must provide disabled students with:

• Fair access to buildings, including residential facilities
• Aids and services necessary for effective communication, such as sign language interpreters or Braille formats
• Modified policies, practices, and procedures, such as testing accommodations and access to school facilities for service animals

Violations of the ADA might include being asked to disclose whether you have a disability, being denied admission based on your answer to that question, or being excluded from a particular class, program, or activity based on your disability.

Real-World Example In 2015, advocates for the deaf filed a federal lawsuit against a renowned Ivy League university, saying that the institution failed to provide closed captioning in their online lectures, courses, podcasts, and other educational materials. Last year, the university reached a settlement, agreeing to pay attorney’s fees totaling more than $1.5 million and take steps to improve the accessibility of content posted to its official website and associated media platforms.

First Amendment

The First Amendment to the U.S. Constitution explains that “Congress shall make no law […] abridging the freedom of speech.” In higher education, the First Amendment restricts the right for public colleges or universities to regulate expression.

The right to free speech is most often called into question in times where an institution might try to manage speech that is offensive, McNabb says. According to the Freedom Forum Institute , other issues with free speech in a higher education environment may also stem from:

• Outspoken faculty
• Visiting speakers who express controversial views
• The use of student fees to support LGBTQ organizations
• Reporting or editorializing in a student-run newspaper
• Artistic expression.

Higher education institutions must balance the requirements of free speech with issues of civility and respect.

Real-World Example In a lawsuit filed in January , a university was accused of violating the freedom of speech of a group of its students when it shut down a peaceful gun rights demonstration on campus. Students dressed in orange jumpsuits posed as criminals while holding signs that mockingly supported “gun-free zones.” While the students were protesting in a common outdoor area on campus, a university office ordered them to stop, which infringed upon their right to free speech.

Affirmative Action

Affirmative action refers to a set of policies that support members of disadvantaged groups that have previously suffered discrimination, including minorities and women. In higher education, affirmative action has been heavily debated in admissions. Some colleges and universities have adopted policies that seek to increase the recruitment of racial minorities. In 2003, affirmative action as a practice was upheld by the Supreme Court, while the use of racial quotas for college admissions was ruled unconstitutional.

Real-World Example Last year, in a case that drew widespread scrutiny, a federal judge rejected claims that an Ivy League-institution had intentionally discriminated against Asian-American applicants. An advocacy group argued that the university had violated federal civil rights laws by holding Asian-Americans—who, as a group, have been found to earn better test scores and grades than other races—to a higher standard. The institution in question was accused of downgrading applications from Asian-Americans based on a subjective rating system that was vulnerable to stereotyping.

Real-world scenarios like the one above are incorporated into courses like McNabb’s within Northeastern’s Doctor of Education program . “These are the sorts of things we talk about in class,” he says, adding that one of his students attended the proceedings for this exact case at the federal court. “She was able to see it in real life and discuss the applicability of it with us.”

For professionals seeking a career in higher education, the topic of legal issues is just one of the many subjects that the Doctor of Education program explores.

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Education, Ethics, and the Law: Examining the Legal Consequences of Unethical Judgment

• First Online: 01 July 2018

Cite this chapter

• Patrick M. Jenlink 4 &
• Karen Embry Jenlink 4  

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The authors examine the relationship between ethics, law, and policy with the intent of distinguishing between as well as denoting the intersection of ethics, law, and policy as situated in education. Distinguishing between legal and professional ethics, the nature of legal ethics as practiced in adherence to the law and professional ethics as presented in adherence to professional and/or institutional codes of ethics specific to educational cultures is examined. Ethical awareness and sensitivity as related to ethical behavior is examined in contrast to ethical deceit and ethical self-interest. Ethical misconduct is examined, focusing on ethical drift, ethical missteps, conflict of interest, partisanship, and psychological basis for unethical behavior. Exemplars of ethical misconduct are presented and the legal consequences of unethical behavior in education are discussed.

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Infusing Ethics and Ethical Decision Making into the Curriculum

Learning, Teaching, and Social Justice: Eleanor Duckworth’s Perspective

Epistemology, Ethics, and Moral Education: A Methodological Justification for a Moral Curriculum Based on Jewish Social Values

As contributing authors to an edited work that reflects a cross-national or diverse global perspective on education and the law, we are sensitive that the discussion set forth in this chapter on education, ethics, and law and the legal consequences of unethical behavior will be viewed differently by educational and legal professionals as well as political/policy professionals from nation states in other regions of the world, and equally sensitive to the different perspectives that define the legal consequences of unethical behavior in educational institution/settings in those nation states. With this in mind, the positions on ethics and legal consequences of unethical behavior that we discuss are based on a belief that other countries or national states, in similar fashion to the United States, have educational institutions and court systems as well as political/policy frameworks that function in cultural contexts. In terms of the legal system in other nation states, it is Recognise that whereas the United States has a judicial branch of its government, other national states have a comparable legal system pursuant to the constitutions and workings of those nation states. That said, we believe the points presented in our discussion have merit for educational, legal, and political/policy professionals in the U.S. and other nation states.

For further discussion of behavioural ethics see Ariely ( 2012 ), Bazerman and Tenbrunsel ( 2011 ), De Cremer ( 2009 ), Green ( 2013 ), Gino ( 2013 ), Heffernan ( 2011 ), Johnson ( 2014 ).

The following is provided to further explain the types of law (see Dzienkowski 2016 ):

Statutory law, e.g., the United States Congress and state laws enacted by legislatures, affect educators. Examples include statutes governing educators’ obligation to report suspected abuse and neglect of children; requirements for educators to address needs of special needs students; federal requirements for researchers to submit applications to Institutional Review Boards (IRB) for review of research including human subjects.

Case law is typically considered in adjudicating cases in the courtroom. For example, a judge may need to interpret the meaning or application of existing law, resolve conflicts between laws, or fill gaps in existing laws. Such rulings by the court become legal precedent or case law.

Regulatory law in education speaks to regulations promulgated by federal and state government agencies . As example such under the United States system of law, federal and state agencies have the authority to establish enforceable regulations. Public agencies must follow strict procedures when they create regulations (e.g., providing public notice and opportunity for public comment about drafts of regulations).

Constitutional law, e.g., the U.S. Constitution and state constitutions, include numerous provisions that pertain to social work practice. Examples concern citizens’ right to privacy and protections against improper search and seizure (which are important in residential treatment programs) and protections against cruel and unusual punishment (which are important in juvenile and adult correctional facilities).

Executive orders are the responsibility of chief executives in federal, state, and local governments (e.g., a president, governor, mayor, or county executive) may issue orders that resemble regulations. This authority is usually based in federal and state statute .

Malfeasance as used in this context of education is the commission of an act that is illegal or wrongful and intentional. Improper and/or illegal acts by a public official in an educational setting such as a school or university are determined as an act of malfeasance when the act violates public official’s duty to follow the law and act on behalf of the public good (see Woods 2013 ).

By moral character we mean a collection of virtues or vices that enable or inhibit the accomplishment of good conduct (see MacIntyre 2007 , for further discussion of moral character).

Bazerman et al. ( 1998 ) proposed the “want/should” distinction to describe intrapersonal conflicts that exist within the human mind.

Legal responsibility of schools:

Under the law, schools have an affirmative duty to identify, locate, and evaluate students who they suspect may have a disability, in order to evaluate them for potential eligibility for special education services (see IDEA 2004, 20 U.S.C. § 1412(a) and 334 C.F. R. § 300.111). Schools must maintain a system of notices, outreach efforts, staff training, and referral processes designed to ascertain when there are reasonable grounds to suspect disability and the potential need for special education services. ( http://www.rtinetwork.org/learn/ld/legal-implications-of-response-to-intervention-and-special-education-identification )

The distinction between sexual misconduct and sexual abuse is significant in legal and other terms, however the two terms may be used interchangeably in certain contexts. The prevalence of sexual misconduct in schools is of concern to students, parents, school administrators and the courts (Shakeshaft 2004 , 2013 ). An intentional act of sexual misconduct on the part of a teacher toward a student is considered malfeasance and actionable in courts of law.

Title IX of the United States Education Amendments of 1972 (“Title IX”), Public Law No. 92–318, 86 Stat. 235 (June 23, 1972), codified at 20 U.S.C. §§ 1681–1688 is a Federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities receiving and Federal funding must comply with Title IX. Under Title IX, discrimination on the basis of sex can include sexual harassment or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion. Sexual violence is inclusive of sexual misconduct such as engaging in sexual relations with a minor (see https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html )

First Amendment, found in the Bill of Rights in the U.S. Constitution guarantees freedoms concerning religion, expression, assembly, and the right to petition (see https://www.law.cornell.edu/wex/first_amendment ).

The Family Educational and Rights and Privacy Act (FERPA) (20 U.S.C. § 1232 g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. (see https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html )

On self-deception, Dolovich ( 2002 ) notes: 

This tendency to self-deception may be the single biggest obstacle to integrity. It prevents honest scrutiny of our own motives, requires that certain ideas be permanently excluded from our minds, and prevents us from fitting comfortably, without tension, into ourselves. The practice of self-deception thus precludes the possibility of becoming an integrated whole, a state of being which is the essence of integrity. (p. 1658).

The term university counsel as used herein is treated as synonymous with attorney or lawyer. University counsel holds a law degree from an accredited institution.

Partisan is commonly used to describe people who fit a dictionary definition of a “partisan,” that is, those who are adherents to, or aligned with, a specific “political party, faction, cause, or person”. Legal professionals (lawyers, university counsel) and educational professionals (administrators, researchers) may be partisans in the social-psychology sense (i.e., adhering to a specific political, financial, ideological affiliation) without complying with the partisanship principle (i.e., pursuing that client’s cause as far as the law allows). The distinction is significant because critics of the dominant view reject the partisanship principle but acknowledge that lawyers are partisans in the sense of being aligned with a particular side of a matter. For purposes of this chapter, partisan and partisanship speak to being in a position or relationship subjectively due to positions of power or politics (see Perlman 2015 , p. 1643).

The Family Educational Rights and Privacy Act ( FERPA ) (20 U.S.C. § 1232 g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools and educational organisations that receive funds under an applicable program of the U.S. Department of Education.

The Programme for International Student Assessment (PISA) is a worldwide study by the Organisation for Economic Co-operation and Development (OECD) in member and non-member nations of 15-year-old school pupils’ scholastic performance on mathematics, science, and reading (see https://www.oecd.org/pisa/test/ ). Its influence on countries’ policy of student assessment is the range of ways in which PISA is influencing countries education policy choices. Policy-makers in most participating countries see PISA as an important indicator of system performance; PISA reports can define policy problems and set the agenda for national policy debate; policymakers seem to accept PISA as a valid and reliable instrument for internationally benchmarking system performance and changes over time; most countries – irrespective of whether they performed above, at, or below the average PISA score – have begun policy reforms in response to PISA reports.

Title IX, as discussed previously, sets Federal guidelines for sexual misconduct and provides for appropriate institutional action. A review of this law should be considered in concert with local and state laws pertaining to illicit relations between a teacher and student.

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Jenlink, P.M., Jenlink, K.E. (2018). Education, Ethics, and the Law: Examining the Legal Consequences of Unethical Judgment. In: Trimmer, K., Dixon, R., S. Findlay, Y. (eds) The Palgrave Handbook of Education Law for Schools. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-77751-1_6

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Peter DeWitt's

Finding common ground.

A former K-5 public school principal turned author, presenter, and leadership coach, Peter DeWitt provides insights and advice for education leaders. Former superintendent Michael Nelson is a frequent contributor. Read more from this blog .

11 Critical Issues Facing Educators in 2023

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For several years, I wrote a list of 10, 11, or even 15 critical issues facing education at the end of a year to give a glimpse into issues to consider for the following year. Then COVID happened and blew my last list of issues up. Why? Because it never occurred to me to put a pandemic on the list of critical issues in 2019.

We have educational issues to consider every year that also highlight what teachers, leaders, and students face. Education has often been a dumping ground for criticism of educators who are tasked with teaching children content, feeding them when they come in hungry because they live in poverty or are homeless, and, at the same time, practicing school safety drills because students and teachers have to prepare for fending off the next school shooter.

Television shows and movies poke fun at educators and school, politicians have “plans” about how they can do it better, although the large majority of them ever step foot in a school since they graduated. During all of that “entertainment,” educators are supposed to just go in and do their jobs for the love of education and children.

And that’s exactly what they do.

11 Issues for 2023

These issues were chosen based on the number of times they came up in stories on Education Week or in workshops and coaching sessions that I do in my role as a leadership coach and workshop facilitator.

For full disclosure, some of the issues will be difficult to read, but they are the reality for teachers, leaders, staff, and students around the country. With that being said, the issues on the list are not exhaustive, and as always, if you have an issue to add to the list, find me on social media and let me know which ones are a top priority for you.

Guns – Recent research from the Centers for Disease Control shows that firearms are the leading cause of death for children. This research study cites the CDC report and says there were 45,222 total firearm-related deaths in the United States in 2020, and around 10% of those were children and teens . Just to be intentional, because people will accuse me of a political argument, what this has to do with schools is the fact that the children who are killed or injured are our students. These deaths and this topic have an enormous impact on schools.

Politics in education – In the last couple of years, school leaders and teachers have had to fight rumors about teaching critical race theory, and we know states like Arkansas, Oklahoma, and Florida have governors or secretaries of education who want to ban conversations around equity, race, and social-emotional learning. Politics have always been a part of education, but the last few years have brought an increased level of it into our classrooms and schools.

Social-emotional learning – Critics believe that social-emotional learning is about indoctrinating students, which is wholly inaccurate. Social-emotional learning is about teaching students about empathy and how to self-regulate their behavior so they can better deal with stress and anxiety. This will continue to be an issue playing out in schools, and we will see work by researchers like Marc Brackett and his team at Yale be at the forefront of this issue.

The Flu – I’m not putting this on the list because I didn’t anticipate COVID in 2019. It’s on the list because, according to the CDC , there are millions of children each year who get the flu. Currently, we know that the respiratory virus RSV has affected millions of children under the age of 5, which does impact preschool- and kindergarten-age children, as well as their siblings or grandparents. Between the flu and RSV, schools will continue to see an increase in student absenteeism. Considering the COVID learning-loss debate that hit schools after COVID, that discourse will only continue. Here’s a recent story written by my Ed Week colleague Evie Blad covering student absences.

De-implementation – This is not as self-serving as it may seem. I say that because I have done a great deal of research on the topic of de-implementation and written a book about it . It’s on the list because it is a topic that school leaders are exploring. No longer should the conversation about workload be one that we push to the side, and de-implementing ineffective practices is a way to make the workload more manageable. Here is a YouTube video with 5 areas to consider when de-implementing.

Substitute teachers – In many states, it is no longer required that substitute teachers have an associate degree. There are states that have lowered the requirement to a high school diploma, yet there is still a shortage of substitute teachers. The lesser standard also brings into question the ability of substitute teachers to cover important core content for students.

Poverty – According to the National Center for Children Living in Poverty, there are 11 million children in that situation. Countless schools around the country are tasked not only with educating students but also feeding them breakfast and lunch as well. During COVID, school leaders, teachers, and staff made bag lunches for these students on a daily basis.

Teacher shortage – My Ed Week colleague Madeline Will recently wrote a story highlighting just how bad the teacher shortage is in the United States . However, this is not just a problem in the United States. Countries around the world are experiencing the same issue. Please check out this article by Ed Week reporter Caitlynn Peetz for the sobering statistics behind this issue.

Teacher-prep programs – Not only should there be conversations about how colleges and universities are preparing our nation’s teachers, but a big issue for 2023 is how those same colleges and universities are recruiting prospective teachers to enter the profession in the first place.

Tutoring programs – With a lot of coverage about COVID learning loss, tutoring as a means of “catching kids up” is going to be a big topic in 2023. Education Week is planning to do a series of articles and provide research on the topic, and I will be moderating a conversation on the topic for A Seat at the Table in 2023.

A love for learning – I know this sounds hokey, but it’s not. There are countless teachers, leaders, and staff trying to inspire a love for learning for themselves and their students. Too often, education is seen as a system of compliance rather than an institution of inspiration and creativity. We need to change that in 2023. Will the political rhetoric allow us to do that?

The opinions expressed in Peter DeWitt’s Finding Common Ground are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

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Legal Issues in Education

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Legal Issues Impacting Classroom Teaching

Compliance resource center.

As a GSI, there are a number of legal compliance issues to keep in mind.  You are a U-M employee, and are responsible for making sure you conduct your work as an instructor in accordance with the various legal and regulatory requirements that bind the University. As a primary interface with students, you are also in a unique position to spot potential issues that arise in the classroom, and to raise them with someone in your department before they cause bigger problems.

The four most important legal issues for you to keep in mind are:

• Student records – protecting students’ information;
• Safety – for yourself and your students;
• Copyright – making sure class materials are legally used and distributed; and
• Appropriate treatment of students.

1.  Student records – protecting students’ information

All information about a student – such as their personal information, enrollment details, assignments and grades – form part of their "student record", which is protected by a Federal law, the Family Educational Rights and Privacy Act of 1974 (commonly called “ FERPA ”).  Student records must be handled in accordance with that law by all those who have access to them.  For example, the requirements mean that:

• you may not post grades using the student's name or ID number;
• when returning student tests and papers, a system must be used to prevent access and/or release to anyone other than the student;
• you should password protect spreadsheets that contain student information;
• you can only use student information for purposes directly related to your role as an instructor: it would be inappropriate to share personal information that you learn about a student in your capacity as a GSI with others in your capacity as a student. 

For more information, see this Student Records compliance page .

2.  Safety – for yourself and your students

The University has strict obligations to keep its students and employees safe.  Never do anything that seems unsafe, and never let anyone else do something that seems unsafe. Here are some practical things you can do to improve everyone’s safety:

• The University has strict obligations to keep its students Take a few moments at the start of the semester to familiarize yourself with the safety and emergency protocols of each of the classrooms and labs you are teaching in – what would you do if an alarm went off in class? Where would you evacuate to? Where is the nearest fire extinguisher?
• If your class has laboratory components, make sure you know who your lab’s Safety Coordinator is. Follow all relevant safety procedures and ensure students do the same. Get to know the general laboratory safety requirements (http://ehs.umich.edu/research-clinical-safety/) . If you see something unsafe happening and can’t find your Safety Coordinator, contact Environmental Health and Safety (http://ehs.umich.edu). For more information see Laboratory Safety .
• If you are injured while working, or witness an incident where someone else is injured, you must report it in line with your Department’s normal procedures (or to Work Connections, http://www.workconnections.umich.edu/).
• Program the Department of Public Safety (http://www.dpss.umich.edu/) non-emergency number, (734) 763-1131, into your phone so you know you can call them anytime you need to.

3.  Copyright – making sure class materials are legally used and distributed

When creating and reproducing class materials, there are copyright compliance issues to consider.  Make sure you understand the legal limits of how you can and cannot use or hand out materials in your classes (or post them on Canvas) by reviewing the U-M Library Copyright Office site (http://www.lib.umich.edu/copyright-office-michigan-publishing) on using copyrighted materials.

4.  Appropriate treatment of students

• Keep your interactions with and treatment of students professional at all times: See “ U-M Policy on Faculty-Student Relationships ” for more guidance.
• E.g.  Y ou can give a student-athlete an extension or agree to some alternative assessment, if the same opportunity would be given to any other student in analogous circumstances; but you are not permitted to give them special treatment just because they are an athlete, nor are you permitted to deny them opportunities for academic flexibility that you would normally give other students.
• For students with disabilities, you must provide reasonable accommodations to afford them equal opportunity to succeed in the class. The Faculty Handbook , developed by Services for Students with Disabilities (http://ssd.umich.edu/) gives an overview of disabilities that affect learning in a college or university setting and guidance on the adjustments that can be made to accommodate students with disabilities. 

For more information, resources and links about legal and compliance issues relevant to teaching, see the Classroom Teaching guide  on the Compliance Resource Center website (http://www.compliance.umich.edu/) . 

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Navigating the Future of Legal Issues in Higher Education 

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A conference for higher education professionals where complex legal situations are discussed, best practices are shared, and new higher education law strategies are forged. 

In the rapidly evolving landscape of higher education, legal challenges continue to emerge, requiring both seasoned professionals and newcomers in the field to stay informed and adaptable. The Legal Issues in Higher Education Conference at the University of Vermont stands as a beacon for those navigating these complex waters. Scheduled from October 28–30, 2024 , this conference is set to be an invaluable experience for higher education legal experts, student affairs professionals, and university administrators. 

For 34 years, the University of Vermont has hosted one of the nation’s most prestigious legal conferences. This annual event brings together leaders in higher education law, student affairs, and campus public safety among others. It’s a place where complex legal situations are dissected, best practices are shared, and new strategies are forged. 

The conference will feature three days of keynote addresses, concurrent sessions, and roundtable discussions.

Key Highlights of the 2024 Conference  

Keynote speaker: barbara a. lee, ph.d, j.d..

• Keynote Focus : Similarities and differences between Academic Freedom and Free Speech, and what are the implications of these for public institutions versus private institutions.

Barbara A. Lee is Distinguished Professor of Human Resource Management at Rutgers University, where she has taught higher education law and employment law for over forty years. Professor Lee has served as Dean of the School of Management and Labor Relations, Associate Provost, and Senior Vice President for Academic Affairs. She is also Of Counsel to the law firm of Bond Schoeneck & King, where she practices higher education law and employment law.

Lee has published over 100 books and articles, including The Law of Higher Education (2019 with W. Kaplin, N. Hutchens and J. Rooksby), Academics in Court: The Consequences of Faculty Discrimination Litigation (1987 with G. LaNoue), and numerous articles in law journals and human resource management journals. She serves as editor of The Journal of College & University Law and has received several awards for her scholarship and her service to the higher education community. Dr. Lee holds a Ph.D. from The Ohio State University in Higher Education Administration and a J.D. from Georgetown University. She received her B.A., summa cum laude, from the University of Vermont.

Keynote Speaker: Jennifer S. Hirsch , Ph.D

• Keynote Focus : An expansive, empirically-grounded vision for campus sexual assault prevention. With empathy and compassion for the many struggles that young people face, this session approaches sexual assault as a public health problem and explains it by setting out a broader understanding of how sex is organized and what it means to young people in college.
• Moderated by Joe Storch , Senior Director of Compliance & Innovation Solutions, Grand River Solutions

Jennifer S. Hirsch, a medical anthropologist and Professor of Sociomedical Sciences at Columbia University, works at the intersection of public health and social science, with a research agenda that examines gender, sexuality and migration, the anthropology of love, social dimensions of HIV, and undergraduate well being, including sexual assault.

Hirsch co-directed the Sexual Health Initiative to Foster Transformation (SHIFT), a research project on sexual assault and sexual health among Columbia undergraduates. With Shamus Khan, she is coauthor of Sexual Citizens: Sex, Power, and Assault on Campus (WW Norton), which draws on SHIFT’s ethnographic research to examine sexual assault and consensual sex among undergraduates in relation to the broader context of campus life.

Hirsch co-directs the Columbia Population Research Center, which brings together faculty from schools across the campus who work on population health and inequalities. Hirsch also served six years as a board member for Jews for Racial & Economic Justice, including the last two as board chair. Hirsch earned her A.B. from Princeton University in History, with a certificate in Women’s Studies, and her Ph.D. from Johns Hopkins University in Population Dynamics and Anthropology.

Featured Topic: Speech On Campus

Speech on campus is always a hot topic, even more so with the events of the last several years. We have two additional sessions related to speech on campus at the conference:

Strategic Messaging and Communication from Campus

• Intended to help administrators get their messages out to the campus and broader community of stakeholders.

Free Speech and Campus Responses to Controversial Events

• Focused on student organizations, campus policies and procedures, controversial speakers on campus, and using the presidential voice to issue university statements and implementations.

Speakers on these topics include:

• Linda Baughman , Dean of Students, University of St. Thomas
• Michelle N. Deutchman , Executive Director of the UC National Center for Free Speech and Civic Engagement
• Wyatt DuBois , Director, University Public Relations, Penn State
• Tamla Lewis , Associate General Counsel, The Pennsylvania State University
• Danny Shaha , Assistant Vice President for Student Affairs, Penn State University

Featured Topic: Title IX

It has been another dynamic year in the realm of Title IX regulations and related policy and practices, and we’re hosting at least three session focused on the topic :

For Your Bingo Cards: Another Set of Title IX Regulations (and Key Impacts, Complications, and Open Questions)

• James Keller , Saul Ewing; Marcie Gardner, General Counsel, Claremont McKenna College

Intersection of Title IX Regulation and Litigation

• Gina Maisto Smith , Chair, Institutional Response Group, Cozen O’Connor
• Joshua W.B. Richards , Partner, Saul Ewing Arnstein & Lehr LLP

You Now Have More Flexibility in Your Title IX Process; What Will You Do with It?

• Marjory D. Fisher , AVP & Title IX Coordinator, Columbia University
• Nicole Merhill , University Title IX Coordinator and Director of the Office for Gender Equity, Harvard University

Featured Topic: Restorative Practices

There is a keen focus on restorative practices within higher education administration, and we have an engaging session dedicated to the topic:

The Use of Restorative Practices to Address Campus Conflict

• Fabio A. Ayala , Assistant Director of the Center for Restorative Practices, Amherst College
• Suzanne “Susie” Belleci , Director of the Center for Restorative Practices, Amherst College
• Patricia Hamill , Clark Hill
• Maureen Holland , Institutional Response Group at Cozen O’Connor

Interactive Learning Session Topics

Ai conduct for academics and students.

• Roger Skalbeck , Professor of Law, Associate Dean for Library and Information Resources, University of Richmond School of Law
• Jessica Copeland , Bond Schoeneck & King Attorneys

Navigate in the Anti-DEI Movement Environment

• Rasheed Ali Cromwell , President, The Harbor Institute

Shared Ancestry

• Guilherme Costa , Vice President, General Counsel and Secretary, Corporation at Bentley University
• Janet Elie Faulkner , Founding Attorney, Faulkner Legal
• Jennifer L. Papillo , Associate General Counsel, University of Vermont
• Trenten D. Klingerman , Partner, Stuart & Branigin

Merger and Acquisitions

• Joshua Grubman , Associate General Counsel, Dartmouth University
• Paul Lannon , Partner, Holland & Knight

Not Just Extended Time – Student and Employee Accommodations and Modifications

• Alexis Martinez , Executive Director and Interim Title IX Coordinator, Equity and Compliance Programs, Georgia Institute of Technology
• Seth Gilbertson , Senior Counsel, Bond Schoeneck & King Attorneys

You Can’t Make This Stuff Up: Reining in Reality and Risk Management in Employee Relations

• Daniel Kaufman , Partner, Michael Best & Friedrich
• Anne Bilder , General Counsel, University of Northern Iowa

Recent Clery Act Campus Crime Program Reviews: Lessons Learned for Implementation

• Steven Healy , The Healy+ Group; Ashley Reich, Senior Vice President of University Compliance, Liberty University
• Leslie Gomez , Vice Chair, Institutional Response Group, Cozen O’Connor
• Kyle C. Norton , Director, Regulatory Compliance, The Healy+ Group

Why Attend the Legal Issues in Higher Education Conference

Interactive learning sessions   .

What sets this conference apart is its interactive approach. Through dynamic sessions and panel discussions, attendees will gain practical solutions to real-world issues. The opportunity to build a network of peers serves as a long-term resource, extending the value of the conference far beyond its closing day. Regular attendees often highlight the unparalleled breadth and depth of topics covered, which empower them to implement effective policies and programs upon returning to their institutions.  

“The interactive learning sessions at the Legal Issues in Higher Education Conference have been a game-changer for my professional development. Engaging with peers and experts in real-time discussions not only enhances my understanding of complex legal issues but also equips me with actionable strategies that I can immediately implement within my institution.”  — Student Affairs Coordinator 

Essential Collaboration with Leading Experts  

In today’s climate, understanding the broad spectrum of legal issues in higher education is not just beneficial—it’s essential. This conference offers professionals the tools and insights needed to address current and future challenges effectively. It is an opportunity to learn from leading experts, engage in meaningful dialogue, and expand professional networks in a setting that encourages collaboration and innovation. 

“The opportunity to learn from leading experts in higher education law is invaluable. Their insights not only shed light on the intricacies of current legal challenges but also inspire innovative approaches to problem-solving that can profoundly impact our institutions.”  — Higher Education Legal Consultant 

A Conference with a History  

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Register now to secure your place in this essential gathering and be part of shaping the future of higher education law. We look forward to welcoming you to Vermont this October. 

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Four of the biggest problems facing education—and four trends that could make a difference

Eduardo velez bustillo, harry a. patrinos.

In 2022, we published, Lessons for the education sector from the COVID-19 pandemic , which was a follow up to,  Four Education Trends that Countries Everywhere Should Know About , which summarized views of education experts around the world on how to handle the most pressing issues facing the education sector then. We focused on neuroscience, the role of the private sector, education technology, inequality, and pedagogy.

Unfortunately, we think the four biggest problems facing education today in developing countries are the same ones we have identified in the last decades .

1. The learning crisis was made worse by COVID-19 school closures

Low quality instruction is a major constraint and prior to COVID-19, the learning poverty rate in low- and middle-income countries was 57% (6 out of 10 children could not read and understand basic texts by age 10). More dramatic is the case of Sub-Saharan Africa with a rate even higher at 86%. Several analyses show that the impact of the pandemic on student learning was significant, leaving students in low- and middle-income countries way behind in mathematics, reading and other subjects.  Some argue that learning poverty may be close to 70% after the pandemic , with a substantial long-term negative effect in future earnings. This generation could lose around $21 trillion in future salaries, with the vulnerable students affected the most.

2. Countries are not paying enough attention to early childhood care and education (ECCE)

At the pre-school level about two-thirds of countries do not have a proper legal framework to provide free and compulsory pre-primary education. According to UNESCO, only a minority of countries, mostly high-income, were making timely progress towards SDG4 benchmarks on early childhood indicators prior to the onset of COVID-19. And remember that ECCE is not only preparation for primary school. It can be the foundation for emotional wellbeing and learning throughout life; one of the best investments a country can make.

3. There is an inadequate supply of high-quality teachers

Low quality teaching is a huge problem and getting worse in many low- and middle-income countries.  In Sub-Saharan Africa, for example, the percentage of trained teachers fell from 84% in 2000 to 69% in 2019 . In addition, in many countries teachers are formally trained and as such qualified, but do not have the minimum pedagogical training. Globally, teachers for science, technology, engineering, and mathematics (STEM) subjects are the biggest shortfalls.

4. Decision-makers are not implementing evidence-based or pro-equity policies that guarantee solid foundations

It is difficult to understand the continued focus on non-evidence-based policies when there is so much that we know now about what works. Two factors contribute to this problem. One is the short tenure that top officials have when leading education systems. Examples of countries where ministers last less than one year on average are plentiful. The second and more worrisome deals with the fact that there is little attention given to empirical evidence when designing education policies.

To help improve on these four fronts, we see four supporting trends:

1. Neuroscience should be integrated into education policies

Policies considering neuroscience can help ensure that students get proper attention early to support brain development in the first 2-3 years of life. It can also help ensure that children learn to read at the proper age so that they will be able to acquire foundational skills to learn during the primary education cycle and from there on. Inputs like micronutrients, early child stimulation for gross and fine motor skills, speech and language and playing with other children before the age of three are cost-effective ways to get proper development. Early grade reading, using the pedagogical suggestion by the Early Grade Reading Assessment model, has improved learning outcomes in many low- and middle-income countries. We now have the tools to incorporate these advances into the teaching and learning system with AI , ChatGPT , MOOCs and online tutoring.

2. Reversing learning losses at home and at school

There is a real need to address the remaining and lingering losses due to school closures because of COVID-19.  Most students living in households with incomes under the poverty line in the developing world, roughly the bottom 80% in low-income countries and the bottom 50% in middle-income countries, do not have the minimum conditions to learn at home . These students do not have access to the internet, and, often, their parents or guardians do not have the necessary schooling level or the time to help them in their learning process. Connectivity for poor households is a priority. But learning continuity also requires the presence of an adult as a facilitator—a parent, guardian, instructor, or community worker assisting the student during the learning process while schools are closed or e-learning is used.

To recover from the negative impact of the pandemic, the school system will need to develop at the student level: (i) active and reflective learning; (ii) analytical and applied skills; (iii) strong self-esteem; (iv) attitudes supportive of cooperation and solidarity; and (v) a good knowledge of the curriculum areas. At the teacher (instructor, facilitator, parent) level, the system should aim to develop a new disposition toward the role of teacher as a guide and facilitator. And finally, the system also needs to increase parental involvement in the education of their children and be active part in the solution of the children’s problems. The Escuela Nueva Learning Circles or the Pratham Teaching at the Right Level (TaRL) are models that can be used.

3. Use of evidence to improve teaching and learning

We now know more about what works at scale to address the learning crisis. To help countries improve teaching and learning and make teaching an attractive profession, based on available empirical world-wide evidence , we need to improve its status, compensation policies and career progression structures; ensure pre-service education includes a strong practicum component so teachers are well equipped to transition and perform effectively in the classroom; and provide high-quality in-service professional development to ensure they keep teaching in an effective way. We also have the tools to address learning issues cost-effectively. The returns to schooling are high and increasing post-pandemic. But we also have the cost-benefit tools to make good decisions, and these suggest that structured pedagogy, teaching according to learning levels (with and without technology use) are proven effective and cost-effective .

4. The role of the private sector

When properly regulated the private sector can be an effective education provider, and it can help address the specific needs of countries. Most of the pedagogical models that have received international recognition come from the private sector. For example, the recipients of the Yidan Prize on education development are from the non-state sector experiences (Escuela Nueva, BRAC, edX, Pratham, CAMFED and New Education Initiative). In the context of the Artificial Intelligence movement, most of the tools that will revolutionize teaching and learning come from the private sector (i.e., big data, machine learning, electronic pedagogies like OER-Open Educational Resources, MOOCs, etc.). Around the world education technology start-ups are developing AI tools that may have a good potential to help improve quality of education .

After decades asking the same questions on how to improve the education systems of countries, we, finally, are finding answers that are very promising.  Governments need to be aware of this fact.

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Senior Adviser, Education

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School operations

Digital Technologies – Responsible Use

Managing external access in online environments, social media use for student learning.

This policy outlines requirements for schools to engage with digital technologies in a safe and responsible manner, ensuring cybersafety and supporting student learning.

Schools are expected to take reasonable steps to ensure digital technologies are used in a safe and responsible manner by staff and students. To achieve this, schools must:

• appropriately manage access to communication with individuals outside the school in online environments, including blocking access for Years F to 6 or age equivalent students, and limiting access for Years 7 to 12 or age-equivalent students
• supervise students when engaged in digital learning in the classroom
• obtain parent/carer consent for any digital technology use which is visible to the public, including the publication of student work
• ensure any use of digital technologies, including social media for student learning, has an appropriate educational purpose, mitigates privacy and child safety risks, and is consistent with community expectations and staff professional conduct requirements.

Schools must ensure digital technologies are used safely and responsibly. Schools must ensure student use of digital technologies is for appropriate educational purposes and balanced with offline learning opportunities.

The Child Safe Standards , in particular Standard 9: Physical and online environments External Link , require schools to provide physical and online environments that promote safety and wellbeing while minimising the opportunity for young people to be harmed. Schools are responsible for helping to protect students from risks in online environments, in an age-appropriate way.

For information about developing and implementing Acceptable Use Agreements (AUA) for student use, refer to the Digital Learning policy .

Schools must implement safety measures to appropriately manage access to communication with individuals outside their school (external access) in online environments. This includes managing the use of digital tools with online collaborative features, such as:

• sending or receiving emails
• document sharing
• using chat functions
• live streaming audio or video.

Students in primary years (Prep to Year 6 or age equivalent ungraded) must not have any access to communicate with individuals outside their school in online environments. For secondary students (Years 7 to 12 or age equivalent ungraded students), schools must limit online external access to the essential needs of learning programs, with additional protection in place for vulnerable students or students with disability. For more details, refer to the Guidance tab .

Students continue to have access to external websites, with in-built content filtering to limit access to harmful content. For more information about content filtering refer to the Technologies and ICT Services policy .

Supervising students using digital technologies

Schools must ensure students are adequately supervised when using digital technologies in the classroom, and when they are engaged in online learning, consistent with their duty of care. Supervision measures may include:

• regularly moving around the room to monitor screens
• putting in place technical alerts or barriers for inappropriate behaviour, such as blocking inappropriate websites or automatic flagging of inappropriate language
• actively reinforcing learning and behavioural expectations throughout the activity.

Schools must also ensure appropriate supervision of students participating in flexible and remote learning environments while on site. Parents are responsible for the appropriate supervision of students accessing virtual classrooms from home, however, schools will monitor student attendance, safety and wellbeing.

Responding to online incidents

Schools must respond to any online incident in accordance with the department’s policy on Managing and Reporting School Incidents (Including Emergencies) , as well as any other department or local school policy relevant to the type of incident, such as:

• the school’s Student Wellbeing and Engagement policy External Link (staff login required)
• the school’s Bullying Prevention policy External Link (staff login required)
• the department's Privacy and Information Sharing policy .

For a department-developed step-by-step guide, which provides practical steps and action to respond to online incidents of concern, refer to the Resources tab .

For information on managing cyberbullying specifically, refer to:

• Bullying Prevention and Response policy
• Bully Stoppers External Link
• Student Engagement policy
• template school-based Bullying Prevention policy External Link (staff login required)
• eSafety commissioner: Toolkit for Schools External Link
• Alannah & Madeline Foundation External Link

Obtaining parent/carer consent when using digital technologies

Schools are encouraged to use digital technologies in ways that limit or avoid student activities or work from being visible to the public online.

Schools must obtain parent/carer consent prior to:

• the publication of student work
• the release of any personally identifiable information
• the use digital technologies where student activities will be visible to the public online.

Schools must notify parents/carers about their child's intended social media use as part of their learning program and provide them the opportunity to opt out. For example:

Our school has established an Art Gallery Blog using [platform name] for students to showcase their artwork, where parents and peers can provide appropriate feedback and comments on the work undertaken in or relating to our art classes. Parents are welcome to contact [Name] if they have any questions or concerns about students participating in this forum].

Schools must comply with their obligations under the Schools' Privacy Policy when using digital technologies that capture, use or share personal information. This includes ensuring that software is appropriately assessed before being implemented, and that appropriate consent is obtained for the use of the platform. Refer to Privacy and Information Sharing: Guidance for more information.

Further information on seeking parent/carer consent can be found in the Privacy and Information Sharing policy and the Sample notice – single online service in our school (DOCX) External Link (staff login required).

Social media may only be used for student learning if it serves an educational purpose directly aligned with a Victorian Curriculum framework, and if it provides unique learning benefits not possible in face-to-face contexts or by using other technologies. Examples of appropriate social media use can be found in the Guidance tab .

Protocols for appropriate use must be communicated with students when a platform/application is used for the first time. Schools can embed protocols for students, staff and parents within their Student Wellbeing and Engagement policy External Link (staff login required) and Acceptable Use Agreements. Schools are encouraged to involve students when developing these protocols.

Staff use of social media must align with professional conduct expectations. Personal social media accounts must not be used for interactions with students unless objectively appropriate, for example, where the student is also a family member of the staff member. The principal is responsible for determining what is appropriate in such circumstances and may seek advice from Conduct and Integrity Division. It is recommended that at least 2 staff members have administrative rights to any social media page, with individual logins preferred. School staff are encouraged to manage school social media pages directly, rather than delegate this function to parents or others.

If a staff member becomes aware that a student is ‘following’ them on a personal social media account (where ‘following’ an account does not require permission from the account holder), the staff member must ask the student to ‘unfollow’ them and notify the school and/or parent/carer if the student does not do so.

Schools are encouraged to prioritise social media platforms that allow department/school credentialing and that restrict public access to student content to mitigate privacy and safety risks. Department-provided online tools are strongly recommended over personal accounts. Additionally, use of digital tools, including social media platforms, must comply with any terms set out by the provider of the tool. For use with students, this may include an age limit. For more information, refer to Software and Administration Systems .

Definitions

Cyberbullying Cyberbullying is direct or indirect bullying behaviours using digital technologies. This includes harassment via a mobile phone, setting up a defamatory personal website or deliberately excluding someone from social networking spaces.

Digital technologies Digital hardware, software and resources used to develop and communicate learning, ideas and information. Note, not to be confused with ‘Digital Technologies’ which is a discipline within the Technologies learning area External Link .

External access External access is any communication in an online environment with individuals or parties outside the school.

Personal information Personal information is information about an individual who is identified or could be identifiable. This includes not just names but also photographs, contact information, academic results, health and wellbeing information and biometrics. Contact the Privacy team [email protected] if you have any questions about the handling of personal information.

Social media Social media encompasses digital platforms and technologies that facilitate the creation, sharing and interaction that enable users to create and share content and participate in social networking and communication. This includes:

• social networking sites (for example, TikTok, Snapchat, Instagram)
• video and photo sharing websites (for example, YouTube, Flickr)
• blogs, including corporate blogs and personal blogs (for example, WordPress, EduBlogs)
• micro-blogging (for example, X (formerly Twitter))
• forums, discussion boards and groups (for example, Reddit, Whirlpool)
• wikis (for example, PBWorks, Fandom)
• instant messaging (for example, WhatsApp, WeChat, Telegram, QQ).

Related policies

• Acceptable Use Policy for ICT Resources
• Bullying Prevention and Response
• Child Safe Standards
• Code of Conduct
• Digital Learning
• Duty of Care
• Generative Artificial Intelligence
• ICT Software in Schools – Risk Assessment
• Information Security
• Intellectual Property and Copyright
• Managing and Reporting School Incidents (Including Emergencies)
• Photographing, Filming and Recording Students
• Privacy and Information Sharing
• Supervision of Students
• Teaching and Learning Resources – Selecting Appropriate Materials
• Technologies and ICT Services in Schools
• Work-Related Violence in Schools

Relevant legislation

• Education and Training Reform Act 2006 (Vic) External Link
• Health Records Act 2001 (Vic) External Link
• Privacy and Data Protection Act 2014 (Vic) External Link

Reviewed 30 August 2024

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Policy last updated

2 September 2024

Wellbeing, Health and Engagement Division

What education policy experts are watching for in 2022

Subscribe to the brown center on education policy newsletter, daphna bassok , daphna bassok nonresident senior fellow - governance studies , brown center on education policy stephanie riegg cellini , stephanie riegg cellini nonresident senior fellow - governance studies , brown center on education policy michael hansen , michael hansen senior fellow - brown center on education policy , the herman and george r. brown chair - governance studies douglas n. harris , douglas n. harris nonresident senior fellow - governance studies , brown center on education policy , professor and chair, department of economics - tulane university jon valant , and jon valant director - brown center on education policy , senior fellow - governance studies kenneth k. wong kenneth k. wong nonresident senior fellow - governance studies , brown center on education policy.

January 7, 2022

Entering 2022, the world of education policy and practice is at a turning point. The ongoing coronavirus pandemic continues to disrupt the day-to-day learning for children across the nation, bringing anxiety and uncertainty to yet another year. Contentious school-board meetings attract headlines as controversy swirls around critical race theory and transgender students’ rights. The looming midterm elections threaten to upend the balance of power in Washington, with serious implications for the federal education landscape. All of these issues—and many more—will have a tremendous impact on students, teachers, families, and American society as a whole; whether that impact is positive or negative remains to be seen.

Below, experts from the Brown Center on Education Policy identify the education stories that they’ll be following in 2022, providing analysis on how these issues could shape the learning landscape for the next 12 months—and possibly well into the future.

I will also be watching the Department of Education’s negotiated rulemaking sessions and following any subsequent regulatory changes to federal student-aid programs. I expect to see changes to income-driven repayment plans and will be monitoring debates over regulations governing institutional and programmatic eligibility for federal student-loan programs. Notably, the Department of Education will be re-evaluating Gainful Employment regulations—put in place by the Obama administration and rescinded by the Trump administration—which tied eligibility for federal funding to graduates’ earnings and debt.

But the biggest and most concerning hole has been in the  substitute teacher force —and the ripple effects on school communities have been broad and deep. Based on personal communications with Nicola Soares, president of  Kelly Education , the largest education staffing provider in the country, the pandemic is exacerbating several problematic trends that have been quietly simmering for years. These are: (1) a growing reliance on long-term substitutes to fill permanent teacher positions; (2) a shrinking supply of qualified individuals willing to fill short-term substitute vacancies; and, (3) steadily declining fill rates for schools’ substitute requests. Many schools in high-need settings have long faced challenges with adequate, reliable substitutes, and the pandemic has turned these localized trouble spots into a widespread catastrophe. Though federal pandemic-relief funds could be used to meet the short-term weakness in the substitute labor market (and mainline teacher compensation, too ), this is an area where we sorely need more research and policy solutions for a permanent fix.

First, what’s to come of the vaccine for ages 0-4? This is now the main impediment to resuming in-person activity. This is the only large group that currently cannot be vaccinated. Also, outbreaks are triggering day-care closures, which has a significant impact on parents (especially mothers), including teachers and other school staff.

Second, will schools (and day cares) require the vaccine for the fall of 2022? Kudos to my hometown of New Orleans, which still appears to be the nation’s only district to require vaccination. Schools normally require a wide variety of other vaccines, and the COVID-19 vaccines are very effective. However, this issue is unfortunately going to trigger a new round of intense political conflict and opposition that will likely delay the end of the pandemic.

Third, will we start to see signs of permanent changes in schooling a result of COVID-19? In a previous post on this blog, I proposed some possibilities. There are some real opportunities before us, but whether we can take advantage of them depends on the first two questions. We can’t know about these long-term effects on schooling until we address the COVID-19 crisis so that people get beyond survival mode and start planning and looking ahead again. I’m hopeful, though not especially optimistic, that we’ll start to see this during 2022.

The CTC and universal pre-K top my list for 2022, but it’s a long list. I’ll also be watching the Supreme Court’s ruling on vouchers in Carson v. Makin , how issues like critical race theory and detracking play into the 2022 elections, and whether we start to see more signs of school/district innovation in response to COVID-19 and the recovery funds that followed.

Electoral dynamics will affect several important issues: the selection of state superintendents; the use of American Rescue Plan funds; the management of safe return to in-person learning for students; the integration of racial justice and diversity into curriculum; the growth of charter schools; and, above all, the extent to which education issues are leveraged to polarize rather than heal the growing divisions among the American public.

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