The Legal Rights and Responsibilities of Teachers: Issues of Employment and Instruction
“Now teachers have an absolute desk reference that could be called ‘How to Stay in the Classroom and Out of the Courtroom!”
—John Casper, District Achievement Gap Coordinator Kentucky Department of Education
“Reading this book is the next best thing to taking a class on education law. It could well serve as the resource for such a class!”
—Deanna Brunlinger, Science Teacher Elkhorn Area High School, WI
Everything teachers need to know about education law
Do you know what you can and can't do and say in your school? Most teacher education programs offer little, if any, instruction on education law. When teachers need advice regarding employment or instructional issues, they may find the search frustrating, time-consuming, or costly. Teachers will find the answers to their most frequently asked legal ...
- Front Matter
- Back Matter
- Subject Index
- Chapter 1: Introduction: The Historical and Legal Foundations of Public Education
- Chapter 2: School Governance and the Teacher
- Chapter 3: Basic Constitutional Rights and Freedoms
- Chapter 4: Employment Terms and Conditions
- Chapter 5: Collective Bargaining
- Chapter 6: Prohibitions against Employment Discrimination
- Chapter 7: Teacher Discipline, Dismissal, and Due Process
- Chapter 8: Curricular and Instructional Issues
- Chapter 9: Tort Liability
To our wonderful wives, the two Debbies, With all of our love, always and forever
In memory of Carol Shiffer
Copyright © 2011 by Corwin
All rights reserved. When forms and sample documents are included, their use is authorized only by educators, local school sites, and/or noncommercial or nonprofit entities that have purchased the book. Except for that usage, no part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher.out permission in writing from the publisher.
Printed in the United States of America
Library of Congress Cataloging-in-Publication Data
Osborne, Allan G.
The legal rights and responsibilities of teachers: issues of employment and instruction / Allan G. Osborne, Jr., and Charles J. Russo.
Includes bibliographical references and index.
ISBN 978-1-4129-7546-9 (pbk.)
1. Teachers—Legal status, laws, etc.—United States. I. Russo, Charles J. II. Title.
KF4175.O83 2011 344.73′078—dc22
This book is printed on acid-free paper.
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Preface[Page ix]Why We Wrote this Book
As we note in the introduction to the first chapter, well over 3 million teachers currently work in American public schools. Yet, teachers in most states are not required to take a course or courses in education law in order to obtain certification or licensure. As a result, the majority of teacher preparation programs in our colleges and schools of education do not require courses in education law, and many do not even offer it as an elective. Generally, teachers do not even take such a course in their graduate programs, unless they have enrolled in programs leading them to prepare for roles as school administrators.
Over the past six decades the role of teachers has become intimately intertwined with legal issues. Since the Supreme Court's landmark school desegregation decision in Brown v. Board of Education (Brown) in 1954, teachers in public schools have had to become more concerned with their legal rights as employees. In fact, Brown also stands out as the birth of the extensive field that is known today as education (or school) law. At the same time, just as educators, whether teachers, administrators, or other staff members, are aware of their rights, they are also cognizant of their professional duties in schools. Although the responsibility for implementing all of the myriad laws and regulations that affect education largely rests on administrators, insofar as teachers and other staff share in the duty of safeguarding the rights of the students in their care, they must have knowledge of how the law impacts their professional roles. In particular, teachers need to know their rights and responsibilities, both regarding their employment and as these rights and responsibilities apply to the instructional process.
In our experiences as former K-12 educators who now teach graduate courses and conduct professional development seminars on an array of topics in education law, we have found that there is a dearth of information about education law targeted specifically for teachers. We have thus written this book to help fill the knowledge gap in education law by providing a [Page x]concise, practical guide specifically targeting the areas of the law that are of most concern to teachers. In addition to addressing the concerns expressed by teachers in our courses and professional development seminars, prior to undertaking this project we conducted an informal survey with a representative group of teachers to see which topics are foremost in their minds.
Turning to the employment context, the book presents information about teacher certification, employment, tenure, evaluation, and dismissal, along with issues related to collective bargaining. The book also reviews the constitutional rights of teachers, including freedom of speech and religion. In addition, the book provides information on how teachers can avoid liability when dealing with discrimination and harassment based on race, ethnic origin, gender, sexual orientation, age, religion, or disability, regardless of whether it is at the hands of supervisors, peers, or students.
In the instructional domain, the book explores the rights and responsibilities teachers have in the instructional process. This includes topics such as what may be taught, academic freedom, methodology, grading policies, student records, and copyright law. The book also provides information about tort liability and teachers' responsibilities regarding the safety and well-being of their students as well as their own protections from defamation.
Prior to writing this book we circulated a proposed table of contents to many teachers and colleagues in higher education who had taught in K-12 schools asking for their input. Many of the topics that we included directly respond to the concerns expressed by those teachers and colleagues. The book also provides useful, practical suggestions for dealing with specific situations, and there are answers to frequently asked questions at the end of each chapter. These are questions that our graduate students, who are practicing teachers, asked in our graduate school law courses, seminars, and professional development presentations. Moreover, the third through ninth chapters include summaries of leading judicial opinions to give readers a sense of how the law is applied to actual situations.
For ease of reading, we use endnotes to cite our sources and references throughout the book, as is common in legal writing, rather than in-text citations. However, we recognize that most readers are not familiar with standard legal citations. Thus, we have used a modified version of the law review style outlined in The Bluebook: A Uniform System of Citation. We deviate from this style in many instances by borrowing elements of American Psychological Association style to make our endnotes more reader friendly.[Page xi]
We would like to point out that this book is intended to be one of a two-book set. The second book will address student rights. Although each book will stand alone in its own right, the volumes could be used together to form a comprehensive treatment of education law.Who Should Read this Book
As indicated above, this book is targeted specifically for teachers. Even so, it can be useful to administrators, particularly those at the building level, who need a refresher on school law as it applies to teachers' rights and responsibilities. Although the book is designed to be read by in-service teachers, particularly those just entering the field, it could be useful for students currently in programs leading to teacher licensure. The book could also be used as a text in an introductory course on school law or in professional development seminars.
As is the case with all of our books, this one is not intended to replace the advice and counsel of competent attorneys. Rather, the book is designed to make school personnel more aware of how various laws provide them with rights, protections, and responsibilities. We hope that educators who understand these laws will be in a better position to meet their myriad legal requirements and make legally correct decisions. Accordingly, we caution readers to consult competent legal counsel when difficult situations arise. In this respect, although the book presents information about teachers' rights and responsibilities, it does not provide information about legal procedures.How the Book is Organized
The first chapter, which serves as an introduction, begins with a brief look at the history of public education in America. The bulk of the chapter deals with the legal foundations of education, including a review of relevant constitutional provisions and major laws. This introductory chapter is important insofar as it provides a brief synopsis of the constitutional provisions and the statutes that are discussed throughout the book.
Chapter 2 continues the discussion of the legal foundations of education by providing an overview of school governance. Specifically, this chapter provides additional information about the expanding role of the federal government along with laws regulating state and local educational agencies as well as a section on school finance and the use of school property. All of this is covered from the perspective of how school governance affects teachers.[Page xii]
The third chapter provides a brief overview of the constitutional rights and freedoms of all citizens. In doing so it lays the foundation for many of the issues that are discussed in more detail in subsequent chapters. The chapter includes discussions of the basic freedoms: speech, association, religion, and privacy, in addition to due process. It places particular emphasis on how these rights and freedoms interact with teachers' responsibilities and the limitations placed on them as public employees. The purpose of the chapter is to provide an introduction to the constitutional principles underlying many of the issues presented throughout the book.
Chapter 4 outlines the legal issues involved in employment terms and conditions. The chapter begins with a discussion of the requirements for teacher certification and the reasons for which such certification can be revoked. It continues with information about the privacy rights of teachers and issues regarding employment terms such as salaries, leaves of absence, evaluations, and resignations.
Chapter 5 discusses collective bargaining. The chapter begins with an overview of the history of teacher associations, their role in the process, and how bargaining units are formed. It next outlines the topics of bargaining before reviewing dispute resolution processes that are used in teacher labor relations disagreements. The chapter concludes with practical suggestions for unions and school boards to use before, during, and after bargaining.
The sixth chapter focuses on discussions of discrimination. This chapter outlines federal statutes and constitutional provisions that provide teachers with protections against workplace discrimination. It begins with information on those areas specifically enumerated in Title VII of the Civil Rights Act of 1964, continuing with an overview on more recent statutes protecting teachers from other forms of discrimination.
Chapter 7 deals with the important issues of teacher discipline and dismissal, emphasizing the due process rights of teachers. Opening with information on tenure and the privileges it entails before continuing with topics related to progressive discipline and the steps school boards must follow to dismiss teachers for cause, the chapter concludes with a discussion on dismissals that occur due to reductions in force.
Chapter 8, which deals exclusively with curricular and instructional topics, starts by providing information on the authority of school boards to establish and control curricular topics, including those that must be taught, that may not be taught, and that are discretionary. The chapter also speaks to issues such as graduation requirements, testing, grading policies, and student records. It rounds out by reviewing other curriculum-related [Page xiii]topics such as special instructional programs, copyright law, and technology in classrooms.
The final chapter covers the different types of torts and the standard of care that teachers must exercise in order to avoid civil liability. Chapter 9 begins with the definition of a tort and descriptions of the various types of torts. Next, the chapter reviews the intentional torts of assault, battery, false imprisonment, and defamation. It continues with discussions of negligence, the standard of care expected of educators, the elements of negligence, how to avoid negligence, and defenses to negligence. The chapter also covers educational malpractice and civil rights torts.
Appendices to this book, which are designed to familiarize readers with the technical aspects of law, should be particularly beneficial for readers with little background in educational law. As a result, readers with little background in school law may wish to review the first two of these resources before reading the book itself. Other readers may find it helpful to consult these references when questions arise. Resource A provides a brief, but fairly comprehensive, overview of the court systems and how they operate. This resource affords readers a better understanding of the various levels of courts and the significance that should be placed on decisions from each court. Resource B explains where legal documents, such as copies of statutes and court opinions, can be found; it also provides an explanation of legal citations that should be helpful to readers unfamiliar with the structure and format of the legal citations contained in the endnotes of each of the book's chapters. Since the law is constantly evolving, it is difficult for practitioners to maintain their currency in the field. Resource C thus provides references and suggestions for readers who wish to keep up with new developments in education law via a list of websites providing further information.[Page xiv]
We could not have written this book without the encouragement, support, advice, and assistance of many colleagues, former colleagues, friends, and family members. It is impossible to acknowledge all who have influenced us in some way and so contributed to this book, but we would at the very least like to extend our gratitude to those who have had the greatest impact in our professional and personal lives. This group includes all who have contributed to our knowledge and understanding of the subject matter of this book, most notably our many friends and colleagues who are members of the Education Law Association. These professionals have not only consistently shared their knowledge with us but also, more important, provided constructive criticism and constantly challenged our thinking. We also include in this group our graduate students, who, as educational practitioners, have kept us abreast of the problems they face daily in their schools. Sincere appreciation is extended to Jim Hennessy, Joe O'Neill, Peggy O'Neill, and Denise Ready for reading and reacting to the original proposal for this book and reviewing chapters while they were being written. Their comments provided us with much insight into the legal concerns of teachers and helped us to make this book much more user friendly. Many topics were included in this book due to their suggestions.
We are also most fortunate to work with professional educators who understand the importance of our work and provide us with the support and resources to continue our research. The contributions of many colleagues from the Quincy Public Schools and University of Dayton can never be adequately acknowledged.
I (Allan Osborne) especially thank the entire administrative team of the Quincy Public Schools for all of their encouragement and support during my years in that school system. In that respect I want to extend a special thank you to my good friend and former colleague, Dennis Carini, for his unending support and encouragement, along with his unlimited patience when I bounced ideas off him. I am now happily retired, but for 24 years I served as a special education teacher, assistant principal, and [Page xvi]principal of the Snug Harbor Community School. I would like to extend a very sincere and warm thank you to the faculty, parents, and students of that school for many years of rewards and inspiration.
Heartfelt gratitude is also extended to Dr. Timothy Ernst, Melissa Hopp-Woolwine, and the wonderful staff of Charles River Oncology, and to Dr. Edwin Alyea and the medical team at the Dana Farber Cancer Institute, for their exceptional care and treatment during my recent illness. Their care, along with the hope and encouragement they provided, allowed me to continue work on this book.
In all of our recent books I have acknowledged my good friend Carol Shiffer for the inspiration she has given me. In spite of living with a terminal illness for over 20 years, Carol always maintained a positive outlook and zest for life. She became even more of an inspiration when I, myself, was diagnosed with cancer. Sadly, Carol passed away as this book was being written. She will always be my hero and I dedicate this book to her with love.
In the School of Education and Allied Professions at the University of Dayton, I (Charlie Russo) would like to express my thanks to Rev. Joseph D. Massucci, Chair of the Department of Educational Leadership; Dr. Kevin. R. Kelly, Dean; Dr. Dan Raisch, Associate Dean; Dean Lisa Kloppenberg of the University of Dayton School of Law; and Dr. Thomas J. Lasley, Jr., my former Dean, for their ongoing support and friendship. I also extend a special note of thanks to my assistant Ms. Elizabeth Pearn for her valuable assistance in helping to process the manuscript and proofreading its final version as well as to Mrs. Ann Raney of the Curriculum Materials Center for the many times that she has helped me to find information for this book and many other projects. I would also like to thank the late David B. Evans who, even when I was an undergraduate at St. John's University in New York City, taught me a great deal about the skills necessary to succeed in an academic career. In addition, I would like to thank my doctoral mentor, Dr. Zarif Bacilious, again at St. John's in New York City, for helping me to complete my formal education as I prepared for my entry into the Academy.
We would both like to thank our acquisitions editor at Corwin, Arnis Burvikovs, associate editor Desiree Bartlett, production editor Cassandra Seibel, and editorial assistant Kim Greenberg for their support as we conceptualized, wrote, and revised this book. It is a pleasure working with such outstanding professionals and their colleagues at Corwin. They certainly helped to make our jobs easier. We also wish to thank the reviewers who provided helpful comments on an earlier draft of this book. Many of their suggestions have been incorporated into the final product.[Page xvii]
Special thanks are extended to our skilled copyeditor Cate Huisman, who has worked with us on several of our books. Cate not only caught many of our errors, but helped us to clarify portions of the original text to make it much more understandable and readable. Most important, however, Cate showed great patience as we continued to make changes throughout the copyediting process.
On a more personal note, we both extend our appreciation to our late parents, Allan G. and Ruth L. Osborne, and James J. and Helen J. Russo. We can never adequately express our gratitude to our parents for the profound influences that they have had on our lives.
I (Charlie Russo) also extend a special note of thanks and appreciation to my two wonderful children, Emily Rebecca and David Peter, and to David's wife Li Hong. The bright and inquisitive children that my wife Debbie and I had the pleasure of raising have grown to be wonderful young adults who provide us both with a constant source of inspiration and love.
Our wonderful wives, affectionately known as the two Debbies, have been the major influence in our lives and professional careers. Our best friends, they encourage us to write, show great patience as we ramble on endlessly about litigation in education, and understand when we must spend countless hours working on a manuscript. We would not be able to do all that we do if it were not for their constant love and support. Thus, as we do with all of our work, we dedicate this book to them with all of our love.
A. G. O.
C. J. R.[Page xviii]
About the Authors
Resource A: Court Systems and the Authority of Courts[Page 299]Functions and Duties of the Courts
The basic purpose of courts is to interpret the law a process generally involving interpreting statutes and regulations. Even so, when there is no codified law, or if statutes or regulations are unclear, courts apply common law. Common law is also referred to as judge-made law, meaning that courts may interpret the law to adapt to new or changing circumstances. The collective decisions of the courts make up the body of case law or common law. When legal disputes involve the interpretation of legislation, the job of the courts is to determine, as best they can, the intent of the legislative bodies that enacted the statutes. To the extent that judicial pronouncements establish precedent, they have considerable weight in terms of providing guidance on how statutes and regulations are to be applied to everyday situations.Organization of the Federal Court System
The federal court system has three levels: trial courts, intermediate appellate courts, and the Supreme Court. On the lowest level are the trial courts, officially known as the district courts. District courts are the basic triers of fact in legal disputes. The trial courts review evidence and render decisions based on the evidence presented by the parties to disputes. Depending on the factual situation, trial courts may review the records of any prior administrative proceedings, may hear additional evidence, and/or may hear the testimony of witnesses. Each state has at least one federal district court, while larger states, such as California and New York, have as many as four.[Page 300]
Parties unhappy with the decisions of trial courts may appeal to the court of appeals in the federal circuit in which their states are located. For example, a decision issued by a federal trial court in New York would be appealed to the Second Circuit, which, in addition to New York, includes of the states of Connecticut and Vermont. There are 13 federal judicial circuits in the United States. The circuits were created for judicial and administrative convenience so that parties seeking to appeal judgments with which they disagreed would not have to travel too far from home to do so. The table below shows the organization of the federal circuits:
Federal Circuit Jurisdictions Within the Circuit First Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island Second Connecticut, New York, Vermont Third Delaware, New Jersey, Pennsylvania, Virgin Islands Fourth Maryland, North Carolina, Virginia, West Virginia Fifth Louisiana, Mississippi, Texas Sixth Kentucky, Michigan, Ohio, Tennessee Seventh Illinois, Indiana, Wisconsin Eighth Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota Ninth Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington Tenth Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming Eleventh Alabama, Florida, Georgia, South Carolina District of Columbia District of Columbia Federal Special cases such as those involving patent laws and appeals from the Court of International Trade and the Court of Federal Claims
Litigants who are still dissatisfied with the judgments of the circuit courts may appeal to the ultimate court of last resort, the U.S. Supreme Court. Due to the sheer volume of cases appealed, the Supreme Court accepts less than 1% of the approximately 8,000 cases annually in which parties seek further review. Cases typically reach the Court in requests for [Page 301]a writ of certiorari, which literally means “to be informed of.” When the Supreme Court agrees to hear an appeal, it issues a writ of certiorari. At least four of the nine Justices must vote to grant certiorari for a case to be heard. Denying a writ of certiorari has the effect of leaving a lower court's decision unchanged but is of no precedential value, meaning that the lower court's decision remains binding only within that circuit.State Courts
The court systems in each of the 50 states and various territories are arranged in an organizational fashion that is similar to the federal format except that the names of the courts may differ. In most states, there are also three levels of courts: trial courts, intermediate appellate courts, and courts of last resort. Readers are cautioned to pay particular attention to the names of state courts, as they are not consistent from state to state. For example, people generally think of a supreme court as being the highest court. Nevertheless, in New York, the trial court is known as the Supreme Court, the intermediate level is named the Supreme Court Appellate Division, while the state's high court is called the Court of Appeals, typically the name for intermediate appellate courts in most jurisdictions.Court Jurisdictions
When courts deliver their decisions, their opinions are binding only within their jurisdictions. In other words, a verdict of the federal trial court for Ohio is binding only in Ohio. The federal trial court in Kentucky, which is in the same federal circuit, may find a decision of the Ohio court persuasive, but it is not bound by the Ohio court's order. Even so, a ruling of the Sixth Circuit Court of Appeals is binding on all states within its jurisdiction, and lower courts in Kentucky, Ohio, Michigan, and Tennessee must rule consistently. A decision by the Supreme Court of the United States is, of course, enforceable in all 50 states and in American territories.
Readers should keep in mind that a court's jurisdiction can refer to either the types of cases that it can hear or the geographic area over which it has authority. The preceding paragraph referred to jurisdiction by geographic area. At the same time, courts are typically limited by the type of jurisdiction, or ability to hear cases, with which they are empowered. As discussed in a bit more detail in the next paragraph, trial courts typically have jurisdiction over cases that have yet to be tried, while the judicial authority of appellate courts is usually restricted to cases that have already proceeded through at least one level of judicial review.[Page 302]
To summarize, the complex American court systems operate at both the federal and state levels. The most common arrangement of these systems is a three-tiered organization with trial courts, intermediate appellate courts, and courts of last resort. Trial courts, which have general jurisdiction so that there are few limits on the types of cases that they may hear, typically hear the facts behind disputes and apply the law to the circumstances. Trial courts are generally presided over by a single judge or justice.
Intermediate courts, generally known as appellate courts or courts of appeal, hear cases when parties are dissatisfied with the decisions of lower courts. Appellate courts are not triers of fact, but rather, review lower courts' application of the law. In rare cases an appellate court may reject a lower court's interpretation of the facts of a case, if it is convinced that the lower court's interpretation was clearly erroneous. However, appellate court decisions are usually resolved only on points of law. Appellate courts typically consist of a panel of judges. For example, at the federal level, and in many state systems, appeals are heard by a panel of three judges. Finally, legal disputes may be appealed to a court of last resort. At the federal level this is the Supreme Court. The Supreme Court has discretion to review rulings of lower federal courts and state high courts that involve federal constitutional, statutory, or regulatory issues.
Insofar as education is a state function and federal courts exist for federal matters, most disputes involving education are resolved by state courts. Unless there is a substantial federal question, such as a disagreement over a provision in the U.S. Constitution, a federal statute, or a federal regulation, cases must be tried in state courts. If a substantial federal question is involved with a state question, a dispute may be litigated either in a state or federal court. When federal courts examine cases involving both state and federal law, they must follow interpretations of state law made by the state courts within which they sit. Special education disputes provide a good example of cases that frequently have mixed questions of federal and state law. To the extent that special education is governed by state laws as well as federal laws, claims are often brought on the basis of both sets of statutes. Even though final due process hearing decisions in special education disagreements may be appealed to either the federal or state courts, the vast majority of published opinions come from the federal courts.
Resource B: Legal Resources and References[Page 303]Laws and Regulations
Federal statues appear in the United States Code (U.S.C.), the official version, or the United State Code Annotated (U.S.C.A.), an unofficial version published by West Publishing Company. Most education statutes are found in Title 20, and most civil rights statutes are located in Title 42. Agency regulations are published in the Code of Federal Regulations (C.F.R.). Copies of education statutes and regulations can be downloaded via links on the U.S. Department of Education's website. Legal materials also are available online from a variety of sources, most notably WestLaw and LexisNexis. State laws and regulations are commonly available online from the websites of their states. Resource C provides a list of websites on which legal materials can be found.Court Decisions
The written opinions of most courts generally are available in a variety of officially published formats as well as from several unofficial sources. The official versions of U.S. Supreme Court opinions are found in the United States Reports, abbreviated U.S. The same opinions, with additional research aids, are published in the Supreme Court Reporter (S. Ct.) and the Lawyer's Edition, now in its second series (L. Ed. 2d). Opinions issued by the federal circuit courts of appeal are located in the Federal Reporter, currently in its third series (F.3d) while federal district court decisions are published in the Federal Supplement, presently in its second series (F. Supp. 2d). State court cases are published in a variety of publications, most notably West's National Reporter system, which divides the country up into seven [Page 304]regions: Atlantic (A.), North Eastern (N.E.), North Western (N.W.), Pacific (P.), South Eastern (S.E.), South Western (S.W.), and Southern (S). Most education-related cases also are republished in West's Education Law Reporter.
Before being published in hardbound volumes, nearly all decisions are released in what are known as slip opinions; these are published through a variety of loose-leaf services and electronic sources. There also are many commercial services available that each publish decisions in a specialized area.Understanding Legal Citations
As complicated as they may seem to readers who are unfamiliar with them, legal citations are fairly easy to read once one understands the format. The following brief description of how to interpret legal citations should help put the minds of readers at ease. For the most part citations begin with a number followed by an abbreviation and another number. The first number in a citation indicates the volume in which the case, statute, or regulation is located; it is followed by the abbreviation (sometimes including an ordinal number such as 2d or 3d) of the book or series in which the material may be found. The second number designates the page on which a case begins or the section number of a statute or regulation. For references to judicial opinions, the last part of a citation provides the name of the court, for lower court cases, and the year in which the dispute was resolved. For example, the citation for Saunders v. City of New York, 594 F. Supp. 2d 346 (S.D.N.Y. 2008) can be located in volume 594 of the Federal Supplement Second Series beginning on page 346. The case was decided by the District Court for the Southern District of New York in 2008.
In similar fashion, the citation for the No Child Left Behind Act, 20 U.S.C. §§ 6301–7941 (2006) can be found in Title 20 of the United States Code beginning with section 6301 and continuing through section 7941. Official versions of the United States Code have been published every six years since 1925 by the Office of the Law Revision Counsel of the U.S. House of Representatives. Statutes are always cited to the most recent updates to the code, not the year the particular statute was enacted.
The format for legal citations is dictated by The Bluebook: A Uniform System of Citation published jointly by the Columbia Law Review Association, the Harvard Law Review Association, the University of Pennsylvania Law Review, and the Yale Law Journal. The User's Guide to The Bluebook (2006) by Alan L. Dworsky, published by William S. Hein & Co., is an excellent quick resource for legal citations.
Resource C: Basic Legal Research: Maintaining Currency in an Evolving Legal Environment[Page 305]Keeping Abreast of Legal Developments
The best way to deal with legal challenges is to prevent them from occurring. The best way to prevent legal challenges in the school environment is for all to be aware of their legal responsibilities. However, as readers of this book should be well aware, maintaining one's knowledge in an era of rapidly evolving legal principles, where thousands of new court decisions are handed down each year, can be daunting. Reading this book and others like it should provide school personnel with a basic knowledge of the issues and the results of previous litigation. Even so, new cases that can alter the status of the law are decided daily. Teachers and all school employees need to take affirmative steps to stay abreast of new legal developments.
Today numerous sources of information exist about issues and developments in education law. The Education Law Association (ELA), headquartered at the University of Dayton, in Dayton, Ohio, publishes The Yearbook of Education Law, which is called simply “the Yearbook” and includes chapters on all areas of education law, such as employee rights, collective bargaining, school governance, student rights, special education, tort liability, and sports. It also contains a chapter on new legislation. ELA also publishes a monthly newsletter, ELA Notes, and a reporter, School Law Reporter, as well as monographs that provide up-to-date information on school law. In the interests of full disclosure, we as authors of this book would like to point out that we are both past presidents of ELA. In addition, we have both worked on The Yearbook of Education Law: Allan G. Osborne [Page 306]has written the chapter on students with disabilities in the Yearbook since 1990, and Charles J. Russo has been editor of the Yearbook since 1995.
Many association newsletters and professional journals in education frequently contain articles on legal issues, particularly those of interest to the members of the organization publishing the journal or newsletter. Most professional organizations also include sessions at their annual conventions that address legal issues. The websites of these organizations also may contain updated legal information. In addition, the colleges or schools of education in many colleges and universities offer courses on school law that can serve as excellent resources for educators. Workshops on education law may (and should) be part of every school system's professional development program. In providing such ongoing professional development for staff, school officials should consider having the school board's attorneys join in the presentations so that they can provide up-to-date legal perspectives.
Reading the professional literature, attending conference sessions, and participating in local professional development workshops should be sufficient to keep most professionals updated on legal developments in education. It is our hope, however, that reading this book will spur an interest in some to conduct more extensive research on legal issues in education. Those who are interested in more comprehensive information on legal research may wish to consult Research Methods for Studying Legal Issues in Education, edited by Steve Permuth and Ralph Mawdsley and published by the Education Law Association. The websites listed below also are excellent resources for legal materials.Useful Education Law WebsitesLegal Search Engines
This website lists and links to law-related sources on the Internet.
FindLaw is an Internet resource that helps to find any website that is law related.
AllLaw is another resource for locating law-related websites.
This is a website sponsored by Cornell Law School; it provides access to federal and state cases and regulations.[Page 307]U.S. supreme court, Federal courts, and federal government websites
This is the official website of the Supreme Court of the United States.
This website contains decisions of the Supreme Court. It also has free e-mail publication to distribute the syllabi of the Court's rulings within hours after they are handed down.
This website is maintained by the U.S. Library of Congress and has links to the federal court system.
This is the U.S. federal judiciary website.
This website provides searchable access to the United States Code.
This website provides searchable access to the Code of Federal Regulations.
http://www.gpoaccess.gov/fr/index.html This website contains the Federal Register.
This is the website of the Office for Civil Rights.
This is the U.S. House of Representatives website.
This is the U.S. Senate website.
This is the website of the White House.
This is the U.S. Department of Education website.
This website contains the No Child Left Behind Act.[Page 308]
Glossary of Terms, Acronyms, and Abbreviations[Page 309]
A.2d: Abbreviation for the Atlantic Reporter, now in its second series, one of the regional reporters published by the West Group. It contains state court decisions from Connecticut; Delaware; Washington, D.C.; Maine; Maryland; New Hampshire; New Jersey; Pennsylvania; Rhode Island; and Vermont.
ADA: Acronym for the Americans with Disabilities Act, a civil rights statute prohibiting discrimination against individuals with disabilities in employment and programs.
ADEA: Acronym for the Age Discrimination in Employment Act, a federal law that makes it illegal for employers to discriminate against individuals 40 years of age and older.
Affirm: To uphold the decision of a lower court in an appeal.
Appeal: A resort to a higher court seeking review of a judicial action.
Cal. Rptr. 3d: Abbreviation for the California Reporter, now in its third series, a compilation of state court decisions from California.
Cert. Abbreviation for certiorari, a writ issued by an appeals court indicating its willingness to review a lower court's decision.
C.F.R.: Abbreviation for the Code of Federal Regulations; the set of regulations promulgated by various federal agencies to implement laws passed by Congress.
Civil rights: Personal rights guaranteed by the U.S. Constitution or a state constitution or by a federal or state statute.[Page 310]
Common law: The body of law that has developed as a result of court decisions, customs, and precedents. Common law is also known as case law or judge-made law.
Defendant: The party against whom a lawsuit is brought.
ED: Official acronym for the U.S. Department of Education. The Department of Education is often abbreviated as DOE; however, ED is the official acronym for the department to avoid confusion with the Department of Energy, which uses the official acronym of DOE.
EEOA: Acronym for the Equal Educational Opportunities Act of 1974, a federal statute prohibiting discrimination and requiring schools to take action to overcome barriers to students' equal participation.
ESEA: Acronym for the Elementary and Secondary Education Act of 1965, a federal statute providing funding for elementary and secondary schools for professional development, instructional materials, educational programs such as Title I, and parental involvement. NCLB is the current reauthorization of the ESEA.
F.3d: Abbreviation for the Federal Reporter, now in its third series. The Federal Reporter contains decisions of the federal circuit courts of appeal. The second series was abbreviated as F.2d and the first as F.
F. App'x: Abbreviation for the Federal Appendix, a West Group unofficial publication that includes decisions of federal circuit courts of appeal that were not released for official publication.
FERPA: Acronym for the Family Educational Rights and Privacy Act, a federal law protecting the privacy of school records.
F. Supp. 2d: The abbreviation for the Federal Supplement, now in its second series. The Federal Supplement contains published decisions of federal trial, or district, courts. The first series was abbreviated as F. Supp.
GINA: Acronym for the Genetic Information Nondiscrimination Act, a federal law that prohibits discrimination in health coverage and employment based on genetic information.
IDEA: Acronym for the Individuals with Disabilities Education Act, the federal special education law.
Indemnify: To compensate a party for damage, loss, or injury
Injunction: An equitable remedy, or court order, forbidding a party from taking a contemplated action, restraining a party from continuing an action, or requiring a party to take some action.[Page 311]
In re (literally, “in the matter of”): Indicates that there are no adversarial parties in a judicial proceeding, this refers to the fact that a court is considering only a res (“thing”), not a person.
LEA: Acronym for local education agency. The term is roughly synonymous with school district.
Litigant: A party to a lawsuit, either the plaintiff or the defendant.
NCLB: Acronym for the No Child Left Behind Act, the current reauthorization of the ESEA, the NCLB is aimed at improving the performance of public schools by establishing high standards and accountability.
NDEA: Acronym for the National Defense Education Act of 1958; a federal law providing aid to education at all levels, both public and private.
N.E.2d: Abbreviation for the North Eastern Reporter, now in its second series, one of the regional reporters published by the West Group. It contains state court decisions from Illinois, Indiana, Massachusetts, New York, and, Ohio.
N.Y.S.2d: Abbreviation for the New York Supplement, now in its second series, a compilation of decisions of state courts from New York.
N.W.2d: Abbreviation for the North Western Reporter, now in its second series, one of the regional reporters published by the West Group. It contains state court decisions from Iowa, Michigan, Minnesota, Nebraska, North Dakota, South Dakota, and Wisconsin.
OCR: Acronym for the Office for Civil Rights, a federal agency within the Department of Education that deals with issues of discrimination.
Opinion: A court's written explanation of its judgment.
P.3d: Abbreviation for the Pacific Reporter, now in its third series, one of the regional reporters published by the West Group. It contains state court decisions from Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nevada, New Mexico, Oklahoma, Oregon, Utah, Washington, and Wyoming. The second series was abbreviated as P. 2d.
PDA: Acronym for the Pregnancy Discrimination Act, a federal statute prohibiting discrimination on the basis of pregnancy, childbirth, or a medical condition caused by pregnancy or childbirth.
P.L.: Abbreviation for Public Law. When bills are passed by Congress, they are each assigned a number indicating the session of Congress and the order in which the bill was enacted. For example, P.L. 94–142 was the 142nd piece of legislation passed by the 94th session of Congress.[Page 312]
Plaintiff: The party filing a lawsuit.
Remand: To return a case to a lower court for further consideration, often with specific instructions.
Reverse: To revoke a lower court's decision in an appeal.
School board: The governing body of a local education agency or school district. School boards also are known by various other names, such as school committee, board of education, or board of trustees.
S. Ct.: Abbreviation for the Supreme Court Reporter, an unofficial source of Supreme Court opinions published by the West Group.
S.E.2d: Abbreviation for the South Eastern Reporter, now in its second series, one of the regional reporters published by the West Group. It contains state court decisions from Georgia, North Carolina, South Carolina, Virginia, and West Virginia.
SEA: Acronym for state education agency. It is often used in citations to designate state administrative hearing decisions.
Section 504: A section of the federal Rehabilitation Act prohibiting a recipient of federal financial assistance from discriminating against an individual on the basis of a disability.
So. 2d: Abbreviation for the Southern Reporter, now in its second series, one of the regional reporters published by the West Group. It contains state court decisions from Alabama, Florida, Louisiana, and Mississippi.
Sovereign immunity: The maxim that litigants may not sue the government without its consent. The theory of governmental immunity originated in common law under the doctrine that “the king can do no wrong.” Courts have interpreted the Eleventh Amendment to provide immunity to federal and state governments and their agencies, unless that immunity has specifically been abrogated by statute.
S.W.3d: Abbreviation for the South Western Reporter, now in its third series, one of the regional reporters published by the West Group. It contains state court decisions from Arkansas, Kentucky, Missouri, Tennessee, and Texas. The second series was abbreviated as S.W.2d.
Title VI of the Civil Rights Act of 1964: A statute forbidding discrimination based on race, color, or national origin, in programs receiving federal financial assistance.[Page 313]
Title VII of the Civil Rights Act of 1964: A statue prohibiting employment discrimination based on race, color, religion, sex, or national origin.
Tort: A civil wrong or injury for which a court will provide a remedy, generally in the form of monetary damages.
U.S.: As used in case citations, the abbreviation for the United States Reports, the official reporter of Supreme Court decisions.
U.S.C.: Abbreviation for the United States Code; the official compilation of statutes enacted by Congress. An unofficial version published by the West Group, known as the United States Code Annotated, is abbreviated as U.S.C.A.
Vacate: To set aside a lower court's decision in an appeal.
WL: Abbreviation for WestLaw, an online legal reporting system.[Page 314]