School Law

Debates

Edited by: Charles J. Russo & Allan G. Osborne Jr.

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    Editors-in-Chief

    Charles J. Russo

    University of Dayton

    Allan G. Osborne, Jr.

    Principal (Retired), Snug Harbor Community School, Quincy, Massachusetts

    Volume Editors

    Allan G. Osborne, Jr.

    Principal (Retired), Snug Harbor Community School, Quincy, Massachusetts

    Charles J. Russo

    University of Dayton

    Gerald M. Cattaro

    Fordham University

    Advisory Board

    Francine DeFranco

    Homer Babbidge Library, University of Connecticut

    Ralph D. Mawdsley

    Cleveland State University

    Martha M. McCarthy

    Loyola Marymount University and Indiana University

    Mark E. Shelton

    Monroe C. Gutman Education Library, Harvard University

    Copyright

    View Copyright Page

    About the Editors-in-Chief

    Charles J. Russo, JD, EdD, is the Joseph Panzer Chair in Education in the School of Education and Allied Professions and adjunct professor in the School of Law at the University of Dayton. He was the 1998–1999 president of the Education Law Association and 2002 recipient of its McGhehey (Achievement) Award. He has authored or coauthored more than 200 articles in peer-reviewed journals; has authored, coauthored, edited, or coedited 40 books; and has in excess of 800 publications. Russo also speaks extensively on issues in education law in the United States and abroad.

    Along with having spoken in 33 states and 25 nations on 6 continents, Russo has taught summer courses in England, Spain, and Thailand; he also has served as a visiting professor at Queensland University of Technology in Brisbane and the University of Newcastle, Australia; the University of Sarajevo, Bosnia and Herzegovina; South East European University, Macedonia; the Potchefstroom Campus of North-West University in Potchefstroom, South Africa; the University of Malaya in Kuala Lumpur, Malaysia; and the University of São Paulo, Brazil. He regularly serves as a visiting professor at the Potchefstroom Campus of North-West University.

    Before joining the faculty at the University of Dayton as professor and chair of the Department of Educational Administration in July 1996, Russo taught at the University of Kentucky in Lexington from August 1992 to July 1996 and at Fordham University in his native New York City from September 1989 to July 1992. He taught high school for 8½ years before and after graduation from law school. He received a BA (classical civilization) in 1972, a JD in 1983, and an EdD (educational administration and supervision) in 1989 from St. John's University in New York City. He also received a master of divinity degree from the Seminary of the Immaculate Conception in Huntington, New York, in 1978, as well as a PhD Honoris Causa from the Potchefstroom Campus of North-West University, South Africa, in May 2004 for his contributions to the field of education law.

    Russo and his wife, a preschool teacher who provides invaluable assistance proofreading and editing, travel regularly both nationally and internationally to Russo's many speaking and teaching engagements.

    Allan G. Osborne, Jr. is the retired principal of the Snug Harbor Community School in Quincy, Massachusetts, a nationally recognized Blue Ribbon School of Excellence. During his 34 years in public education, he served as a special education teacher, a director of special education, an assistant principal, and a principal. He also served as an adjunct professor of special education and education law at several colleges, including Bridgewater State University and American International University.

    Osborne earned an EdD in educational leadership from Boston College and an MEd in special education from Fitchburg State College (now Fitchburg State University) in Massachusetts. He received a BA in psychology from the University of Massachusetts.

    Osborne has authored or coauthored numerous peer-reviewed journal articles, book chapters, monographs, and textbooks on legal issues in education, along with textbooks on other aspects of education. Although he writes and presents in several areas of educational law, he specializes in legal and policy issues in special education. He is the coauthor, with Charles J. Russo, of five texts published by Corwin, a SAGE company.

    A past president of the Education Law Association (ELA), Osborne has been an attendee and presenter at most ELA conferences since 1991. He has also written a chapter now titled “Students With Disabilities” for the Yearbook of Education Law, published by ELA, since 1990. He is on the editorial advisory committee of West's Education Law Reporter and is coeditor of the “Education Law Into Practice” section of that journal, which is sponsored by ELA. He is also on the editorial boards of several other education journals.

    In recognition of his contributions to the field of education law, Osborne was presented with the McGhehey Award by ELA in 2008, the highest award given by the organization. He is also the recipient of the City of Quincy Human Rights Award, the Financial Executives Institute of Massachusetts Principals Award, the Junior Achievement of Massachusetts Principals Award, and several community service awards.

    Osborne spends his time in retirement writing, editing, and working on his hobbies: genealogy and photography. He and his wife Debbie, a retired elementary school teacher, enjoy gardening, traveling, attending theater and musical performances, and volunteering at the Dana Farber Cancer Institute in Boston.

    About the Volume Editor

    Charles J. Russo, JD, EdD, is the Joseph Panzer Chair in Education in the School of Education and Allied Professions and adjunct professor in the School of Law at the University of Dayton. He has authored or coauthored more than 200 articles in peer-reviewed journals; authored, coauthored, edited, or coedited 40 books; and has more than 800 publications.

    Before joining the faculty at the University of Dayton as professor and chair of the Department of Educational Administration in July 1996, Russo taught at the University of Kentucky in Lexington and at Fordham University in New York City. He earned a BA degree in classical civilization in 1972, a JD degree in 1983, and an EdD degree in educational administration and supervision in 1989, all from St. John's University in New York City. He also earned a master of divinity degree from the Seminary of the Immaculate Conception in Huntington, New York, in 1978.

    About the Contributors

    Robert C. Cloud is a professor of educational administration and higher education at Baylor University. Cloud holds four academic degrees and has 43 years of experience in higher education at all administrative and instructional levels. His current research interests include education law and policy, administration, leadership, governance, and current issues in education.

    Amanda Harmon Cooley is an assistant professor of law at South Texas College of Law. She earned her JD and BA from the University of North Carolina at Chapel Hill.

    Bruce S. Cooper is a professor of school policy and leadership at Fordham University's Graduate School of Education. He is a noted scholar on private and religious education and is editor of the Private School Monitor. His interests include Catholic and Jewish schools, which he has analyzed now for 40 years. One of his latest books is the coedited Handbook on Education Politics and Policy.

    Luke M. Cornelius is an associate professor of educational leadership at the University of North Florida. He teaches and researches in the areas of education law, school finance, educational policy and politics, and sports law.

    Margie W. Crowe spent 30 years teaching general and special education in public and private schools before joining the special education faculty at the University of Southern Mississippi. Her interests include assistive technology, differentiating instruction, and curriculum design.

    Todd A. DeMitchell is a professor in and chair of the Department of Education, and the Lamberton Professor in the Justice Studies Program at the University of New Hampshire. Most recently, he was named Distinguished Professor. His research focuses on the legal mechanisms that affect schools and colleges. He has authored or coauthored 5 books and more than 145 publications.

    Marilyn Denison is the executive director of elementary education for Spring Independent School District, Houston, Texas. She has more than 17 years’ experience in public education. She earned her bachelor's degree from the University of New Mexico, two master's degrees from East Central University, and a doctorate from Sam Houston State University.

    Stacey L. Edmonson is a professor in and the chair of the Department of Educational Leadership and Counseling at Sam Houston State University in Huntsville, Texas. She has previously served Texas public schools as a central office administrator, principal, and teacher. Her research interests include educator burnout, legal issues in education, and ethics.

    Allison S. Fetter-Harrott is an assistant professor of political science at Franklin College in Franklin, Indiana. Her research interests include public school anti-harassment measures, free speech, and the interplay between public schools and the First Amendment's religion clauses.

    Richard Fossey is a professor and Mike Moses Endowed Chair in Educational Leadership at the University of North Texas. He received his JD from the University of Texas School of Law and his EdD from Harvard University. He is editor of the Journal of Cases in Educational Leadership and Catholic Southwest.

    Michelle Gough McKeown is the assistant director of legal affairs at the Indiana Department of Education. She is currently at the dissertation stage of her graduate coursework in education policy and leadership at Indiana University School of Education. She earned her JD from Indiana University-Bloomington Maurer School of Law in 2006 and her BA in English literature from DePauw University in 2003. She has practiced education law at the law firm of Deatherage, Myers & Lackey in Hopkinsville, Kentucky.

    Michael J. Jernigan is a mathematics and physics teacher, Miami Valley Career Technology Center, Clayton, Ohio. He received his PhD in educational leadership from the University of Dayton. His research interests included collective bargaining; school law; teacher preparation; and science, technology, engineering, and math (STEM).

    Mark Littleton is a professor of educational leadership and policy studies at Tarleton State University. He serves as coordinator of the educational leadership doctoral program and routinely writes on the topic of sexual harassment in schools.

    James L. Mawdsley received his BA from Yale University, an MA in English from Kent State University, and a JD from Cleveland-Marshall School of Law. He currently is an English instructor at Stark State College of Technology. A member of the Education Law Association and the Australia New Zealand Education Law Association, he has authored or coauthored numerous publications, including the “Employees” chapter of the Yearbook of Education Law.

    Ralph D. Mawdsley holds a JD from the University of Illinois and a PhD from the University of Minnesota. He has authored more than 500 publications on the subject of education law. Mawdsley was president of the Education Law Association in 2001 and was awarded that organization's Marion A. McGhehey Award in 2004. He has received two Fulbright Awards, one to South Africa and one to Australia.

    Timothy E. Morse is an associate professor at the University of Southern Mississippi Gulf Coast, where he directs the Mississippi Department of Education's Autism Project. In addition to having taught undergraduate and graduate special education courses at the university, he has worked as a public school special education administrator and teacher.

    Emily Richardson is a PhD candidate in education policy at Indiana University-Bloomington School of Education. She received her JD from Indiana University Maurer School of Law.

    Robert J. Safransky is an adjunct professor of school law and American government, Nova Southeastern University. He received a BA from St. Francis College, an MA from Stetson University, and a PhD from Florida State University. He has worked as a high school teacher, junior high school and adult vocational school principal, and a central office administrator.

    Ralph Sharp is the director of School Administration Programs at East Central University in Ada, Oklahoma, where he has taught educational administration courses for nearly 30 years. He has authored several dozen articles and chapters, generally dealing with academic freedom and employment discrimination, in books and peer-reviewed journals.

    Clayton H. Slaughter is chief financial officer for Greencastle Community Schools in Greencastle, Indiana, and an attorney-at-law.

    Jeffrey C. Sun is an associate professor of educational leadership and affiliate professor of law at the University of North Dakota. He holds a JD from the Moritz College of Law at the Ohio State University and a PhD from Columbia University. Sun teaches and writes about education law.

    Introduction

    As reflected by the wide array of debates on the controversial legal topics addressed in this book, as well as by related entries sprinkled throughout this series of volumes, school law, often referred to as education law, is a dynamic discipline that brings to mind the observation of the Greek philosopher Heracleitus, “One cannot step into the same river twice.” Heracleitus's comment highlights that school law, like the ever-flowing waters of the river, is constantly evolving to meet the needs of today's schools.

    Evidence of the evolving nature of school law can be seen in the debates contained in this book, which range from whether there should be limits on the free speech expressive rights of students and teachers, particularly given the emergence of social media on the Internet, to whether students and teachers should be subjected to drug testing. Essays also debate such emerging issues as the limits of how copyrighted materials are used in schools, the educational rights of students who are homeless, and whether parents should be able to sue for educational malpractice if their children do not receive an education.

    As readers examine issues in school law, perhaps for the first time, it is worth keeping in mind that the debates in this volume typically rely on systematic inquiry in the form of historical-legal research. This approach differs from the qualitative and quantitative research methodologies that are typically used in the social sciences, including education. School law involves the interpretation and explanation of legislative, executive, and judicial actions and an examination of the impact of legal issues on educators, students, and others in K-12 school settings.

    In perusing these chapters, readers who are unfamiliar with the way in which the law and legal research operate may be surprised that in debates on topics such as student drug testing and the free speech rights of teachers, among others, researchers often rely on the same cases but interpret them differently and thus reach different conclusions. Given that cases, statutes, and other sources of law are subject to divergent interpretations, readers need to keep in mind that school law is an applied, rather than purely theoretical, discipline that addresses real-life concerns in ways that tend to be reactive rather than proactive. In other words, school law, as part of the U.S. legal system, usually develops rules only after real cases or controversies have been litigated or legislative or executive bodies have responded to needs that had yet to be addressed or resolved. In fact, Brown v. Board of Education (1954) is a typical example of how the law can be seen as reactive, insofar as Brown would not have been litigated when it was if public school officials in Topeka had met the needs of their African American students.

    As readers grapple with the issues in this volume, the goal of these debates is to assist readers in thinking creatively about controversial issues in education and in developing proactive responses that can offer solutions before difficulties arise. Adopting a proactive approach is consistent with the notion of preventative law wherein knowledgeable educators can identify potential problems in advance by examining differing perspectives on issues as educators work to ensure these issues do not develop into crises.

    In reading these debates, students should keep in mind that legal disputes may begin with a single issue but can have far-reaching implications in ways that the original parties never anticipated, exemplifying the principle of unintended consequences in action. In Brown, for example, the most important education case in the history of the United States, the Supreme Court invalidated racial segregation in U.S. public schools. Yet, it is highly debatable whether the parties to Brown could have anticipated, or foreseen, how it would lead to an era that ushered equal educational opportunities in the United States while transforming U.S. society in unimaginable ways, from schooling to housing to the job market. At the same time, although it is a topic that is admittedly beyond the scope of this volume, it is worth noting that Brown has served as a beacon of hope for equal educational opportunities that can lead to better lives for millions throughout the world (Russo, Beckmann, & Jansen, 2005). The chapters in this volume, like the others in the series, begin with head note essays before turning to point-counterpoint debates. Like the other volumes in this series, this book uses a debate format that presents point and counterpoint essays on each topic, in the hope of spurring readers to develop creative solutions for new and evolving issues in the world of education.

    Applied School Law

    Among the most significant legal advances that Brown spawned in helping ensure equal educational opportunities was the enactment of two federal statutes, both of which are subjects of debates in this volume. These two laws, Title IX of the Educational Amendments of 1972 and the Individuals with Disabilities Education Act (IDEA), initially codified as the Education for All Handicapped Children Act in 1975, have profoundly affected the lives of milions of Americans, providing them with opportunities that most could not have imagined a mere 40 years ago.

    Title IX was designed to create gender equity in intercollegiate sports but later served as a tool in efforts to eliminate sexual discrimination and harassment generally, the subject of one of the debates in this volume. In the debate in Chapter 9, the authors reach divergent perspectives even though they rely on essentially the same cases from the Supreme Court in addressing whether the tests that the Justices created are adequate to the serious task of eliminating sexual harassment in schools, whether the students were subjected to harassment by teachers (Franklin v. Gwinnett County Public Schools, 1992; Gebser v. Lago Vista Independent School District, 1998) or by peers (Davis v. Monroe County Board of Education, 1999).

    The author of the point essay maintains that the tests that the Supreme Court enunciated work effectively because they provide clear guidance that balances the need to protect boards from unnecessary liability and students from harassment by teachers or peers when they are in school settings. The counterpoint essay responds that the tests leave something to be desired, arguing that given the abuses that technology has engendered via social media, for instance, the Court needs to revamp the tests to meet the evolving needs of the current day.

    At the same time, the IDEA, arguably the most effective of all federal educational statutes insofar as it has largely achieved the goals that it was designed to accomplish by providing educational placements for students with disabilities, presents unique challenges for school officials. Given the impact that the IDEA has had on school systems, two debates focus on issues related to students with disabilities.

    The first of the two debates involving the IDEA focuses on one of the thornier issues confronting educators—whether its disciplinary standards are fair to all students. The point essay in Chapter 6 asserts that rather than creating different disciplinary standards for students with disabilities, the law affords students with disabilities additional procedural rights before they can be subjected to serious disciplinary sanctions that are related to their disabilities. The essay explains that these protections, which are needed because of the history of discriminatory treatment toward children with disabilities, strike a fair balance between the need for school officials to maintain safe schools and the rights of these students to a free appropriate public education (FAPE). The counterpoint essay argues that insofar as the IDEA does not allow school officials to discipline students with disabilities in the same way as their peers who are in regular classes, this teaches students to disrespect authority. This essay concludes that students with special educational needs should be treated in the same way as their peers and that they should be responsible for their own behavior so that they can benefit from their rights to FAPEs as delineated in the IDEA.

    The second debate goes to the heart of the IDEA in its goal of providing a FAPE in the least restrictive environment (LRE) for students with disabilities, which has transformed the way U.S. public schools operate. The point essay in Chapter 7 acknowledges that school officials need to use the IDEA continuum of placements, reiterating that the appropriate use of pullout programs is supported by both the IDEA and case law. This essay makes the case that school officials often meet the IDEA's requirement of providing a FAPE in the LRE even when students are placed in pullout programs. The counterpoint essay responds that educators should do all that they can to serve students with disabilities in inclusive settings. Even though the author concedes that there may be reasons for occasionally removing students with disabilities from inclusive placements, she contends that they should do so only when it is in the children's best interests because pullout settings are usually not the most effective placements for many of these children.

    The Nature of School Law

    Like the authors of debates in this volume, readers need to look to the past, present, and future in making sense of the evolving nature of school law. By placing legal issues in perspective, adopting this approach can help inform students and educators about the meaning and status of the law and provide them with tools to raise questions for issues that have yet to emerge.

    Rooted in the historical nature of the law and its reliance on precedent, school law calls on readers to look to the past for authority to govern the outcome of the debates at issue. The law adopts this approach because the Anglo-American legal system is grounded in the principle of precedent, the notion that an authoritative ruling of the highest court in a given jurisdiction is binding on lower courts within its purview. In other words, a ruling of the U.S. Supreme Court is binding on all courts on the same issue, but a judgment of a state high court is controlling only within the boundaries of its home state.

    Given the more or less reactive nature of law, those who use the legal system to address current concerns look to see how past decisions have dealt with the same issue. If cases support their points of view, then they can argue that precedent should be followed. However, if precedent is contrary to their positions, then they can seek to distinguish their situations and reach different outcomes in attempting to demonstrate that precedent cases are sufficiently different and inapplicable to the facts at hand, particularly when developing policies for new and evolving issues such as student free speech on the Internet and the impact of social media in the world of education.

    Along with the issues that this introductory essay has already highlighted, the remainder of this volume examines controversial topics relating to a variety of other issues that have arisen in school law. The essays in the rest of this book, then, present an array of controversial topics under the broad headings of student rights, faculty rights, and institutional issues.

    Student Rights
    Policies on School Uniforms

    Amid considerable concern for enhancing student safety and learning outcomes, debate has emerged regarding a practice that has long been used in nonpublic schools but is relatively new to public education, namely requiring students to wear uniforms, even if doing so limits their purported First Amendment right to free expression. The point essay in Chapter 3 posits that officials in public schools should have the authority to require students to wear school uniforms. This essay contends that to the extent that educators carefully craft nondiscriminatory policies to achieve such important interests as school safety and improving learning in a way that does not suppress student expression, then they should be free to operate their schools as they see fit. Conversely, the counterpoint essay responds that educational leaders should not have the power to require public school students to comply with school uniform policies because they are not as effective as their supporters claim. This essay argues that because little data support the arguments of those who support uniforms for students, uniform policies serve as little more than “quick fixes” that fail to offer long-term chances for success in improving schooling.

    Student Drug Testing

    Insofar as schools have not avoided the scourge of drug use, disputes have arisen regarding the extent to which educational officials can require all students, not just those involved in interscholastic athletics, to submit to drug testing. As reflected in the debate in Chapter 4, the two authors rely on largely the same cases in addressing whether school officials have the authority, under the Fourth Amendment in the U.S. Constitution and comparable language in state constitutions, to subject students to random drug testing.

    According to the point essay, because educators have special custodial duties for students, they should be free to use random drug testing to help ensure safe and orderly learning environments. In seeking to protect the majority in schools who may be at risk because of the few who use drugs, this essays stands for the proposition that officials should be free to subject students to random drug testing to help keep schools safe. In arguing that random drug testing is a bad idea, the counterpoint essay questions the point essay's reliance on Supreme Court rulings on the Fourth Amendment. At the same time, the counterpoint essay expresses serious reservations about the costs of testing, both financial and nonfinancial and raises concerns about ways in which officials can use information on students who tested positive for drug use, arguing that educators should not have such potentially invasive power.

    Homeless Students

    The debates in Chapter 8 ask whether current state and federal legislation, most notably the federal McKinney-Vento Homeless Assistance Act, adequately meets the needs of the approximately 800,000 students in the United States who are homeless. The point essay takes the position that the McKinney Act has been effective because it affords school boards flexibility in deciding how to provide services for children who are homeless. The essay thus raises the concern that insofar as its implementation is already expensive, having to offer additional protections could take funding away from other necessary programs. In response, the counterpoint essay posits that although the McKinney Act provides a good start, it has not done enough to protect the interests of homeless children. This essay argues that given two major challenges with the law—namely, that it has not been implemented as intended and that there are few reliable mechanisms to make sure that schools are following its mandates—too many homeless children are not having their needs met, and further efforts are needed.

    Free Speech

    As reflected in the debate in Chapter 11, one of the hallmarks of U.S. schools is the extent to which the law protects the free speech rights of students. The essays in this chapter rely essentially on the same Supreme Court cases, starting with the seminal Tinker v. Des Moines Independent Community School District (1969), in reaching different results on whether officials in public schools should have the authority to limit the First Amendment free speech rights of students.

    The point essay questions the wisdom of cases that have given school officials the authority to regulate student speech only when it occurs in schools and causes, or is likely to cause, material and substantial disruptions. This essay maintains that more recent forms of student speech, as exemplified in emerging electronic communications, reveal that the Tinker substantial disruption standard should be expanded to include speech and expression that may have originated outside of schools but that affect activities within schools. The counterpoint essay retorts that the courts have too often permitted educational officials to limit student speech unfairly. This essay asserts that the judiciary needs to be more vigilant in protecting the free speech rights of students because only in doing so can school officials avoid interfering with parental rights and focus on implementing the educational missions of their schools as they inculcate societal values.

    Teacher Rights

    Six sets of essays address key legal issues concerning the rights of teachers in K–12 public schools.

    Academic Freedom and Free Speech

    As reflected in a pair of debates, two related issues that are of great interest to teachers are the interrelated topics of academic freedom and free speech. More specifically, even though the Supreme Court's analysis in Tinker pointed out, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school-house gate” (1969, p. 506), educators in public schools certainly do not have unfettered rights to teach, or speak, in their classrooms as freely as they might wish.

    Long a staple of higher education, debate has ensued regarding whether K–12 teachers should have academic freedom that would grant them greater control over the content of school curricula. The point essay in Chapter 1 takes the position that insofar as teachers are the most qualified individuals in their districts to design and implement curricula, they should have the freedom to teach as they see fit. Further, the essay rejects the practice of allowing unqualified lay people such as school board members and politicians to make curricular decisions, preferring that they be made by professionally prepared teachers who can act autonomously in designing curricula.

    Conversely, the counterpoint essay answers that because states and local boards are responsible for schools, they alone should have the authority to decide what children learn. The author buttresses her position by adding that insofar as local school boards and educational leaders are responsible for raising student achievement while closing the educational gap between children, they, working with state officials, and occasionally the federal government, must preserve their control over schools so that they, rather than teachers, can ensure standardized quality of curricular content for all.

    Chapter 12 addresses issues related to the important right of free speech. In a series of cases beginning the year before it rendered its judgment in Tinker,the Supreme Court recognized that teachers have the right to speak out on matters of public concern absent compelling state interests to limit what they have to say (Pickering v. Board of Education of Township High School District 205, 1968). The essays in this chapter use essentially the same major cases in reaching different outcomes.

    The author of the point essay concedes that although teachers should be free to speak out on school-related issues of public concern without fear of dismissal, there are good reasons why their rights in this regard have long been limited. The essay concludes that because some speech can damage working relationships in schools and otherwise create distractions, the courts have wisely balanced the rights of teachers and their boards by limiting their comments to matters of public concern.

    The author of the counterpoint essay replies that there should be no limits on the free speech rights of teachers other than those reasonably necessary to advance the educational missions of schools. If anything, although recognizing that the judiciary has acknowledged that schools have unique organizational cultures, the essay posits that the courts have gone too far in restricting the speech rights of teachers and that, as professionals, they should be free to practice their profession as they deem appropriate.

    Drug Testing

    Just as concerns have arisen over the extent to which students use drugs in schools, so, too, have boards had similar worries about their teaching staffs. In light of more than a quarter of a century of litigation on this important topic, the debates in Chapter 5 address whether teachers should be subject to suspicion less drug testing.

    The author of the point essay who favors testing of students also supports the authority of boards to test their teachers. Observing that teachers have a unique role in U.S. society in helping shape the minds of young people in what amounts to a sacred trust, this essay puts forth the opinion that educators will be unable to perform their jobs adequately if there are concerns that they used drugs. The counterpoint author answers that because random drug testing of teachers intrudes on their reasonable expectations of privacy, it is not justified by any special need. Relying on recent litigation, the author of this essay is convinced that insofar as teachers are not in so-called “safety sensitive” positions, in which their actions could place the well-being of students at immediate risk of harm, they should not be subject to potentially intrusive random drug testing.

    Charges of Sexual Misconduct

    An unfortunate reality in schools is that occasionally teachers must be disciplined or dismissed for misbehavior that limits or eradicates their ability to fulfill their jobs effectively. As reflected in this debate, questions have arisen over whether charges of sexual misconduct involving teachers should be public records and whether current laws and procedures dealing with teacher dismissal provide educators with adequate due process protections.

    It goes without saying that teachers who engage in sexual misconduct, especially with students, should be removed from their positions. However, disagreements have arisen over whether the records of teachers who face such charges should be made public immediately, especially in situations where teachers are later vindicated or the charges against them are proven to be false. Against this backdrop, the essays in Chapter 10 address the sensitive topic of whether charges of sexual misconduct involving educators should be treated as public records given the need to balance the privacy rights of teachers with the right of parents and students to know when educators are accused of such misdeeds.

    Although conceding that educators can be falsely accused of misconduct, the point essay supports making charges of sexual misconduct against teachers public based on the fact that they have avenues of redress available. Although recommending that investigations into teacher sexual misconduct be handled at the state rather than the local level, the essay argues that if these records are not made public, then confidence in education is likely to erode.

    The author of the counterpoint essay opposes making such information public because it risks doing irreparable harm to the reputations of teachers who have been unjustly accused because mere mention of sexual misdeeds can destroy their careers. The counterpoint essay disagrees with the point essay in declaring that there is no evidence that state level investigations would be any more effective than those conducted at the local level and that available remedies do little to restore the reputations of those who have been falsely accused.

    Due Process in Teacher Dismissal

    Moving away from the narrower confines of actions concerning teacher sexual misconduct, another debate addresses whether teachers who are subject to dismissal receive adequate due process protections. According to the point essay in Chapter 14, poorly written tenure statutes have limited the rights of teachers who are subject to dismissal. The author believes that insofar as the laws were designed to protect teachers with good records, they did little to address the status of teachers who broke the law or are not tenured. The essay concludes that it is not so much that teachers need greater rights as that laws should be more precisely written to protect educators from wrongful nonrenewal or termination of their contracts.

    The author of the counterpoint responds that teacher employment statutes combined with collective bargaining agreements adequately protect the rights of teachers faced with dismissal. Rather than make it easier for school boards to dismiss teachers who are ineffective, the extensive due process procedures that have emerged have made it difficult to dismiss even those who are not performing adequately. The essay posits that these protections harm education as a whole because the expense devoted to ridding the system of the relatively few undeserving educators diverts resources and attention from their more deserving colleagues who are actually meeting the needs of students.

    Unions and Collective Bargaining

    At a time when there is a great deal of controversy nationally over the status and continuing viability of teacher unions, the debate in Chapter 15 examines whether teacher unions and collective bargaining improve the terms and conditions of teacher employment in U.S. public education. The point essay takes the decidedly pro-union position that teacher unions provide economic (by providing members with chances to make decent livings), political (by exercising their rights in ways that affect all levels of government), social (by allowing them to remain in contact with colleagues), and organizational (by affording them opportunities to speak out on issues of concern) benefits for their members and to education as a whole.

    The counterpoint essay disagrees, noting that by focusing on salaries and benefits for the members, unions do not necessarily advance teaching and learning or improve the quality of teaching. This essay stands for the proposition that it is incumbent on teachers to recognize their ability to represent themselves in a professional manner when negotiating salary and benefits. Instead, the essay suggests that teachers have no need to rely on unions to act as their bargaining representatives because unions have done little to improve their terms and conditions of employment.

    Institutional Issues

    Two debates in this volume do not fit neatly under either of the earlier headings; they are presented here because the issues that they consider are more likely to affect school systems as a whole rather than individual teachers or students.

    Copyright

    The evolving nature of technology as it interacts with intellectual property and the growth in online teaching have contributed to a growing controversy regarding the appropriate limits on the use of copyrighted material by educators.

    The point essay in Chapter 2 maintains that federal copyright law cannot be interpreted in a way that violates the intellectual property interests of authors. To this end, the author concedes that as important as it is to find a balance between permitting users access to educational materials, it is also important to safeguard the intellectual property rights of creators. Conversely, the counterpoint essay takes the position that as important as it is to make educational materials available, unless adequate protection is in place to protect the rights of those who develop new materials, they might be dissuaded from creating new works that might benefit the educational enterprise.

    Educational Malpractice

    As reflected in this debate, an issue that has been percolating for years addresses whether school systems should be liable for educational malpractice when students are unable to read or write at grade level. The point essay in Chapter 13 takes the position that if educators are to be treated as the professionals that they wish to be viewed as, then they should be subject to the same malpractice standards as doctors, lawyers, and other professionals. The counterpoint essay responds that creating the tort of educational malpractice would do more harm than good because it might deter qualified individuals from pursuing careers in education for fear of the risk of liability, would likely driving up costs of schooling, and would have little or no appreciable impact on student learning.

    Conclusion

    Given the impact that school law has on the world of K-12 education, one can wonder how the judiciary will ultimately respond to the ongoing and emerging topics that this book has addressed. Perhaps most notably, it will be interesting to observe how the judiciary crafts the rules for student, and teacher, free speech in cyberspace involving the use of social networking sites because the law, like the ever-flowing river that Heracleitus mentioned, cannot seem to keep pace with developments in technology. Given the legal and educational concerns that this, and other issues raise, those interested in school law must share in the job of developing and implementing policies to enhance the school environment for all.

    In sum, as noted, perhaps the only constant in school law is that as it evolves to meet the demands of a constantly changing world, it is likely to remain of utmost importance for those interested in teaching and learning. The seemingly endless supply of new statutes, regulations, and cases speaks of the need to be ever vigilant regarding how legal developments affect education. A challenge for educators, then, is to harness their knowledge of this ever-growing field so that they can make the schools better places for all children. Aware of this, the contributors to this book of debates provide different perspectives on school law in the hope that they can assist those who are seeking solutions for ongoing quests for educational equity and to be prepared to address new and evolving issues.

    Charles J.Russo

    University of Dayton

    Further Readings and Resources
    Permuth, S., & Mawdsley, R. D. (2006). Research methods for studying legal issues in education. Dayton, OH: Education Law Association.
    Russo, C. J. (2008). Introduction. In C. J.Russo (Ed.), The encyclopedia of education law (pp. xxxi–xxxvii). Thousand Oaks, CA: Sage.
    Russo, C. J. (2010). School law: An essential component in your toolbox. School Business Affairs, 75(9), 36–38.
    Russo, C. J., Beckmann, J., & Jansen, J. (Eds.). (2005). Equal educational opportunities: Comparative perspectives in education law: Brown v Board of Education at 50 and Democratic South Africa at 10. Johannesburg, South Africa: Van Schaik.
    Court Cases and Statutes

    Brown v. Board of Education, 347 U.S. 483 (1954).

    Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), on remand, 206 F.3d 1377 (11th Cir. 2000).

    Education for All Handicapped Children Act of 1975, now Individuals with Disabilities Education Act, 20 U.S.C. § 1401 et seq.

    Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), on remand, 969 F.2d 1022 (11th Cir. 1992).

    Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998).

    Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.

    McKinney-Vento Homeless Assistance Act, 42 U.S.C. §§ 11302 et seq., 11431 et seq.

    Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968).

    Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

    Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681.

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