Week 3 & 4

September 26, 2025 Claire B 0 Comments

I have two assignments that I need back by Sunday, the directions are attached please look them over, no plagiarism.

Chapter Three

Special Education

BACKGROUND

Historically, students with disabilities have experienced widespread exclusion. The students were often educated in separate schools and classrooms. As a result, laws have been passed by Congress to protect individuals with disabilities from discrimination. In 1975, the Education for All Handicapped Children Act created special educational rights for students with disabilities. This law is now known as the Individuals with Disabilities Education Act (IDEA). In addition to this comprehensive law, Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA) provide important legal protections for students with disabilities.

Teachers and school administrators consistently rank special education law as a topic that must be understood when working in a public school. These findings are not surpris- ing, as teachers often confront legal issues when working with special needs students. Thus, an understanding of these laws will help teachers better provide for students with disabilities in their classrooms and protect themselves from possible litigation.

The principal will ask for four volunteers and will assign each teacher volunteer a role. (Note: The principal may want to identify and prepare the four teachers prior to this activity.) The teachers will participate in a mock individualized education program (IEP) meeting while reading

from a prepared script. Before beginning the mock IEP meeting, the principal should read the background to set the context.

Background

Fred is a student with autism. His mother has been advocating for support services in school. She recently came across Applied Behavior Analysis (ABA) and believes that

Activator

Motivator

5 Minutes

Schimmel, David, et al. Principals Avoiding Lawsuits : How Teachers Can Be Partners in Practicing Preventive Law, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=4821088. Created from franklin-ebooks on 2024-09-06 14:01:57.

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34 Chapter Three

Fred’s school should adopt this system. The following took place at an IEP meeting that was convened to discuss Fred’s goals for the upcoming academic year.

Special Education Teacher: Thank you for coming to this IEP meeting to discuss Fred’s goals. Based on Fred’s most recent evaluation, we have decided to continue to provide Fred with support in his classes as well as some pull out support.

Parent: Have you all heard about ABA?

General Teacher: No, what is that?

Principal: Perhaps we should continue with our discussion about Fred’s goals.

Parent: (Ignoring the principal) ABA is a process called Applied Behavior Analysis. I found an organization on- line that provides training and support for schools. They say it works very well with students like Fred because it helps decrease behavioral problems.

Special Education Teacher: I have heard of it, but it was not part of our professional development this past year or this coming summer.

Parent: I’d like Fred to be in a program like this.

Teacher: Well, I think it’s a good idea, but to start a new program at this time of the year could compromise my ability to provide for all children in my classroom. I’m worried that I just won’t have the time to do ABA “right” and meet everyone else’s needs.

Principal: Our district doesn’t have the human resources to sponsor individual therapy for students. I have complete confidence in our faculty and the program we provide to all our special education students.

Occupational Therapist: There is not conclusive evidence that ABA works with chil- dren. If this program isn’t “research based,” we shouldn’t be using it.

After the meeting Fred’s mom said to the special education teacher, “I don’t know, I am confused. If this is something that would help Fred why won’t the school get the program? What can I do if I think Fred is not getting the programming he needs?”

Ask the participants what they think about the IEP meeting. Guiding questions may include:

1. What were the legal issues that arose during the meeting? 2. Does the parent have the right to appeal the decision not to use ABA? 3. Does the school need to provide ABA if the program meets Fred’s needs?

The answers to these questions will be clarified within the discussion below.

Rationale

There are more than six million students with disabilities in U.S. public schools. Lawsuits involving students with disabilities against school districts have been on the rise. With a greater understanding of the law, teachers will be able to avoid unnecessary lawsuits and better provide for their students.

5 Minutes

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Special Education 35

Objectives

Post and/ or state the following objectives for the lesson plan:

1. Teachers will be able to identify the key distinctions between IDEA, Section 504, and the ADA.

2. Teachers will be able to apply the laws to real- life classroom scenarios. 3. Teachers will be able to better confront special education issues arising in the

classroom.

The Law

After reading the introductory background information below, the prin- cipal will divide teachers into four separate groups. Each group will be given markers and pieces of large butcher paper that sticks to the wall. (If there are multiple groups on each topic, the principal may want to

ask each group to share one important point to avoid redundancy. The principal will then go around to each group asking for only one point at a time.)

• Group one will cover the Individuals with Disabilities Education Act IDEA (not including discipline),

• Group two will cover disciplining students with disabilities, • Group three will cover Section 504 of the Rehabilitation Act, and • Group four will cover the Americans with Disabilities Act (ADA).

Each group will be provided with a content handout. On the butcher paper, the teach- ers will highlight the most important aspects of the laws. This part of the activity should take between 7 and 10 minutes. Next, the teachers will present this information to the entire group, explaining and reviewing the key aspects of the law.

After each group has the opportunity to create a set of notes on the butcher paper, distribute a note sheet provided below. (Note: Also consider asking one person to take notes for the entire group. These notes can be distributed at a later time.)

15 Minutes

Identifying Students with Disabilities

States have the duty to identify children ages 0– 21 who are in need of services. This duty is known as “child find.” A parent, a state education agency, or a local education agency may request an evaluation of a child who is suspected of having a disability. School personnel must obtain parental permission before conducting an evaluation. If a parent refuses to give consent (or refuses to respond to district requests), school officials may begin due process procedures or mediation (discussed below) in order to proceed with the evaluation. It is important to note that it is permissible for school officials to choose not to pursue due process

Handout 3.1 Group 1: Individuals with Disabilities Education Act

(continued)

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36 Chapter Three

measures or go to mediation if the parents refuse the evaluation. It should also be highlighted that after an evaluation is completed, and the parents do not provide informed consent for services, school officials cannot pursue due process measures or go to mediation in order to obtain consent. And, school officials will not violate the law by not providing services to the child.

The evaluations must be accurate in order to ensure the proper placement of the child. To this end, a variety of assessment tools and strategies should be used (e.g., classroom observation and several different types of tests). If the parents disagree with the evaluation, they may seek an independent evaluation. If the parents opt for an independent evaluation, the school district does not need to accept the results, but they must be considered.

Providing for Students with Disabilities

Each state must provide a student receiving services under IDEA with a free appropriate public education (FAPE). The definition of appropriate has been at issue in several court cases. FAPE does not need to maximize a student’s learning potential; instead, a FAPE must merely provide a “basic floor of opportunity” for the student. All students receiving services under IDEA are entitled to FAPE.

The individualized education program (IEP) outlines how a student will receive FAPE. Specifically, based on the student’s evaluation, an IEP team prepares the IEP document. The IEP is designed to meet the unique needs of the child and outlines the goals and objectives for the child. The IEP team includes the parents, one general education teacher, one district administra- tor, one special education teacher, others with expertise that are relevant to the student’s needs, and in some cases the student. Students typically participate when they are able to understand and participate in the discussion. School officials must ensure parental participation in the IEP process. Part of this responsibility includes providing parents with notice of their rights under IDEA. Legal controversies have emerged when parents believe that the IEP does not provide their child with a FAPE (see P.L. v. New York Department of Education, 2014). Courts will continue to address what level of educational benefit a child must receive under the IDEA (see Endrew F. v. Douglas Cnty. Sch. Dist., 2015).

Students with disabilities must be educated in the least restrictive environment— in other words, with students who are not disabled to the maximum extent appropriate. Students with disabilities may only be removed from an educational setting with their general education peers when the instruction in the general education courses cannot be achieved satisfactorily. Factors that are considered in determining the least restrictive environment include: the educational benefits of placing children with disabilities in the general education classroom, the nonaca- demic benefits of such placements, the effect that the presence of students with disabilities would have on others in the classroom, and the costs associated with the placement. Often parents initiate lawsuits when they believe that their child was not placed in the least restrictive environment (see B.E.L. v. Hawaii, 2014).

School districts must also provide related services so that a child with a disability can benefit from special education services. For example, a school district should provide busing services to a student if this service is necessary to deliver special education. Courts have found, however, that medical services are not considered related services (although nursing services, occupa- tional therapy, and physical therapy are considered related services).

Students with disabilities may be required to pass competency exams with accommoda- tions before receiving a high school diploma. Accommodations might include questions in Braille, enlarged answer sheets, additional time, having tests read to students, or sign language

Handout 3.1 (continued)

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Special Education 37

responses. Before taking a competency exam, students should be given appropriate notice about the exam and the opportunity to learn the academic content. IDEA also requires that school officials provide transition services for students with disabilities (beginning at age 14) who are shifting from school to independent living, work, or postsecondary education. The transition plan should be individualized to meet each student’s needs.

Another provision under IDEA is due process for parents, which ensures fairness of edu- cational decisions. Due process occurs when a parent expresses complaints regarding the child’s evaluation, identification, or placement. Some of the related procedural safeguards for parents include the following: (1) notification in writing of the referral; (2) ability to grant or deny permission to evaluate the student; (3) notification of IEP meetings (and the right to be present); (4) participation in all decision- making regarding the child with the exception of informal conversations between school officials; (5) bringing an advocate to meetings; and (6) the right to review all of the child’s records. If there is a disagreement between the parents and school officials, either side may initiate a due process hearing. It is important to note that IDEA requires that mediation be available to all parties before a due process hearing is con- ducted. During the mediation session a neutral third party assists parents and school officials to develop a solution. If the issue is not settled in mediation, parents can initiate a due pro- cess hearing. Such a hearing involves an independent hearing officer who ultimately makes a decision based upon the evidence presented. If either party is dissatisfied, a complaint can be filed in court.

Disciplining students with disabilities often raises a lot of questions for teachers. Basically, students with disabilities are disciplined in the same manner as students without disabilities, if there is no connection between their misconduct and the disability. However, if a student with a disability is suspended for ten or more total, cumulative days during the school year, the IEP team and other relevant parties must conduct a manifestation determination to decide whether the student’s disability is related to the misconduct. If a relationship exists, the IEP team needs to conduct functional behavioral assessments (FBA) and incorporate behavior intervention plans (BIP) into the IEP if necessary. When conducting an FBA, the IEP team develops educational programming that is related to supporting the student’s behavioral problems. The team cre- ates a BIP based on the FBA. The BIP should implement several strategies that would prevent the behavior at issue from reoccurring. It is also important to note that when a student who is receiving services under IDEA is removed for more than ten days, it is generally considered a change in placement and requires that the child receives a new IEP. During the time that the new IEP is created, the student needs to remain in their original placement. This is known as the stay put provision.

If the student brings a weapon to school, possesses illegal drugs at school, or inflicts serious bodily harm on another person at school, school officials may forego a manifestation determina- tion and remove a student with a disability to an interim alternative educational setting (IAES) for up to 45 school days. In these cases, a student may be placed unilaterally in an IAES, without the consent of a parent. During these 45 days, FAPE must be provided. Specifically, the child must continue to participate in the curriculum but in another setting.

Students who have not yet been identified as needing services under IDEA might also get legal protection when removed from the classroom for more than ten days. Specifically, if school officials knew or should have known that a student had a disability before the incident occurred,

Handout 3.2 Group 2: Disciplining Students with Disabilities

(continued)

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Unlike IDEA, Section 504 is a civil rights law that prohibits those institutions receiving federal funds from discriminating against people with disabilities. Section 504 is a much broader law than IDEA and therefore protects more students. Students who are identified under IDEA also receive protections under Section 504. However, those students receiving services under Section 504 do not automatically receive services under IDEA (e.g., a student in a wheelchair may qualify under Section 504 but not IDEA).

To qualify for services under Section 504, the individual must be a person who has a physical or mental impairment which substantially limits one or more major life activity, has a record of such impairment, and is regarded as having such impairment. A major life activity may include, but is not limited to, seeing, hearing, walking, and talking. Individuals who qualify for services under Section 504 are entitled to reasonable accommodations to facilitate their participation in educational activities. Courts have found that an otherwise qualified individual, under Section 504, is someone who can meet all education or job requirements with reasonable accommoda- tions. A reasonable accommodation might be Braille, a notetaker, a sign language interpreter, or more time on an assignment. On the other hand, a school would not be forced to allow a student who is legally blind to try out for the varsity basketball team— this would be an example of an unreasonable accommodation.

Similar to IDEA, students receiving services under Section 504 must be provided a free appropriate public education and must be educated in the least restrictive environment. When determining FAPE, Section 504 compares the services and treatment provided to students with disabilities to those provided to students without disabilities. The individualized accommoda- tion plan for Section 504 students is called a 504 accommodation plan. Although a written accommodation plan is not required by the law, most school districts do require such a plan.

Similar to Section 504, the ADA was designed to eliminate discrimination based on disability. In 2008, Congress clarified the definition of disability when it passed the ADA Amendments Act. The purpose of the amended legislation was to make it easier to prove an impairment qualified as a disability. Specifically, this law protects those individuals who have a physical or mental

Handout 3.2 (continued)

the student should not be removed until an IEP team determines the student’s eligibility for special education services.

Recent news reports have highlighted discipline issues related to the use of restraint and seclusion in schools. As a result, in 2012, the U.S. Department of Education issued a “Resource Document” to assist school officials with this issue. Despite this guidance, litigation involving restraint and seclusion continues (see, e.g., Muskrat v. Deer Creek Pub. Sch., 2013). One article discusses a recent lawsuit involving a student who was placed in an “isolation box” that was the size of a phone booth to calm her down. Her parents argued that school officials were aware of the child’s past trauma involving confinement (see Bouboushan, 2014). The litigation suggests that students’ claims related to seclusion and restraint have generally been rejected by courts if school officials’ conduct was considered reasonable, not conscience- shocking, and did not cause “obviously excessive” injury to the student (see Eckes & Watts, 2014).

Handout 3.3 Group 3: Section 504 of the Rehabilitation Act and Americans with Disabilities Act

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Special Education 39

Supplemental Activity

Consider sending out the content to this lesson prior to the meeting. Along with the content, provide teachers with one of the three content areas to take notes on. This is one strategy to save time rather than having teachers reading during the professional development session.

Application/ Content to Practice

After the butcher paper presentations are complete, the principal will ask one teacher in each group to act as a moderator as the groups discuss each scenario below. Provide each group with the scenarios. (Note: The moderators should be provided with the handout with the scripted guiding questions.)

impairment that substantially limits one or more major life activities; have a record of impair- ment; or are regarded as having such an impairment. The ADA incorporates all of the Section 504 law and expands its reach to include all entities— public or private. Both Section 504 and ADA apply to persons of all ages. Those students who are “otherwise qualified” must be permit- ted to participate in an educational program unless their participation poses a significant safety risk or an undue burden for the school district. Although the ADA is very similar to Section 504 for students, there is one major difference: the ADA requires that school districts provide access to individuals with disabilities who are attending school events. Thus, the ADA requires that athletic stadiums, lecture halls, and other facilities be barrier free (e.g., the school should ensure facilities have wheelchair ramps). When removing structural barriers from existing facilities, it must be “readily achievable” and not unduly expensive. When making new structures, however, the building must comply with ADA regulations and be barrier free.

Unlike the IDEA, both Section 504 and the ADA also apply to school district employees. Both laws require school districts to make reasonable accommodations for teachers with dis- abilities. The accommodation must be reasonable unless it would impose an undue hardship on the employer. “Reasonable” has been interpreted to mean that the accommodation must enable the employee to perform the “essential functions” of the job. Courts often decide what might be a reasonable accommodation. For example, one court ruled that the ADA does not require a district to create a full- time position for a teacher with pedophobia (Waltherr- Willard v. Mariemont City Schools, 2015).

1. Individuals with Disabilities Education Act IDEA 2. Disciplining Students with Disabilities 3. Section 504 of the Rehabilitation Act and Americans with Disabilities Act (ADA)

15 Minutes

Handout 3.4 What’s Important to Know About

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Handout 3.5 Special Education Scenarios

Scenario One

Parents of an elementary school student with autism requested that the school district provide their child with the Applied Behavior Analysis (ABA) method. The ABA method attempts to ensure a match between the behavioral intervention and the specific behavioral problems at issue. The ABA method is a comprehensive intervention to behavioral issues— it is ideally carried out in every setting possible.

The parents argued that their child would educationally benefit from the ABA method, and in making this argument the parents cited several studies which demonstrated the effectiveness of the ABA. The school district denied this request, arguing that it was too costly and that other methods were equally as effective.

QUESTIONS

1. Would the school district be denying this student FAPE if it did not implement the ABA method?

2. What if the parents pulled their child out of this school and sent him/ her to a private school that used the ABA method? Would the parents be able to be reimbursed for the private- school tuition?

3. How would the parents appeal the school district’s decision under IDEA?

Scenario Two

A student receiving services under IDEA spray painted graffiti inside the school’s restroom. The student painted “Death to Principal Stuckey.” The student had already been suspended nine days this academic year. Thus, school officials needed to conduct a manifestation determination before suspending this student for five additional days. The parents argued that their child’s diagnosis of attention- deficit hyperactivity disorder (ADHD) was related to his misconduct; thus, he could not be suspended. (Note: Although ADHD is not listed as one of the 13 specific categories of disability, it is sometimes included under the “other health impairment” category.)

QUESTIONS

1. Do you think a diagnosis of ADHD could be found to be related to the conduct described above?

2. Do you think that school officials could have moved this student to an interim alternative educational setting for 45 days because of the “death threat” to Principal Stuckey?

3. Would a manifestation determination need to be conducted before placing this child in an interim alternative education setting? How would this be decided?

Scenario Three

A kindergarten student was diagnosed with acquired immunodeficiency syndrome (AIDS) from a contaminated blood transfusion received at birth. The child’s doctors wrote the school district indicating that there was no medical reason why the child should not be able to attend kindergarten. The school district allowed the child to attend. After the child bit another classmate (no skin was broken), school officials had the child evaluated and decided that he should be tutored at home. The child’s parents filed a lawsuit, contending that their son should be placed in the kindergarten classroom.

QUESTIONS

1. Would this child be found to be a “handicapped” person under Section 504? Is this student “otherwise qualified” to attend public school?

2. How do school officials balance the rights of the individual student and the safety of the rest of the students in the class?

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Special Education 41

Scenario Four

School officials dismissed a fifth- grade teacher who suffered epileptic seizures. The school district found out about the seizures because parents had seen the teacher have an episode at the mall and voiced concerns about student safety to the superintendent. After an investigation, school officials learned that even when the teacher took her medication, there was still a very small chance that she could have a seizure. The teacher suffered from approximately two seizures per year. The school board did not renew the teacher’s contract. The teacher filed a lawsuit contending that the school board violated her rights under the Americans with Disabilities Act.

QUESTIONS

1. Is this teacher otherwise qualified? 2. What would this teacher argue under Section 504?

Handout 3.6 Special Education Scenarios for Moderators

Scenario One Question 1: It depends on the facts of the case. The school must provide an educational program that is considered “appropriate.” An appropriate education is not necessarily the “best” education. Therefore, if the school’s alternative is appropriate, then rejecting the parents’ option does not deny FAPE. However, cost is never a justification to deny appropriate services. Further, even if what the parents are suggesting is better than the “floor of opportunity,” school officials may want to provide the better services. In the long run, compromise is often less costly than due process and fosters a cooperative relationship. The IEP team would determine whether the ABA method provided the student with a FAPE.

Question 2: The parents would need to demonstrate that the child’s placement in the public school was inappropriate and that the private school is appropriate (see School Committee of Burlington v. Department of Education of Massachusetts, 1985). Parents who unilaterally place their child in a private school are certainly taking a financial risk. If the public school placement was found to be appropriate, the parents would not be reimbursed. In a recent case, the Third Circuit did not find that the parents were entitled to any reimbursement for private school tuition (see H.L. v. Downington Area Sch. Dist., 2016).

Question 3: The parents must exhaust their administrative options under the IDEA first. Thus, the parents would first participate in a mediation and may eventually participate in a due process hearing with an independent hearing officer.

Scenario Two Question 1: We obviously need more facts about the student in this scenario, but this issue has certainly arisen in public schools before (see Richland School District v. Thomas P., 2000). Based on the limited facts, however, it could be argued that the student’s disability (ADHD) is related to the student’s conduct (spray painting). Of course, it could be easily argued that there is no relation between the conduct and the disability. The IEP team would resolve this issue by analyzing the student’s prior history and current diagnosis to determine if any relation exists.

Question 2: No. The student could only be unilaterally placed in an interim alternative educational setting for 45 days if the student inflicted serious bodily harm. The student could also be moved to an interim alternative educational setting if the parents agreed. Decisions about the interim alternative educational setting are made by the IEP team, although it may be ordered by a due process hearing officer as well.

Question 3: In this case the graffiti would not meet the three factors to justify an interim alternative educational setting (IAES) without a manifestation determination. However, the 45- day IAES may be used even when the conduct may be related to a student’s disability. Thus, no manifestation determination is needed before placing the student in the interim alternative educational setting if drugs, weapons, or an assault was involved.

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Scenario Three Question 1: At least one court has found that the student was a “handicapped person” under Section 504 and was “otherwise qualified” to attend kindergarten in a public school setting after having been diagnosed with AIDS. The court reasoned that there was no significant evidence that the child posed any significant risk of harm to his classmates.

Question 2: In balancing this student’s rights under Section 504 and the safety of his classmates, the court noted that there is no medical evidence that AIDS can be spread through biting (see Thomas v. Atascadero Unified School District, 1987; District 27 Community School Board v. Board of Education of the City of New York, 1986). It should also be noted that when AIDS is reported to public health departments, it must be done in a way that respects the privacy of the student (in the same manner that other diseases are treated with regard to privacy).

Scenario Four Question 1: This teacher could reasonably argue that she was otherwise qualified under the ADA. In so doing, she may demonstrate that school officials could reasonably accommodate her by training several school officials about how to respond if a seizure were to occur in the classroom. For example, the school nurse or a teacher’s aide could be trained in working with the teacher if a seizure occurred in the future.

Question 2: This teacher could also rely upon Section 504, arguing that although she has a physical impairment that substantially limits a major life activity, she is otherwise qualified to teach with reasonable accommodations. She would also contend that she has the necessary physical qualifications for the job.

Assessment

The principal will assess the participants using a strategy called “Stars and Wishes.” The principal will hand out 3 × 5 cards and ask teachers to write three things learned on one side and three things they want to know more about on the other. After a few minutes participants

should be asked to share some of their responses to both questions. Principals need to consider what they do with the “wishes” list. For example, principals can provide a summary of the “wishes” to the district’s special education director and request that the director respond.

FAQ

As time permits, you may add some of these additional questions to the followup discussion.

1. Are the suspension days for students receiving services under IDEA counted cumulatively or consecutively? The regulations suggest that 10 cumulative days would be considered a change of place- ment. It is also important to note that after 10 cumulative days of suspension, educa- tional services would need to be provided to the child. Also, when there is a request for a hearing, the stayput provision applies and the child will remain in his or her present edu- cational placement unless school officials and parents agree on the child’s placement.

10 Minutes

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Special Education 43

2. Must educational services be provided to students receiving services under IDEA if the suspension is 10 days or less? No. When suspensions are less than 10 days, students are treated the same as general education students. If the suspension is more than 10 days, educational services that align with the child’s IEP must be provided in the alternative setting.

3. When must the IEP team convene to develop a behavioral intervention plan, if one has not already been completed? Within 10 business days of any suspension that exceeds 10 cumulative days throughout the school year.

4. Must school officials administer prescription medication to a student? Yes. School officials must provide related services. This related service of admin- istering medication is more akin to a service provided by a nurse rather than a doctor. Thus, school officials are required to administer medication to students.

5. Could school officials require students with disabilities to take high-stakes tests? Yes. If the student has been given adequate notice, appropriate curriculum, and necessary accommodations, a test may be administered. The student’s IEP must describe the modifications to be made to enable students to participate in the test- ing. In several states, students with disabilities who do not pass the high-stakes testing requirements are still granted certificates of completion. Certain students with cognitive disabilities may have the option to a take a different test that is based on the same or different achievement standards (e.g., life skills).

6. What if the costs associated with the child’s placement are considered too expensive by the school district? The school must provide the most appropriate placement for the child without regard to the cost. However, it is important to note that appropriate does not mean that school officials are required to maximize a student’s potential.

7. If a parent requests year round schooling for a student receiving services under IDEA, must the school district provide it? Summer school services need only be provided if it is demonstrated that it pro- vides the student with a FAPE. For example, if no services during the summer led to substantial regression, the school district must provide services.

8. What law would teachers with disabilities rely upon? Section 504 and the ADA would provide protections. In addition, states may have adopted laws providing protections for employees as well. For example, a high school teacher with a mobility impairment in one arm or leg should be employed if a reasonable accommodation can be made to enable performance of essential functions.

9. Are there state laws that impact students with disabilities? Yes. States have enacted laws that oftentimes mirror and expand upon the require- ments of IDEA.

10. Can you expel a special education student? Yes. If the student’s conduct is not related to his or her disability, the student can be expelled. However, during the expulsion, the student must receive edu- cational services as provided by the IEP until age 21. Thus, special education

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44 Chapter Three

students cannot be expelled in the same manner as nonspecial education students (because the school district must continue educational services to the special education student).

11. Can parents request that their children be removed from special education programs? Yes. Parents can revoke consent for placement and remove their children out of special education at any time. The parent must revoke services in writing and school districts will not be considered in violation of the law for failing to make FAPE available. Mediation or due process procedures may not be used by school officials to obtain agreement to keep the child in the special education program.

12. Must charter schools accept students with disabilities? Yes. Charter schools must follow federal and state laws. As such, charter schools may not exclude students with disabilities.

13. Who is really responsible for implementing the IEP? Everyone on the IEP team. However, the classroom teachers must ensure that it is implemented on a daily basis.

14. Must students with disabilities be accommodated in extracurricular athletics? IDEA’s regulations state that school personnel must consider whether an extracur- ricular or nonacademic activity should be included in the student’s IEP. Likewise, Section 504 requires that students with disabilities be provided equal opportuni- ties to participate in physical education courses and extracurricular athletics. The ADA does not permit schools to discriminate on the basis of disability in provid- ing their services, programs, and activities. In 2013, the Office for Civil Rights issued a “Dear Colleague Letter” on the matter providing further guidance. The letter states that school officials should ensure that students with disabilities have consistent opportunities to participate in extracurricular athletics that are equal to those of other students.

15. Have students with disabilities who have argued a denial of FAPE when they have been severely harassed brought a viable legal claim? The U.S. Department of Education’s Office for Civil Rights (OCR) has issued guidance to public schools nationwide in the form of a “Dear Colleague Letter” (Guidance) that focuses on the bullying and harassment of students with dis- abilities. The Guidance details school officials’ responsibilities under Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (ADA) regarding the bullying of students with disabilities. It adds, “If a student with a disability is being bullied, federal law requires schools to take immediate and appropriate action to investigate the issue and, as necessary, take steps to stop the bullying and prevent it from recurring” (see U.S. Department of Education, 2013b).

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Special Education 45

Resources/ Materials

Relevant Quotes

[W] e know that education is the key to our children’s future, and it is the IDEA that ensures all children with disabilities have access to a free appropriate public education. We have seen tremendous progress over the past 25 years— students with disabilities are graduating from high school, completing college, and entering the competitive workforce in record numbers— and we must continue this progress over the next 25 years and beyond.

— President Bill Clinton (2000, in Katsiyannis, Yell, & Bradley, 2001, p. 324)

Free appropriate public education … evinces a congressional intent to bring previ- ously excluded handicapped children into the public education systems of the states and to require the states to adopt procedures which would result in individualized consideration of and instruction for each child.

— Board of Education v. Rowley (1982)

A basic floor of opportunity provided by the Act [IDEA] consists of access to spe- cialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.

— Board of Education v. Rowley (1982)

REFERENCES

B.E.L. v. Hawaii, 63 F.Supp.3d 1215 (D. Hawaii, 2014). Board of Education of the Hendrick Hudson Central School District, v. Rowley, 458 U.S. 176

(1982). Bouboushian, J. (2014, Aug. 5). Parents sue school for its isolation box. Courthouse News

Service. Retrieved from http:// www.courthousenews.com/ 2014/ 08/ 05/ 70105.htm District 27 Community School Board v. Board of Education of the City of New York, 502

N.Y.S.2d 325 (N.Y. 1986). Endrew F. v. Douglas Cnty. Sch. Dist. Re- 1, 798 F.3d 1329 (10th Cir. 2015). Katsiyannis, A., Yell, M., & Bradley, R. (2001). Reflections on the 25th anniversary of the

Individuals with Disabilities Education Act. Remedial and Special Education, 22, 324– 334. H.L. v. Downington Area Sch. Dist., 624 Fed. Appx 64 (3d Cir. 2016). Muskrat v. Deer Creek Public School, 715 F.3d 775 (10th Cir. 2013). P.L. v. New York Department of Education, 56 F.Supp.3d 147 (E.D.N.Y. 2014). Richland School District v. Thomas P., 2000 U.S. Dist. Lexis 15162 (Wis. 2000). School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359

(1985). Thomas v. Atascadero Unified School District, 662 F.Supp. 376 (Cal. 1987).

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http://www.courthousenews.com/2014/08/05/70105.htm

46 Chapter Three

U.S. Department of Education (2012, May). Restraint and seclusion: Resource document. Retrieved from http:// www2.ed.gov/ policy/ seclusion/ restraints- and- seclusion- resources.pdf

U.S. Department of Education Office for Civil Rights (2013a, Jan. 25). Dear colleague letter (disability and athletics). Retrieved from http:// www2.ed.gov/ about/ offices/ list/ ocr/ letters/ colleague- 201301- 504.pdf

U.S. Department of Education Office of Special Education and Rehabilitative Services (2013b, Aug. 20). Dear colleague letter (bullying and harassment). Retrieved from http:// www. ed.gov/ policy/ speced/ guid/ idea/ memosdcltrs/ bullyingdcl- 8- 20- 13.doc

Waltherr- Willard v. Mariemont City Schools, 601 Fed. Appx. 385 (6th Cir. 2015).

ADDITIONAL RESOURCES

Alexander, K., & Alexander, M. D. (2011). American public school law (8th ed.). Belmont, CA: Wadsworth (See chapter 10).

Eckes, S., & Watts, L.P. (2014, March). The use of restraint and seclusion. Principal Leadership, 8– 10.

McCarthy, M., Cambron- McCabe, N., & Eckes, S. (2014). Public school law. Boston, MA: Allyn and Bacon/ Pearson (See chapter 6).

Schimmel, D., Stellman, L., Conlon, C., & Fischer, L. (2014). Teachers and the law (9th ed.). Boston, MA: Allyn and Bacon (See chapter 16).

Russo, C. (2009). Reutter’s the law of public education (7th ed.). New York: Foundation Press (See chapter 14).

Yell, M. (2006). The law and special education. Upper Saddle River, NJ: Pearson Prentice Hall.

SUPPLIES AND MATERIALS

• Butcher paper and markers • 3 × 5 cards

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http://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf

http://www.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.doc

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf

http://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf

Chapter Five

Student Harassment and Bullying

BACKGROUND

Court decisions highlight that school officials have a responsibility to provide a safe educational environment free from bullying and peer sexual harassment. There is no federal law that directly addresses bullying, but all fifty states have enacted laws to prevent bullying in schools. Bullying often overlaps with harassment. In peer sexual harassment lawsuits, school boards may be liable for monetary damages if they were deliberately indifferent to known acts of peer sexual harassment in the schools. These cases generally involve a Title IX claim, which is a federal law that prohibits discrimi- nation based on sex. In some cases, students with disabilities who have been harassed at school are initiating lawsuits under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and/ or the Individuals with Disabilities in Education Act (IDEA). This lesson plan will focus on how school districts can avoid liability for bully- ing and harassment while providing a safe and welcoming environment for all students.

There are several different clips available on YouTube that discuss harassment and bullying. One very helpful clip can be found at https:// www.youtube.com/ watch?v=c08oEqvbivo.

If you are unable to access the clip, please read the following summary:

A fourteen- year- old student committed suicide after he experienced severe harassment and bullying from his peers— sometimes in the school hallway. The clip does not discuss whether school officials knew about the harassment. For the purposes of this exercise,

Activator

Motivator

7 Minutes

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64 Chapter Five

please think about whether there could be school district liability had school officials been aware that other students were bullying him on a daily basis.

Principals will lead a discussion on the video from the YouTube clip. If a YouTube clip is not used, the questions below would still apply to the summary of the clip provided above. Some questions that may guide this discussion include:

• When might school officials be liable in a case involving similar facts? • Would the outcome be different if school officials had knowledge of the harassment?

Rationale

Studies have indicated that as many as 80 percent of students experi- ence some form of sexual harassment in public schools. These statistics are troublesome considering that peer sexual harassment and bullying can have long- term psychological effects on student victims. Indeed,

harassment and bullying are serious problems that may impact some students’ aca- demic achievement and social well- being.

Objectives

Post and/ or state the following objectives for the lesson plan:

1. Teachers will be able to apply the legal standard to real- life situations that occurred in U.S. public schools to determine school board liability for peer harassment.

2. Teachers will be able to avoid school district liability in peer harassment cases that occur in their classrooms.

3. Teachers will become familiar with trends in antibullying state legislation.

The Law

To help teachers understand the laws associated with student harass- ment and bullying, you will have them engage in a Think, Pair, Share activity. To begin, ask teachers to partner (pair up). One partner will get the Davis Case Handout and the other the Students with Disabilities

Handout. Next, ask teachers to read their case individually and to think about what the case means in regard to the law. Then ask teachers to share the case and what they learned and implications with their pair partner. The principals can bring the large group back together and ask volunteers to summarize what they learned.

3 Minutes

20 Minutes

Handout 5.1 Davis Case

The responsibility of school districts to take action against peer sexual harassment was recog- nized in a 1999 U.S. Supreme Court decision, Davis v. Monroe County Board of Education. The Court explained in Davis that school officials have clear responsibilities to respond to known acts of peer sexual harassment in public schools. When school officials are deliberately indif- ferent to the sexual harassment, school districts can be held financially liable.

Most of the recent peer sexual harassment lawsuits, including the Davis decision, have been based on Title IX of the Education Amendments of 1972, which prohibits sex discrimination

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Student Harassment and Bullying 65

under any education program or activity receiving federal financial assistance. Title IX has been interpreted broadly to cover peer harassment and also covers cases involving teachers harass- ing students. It is important to note that state laws may also address obligations regarding sex discrimination in schools.

In Davis, a fifth- grade female student was allegedly subjected to a prolonged pattern of sexual harassment. According to the complaint, the offending male student attempted to touch LaShonda’s breasts and genital area and made vulgar comments toward her. Additionally, in one incident the male student placed a doorstop in his pants and acted in a sexually aggressive manner with the female student. The female student and her mother notified a coach, several teachers, and the principal about the various incidents of harassment throughout the school year. School officials, however, failed to effectively respond to these complaints and only threat- ened possible action. Based on the female student’s dropping grades and a suicide note, her mother contended that the continued harassment and the school’s failure to respond affected her daughter’s education.

In examining this issue, the Supreme Court established a standard of school district liability for peer sexual harassment under Title IX. In addition to the harassment being based on sex, the following four factors must be present for a school district to be found liable for peer sexual harassment:

1. appropriate school officials must have actual knowledge of the harassment; 2. school officials must have responded with deliberate indifference to the harassment (e.g.,

they did not do anything to stop the harassment or their response was clearly unreasonable); 3. the harassment must have been severe, pervasive, and objectively offensive; and 4. the harassment must have had a negative impact on a student’s education.

When applying these four factors in the Davis decision, the Court found the school district to be liable for peer sexual harassment. It is important to note that all four factors must be proven for a school district to be held liable. For example, in this case, a mere drop in grades would have been insufficient to prove that the harassment was actionable. However, in conjunction with the other three factors in this case, the grades provided evidence of a connection between the offender’s conduct and the denial of educational benefits. The plaintiff’s claim also relied on the severity of the harassment and the school’s knowledge of and deliberate indifference to the harassment. It is also important to note that school officials must have control over the harasser and the environment in order to be liable.

Oftentimes in Title IX peer harassment court decisions, the outcome of the case will focus on whether school officials did enough to appropriately respond to the harassment. In a recent case, a male student alleged that he frequently heard inappropriate sexual remarks, was called gay, and experienced another student exposing his genitals, among other offensive acts at the school. School officials responded by rearranging the classroom for the student to avoid the perpetrator as well as suspending the perpetrator on a few occasions (Doe v. Board of Education of Prince George’s County, 2015). The Fourth Circuit Court of Appeals found that school offi- cials took steps to address the harassment and that their actions were not clearly unreasonable.

Handout 5.2 Harassment and Bullying— Students with Disabilities

There is a growing body of litigation involving the harassment and bullying of students with disabilities (Long v. Murray, 2013; Moore v. Chilton Cnty. Bd. of Educ., 2014). In addition to the increasing number of lawsuits, the U.S. Department of Education (USDoE) has stated that it “has received an ever- increasing number of complaints concerning the bullying of students with disabilities” (p. 1). In response, the USDoE has published two recent letters providing schools with guidance about their responsibility to address disability- based harassment. First, in 2013, the USDoE’s Office of Special Education and Rehabilitative Services (OSERS) issued a “Dear Colleague Letter” to address bullying and harassment of students with disabilities receiving

(continued)

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66 Chapter Five

services under IDEA (see http:// www.ed.gov/ policy/ speced/ guid/ idea/ memosdcltrs/ bullyingdcl- 8- 20- 13.doc). The guidance cites research highlighting that students with disabilities are dispro- portionately affected by bullying.

The second recent letter addressing this issue was issued by the Office for Civil Rights (OCR) in 2014 (see http:// www2.ed.gov/ about/ offices/ list/ ocr/ letters/ colleague- bullying- 201410.pdf). In these types of disability- based harassment cases, sometimes a court might apply the Davis standard or instead might apply a different standard and ask whether school officials acted in “bad faith” or engaged in “gross misjudgment” when analyzing disability- based harassment claims. The letter explains that bullying a student with a disability on any basis can result in a denial of a Free Appropriate Public Education (FAPE).

Handout 5.3 Scenarios and the Davis Standard

Scenario Davis Standard

1 Jane, a sixth- grade student, was subjected to severe and continuous harassment. The harassment began when she was referred to as the “German gay girl” (Vance v. Spencer County Public School District, 2000). The harassment continued when another student asked the female student to describe oral sex. Jane was also regularly shoved into walls and her homework was destroyed on several occasions. During one particular bathroom break from class, several boys called Jane names such as whore and bitch. While doing so, two of the boys held her hands and the other grabbed her hair and started yanking her shirt off. One of the boys stated that he wanted to have sex with her. School officials responded to several such complaints from Jane and her mother by speaking with the boys, but their response was not effective. Specifically, the boys were only spoken to and not punished. After they were spoken to, Jane contended that the harassment grew worse.

1. Appropriate school officials must have actual knowledge of the harassment.

2. School officials must have responded with deliberate indifference to the harassment (e.g., they did not do anything to stop the harassment or their response was clearly unreasonable).

3. The harasser’s behavior must have been severe, pervasive, and objectively offensive.

4. The harassment must have had a negative impact on a student’s education.

Application/ Content to Practice

The principal will split the teachers into groups of three to four. Each group will read and discuss all four scenarios. In so doing, the teach- ers should apply the Davis standard to determine whether the school district would be legally liable for harassment based on sex. Ask the participants to circle all the standards that apply to each case.

15 Minutes

Handout 5.2 (continued)

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http://www.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.doc

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-bullying-201410.pdf

http://www.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.doc

Student Harassment and Bullying 67

Scenario Davis Standard

When the harassment continued throughout the following school year, Jane and her mother filed a complaint, pursuant to the school harassment policy. The school claimed that it did not have enough information to investigate. Jane was later diagnosed with depression and withdrew from school. She and her mother then filed a lawsuit against the district. Would the school district be held liable in this situation?

2 Mary, a high school student, was sexually assaulted by two male students (Doe v. East Haven Board of Education, 2006). It took her about three months to report the assault to school officials. After Mary told school officials that she had been sexually assaulted, the boys called her a “slut, a liar, a bitch, a whore,” and other students began to taunt her. Mary and her mother lodged repeated complaints with the superintendent, the principal, and the guidance counselor; the parent felt that the complaints were ignored. Several weeks after receiving the complaints, the school district responded. The school officials argued that they provided the female student with a separate room in the guidance office where she could go if she felt uncomfortable. In the meantime, Mary became withdrawn, missed some school, and had suicidal thoughts. Would the school district be held liable in this situation?

1. Appropriate school officials must have actual knowledge of the harassment.

2. School officials must have responded with deliberate indifference to the harassment (e.g., they did not do anything to stop the harassment or their response was clearly unreasonable).

3. The harasser’s behavior must have been severe, pervasive, and objectively offensive.

4. The harassment must have had a negative impact on a student’s education.

3 Tom and Sally were high school juniors and classmates. Tom repeatedly asked Sally for a date and she repeatedly refused. After the third request, Sally complained to her teacher, who told Tom to stop bothering Sally. The following week Tom asked again and tried to kiss Sally. As a result, her mother complained to the principal and asked him to move Tom to another class. Instead, the principal called Tom to his office, ordered him to stop harassing Sally, and warned of consequences if he did not. The following week, Tom kissed Sally, who became extremely upset. As a result, she was enrolled in a private school and sued the school district for failing to prevent the harassment. Should the school be held liable?

1. Appropriate school officials must have actual knowledge of the harassment.

2. School officials must have responded with deliberate indifference to the harassment (e.g., they did not do anything to stop the harassment or their response was clearly unreasonable).

3. The harasser’s behavior must have been severe, pervasive, and objectively offensive.

4. The harassment must have had a negative impact on a student’s education.

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68 Chapter Five

Principals should use the following outcomes for each case to drive the discussion. These key points can also be used as a handout or a presentation slide.

Scenario Davis Standard

4 A student with a disability receiving services under Section 504 and the IDEA experienced harassment and bullying in the classroom on a daily basis throughout her fourth- grade year. A few students in the class frequently referred to her as “retard” and would often knock her books out of her hands when she was in the hallway. During recess, kids would try to trip her and teased her about her thick glasses and stutter. The student’s mother complained to the teacher, who did speak with the perpetrators’ parents on several occasions. When the harassment continued, the mother reached out to both the principal and the superintendent. They held meetings with the student’s teacher to develop ways to keep her safe. Unfortunately, the harassment continued, and on one occasion she was punched in the bathroom. As a result, the mother sued the school district under Title IX and Section 504. Should the school be liable?

1. Appropriate school officials must have actual knowledge of the harassment.

2. School officials must have responded with deliberate indifference to the harassment (e.g., they did not do anything to stop the harassment or their response was clearly unreasonable).

3. The harasser’s behavior must have been severe, pervasive, and objectively offensive.

4. The harassment must have had a negative impact on a student’s education.

With regard to the disability harassment claim, did school officials act in “bad faith” or engage in “gross misjudgment”?

Handout 5.3 (continued)

Handout 5.4 Case Scenario Outcomes

Scenario Outcome

1 The court ruled in favor of Jane, finding that the sexual harassment was so severe, pervasive, and objectively offensive that it deprived her of access to the educational opportunities provided by the school and that school officials had actual knowledge of the harassment and were deliberately indifferent to the harassment. Because of the numerous complaints to several different school officials, the actual notice factor was clearly met. A jury awarded the student $220,000 in this case.

2 The court found that school officials had acted unreasonably because it took them five weeks to address the harassment. The court also noted that school officials failed to take actions other than speaking to the harassers.

3 This scenario is not based on a real case, but the scenario is a common one. In this situation, it may be difficult to prove peer harassment under Title IX. Applying the Davis decision, school officials knew of the harassment but were not deliberately indifferent. It is important to note that even if school officials did not do all that they should have, they still may not be found to be deliberately indifferent if their response was not clearly unreasonable. The third prong of the Davis test will be the

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Student Harassment and Bullying 69

FAQ

As time permits, you may add some of these additional questions to the follow- up discussion.

1. The Davis case focused on Title IX. Isn’t Title IX about gender equity? Yes. Title IX prohibits sex discrimination at educational institutions that receive federal funds. The court has used Title IX in cases involving discrimination based on sex in both student- to- student sexual harassment cases and teacher- to- student sexual harassment cases. With teacher-to-student sexual harassment, plaintiffs do not need to prove the harassment was severe.

Assessment

Provide each teacher with a 3 × 5 card to assess their understanding. The teachers should complete the following phrases on the back side of each card:

5 Minutes

10 Minutes

Scenario Outcome

most difficult to demonstrate. To illustrate, it is not clear whether the harassment in this case was severe, pervasive, or objectively offensive. It is also unclear if the harassment denied Sally her education. Therefore, it does not appear that there has been a violation of Title IX in this scenario. Nevertheless, school officials should still pay attention and respond to such incidents of harassment.

4 Whether the court applied the Davis standard or asked if school officials acted in “bad faith” or “gross misjudgment,” it seems that school officials did take steps to address the harassment. Although it is questionable as to whether enough was done to address the harassment, some courts have only required that school officials take some reasonable steps to remedy the situation. Likewise, it could be found that school officials did not act in bad faith or display gross misjudgment because they did take steps to address the harassment.

1. My thinking about bullying has changed…

2. I will change my practice regarding student harassment

by…

Figure 5.1 Harassment and Bullying Assessment

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70 Chapter Five

2. Is same- sex harassment actionable under Title IX? Yes. The guidance from the Office for Civil Rights states that sexual harassment directed at gay and lesbian students is prohibited under Title IX. Specifically, Title IX prohibits harassment that is based on conduct of a sexual nature. Thus, it applies equally if someone is harassed by someone of the same sex or if the victim is gay or lesbian.

3. How do the courts define deliberate indifference and the other factors required to prove liability for peer harassment? Prior to the Davis decision it was not clear whether school officials could be liable at all for peer sexual harassment. After the decision, there is much more guidance in this area. Although the Davis decision offers some guidance regarding the four factors discussed above, there has been some confusion in interpreting the precise meaning of the factors. For example, which school official needs to have “actual knowledge” of the harassment? Generally a school official, who has the author- ity to address the harassment, will suffice. Or what constitutes deliberate indif- ference? Some courts have found school officials to be deliberately indifferent when their response is “clearly unreasonable.” What may be considered clearly unreasonable is not always clear, however. Finally, when is a harasser’s behav- ior considered “severe, pervasive, and objectively offensive” enough to require action? When determining the severity, courts generally consider the totality of the circumstances.

4. Does Title IX apply in lawsuits where a teacher harasses a student? Yes. In order for a school district to be liable for this type of harassment, the school officials must have known about the harassment and must have been deliberately indifferent in responding to the harassment. Even if the school is not liable, the teacher may be found criminally guilty for student harassment.

5. What is the legal standard when an administrator harasses a teacher? Title VII of the Civil Rights Act of 1964 is the legal standard used in these types of cases. Title VII requires school officials to address the sexual harassment of employees. The sexual harassment against employees usually falls under quid pro quo harassment or a hostile work environment. Quid pro quo refers to giving some- thing in order to receive something. For example, a teacher may be promised to be appointed department head in return for sexual favors. A hostile work environment refers to a severely hostile environment that interferes with a teacher’s work per- formance. For example, when an administrator’s sexual remarks are severe enough to negatively impact the working environment, the court would find a hostile work environment.

6. How can school officials avoid harassment in schools? School districts should create clear sexual harassment policies that provide specific procedures. In addition to promptly dealing with claims of peer sexual harassment, school districts should implement preventive measures, and school administrators and their staff members should ensure that they know and follow those guide- lines. To do so, school districts should clearly define peer sexual harassment in

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Student Harassment and Bullying 71

student handbooks and share the information with parents. These policies should be discussed to encourage students to report peer harassment immediately to the appropriate school official who is trained in the complaint procedure and has the authority to take corrective action.

In addition to handbooks, school districts should provide in- service sessions for faculty and staff members and hold assemblies for students to review complaint procedures. Within the training sessions, it is also important for faculty and stu- dents to learn what sexual harassment is, what it is not, what its effect is, and how to effectively respond to the harassment. Finally, lessons on sexual harassment could be incorporated into the curriculum. It is important not to overreact and to be conscious of the rights of the accused.

Supplementary Section

We anticipate that teachers may have several Title IX- related questions (e.g., athlet- ics, single- sex classrooms) that were not covered in this lesson plan. Thus, we have included several examples of other frequently asked questions related to Title IX. Principals should use this supplementary section if time permits.

1. Does Title IX encourage school districts to cut boys’ teams? No. Although some have argued that Title IX requires the elimination of male teams in order to achieve equity in athletics in school. Instead, facility limitations and budgetary concerns put heavy pressure on educational institutions to cut back their athletic programs, which in some cases results in the loss of male teams in order to move toward gender equity.

2. May girls play on boys’ teams or boys play on girls’ teams? Title IX allows separate teams for girls and boys but does not require it. Separate teams are often created due to differences in physical characteristics and sports preference. Under Title IX, school districts must offer equal athletic opportunities through separate or integrated teams. Although Title IX only allows girls to try out for noncontact boys’ teams, states’ Equal Rights Amendments usually allow girls to also try out for contact sports when there is no girls’ team.

3. What if the boys’ baseball team gets new uniforms every year and plays its games on a nice field, but the girls’ softball team only gets new uniforms every three years and plays its games on a run- down field? This situation would arguably be a violation of Title IX. School officials would need to provide for greater gender equity between the two teams.

4. Is instruction segregated by sex permissible? Yes. The U.S. Department of Education adopted regulations that allow school districts to create single- sex classrooms and schools. In coeducational schools, both sexes must be offered equal educational opportunities and enrollment in a single- sex class should be completely voluntary. Single- sex schools are permitted, but a substantially equal single- sex or coeducational school for students of the other sex must be available.

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5. May school districts require pregnant students to attend another school? No. The U.S. Department of Education has issued regulations under Title IX not allowing school districts to discriminate against pregnant students. Requiring preg- nant students to attend a separate school would be seen as discriminatory.

6. May gender be considered in hiring teachers? Sometimes. Some gender- based discrimination is allowed under Title VII. However, there must be a legitimate reason for favoring one gender over another. For example, the school district may hire only a female teacher if the job requires supervising the girls’ locker room.

7. Who enforces that school districts comply with Title IX and how does enforce- ment work? The Office for Civil Rights (OCR) in the Department of Education (DOE) is responsi- ble for enforcing Title IX as it applies to schools receiving federal funds. The OCR has authority to develop policy on the regulations it enforces. Overall, the OCR has main- tained a low profile in enforcing Title IX, which has led to girls and women seeking relief in the courts. Thus, in addition to the potential loss of federal funds via the OCR enforcement, schools that violate Title IX may be held liable for monetary damages.

To ensure compliance with Title IX, three methods of initiating enforcement exist: (1) complaints, (2) compliance reviews, and (3) lawsuits. Under the first method, a person may file a complaint with the OCR alleging gender discrimina- tion in violation of Title IX. The OCR then undertakes an investigation of the school. If the school is in violation and no settlement can be reached, the OCR audits the offending school’s sports program and orders it to make any changes necessary to comply with Title IX.

The second enforcement mechanism, compliance review, permits the DOE to perform periodic investigations of randomly selected public schools to verify com- pliance with Title IX. Although no complaint needs to be filed for the OCR to per- form a compliance review, compliance reviews can occur after a complaint is filed.

A final alternative enforcing Title IX compliance is to file a lawsuit against the offending school. Although lawsuits are costly and time- consuming, sometimes they are the most efficient way of bringing a school into compliance with Title IX for two main reasons. First, even after a complaint is filed, OCR is not required to implement a full investigation. In contrast, the filing of a lawsuit inevitably will result in an investigation by one or both of the parties. Second, the party who files a complaint with the OCR cannot receive monetary damages even if OCR determines that the school violated Title IX. Conversely, the plaintiff in a lawsuit can obtain monetary damages. Schools are more likely to comply with Title IX if noncompliance is punished with monetary damages.

Resources/ Materials

Relevant Quotes

Far from childish pranks, sexual harassment in the school setting consists of seri- ous misconduct that can have a devastating effect on students at the receiving end.

— Verna L. Williams (represented the petitioner in Davis v. Monroe County Board of Education, 1999)

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Student Harassment and Bullying 73

Where the misconduct occurs during school hours and on school grounds, the misconduct is taking place “under” an “operation” of the federal education funding recipient. In these circumstances, the recipient retains substantial control over the context in which the harassment occurs. More importantly, however, in this setting the board of education exercises significant control over the harasser. The nature of the state’s power over public schoolchildren is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults….

Whether gender- oriented conduct rises to the level of actionable “harassment” depends on a constellation of surrounding circumstances, expectations, and relation- ships, including, but not limited to, the ages of the harasser and the victim and the number of individuals involved. Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults….

Damages are not available for simple acts of teasing and name- calling among schoolchildren but rather for behavior ‘‘so severe, pervasive and objectively offen- sive that it denies its victims the equal access to education.’’

— Davis v. Monroe (1999)

While Justice Kennedy may have characterized this case as teaching “little Johnny a perverse lesson in Federalism,” Justice O. Connor rejoined by saying that it “assures that little Mary may attend class.”

— New York Times (Greenhouse, 1999)

The [Davis] standard has been set so high that it’s a standard we can live with and in fact are living up to already.

— Julie Underwood, General Counsel, National School Boards Association

REFERENCES

American Association of University Women. (2001). Hostile hallways: Bullying, teasing & sexual harassment in schools. Washington, DC: Author.

Doe v. Board of Education of Prince George’s County, 605 Fed. Appx 159 (4th Cir. 2015). Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Doe v. East Haven Board of Education, 430 F. Supp.2d 54 (2006). Decker, J., Eckes, S., & Tanselle, L. (2015). Bullying, harassment of students with disabilities.

Principal Leadership, 18–20. Eckes, S. (2006). Peer sexual harassment and public schools. Principal Leadership, 6(5), 58– 63. Greenhouse, L. (1999, May 25). The supreme court: The overview; sex harassment in class is

ruled schools’ liability. New York Times. Retrieved from http:// www.nytimes.com/ 1999/ 05/ 25/ us/ supreme- court- overview- sex- harassment- class- ruled- schools- liability.html

Long v. Murray Cnty. Sch. Dist., 2012 U.S. Dist. LEXIS 86155 (N.D. Ga. 2012). Moore v. Chilton Cnty. Bd. of Educ., 1 F. Supp. 3d 1281 (M.D. Ala. 2014). Vance v. Spencer County Public School District, 231 F.3d 253 (2000). Title IX of the Education Amendments of 1972, 20 U.S.C. sec. 1681. Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e.

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http://www.nytimes.com/1999/05/25/us/supreme-court-overview-sex-harassment-class-ruled-schools-liability.html

74 Chapter Five

ADDITIONAL RESOURCES

Alexander, K. & Alexander, M. D. (2011). American public school law (8th ed.). Belmont, CA: Wadsworth (See chapter 9).

Decker, J., Eckes, S., & Tanselle, L. (2015). Bullying, harassment of students with disabilities, Principal Leadership, 18- 20.

Schimmel, D., Stellman, L., Conlon, C., & Fisher, L. (2014). Teachers and the law (9th ed.). Boston: Allyn and Bacon (See chapter 15).

Russo, C. (2009). Reutter’s the law of public education (7th ed.). New York: Foundation Press (See chapter 13).

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209

Chapter Ten

School Law and Children with Disabilities

In the 1960s and 1970s, concern for the education of handicapped children began to take hold in the American culture and conscience. The watershed event was the passage by Congress of the 1975 landmark legislation titled the Education for All Handicapped Children Act (EHA). This act has been peri- odically amended and has evolved into today’s law, the Individuals with Disabilities Improvement Education Act of 2004 (IDEA). The combination of IDEA and other congressional acts dealing with disabilities, such as the Rehabilitation Act of 1973, Section 504, and the American Disabilities Act, forms the legal framework for the protection of students with disabilities.

Needless to say, the complexity of handicapping conditions, and the inter- relationship of handicapped and nonhandicapped education, has produced a voluminous set of case law that has given definition to the intent of IDEA and its companion legislation.

SOURCES OF DISABLED INDIVIDUALS’ PROTECTION

If a person with a disability is of school age (age 3 through 21), specialized instructional services are provided under IDEA.

504 versus IDEA (2004)

Public schools provide services to handicapped students under either Section 504 of the Civil Rights Act or IDEA-R. The differences are as follows:

Bradley, Leo H.. School Law for Public, Private, and Parochial Educators, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=5059833. Created from franklin-ebooks on 2024-09-06 14:00:20.

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Table 10.1. History of Federal Special Education Legislation Authorizing Sup- ports and Services for Children with Special Needs

Year Legislation Educational outcome 1958 National Defense Education Act Provided funds for training teachers to

(PL 85-864) work with children with intellectual disabilities

1961 Special Education Act (PL 87-276) Provided funds for training professionals to train teachers who teach children who are deaf

1963 Mental Retardation Facilities and Expanded the support provided in the Community Mental Health Centers National Defense Act (PL 85-926) to Construction Act of 1963 (PL 88- train teachers who teach children with 164) other disabilities

1965 Elementary and Secondary Provided money to states and districts Education Act of 1965 (PL 89-10) to develop programs for children with

disabilities from low-income families

1973 Section 504 of the Rehabilitation Ensured equal opportunities for children Act of 1973 (PL 93-112) and youth with disabilities in schools

receiving federal funding

1975 Education for All Handicapped Mandated free appropriate public Children Act of 1975 (PL 94-142) education for all children with

disabilities ages 6–21 Protected the rights of children with disabilities and their parents in educational decision making Required an individualized education program (IEP) for each child with a disability Stated that students with disabilities must receive educational services in the least restrictive environment

1986 Education of the Handicapped Act Extended the rights of the Education for Amendments of 1986 (PL 99-457) All Handicapped Children Act of 1975

(PL 94-142) to children with disabilities ages 3–5 Included incentive grants to states to develop programming for infants and toddlers (birth to 2 years) and their families

1988 Jacob K. Javits Gifted Talented Provided federal funding to support Students Education Act of 1988 research, teacher training, and program (PL 100-407) development for the education of gifted

and talented students

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School Law and Children with Disabilities 211

1988 Technology-Related Assistance Created statewide programs of for Individuals with Disabilities Act technology assistance for people of all of 1988 (PL 100-407) ages with disabilities

1990 Americans with Disabilities Act Provided civil rights protection to (ADA) of 1990 (PL 101-336) individuals with disabilities against

discrimination in private employment, public services, public accommodations, transportation, and telecommunications

1990 Individuals with Disabilities Added autism and traumatic brain injury Education Act (IDEA) of 1990 (PL as new categories of disability for 101-476) (Reauthorization of the service Education for All Handicapped Required all IEPs to include a Children Act of 1975 [PL 94-142]) statement of transition services no later

than age 16 Expanded the definition of “related services” to include rehabilitation counseling

1997 Individuals with Disabilities Included many new provisions—for Education Act Amendments example, a general education teacher (IDEA) of 1997 (PL 105-17) must be a member of each student’s

IEP team; students with disabilities must have access to the general education curriculum; the IEP must address positive behavior support plans where appropriate; students with disabilities must be included in state or districtwide testing programs; and if a school seeks to discipline a student with disabilities resulting in a change of placement, suspension, or expulsion for more than 10 days, a manifestation determination hearing by the IEP team must find that the student’s misconduct was not related to his or her disability

2001 No Child Left Behind Act of 2001 Mandated that all children be proficient (PL 107-110) (reauthorization of in all subject matters by 2014 the Elementary and Secondary Mandated that school districts make Education Act of 1965 [PL 89-10]) adequate yearly progress (AYP) toward

the 100 percent goal; ensure that all children are taught by “highly qualified” teachers; and use curriculum that has been validated by the rigors of scientific research (schools that do not make AYP are provided assistance and are subject to corrective action and potentially restructuring)

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2004 Individuals with Disabilities Reauthorized all main components of Education Improvement Act IDEA 1997 but extended the IEP to (IDEA) of 2004 (PL 108-446) include benchmarks and objectives for

students who take alternative assessments Added response to instruction for identification of students with learning disabilities Defined “highly qualified special education teachers” Mandated that under special circumstances (e.g., weapons in schools) students may be removed for up to 45 days even if the behavior was a manifestation of their disability

504: antidiscrimination; managed by regular education with no money source; no mandate for services; meant to “level the playing field” through the use of accommodations.

IDEA: mandated services; disability must adversely affect performance to such a degree that specialized instruction is needed; money is provided.

Rehabilitation Act, Section 504

Section 504 of the Rehabilitation Act is monitored by the Office of Civil Rights. Schools must provide special accommodations to persons who have mental or physical impairments that substantially limit one or more of the person’s major life activities (caring for one’s self, performing manual tasks, walking, seeing, hearing, breathing, speaking, learning, and working). For a more thorough discussion of the disorders covered by 504, please refer to the Diagnostic and Statistical Manual for Mental Disorders.

IDEA (2004)

IDEA was initially written into effect in 1978 as Public Law 94-142. It was written in part as a response to Section 504 so that schools could respond to the challenge of educating children with disabilities. The act is reauthorized on a regular cycle. The current regulations went into effect in 2004, included all the updated mandates of No Child Left Behind (2001), and will be re- viewed on a regular basis by congress. This historic act

• defines free and appropriate public education (FAPE) as special education and related services (see the Tatro case) that are provided at public ex- pense, under public supervision and direction, and free to the family

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School Law and Children with Disabilities 213

• meets state rules for special education adopted by the state board of educa- tion

• includes preschool, elementary, and secondary education • is provided in conformity with an individualized education program (IEP) • provides a free and appropriate education to all children with special needs

three through twenty-one years of age unless the child has completed the twelfth grade and has been issued a diploma

The act also defines “related services” as services that “assist a child with a disability to benefit from special education” [section 300.24(a)], such as the following:

• speech/language therapy • auditory services • occupational and physical therapy • psychological services • interpreter services • school health services/medical services • counseling services • aide services • transportation • social work services • mobility orientation for the blind • parent counseling and training

Through the reauthorization process, the act has redefined the thirteen dis- ability conditions that qualify a child for services under IDEA. Currently, these qualifying conditions are

• autism • cognitive disability or instructional disability • deafness and blindness • emotional disturbance (previously known as severe behavioral handi-

capped) • hearing impairment • multiple disabilities • orthopedic impairment • other health impairment, such as having limited strength or limited alert-

ness • specific learning disability • speech or language impairment • traumatic brain injury • visual impairment

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The provisions of IDEA provide that all students with special needs who qualify for services must be placed in what is defined as “the least restrictive environment.” The least restrictive environment could be any of the follow- ing:

• a regular classroom • a regular classroom with embedded services • a regular classroom with pull-out services • a learning center located in a public school building; a separate school

within the school district or a separate facility such as a county board of developmental disability (applicable to Ohio and Missouri only); a school for the blind or deaf; or an institution operated by the state department of mental health or department of youth services

• a hospital/institution • a home • another appropriate environment

In most states, the following philosophical position with regard to least re- strictive environment is being pursued.

It should be emphasized that once a child has been identified as being eligible for special educational services, the connection between special edu- cation and related services and the child’s opportunity to experience and benefit from a general education curriculum should be strengthened. The majority of children identified as eligible for special education–related ser- vices are capable of participating in a general education curriculum to vary- ing degrees with some accommodations and modifications. This provision is intended to ensure that children’s special education and related services are in addition to and are affected by the general education curriculum, not separate from it.

Since the parents of students with special needs must agree to the place- ment of the child in the least restrictive environment, disagreements between the school and the parents sometimes occur. When this happens, procedural safeguards to resolve the conflict occur and take the following form (which varies slightly from state to state).

1. A case conference 2. Administrative review 3. A prehearing conference (mediation) 4. An impartial due process hearing 5. A state-level review 6. An appeal to the courts

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Individual Education Plan (IEP) Development

The IEP is designed to meet the unique educational needs of the child. The IEP must include related services necessary for the child to benefit from a special education program. The IEP must be reviewed and revised at least yearly.

Recent Changes to IDEA

In recent years some major changes have been reflected in IDEA. The most significant include

• disciplinary procedures and manifestation determination • reevaluation process improvements • parent role strengthening • least-restrictive-environment language strengthening • improvements in language about children in private schools • addition of components to the IEP • an insistence that regular education teachers participate in the IEP devel-

opment • a transferral of rights, age of majority • a focus on improving results through the regular classroom

The major components of IDEA are

• child identification • procedural safeguards • multifactored evaluations • individualized education programs (IEPs) • least restrictive environments • confidentiality of data • due process • testing programs

Manifestation

The issue of suspension or expulsion of students with special needs has been the subject of controversy since the inception of special education. As a result, the process of manifestation was passed by Congress as a part of the reauthorization of IDEA. The formal determination of suspension or expul- sion must follow these steps:

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1. For disciplinary action beyond ten days, the parents must be notified of the action, and procedural safeguards must be in place no later than the day of the infraction.

2. Immediately, but no later than ten days after the action, a manifest determination review must be held and a formal determination estab- lished.

3. A review must be conducted. The team must first consider, in terms of behavior subject to disciplinary action, all relevant information (i.e., evaluation results, observations, IEP/placement) and then ask if “in relationship to the behavior subject to disciplinary action the child’s IEP and placement were appropriate and the special education ser- vices, supplementary aids and services, and behavior intervention strategies were provided consistent with IEP and placement.” If the answer is no, then FAPE consistent with IEP and placement must be provided, and suspension or expulsion is not allowed. If the answer is yes, then the team must ask, “Did the child’s disability impair the ability of the child to (1) understand the impact and consequences of the behavior or (2) control the behavior subject to disciplinary ac- tion?” If the answer is yes to either, suspension or expulsion is not allowed. If the answer is no to both, suspension or expulsion is permit- ted.

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CASE SUMMARIES

Timothy W. v. Rochester, New Hampshire, School District U.S. Court of Appeals, First Circuit 1989, 875 P.2d 954

Topic: The education of children with severe handicaps. Issue: Can a school district deny education to a handicapped child based

on that child’s ability to benefit from educational services? Facts: Timothy W. was born two months premature on December 8,

1975. He suffered numerous complications at birth and, as a result, Timothy is multiple-handicapped and profoundly mentally retarded. Timothy suffers from complex developmental disabilities, spastic quadriplegia, cerebral pal- sy, seizure disorders, and cortical blindness. He did not receive any educa- tional services when he reached school age.

March 7, 1980: Rochester Schools decided Timothy was not educational- ly handicapped. Since his handicap was so severe, he was not capable of benefiting from an education and therefore was not entitled to one.

January 17, 1984: In response to a letter from Timothy’s lawyer, the district placement team recommended that he be placed at the Child Devel- opment Center so that he could be provided with special education services. The school board refused to authorize this, stating it needed more informa- tion. They requested a CAT scan, and Timothy’s mother refused.

November 17, 1984: Timothy filed a complaint in U.S. District Court alleging his rights were violated under the Education for All Handicapped Children Act (EHA), New Hampshire state law, Sections 504, and the equal protection/due process clauses of the Constitution. The complaint sought preliminary and permanent injunctions directing the school district to provide Timothy with special education and $175.00 in damages.

July 1988: Opinion of the first district court: Timothy is not capable of benefiting from special education; as a result, the school district is not obli- gated to provide special education under the EHA or New Hampshire law.

May 24, 1989: The U.S. Court of Appeals, First District heard the case. Findings: Circuit Judges Bowies, Aldrich, and Bryer reversed the ruling

of the district court. They found for the plaintiff and ordered the case to return to district court until an IEP could be put into place. They ordered immediate interim services and damages to be assessed against the school district.

Rationale: Language of the act (EHA):

• The statute is permeated with the words “all handicapped children.” • The act gives priority to the most severely handicapped. • There is no language requiring a prerequisite that the child demonstrate

that he or she will “benefit” from an educational program.

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• It is the state’s responsibility to design special education to meet the unique needs of handicapped children.

• Language makes clear “zero-reject” policy.

Legislative History

• Congress intended the act to provide a public education for all handi- capped children.

• The act was a response to testimony and evidence that handicapped chil- dren were being systemically excluded from public school and receiving inadequate education.

• The Office of Education provided a report documenting eight million handicapped children, four million of whom were not receiving appropri- ate services.

• Subsequent amendments to the act: In numerous reauthorizations, it has been amended seven times, repeatedly affirming the original intent and in fact expanding provisions. The act never required proof of benefit for eligibility.

• Remarks from Senate hearings: “What we are after in this legislation is to rewrite one of the saddest chapters in American education, a chapter in which we were alert while young children were shut away and condemned to a life without hope. This legislation offers them hope, hope that whatev- er their handicap, they will be given the chance to develop their abilities as individuals and to reach out with their peers for their own personal goals and dreams” (Senator Mondale).

Case Law: Two landmark cases, Pennsylvania Association for Retarded Citizens v. Commonwealth of Pennsylvania (1972) and Mills v. Board of Education of District of Columbia (1972), established that exclusion from public school of any handicapped child was unconstitutional.

Board of Education of the Hendrick Hudson Central School District v. Amy Rowley, by her parents, Clifford and Nancy Rowley

102 S.Ct.3034; 458 U.S. 176; 73 L. Ed.2d 690; No. 801002 Argued March 23, 1982; Decided June 28, 1982

Topic: Parents of a deaf child request to have their daughter receive services from a qualified sign-language interpreter for all of her academic classes. The parents argue that their daughter is being denied the right to free appropriate public education (FAPE).

Issue: Is Amy Rowley’s FAPE being denied?

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School Law and Children with Disabilities 219

Facts

1. The EHA requires that students receive a “free appropriate public education” whether the student is “mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, other health impaired or as having specific learning disabilities.”

2. The school district prepared for Amy’s success by providing her with a hearing aid that amplified the teacher’s words; several teachers and administrators took sign-language classes; and the principal had a tele- type machine in his office to communicate with Amy’s parents, who were deaf as well. There was a sign-language interpreter placed for a trial period in the classroom; however, the findings were that Amy was an excellent lip reader and was able to be successful with her academics and socially without this service. This service was not writ- ten in the IEP for Amy’s kindergarten or first-grade year. Mr. and Mrs. Rowley, on behalf of their daughter, demanded a hearing.

3. The district court found for the parents and said that though Amy “is performing better than the average student . . . she understands much less of what goes on in class than if she were not deaf thus she is not learning as much, or performing as well.” The court found that Amy was not receiving her required FAPE.

4. The court and all involved had many questions as to what the EHA and its FAPE requirements really meant for a handicapped student and the school he or she attended.

The Supreme Court granted a writ of certiorari to review the lower court’s analysis of the act and identified two questions to consider:

• What is meant by the act’s requirement of a “free appropriate public education”?

• What is the role of the state and federal courts in exercising the review granted by the act?

Findings of the Supreme Court: The Supreme Court found for the school district that Amy’s educational setting and services were being met by the requirements of FAPE. The Supreme Court said that the act defines the term “free appropriate public education” as “special education and related services which have been provided at public expense, under public supervision and direction, and without charge, meet state standards, include appropriate grade levels from preschool to secondary education, and provide in conformity with the individualized education program required.”

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The Court also noted that FAPE should “consist of providing the student with instruction to meet his or her unique needs that are necessary for the student to ‘benefit’ from the instruction.” FAPE provides the student with a reasonable opportunity to learn and does not mean that the student must reach maximum potential. The act opens the door for the handicapped stu- dent but does not predict a level of performance.

The Court held that the state, according to the act, is required to provide educational services to those children who are not receiving education at all and to those children receiving “inadequate education.”

The Court found that there was no need for a sign-language interpreter in Amy’s classroom.

Rationale: Justice Rehnquist delivered the majority opinion by first look- ing at the history of special education.

At the time of the act’s ratification, there were approximately eight mil- lion handicapped children in the United States. Of those eight million, one million were “excluded entirely from the public school system” and more than half were receiving an inappropriate education. The act was designed to require states to have procedures to meet the “unique needs” of the handi- capped students. Rehnquist continued the opinion by quoting definitions to show that the intent of the act itself was to give handicapped students the opportunity to learn in a public school setting.

There has been an increased awareness of the educational needs of handi- capped children because of this act; however, the Rowley family did not think the act was specific enough. This came about because the act specified that special education needs need to be supported by related services. Rehn- quist defined “related services” as “transportation, and such development, corrective, and other supportive services as may be required to assist a handi- capped child to benefit from special education.” Although the definitions are vague and conveyed, the intent of the act was to provide “free appropriate public education” and does not contain specific requirements. The history and interpretation of the act was at the focal point of this case.

Concurring: Opinion written and delivered by Justice Blackmun, along with Justices Powell, Stevens, O’Connor, and Burger, discussing the history of Congressional intent vis-à-vis the act. Congress intended to take a “more active role under its responsibility for equal protection,” and “it seems plain to me that Congress in enacting this statute, intended to do more than merely set out politically self-serving but essentially meaningless language about what the handicapped children deserve at the hands of the state.” Blackmun questioned Amy’s program and whether it offered her the opportunity to understand and participate in the classroom. Blackmun suggested the “courts focused too narrowly on the presence or absence of a particular service—a sign-language interpreter—rather than on the total package of services fur- nished to Amy by the School Board.”

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Dissenting: Justice White wrote this opinion, with Justices Brennan and Marshall joining. White stated that the language of the act contradicts the history. The dissent emphasized that “the Act does guarantee that handi- capped children are provided equal educational opportunity.” However, at times the purpose of the act was described as tailoring each handicapped child’s educational plan to enable the child “to achieve his or her maximum potential.”

The dissent also noted that it was unsuitable that the Court found that because Amy was “receiving specialized instruction and she was benefiting, that she was receiving meaningful and therefore appropriate education” with- out the sign-language interpreter. Justice White also established that “without a sign-language interpreter, Amy comprehended less than half of what is said in the classroom; therefore she was not given the ‘equal opportunity to learn.’”

Honig v. Doe

U.S. Supreme Court 484 U.S. 305 (1988), No. 86-728 Argued November 9, 1987; Decided January 20, 1988

[Honig, California Superintendent of Public Instruction v. Doe et al. Certio- rari to the United States Court of Appeals for the Ninth Circuit]

Problem: The EHA requires states to ensure FAPE for all disabled chil- dren within their jurisdictions. This act provides for parental participation in decisions regarding the education of their disabled child as well as a process for administrative and judicial review. Among these safeguards is a so-called stay-put provision, which directs that a disabled child “shall remain in [his or her] then current educational placement” pending completion of any review proceedings unless the parents and state or local educational agencies agree otherwise (20 U.S.C. 1415[e][3]).

This asks whether state or local school authorities may nevertheless uni- laterally exclude disabled children from the classroom for dangerous or dis- ruptive conduct growing out of their disabilities. In addition, the Court was called upon to decide whether a district court may, in the exercise of its equitable powers, order a state to provide educational services directly to a disabled child when the local agency fails to do so (484 U.S. 305, 309).

Background: This case concerns two emotionally disturbed students in the San Francisco School District in 1980. Student John Doe was an emo- tionally disturbed student in a special school. He was emotionally abused as a child and he had become a target for other students due to physical, speech, and grooming abnormalities. He was seventeen and was attending a develop- mental center for disabled students when he assaulted and choked another student and kicked out a window in response to a verbal taunt. Even though

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this type of explosive behavior was clearly targeted in his IEP, the principal suspended him for five days and recommended expulsion.

Respondent Jack Smith was identified as an emotionally disturbed child by the time he entered the second grade in 1976. School records prepared that year indicated that he was unable “to control verbal or physical outburst[s]” and exhibited a “severe disturbance in relationships with peers and adults.” Further evaluations subsequently revealed that he had been physically and emotionally abused as an infant and young child and that, despite above- average intelligence, he experienced academic and social difficulties as a result of extreme hyperactivity and low self-esteem. Of particular concern was Smith’s propensity for verbal hostility; one evaluator noted that the child reacted to stress by “attempt[ing] to cover his feelings of low self-worth through aggressive behavioral . . . primarily verbal provocations.”

Based on these evaluations, the San Francisco School District placed Smith in a learning center for emotionally disturbed children. His grandpar- ents, however, believed that his needs would be better served in the public school setting and, in September 1979, the school district acceded to their requests and enrolled him at A. P. Giannini Middle School. His February 1980 IEP recommended placement in a learning disability group, stressing the need for close supervision and a highly structured environment. Like earlier evaluations, the February 1980 IEP noted that Smith was easily dis- tracted, impulsive, and anxious; it therefore proposed a half-day schedule and suggested that the placement be undertaken on a trial basis.

At the beginning of the next school year, Smith was assigned to a full-day program; almost immediately thereafter he began misbehaving. School offi- cials met twice with his grandparents in October 1980 to discuss returning him to a half-day program. Although the grandparents agreed to the reduc- tion, they apparently were never apprised of their right to challenge the decision through EHA procedures. The school officials also warned them that if the child continued his disruptive behavior—which included stealing, extorting money from fellow students, and making sexual comments to fe- male classmates—they would seek to expel him. On November 14, they made good on this threat, suspending Smith for five days after he made further lewd comments. His principal referred the matter to the SPC, which recommended exclusion from the school district. As it did in John Doe’s case, the committee scheduled a hearing and extended the suspension indefi- nitely, pending a final disposition in the matter.

On November 28, Smith’s counsel protested these actions on grounds essentially identical to those raised by Doe, and the SPC agreed to cancel the hearing and to return Smith to a half-day program at A. P. Giannini or to provide home tutoring. Smith’s grandparents chose the latter option, and the school began home instruction on December 10; on January 6, 1981, an IEP team convened to discuss alternative placements.

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Next Step: On the day the suspension was to end, the SPC notified Doe’s mother that it was proposing to exclude her child permanently from the school district and was therefore extending his suspension until such time as the expulsion proceedings were completed. The committee further advised her that she was entitled to attend the November 25 hearing at which it planned to discuss the proposed expulsion.

After unsuccessfully protesting these actions by letter, Doe brought this suit against a host of local school officials and the state superintendent of public instruction. Alleging that the suspension and proposed expulsion vio- lated the EHA, he sought a temporary restraining order canceling the hearing and requiring school officials to convene an IEP meeting. The district judge granted the requested injunctive relief and further ordered defendants to pro- vide home tutoring for Doe on an interim basis; shortly thereafter, she issued a preliminary injunction directing defendants to return Doe to his then-cur- rent educational placement at Louise Lombard School pending completion of the IEP review process. Doe reentered school on December 15, five and one- half weeks, or twenty-four school days, after his initial suspension. In Jack Smith’s case, it was recommended that he attend a half-day program at a school or receive home tutoring. His grandparents decided that they would prefer home tutoring, but when they heard about John Doe’s case, they joined the suit.

The district court said that removing the students resulted in a change of placement since the children weren’t receiving the services identified in their IEPs. In the original EHA, there was a section called the “stay put” provision. This basically stated that while parents and districts are trying to work out problems with a placement, the child stays in the placement that has been identified in the existing IEP. In a series of decisions, the district judge found that the proposed expulsions and indefinite suspensions of respondents for conduct attributable to their disabilities deprived them of their congressional- ly mandated right to a free appropriate public education, as well as their right to have that education provided in accordance with the procedures set out in the EHA. The district judge therefore permanently enjoined the school dis- trict from taking any disciplinary action other than a two- or five-day suspen- sion against any disabled child for disability-related misconduct and from effecting any other change in the educational placement of any such child without parental consent pending completion of any EHA proceedings. In addition, the judge barred the state from authorizing unilateral placement changes and directed it to establish an EHA compliance-monitoring system or, alternatively, to enact guidelines governing local school responses to disability-related misconduct. Finally, the judge ordered the state to provide services directly to disabled children when, in any individual case, the state determined that the local educational agency was unable or unwilling to do so.

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Findings of the U.S. Supreme Court: Justice Brennan delivered the opin- ion of the Court as to holdings numbers 1 and 2, in which Chief Justice Rehnquist and Justices White, Marshall, Blackmun, and Stevens joined. Chief Justice Rehnquist filed a concurring opinion, post. Justice Scalia filed a dissenting opinion, in which Justice O’Connor joined, post, as follows.

As a condition of federal financial assistance, the EHA requires states to ensure a “free appropriate public education” for all disabled children within their jurisdictions. In aid of this goal, the act establishes a comprehensive system of procedural safeguards designed to ensure parental participation in decisions concerning the education of their disabled children and to provide administrative and judicial review of any decisions with which those parents disagree. Among these safeguards is the so-called “stay-put” provision, which directs that a disabled child “shall remain in [his or her] then current educa- tional placement” pending completion of any review proceedings, unless the parents and state or local educational agencies otherwise agree (20 U.S.C. 1415[e][30]). Today we must decide whether, in the face of this statutory proscription, state or local school authorities may unilaterally exclude disabled children from the classroom for dangerous or disruptive conduct growing out of their disabilities. In addition, we are called upon to decide whether a district court may, in the exercise of its equitable powers, order a State to provide educational services directly to a disabled child when the local agency fails to do so.

The Court was sensitive to the fact that the original EHA law was de- signed specifically to make sure that disabled students were not excluded from educational services. Doe’s portion was thrown out because there was no likelihood that the situation would happen again. “In the present case [Smith], we have jurisdiction if there is a reasonable likelihood that respon- dents will again suffer the deprivation of EHA-mandated rights that gave rise to this suit. We believe that, at least with respect to respondent Smith, such a possibility does in fact exist and that the case therefore remains justiciable.”

The Supreme Court rejected the school’s argument that they couldn’t educate him because he was dangerous to other children, determining that schools could not unilaterally exclude students with disabilities from school. “It is respondent Smith’s very inability to conform his conduct to socially accepted behavior that renders him handicapped.” The schools could tempo- rarily suspend the child for up to ten days. Within that time, if things had not cooled down or changes been agreed on by the parents, the school could seek court assistance. That court review has become known as a Honig injunc- tion—a process in which the school must prove that maintaining the child in his or her current placement would be substantially likely to result in injury to the child or others. From these holdings, the ten-day cut off for suspen- sions and the availability of emergency injunctive review, emerged the cur- rent regulatory scheme. The Court agreed with the district court and the court

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of appeals. One comment about the court of appeals was that they allowed more than ten days to work things out without calling it a change in place- ment. The Supreme Court said that it disagreed on this issue.

Oberti v. Board of Education of the Borough of Clementon School District

995 F.2d 1204 (3rd Cir. 1993) Argued March 9, 1993; Decided May 28, 1993

[Rafael Oberti, by His Parents and Friends v. Board of Education of the Borough of Clementon School District]

Topic: Mainstreaming requirement of school districts for children with special education needs.

Issue: Whether schools should fully explore ways to teach students with disabilities in regular classrooms before segregating them in special educa- tion settings.

Facts

• Raphael was an eight-year-old child with Down syndrome, a genetic de- fect that impairs intellectual functioning and ability to communicate. The IEP for Raphael during the 1989–1990 school year assigned all eighteen academic goals to the afternoon special education class. The morning kindergarten class goals were to only observe, model, and socialize with nondisabled children.

• While some academic and social progress was made, several behavioral problems arose in the morning kindergarten classroom, including toileting accidents, temper tantrums, crawling and hiding under furniture, and touching, hitting, and spitting on other children. Raphael also struck the teacher and the teacher’s aide.

• The IEP made no plans to address behavior issues, nor did it provide special education consultation or communication between the classroom teacher and the special education teacher. A second aide was provided, but little success was obtained. Raphael did not experience similar behavior problems in the afternoon special education class.

• At the end of the year, the child study team decided to place Raphael in a segregated special education classroom for “educable mentally retarded.” Since this was not available in the Clementon School District, Raphael would have to travel to another district.

• The Obertis objected to the segregated placement and requested that Ra- phael be placed in a regular kindergarten class in Clementon Elementary School. The school district refused, and the Obertis asked for a due pro- cess hearing. Through mediation, the parents agreed to place Raphael for

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1990–1991 in a special education class for “multiple handicaps” at Win- slow Township School District (a forty-five-minute bus ride). As part of the agreement, Winslow promised to explore mainstreaming possibilities and consider a future placement in a regular classroom at Clementon.

• By January, however, there was no evidence of any plans to consider mainstreaming, and Raphael had no contact with nondisabled students at Winslow.

• In January 1991, the Obertis brought another due process complaint under IDEA that Raphael be placed in a regular classroom in his home school, Clementon. The New Jersey Office of Administrative Law decided that the segregated special education class at Winslow was the “least restric- tive environment” for Raphael, based on testimony of the kindergarten teacher and other witnesses of his disruptive behavior. Alternate expert witnesses about the education of children with disabilities brought by the Oberti side were discounted.

• As a result of the findings, the Obertis filed civil action in the U.S. District Court for the District of New Jersey under IDEA and unlawful discrimina- tion under 504 of the Rehabilitation Act of 1973, 29 U.S.C 794.

Findings of the Third U.S. District Court: The district court decided that the school district had failed to establish by a preponderance of evidence that Raphael could not at this time be educated in a regular classroom with supplementary aids and services. The court decided that the school district had violated IDEA. The court also found that the school district was discrim- inating against Raphael in violation of Section 504 of the Rehabilitation Act. The court ordered the school district “to develop an inclusive plan for Ra- phael Oberti for the 1992–1993 school year consistent with the requirements of IDEA and Section 504 of the Rehabilitation Act.”

Rationale

• The court found that many of the techniques an expert said were needed could be implemented in a regular classroom.

• The school district did not make reasonable efforts to include Raphael in a regular classroom.

• The behavior problems in 1989–1990 were largely a result of the school district’s failure to provide supplementary aides and services.

• The court discounted the decisions of the New Jersey Office of Adminis- trative Law because “they were largely and improperly based upon Ra- phael’s behavior problems in the developmental kindergarten as well as the school district.”

• The court used the Roncker test to determine the case: “In a case where the segregated facility is considered superior (academically) the court should

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determine whether the services which make that placement superior could be feasibly provided in a non-segregated setting. If they can, the place- ment in the segregated school would be inappropriate under the Act.”

• The Daniel R.R. test would be better because it gives specific direction to the court in determining whether the school district has met the require- ments of IDEA: “whether the school district has made reasonable efforts to accommodate the child in regular classroom; the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to benefits provided in special education class; and the possible negative effects of the inclusion of the child on the education of the other students in the class” (see Sacramento v. Holland).

Mainstreaming Test

The first part is as follows:

1. Whether the school district has made efforts to accommodate the child in regular classroom.

2. The educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the bene- fits provided in a special education class.

3. The possible negative effects of the inclusion of the child on the edu- cation of the other students in the class.

The second part of the mainstreaming test is whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.

The school must take intermediate steps wherever appropriate, such as placing the child in regular education for some academic classes and in special education for others, mainstreaming the child for nonacademic classes only, or providing interaction with nonhandicapped children during lunch and recess. The appropriate mix will vary from child to child and from school year to school year as the child develops.

Martinez v. School Board of Hillsborough County, Florida

No. 883667, U.S. Court of Appeals for the 11th Circuit Argued July 13 and 14, 1988; Reargued December 1, 1988; Decided

April 26, 1989

Prior History: Appeal from the U.S. District Court for the Middle District of Florida.

Topic: Appropriate placement of a special education student.

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Issue: The case involves a mentally retarded child infected with human immunodeficiency virus (HIV), which causes acquired immunodeficiency syndrome (AIDS), wanting to enroll in the school system of Hillsborough County, Florida.

Facts: The child involved was

• a seven-year-old female student with an IQ of 41 • HIV positive • not toilet trained • suffering from thrush, a disease that can produce blood in the saliva • accustomed to thumb and finger sucking, which got saliva on her fingers • prone to skin lesions (the child’s parent promised to keep her at home if

lesions appeared)

In the summer of 1986, Mrs. Martinez attempted to enroll her child in the special education program for the trainable mentally handicapped (THM) in the Hillsborough County School System. The Hillsborough County School System found that home instruction was the appropriate educational place- ment for the student.

Mrs. Martinez requested an administrative hearing, based on the Educa- tion of the Handicapped Act, 84 Stat. 175 (1970) which was codified as amended by the Education for All Handicapped Children Act, 89 Stet. 775 (1975). On August 25, 1987, a hearing officer of the Florida Division of Administrative Hearings upheld the school board’s decision.

Mrs. Martinez appealed, saying that the hearing officer and board’s deci- sion violated her daughter’s rights under the EHA, Section 504 of the Reha- bilitation Act of 1973, and the equal protection clause of the Fourteenth Amendment.

The case went to trial without a jury in 1988. Mrs. Martinez gave her suggestion as to what reasonable accommodations could be made that would reduce the risk of transmission by keeping her daughter a safe distance from the other students. The following is a list of suggestions made by Mrs. Martinez:

• assignment of a full-time aide • placement of her daughter with nonambulatory trainable mentally handi-

capped (TMH) students • use of disposable diapers • use of a separate potty chair for toilet training • limiting the number of students in the room • using gloves, disinfectants, and other precautions in handling and dispos-

ing of waste

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The school board still contended that home instruction was the least restric- tive environment because some mentally handicapped children did not have control over their bodily functions, and there was a risk of transmission of the AIDS virus to other children. There was also a chance that the other children could spread communicable diseases to Eliana.

The court listened to expert testimony on the risk of transmission. There was a “remote theoretical possibility” of transmission of the AIDS virus through tears, saliva, and urine. The experts believed the most appropriate educational placement for Eliana was as follows:

• Eliana could be taught in a special room with a large glass window and sound system so Eliana could see and hear other students.

• There would be a full-time aide who would remain with Eliana and at- tempt to toilet train her and teach her not to put her fingers in her mouth.

• Other children could enter the special room only if a waiver was obtained from the child’s parents absolving the school board of any liability.

• Eliana could be taught in the main classroom when she became toilet trained and didn’t suck her fingers.

• Once Eliana was potty trained and did not suck her fingers, she could enter the classroom. The full-time aide would ensure appropriate distance was maintained once Eliana entered the classroom full time, and the school nurse would be available for consultations throughout the day.

Mrs. Martinez appealed the trial court’s decision. Opinion of the Court, Judge Vance: “There are two federal statutes that

overlap in this case. The Education of the Handicapped Act ‘EHA’ and section 504 of the Rehabilitation Act of 1973. With these statutes in mind the trial judge must first determine the most appropriate educational placement for the handicapped child under ERA. Next the court must determine wheth- er the child is otherwise qualified within the meaning of section 504 to be educated in the classroom despite the communicable disease. If not, the court must consider what would make the child ‘otherwise qualified’ to be educat- ed in the least restrictive environment. Also, the court must consider the financial burden the accommodations would impose on the institution in making the least restrictive environment for the student.

“If Eliana was not infected with AIDS, under the EHA, she would be entitled to attend the regular TMH Classroom. Now you must look at the 504 section to see if it is unlawful to exclude Eliana because of AIDS. The trial court found that there was a ‘remote theoretical possibility’ of transmission with respect to tears, saliva, and urine. This does not rise to the ‘significant’ risk level that is required for Eliana to be excluded from the regular TMH classroom. The Middle District Court of Florida made no decisions with respect to the overall risk of transmission from all bodily substances, includ-

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ing blood in the saliva, to which other children might be exposed in the TMH classroom.”

With a decision of 3–0, the Eleventh Circuit Court vacated and remanded the case back to the district court to determine the overall risk of transmission and whether Eliana was otherwise qualified to attend classes in the TMH classroom.

Memorandum Opinion: [by Elizabeth A. Kovachevich] “Based on expert medical judgment and the state of medical knowledge there is a ‘remote theoretical possibility’ of transmission of HIV through bodily secretions such as urine and saliva. Because of this the court does not feel the appropriate placement for Eliana is the totally unrestricted placement at school, nor is the home the proper placement for Eliana. The Court finds that a restricted placement into the TMH classroom is the appropriate least restrictive envi- ronment for Eliana at this time.

“Where other students are concerned, in a public school setting, the asso- ciation is both involuntary and compulsory; eligible students do not have a choice. Therefore, the obligation is clear to create an environment that is reasonably risk-free for all who must associate with one another.”

Based on the facts and conclusions of law, the court ordered that Eliana be placed in the TMH classroom under the following conditions, limitations, and restrictions to be strictly adhered to by all parties, and subject to review by the court:

1. Eliana is now potty trained and no longer sucks on her fingers so she can be removed from the constructed room and placed in the general TMH classroom.

2. A full-time aide must be provided to help maintain a reasonable separ- ation of other children and Eliana, and to assist in the control of accidental spillage of bodily fluids.

3. Eliana is restricted from the TMH classroom when she has open sores or lesions on her body or mouth.

4. If there is a question of advisability of the child being in the integrated classroom, the school nurse would be consulted.

Mrs. Martinez did not feel that the full-time aide was needed, but agreed with the court’s decision. Mrs. Martinez also requested that the Hillsborough County School Board provide educational programs to the school parents and student population educating them in the realities of AIDS.

Some Additional Notes Regarding the Rights of Students with AIDS: In July 1991, Section 504 of the Rehabilitation Act of 1973 was amended with respect to elementary and secondary school policies involving the placement of children with AIDS. The revision stated in part that AIDS is caused by HIV, which alters a person’s immune system and prevents them from fight-

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ing off other infectious agents. AIDS is spread through sexual contact and the sharing of contaminated needles and syringes among users of illegal intrave- nous drugs. Children contract HIV through their infected mothers during pregnancy, at birth, or after birth. In a small number of cases, the virus is spread through blood products (clotting factors) and blood transfusions.

Children with AIDS are qualified handicapped persons as defined by Section 504; therefore, if a child is handicapped by AIDS, and is of school age, he or she is considered a qualified handicapped person.

The surgeon general, Centers for Disease Control, and other health au- thorities have reinforced their position, stating that “there is no significant risk of contracting AIDS in the classroom.”

The Family Educational Rights and Privacy Act protects against unwar- ranted disclosure of school records. If school districts report any cases of AIDS to public health authorities, school districts should convey such infor- mation in a manner that respects the privacy of the individual and the confi- dential nature of the information in the same way that information about other diseases is treated.

RECENT CASES

• Virginia Office of Protection & Advocacy v. Stewart (2011): The Supreme Court held that the Virginia Office for Protection & Advocacy (VOPA) can sue the state and pursue other legal remedies necessary to fulfill their duty to advocate for people with disabilities.

• Forest Grove School District v. T.A. (2009): In a 6–3 decision, the Court held that IDEA allows reimbursement for private special education ser- vices, even when the child did not previously receive special education services from the public school.

• Board of Education of the City of New York v. Tom F. (2007): The ques- tion before the Court was whether parents of a child who has never re- ceived special education from the public school district can obtain reim- bursement for a unilateral private placement. The U.S. Supreme Court issued a split decision (4–4) in the case. Justice Kennedy recused himself. The favorable decision stands for families who live in the Second Circuit: Connecticut, New York, and Vermont.

• Winkelman v. Parma City School District (No. 05-983) (2007): The Su- preme Court ruled that parents may represent their children’s interests in special education cases and are not required to hire a lawyer before going to court. The Court held that parents have legal rights under the IDEA and can pursue IDEA claims on their own behalf, although they are not li- censed attorneys.

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• Arlington Central School District Board of Education v. Pearl and Theo- dore Murphy, 548 U.S. (2006): In a 6–3 decision, the Supreme Court ruled that prevailing parents are not entitled to recover fees for services rendered by experts in IDEA actions.

• Schaffer v. Weast, 546 U.S. (2005): The Supreme Court held that the burden of proof in a due process hearing that challenges an IEP is placed upon the party seeking relief.

REVIEW OF SPECIAL EDUCATION LAWS

Section 504 of the Rehabilitation Act of 1973 specifies, “No otherwise qual- ified handicapped individual in the United States . . . shall, solely by reason of . . . handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

A “handicapped person with a disability” means any person who

• has a physical or mental impairment that substantially limits one or more of their major life activities

• has a record of such impairment • is regarded as having such an impairment

EDUCATION OF THE HANDICAPPED ACT (1975)/PL 94-142

This was reauthorized and renamed the Individuals with Disabilities Educa- tion Act in 1990. It was reauthorized 1997 and again in 2004: “Public Law 94-142 and regulations implementing it provide for a free, appropriate public education for all handicapped children. The act provides safeguards for par- ents of handicapped children with special needs when special education deci- sions are made by the school. These safeguards an in place to ensure handi- capped children are protected, and that parents have recourse to administra- tive remedies.”

U.S. DEPARTMENT OF EDUCATION—OFFICE OF CIVIL RIGHTS

In July 1991, Section 504 of the Rehabilitation Act of 1973 was amended with respect to elementary and secondary school policies involving the place- ment of children with AIDS. Children with AIDS are qualified handicapped persons with a disability as defined by Section 504; therefore, if a child has AIDS and is of school age, he or she is considered a qualified handicapped person and as having a health impairment.

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STUDENTS WHO ATTEND PRIVATE/PAROCHIAL SCHOOLS

Some parents of students with special needs seek services outside their local public school. According to IDEA, students with special needs who are pa- rentally placed at private/parochial schools do not have an individual entitle- ment to services they would receive if they were enrolled in a public school. For those who receive services, the amount and type of services also may differ from the services the child would receive if placed in a public school by the parents or in a private school by a public agency.

The major provisions regarding children with disabilities enrolled by their parents in a private school—including religious elementary and secondary schools—are located in the statute at section 612(a)(10)(A) and in the regula- tions at 34 CFR §§ 300.130–300.144 and are summarized in the sections below. They include

• agency responsibility for conducting child find activities and determining equitable services: 34 CFR §§ 300.131–300.132

• consultation requirements: 34 CFR § 300.134 • written affirmation of timely and meaningful consultation: 34 CFR §

300.135 • child find activities: 34 CFR § 300.131 • data collection requirements: 34 CFR § 300.132(c) • determination and provision of equitable services: 34 CFR §§

300.137–300.138 • services plans for children with disabilities receiving equitable services:

34 CFR §§ 300.132(b), 300.137(c), and 300.138(b) • permission for delivery of services at the private schools by the local

education agency (LEA) to the extent consistent with law: 34 CFR § 300.139(a)

• determination of the proportionate share of federal IDEA funds to be spent on equitable services: 34 CFR § 300.133

• non-availability of an individual entitlement of parentally placed private school students to special education and related services: 34 CFR § 300.137(a)

• complaint procedures for private school officials regarding consultation: 34 CFR § 300.136

A recent change to the mandates includes the LEA that is responsible for conducting child find and ensuring the provision of equitable services The most recent provisions require the LEA with jurisdiction over the district in which the private school is located to be the responsible agency for imple- menting IDEA requirements for parentally placed children with disabilities, which includes the obligation that the LEA locate, identify, evaluate, and

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spend a proportionate share of IDEA funds for equitable services for children with disabilities enrolled by their parents in private, including religious, ele- mentary, and secondary schools located in that district.

FURTHER INFORMATION

For additional information on the Individuals with Disabilities Education Act and other federal education programs affecting private schools; private school statistics; publications; Internet links to the private school community; and similar resources, contact

Office of Innovation and Improvement U.S. Department of Education 400 Maryland Ave. SW Washington, DC 20202 Phone: 202-401-1365 Fax: 202-401-1368 E-mail: [email protected] Website: www.ed.gov/about/offices/list/oii/nonpublic/index.html

Office of Special Education Programs U.S. Department of Education 550 12th St. SW Washington, DC 20202 Phone: 202-245-7629 Fax: 202-245-7614 Website: http://idea.ed.gov

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Chapter Twelve

Title IX

A BRIEF HISTORY OF TITLE IX

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assis- tance.”

These direct words have been a point of contention for over forty-five years. Prior to being able to discuss the impact of the Title IX on schools today, we need to review the origins of the law and some of the major milestones that have occurred to the present day.

During the same congressional session in which the Equal Rights Amend- ment was passed and sent to the states for ratification as the 27th Amendment to the Constitution, Congress enacted Title IX of the Educational Amend- ments of 1972, which were signed into law by President Richard Nixon on June 23, 1972. Title IX prohibits sex discrimination in any education pro- gram or activity in an educational institution receiving any type of federal financial assistance.

After it was signed into law, there were some attempted adjustments to Title IX. On May 20, 1974, Senator Tower introduced an amendment to exempt revenue-producing sports from being tabulated when determining Title IX compliance. The Tower amendment was rejected. Soon after, in July 1974, Senator Javits proposed, in lieu of the Tower amendment, a proposal stating that the Department of Health, Education and Welfare (HEW) issue Title IX, including “with respect to intercollegiate athletic activities, reason- able provisions considering the nature of particular sports” (e.g., event-man- agement needs, etc.). The Javits amendment provided that event and uniform expenditures on sports with larger crowds or more expensive equipment did

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not have to be matched by expenditures for sports without similar needs. The comparison often utilized was between men’s football and men’s cross coun- try in terms of event and uniform expenditures.

In 1975 the HEW issued Title IX regulation 34 C.F.R. Part 106. Signed into law by President Gerald Ford and effective July 21, 1975, it included provisions prohibiting sex discrimination in athletics and established a three- year window for educational institutions to comply. Throughout the remain- der of 1975, Congress reviewed and approved Title IX regulations and re- jected resolutions disapproving them.

• June 4,1975: The present Title IX regulation was transmitted to Congress. • June 5 and June 17, 1975: Senator Helms (S. Con. Res. 46) and Rep.

Martin (H. Con. Res. 310), disapproving Title IX legislation • June 17, 1975: Rep. Martin (H. Con. Res. 311), disapproving Title IX

legislation only as it had to do with intercollegiate athletics • July 16, 1975: Senators Laxalt, Curtis, and Fannin (S. Con. Res. 52),

disapproving application of Title IX to intercollegiate athletics • July 21, 1975: Senator Helms introduced S. 2146 in an attempt to prohibit

the application of Title IX regulations to athletics where participation in those athletic activities was not a required part of the educational institu- tion’s curriculum.

Attempts to constrain, limit, or eliminate Title IX continued throughout the remainder of the decade. On February 17, 1976, the NCAA challenged the legality of Title IX. This attempt failed, but it was indicative of the era, as was Senator Helms’s reintroduction of a bill disapproving Title IX in its entirety as Senate Resolution 535 on January 31, 1977. This also did not pass.

In 1978, the HEW issued proposed policy “Title IX and Intercollegiate Athletics” for notice and comment, with presumption of compliance based on substantially equal average per capita expenditures for men and women athletes and future expansion of opportunity and participation for women. On December 11, 1979, the HEW issued a final policy interpretation, “Title IX and Intercollegiate Athletics.” Rather than relying exclusively on a presump- tion of compliance standard, the final policy focused on an institution’s obli- gation to provide equal opportunity and established the concepts to be con- sidered in assessing actual compliance (currently referred to as the three- prong test: proportionality; history/continuing practice; and effective accom- modation of interests and abilities).

In 1980, the Department of Education (DOE) was established as a cabi- net-level federal department. The DOE was given oversight of Title IX through the Office for Civil Rights of the United States Department of Edu- cation (OCR). The DOE was also an active topic in Ronald Reagan’s cam-

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paign for president in 1980 because he ran on a platform to eliminate the department and limit the overreach of the department, as he identified it during stump speeches. After Reagan’s election, the DOE was not eliminat- ed, but Title IX was impacted both in the courtroom and in legislative assem- blies. In February 28, 1984, for example, the case of Grove City v. Bell limited the scope of Title IX, effectively taking away coverage of athletics except for athletic scholarships. The Supreme Court concluded that Title IX only applied to specific programs (i.e., the Office of Student Financial Aid) that receive federal funds. Under this interpretation, athletic departments were not necessarily covered.

In direct response to this decision and the view that the Court had over- reached in its verdict, the Civil Rights Restoration Act became law on March 22, 1988, after a veto by President Ronald Reagan was overridden. The Civil Rights Restoration Act overrode the Grove City v. Bell decision and mandat- ed that all educational institutions that receive any type of federal financial assistance, whether it be direct or indirect, be bound by Title IX legislation. A current case providing guidance in this matter would be Fitzgerald v. Barnstable. In a unanimous decision, the Court reinstated a lawsuit filed by parents under Title IX, which bars gender discrimination at schools that receive federal funds, and under Section 1983, a broader civil rights law.

Clarification Efforts

Over the next fifteen years, various parts of all branches of government attempted to provide clarification and structure to the issues arising from Title IX.

September 6, 1988: Haffer v. Temple University, a Title IX athletics law- suit won by plaintiff female athletes, gave new direction to athletic depart- ments regarding their budgets, scholarships, and participation rates of male and female athletes.

April 2, 1990: A Title IX Athletics Investigator’s Manual, written by Valerie M. Bonnette and Lamar Daniel, was issued by the OCR.

February 26, 1992: In Franklin v. Gwinnett County Public Schools, the Supreme Court ruled that monetary damages were available under Title IX. Previously, only injunctive relief was available (i.e., the institution would be enjoined from discriminating in the future). Shortly after the Franklin deci- sion, the NCAA completed and published a landmark gender-equity study of its member institutions.

The Equity in Athletics Disclosure Act (EADA), sponsored by Senator Mosley-Braun and Representative Collins, required any coeducational insti- tution of higher education that participated in any federal student financial aid program and sponsored an intercollegiate athletics program to disclose certain information concerning its intercollegiate athletics program. Under

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the EADA, annual reports would be required, with the first report available no later than October 1, 1996.

January 1996: The OCR issued a clarification of the three-part Effective Accommodation Test that reiterated the requirements of the policy interpre- tation that institutions could choose any one of three independent tests to demonstrate that they were effectively accommodating the participation needs of the underrepresented gender.

October 1, 1996: The first EADA report was due. All institutions were required to make available to all who inquired specific information on their intercollegiate athletics department.

November 21, 1996: A federal appeals court upheld a lower court’s ruling in Cohen v. Brown University holding that Brown University illegally dis- criminated against female athletes. Brown University argued that it did not violate Title IX because women were less interested in sports than men. Both the district court and the court of appeals rejected Brown’s argument. Many of the arguments offered by Brown were similar to those relied upon by colleges and universities all over the country.

After permitting private causes of action under Title IX to proceed in Cannon v. University of Chicago (1979) and Franklin v. Gwinnett County Public Schools (1992), the Supreme Court applied Title IX to the sexual harassment of a student by a teacher in a public school in Gebser v. Lago Vista Independent School District (1998). A year later, in Davis v. Monroe County Board of Education (1999), the Court extended its holding to sexual harassment of a student by a peer in a public school.

When the person engaging in sexual harassment is a student rather than a faculty member in higher education, additional requirements come into play. In the Davis decision, the Supreme Court stressed that the language of Title IX, coupled with the requirement that recipients of federal financial assis- tance be given notice of the provisions under the statute, required that institu- tions subject to liability must have substantial control over the harasser and the environment in which the harassment occurred before they could be liable: “Only then can the recipient be said to ‘expose’ its students to harass- ment or cause them to undergo it ‘under’ the recipient’s programs” (Davis, 646). In reaching this outcome, the Court relied in part on the requirement in Title IX that harassment occur under the operations of a funding recipient.

In both Gebser and Davis, the Supreme Court implicitly ruled that Title IX liability turned on a finding of intentional discrimination by the educa- tional institution. The Court indicated that before Title IX liability attaches, a plaintiff must demonstrate that institutional officials made a conscious choice to discriminate by failing to act on actual knowledge. The Court made it clear that it is not enough to show that an employee or agent of a college or university behaved improperly. Rather, the Court explained that a plaintiff

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must show that an official or officials at the educational institution endorsed such conduct or failed to stop it from continuing.

In 2005 the U.S. Supreme Court, in Jackson v. Birmingham Board of Education, rendered a sharply divided opinion in deciding that employees who report gender discrimination in violation of Title IX of the Education Amendments of 1972 and are retaliated against as a result of their complaint can seek redress for retaliation under Title IX.

In Jackson, the Supreme Court held that retaliation against a person who complains of sex discrimination is another form of intentional discrimination on the basis of sex that is subject to Title IX’s private right of action. The Court reasoned that retaliation, by definition, is an intentional act and a form of discrimination because the complainant is treated differently on the basis of a complaint, an action that represents an intentional response to an allega- tion of sex discrimination that constitutes the very nature of the complaint. The Court thus indicated that if the plaintiff is subject to retaliation for raising a complaint of sex discrimination, this constitutes intentional discrim- ination “on the basis of sex,” in violation of Title IX. The Jackson decision stimulated litigation against colleges and universities, resulting in costly damages and settlement agreements, and thereby opening a new means by which aggrieved employees might seek restitution from institutions of higher learning for instances of retaliation under Title IX.

In response to the litigation at the Supreme Court and the need to elimi- nate or remedy incidences of sexual harassment on college and university campuses, federal regulations promulgated pursuant to Title IX required in- stitutions to develop clearly written policies prohibiting all forms of sexual harassment. In developing and reviewing these policies, officials were re- quired to include representatives of faculty, staff, and students to ensure that those charged with harassment were entitled to protection under due process procedures that had been set forth for other forms of alleged policy viola- tions. At the same time, the policies were required to have effective and well- publicized procedures by which students, faculty, and staff could report and resolve sexual harassment complaints in a timely manner that respected the substantive and procedural due process rights of both the accused and the accuser.

February 20, 2001: The Supreme Court issued a decision in Brentwood v. Tennessee Secondary School Athletic Association holding that a high school athletic association is a “state actor” and thus subject to the Constitution. This means, for example, that the equal protection clause of the Fourteenth Amendment applies to athletic associations in gender equity suits.

December 17, 2001: Communities for Equity v. Michigan High School Athletic Association was decided, holding a state athletic association liable under Title IX, the equal protection clause, and Michigan state law for dis-

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criminating against girls by forcing six girls’ sports teams—but no boys’ sports teams—to compete in nontraditional and/or disadvantageous seasons.

February 2002: The National Wrestling Coaches Association, College Gymnastics Association, and the U.S. Track Coaches Association, along with several other groups representing male athletes and alumni of wrestling programs at Bucknell, Marquette, and Yale, filed suit alleging that Title IX regulations and policies were unconstitutional.

May 29, 2002: The U.S. Department of Justice filed a motion to dismiss on narrow, procedural grounds a complaint filed in federal court against the DOE attacking the three-prong test developed for schools to determine their compliance with Title IX in women’s athletics programs.

June 27, 2002: The U.S. secretary of education Rod Paige announced the establishment of a Commission on Opportunities in Athletics. The stated purpose of the commission was “to collect information, analyze issues and obtain broad public input directed at improving the application of current federal standards for measuring equal opportunity for men and women and boys and girls to participate in athletics under Title IX.”

July 11, 2003: The OCR issued “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance” reaffirming the validity and effectiveness of long-standing administrative regulations and policies governing this application.

March 17, 2005: The DOE issued policy guidance (“Additional Clarifica- tion”) that significantly weakened Title IX. Schools could now send out an e- mail survey to their female students asking them what additional sports they might have an interest and ability in playing. If the survey responses did not show enough interest or ability, the school would not have to add additional sports for female students—and would be presumed to be in compliance with Title IX.

April 20, 2010: The DOE issued a policy guidance that rescinded “Addi- tional Clarification” and all related documents, including the recommended survey.

Under the OCR’s interpretation, which has been universally endorsed by the federal appellate courts, institutional officials must do one of three things in order to achieve compliance with Title IX in the context of athletic partici- pation. Officials may ensure that the representation of each gender is sub- stantially proportionate; they may demonstrate a continuing history of ex- panding opportunities for students of the underrepresented gender; or they may demonstrate that they are currently accommodating the interests and abilities of the underrepresented gender.

In 1996, the OCR clarified that athletic opportunities are “substantially proportionate when the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team, meaning a team for which there is a sufficient number of interested and able

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students as well as enough available competition to sustain an intercollegiate team.”

Second, if an institution has not achieved substantial proportionality, its officials may demonstrate that it has a continuing history of expanding op- portunities for the underrepresented gender. In other words, it is acceptable for female representation among athletes to be substantially below their rep- resentation in the student body if an institution has consistently added new teams for women and intends to continue to do so in the future.

Third, institutional officials may demonstrate that they are currently ac- commodating all interests and abilities of the underrepresented gender. Under the guidance issued in 2005, compliance with the third prong turns on the following factors: unmet interest sufficient to sustain a varsity team in the sport or sports, sufficient ability to sustain an intercollegiate team in the sport or sports, and reasonable expectation of intercollegiate competition for a team in the sport or sports within the institution’s normal competitive region.

For scholarships, as in the case of the participation requirements, al- though no level of permissible deviation from exact equality in scholarship aid has been established, the OCR issued a guidance letter addressing this point. According to this letter, if any unexplained disparity in the scholarship budgets for athletes of either gender was 1 percent or less for the entire budget for athletic scholarships, there would be a strong presumption that such a disparity was reasonable and based on legitimate, nondiscriminatory factors. Conversely, there would be a strong presumption that an unexplained disparity of more than 1 percent was in violation of the “substantially propor- tionate” requirement.

GENDER EQUITY/TITLE IX (FOCUSED ON K–12 ONLY)

Force v. Pierce City R-VI School District (1983): A female middle-school student was unable to try out for her school’s football team because the tryouts were restricted to boys only. She claimed that the school’s policy violated her Fourteenth Amendment equal protection rights. The district court ruled in the student’s favor, finding that the school offered no justifi- able reason for preventing girls from trying out.

Sharif by Salahuddin v. New York State Education Department (1989): The state of New York awards merit scholarships to high-achieving high school students. Prior to this case, scholarships were awarded based solely on SAT scores. There was evidence to show, however, that female students received lower SAT scores than males and that SAT scores were not ade- quate predictors of female student performance in college. When female students challenged the practice in court, a federal court determined that reliance exclusively on SAT scores discriminated against female students

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and ordered that the state consider high school grades in conjunction with SAT scores in determining scholarship eligibility.

Pfeiffer v. Marion Center Area School District (1990): A female high school student was dismissed from her school’s National Honor Society (NHS) chapter upon discovery that she was pregnant. The NHS faculty coun- cil cited the student’s engaging in premarital sex as the reason for her dismis- sal, claiming that this behavior was inconsistent with the values expected of NHS members. The district court found no violation of Title IX. However, the court of appeals found that the district court had ignored testimony that the NHS had not dismissed a male student who had publically admitted to fathering a child while unmarried and ordered the district court to consider this evidence.

Franklin v. Gwinnett County Public Schools (1992): A female high school student had been sexually harassed by a teacher. Faculty and adminis- tration at the school had discouraged the student from pressing charges against the teacher, and the student sought monetary damages. The Supreme Court ruled that the student could indeed sue for damages under Title IX.

Chipman v. Grant County School District (1998): Female high school students who were unmarried mothers were denied admission to their school’s National Honor Society. The NHS chapter claimed that the denial was based on the girls’ characters. However, the court ruled that the chapter had violated Title IX by discriminating against pregnant women.

Enforcement of Title IX is the responsibility of the Department of Justice, which includes coordination of enforcement strategies across all federal agencies, conducting investigations in cooperation with the DOE, participat- ing in lawsuits or filing amicus briefs to assist in the courts’ interpretation of Title IX, and negotiating settlement agreements that require schools to reme- dy Title IX violations. The department has also assisted in the development of regulations, guidance documents, and compliance reviews along with gen- eral guidance to the public on the requirements of Title IX. This has resulted in the department being involved in a variety of issues at all levels of the justice system and various levels of the court system. Some highlights of these activities are given below.

TITLE IX IMPLICATIONS IN VARIOUS AREAS

Access to Justice under Title IX

• Jackson v. Birmingham Board of Education (S. Ct.) (2005): Whether Title IX prohibits retaliation against those who complain about discrimination

• Atkinson v. Lafayette College (3d Cir.) (2003): Whether retaliatory dismis- sal of female faculty members violates Title IX

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• Litman v. George Mason University (4th Cir.) (2001): Whether there is a private right of action to enforce Title IX’s anti-retaliation regulation

• Pederson v. Louisiana State University (5th Cir.) (2000): Whether Title IX is constitutional under the spending clause

• Beasley v. Alabama State University (11th Cir.) (1998): Whether states can claim Eleventh Amendment immunity from Title IX claims

• Cannon v. University of Chicago (S. Ct.) (1979): Whether Title IX allows individuals to sue in court if they are victims of discrimination

Sexual Harassment and Assault

• University of Montana Title IX Compliance Review and Title IV Investi- gation (2012): Investigation of a university’s handling of sexual assault and harassment claims

• Doe v. Merrill Community School District (6th Cir.) (2010): Whether a middle school acted with “deliberate indifference” to the rape of a student

• Lopez and United States v. Metropolitan Nashville School District (M.D. Tenn.) (2010): Consent decree reached in a case alleging sexual assaults on a special education bus

• A.B. v. Rhinebeck Central School District and Thomas Mawhinney (S.D. N.Y.) (2006): Consent decree achieved in case alleging sexual harassment of students by a principal

• Davis v. Monroe County Board of Education (S. Ct.) (1999): Whether Title IX permits monetary relief for student-on-student sexual harassment

• Gebser v. Lago Vista School District (S. Ct.) (1998): Whether Title IX permits monetary relief for teacher-on-student sexual harassment

Harassment Based on Gender Stereotypes

• Doe and United States v. Anoka-Hennepin School District (D. Minn.) (2012): Consent decree in case involving student harassment based on gender stereotypes

• Tehachapi Unified School District (E.D. Cal.) (2011): Settlement to ad- dress harassment of student based on gender nonconformity

• Pratt v. Indian River Central School District (N.D. N.Y.) (2010): Whether Title IX covers harassment based on nonconformance to gender stereo- types

• J.L. v. Mohawk Central School District (N.D. N.Y.) (2010): Settlement reached in case alleging harassment based on gender stereotypes

• Lovins and United States v. Pleasant Hill Public School District (W.D. Mo.) (2000): Consent decree providing relief for student in same-sex peer harassment case

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• Putman v. Board of Education of Somerset Independent Schools (E.D. Ky.) (2000): Whether a student’s Title IX claim should proceed given sexual nature and severity of harassment

Athletics

• Biediger v. Quinnipiac University (2nd Cir.) (2011): Whether a univer- sity’s competitive cheerleading team constitutes a “sport” under Title IX and whether disparity between male and female athletic opportunities vio- lates Title IX

• Biediger, et al. v. Quinnipiac University (D. Conn.) (2010): What consti- tutes a “sport” under Title IX and a “genuine” athletic opportunity

• Cook v. Florida High School Athletic Association (FHSAA) (M.D. Fla.) (2009): Whether disproportionate reductions in girls’ sports competitions violate Title IX

• Communities for Equity v. Michigan High School Athletic Association (6th Cir.) (2003): Whether scheduling female athletes to play in disadvan- tageous seasons violates Title IX

• Communities for Equity v. Michigan High School Athletic Association (W.D. Mich.) (2001): Relief achieved to address discriminatory playing seasons and facilities for female athletes

• Pedersen and United States v. South Dakota High School Activities Asso- ciation (M.D. S.D.) (2002): Whether requiring girls to play sports in dis- advantageous seasons violates Title IX

• Cohen v. Brown University (1st Cir.) (1995): Whether the court properly applied the three-prong test in a case involving cuts to women’s teams

Admissions

• Doe v. Vermilion Parish School Board (5th Cir.) (2010): Whether single- sex middle school classrooms comply with federal law

• United States and Mellette v. Jones (D. S.C.) (1997): Consent order achieved in case challenging males-only admissions policy of the Citadel

• United States v. Commonwealth of Virginia (W.D. Va.) (1990): Suit filed to challenge the males-only admissions policy of the Virginia Military Institute

• United States v. Commonwealth of Virginia (S. Ct.) (1994): Whether the Virginia Military Institute’s males-only admissions policy violates the equal protection clause

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Chapter Eight

Teacher Contracts, Rights, and Freedoms

TEACHER CONTRACTS

Offer and Acceptance

For a teacher contract to be legal and binding, there must be an offer from the proper school officials and an acceptance by the employee (teacher). A contract is not binding until both parties have agreed to the terms of the written contract through their authorized signatures.

Valid Consideration

For a contract to be legal, it must contain some reward for the person per- forming the duties outlined in the contract. In teacher contracts, the valid consideration will be a sum of money. The only times this could become a legal controversy for schools are instances where educators or noneducators volunteer to perform employment tasks for schools, such as coaching athlet- ics, directing a play, and so forth. If a contract is entered into between the school and the volunteer, there must be some valid consideration, even if it is only a dollar.

Legal Subject Matter

In relation to teacher contracts, legal subject matter would be any content area (subject) or school activity in which the teacher signing the contract is licensed or certified. The legal subject matter for the contract is contained within the license or certificate that is held by the teacher, and the curriculum

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and extracurricular activities that have been created and approved by admin- istrative or board of education policy.

Competent Parties

Any individual signing a teaching contract must be an adult, sound of mind, and in full control of their faculties at the time of the contract signing. For example, someone under the influence of alcohol or drugs, or a person deemed insane by the courts, would not be considered a competent party.

The competent party for the school is determined by the statutes of the state. Since only school officials can perform discretionary duties, and dis- cretionary powers can only be granted by the state legislature, one must look to the statutes for guidance. In most states, teacher contracts can only be granted by the board of education. In some rare instances, the statutes have given some other school authority this discretionary power.

This is often misunderstood by the public and by entry-year teachers. Some boards of education often instruct the superintendent or personnel

director to offer contracts to prospective teachers. Sometimes the contracts offered have been signed by the president of the board. However, in states where school administrators are employees and not officials, the board of education would have to approve the contracts at an open board meeting through the passage of a formal motion.

Definite Terms

Teacher contracts specify only that the teacher is employed to teach subjects for which he is licensed and to perform other duties as prescribed by board and administrative policy, usually defined as “duties assigned by the princi- pal [or appropriate administrator].” The contract does not have to contain the specific subjects to which the teacher will be assigned. The school authorities have the flexibility to assign teachers to any subject for which he is licensed.

Some school districts have negotiated agreements with a teachers’ union that restrict the board’s flexibility with regard to specific teacher assign- ments. For example, some negotiated agreements specify a date by which the teacher must be notified of his assignment, and no change can be made thereafter without his approval. If no negotiated agreement on this issue is in place, or if there is no board policy to the contrary, common law concerning contracts would give the school authorities flexibility to assign teachers to subjects in any manner consistent with each teacher’s teaching license.

Limited Contracts

These contracts usually range from one to five years in duration. Entry–year teachers start with a one-year contract. Many school systems offer only one-

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Teacher Contracts, Rights, and Freedoms 163

year limited contracts and continuing contracts (tenure). Others allow teach- ers to progress from one- to five-year contracts through graduated steps (such as one-, two-, three-, and five-year contracts) until they achieve tenure or work their entire career on limited contracts. States that do not offer tenure operate solely on limited contracts.

A limited contract is not considered a property right, and therefore the teacher is not in the legal position of the natural anticipation of continued employment. A limited contract can be nonrenewed by following procedural due process as determined by state statute. Nonrenewal can only occur at the end of the contract period. For one-year contracts, nonrenewal could occur at the end of each year. For a teacher on a three-year limited contract, the nonrenewal could only occur at the end of the third year, and so forth.

Continuing Contracts

Teachers obtain continuing contracts (tenure) by earning graduate degrees and accumulating successful experience. Once a continuing contract has been granted, the contract bestows upon the teacher a property right that includes the anticipation of continual employment. Continuing contracts can- not be nonrenewed as limited ones can. They must be terminated for specific reasons. Otherwise, the teacher is under continuing employment status.

Termination of Contracts

Teacher contracts, both limited and continuing, and limited administrator contracts can be terminated during the contract. Grounds for dismissal of educators under contract are as follows.

Incompetency

The most common forms of incompetency in teachers are a lack of subject matter knowledge and a lack of classroom management skills, including the ability to maintain student discipline. However, there are other forms of incompetency that are recognized by the courts. They fall under the follow- ing categories:

• poor relationship with other teachers • lack of cooperation with administration • poor attitude/disruptive influence • not in harmony with the philosophy of the school

These categories are affective in nature and indicate the courts’ acceptance of the fact that teaching is no longer an isolated profession. Instructional schemes and schedules require teachers to work closely with other teachers

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and the administration. The effectiveness of the instructional program de- pends on teamwork and the creation of a learning community. If a teacher is preventing this from happening through her attitude or behavior, the courts have deemed this to be a form of incompetency.

Insubordination

Insubordination is defined as a willful and deliberate refusal to follow board policy, administrative policy, or administrative directive. Such blatant behav- ior can result in the immediate dismissal of a teacher, and it is almost inde- fensible if the charges are true.

Immorality

For educators to be dismissed or terminated under a charge of immoral behavior or moral turpitude, there must be a nexus (connection) between the personal behavior that is considered immoral and their effectiveness as pro- fessional educators. Said another way, their private or personal actions must have an adverse effect upon the school and the community. This adverse effect must create an environment that would seriously hinder their ability to be effective teachers.

This legal standard precludes any universal definition of immorality. Each charge must be judged by whether or not a nexus between private and professional life has been created. Needless to say, what some communities and boards of education would consider immoral would not be taken serious- ly in other localities.

Reduction in Force

There are times when a school board may reduce its teaching staff without the presence of incompetence, insubordination, or immorality. For legitimate reasons a board may reduce its teaching staff by dismissing teachers, both tenured and nontenured. Legitimate reasons for reduction in force are

Financial Crisis: Most states have a minimum staffing level for teaching, usually determined on a per-pupil basis. For example, schools could be held to a minimum staffing level of forty teachers for every one thousand stu- dents. Most schools operate above that minimum standard. If the district has a financial crisis, it can reduce staff to the minimum level by reducing the teaching force accordingly.

A Pattern of Declining Enrollment: If the school system has experi- enced a pattern of declining enrollment, they may reduce staff to accommo- date this demographic shift. It should be noted that a one-year aberration in enrollment may not be considered a pattern of declining enrollment. For example, if a school system has 500 seniors, 400 juniors, 488 sophomores,

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Teacher Contracts, Rights, and Freedoms 165

and 490 freshmen, the small junior class would not be considered a pattern of declining enrollment.

Elimination of Programs: If a school system eliminates a program, the teaching positions within those programs can be eliminated. An example would be a school system with a comprehensive high school that decided to join or contract with a vocational district for all career and technical courses. The elimination of a program has to be done for educational reasons and not solely to rid the school system of the teachers currently employed in the program.

School Reorganization: If school districts are merged or consolidated, the new district may reduce staff if the reorganization has created an excess of teachers in a certain field. For example, if two small districts merge, each having two advanced science teachers, the new district might only need a total of three such teachers for these advanced courses. One science teaching position could be eliminated.

Unless there is a negotiated agreement with the teachers’ union to the contrary, reduction in force is based on the type of contract held by the teacher and the teacher’s years of experience in the school district. The most protected teachers are those on continuing contracts, from most experienced to least experienced. The protection then goes to teachers on limited contracts, from most experienced to least experienced. Following is a chart that illustrates teacher protection, from most to least.

Type of Contract Experience Teacher A Continuing 20 years Teacher B Continuing 5 years Teacher C Limited 12 years Teacher D Limited 8 years

The “Bumping” System: If a teacher holds dual licensing and his or her teaching position has been eliminated due to a reduction in force, that teacher may “bump” a teacher with less protection. For example, if a teacher holding dual licensing in English and social studies is a victim of reduction of force in English but has a higher contract and experience level than a teacher in social studies, the English teacher could claim the social studies position and thus “bump” the less-protected social studies teacher. The fact that the Eng- lish teacher has never taught social studies is not a legal consideration.

Union Payments and Teacher Contracts: Many public school districts have a unionized faculty, however not all teachers may have a desire to join the union. In those cases, can the teachers be required to still pay fees to the union, even if they do not wish to join the union? The courts have divided the

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precedents into two distinct types of compelled payments through the 1977 decision in the case of Abood v. Detroit Board of Education. Requiring nonmembers to pay for a union’s political activities violates First Amend- ment protections for free speech, however it is constitutional to require non- members to help pay for a union’s collective bargaining efforts to prevent what might be seen as “freeloading,” where the nonmembers receive the benefits of collective bargaining without having to bear any of the costs associated.

This second interpretation established by the Abood case has been chal- lenged at lower court levels over the past few years, most notably in the recent case of Friedrichs v. California Teachers Association. In this case, Rebecca Friedrichs, along with other teachers who filed suit with her, opted out of the California Teachers Association and argued that they should not have to pay any dues to the union. The case hinges on two main arguments. First, the plaintiffs say that when it comes to public employee unions, all activity is inherently political. Through the collective-bargaining process, unions essentially lobby public officials to allocate resources for one purpose (schools and teachers) rather than others, or to raise revenue to support high- er spending. The plaintiffs say that they may not agree with such political advocacy and therefore shouldn’t have to support it.

The second argument hinges on the idea that collectively bargained teach- er contracts include provisions the teachers themselves may oppose, such as seniority systems that establish pay scales based on time in service and not performance. They argue this could be a disincentive for teachers. This case was argued before the Supreme Court in January of 2016, but before a decision was drafted, Justice Antonin Scalia died. As result the court split 4–4 on the decision and the lower court verdict stands, supporting the pay- ments and not setting a precedent.

Private/Parochial Schools

It is legal for private/parochial schools to practice “at will” employment. However, many such schools provide yearly or multi-year contracts. Some contracts even contain provisions whereby the teacher can attain tenure (con- tinual contract status), which is a property right, thus giving the teacher more legal protection against nonrenewal, or termination through reduction in force or due process. The agreements between a private/parochial school and its faculty have to follow applicable federal regulations if federal funding is accepted by the institution.

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TEACHERS’ RIGHTS AND FREEDOMS

Freedom of Expression

In determining the extent of freedom granted to teachers in relation to free speech and expression, three legal sources must be considered: (1) the consti- tutional rights of the teacher as a citizen, primarily the First Amendment right to free speech; (2) the statutory rights of the school board to govern the school; and (3) contractual conditions of employment.

Criticism of School Policy or Personnel

In examining the right of a teacher to speak as a citizen on a matter of public concern, the courts use a balance of interest test as referred to in the Picker- ing case (see Pickering v. Board of Education of Township High School in the case summaries). The interest of the teacher to speak out as a citizen on a matter of public concern is balanced against the state’s interest to have an orderly educational environment. Following are significant points that will affect the balance test.

• Teachers may be forced to relinquish First Amendment rights they would otherwise possess to comment on matters of public interest in connection with the operation of the public schools if such comments (written or spoken) interfere with the school’s interest in promoting an efficient edu- cational system. (See Perry v. Sindermann; Mt. Healthy Board of Educa- tion v. Doyle; and Board of Regents of State Colleges et al. v. Roth.)

• As a general rule of thumb, the criticism is more likely to be protected if the teacher is not speaking about immediate superiors or peers. If the teacher criticizes fellow teachers or the principal, there is a greater likeli- hood that such action will disrupt the educational environment and thus be afforded less First Amendment protection.

• In order to claim First Amendment protection, the teacher must be speak- ing as a citizen and on matters of public concern. The controversy usually arises over whether the school situation that has been aired publicly is serious enough that it has become a matter of public concern.

• The school may not declare that any speech by a teacher is inappropriate because by doing so the teacher did not follow the chain of command. If the issue is of vital importance to the community, and thus a matter of public concern, the teacher may have a right to speak out as a citizen if he thinks the problem is not being properly addressed.

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Controversial Teaching Methods

If a teacher uses a controversial teaching method and is challenged, the teacher must show that the methodology is related to a valid instructional objective (see Keefe v. Geanakos). In another instance, a teacher showed the film Pink Floyd: The Wall without any attempt to tie the content of the film to her instructional objectives. Here, dismissal was upheld by the court (Fowler v. Board of Education of Lincoln County, Kentucky, 1987). These two contrasting cases illustrate when controversial methods are legally ac- ceptable and when they are not.

Academic Freedom

Academic freedom includes the right of teachers to speak freely concerning their subjects, to use innovative approaches, to experiment with new ideas, to choose appropriate pedagogical strategies, and to select educational materi- als. Academic freedom comes under the ambit of the First Amendment. The courts have held that it is fundamental to the promotion of a democratic society. Academic freedom allows the evaluation and criticism of values and practices in order to allow for political, social, economic, and scientific progress. Academic freedom, however, is not absolute. The courts will bal- ance its interest against that of competing educational values. Some areas to which academic freedom does not extend include the following:

• Teachers cannot preach their religious beliefs in class. • Teachers may not disregard texts and syllabi. • Teachers cannot discuss topics or distribute material that is not relevant to

the curriculum or instruction.

However, the courts have indicated that teachers do not have First Amend- ment free speech protections when it comes to curricular decisions. “Only the school board has ultimate responsibility for what goes on in the classroom, legitimately giving it a say over what teachers may (or may not) teach in the classroom,” the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said in its opinion. In the case of Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, the court made clear the teacher had been hired to teach a curriculum and the choices of the teacher ran counter to the wishes of the school board. “When a teacher teaches, the school system does not regulate that speech as much as it hires that speech,” Judge Jeffrey S. Sutton wrote. “Expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary. And if it is the school board that hires that speech, it can surely regulate the content of what is or is not expressed, what is expressed in other words on its behalf.”

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But while Evans-Marshall case satisfied two earlier Supreme Court stan- dards on public-employee speech, the plaintiff did not pass the standard set by the Court’s most recent decision in this area, Garcetti v. Ceballos. In Garcetti, decided in 2006, the Court held that public employees do not have First Amendment protection for speech “pursuant to” their official duties.

Religious Holidays for Teachers

State statutes and school policies usually permit teachers to be absent for major holidays of recognized religions. School calendars reflect these holi- days. Sometimes teachers request time off for religious holidays that do not match those of the school calendar. For example, if the school calendar follows the Judeo-Christian holidays, an Islamic teacher might request days off to worship during Ramadan. The school can grant such a request, howev- er, it does not have to pay for such days. Also, teachers cannot take unpaid religious holidays at will. Although the number of days does not have to exactly correspond to the number of paid leave days as specified in board policy and the school calendar, the courts have used this data as a guideline to determine the number of religious holidays a teacher may use. The courts have used as a criterion how much such absenteeism affects the quality of an instructional program.

A Teacher’s Rights to Wear Religious Clothing in Public Schools

Most public schools, through policy or state statute, prohibit the wearing of religious garb by teachers. The courts have generally upheld these restric- tions as a valid interpretation of the establishment clause of the First Amend- ment. A majority of educators and jurists believe that the wearing of religious garb by educators introduces a sectarian influence that should not be present in a public school. Such religious garb also seems to give the impression that the school supports a particular religion. Although schools may not infringe upon a teacher’s religious beliefs, actions based on this religious belief may be limited when a compelling interest of the state is at stake.

Teachers are permitted, under the fair use doctrine, to use certain copyrighted materials, both hard copy and technology, under certain conditions. When examining the fair use standard, the court uses four criteria. They consider

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

2. The nature of the copyrighted work. 3. The amount and substantiality of the portion used in relation to the

copyrighted work as a whole.

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4. The effect of the use upon the potential market for or value of the copyrighted work.

Specific exceptions for teachers include single copies of

• a chapter of a book • an article from a periodical or newspaper • a short story, short essay, or short poem • a chart, graph, diagram, drawing, cartoon, or picture from a book, news-

paper, or periodical

Teachers can make multiple copies of copyrighted material for classroom use only. The number of copies must not exceed the number of students in the class. Also, the copying must meet tests of brevity, spontaneity, and cumula- tive effect, and each copy must include a notation of copyright.

“Brevity” is met by using excerpts from longer published works, or com- plete works of short length such as 250-word poems, or articles of less than 2,500 words. “Spontaneity” is legitimate when the inspiration of the teacher and the decision to use a work are so close to the time of instruction that it would be unreasonable to expect a timely reply to a request for permission. “Cumulative effect” obtains when the material is used for only one course, with consideration of the number of times the work is copied without permis- sion.

Teachers should be careful when extending the fair use doctrine to tech- nology, such as DVDs and videos. Although interpretation of the law con- cerning technology, including the Internet, is in its infancy, it is reasonable to assume that the fair use doctrine will be applied by the courts.

LICENSING AND STATE REGULATION FOR PRIVATE/ PAROCHIAL SCHOOLS

Through statutory degree, states have extensive regulatory authority over private/parochial schools by exercising their police powers. In order to apply their police power to legally regulate private/parochial schools, the state must show a compelling, legitimate, governmental interest without violating par- ents’ Fourteenth Amendment right to direct, by choice of school, the educa- tion of their child.

State regulatory authority over private/parochial schools usually is mani- fested in two ways: through (1) chartering and (2) licensing. In some states, no state educator (teacher or administrator) license is required. In others, a separate license for non-public use (teacher or administrator) is acceptable

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even though the requirements to achieve the nonpublic license are less than that required for state public use.

Many private/parochial school systems have voluntarily required that all teachers and administrators hold a state public license. Others informally support this position by only hiring teachers and administrators who hold state public licenses.

In considering private/parochial parents’ challenges to state regulation, the courts, although not in total consensus on all issues, tend to view the conflict from the prospective of the degree of state regulation as opposed to whether there should be any state regulation at all.

For example, much of the conflict revolves around educational standards and how they are assessed. The courts have tended to accept that standards and common assessments are rationally related to the legitimate and compel- ling interest of the state. Private/parochial parents have argued that mandated standards and assessments infringe upon their Fourteenth Amendment right to direct, by choice of school, the education of their child. They also argue that such standards and assessments eradicate the differences between public and private/parochial schools.

In considering these two legal positions, the courts have tended to favor some regulation of the state with regard to educational standards and assess- ments. However, this advocacy of a state’s compelling public interest, ap- plied through its police powers, must not be so intrusive that it displaces the private/parochial school’s discretion in designing its own unique educational program. Difficulty arises when parents divorce with children enrolled in a private/parochial school. No school policy can cover all the circumstances that may accompany a divorce. Therefore, the school must abide by the agreement that the divorced parents have negotiated in court. What is imper- ative for the private/parochial school is that it carry out the dictates of such agreements to the letter so as to avoid charges of negligence or interference with the rights of one or both of the divorced parents.

Key to good administration is to revisit the contractual agreement that was signed between the school and the parents prior to the divorce and to restructure the contractual agreement according to the court’s mandate.

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CASE SUMMARIES

Pickering v. Board of Education of Township High School

District 205, Will County Appeal from the Supreme Court of Illinois Argued March 27, 1968; Decided June 3, 1968

Topic: Teachers’ rights. Issue: A teacher’s right to speak out freely on matters of public concern. Facts: The appellant, Marvin L. Pickering, was dismissed from his job as

a teacher in Township High School District 205, Will County, Illinois, for sending a letter to a local newspaper criticizing the board’s allocation of school funds between education and athletic programs and the board’s and superintendent’s methods of informing or preventing the informing of the school district’s taxpayers of the real reasons why tax revenues were being sought for the schools.

In February 1961, the appellee board of education tried to get the voters to approve a bond issue to raise $4,875,000 to build two new schools. The proposal was defeated. The board went back to the voters in December 1961, and a bond issue was passed to raise $5,500,000 to build the schools. The schools were built with the money raised, and in May 1964, the board pro- posed a tax increase for educational purposes. It was defeated then and again in September of that year. It was after the second defeat of the proposal that appellant Pickering wrote the letter to the editor. The letter criticized the board for not being honest about where the money was spent when the new schools were built, for not being honest about how money was being allocat- ed, and for misrepresenting teachers’ support of the tax proposal. He also charged that the superintendent coerced teachers into supporting it. His real issue was how much money was going into athletics at, what he believed, the expense of other educational needs, particularly teachers’ salaries.

Pickering was dismissed for writing and publishing the letter because the board determined that the letter was “detrimental to the efficient operation and administration of the schools of the District” and that “interests of the school required his dismissal.” The board held the required full hearing and charged that many of the statements in the letter were false and that the publication of the statements unjustifiably impugned the “motives, honesty, integrity, truthfulness, responsibility, and competence” of both the board and the school administration. The board also charged that the false statements damaged the professional reputation of its members, and of the school ad- ministration; would be disruptive of faculty and discipline; and would tend to foment “controversy, conflict and dissension” among teachers, administra- tors, the board of education, and the residents of the district.

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At no time during the proceedings was any evidence introduced as to the effect of the publication of the letter on the community as a whole or on the administration of the school system in particular, and no specific findings along these lines were made.

Pickering claimed that his letter was protected by the First Amendment. The Illinois courts reviewed the proceedings solely to determine whether the board’s findings were supported by substantial evidence and whether the facts as found supported the board’s conclusion that the letter was “detrimen- tal to the best interests of the school.” They upheld Pickering’s dismissal, rejecting his claim on the grounds that acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools “which in the absence of such position he would have an undoubted right to engage in.”

Findings of the U.S. Supreme Court: Justice Thurgood Marshall delivered the opinion of the Court, which reversed the lower court’s decision for a number of reasons.

1. The premise that teachers may constitutionally be compelled to give up their First Amendment rights they would otherwise enjoy as citi- zens to comment on matters of public interest in connection with the public schools in which they work has been unequivocally rejected in many prior decisions of the Court. There has to be a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern, and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.

2. The board contended that Pickering had a duty to be loyal and suppor- tive of his superiors or at the very least a responsibility to speak factually. The Supreme Court found that in this case the statements appellant made were in no way directed toward any person with whom he would normally be in contact with in the course of his daily duties as a teacher and that his statements did not impact the board’s ability to operate the school. They also felt that teachers needed to be able to speak out freely on matters concerning schools without fear of retalia- tion or dismissal. In addition, no evidence was introduced to support the allegations that the letter damaged the professional reputations of the board or the superintendent or that it would “foment controversy and conflict among the Board, teachers, administrators, and the resi- dents of the District.” The tax issue had already failed so his letter couldn’t impact it, and all the board had to do was publish a factual statement contradicting Pickering’s statement. The board had to make sure that they were not confusing the district’s interests with their

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interests. For the most part, other than the board, people were either disbelieving or apathetic about the whole thing.

3. The board claimed that Pickering’s statements were false. The Su- preme Court found that there was some truth in what Pickering said and that even the false statements were innocently or negligently made. Even false statements made under these circumstances are pro- tected by the First Amendment.

4. Because of prior rulings, the Court was hesitant to make an across-the- board ruling about dismissal of public employees making libelous statements against employers. In this case, they felt that because Pick- ering’s employment was “only tangentially and insubstantially in- volved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.”

Dissenting: Justice White concurred in part and dissented in part. The Court held that truthful statements by a teacher critical of the school board are within the scope of the First Amendment. White agreed with this part of the ruling. However, even false statements that are innocently and negligent- ly made are protected. Justice White felt that the Court spent too much time re-examining the effect of Pickering’s letter on the school system. He thought this was irrelevant because even if damage had been done, Pickering would have been protected if he made the statements innocently or negligent- ly. If, on the other hand, he knowingly and recklessly made the false state- ments, he would not be protected by the First Amendment and could be dismissed regardless of impact on the school system.

The following is the letter written by the appellant and appearing in the Letters to the Editor section of Graphic Newspapers, Inc., Thursday, Septem- ber 24, 1964, page 4.

Dear Editor: I enjoyed reading the back issues of your paper, which you loaned to me.

Perhaps others would enjoy reading them in order to see just how far the two new high schools have deviated from the original promises by the Board of Education. First, let me state that I am referring to the February thru Novem- ber, 1961 issues of your paper, so that it can be checked.

One statement in your paper declared that swimming pools, athletic fields, and auditoriums had been left out of the program. They may have been left out but they got put back in very quickly because Lockport West has both an auditorium and athletic field. In fact, Lockport West has a better athletic field than Lockport Central. It has a track that isn’t quite regulation distance even though the board spent a few thousand dollars on it. Whose fault is that? Oh, I forgot, it wasn’t supposed to be there in the first place. It must have fallen out of the sky. Such responsibility has been touched on in other letters but it seems

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Teacher Contracts, Rights, and Freedoms 175

one just can’t help noticing it. I am not saying the school shouldn’t have these facilities, because I think they should, but promises are promises, or are they?

Since there seems to be a problem getting all the facts to the voter on the twice defeated bond issue, many letters have been written to this paper and probably more will follow, I feel I must say something about the letters and their writers. Many of these letters did not give the whole story. Letters by your Board and Administration have stated that teachers’ salaries total $1,297,746 for one year. Now that must have been the total payroll, otherwise the teachers would be getting $10,000 a year. I teach at the high school and I know this just isn’t the case. However, this shows their “stop at nothing” attitude. To illustrate further, do you know that the superintendent told the teachers, and I quote, “Any teacher that opposes the referendum should be prepared for the consequences.” I think this gets at the reason we have prob- lems passing bond issues. Threats take something away; these are insults to voters in a free society. We should try to sell a program on its merits, if it has any.

Remember those letters entitled “District 205 Teachers Speak,” I think the voters should know that those letters have been written and agreed to by only five or six teachers, not 98% of the teachers in the high school. In fact, many teachers didn’t even know who was writing them. Did you know that those letters had to have the approval of the superintendent before they could be put in the paper? That’s the kind of totalitarianism teachers live in at the high school, and your children go to school in.

In last week’s paper, the letter written by a few uninformed teachers threatened to close the school cafeteria and fire its personnel. This is ridiculous and insults the intelligence of the voter because properly managed school cafeterias do not cost the school district any money. If the cafeteria is losing money, then the board should not be packing free lunches for athletes on days of athletic contests. Whatever the case, the taxpayer’s child should only have to pay about 30 cents for his lunch instead of 35 cents to pay for free lunches for the athletes.

In a reply to this letter your Board of Administration will probably state that these lunches are paid for from receipts from the games. But $20,000 in receipts doesn’t pay for the $200,000 a year they have been spending on varsity sports while neglecting the wants of teachers.

You see we don’t need an increase in the transportation tax unless the voters want to keep paying $50,000 or more a year to transport athletes home after practice and to away games, etc. Rest of the $200,000 is made up in coaches’ salaries, athletic directors’ salaries, baseball pitching machines, sod- ded football fields, and thousands of dollars for other sports equipment.

These things are all right, provided we have enough money for them. To sod football fields on borrowed money and then not be able to pay teachers’ salaries is getting the cart before the horse.

If these things aren’t enough for you look at East High. No doors on many of the classrooms, a plant room without any sunlight, no water in a first aid treatment room, are just a few of many things. The taxpayers were really taken to the cleaners. A part of the sidewalk in front of the building has already collapsed. Maybe Mr. Hess would be interested to know that we need blinds on the windows in that building also.

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Chapter 8176

Once again the board must have forgotten they were going to spend $3,200,000 on the West building and $2,300,000 on the East building.

As I see it, the bond issue is a fight between the Board of Education that is trying to push tax-supported athletics down our throats with education, and a public that has mixed emotions about both of these items because they feel they are already paying enough taxes, and simply don’t know whom to trust with any more tax money.

I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken from the teachers by the administration. Do you really know what goes on behind those stone walls at the high school? Respectfully, Marvin L. Pickering

Perry v. Sindermann

U.S. Supreme Court 1972 408 U.S. 593, 92 S. Ct 2694

Topic: Due process. Issue: Whether Robert Sindermann’s First and Fourteenth Amendment

rights were violated by termination of his employment by a board of regents in the State of Texas.

Facts: Robert Sindermann was a teacher in the state college system of the State of Texas from 1959 to 1969. He taught two years at the University of Texas and four years at San Antonio Junior College. He was then employed four successive years under a series of one-year contracts at Odessa Junior College from 1965 to 1969. He became a professor of government and social services in 1965 and was appointed, for a time, the cochairman of his depart- ment.

During the 1968–1969 academic year, controversy arose between Sinder- mann and the administration. He had been elected president of the Texas Junior College Teaching Association, and in this capacity, he became in- volved in public disagreements with the board’s policies, which included aligning himself with a group advocating the elevation of the college to four- year status, a change opposed by the regents.

As a result, his one-year contract was not renewed when it ended in May. Also, he was not allowed the opportunity of a hearing to challenge the basis of the nonrenewal.

Sindermann brought action in federal district court. He alleged that the regents’ decision not to rehire him was based on his public criticism of the policies of the administration, and this infringed on his right to freedom of speech. Also, the regents’ failure to provide him with an opportunity for a hearing violated the Fourteenth Amendment guarantee of procedural due process.

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Federal District Court Findings: The federal district court granted sum- mary judgment for the board of regents (petitioners).

Rationale: The federal district court concluded that the respondent had no cause for action against the petitioner since his contract of employment ter- minated May 31, 1969, and Odessa Junior College had not adopted a tenure system.

Court of Appeals Findings: The court of appeals reversed the judgment of the district court 430 F. 2d 939. The court of appeals granted a writ of certiorari, 403 U.S. 917.91 S. Ct 2226, 29 L. Ed. 2d 694.

Rationale: First, it held that despite the respondent’s lack of tenure, the nonrenewal of his contract would violate the Fourteenth Amendment if in fact it was based on his protected speech. Since the actual reason for the regents’ decision was “in total dispute” in the pleadings, the court remanded the case for a full hearing on this contested issue.

Second, despite the respondent’s lack of tenure, the failure to allow him an opportunity for a hearing would violate the constitutional guarantee of procedural due process if the respondent could show that he had an “expec- tancy” of reemployment. The court recommended a full hearing on this issue of fact.

U.S. Supreme Court Findings: “While we do not wholly agree with the opinion of the Court of Appeals, its judgment remanding this case to the District Court is affirmed.”

Rationale: “The first question presented is whether the respondent’s lack of a contractual or tenure right to reemployment, taken alone, defeats his claim that a nonrenewal of his contract violated the First and Fourteenth Amendment. We hold it does not.

“The District Court foreclosed any opportunity for the respondent to show that the decision not to renew his contract was in fact made in retalia- tion when it granted summary judgment.

“We agree with the Court of Appeals that there is a genuine dispute as to whether the college refused to renew the teaching contract on an impermis- sible basis.

“The respondent’s lack of formal contractual or tenure security in contin- ued employment at Odessa Junior College though irrelevant to his free speech claim is highly relevant to his procedural due process claim. But it might not be entirely dispositive.

“A teacher, like the respondent, who has held his position for a number of years, might be able to show from the circumstances of his service and from other relevant facts that he has a legitimate claim of entitlement to job tenure.

“We disagree with the Court of Appeals insofar as it held that a mere subjective ‘expectancy’ is protected by procedural due process. However, we agree that the respondent must be given an opportunity to prove the legitima-

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cy of his claim of such entitlement in the light of the policies and practices of the institution.

“Proof of such a property interest would not, of course, entitle him to reinstatement. But such proof would obligate college officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency.”

Mt. Healthy City Board of Education v. Doyle

429 U.S. 274 (1997)

Issue: Evidence must show that a teacher’s exercise of constitutional rights was the motivating factor not to rehire before judicial action is jus- tified.

Findings: The Court of Appeals for the Sixth Circuit affirmed the judg- ment of the district court that Doyle was entitled to reinstatement with back pay. U.S. Supreme Court: “The judgment of the court of appeals is vacated, and the case is remanded for further proceedings consistent with this opin- ion.”

Facts: Doyle was a nontenured employee prior to the board not renewing his contract. He was elected president of the teachers’ association in 1969 for one year and the succeeding year served on its executive committee, and there was apparently some tension in relations between the board and the association. Beginning in 1970, he was involved in several incidents.

• He had an argument with another teacher, who slapped him. Doyle refused to accept an apology and they both were suspended, causing a teacher walkout and forcing the board to lift the suspension.

• He had an argument with employees of the school cafeteria over the amount of spaghetti served him.

• He referred to students, in connection with a disciplinary complaint, as “sons of bitches.”

• He made an obscene gesture to two girls in the cafeteria. • He made a telephone call to a local radio station, WSAI, giving informa-

tion about a memorandum from the principal regarding teacher dress, which he understood was to be settled by a joint teacher-administration action. He later apologized.

One month later, the superintendent recommended that Doyle not be rehired, along with nine other teachers. Doyle requested a statement of reasons and received the following statement:

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You have shown a notable lack of tact in handling professional matters which leaves much doubt as to your sincerity in establishing good school relation- ships.

A. You assumed the responsibility to notify WSAI Radio Station in re- gards to the suggestion of the Board of Education that teachers establish an appropriate dress code for professional people. This raised much concern not only within this community, but also in neighboring communities.

B. You used obscene gestures to correct students in a situation in the cafeteria causing considerable concern among those students present. Sincerely yours, Rex Ralph, Superintendent

Board of Regents of State Colleges et al. v. Roth

Certiorari to the United States Court of Appeals for the Seventh Circuit Argued January 18, 1972; Decided June 29, 1972

Topic: Tenure/teacher’s rights. Issue: David Roth, an assistant professor at a state university, had no

tenure rights to continued employment. He was informed that he would not be rehired after his first academic year, and he alleged that the decision not to rehire him infringed on his Fourteenth Amendment rights.

Facts: In 1968, Mr. Roth was hired for a fixed term of one academic year to teach at his first teaching job as assistant professor of political science at Wisconsin State University, Oshkosh. The notice of his faculty appointment specified that his employment would begin on September 1, 1968, and would end on June 30, 1969. The respondent completed that term. Though Roth was rated by the faculty as an excellent teacher, he had publicly criticized the administration for suspending ninety-four black students without determin- ing individual guilt. He also criticized the university’s regime. He was in- formed, without explanation, that he would not be rehired for the ensuing year.

A statute provided that all state university teachers would be employed initially on probation and that only after four years’ continuous service could teachers achieve permanent employment “during efficiency and good behav- ior” with procedural protection against separation. University rules gave a nontenured teacher dismissed before the end of the year some opportunity for review of the dismissal but provided that no reason need be given for nonre- tention of a nontenured teacher, and no standards were specified for reem- ployment. Respondent brought this action claiming deprivation of his Four- teenth Amendment rights, alleging infringement of his free speech right be- cause the true reason for his nonretention was his criticism of the university administration and infringement of his procedural due process right because of the university’s failure to advise him of the reason for its decision. The U.S. District Court for the Western District of Wisconsin granted summary

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judgment for Roth on procedure issues, ordering university officials to pro- vide him with reasons and a hearing. The court of appeals affirmed the partial summary judgment, and certiorari was granted.

Findings: The U.S. Supreme Court, with Justice Stewart writing, held that where the state did not make any charge against the assistant professor that might seriously damage his standing and associations in his community and there was no suggestion that the state imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities, he was not deprived of “liberty” protected by the Fourteenth Amendment when he simply was not rehired in the job but remained as free as before to seek another. The Court further held that where terms of appoint- ment of the assistant professor secured absolutely no interest in reemploy- ment of the next year and there was no state statute or university rule or policy that secured his interest in reemployment or that created any legiti- mate claim to it, he did not have a property interest protected by the Four- teenth Amendment that was sufficient to require university authorities to give him a hearing when they declined to renew his contract of employment. Judgment of the court of appeals reversed and case remanded.

Justice Stewart delivered the opinion of the Court, in which Justices Bur- ger, White, Blackmon, and Rehnquist joined. Justices Douglas and Marshall filed dissenting opinions. Chief Justice Burger filed a concurring opinion, and Justice Powell took no part in the decision of the case.

Rationale: “The respondent had no contract of employment. Rather, his formal notice of appointment was the equivalent of an employment contract. The notice of his appointment provided that: ‘David Roth is hereby ap- pointed to the faculty of the Wisconsin State University.’ The notice went on to specify that the respondent’s appointment basis was for the academic year. And it provided that regulations governing tenure are in accord with Chapter 37.31 of the Wisconsin Statutes. The employment of any staff member for an academic year shall not be for a term beyond June 30th of the fiscal year in which the appointment was made.

“The respondent had no tenure rights to continued employment. Under Wisconsin statutory law, a state can acquire tenure as a ‘permanent’ employ- ee only after four years of year-to-year employment . . . A relatively new teacher without tenure, however, is under Wisconsin law entitled to nothing beyond his one-year appointment. There are no statutory or administrative standards defining eligibility for re-employment. State law thus clearly leaves the decision whether to rehire a non-tenured teacher for another year to the unfettered discretion of university officials.

“The procedural protection afforded a Wisconsin State University teacher before he is separated from the University corresponds to his job security. As a matter of statutory law, a tenured teacher cannot be ‘discharged’ except for cause upon written charges and pursuant to certain procedures. A non-ten-

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ured teacher, similarly, is protected to some extent during his one–year term. Rules promulgated by the Board of Regents provide that a non-tenured teacher ‘dismissed’ before the end of the year may have some opportunity for review of the ‘dismissal.’ But the rules provide no real protection for a non- tenured teacher who simply is not re-employed for the next year. He must be informed by February l concerning retention or non-retention for the ensuing year. But no reason for non-retention need be given. No review or appeal is provided in such a case.

“In conformance with these rules, the President of Wisconsin State Uni- versity-Oshkosh informed the respondent before February 1, 1969, that he would not be rehired for the 1969–1970 academic year. He gave the respon- dent no reason for the decision and no opportunity to challenge it at any sort of hearing.

“The District Court granted summary judgment of the respondent on the procedural issue, ordering the University officials to provide him with rea- sons and a hearing. The Court of Appeals, with one judge dissenting, af- firmed this partial summary judgment. We granted certiorari. The only ques- tion presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and hearing on the University’s decision not to rehire him for another year. We hold that he did not.

“The requirements of procedural due process apply only to the depriva- tion of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of hearing is paramount. But the range of interests protected by procedural due process is not infinite.

“The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. Undeniably the respondent’s re-employment prospects were of ma- jor concern to him—concern that we surely cannot say was insignificant. And a weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interests at stake. We must look to see if the interest is in the Fourteenth Amendment’s protection of liberty and property.

“The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in the community. It did not base the non-renewal of his contract on a charge, for example, that he had been guilty of dishonesty or immorality . . . The State did not invoke any regulations to bar the respondent from all other public employment in state universities. . . .

“To be sure, the respondent has alleged that the non-renewal of his contract was based on his exercise of his right to freedom of speech. But this

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allegation is not now before us. The District court stayed proceedings on this issue, and the respondent has yet to prove that the decision not to rehire him was, in fact, based on his free speech activities. . . .

“Our analysis of the respondent’s constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of reasons for non-retention would, or would not, be appropriate or wise in public colleges and universities . . . We must conclude that the summary judgment for the respondent should not have been granted, since the respon- dent has not shown that he was deprived of liberty, or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accord- ingly, is reversed and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded.”

Justice Douglas, dissenting: “Respondent Roth had no tenure under Wis- consin law and he had only one year of teaching at Wisconsin State Univer- sity-Oshkosh. Though Roth was rated by the faculty as an excellent teacher, he had publicly criticized the administrations for suspending an entire group of 94 black students without determining individual guilt. He also criticized the university’s regime as being authoritarian and autocratic. He used his classroom to discuss what was being done in the black episode; and one day, instead of meeting his class, he went to the meeting of the Board of Regents. In this case, an action was started in federal district court claiming in part that the decision of the school authorities not to rehire was in retaliation for his expression of an opinion.

“The district court, in partially granting Roth’s motion for summary judg- ment, held that the Fourteenth Amendment required the University to give a hearing to teachers whose contracts were not to be renewed and to give reasons for its action. The Court of Appeals affirmed.

“There may not be a constitutional right to continued employment if private schools and colleges are involved. The First Amendment, applicable to the states by reason of the Fourteenth Amendment, protects the individual against state action when it comes to freedom of speech and of the press and the related freedoms guaranteed by the First Amendment. . . .

“No more direct assault on academic freedom can be imagined than for the school authorities to be allowed to discharge a teacher because of his or her philosophical, political, or ideological beliefs. The same may well be true of private schools, if through the device of financing or other umbilical cords they become instrumentalities of the state. . . .

“When a violation of the First Amendment rights is alleged, the reason for dismissal or for nonrenewal must be examined to see if the reasons given are only a cloak for activity or attitudes protected by the Constitution. . . .

“In the case of teachers whose contracts are not renewed, tenure is not the critical issue. . . .

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“If this nonrenewal implicated the First Amendment, then Roth was de- prived of constitutional rights because his employment was conditioned on surrender of First Amendment rights and, apart from the First Amendment, he was denied due process when he received no notice and hearing of the adverse action contemplated against him. Without a statement of the reasons for the discharge and an opportunity to rebut those reasons—both of which were refused by the petitioners—there is no means short of a lawsuit to safeguard the right not to be discharged for the exercise of First Amendment guarantees.

“Accordingly, I would affirm the judgment of the court of appeals.”

Robert J. Keefe, Plaintiff, v. George J. Geanakos et al., Defendants

Civ. A. No. 69-1093

Topic: In Massachusetts’s district court a teacher seeks injunction and money damages for an allegedly wrongful suspension and threatened dismis- sal. These actions were taken as a result of the teacher using material contain- ing offensive language.

Facts: On October 8, 1969, Robert Keefe was suspended for a period of seven days for “unbecoming conduct and other good causes.” Causes for proposed dismissal were Keefe’s

• conducting himself in a manner unbecoming a teacher and department coordinator

• undermining public confidence by allowing students to build an outhouse as a symbol of the irrelevance of the school’s course work, schedules, and regulations

• using offensive materials • refusing to obey a direct order not to teach class and to remain in his office

Findings: In the opinion, written by District Judge Caffrey, the court denied the petition for temporary injunction.

Rationale: Before obtaining an injunction, a plaintiff must satisfy two requirements. First, plaintiff must demonstrate that if the injunction is denied he will suffer “certain and irreparable” damages. The court found that no irreparable harm could be done because, if the plaintiff prevailed, monetary damages would be an adequate remedy.

The second requirement that the plaintiff must show to secure an injunc- tion is a reasonable probability that he will ultimately prevail. Judge Caffrey sited Parker v. Board of Education as a very similar case. In this case, a teacher challenged his dismissal for using Brave New World as an infringe- ment of his First Amendment right to free speech. The court ruled that the First Amendment guarantee is not absolute. “Where abridgement to the right

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to free speech results from government action to protect other substantive public rights, no constitutional deprivation will be found to exist.”

Robert J. Keefe, Plaintiff, v. George J. Geanakos et al., Defendants, Appellees

No. 7463 U.S. Court of Appeals for the First Circuit

Topic: Plaintiff appeals the decision of the district court that denied his request for an injunction.

Facts: Plaintiff’s position is that his conduct did not warrant discipline and there are no grounds for a hearing to determine if he should be dismissed. His position has two parts. First, his conduct was “within his competence as a teacher, as a matter of academic freedom, whether the defendants approved or not.” Secondly, he was not given adequate prior warning that his actions would be considered improper.

Defendants argue that academic freedom is limited to proper classroom materials as determined by the school committee “in light of pertinent condi- tions.” They cite the age of the students in this case.

Findings: The order of the district court denying an injunction is reversed and the case is remanded for further proceedings.

Rationale: In the opinion given by Chief Judge Aldrich, the court states that the article in which the offensive language was used is in no way porno- graphic. “The article is scholarly and thought provoking. The use of the word is important to the development of the thesis and the conclusions of the author. The court doesn’t think the word is unknown or offensive to the senior students and believe that its use is disturbing only to their parents. If students need to be protected from such language then they fear for their futures.”

To the charge that the use of such material would undermine public confidence, the court cites Ginsberg v. New York, which establishes that what is read or said to students is not to be determined by adult obscenity stan- dards. However, it does not find high school seniors devoid of all discrimina- tion or resistance and the offensiveness must be dependent on the circum- stances of its use.

The justices disagree with the findings of the district court when they cite Parker v. Board of Education. The teacher in this case was not dismissed; his complaint was that he was not renewed. They also quote Justice Frankfurter in Wieman v. Updegraff, “Such unwarranted inhibition upon the free spirit of teachers affects not only those who, like the appellants, are immediately before the Court. It has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially cultivate and practice.”

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The justices state that it is probable that the plaintiff will prevail on the charge of lack of notice as the school library contains no fewer than five books containing the offensive word.

Finally, they disagree with the district finding that no irreparable injury is involved because the plaintiff may recover money damages. They state, “Ac- ademic freedom is not preserved by compulsory retirement, even at full pay.”

Simonetti v. School District of Philadelphia

Superior Court of Pennsylvania, 1982 308 Pa. Super. 555, 454 A. 2d 1038

[Richard Simonetti, a minor, by his parent and natural guardian, Alberta Simonetti, and Alberta Simonetti, in her own right v. School District of Philadelphia, Appellant]

Topic: Whether a teacher’s momentary absence from a classroom consti- tutes negligence.

Facts: Richard Simonetti, a fifth-grade student, returned to the classroom from recess and was struck in the left eye by a pencil that had been propelled out of the hand of a classmate when he tripped. The teacher, an employee of the School District of Philadelphia, was outside the classroom, standing at the door, when Simonetti was injured. There she was engaged in monitoring the return of her students from recess and talking with another teacher. The student who dropped or threw the pencil and two other students had been required to remain in the classroom during recess as punishment for misbe- havior at breakfast. They had been talking with the teacher during the recess period and were instructed to take their seats when the teacher stepped out- side the classroom to supervise the return of the students from recess.

Simonetti filed action against the school district with the Court of Com- mon Pleas of Philadelphia by contending that the teacher had been negligent in failing to provide adequate classroom supervision. The case was tried without a jury, and damages of $15,000 were awarded to the minor plaintiff and his mother. An appeal followed this verdict.

Findings of the Superior Court of Pennsylvania: The Superior Court of Pennsylvania reversed the decision of the Court of Common Pleas of Phila- delphia. Citing facts from several precedent cases, the court stated that to require the teacher to anticipate the events that occurred while the teacher was outside the classroom door would be to hold that a teacher is required to anticipate the myriad of unexpected acts that occur daily in classrooms in every school in the land. They agreed that this is not the law and perceived no good reason for imposing such an absolute standard on teachers and school districts.

Rationale: Majority opinion, Judge Wieand. “The following are dominant facts that mark and control the confines of the Court’s decision: (1) ‘It is

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common knowledge that children may indulge in horseplay. They may throw a pencil, shoot a paper clip or snap a rubber band when a teacher is absent or turns his or her back.’ (2) The teacher attempted to guard against any horse- play by instructing the three students who were in the classroom to return to their seats and to remain there. (3) Even though the three students who remained in the classroom during recess were being punished for unrelated misconduct at breakfast, there is no evidence that they were hellions who required constant custodial care. The Court applied the following cases as a proper standard of review:

“(1) Bottorf v. Waltz, 245 Pa. Super. 139,369 A.2d 332 (1976). In a case in which a student had been burned when melted wax was spilled on his back, this Court defined the standard of care required of a teacher as follows: ‘What constitutes proper supervision depends largely upon the circumstances attending the event. Thus, the fact that supervisory personnel present when an accident occurs could conceivably have prevented its occurrence does not necessarily render the school agency liable if the supervisory personnel was competent and acted reasonably under all the circumstances.’

“The Court went on to say: ‘There is no liability predicated on lack or insufficiency of supervision where the event in connection with which the injury occurred was not reasonably foreseeable . . . The courts frequently state that a teacher is not required to anticipate the myriad of unexpected acts which occur daily in and about school, to guard against all dangers inherent in the rashness of children, or to watch all movements of children.”

“(2) Ohman v. Board of Education of City of New York, 300 N.Y. 306, 90 N.E.2d 474 (1949). Here a thirteen-year-old student sustained injury when struck in the eye by a pencil. The pencil had been thrown by one student to another, and when the boy for whom it was intended ducked, the pencil hit the minor plaintiff. The accident occurred while the teacher in charge of the classroom was temporarily absent for the purpose of sorting and storing supplies in a corridor closet. The court held that the teacher’s absence from the room was insufficient to impose liability upon the Board of Education, saying:

“‘A teacher may be charged only with reasonable care such as a parent of ordinary prudence would exercise under comparable circumstances. Proper supervision depends largely on the circumstances attending the event but so far as the cases indicate there has been no departure from the usual rules of negligence.’

“(3) Swaitkowski v. Board of Education of the City of Buffalo, 36 A.D.2d 783 (1971). The Court held that the Board of Education was not liable for

injuries sustained by a student who, upon returning to his seat, sat on the point of a pencil placed on the seat by another student while the teacher was absent from the classroom for a short period to assist another teacher locate books in a bookroom 10, feet away with the doors open.

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“(4) Morris v. Ortiz, 103 Ariz. 199, 437 P.2d 652, 35 A.L.R.3d 747 (1968). A student in an auto mechanics class was injured when another student jumped on a car top which the former student was holding. The trial court directed a verdict in favor of the teacher and school district. “In affirm- ing, the Arizona Supreme Court said: ‘To hold that the teacher had to antici- pate the student’s act and somehow circumvent it is to say that it is the responsibility of a school teacher to anticipate the myriad of unexpected acts which occur daily in and about schools and school premises, the penalty for failure of which would be financial responsibility in negligence. We do not think that either the teacher or the district should be subject to such harass- ment nor is there an invocable legal doctrine or principle which can lead to such an absurd result.’

“(5) Butler v. District of Columbia, 417 F.2d 1150 (D.C.Cir.1969). A seventh grade student was struck in the left eye by a sharp piece of metal when he entered a printing classroom. The teacher was then absent because he had been assigned as a hall or cafeteria supervisor. The Plaintiff’s case was based on alleged negligent supervision of the classroom after the teacher and principal had prior knowledge that the ‘horseplay’ and throwing had occurred in the classroom. In holding that there could be no recovery, the Court took note of the district’s dilemma of balancing ‘the need for a teacher to supervise several hundred students milling about the corridors and the cafeteria against the need to supervise fourteen students in a certain class- room for a period of time.’

“From these decisions it can safely be concluded that momentary absence from a classroom is not negligence. This is particularly true where the ab- sence was for the authorized and compelling reason of monitoring the return of about thirty students from recess. The teacher could not have been at two places at the same time. It can also be said that it was not negligence for the teacher to give priority to an entire class of approximately thirty students returning from recess rather than to remain in the classroom to supervise three students who had been required to stay in the classroom during the recess period.”

Dissenting Opinion, Judge Cirillo: “More emphasis is to be placed on three components of the proper standard of review: (1) the fact that the teacher knew the behavior-problem children were in the room while she monitored the students returning from recess, (2) that the teacher was dis- tracted by holding a conversation with fellow teachers in the hallway, and (3) the teacher failed to take a position at the doorway where she would have been in view of both the students in the room as well as those returning from recess.

“The teacher may have been authorized to stand outside the classroom to monitor those coming in from recess, but this did not relieve her of the duty to supervise the children as they entered the classroom, especially when she

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knew the behavior-problem children were in the room; nor did it free her to strike up conversations with fellow teachers in the hallway. Unlike the cases cited by the majority, the teacher could have done both tasks, i.e., monitor those in the hallway and watch those in the classroom at the same time by positioning herself in the doorway so she had a view of the inside of the classroom and that of the hallway. Moreover, the distraction of talking to other teachers when she was supposed to be supervising her thirty students is another factor, which should be considered in determining whether there was sufficient evidence for the trial court to find negligence. These additional facts, which are absent in the cases relied upon by the majority, are sufficient to qualify the ‘momentary absence’ of the teacher and support a finding of negligence. Therefore, I would affirm the finding of negligence by the lower court because it was supported by competent evidence.”

Note: The dissenting opinion contends that the teacher was negligent because she positioned herself so that she could neither see nor hear what was transpiring in the classroom. This is not in accordance with the facts found by the trial judge and recited in his opinion. Even the minor plaintiff testified that the teacher was but a few feet from the classroom door. The trial judge did find that the boy with the pencil had been running in the classroom. Specifically, he was running up the aisle at the time the minor plaintiff was struck in the eye with the pencil.

Shelley Evans-Marshall, Plaintiff-Appellant, v. Board of Education of the Tipp City Exempted Village School District

Charles W. Wray and John T. Zigler, Defendants-Appellees No. 09-3775; Decided, October 21, 2010 Before Siler and Sutton, circuit judges, and Cleland, district judge

[On brief: Lynnette Dinkler, Jamey T. Pregon, Dinkler Pregon LLC, Dayton, Ohio, for Appellees. Shelley Evans-Marshall, Humble, Texas, pro se.]

Opinion: “Does a public high school teacher have a First (and Fourteenth) Amendment right ‘to select books and methods of instruction for use in the classroom without interference from public officials’? Yes, says the teacher, Shelley Evans-Marshall. No, says the Tipp City Board of Education. Because the right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made ‘pursuant to’ their official duties, Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), we affirm the judgment rejecting this claim as a matter of law.”

“This free-speech-retaliation case implicates two competing intuitions. On the one side, doesn’t a teacher have the First Amendment right to choose her own reading assignments, decide how they should be taught and above all be able to teach a unit on censorship without being censored or otherwise retaliated against? On the other side, doesn’t a school board have the final

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say over what is taught, and how, in the public schools for which it is responsible? Who wins depends on which line of legal authority controls.

“In free-speech retaliation cases arising in the employment context, we ask three questions: Was the individual involved in ‘constitutionally pro- tected’ activity—here activity protected by the free speech clause of the First Amendment? Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Would the employer’s conduct discourage individuals of ‘ordinary firmness’ from continuing to do what they were doing? Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.1998); see Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982). Was the employee’s exercise of constitutionally pro- tected rights ‘a motivating factor’ behind the employer’s conduct? Mt. Healthy, 429 U.S. at 287. The claimant must win each point to prevail.

The first question requires some elaboration. Three Supreme Court cases define the contours of the free-speech rights of public employees.

“The ‘matters of public concern’ requirement. The First Amendment pro- tects the speech of employees only when it involves ‘matters of public con- cern.’ Connick v. Myers, 461 U.S. 138, 143 (1983). In Connick, an assistant district attorney, after learning that her supervisor planned to transfer her, solicited information from her colleagues about the office’s transfer policy, about office morale and about whether supervisors had pressured anyone to participate in political campaigning. Id. at 141. When the supervisor fired her for refusing to accept the transfer, she sued, alleging retaliation against pro- tected speech, namely her initiation of the survey. Id. In rejecting her claim, the Court explained that not all employee speech is protected, only speech that ‘fairly [may be] considered as relating to’ issues ‘of political, social, or other concern to the community.’ Id. at 146. When, by contrast, an employ- ee’s speech does not relate to a matter of public concern, public officials enjoy ‘wide latitude’ in responding to it without ‘intrusive oversight by the judiciary in the name of the First Amendment.’ Id.

“The ‘balancing’ requirement. If the employee establishes that her speech touches ‘matters of public concern,’ a balancing test determines whether the employee or the employer wins. See Pickering, 391 U.S. at 568. In Picker- ing, the Court considered the claim of a high school teacher whom the princi- pal fired after the teacher wrote a letter to the local newspaper, criticizing the school board’s budgetary decisions. Id. at 564. In resolving the claim, the Court ‘balance[d] the interests of the teacher, as a citizen, in commenting upon matters of public concern’ against ‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ Id. at 568. Reasoning that there was no relationship between the contents of the letter and the ‘proper performance of [the teach- er’s] daily duties in the classroom,’ the Court ruled for the teacher, conclud- ing that the school board’s interests did not outweigh his desire to ‘contribute to public debate’ like any other citizen. Id. at 572–73.

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“The ‘pursuant to’ requirement. In the last case in the trilogy, a prosecutor reviewed a private complaint that a police officer’s affidavit used to obtain a search warrant contained several misrepresentations. Garcetti, 547 U.S. at 413–14. After confirming that the affidavit contained serious falsehoods, the prosecutor wrote a memo to his superiors about his findings, recommended that the office dismiss the case and eventually testified to the same effect at a hearing to suppress the evidence discovered during the search. Id. at 414–15. In the aftermath of these and other actions, the prosecutor claimed that the office retaliated against him by transferring him to another courthouse and by denying him a promotion. Id. at 415. In rejecting his free-speech claim, the Court did not deny that the prosecutor’s speech related to a matter of ‘public concern’ under Connick, and it did not take on the lower court’s reasoning that Pickering balancing favored the employee. It instead concluded that the First Amendment did not apply. ‘The controlling factor,’ the Court reasoned, ‘is that his expressions were made pursuant to his duties as a calendar depu- ty,’ making the relevant speaker the government entity, not the individual. Id. at 421 (emphasis added). ‘We hold that when public employees make state- ments pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insu- late their communications from employer discipline.’ Id.

“A First Amendment claimant must satisfy each of these requirements: the Connick ‘matter of public concern’ requirement, the Pickering ‘balanc- ing’ requirement and the Garcetti ‘pursuant to’ requirement. Evans-Marshall clears the first two of these hurdles but not the third.

“The content of Evans-Marshall’s speech ‘relat[ed] to matter[s] of politi- cal, social, or other concern to the community.’ Connick, 461 U.S. at 146. A teacher’s curricular speech, we have said on several occasions, ordinarily covers these matters. See Evans-Marshall I, 428 F.3d at 230–31; Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1052 (6th Cir.2001); Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 679 (6th Cir.2001). ‘[T]he essence of a teacher’s role is to prepare students for their place in society as responsible citizens,’ Hardy, 260 F.3d at 679, and the teacher that can do that without covering topics of public concern is rare indeed, perhaps non-existent. Look no further than the November 2001 meeting of the school board to confirm the point. Members of the community had a lot to say about the topics discussed in Evans-Marshall’s class, and they went to the school board meet- ing to say it. That large segments of the community disagreed with Evans- Marshall’s speech—her class assignments and teaching methods—is beside the point. The question is whether the topics discussed are ‘of concern’ to the community, Connick, 461 U.S. at 146, not whether the community approved of the teacher’s position on each topic. On this summary-judgment record, Evans-Marshall’s curricular speech passes the Connick ‘matter of public con- cern’ test, as the district court correctly determined.

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“Evans-Marshall also satisfies Pickering ‘balancing’—that her ‘interests as a citizen, in commenting upon matters of public concern’ through her in- class speech outweighed the school board’s ‘interest, as an employer, in promoting the efficiency of the public services it performs.’ Pickering, 391 U.S. at 568. As the district court correctly concluded, a legitimate factual dispute exists over whether Evans-Marshall’s interest in teaching Siddhartha (and in making other curricular choices) overshadowed any interest the school board might claim in disciplining her for doing so. Although the school board has ‘the ability to select and require adherence to a stated curriculum,’ R.52 at 26, the court concluded, its interest in enforcing curricu- lar standards is severely undermined if it disciplines a teacher for teaching a book the board ‘had purchased and made available to teachers as an optional text,’ id. at 40–41. And although the court did not find Evans-Marshall’s interest in ‘select[ing] materials to supplement the board-chosen textbooks and the methods for teaching’ to be compelling, id. at 32, that interest out- weighed the school’s near-zero interest in disciplining her for teaching a book it had purchased, id. at 41. We agree—for many of the same reasons identified in Evans-Marshall I. See 428 F.3d at 231–32.

“After addressing the Pickering point, however, the district court con- cluded that Evans-Marshall stumbled over causation. The court did not be- lieve that Evans-Marshall could show that her exercise of free speech rights was ‘a motivating factor’ behind the school board’s conduct. See Mt. Healthy, 429 U.S. at 287. That is a harder point to sell. And a brief account- ing of the evidence and the chronology of events shows why.

“Before any parents complained about her reading assignments and class- room discussions, Evans-Marshall had never received a negative perfor- mance review. Dozens of parents flooded the school board’s November 2001 meeting, and many complained about Evans-Marshall’s teaching. One parent told the school board that it ‘should be embarrassed’ about the book she was teaching. R.46 at 1:32:20. Principal Wray thereafter told Evans-Marshall that she would have to clear any potentially controversial material with him. He later told Evans-Marshall that he ‘intended to rei[n] in’ her classroom discus- sions. R.41 at 24–25. In December 2001, Evans-Marshall complained to Superintendent Zigler about Wray’s behavior. And when the semester re- sumed in January 2002, Wray told Evans-Marshall that he would ‘see what [he could] come up with for [her] evaluations,’ R.31-1 at 52–53, after which he gave her negative performance reviews for the first time. Only a short time later, the board voted not to renew her contract. To deny a causal relationship between Evans-Marshall’s speech and the board’s actions does not come to grips with this sequence of events or with the imperative at this stage of the litigation that we draw all inferences in favor of the nonmoving party: the teacher. Evans-Marshall satisfies Pickering balancing and has shown that her teaching choices caused the school board to fire her.

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“Evans-Marshall, however, cannot overcome Garcetti. When government employees speak ‘pursuant to their official duties,’ Garcetti teaches that they are ‘not speaking as citizens for First Amendment purposes.’ 547 U.S. at 421. Any dispute over the board’s motivations, Pickering balancing or the ‘public concerns’ of her speech under Connick is beside the point if, as Evans-Marshall does not dispute, she made her curricular and pedagogical choices in connection with her official duties as a teacher.

“In the light cast by Garcetti, it is clear that the First Amendment does not generally ‘insulate’ Evans-Marshall ‘from employer discipline,’ Garcetti, 547 U.S. at 421, even discipline prompted by her curricular and pedagogical choices and even if it otherwise appears (at least on summary judgment) that the school administrators treated her shabbily. When a teacher teaches, ‘the school system does not ‘regulate’ [that] speech as much as it hires that speech. Expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary.’ Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir.2007). And if it is the school board that hires that speech, it can surely ‘regulate the content of what is or is not expressed,’ Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995), what is expressed in other words on its behalf. Only the school board has ultimate responsibility for what goes on in the classroom, legitimately giving it a say over what teachers may (or may not) teach in the classroom.

“It is true that teachers, like students, do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). But that does not transform them into the employee and employer when it comes to decid- ing what, when and how English is taught to fifteen-year-old students. Con- sider the difference between the speech of Evans-Marshall and Marvin Pick- ering, teachers both. When Pickering sent a letter to the local newspaper criticizing the school board, he said something that any citizen has a right to say, and he did it on his own time and in his own name, not on the school’s time or in its name. Yet when Evans-Marshall taught 9th grade English, she did something she was hired (and paid) to do, something she could not have done but for the board’s decision to hire her as a public school teacher. As with any other individual in the community, she had no more free-speech right to dictate the school’s curriculum than she had to obtain a platform—a teaching position—in the first instance for communicating her preferred list of books and teaching methods. ‘[N]o relevant analogue’ exists between her in-class curricular speech and speech by private citizens. Garcetti, 547 U.S. at 424.

“Teachers are not everyday citizens, Evans-Marshall insists, and they have a right ‘to select books and methods of instruction for use in the class- room without interference from public officials.’ R.1 ¶ 32. But that is not

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what Ohio law provides or the First Amendment requires. Start with Ohio law. Under it, ‘[t]he board of education of each city ‘shall prescribe a curric- ulum.’ O.R.C. § 3313.60(A). State law gives elected officials—the school board—not teachers, not the chair of a department, not the principal, not even the superintendent, responsibility over the curriculum. This is an accountabil- ity measure, pure and simple, one that ensures the citizens of a community have a say over a matter of considerable importance to many of them—their children’s education—by giving them control over membership on the board.

“The First Amendment does not ban this policy choice or this account- ability measure. The Constitution does not prohibit a State from creating elected school boards and from placing responsibility for the curriculum of each school district in the hands of each board. Teachers no doubt are ‘re- quired to speak or write’ and otherwise express themselves, Garcetti, 547 U.S. at 422, but this does not make them ‘sovereign[s] unto [themselves],’ Parate v. Isibor, 868 F.2d 821, 827 (6th Cir.1989). ‘The curricular choices of the schools should be presumptively their own—the fact that such choices arouse deep feelings argues strongly for democratic means of reaching them.’ Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 371–72 (4th Cir.1998) (en banc) (Wilkinson, C.J., concurring).

“How at any rate would a contrary approach work? If one teacher, Evans- Marshall, has a First Amendment right ‘to select books and methods of instruction for use in the classroom,’ R.1 32, so presumably do other teach- ers. Evans-Marshall may wish to teach Siddhartha in the first unit of the school year in a certain way, but the chair of the English department may wish to use the limited time in a school year to teach A Tale of Two Cities at that stage of the year. Maybe the head of the upper school has something else in mind. When educators disagree over what should be assigned, as is surely bound to happen if each of them has a First Amendment right to influence the curriculum, whose free-speech rights win? Why indeed doesn’t the principal, Wray, have a right to defend the discharge on the ground that he was merely exercising his First Amendment rights in rejecting Evans-Marshall’s curricu- lar choices and methods of teaching? Placing the First Amendment’s stamp of approval on these kinds of debates not only would ‘demand permanent judicial intervention in the conduct of governmental operations,’ Garcetti, 547 U.S. at 423, but it also would transform run-of-the-mill curricular dis- putes into constitutional stalemates.

“That is not the only problem. What employer discipline arising from an employee’s manner of teaching—choices of books and the methods of teach- ing them—does not implicate speech? Could a teacher respond to a princi- pal’s insistence that she discuss certain materials by claiming that it improp- erly compels speech? Cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Could a teacher continue to assign materials that members of the community perceive as racially insensitive even after the principal tells her

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not to? Could a teacher raise a controversial topic (say, the virtues of one theory of government over another or the virtues of intelligent design) after a principal has told her not to? Could a teacher introduce mature sexual themes to fifteen-year-olds when discussing a work of literature after a principal has told her not to? And ‘[d]oes a music teacher retain veto power over that most controversial of school productions—the Holiday Concert?’ Evans-Marshall I, 428 F.3d at 237–38 (Sutton, J., concurring).

“Because ‘one man’s vulgarity is another’s lyric,’ Cohen v. California, 403 U.S. 15, 25 (1971), or, as one school board member put the point at the November 2001 meeting, ‘What you might find offensive, I might not,’ R.46 at 1:41:40, parents long have demanded that school boards control the curric- ulum and the ways of teaching it to their impressionable children. Permitting federal courts to distinguish classroom vulgarities from lyrics or to pick sides on how to teach Siddhartha not only is a recipe for disenfranchising the 9,000 or so members of the Tipp City community but also tests judicial competence. ‘If even the most happily married parents cannot agree on what and how their own children should be taught, as [we] suspect is not infre- quently the case, what leads anyone to think the federal judiciary can answer these questions?’ Evans-Marshall I, 428 F.3d at 237-38 (Sutton, J., concur- ring).

“The key insight of Garcetti is that the First Amendment has nothing to say about these kinds of decisions. An employee does not lose ‘any liberties the employee might have enjoyed as a private citizen’ by signing on to work for the government, but by the same token, the government, just like a private employer, retains ‘control over what the employer itself has commissioned or created’: the employee’s job. Garcetti, 547 U.S. at 422. And that insight has particular resonance in the context of public education. Every child in Ohio must attend school, see O.R.C. § 3321.02, providing public school teachers with a captive audience for their in-class speech, see Mayer, 474 F.3d at 479, and providing a compelling reason for putting curricular choices in the hands of ‘someone [they] can vote out of office,’ id. at 479–80, or who is otherwise democratically accountable, see O.R.C. § 3311.71 (elected officials and other community institutions appoint school board members in certain municipal school districts).

“In concluding that the First Amendment does not protect primary and secondary school teachers’ in-class curricular speech, we have considerable company. The Seventh Circuit invoked Garcetti in concluding that the cur- ricular and pedagogical choices of primary and secondary school teachers exceed the reach of the First Amendment. Mayer, 474 F.3d at 480. The Fourth Circuit has not applied Garcetti to teachers’ in-class speech, see Lee v. York County Sch. Div., 484 F.3d 687, 694 n. 11 (4th Cir.2007), and is sometimes cited as creating a division among the circuits, see, e.g., Gorum v. Sessoms, 561 F.3d 179, 186 n. 6 (3d Cir.2009). But that is because the Fourth

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Circuit disposed of the teacher’s retaliation claim based on pre-Garcetti prec- edent, namely Connick, holding that ‘speech that occurs within a compulsory classroom setting’ ‘does not constitute speech on a matter of public concern’ when it is ‘curricular in nature.’ 484 F.3d at 695, 697. The Fourth Circuit’s approach changes nothing here: A teacher’s curricular and pedagogical choices are categorically unprotected, whether under Connick or Garcetti.

“The Third Circuit also has declined to resolve the applicability of Gar- cetti to this sort of speech, see Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 171 n. 13 (3d Cir.2008), but that too makes no difference. Its pre-Garcetti cases hold that, ‘although [a teacher] has a right to advocate outside of the classroom for the use of certain curriculum materials, he does not have a right to use those materials in the classroom.’ Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 491 (3d Cir.1998) (Alito, J.). The Tenth Circuit has applied Garcetti to a school teacher’s speech about curriculum and peda- gogy, even when made outside the classroom, see Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1204 (10th Cir.2007), but has not addressed in-class curricular speech. The Second Circuit determined, in an unpublished decision, that it need not resolve whether a teacher’s in-class speech is governed by Garcetti or by its earlier cases applying the ‘reason- ably related to legitimate pedagogical concerns’ standard of Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988). See Panse v. East- wood, 303 F. App’x 933, 935 (2d Cir.2008). Other courts of appeals, includ- ing this one, have applied Garcetti in rejecting school employees’ speech claims, though not in the context of curricular and pedagogical choices. See, e.g., Fox v. Traverse City Area Pub. Sch. Bd. of Educ., 605 F.3d 345, 349 (6th Cir.2010); Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir.2007); Gilder-Lucas v. Elmore County Bd. of Educ., 186 F. App’x 885, 887 (11th Cir.2006). The common thread through all of these cases is that, when it comes to in-class curricular speech at the primary or secondary school level, no other court of appeals has held that such speech is protected by the First Amendment.

“Our decision also respects Sixth Circuit authority. In Cockrel and in our initial decision in this case, we held that a school teacher’s curricular and pedagogical choices (1) are ‘speech,’ (2) touch on ‘matters of public con- cern’ and (3) may satisfy Pickering balancing depending on the circum- stances developed in discovery or at trial. We do not disturb those holdings and indeed have ruled for the plaintiff on each one of these points today.

“Not one of these Sixth Circuit cases, however, addressed whether in- class curricular speech survives the threshold inquiry announced in Garcetti: whether the speech was ‘pursuant to’ the claimant’s official duties. 547 U.S. at 421. How could they? Garcetti came down after both decisions and estab- lished a new threshold requirement in this area. Evans-Marshall’s failure to satisfy this requirement governs us here. ‘[A] plaintiff may not run home

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before she reaches first base.’ Weathers v. Lafayette Parish Sch. Bd., 520 F.Supp.2d 827, 837 (W.D.La.2007).

“Nor can Evans-Marshall sidestep this conclusion on the theory that Gar- cetti does not apply. In his dissent in Garcetti, as Evans-Marshall points out, Justice Souter raised concerns about the applicability of the decision to ‘aca- demic freedom in public colleges and universities.’ 547 U.S. at 438 (Souter, J., dissenting). The majority disclaimed any intent to resolve the point. See id. at 425 (majority opinion) (‘Justice Souter suggests today’s decision may have important ramifications for academic freedom. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching’).

“Garcetti’s caveat offers no refuge to Evans-Marshall. She is not a teach- er at a ‘public college’ or ‘university’ and thus falls outside of the group the dissent wished to protect. The concept of ‘academic freedom,’ moreover, does not readily apply to in-class curricular speech at the high school level. As a cultural and a legal principle, academic freedom ‘was conceived and implemented in the university’ out of concern for ‘teachers who are also researchers or scholars—work not generally expected of elementary and sec- ondary school teachers.’ J. Peter Byrne, ‘Academic Freedom: A ‘Special Concern of the First Amendment,’’ 99 Yale L.J. 251, 288 n. 137 (1989). ‘[U]niversities occupy a special niche in our constitutional tradition’ and the constitutional rules applicable in higher education do not necessarily apply in primary and secondary schools, where students generally do not choose whether or where they will attend school. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 724-25 (2007).

“Even to the extent academic freedom, as a constitutional rule, could somehow apply to primary and secondary schools, that does not insulate a teacher’s curricular and pedagogical choices from the school board’s over- sight, as opposed to the teacher’s right to speak and write publicly about academic issues outside of the classroom. ‘[I]t is the educational institution that has a right to academic freedom, not the individual teacher.’ Borden, 523 F.3d at 172 n. 14.

“Academic freedom implicates ‘[t]he freedom of a university to make its own judgments as to education,’ Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (opinion of Powell, J.), requiring ‘deference to a university’s academic decisions,’ Grutter v. Bollinger, 539 U.S. 306, 328 (2003). See Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., con- curring). In the context of in-class curricular speech, this court has already said in the university arena that a teacher’s invocation of academic freedom does not warrant judicial intrusion upon an educational institution’s deci- sions: ‘The First Amendment concept of academic freedom does not require that a nontenured professor be made a sovereign unto himself.’ Parate, 868

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F.2d at 827. A school ‘may constitutionally choose not to renew the contract of a nontenured professor’ when that professor’s ‘pedagogical attitude and teaching methods do not conform to institutional standards.’ Id. Just so here.

“For these reasons, we affirm the judgment of the district court. “Sutton, Circuit Judge”

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Title of Your Choice

Your Name

School of Education, Franklin University

EDUC 612: Ethics, Laws, and Values in Education

Dr. Lee Ebersole

September 8, 2024

Title of Your Choice

The title of your paper is centered and bold on the main body page. This is where the introduction to your paper begins. The introduction does not need a heading like other sections of your paper; so only include the title of your paper before the introduction. For other sections, you will need a heading. First lines of paragraphs must be indented five spaces form the left margin.

The title should be interesting and reflect the problem or solution you chose to feature.

Provide a one-paragraph overview of employment and education law.

Heading for First Section (Case Law)

After the introduction and for other main sections, use a Level 1 heading like the one above. Level 1 headings should be centered and bold.

Summarize a case featured in either Kaplin et al. (2020) or Bradley et al. (2017) that helps inform your approach to an experience involving an employee or employees in the workplace.

Heading for Second Section (Problem)

Use Level 2 headings for subsections of Level 1 sections. Do not label headings with numbers or letters. Short student papers may not require any headings.

In two or three paragraphs, describe a problem involving an employee or group of employees you experienced in the workplace that could be better addressed based on your understanding of ethics and employment law in education through the lens of the case you chose.

Conclusion

Provide a brief one- paragraph summary of what you have presented in your paper.

References

Bradley, L. H., Meyers, M., & Winterman, K. (2017). School law for public, private, and parochial educators (2nd ed.). Rowman & Littlefield.

Kaplin, W. A., Lee, B. A., Hutchens, N. H., & Rooksby, J. H. (2020). The law of higher education (6th ed.). John Wiley & Sons.

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