Education (Encyclopedia of Business and Finance)
Education (Genocide and Crimes Against Humanity)
In the U.S. educational system, courses focusing on genocide and other gross human rights violations developed in the early 1970s as part of a larger response to rewriting the curriculum by including subjects and issues traditionally ignored or silenced. University courses introduced issues of gender, class, race, and ethnicity, including histories of slavery, colonialism, and other atrocities perpetrated against individuals because they were members of targeted civilian groups. From the destruction of indigenous peoples of the Americas to the Great Famine in Ireland to the Armenian Genocide, new scholarship and courses emphasized the intentional patterns, brutality, range of accomplices, and ongoing denial by alleged perpetratorstates of these events. In the following decades, an increasing number of courses have been developed to deal with comparative genocide and other crimes against humanity, human rights issues, and connections with state policy and international affairs.
The majority of courses have focused on the Holocaust, in particular the Nazi destruction of European Jewry. Interest in World War II, liberation of the concentration camps, and the Nuremberg Trials, all contributed to interest in the subject. Popular representation and misrepresentation, such as the Pulitzer Prize winning play Diary of Anne Frank and the television mini-series The Holocaust, as well as literary works by Elie Weisel, Andre Schwartz-Bart, Primo Levi and others have generated further interest in the subject. Writings by Hannah Arendt as well as Raul Hilberg's Destruction of European Jewry, Lucy Dawidowicz' War Against the Jews, Zygmunt Baumann's Holocaust and Modernity, and Christopher Browning's Ordinary Men are among texts used in classrooms. Scholarship in the field is substantial and controversies and debates about interpretation continue among scholars, worldwide. Popular classroom resources include Art Spiegelman's Maus and films such as Claude Lanzmann's Shoah and Steven Spielberg's Schindler's List.
A small sample of the range of courses include: Sociology of the Holocaust, History of Anti-Semitism, Dutch Holocaust Literature, The Holocaust Theme in Western Drama, The Holocaust: Historical, and Philosophical and Literary Aspects, and The Holocaust and Law. This last course includes coverage of issues of reparations and restitution. The establishment of museums and memorials, worldwide, as well as the funding of university chairs and Holocaust Centers provide institutional support for study of the Holocaust. Most notable among these institutions is the U.S. Holocaust Memorial Museum in Washington, D.C., which supports research and teacher training, as well as offering public exhibits and programs.
In the United States, primary and secondary Holocaust education has been mandated in some states. For example, the Florida school system focuses on the Holocaust, and the state of New Jersey mandates the study of other genocides as well. Peter Novick's The Holocaust in American Life provides a useful critique of the politics of U.S. Holocaust education. While many courses reinforce the Holocaust as "uniquely unique" and subscribe to the hegemonic model of understanding the phenomenon, some courses also include the study of Roma Gypsies and other groups that were targeted by the Nazis for elimination, and raise the issue of other genocides, particularly the Armenian Genocide, as possible precursors of the Holocaust.
Leo Kuper's work on genocide from the 1970s on (for instance, Genocide and Genocide: Its Political Uses in the Twentieth Century, 1981) was influential in the emergence of a small but growing number of international researchers and academics who were developing scholarship and multidisciplinary courses that emphasized a comparative approach to studying mass destruction. Definitions, content, classifications, and interpretations varied across this emergent discipline. Some relied on the definition developed by the U.N. Genocide Convention. Others added political and other categories. Rudolph Rummel coined the term "democide," which is a broad category that includes the murder of any individual or people by a government, including genocide, politicide and mass murder. An example of the analytic utility of Rummel's concepts can be found in his Statistics of Democide: Genocide and Mass Murder since 1900. The pedagogical goal of such courses was to demystify genocide and move away from its depiction as irrational, as well as to counter an academic trend toward the "ghettoization" of genocide studies and the creation of hierachies of victimization. It was hoped that this could be accomplished by examining recurrent patterns of genocidal behavior in order to better understand it and to work toward prevention. Mass destruction in Cambodia (1974979) and Rwanda (1994), and targeted killings from Guatemala to Indonesia, as well as ethnic cleansing in the former Yugoslavia, ironically have provided ongoing course materials that have helped to prove how widespread such crimes are.
In 1980, for example, Kurt Jonassohn and Frank Chalk, on the faculty at Concordia University in Montreal, developed a two semester multidisciplinary model called A History and Sociology of Genocide (their book, published a decade later with the same title, is used as an introductory course text). Their course traces genocidal events from ancient to modern times. Most courses on genocide and ethnic cleansing last a single semester and concentrate on events in the twentieth century. Many such courses employ the text Century of Genocide: Eyewitness Accounts and Critical Views, edited by Samuel Totten, William S. Parsons and W. Charny. This is a collection of specific genocidal events that occurred throughout the twentieth century, along with eyewitness testimony. African specialist Rene Lemarchand has taught a course entitled Comparative Genocide in the United States, Canada, and Denmark, and his presentation reflects the major themes generally touched upon in one semester courses. Lemarchand begins with conceptual and theoretical issues and follows with case studies divided into categories: Ideological Genocides (The Holocaust, Armenia, Cambodia); Colonial Genocide (Herreros), and Retributive Genocides (Burundi and Rwanda). A third section of the course discusses intervention and prevention strategies, including international tribunals, truth commissions, and the politics of denial.
Denial has become an increasing theme in genocide courses from the Turkish government's ongoing, official denial campaign of the Armenian Genocide to the trial of Holocaust denier Clifford Irving and including the continued denial by the United States of its complicity in different stages of genocide in settings ranging from Cambodia to Guatemala. The publication of the multi-volume Encyclopedia of Genocide (1999) and the Journal of Genocide Research (2002), as well as Samantha Power's Pulitzer Prize and Lemkin Award winning "A Problem from Hell" America and the Age of Genocide (2002) reflect growing scholarship and interest in the field. A text aimed specifically at educators is Teaching about Genocide (2002) coedited by Joyce Apsel and Helen Fein, providing resources, essays, centers (such as the Cambodian Genocide Project at Yale University), and syllabi devoted to genocide studies.
In 1995 the International Association of Genocide Scholars (www.iags-isg.org) was founded by Israel Charny, Helen Fein, Robert Melson, and Roger Smith, and in 2002 more than 200 members participated in the fifth biennial conference on Genocide and the World Community at the Irish Human Rights Center, University of Ireland, Galway. The last decade has seen a shift in the study of genocide and other life-integrity violations, another rewriting of history that places greater emphasis on human rights, international law, and foreign policy. From truth commissions in Central America and South Africa to release of documents on state terror and mass killings in the Soviet Union, to debate on "just humanitarian military intervention," from Kosovo to Iraq to the AIDS pandemic, new undergraduate and graduate courses have multiplied. The establishment and rulings of the international criminal tribunals, the proceedings against Chilean dictator Augusto Pinochet, the establishment of the International Criminal Court, new national constitutions from South Africa to Russia, transnational terrorism, and military interventions throughout the world have all contributed to the increase in human rights clinics in law schools and courses in international human rights law, including international criminal justice, refugee law, and comparative constitutional law.
Jack Donnelly's International Human Rights (1997) is one of the widely used introductory undergraduate texts on the subject, and contains a valuable essay on further suggested readings by topics and areas. A growing interest in legal studies, politics, and history as they relate to genocide and human rights issues is reflected in courses such as Women and Rights in Africa, Health and Human Rights, Anatomy of War Crime Trials, The Culture of Human Rights in Latin America, China and Human Rights, and Truth and Reconciliation or Justice and Vengeance. These courses reflect a cross-disciplinary interest in crimes against humanity and other forms of violence as an integral part of modernity, from state building to foreign policy and globalization. In addition to academic courses, the establishment of human rights centers around the world has contributed to the process of documenting past and present abuses and attempted to address the ongoing challenges of war, humanitarian crises, recovery, and prevention. Legal and other scholarly journals such as the Human Rights Quarterly provide forums for the burgeoning research in the field. Growing on-line scholarship and internet sources provide access to ongoing resources and reports. For example, www.umn.edu/humanrts/center/hronline connects to the University of Minnesota Human Rights Library, which contains over 14,000 documents on treaties and other international instruments, U.N. documents, and other resources. Internet websites provide links to monitoring agencies such as Human Rights Watch and Freedom House. The trend is toward the development of more undergraduate and graduate curricula that include multidisciplinary courses on human rights, crimes against humanity, and related subjects.
SEE ALSO Biographies; Films, Dramatizations in
Andreopoulos, George, ed. (1994). Genocide: Conceptual and Historical Dimensions. Philadelphia: University of Pennsylvania Press.
Apsel, Joyce, and Helen Fein, eds. (2002). Teaching about Genocide: An Interdisciplinary Guidebook with Syllabi for College and University Teachers, revised edition. Washington, D.C.: American Sociological Association.
Chalk, Frank, and Kurt Jonassohn, eds. (1990). The History and Sociology of Genocide: Analyses and Case Studies. New Haven, Conn.: Yale University Press.
Donnelly, Jack (1997). Human Rights and International Relations, 2nd edition. Boulder, Colo.: Westview Press.
Gellately, Robert, and Ben Kiernan, eds. (2003). The Specter of Genocide: Mass Murder in Historical Perspective. Cambridge: Cambridge University Press.
Kuper, Leo (1981). Genocide: Its Political Use in the Twentieth Century. New Haven, Conn.: Yale University Press.
Novick, Peter (1999). The Holocaust in American Life. Boston: Houghton Mifflin.
Power, Samantha (2002). 'A Problem from Hell': America and the Age of Genocide. New York: Basic Books.
Terry, Fiona (2002). Condemned to Repeat? The Paradox of Humanitarian Action. Ithaca, N.Y.: Cornell University Press.
Totten, Samuel, William S. Parsons, and Israel W. Charny, eds. (1997). Century of Genocide; Eyewitness Accounts and Critical Views. New York: Garland Press.
Totten, Samuel, and Steven Leonard Jacobs, eds. (2002). Pioneers of Genocide Studies. New Brunswick, N.J.: Transaction Press.
Weiss, Thomas G., and Cindy Collins (2000). Humanitarian Challenges & Intervention, 2nd edition. Boulder, Colo.: Westview Press.
Joyce A. Apsel
Education (American History Through Literature)
The history of American education reflects the history of the nation as a whole. It represents the best intentions and principles of a democratic people but is plagued by the same problems and contentiousness that are characteristic of a free society. Despite the heated debates as to the form education should take, particularly for children, Americans created a system that would introduce millions of children to the joys of literature. During the colonial period the ethnic and religious diversity of settlements was expressed in schools. From New England's ambitious system of "public" primary and secondary schools to the middle colonies' religious and private schools to the South's tradition of home tutors, the colonists had tried it all.
Diverse educational experiments seemed to make sense at the time, but following the American Revolution they were found to be inadequate in a number of ways. Americans realized their sons and daughters needed an education that would prepare them for civic responsibilities in the new Republic and provide them with the skills and values necessary to become successful. Moreover, the new nation needed an educational system that would be "within the reach of all," not just the fortunate few who by virtue of their birth had access to good schools. "Universal" public education certainly would not be achieved during the nineteenth century, but the idea of free public education was launched in that era.
The common school appeared to be the answer to the educational needs of the new Republic. Initially supported by generous federal land grants to states under provisions of the Northwest Ordinance of 1787, these schools were to be maintained and controlled by local communities. In one-room schoolhouses scattered throughout the countryside, children of all ages learned to read, write, and cipherhat some called the three "R's"eading, 'riting, and 'rithmitic. Moreover, common-school teachers quietly pursued the vision of the Founding Fathers by embracing a curriculum that would nurture a love of God and country as well as the values of hard work, determination, and competition.
THE McGUFFEY READERS
The centerpiece of the common-school curriculum was often a readerost notably the McGuffey reader. By requiring students to read, memorize, and then recite poetry, literary passages, speeches of Revolutionary War heroes, moralistic tales, and Bible verses, the McGuffey readers helped to nurture a common culture and the basis of a literate society. Although not all common-school children during these years read the Eclectic Readers of William Holmes McGuffey (1800873), these popular books were representative of the materials available to students. The Eclectic Readers sold more than seven million copies by 1850 (Clifton, p. 75). During the middle decades of the nineteenth century they provided the basis of the common-school curriculum in many parts of the country. The original series, published in 1836, was revised slightly in 1857 and then revamped significantly in 1879 (Westerhoff, p. 17).
The Eclectic First Reader (1836 edition) contained forty-five selections or lessons. It was illustrated and included a list of new words following each lesson. The Eclectic Second Reader was slightly larger and more complex than the first and also included "discussion questions" that could provide the basis for review and examinations. The third reader in the set was more comprehensive with about twice as many selections as the first two. It was designed primarily for the "fifth or sixth grade level." Finally, the fourth and fifth readers were more difficult and were reserved for the most advanced elementary school students. In fact, McGuffey thought these volumes were appropriate for secondary school students. These readers included selections from literary classics, including excerpts from Shakespeare, Dr. Johnson, and "contemporary" writers, such as Alfred, Lord Tennyson, Henry Wadsworth Longfellow, Henry David Thoreau, Nathaniel Hawthorne, and Louisa May Alcott.
THE CURRICULUM: LOVE OF GOD
In addition to classic and contemporary secular literature, the readers also included stories that emphasized the love of God and country. The late-eighteenth- and early-nineteenth-century predecessors of the early
As early primers evolved from instruments of religious and moral teaching to their more secular function of instructing young children to read, some of their religious content remained. McGuffey's Eclectic First Reader, like other readers of this period, placed great emphasis on God and teachings from the Bible. Of the forty-five lessons in this reader, ten directly mentioned God, and another two referred to the Bible. They informed young students that God gave human beings food, clothes, the sun, and the rain. In one lesson, "Thick Shade," students were told that God not only made the shade but also created the rich man and the poor, the dark man and the fair, the wise man and the fool. Moreover, God saw everything, including the good and bad deeds of little children. In "The Little Chimney Sweep," students were warned that to lie was to sin against God. In "Good Advice," students were told that sins must be confessed to God for forgiveness. Finally, children were encouraged to pray at bedtime and were instructed never to use profanity nor drink alcohol (pp. 95, 78, 48, 130).
The McGuffey readers also embraced secular values. Young students were reminded of the secularized axiom "honesty is the best policy." Similarly, temperance was often featured in the readers. In one selection, "The Whiskey Boy," little John got "tipsy every day," and by the age of eight he had become a drunkard. Eventually he was found drunk in the street and was brought to a poorhouse. John had now become a burden to society, and perhaps as punishment for his actions, he died within "two weeks." The lesson ended with the rhetorical question: "How do you think his father felt?" (Eclectic First Reader, pp. 143, 141).
THE CURRICULUM: INDIVIDUAL RESPONSIBILITY AND KINDNESS
While religious teachings were important parts of the Eclectic First Reader, responsibility was also a major theme of this and more advanced volumes. In fact, this value was the central focus of at least seventeen of the forty-five lessons in the first reader. Other basic themes emphasized here were kindness and obedience.
Kindness was perhaps the most important value presented in the Eclectic First Reader. Children were instructed to be kind to animals specifically: cows, oxen, cats, dogs, lame dogs, bluebirds, young birds, goats, bees, and even flies. By understanding that cruelty to animals (and even insects) was a sign of selfishness, children would comprehend the limits of their own self-interest. Indeed there was more to life than what the individual child wanted to do. In "The Cruel Boy," for example, George Craft pulled the wings off a fly. Like many other boys, George found this kind of activity amusing and entertaining. Eventually, however, another boy good boyxplained to George that it was cruel to act in such a way, even if it was "fun" (pp. 780).
Building on these ideas, McGuffey introduced the general lesson of kindness to people, especially those who were less fortunate. Specifically the readers mentioned an old man, a sick man, a blind man, and a handicapped war veteran. Finally, McGuffey encouraged kindness to friends, brothers and sisters, and of course teachers (Eclectic First Reader, pp. 158, 324, 96, 10607, 13032). By emphasizing the importance of controlling one's self-interest, considering the feelings of others, and avoiding self-indulgent cruelty, McGuffey set the stage for more complex ideas including love of community and love of country. By promoting the idea that one's self-interest must sometimes be subordinated, the principles of civic virtue were developed at a very early age.
THE CURRICULUM: LOVE OF COUNTRY
In the early readers children were taught to obey their parents and teachers. Once these lessons were learned, children would understand the concept of obedience to higher secular authorities, such as the police, the town council, their employers, and even the federal government. Sometimes these lessons were rooted in biblical teachings, but more typically they were expressed in a secular context. If students understood the importance of secular deference, they would be more likely to respect the laws of the land.
As students progressed to more advanced readers, McGuffey gradually introduced another important curricular theme: love of country. Of course, this value reflected the burgeoning nationalism of Americans following the conclusion of the War of 1812. In fact, the term "nationalism" first appeared in American schoolbooks in the early 1820s (Elson, p. 101). Typically the readers took the position that the people of each nation had collective national personalities that differed dramatically from one another. For example, the Juvenile Mentor, another popular nineteenth-century reader, included a number of stories that portrayed the cruelty of Spaniards as a national character trait (Elson, p. 101).
This and other stereotypes strengthened nationalism. It also would seem that they helped encourage the strong nativist impulses that have plagued America since the middle of the nineteenth century. In the case of the Spanish, it may also have helped make possible the country's eager acceptance of the Spanish-American War in 1898. The British, however, were an exception. Although anti-British feelings were clearly reflected in some late-eighteenth- and early-nineteenth-century readers, this sentiment gradually diminished by mid-nineteenth century as Americans began to emulate British agricultural and industrial practices. By then American schoolbooks often boasted of British roots, a heritage that provided a glorious past full of "virtue and prestige but purified in the American environment" (Elson, p. 123). Besides the English, the only other national groups portrayed favorably in the early readers were the Scots (for their frugality) and the Swiss. Perhaps because there were relatively few Swiss immigrants to this country and because of their republican heritage, the image persisted. One of their countrymen, William Tell, figured prominently in many readers at this time. His story, the famous episode where he shot an apple off the head of his young son, was seen as both an act of heroism and a defiance of tyranny. In this story, Tell placed service to his country even above parental love. This was a magnificent expression of intense nationalism to be emulated by all true republicans (McGuffey's Fifth Eclectic Reader, pp. 21932).
But while the English, Scots, and Swiss sometimes exhibited positive values, Americans were seen as the most virtuous of all. To reinforce that point, the readers of this period typically included many selections about America's Founding Fathers, such as Thomas Jefferson, George Washington, and Paul Revere. Rousing tales of their accomplishments and inherent values provided an essential element of the common-school reading curriculum. For example, the story of young George Washington and the fabled cherry tree was presented to virtually every school-child during this period. The mid-nineteenth-century version of this story was published in Harper's New Monthly Magazine in February 1856. In this story George "tried the edge of his new hatchet upon his father's favorite cherry tree . . . (but later confessed) Father, I can not tell a lie: I cut the tree." George's father responded and "tears gushed into his eyes. . . . I had rather lose a thousand trees than find falsehood in my son!" (Abbott, pp. 29091).
Students were encouraged to celebrate the great success of patriots in the American Revolution, but the violence and divisiveness of that struggle as well as the writings of controversial and "radical" writers were minimized or even omitted from readers. Works by Thomas Paine (1737809), for example, were rarely included and then only when prefaced with a warning. One reader devoted an entire lesson to Paine's atheism, noting with outrage that he had claimed in The Age of Reason that "the Christian fable (was based on) ancient superstition (and) . . . mythologies" (McGuffey, Eclectic Fourth Reader, p. 166). The "exorcism" of Paine from the pantheon of American Founding Fathers by these readers demonstrates their awesome power in defining and shaping the attitudes and values of nineteenth-century American schoolchildren.
By avoiding conflict and controversy on matters pertaining to God and country, the primary school readers of the mid-nineteenth century promoted a national consensus, however illusionary it may have been. The goal of the curriculum was to create what Benjamin Rush called patriotic "republican machines" (p. 14). That goal met with a great deal of success in common-school classrooms. These ideals, blended into a disciplinary framework that emphasized the values of hard work, achievement, and accountability, reflected the unique republican worldview of nineteenth-century America. In addition the United States was quietly becoming a nation of readers.
THE GRADED SCHOOL
During the second half of the century, it had become clear to educators that a new form of school organization was needed to deal with soaring enrollments and an ethnically diverse student body. The answer was the graded school. These schools also reflected the idea among educators that students of different ages had diverse needs and learning styles. Gradually students were grouped according to grade levels, introduced to a distinctive curriculum, and taught by teachers who had formal training. Despite these organizational changes, however, the basic reading curriculum remained virtually unchanged until the late nineteenth century.
Although the American people embraced the idea of the graded public school, they were slower to accept the concept of the public high school. In fact, most secondary schools during this period were private academies outside the jurisdiction of local school boards. As a result, enrollments in high schools were limited to the wealthy. This tradition was challenged by the landmark Michigan Supreme Court Kalamazoo decision of 1872 that allowed high schools to be operated by school districts and funded through taxation.
With the high school now in place, a number of American cities began to embrace the concept of the "educational ladder"lementary and high schools integrated into unified school districts. In some districts, schools were combined for organizational simplicity, whereas in others each step of the educational ladder was separateften occupying different buildings. The modern public school was taking shape.
When graded schools and high schools were ostensibly linked to American colleges and universities, the concept of the educational ladder was complete. American colleges had always been separate from the primary and secondary schools of the nation. Their history, moreover, was very different. As early as 1636 Harvard College emerged as America's first institution of higher learning, followed by the College of William and Mary and Yale in 1693. By the eve of the American Revolution, a number of other important colleges had been established, including the College of New Jersey (Princeton University), the College of Philadelphia (University of Pennsylvania), King's College (Columbia University), Rhode Island College (Brown University), Queens College (Rutgers University), and Dartmouth College. These early institutions focused primarily on the training of clergy, and most had direct religious affiliations.
Between the American Revolution and 1800, a number of institutions of higher learning were established, and during the next half century hundreds of colleges emerged to meet the specific challenges of the nation. For example, the U.S. Military Academy at West Point developed an early engineering program, and Rensselaer Polytechnic Institute focused on science and civil engineering. Similarly a number of medical schools and law schools were established. By the middle of the nineteenth century, several "normal schools," including Mount Holyoke and Troy Female Seminary, were founded to train teachers for America's growing student population. Although most colleges of this era excluded women, Holyoke and Troy enrolled women and established a rigorous academic curriculum. Also notable was Oberlin Collegiate Institute, which was America's first coeducational college and also its first racially integrated institution of higher learning. By the late 1860s, a number of all-black colleges, including Fisk University and Atlanta University, were established to meet the needs of the nation's free African American population.
Institutions of higher learning played an important role in the development of the young Republic but did little to directly promote an appreciation of American literature. Colonial colleges were concerned primarily with the training of ministers. Theology was therefore the centerpiece of the curriculum in even the most prestigious institutions. By the late eighteenth century, as colleges underwent a gradual secularization, there also was a growing emphasis on the classics in Greek and especially Latin, but little if any required reading of more contemporary literature. In addition, other colleges of the early Republic typically had a practical focus such as engineering, medicine, law, or teacher training. The United States was indeed a pragmatic nation that sought to solve the "practical" problems of the day. Reading contemporary literature for fun or interest (or even as a component of a well-rounded education) was simply not the focus of these early schools.
To fill the growing demand for literature in colleges, a number of literary societies were formed beginning in the late 1780s. Students established these literary societies to provide a forum for literary and debating activities. Groups such as Princeton's Whig and Clio Societies provided an important "extracurricular" literary outlet. These societies often purchased their own books and established their own libraries. Members of such societies sometimes lived in their own residence halls. By the late nineteenth century, literary societies were eclipsed by the rise of Greek social fraternities, and by the time of the First World War, only a few survived. Nevertheless, they played an important role in introducing "contemporary" literature to thousands of college students.
ANTI-INTELLECTUALISM IN AMERICA
The pragmatic nature of American higher education was in some ways paralleled by a persistent anti-intellectualism bound up with the ideas of rugged individualism and frontier democracy. Many Americans were either uninterested in "book learning" or actively hostile toward it. In fact, as one intellectual of the time lamented, "It was not the want of learning I consider as a defect, but the contempt of it" (Faragher et al., p. 289). Even in larger cosmopolitan communities such as New York, Boston, and Philadelphia there was surprisingly little general interest in literature. Even though most Americans were literate, their taste in reading gravitated toward trade journals and religious tracts. The North American Review had a national circulation of only three thousand. Agricultural journals such as Northern Farmer and the Cultivator, however, had hundreds of thousands of readers, and the Methodist Christian Advocate boasted a circulation of over twenty-five thousand at mid-century (Faragher et al., p. 289).
Literature and literary criticism also took a back-seat to the growing "penny press" of this period, so-called because the price of the newspaper typically was one cent. In 1833 the New York Post began publishing sensationalist stories that fascinated the American people. Similarly Police Gazette's stories of swindlers, murder, and mayhem often titillated readers. The growth of these newspapers at mid-century was dramatic. On the eve of the American Civil War, one writer noted discouragingly, "No narrative of human depravity or crime can shock or horrify the American reader" (Faragher et al., p. 360).
Of course, there were communities of intellectual activity scattered throughout the country. This growing body of educated men and women eagerly embraced American literature. A handful of novels achieved commercial success. Harriet Beecher Stowe's Uncle Tom's Cabin (1852) sold more than 300,000 copies in a single year (Faragher et al., p. 421). In addition to converting thousands to the cause of abolition, Stowe (and other women authors) helped transform what was disparagingly called "parlor" literature into an important literary form and attracted thousands of new American readers.
LYCEUMS AND LIBRARIES
Two informal movements influenced Americans' reading habits. The first was the lyceum, and the second was the public library. These two institutions sought to bring culture and literature to the people, and slowly they began to achieve their goals.
The lyceum movement was a system of adult education that emerged during the late 1820s in New England. It was a broad-based and very ambitious enterprise that promoted public education as well as the establishment of libraries and museums. Sometimes seen as the forerunner of the modern university extension system, the lyceum was the educational product of working-class "mechanic institutes" of this period as well as educators and intellectuals such as Josiah Holbrook of Millbury, Massachusetts.
By the 1830s, the lyceum had spread throughout the northern states, bringing speakers on a variety of subjects to small cities and rural communities. The lyceum recruited a number of important figures, such as Daniel Webster, Henry David Thoreau, Oliver Wendell Holmes, Nathaniel Hawthorne, Charles Dickens, William Makepeace Thackeray, William Lloyd Garrison, and Susan B. Anthony. Ralph Waldo Emerson, a regular speaker on the lyceum circuit, delivered more than fifteen hundred lectures to packed houses in twenty states between 1833 and 1860 (Faragher et al., p. 290). The lyceum movement not only provided broad support for public education but also helped nurture an appreciation of literature for hundreds of thousands of Americans.
Throughout this period, books were relatively expensive, and despite improvements in the American standard of living during the nineteenth century, families rarely owned more than a handful of books. As a result, libraries were critical in nurturing an appreciation of literature. There were a number of private subscription libraries established during the colonial period modeled on the Library Company of Philadelphia, which had been organized by Benjamin Franklin. There were subscription libraries in Charleston, South Carolina; New York; and Newport, Rhode Island. Also notable were Boston's Athenaeum and the fabled "coonskin library" established in frontier Ames, Iowa. Free lending libraries, however, were much slower to develop. In 1833 the first of these institutions was established in Peterborough, New Hampshire, and Boston established the first public library in the country supported by a municipal tax at mid-century. It was not until the end of the nineteenth century, however, that libraries became commonplace. This was the result of both philanthropy and a growing sense of civic responsibility in America. Andrew Carnegie, for example, endowed more than seventeen hundred free libraries by 1900 with his generous matching grants. A number of states, led by New Hampshire, mandated that each township support a public library.
By formal and informal means, Americans struggled to embrace the new literary world. In addition to reading religious tracts, trade magazines, agricultural journals, and the penny press, Americans were beginning to embrace the great literature of contemporary authors from James Fenimore Cooper to Melville and Hawthorne; from Washington Irving to Stowe, Thoreau, and Walt Whitman. The common school had provided the foundation of literacy in the new Republic and had introduced generations of young Americans to the joys of literature. Colleges and universities did their part as well by building on the traditions of a growing literate culture and nurturing an appreciation of the classics in Greek and Latin. The informal intellectual movements of the lyceum and the emergence of the public lending library brought a greater appreciation of reading to the masses and allowed them access to that literature.
See also Colleges; Curricula; Literacy; Lyceums
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Lockridge, Kenneth A. Literacy in Colonial New England. New York: Norton, 1974.
Mosier, Richard. Making the American Mind: Social and Moral Ideas in the McGuffey Readers. New York: King's Crown, 1947.
Parkerson, Donald H., and Jo Ann Parkerson. The Emergence of the Common School in the U.S. Countryside. Lewiston, N.Y.: E. Mellen Press, 1998.
Parkerson, Donald H., and Jo Ann Parkerson. Transitions in American Education: A Social History of Teaching. New York: RoutledgeFalmer, 2001.
Reese, William J. The Origins of the American High School. New Haven, Conn.: Yale University Press, 1995.
Spring, Joel. American Education. 8th ed. Boston: McGraw-Hill, 1998.
Westerhoff, John H., III. McGuffey and His Readers. Milford, Mich.: Mott Media, 1982.
Donald H. Parkerson Jo Ann Parkerson
Administering Medicine (Encyclopedia of Everyday Law)
Administering medicine to children and adolescents while on the premises of local schools is an inescapable reality for contemporary educators. The increasing incidence of students needing to take medicine during the course of a school day has forced school systems (and some state legislatures) to enact and implement regulations and policies addressing the matter.
A professional research study published in the November 2000 issue of Journal of School Health, based on a random sample of 1000 members of the National Association of School Nurses (with 65 percent responding), reported that during a typical school day, 5.6 percent of children receive medication in school. The most reported medications administered within school settings were (in descending order) ADHD medications (for Attention Deficit Hyperactivity Disorders); nonprescription medications; asthma medications; analgesics, and anti-seizure medications. Also common were antibiotics and vitamins.
Seriously ill and/or heavily medicated students are rarely allowed to attend classes, so the issues do not center on them. But for those children who are only marginally ill or disabled, the issue pits educational systems against society at large. Schools must consider safeguarding other children and staff from contagious disease, the prevention of disruption in the classroom by students exhibiting symptoms of illness, the control of cross-medicating (the sharing or selling of medication between classmates); and the potential for self-medication abuse while on school premises. On the other side of the issue, the social realities of the increasing number of households with two working parents (or single working parent households), coupled with employment that does not allow for "sick day" benefits to attend to children's illnesses, often results in sick children being sent to school, with or without medication to take.
Seventy-five percent of reporting nurses in the 2000 study delegated medication administration to unlicensed assistive personnel (UAPs), with secretaries (66 percent) being the most common. Errors in administering medications were reported by nearly 50 percent of the school nurses, the most common error being missed doses (79 percent). Errors were commonly reported to local school and/or state authorities.
Faced with the growing problem of exposure to liability in conjunction with the administration of medicine (and in many circumstances, the administration of controlled substances), schools have mobilized over the years and demanded both guidance and protection from liability by state legislatures. Not all states have addressed the issue at the state level, and persons needing information are best advised to start with their local school districts.
General Policy Overview
- As of 2001, no national laws or regulations govern school administration of medication. However, national guidelines available for local ADOPTION were published at least as early as 1990.
- Guidelines may be found at either state or local levels. Most local policies are developed by school boards, superintendents, individuals, and other school personnel, in collaboration with local physician or medical advisory committees. When individuals searching for applicable policies or regulations, they should always start at the local level and work up.
- According to a 2001 U.S. Congressional Sub-committee report, a total of 37 states and the District of Columbia have statutes, regulations, and/or mandatory policies addressing medication administration at schools.
- Many states have SOVEREIGN IMMUNITY laws that shield public employees, including school personnel and nurses, etc., from liability for NEGLIGENCE. Local procedures and policies generally require parents' signatures to release school districts and employees from liability.
- Many state and local policies permit "delegation" of medication administration (usually restricted to licensed nurses) to trained but unlicensed assistive personnel (UAPs) within school settings. They may be school principals, teachers, secretaries, or administrative assistants within the health services office., school principals, or teachers. Certain duties cannot be delegated, such as secured storage of controlled substances.
- Self-administration policies vary greatly from state to state and within school districts. Many require student assessment for age and maturity; others simply require authorizations from prescribers and parents. Almost all include signed releases of liability.
- States may require compulsory medication, in the form of immunizations/vaccinations of school children, as prerequisites to school attendance. As of 2000, 23 states had passed immunization requirements for hepatitis B vaccinations. Many had additional requirements for measles, varicella, tetanus, and diphtheria. Schools may offer free or low-cost immunizations to students in conjunction with these requirements.
Federal law mandates that children with health needs receive school health services, e.g., the Education of All Handicapped Children Act of 1975 (P.L. 94-142); Section 504 of the Rehabilitation Act of 1973 (P.L. 93-112). But federal law does not specifically address the administering of medicine at the individual school level. Administering medicine entails physically providing it to the ultimate user, the patient.
Federal laws and regulations that do not expressly address, but, nonetheless impact, the administration of medication within schools deal mostly with controlled substances. They include:
- The Controlled Substances Act, 21 U.S.C. 801
- The Uniform Controlled Substances Act of 1994, 21 U.S.C. 802
- Title 21 (Food and Drugs) of the CODE OFFEDERAL REGULATIONS, Chapter II (Drug Enforcement Administration, Section 1300 (21 CFR 1300.01 et seq.)
The above federal references identify and define those substances included as "controlled substances" (any drug as defined in the five categories of the Acts). They include all opiates and their derivatives, hallucinogenic substances, anabolic steroids, and several psychotropic substances. Within school settings, most drugs used to treat ADHD are controlled substances, AS IS Ritalin. Controlled substances generally fall under the purview of local drug enforcement agencies, which derive their ultimate authority from the Federal Drug Enforcement Administration.
But students who need medications administered to them during the school day already have legal possession (or their parents do) of any controlled substances. The school's role is therefore limited to ensuring safe CUSTODY, storage, and administering of the medication, once a valid authorization is received from parents/physician.
Most states have enacted statutes that delegate to school systems and school boards the authority to implement local policies addressing the administration of medicine on school premises. But those regulations and policies must comply and coordinate with state laws concerning the "unauthorized practice of medicine" or "unauthorized practice of nursing."
In 1990, the Office of School Health Programs at the University of Colorado Health Science Center published national recommendations for school-based administration of medications to students. The recommendations encouraged local policy development with direct involvement of parents and the public.
In 1993, the American Academy of Pediatrics Committee on School Health published its policy statement, Guidelines for the Administration of Medication in School (RE9328) (reaffirmed in June 1997). The purpose of the policy statement was to assist state legislators and local school boards in establishing somewhat uniform approaches to the growing concern. As noted in the statement, "For most students, the use of medication will be a convenient benefit to control acute minor or major illnesses, allowing a timely return to the classroom with minimal interference to the student and to others."
Typical state or local policies contain certain key provisions; the two most basic requirements are parental consent and a medication order from the prescribing physician (dentist, physician assistant, nurse practitioner, etc.). Most regulations or policies require that a medication plan be completed by the school nurse or health service employee and that it contains minimum required information such as emergency contacts and telephone numbers, allergies and known side effects, the quantity of the medication delivered to the school, plans for administering medication on school field trips or planned events, and information on self-administration. An individual student log, documenting dates and times of administered medicine, is usually part of the plan on file and ultimately becomes part of the school health record.
Requirements for self-administration of medications evoke more controversy. Students who suffer from asthma and similar respiratory illnesses may suffer undue panic or anxiety attacks when separated from their inhalers. On the other hand, a few asthmatic (and other) students nationwide have been known to sell off their medications to fellow students looking for a "high" or quick thrill. In schools where students are permitted to keep asthma medication close at hand, there are generally strict instructions as to where the medication may be stored (e.g., locker or backpack) and (sometimes) reserved rights on the part of the school to monitor self-administration. (If schools retain an "overseeing" role in self-medication, they may expose themselves to more liability if they are not protected with IMMUNITY).
Policies generally should require that all medication brought to school, whether prescriptive or over-the-counter (OTC), remain in original labeled containers. Of key concern is the access to life-sustaining medications administered by injection, such as insulin and epinephrine (to respond to treat emergency allergic reactions). All parenteral medications and drugs controlled by the Drug Enforcement Agency must be appropriately secured by the schools (and many of them require refrigeration, as well). In such circumstances, even those students approved for self-administration must report to a school representative to receive the required medication and any dosage paraphernalia (such as a syringe) if needed. Medication dosages/pills should be counted upon arrival and recounted when tendered to school employees.
ALABAMA: The state has published "recommended guidelines" prepared by an advisory task force comprised of members from Alabama's State Department of Education and the Alabama Department of Public Health. The policy differs from others in that it expressly notes that school nurses may not delegate the administration of medications to unlicensed personnel, pursuant to Alabama's Nurse Practice Act (Title 34-21-1) and the 1993 state guidelines for Delegation of Nursing Functions to Assistive Personnel. The guidelines "are not meant to be regulatory" for local education agencies (LEAs), but intend to offer "best practice" recommendations. The guidelines allow for self-administration of prescription medication by students if permitted by local school board policy. The guidelines are available at .
ALASKA: No applicable provisions.
ARIZONA: Title 15 of the Arizona Revised Statutes, Chapter 15-344, provides for the administration of prescription, PATENT, or PROPRIETARY medications by school employees. The law delegates authority to establish policies and procedures to local school district governing boards.
ARKANSAS: No applicable provisions.
CALIFORNIA: The California Education Code 49423, 49423.6 requires the state board of education to adopt regulations regarding the administration of prescription medication in public schools. There is no express delegation of authority.
COLORADO: Colorado Dept. of Reg. Agencies, Chapter XIII, Section 7, and Colorado Board of Health Regulations, Chapter 9, Section 105, address school administration of medications. There is no express delegation of authority.
CONNECTICUT: Connecticut General STATUTE 10-212a, as well as Connecticut State Agencies Regulation 10-212a-2, 5, and 6 authorize school boards of education to adopt written policies. A new Connecticut law passed in 2001 (the first of its kind in the nation) expressly prohibits teachers, counselors, and other school personnel from recommending psychiatric drugs for schoolchildren. The state requires schools to document any skipped dose and the reasons for it.
DELAWARE: The Code of Delaware Regulations 72-000-008, Section 800-9, is applicable to school nurses; there is no express delegation of authority.
DISTRICT OF COLUMBIA: D. C. Code 31-2432 to 2434 requires the D. C. Board of Education and Department of Human Services to issue joint rules and regulations. D.C. schools must obtain authorization from the student's parent or GUARDIAN, as well as orders/instructions from the licensed physician before administering medication.
FLORIDA: Florida Statutes Annotated 232.46 requires district school boards to adopt local policies and procedures.
GEORGIA: No applicable provisions.
HAWAII: Hawaii Revised Statute 321-242 establishes a statewide school health services program, including statewide requirements for medication administration. Hawaii Administrative Code 11-146-4 is also applicable.
IDAHO: No applicable provisions.
ILLINOIS: 105 Illinois Compiled Statutes Annotated 5/10-20.14b requires school boards to develop local policies for school administration of medication.
INDIANA: Indiana's 511 Indiana Administrative Code 7-21-8 establishes written medication administration policies for public schools operating special education programs only.
IOWA: Iowa Administrative Code 41.12(11) requires local education agencies offering special education programs to establish medication administration policies.
KANSAS: No applicable provisions.
KENTUCKY: No applicable provisions.
LOUISIANA: Louisiana Revised Statute 17:436.1 prescribes policies for delegating of administration of medications in schools to unlicensed personnel. Louisiana Administrative Code 28:1.929 requires school boards to establish guidelines consistent with state policy.
MAINE: 20-A Maine Revised Statutes Annotated, Section 254, Subsection 5, requires schools to adopt local written policies and procedures.
MARYLAND: The Annotated Code of Maryland, Education 7-401, in conjunction with Administrative Regulation 13A.05.05.08, and.10 require county boards of education to adopt policies for administration and storage of medication within school systems.
MASSACHUSETTS: Massachusetts was one of the earliest to have a statute in place, dating from the early 1970s. New regulations were promulgated in 1993, and old ones were updated. Four statutes in the Massachusetts General Laws are pertinent. Chapter 71, Section 53, requires registered nurses in all public school districts; Chapter 94C, the Controlled Substance Act, gives the Commissioner of Public Health authority to make certain exceptions for delegation of duties to unlicensed personnel; Chapter 112 (The Nurse Practice Act) has been amended to include regulations governing the delegation of nursing tasks; and Chapter 71, Section 54B contains registration requirements for students receiving medications. 105 Code of Massachusetts Reg. 210.003 to 210.009 requires schools to adopt local policies consistent with the above laws and regulations.
MICHIGAN: MCL 380.1178 (Revised School Code, Act 451 of 1976) was amended in March 2000, to provide immunity from criminal or civil actions for school personnel who administer medication to pupils pursuant to parent/physician authorizations and instructions. The law does not protect GROSS NEGLIGENCE or willful and wanton misconduct. There is no express delegation of authority.
MINNESOTA: Minnesota Statutes Annotated 121A.22 requires local school boards to develop prescription medication administration procedures in conjunction with health care professionals.
MISSISSIPPI: No applicable provisions.
MISSOURI: Chapter 167 of the Missouri Revised Statutes, "Pupils and Special Services," Section 167.627 (August 2001) addresses state requirements of self-administered medications for asthma "or other potentially life-threatening respiratory illnesses." Section 167.181 discusses compulsory immunizations. Section 167.191 expressly prohibits children with contagious diseases from attending school, with penalties of "not less than five nor more than one hundred dollars" for violations.
MONTANA: No applicable provisions.
NEBRASKA: Nebraska Revised Statutes 71-6718 to 6742, in conjunction with Nebraska Administrative Code, Chapters 59 and 95, regulate the administration of medication in schools by unlicensed personnel through competency assessments and procedural requirements.
NEVADA: Nevada Administrative Code 632.226 requires school nurses (rather than local school boards) to develop procedures.
NEW JERSEY: Concerning self-administration of medication by school pupils for asthma, PUBLIC LAW 2001, c.061 (S1372 2R) amends Public Law 1993, c.308, and supplements Chapter 40 of Title 18A of the New Jersey Statutes. In addition, New Jersey Administrative Code 6A:16-2.3 requires district boards of education to adopt written policies.
NEW MEXICO: New Mexico, through its 6 N.M. Administrative Code 184.108.40.206.11.3.2(d) requires the supervisory school nurse to develop and implement written policies and procedures for clinical services, including the administration of medication.
NEW YORK: No applicable provisions.
NORTH CAROLINA: North Carolina General Statute 115C-307(c) authorizes school boards of education to permit school personnel to administer prescriptive medications with parents' written authorizations.
NORTH DAKOTA: No applicable provisions.
OHIO: Ohio Revised Code 3313.713 requires local school boards of education to adopt policies permitting school employees to administer medication. In February 2000, Ohio became the 50th state to allow advanced-practice nurses to prescribe medication (under physician supervision). In school settings, they have no independent authority to prescribe.
OKLAHOMA: Under 70 Oklahoma Statutes Annotated 1-116.2, school nurses and other school personnel must administer medications according to STATUTORY requirements, which contain no express delegation of authority.
OREGON: Oregon Revised Statutes 339.869 and 339.870, in conjunction with Oregon Administrative Rule 581-021-0037, require local school district boards to adopt policies.
PENNSYLVANIA: Pennsylvania has no statutory authority, but it has a regulation, 22 Pa. Code 7.13 that requires school districts to develop medication administration policies that are consistent with state department of health guidelines. Title 24 (Education) of the Pennsylvania Consolidated Statutes Annotated, PSA 24-13, Article XIV, School Health Services, Sections 13-1413 and 13-1414 address supplemental duties of school physicians and care and treatment of pupils.
RHODE ISLAND: Title 16 (Education), Chapter 16-21 (Health and Safety of Pupils), Section 16-21-22 provides for self-medication by students who have provided schools with medical documentation. The law also provides for immunity from civil damages for those negligently administering epinephrine or prescription inhalers; it does not protect gross negligence or willful/wanton conduct from liability. The Code of R.I. Rules 14-000-011, Section 18 requires schools to develop procedures that include specified minimum requirements.
SOUTH CAROLINA: No applicable provisions, but the Charleston County School District has policies comparable to most states.
SOUTH DAKOTA: Article 46:13 addresses medication administration, including self-administration, through delegation of tasks generally within the purview of licensed registered nurses. There is no express mention of application to schools.
TENNESSEE: Tennessee Code Annotated 49-5-415 requires licensed health care professionals to administer medications, but school boards may authorize unlicensed personnel to assist students with self-administration.
TEXAS: House Bill 1688, signed into law by Governor Perry in June 2001, amends Texas Chapter 38, Education Code, to add provisions regarding self-administration of prescription asthma medicine by public school students while on school property or at school-related events or activities. School-based Health Centers and their services are generally discussed in Chapter 38.011. Texas Education Code 22.052 provides for immunity from civil liability conditioned upon the adoption of compliant school district policies.
UTAH: Utah Code Annotated 53A-11-601 authorizes schools to develop policies.
VERMONT: Vermont has no statutory guidance, but Code of Vermont Rule 22-000-006, Section 4220, requires schools to incorporate specified procedures into their local administration regulations.
VIRGINIA: The Code of Virginia, as amended, Section 22.1-274.2 and Section 22.1-78, address self-administration by students of asthma medication; permissions are granted for each school year and renewed annually. The Code delegates to local school superintendents the authority to establish additional regulations for administration of medicines to students. The Code of Virginia 54.1-3408 authorizes school boards to train employees to administer drugs.
WASHINGTON: The Revised Code of Washington, RCW 28A.210.260, addresses administration of oral medication in public and private schools. It delegates policy-making to public school districts and private schools. RCW 28A.210.270 expressly provides for immunity from liability for school employees.
WEST VIRGINIA: West Virginia Code of State Rules 126-25-1 and 126-27-1 establish standards for administration of oral, topical, and emergency medication in West Virginia public schools by persons not licensed as health care providers. Code 18-5-22a requires school boards of education to develop policies.
WISCONSIN: Wisconsin Statute 118.29 requires school boards to develop policies, including authorizing school employees to administer medications.
WYOMING: The Wyoming Administrative Code, Education, Chapter 6, Section 17(a)(i)(F) requires school districts to establish local programs for handling, storage, and administration of medications.
"Appendix VI: State Statutes, Regulations, and Mandatory Policies Addressing the Administration of Medication to Students." U. S. Government Printing Office, GAO Publication-01-1011. Available at http://www.gao.org
"Few Incidents of Diversion or Abuse Identified by Schools." Jones, Paul L., FDCH Government Account Reports, 14 September 2001. Available at http://www.law.cornell.edu/topics/civil_procedure.html
"Guidelines for the Administration of Medication in School (RE9328)." Policy Statement of the American Association of Pediatrics. 1993, 1997. Available at http://www.law.cornell.edu/topics/civil_procedure.html
"Medication Administration Practices of School Nurses." McCarthy, Ann Marie, et al. Journal of School Health, November 2000.
U. S. Code, Title 21: Food and Drugs, Chapter I7:National Drug Enforcement Policy. U. S. House of Representatives. Available at
"Who Dispenses Pharmaceuticals to Children?" Esielion, Elaine, and Joanna Persis Hemmat. Journal of School Health, December 1996.
Athletics (Encyclopedia of Everyday Law)
The law governing amateur athletics is an amalgam of statutes, regulations, rules, procedures, and judicial decisions that apply to individual athletes, the academic institutions for which they compete, and most persons employed by those academic institutions. This body of law spans several areas of American JURISPRUDENCE, including TORT LAW, tax law, ANTITRUST LAW, and CIVIL RIGHTS law, among others. Thus, the law governing amateur athletics is not a single body of law unto itself.
Amateur v. Professional Athletes
The most basic difference between amateur and professional athletes lies in the rewards that each group receives for its athletic performances. Generally speaking, amateur athletes are not paid for their athletic performances, though the U.S. Gymnastics Association and the U.S Figure Skating Association now allow member athletes to sponsor commercial products so long as the money earned is placed into trust. Professional athletes, by contrast, are typically paid annual salaries plus incentives tied to individual and team performance.
Athletic scholarships are the biggest reward offered to amateur athletes. Athletic scholarships pay for some or all of a student-athlete's tuition, including room and board, as long as the student-athlete remains enrolled at the school, continues to participate in the athletic program for which the scholarship was awarded, and maintains academic eligibility. Amateur athletes who are compensated for their performance in any way beyond their athletic scholarships can be stripped of their amateur status by the National Collegiate Athletic Association (NCAA).
The NCAA v. Professional Sports Associations
Headquartered in Shawnee, Kansas, the NCAA is the governing body that regulates athletic competitions among many colleges and universities. Colleges and universities must elect to join the NCAA, and once they do they relinquish ultimate JURISDICTION over their athletic programs, student-athletes, and coaches. To remain a member of the association, colleges and universities have to abide by NCAA rules, regulations, and policies.
Pursuant to its governing authority, the NCAA has established criteria that college athletes must satisfy to stay eligible for NCAA sanctioned athletic competitions. One of these criteria is that student-athletes be in good academic standing and maintain a certain minimum grade-point average. Schools and coaches are subject to NCAA restrictions regulating how high school students may be recruited, while both coaches and athletes are subject to discipline for violating NCAA rules relating to use of illegal or banned substances, gambling, point-shaving, and BRIBERY.
The NCAA conducts its own investigations of alleged rule violations and assesses penalties based on the severity of the violation, after giving the suspected offender an opportunity to be heard during a public proceeding in which most fundamental legal rights may be invoked. Penalties may be assessed against an offending school, coach, or athlete, and entail loss of scholarships and loss of post season awards, and include fines, PROBATION, suspensions, FORFEITURE of games, and forfeiture of tournament and playoff opportunities. Despite the sometimesdaunting power exercised by the NCAA, being a member-school is a symbol of prestige, and many schools use their membership as an enticement during the recruiting process.
Professional sports teams in the National Football League (NFL), Major League Baseball (MLB), the National Hockey League (NHL), and the National Basketball Association (NBA) are also governed by voluntary associations, but their associations are comprised of the individual owners who buy professional sports franchises and agree to abide by the rules, policies, and procedures established by the league. Also known as the constitution and by-laws, these rules, policies, and procedures generally govern the circumstances under which franchises may move their team from one city to another; players may be drafted, sign contracts, become free agents, and receive retirement pensions; and owners, coaches, and players may be fined, suspended, banned, or otherwise punished. The league's constitution and by-laws may also be influenced by the terms of any COLLECTIVE BARGAINING AGREEMENT entered into between franchise owners and labor representatives for the players' union and by any applicable antitrust laws (i.e., federal laws that protect trade and commerce from restraints, monopolies, PRICE-FIXING, and price DISCRIMINATION).
Each professional league also allows its teams to set their own rules, which must be consistent with the league's rules. Some teams set rules that the players consider unreasonable. For example, many teams prohibit players from growing facial hair or wearing jewelry, require players to make themselves available for interviews, and subject players to curfews during the season. The NHL, NBA, NFL, and MLB have all appointed commissioners to oversee the administration of their rules, and individuals punished for violating a league or team rule may appeal to the commissioner's officer for review.
Other Legal Issues Confronting Amateur and Pro Athletes
Amateur and professional athletes must comply with state and federal laws that exist independent of the rules established by the athletic association in which they are members. Nonetheless, many professional and amateur athletes are surprised to learn the extent in which they must understand the intricacies of civil and criminal law if they want to stay out of court. For example, professional athletes are required to pay INCOME TAX to every state in which they appear to play a game, and not just to the state in which their teams plays home games. Amateur athletes may be taxed on the funds they receive for athletic scholarships when those funds exceed the cost of tuition, room, board, and necessary supplies.
Many amateur and professional athletes are also surprised to learn that they can be held civilly and criminally liable for injuries they inflict on other athletes during competition, even in contact sports such as hockey and football. Contact-sport athletes consent to some contact as part of the game and assume the risk for injuries that are sustained during the normal and ordinary course of an athletic contest. But under the COMMON LAW, no athlete assumes the risk for injuries that result from the reckless or intentional misconduct of another athlete. Depending on the laws of the state in which an injury is inflicted, the blameworthiness of the misconduct, and the severity of the injury, athletes who recklessly or intentionally injure competitors during an athletic contest may be prosecuted in criminal court or sued in civil court for battery, ASSAULT, or other such related unlawful acts. A minority of jurisdictions also allow athletes to recover for injuries sustained from the negligent conduct of competitors.
In some cases academic institutions may be held liable for injuries suffered by athletes. As a general rule, coaches, trainers, and referees must exercise reasonable care to prevent foreseeable injuries to athletes, and under no circumstances may a school employee encourage athletes to injure opponents or competitors. If a school employee fails to exercise the degree of care that is reasonable under the circumstances, the school itself may be held vicariously liable under the doctrine of respondeat superior, which makes principals liable for the wrongful acts of their agents, when those acts are committed in the ordinary course and scope of the agent's authority.
Because the relationship between the law and amateur and professional athletes can be complicated, many colleges, universities, and pro sports franchises require athletes to attend classes that introduce them to a variety of legal issues. Some of these classes are geared solely toward male athletes. Given the number of highly publicized cases in which male athletes have been ACCUSED of sexual assault and violence, these classes are intended to help male athletes avoid situations where they can get themselves into trouble.
Title IX and Sex Discrimination in Amateur Athletics
In amateur athletics another hotly litigated issue involving both genders is SEX DISCRIMINATION. Title IX of the Education Amendments of 1972 provides that "[n]o person in the United States may, upon 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 assistance." Pub. L. 92-318, Title IX, section 901, June 23, 1972, 86 Stat. 373, codified at 20 U.S.C.A. sections 1681 et seq. The phrase "education program or activity" has been broadly interpreted to include athletic programs. Title IX may be enforced by the federal government in an administrative proceeding or by a private individual in civil court. The law guarantees EQUAL PROTECTION at all federally funded academic institutions for both male and female student-athletes and male and female persons employed by school athletic programs.
Title IX: Background
Congress enacted Title IX to serve as a catalyst against sex discrimination at federally funded academic institutions, to encourage the development of athletic programs for female student-athletes, and to stimulate female participation in school sports. Within eleven years of Title IX's enactment, statistics revealed that progress was being made toward these goals. In 1983 more than 150,000 women were participating in college sports, compared to 32,000 in 1972, while the number of colleges and universities offering athletic scholarships to women increased from 60 in 1974 to over 500 in 1981.
However, further progress was impeded by the U.S. Supreme Court's decision in Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (U.S. 1984), where the court ruled that Title IX applied only to the athletic programs that directly received funding from the federal government and not to athletic programs that received funding from the college, even if the college itself was a federally funded institution. Because very few college athletic departments ever receive direct federal funding, the Supreme Court's decision in Grove City essentially insulated virtually all collegiate athletic programs from liability for sex discrimination under Title IX. In response to Grove City, the U.S. Department of Education (DOE) suspended 29 Title IX compliance cases, and many universities began cutting women's athletic programs.
In 1987 Congress formulated its own response to Grove City by enacting the Civil Rights Restoration Act (CRRA). Pub. L. 92-318, Title IX, section 901, June 23, 1972, 86 Stat. 373, codified at 20 U.S.C.A. section 1685. The CRRA adopted an "institution-wide" approach, providing that if any one program within an educational institution receives federal funding, then all of the programs or activities at that institution are subject to Title IX's requirements. As a result, all athletic programs offered by academic institutions receiving any form of federal funds have been subject to the strictures of Title IX since March 22, 1988, the effective date of the CRRA.
Title IX empowers every federal department and agency to extend financial assistance to educational institutions by way of grant, loan, or contract. The U.S. Departments of Agriculture, Health and Human Services, and Education have all extended financial assistance pursuant to Title IX. However, the DOE is primarily responsible for implementing Title IX, and it has delegated much of its responsibility to the Office of Civil Rights (OCR). The OCR has responsibility for promulgating regulations to enforce Title IX, initiating administrative proceedings against alleged violators, and terminating federal funding for proven violators. Although neither Title IX nor any of its amendments expressly authorizes individuals to bring a lawsuit against a violator independent of an action brought by the DOE or OCR, the U.S. Supreme Court has ruled that Title IX implies a private cause of action pursuant to which aggrieved individuals may seek REDRESS for sex discrimination in federal court without first having exhausted their administrative remedies. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (U.S. 1979).
Title IX: Parties Subject to Liability
Title IX conditions the offer of federal funding on each funding recipient's promise not to discriminate on the basis of sex, in what amounts to a contract between the government and the funding recipient. Elementary schools, junior high schools, high schools, and both undergraduate and graduate colleges and universities must comply with Title IX if they receive federal funding and wish to continue receiving it. However, federally funded recipients may be exempted from liability under Title IX if they have had a continuous policy and tradition of admitting students of only one gender. 20 U.S.C.A. section 1681(a)(5). Federally funded recipients are also exempt from Title IX suits that arise from employment discrimination claims over jobs in which sex is a bona fide occupational qualification, as might be the case for persons hired to clean or monitor locker rooms and toilet facilities.
As noted above, athletic departments and athletic programs infrequently receive funding directly from the federal government. The same holds true for directors, coaches, trainers, and other individuals employed by school athletic programs. Instead, school boards, school districts, colleges, and universities are the most common recipients of federal funding, and thus they are also the most common targets of Title IX LITIGATION. Since Title IX has been interpreted as abrogating the states' Eleventh Amendment IMMUNITY, state governments themselves may also be sued in federal court for discrimination that occurs at one of their federally-funded, state-sponsored academic institutions.
Title IX: Standards for Liability
Title IX bars sex discrimination in any interscholastic, intercollegiate, intramural, or club athletic program offered by a federally-funded academic institution. This prohibition has two prongs. The first prong prohibits sex discrimination against students participating in or seeking to participate in a school-sponsored sport. The second prong prohibits sex discrimination against persons employed or seeking employment with a school sponsored athletic program, including persons employed or seeking employment as athletic directors, athletic coordinators, coaches, physical therapists, trainers, or any other job within a school's athletic program.
Under both prongs, the law requires federally funded academic institutions to guarantee equal opportunity for student-athletes and employees without regard to gender. Ten specific factors may be considered in determining whether this obligation has been met: (1) the particular sports and levels of competition selected by an institution to accommodate members of both sexes; (2) the quality and quantity of equipment and supplies that are provided to teams of each gender; (3) the scheduling of games and practice time; (4) travel and per diem allowances; (5) the opportunities to receive coaching and academic tutoring; (6) the compensation of coaches and tutors; (7) the provision of locker rooms, as well as practice and competitive facilities; (8) the provision of medical and training facilities and services; (9) the provision of housing and dining facilities and services; and (10) the publicity afforded to each gender's athletic programs. 34 C.F.R. section 106.41.
The circumstances of each case determine how much weight is allotted to a given factor in resolving Title IX disputes. Nonetheless, a significant portion of litigation has focused on the first factor, and courts will normally ask three questions when evaluating whether an academic institution has taken steps to effectively accommodate athletes of both sexes: (1) does the number of athletic opportunities provided for males and females proportionately represent their respective overall enrollments to a substantial degree? (2) does the academic institution have a history of expanding programs to accommodate female interests and abilities in sports? and, if so, (3) has that institution fully and effectively accommodated those interests and abilities? If a preponderance of the EVIDENCE offered during a Title IX proceeding answers these questions in the affirmative, the DEFENDANT will normally prevail. Plaintiffs are more likely to prevail when the defendant has a poor or inconsistent record on these issues.
Student-Athletes' Title IX Claims
A court's analysis will also depend on whether the plaintiff is a disgruntled student-athlete or a disgruntled employee. For disgruntled student-athletes, Title IX does not compel federally funded educational institutions to sponsor one program for each gender in every sport they sponsor. However, if a school sponsors only one program for a sport, then that school must allow members of both sexes to try out for the team, unless the sport is a contact sport, in which case the school may limit participation to one gender. Conversely, if a school sponsors only one program for a contact sport and then allows members of both sexes to compete for the team, the school may not exclude an athlete from the team on account of his or her gender. "Contact" sports include boxing, wrestling, rugby, ice hockey, football, and basketball. 45 CFR section 86.41. Non-contact sports include volleyball, baseball, tennis, and swimming.
Disgruntled students may also ALLEGE that they have been victims of SEXUAL HARASSMENT in violation of Title IX. Sexual harassment typically consists of receiving unwanted sexually oriented comments, receiving unwanted sexually oriented physical contact, or working in a sexually charged environment. The threshold of liability is higher for sexual harassment than it is for sex discrimination. To prevail on a Title IX sexual harassment claim, a plaintiff must show that the institution was aware of the harassment, exercised control over both the harassed and the environment in which the harassment occurred, and that harassment was serious enough to have the systemic effect of denying the victim equal access to participate in an athletic program. Mere name-calling or teasing will not give rise to a Title IX harassment claim, even when the offensive comments single out differences in gender.
Courts are much more inclined to find that offensive comments give rise to Title IX liability when they are made by a coach or person acting in an official capacity for the academic institution. Plaintiffs are less likely to prevail when the offensive behavior takes the form of student-on-student or athlete-on-athlete harassment. In such instances, the plaintiff must not only prove that the academic institution was aware of the harassment and had authority to stop the harassment but also that the harassment was "so severe, pervasive, and objectively offensive" that it amounted to a "deliberate indifference" by the institution in failing to stop it. Davis Next Friend LaShonda D. v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (U.S. 1999). Thus, sexual harassment by fans, athletes, or coaches from opposing schools is generally not actionable.
Coaches' Title IX Claims
The STATUTORY proscription against sex discrimination in education programs and activities encompasses employment discrimination, which means that any person working for an athletic program at a federally funded academic institution is entitled to protection from Title IX. The law protects employees in all aspects of their employment, ranging from hiring and compensation to promotion, demotion, suspension, and termination, regardless of the position held by the employee and regardless of whether the federally funded academic institution is a tiny elementary school or an enormous Division I university.
Over the last ten years a large number of Title IX employment discrimination complaints have been filed by college coaches. Frequently, these claims allege that the head coach of a women's college team is being discriminated against because she is being paid less than the head coach of the men's team for the same sport and from the same school. Courts will consider several factors in evaluating these claims, including the following: (1) the differing rates of compensation; (2) the duration of the contracts; (3) provisions relating to contract renewal; (4) the relative training and experience of the two coaches; (5) the nature of the coaching duties performed by each; (6) working conditions; (7) professional standing; (8) other terms and conditions of employment; and (9) other professional qualifications.
In Stanley v. University of Southern California, 178 F.3d 1069 (9th Cir. 1999), the Ninth Circuit Court of Appeals discussed what it considered the relevant professional qualifications and conditions of employment in evaluating a coach's Title IX claim based on pay disparity. The case began when Marianne Stanley, the head coach of the women's basketball team at the University of Southern California (USC), sued the school for Title IX discrimination after learning that her $64,000 annual salary was less than half of the salary paid to the head coach of the men's basketball team, George Raveling, who made $135,000 annually.
The court conceded that both coaches were extremely well qualified for their jobs. Raveling had 31 years of experience, while Stanley had 16 years of experience. Raveling had won coach-of-the-year honors twice, had been named assistant coach for a U.S. Olympic team, and had marketing and promotional experience. Stanley had won three national championships and had marketing and promotional experience of her own. However, the Ninth Circuit observed that Raveling was also required to conduct twelve outside speaking engagements per year, make himself accessible to the media for interviews, and participate in certain activities designed to produce donations and endorsements for the USC Athletic Department as a whole. Stanley's position as head coach of the women's team did not require her to engage in the same intense level of promotional and revenue-raising activities. Moreover, the court found, Raveling's activities generated 90 times more revenue for the school than did Stanley's activities. These differences justified the disparity in pay for the two coaches, the court concluded.
Other Title IX plaintiffs have been more successful. For example, in the unpublished case Tyler v. Howard University, No. 91-CA-11239 (D.C. Sup.Ct. June 24, 1993), a District of Columbia Superior Court jury awarded $2.4 million to the Howard University women's basketball coach, Sanya Tyler, after she offered proof that the school had afforded her inadequate office space, poor locker room facilities, no assistant coach, and about half the salary of the men's head coach. The jury award was later reduced to an undisclosed amount via an OUT-OF-COURT SETTLEMENT, but not before the school gave her a bigger office and upgraded her team's locker room facilities.
Title IX: Remedies
A plaintiff instituting a private action to enforce Title IX may not ordinarily recover COMPENSATORY DAMAGES, unless the plaintiff offers evidence that the discrimination was willful, deliberate, or intentional. Injunctive relief is the remedy most regularly sought in Title IX actions. Injunctions may take the form of an order compelling an academic institution to cease an offending practice or an order compelling the institution to take specific action to level the playing field for the victims of discrimination. Prevailing Title IX plaintiffs may also recover attorney fees and expert witness fees pursuant to 42 U.S.C.A. section 1988. Additionally, when the Title IX defendant is a state government, plaintiffs may pursue remedies available under the Civil Rights Act, which prohibits discrimination by state actors. 42 U.S.C.A. section 1983. Both compensatory and PUNITIVE DAMAGES are recoverable in section 1983 actions.
Litigants who are unhappy with a federal agency's decision made pursuant to Title IX may generally appeal that decision to a federal district court as provided in 20 U.S.C.A. section 1683. However, if the agency's decision involves terminating or refusing to grant or to continue financial assistance upon a finding of failure to comply with a Title IX requirement, then JUDICIAL REVIEW may only be pursued as provided in 5 U.S.C.A. sections 701 et seq. Title IX does not contain a STATUTE OF LIMITATIONS. So both administrative agencies and judicial bodies rely on the most analogous STATUTE of limitations provided by the law of the state from which the discrimination complaint originated.
American Jurisprudence. West Group, 1998.
"Howard's Tyler Savors Fight, Refocuses on Women's Team." Hente, Karl, Washington Post, November 21, 1993.
West's Encyclopedia of American Law. West Group, 1998.
American Civil Liberties Union (ACLU)
1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
Primary Contact: Anthony D. Romero, Executive Director
Center for Human Rights and Constitutional Law
256 S. Occidental Blvd.
Los Angeles, CA 90057 USA
Phone: (213) 388-8693
Fax: (213) 386-9484
Primary Contact: Peter A. Schey, Executive Director
National Organization of Bar Counsel
515 Fifth Street, NW
Washington, DC 2001-2797 USA
Phone: (202) 638-1501
Fax: (202) 638-0862
Primary Contact: Barbara L. Margolis, President-Elect
Bilingualism (Encyclopedia of Everyday Law)
At the beginning of the twenty-first century there were some three million children in the United States who were classified as Limited English Proficient (LEP). For much of the twentieth century these students would have been placed in so-called "immersion programs," in which they would be taught solely in English until they understood it as well or better than their native tongue. Beginning in the 1960s there was a gradual shift toward bilingual education, in which students can master English while retaining their native-language skills.
Types of Bilingual Education
There is a difference between bilingual programs and English as a Second Language (ESL) programs, although bilingual programs include an ESL component. Bilingual programs are designed to introduce students to English gradually by working with them in both English and their native tongue. The students are able to master English without losing proficiency in the native language. In bilingual or dual language immersion, the class typically includes English speaking students and LEP students who share the same native language. Instruction is given in both English and the native language. In developmental or late-exit programs, all students share the same language; instruction begins in that language but gradually shifts to English as the students become more proficient.
Transitional or early-exit programs are similar to developmental programs, except that the goal is mastery of English rather than bilingualism. Students who become proficient in English are transferred to English-only classes.
Bilingualism is not generally a goal in ESL programs. In sheltered English or structured immersion programs, LEP students are taught in English (supplemented by gestures and other visual aids). The goal is acquisition of English. Pull-out ESL programs include English-only instruction, but LEP participants are "pulled out" of the classroom for part of the day for lessons in their native tongue.
Bilingual education in the United States is a complex cultural issue because of two conflicting philosophies. On the one hand is the idea that the United States welcomes people from all societies, from all walks of life. Immigrants have long seen the States as the "Land of Opportunity," in which individuals can rise to the top through hard work and determination. They can build new identities for themselves, but they can also hold on to their past culture without fear of reprisal. At the same time, the United States is also the great "melting pot" in which immigrants are expected to assimilate if they wish to avail themselves of the many opportunities for freedom and success. Everyone who comes to the States, so they are told, should want to become American.
Thus there are people who believe strongly that erasing an immigrant's native tongue is erasing a key cultural element. People are entitled to speak and use their native languages as they please; anything less goes against the freedom for which the United States stands. Besides, having proficiency or fluency in more than one language is a decided advantage in a world that has become more interdependent.
There are other people who believe, equally strongly, that everyone who lives and works in the United States should speak, read, and write in English. Those who oppose bilingual programs for LEP students believe that allowing children to learn in their native tongue puts them at a disadvantage in a country in which English is the common language. A student whose instruction is in another language, they say, may never master English. This closes doors to opportunities including higher education and choice of career.
There is no uniform opinion even among immigrant parents of LEP children. Some parents want their children to be taught in their native tongue as a means of preserving their culture. Others, wishing their children to have the same opportunities as native speakers of English, want their children to be taught in English from the outset.
The one point on which everyone seems to agree is that LEP children deserve the best educational opportunities available, and any language program must be structured enough to give them a good foundation, while it remains flexible enough to meet their varied needs.
Although we tend to think of bilingualism in the United States as a modern issue, in fact it has always been a part of our history. In the early days of exploration and colonization, French, Spanish, Dutch, and German were as common as English. By 1664, the year that the British took control of New York from the Dutch, there were some 18 languages (not including the native American tongues) spoken in lower Manhattan alone. No doubt many of the inhabitants of the colony were conversant in more than two languages.
German and French remained common in colonial North America. Many Germans educated their children in German-language schools. Although many colonial leaders (among them Benjamin Franklin) complained about bilingualism, it was generally accepted. In fact, during and after the American Revolution, such documents as the ARTICLES OFCONFEDERATION were published in both English and German.
During the nineteenth century millions of immigrants came to the United States and brought their languages with them. German remained popular, as did other European tongues. Spanish was introduced when the United States took possession of Texas, Florida, and California from Spain.
The enormous wave of IMMIGRATION that began in the 1880s and lasted until the early 1920s brought a change in sentiment toward bilingual education. The goals of voluntary assimilation were gradually replaced by strident calls for "Americanization." In Puerto Rico, Hawaii, and the Philippines (which the United States had acquired after the Spanish-American War in 1898), English was to be the language of instruction even though most of these new Americans spoke no English at all. In 1906, Congress passed a law, the first language law ever passed, requiring naturalized citizens to be able to speak English. Anti-bilingual sentiment got stronger as more immigrants poured into the United States. Anti-German sentiment, which reached its peak when the United States entered World War I in 1917, caused some communities to ban the use of German in public.
By the end of the war, bilingualism had fallen out of favor even in areas where it had thrived. In 1924 strict immigration quotas sharply reduced the number of new foreigners coming into the United States. For almost the next 40 years, bilingual education in U. S. schools was almost exclusively based on variations of immersion; students were taught in English no matter what their native tongue was, and those who did not master English were required to stay back in the same grade until they became proficient.
Setting the Stage
Bilingual education in the United States was pushed back into the spotlight as a direct result of the 1959 revolution in Cuba. After Fidel Castro over-threw the dictatorship and established a Communist government, many middle- and upper-class Cubans fled to the United States. A large number of these refugees settled in Florida. Well-educated but with little in the way of resources, they were assisted quite generously by the federal and state governments.
Among this assistance was ESL instruction, provided by the Dade County (Florida) Public Schools. In addition, the school district launched a "Spanish for Spanish Speakers" program. In 1963, a bilingual education program was introduced at the Coral Way Elementary School in Miami. Directed by both U. S. and Cuban educators, the program began in the first through third grades. U. S. and Cuban students received a half day of English and a half day of Spanish instruction; at lunch time and recess and during music and art classes the groups were mixed together. Within three years the district was able to report benefits for both groups of students, who were now not only bilingual but also bicultural. This was no accident: the goal of the Coral Way initiative was to promote exactly this level of fluency.
The Civil Rights Act (1964)
The CIVIL RIGHTS Act of 1964 did not address bilingual education directly, but it opened an important door. Title VI of the Act specifically prohibits DISCRIMINATION on the basis of race, color, or national origin in any programs or activities that receive federal financial assistance. What this means, among other aspects, is that school districts that receive federal aid are required to ensure that minority students are getting the same access to programs as nonminorities. This minority group includes language minority (LM) students, defined as students who live in a home in which a language other than English is spoken. (Although some LM students are fluent in English, many are classified as LEP.) Title VI's critical role in bilingualism would be made clear a decade later in the Lau v. Nichols case.
Bilingual Education Act (1968)
The Elementary and Secondary Education Act of 1968 was another important step for bilingual education. In particular, Title VII of that act, known as the Bilingual Education Act, established federal policy for bilingual education. Citing its recognition of "the special educational needs of the large numbers children of limited English-speaking ability in the United States," the Act stipulated that the federal government would provide financial assistance for innovative bilingual programs. Funding would be provided for the development of such programs and for implementation, staffing and staff training, and long-term program maintenance.
Title VII has been amended several times since its establishment, and it was reauthorized in 1994 as part of the Improving America's Schools Act. The basic goal has remained the same: access to bilingual programs for children of limited means.
Lau v. Nichols
Probably the most important legal event for bilingual education was the Lau v. Nichols case, which was brought against the San Francisco Unified School District by the parents of nearly 1,800 Chinese students. It began as a discrimination case in 1970 when a poverty lawyer decided to represent a Chinese student who was failing in school because he could not understand the lessons and was given no special assistance. The school district countered that its policies were not discriminatory because it offered the same instruction to all students regardless of national origin. The lack of English proficiency was not the district's fault.
Lower courts ruled in favor of the San Francisco schools, but in 1974 the U. S. Supreme Court ruled unanimously in favor of the plaintiffs. In his opinion, Justice William O. Douglas stated simply that "there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education." The Court cited Title VI of the Civil Rights Act, noting that the students in question fall into the protected category established therein.
What Lau v. Nichols did not do was establish a specific bilingual policy. Individual school districts were responsible for taking "affirmative steps" toward reaching the goal of providing equal educational opportunities for all students.
State and Local Initiatives
In the 1960s there were no state bilingual programs; many states actually had English-only instruction laws on their books. After the Civil Rights Act and the Bilingual Education Act, states began to take more initiative. In 1971, Massachusetts became the first state to establish a bilingual mandate. Under this mandate, any school that had 20 or more students of the same language background was required to implement some sort of bilingual program.
A decade later, 11 more states had passed bilingual education laws, and an additional 19 offered some sort of legislative efforts in that direction. Today, bilingual or ESL education is offered in some form by every state. Not surprisingly, those states with the highest concentration of immigrants (New York, California, Texas, Florida) tend to have the most comprehensive programs. In fact, according to the most recent data from the National Clearing-house for Bilingual Education (NCBE), 18 of the 20 urban school districts with the highest LEP enrollment are in one of these four states. Some states fund all bilingual education programs; others fund only bilingual or only ESL programs.
It should be noted that bilingual needs can differ widely from state to state or district to district. According to the U. S. Department of Education, Spanish-speaking students make up nearly three-quarters of all LEP students in the United States. But in a district in which the predominant foreign language is Chinese, Vietnamese, or Hindi, the needs would of course be geared toward those languages. Local schools can create effective bilingual programs based on their specific needs. At the William Barton Rogers School in Boston, for example, a transitional program for middle-school LEP students who speak Vietnamese has met with success; likewise, a program for elementary school students in the Madawaska School District in Maine has been successful with French-speaking students.
Because each state's needs are different, and because those needs are subject to change, the best way to get comprehensive and up-to-date information on each state's initiatives is to contact individual state education departments (see below).
Grants and Programs
Obtaining information about bilingual grants, programs, and other initiatives is much easier today than it was in the past thanks to the Internet. Federal, state, and local government agencies offer a surprising variety of information on their web sites. Those who do not own a computer can access these sites at any local public library. Following is a sampling of what is available.
The U. S. Department of Education's Office of Bilingual Education and Minority Language Affairs (OBEMLA) is in charge of awarding Title VII grants to both state and local education agencies. There are 12 types of discretionary grants, which cover training, development, implementation, school reform programs, and foreign language instruction. These grants are awarded only to "education-related organizations." Individuals are not eligible for Title VII grants. Those interested in applying for a Title VII grant can obtain the necessary information by visiting OBEMLA's web site ()
A good beginning resource for anyone who wishes to find out about programs, grants, and other information on bilingual education and bilingual initiatives is the National Clearinghouse for Bilingual Education (NCBE). Funded by OBEMLA, this organization collects and analyzes information and also provides links to other organizations. The NCBE web site () is a comprehensive starting point.
Each state's Department of Education provides information on its statewide and local bilingual initiatives; the easiest way to find this information is to visit individual state education department web sites. Also, large cities such as New York, Miami, Houston, Los Angeles, and San Francisco provide information on their web sites about their comprehensive bilingual programs.
Bilingual Education: A Sourcebook. Alba M. Ambert and Sarah E. Melendez, Garland Publishing, 1985.
Bilingual Education: History, Politics, Theory, and Practice. Third Edition. James Crawford, Bilingual Educational Services, Inc., 1995.
Bilingual Education: Issues and Strategies. Amado M. Padilla, Halford M. Fairchild, and Concepc.on M. Valadez, editors, Sage Publications, 1990.
Learning in Two Languages: From Conflict to Consensus in the Reorganization of Schools. Gary Imhoff, editor, Transaction Publishers, 1990.
Center for Applied Linguistics
4646 40th Street, NW
Washington, DC 20016 USA
Phone: (202) 362-0700
Fax: (202) 362-3740
Primary Contact: Donna Christian, President
National Association for Bilingual Education (NABE)
1220 L Street, NW, Suite 605
Washington, DC 20005 USA
Phone: (202) 898-1829
Fax: (202) 789-2866
Primary Contact: Delia Pompa, Executive Director
National Clearinghouse for Bilingual Education (NCBE)
The George Washington University
Center for the Study of Language and Education
2121 K Street, Suite 260
Washington, DC 20037 USA
Phone: (202) 467-0867
Fax: (800) 531-9347
Primary Contact: Minerva Gorena, Director
National Education Association (NEA)
1201 16th Street, NW
Washington, DC 20036 USA
Phone: (202) 833-4000
Fax: (202) 822-7170
Primary Contact: Robert F. Chase, President
National Multicultural Institute (NMCI)
3000 Connecticut Avenue, NW, Suite 438
Washington, DC 20008 USA
Phone: (202) 483-0700
Fax: (202) 483-5233
Primary Contact: Elizabeth Pathy Salett, President
Office of Bilingual Education and Minority Language Affairs (OBEMLA)
400 Maryland Avenue, SW
Washington, DC 20202 USA
Phone: (202) 205-5463
Fax: (202) 205-8737
Primary Contact: Art Love, Acting Director
Teachers of English to Speakers of Other Languages (TESOL)
700 South Washington Street, Suite 200
Alexandria, VA 22314 USA
Phone: (703) 836-0774
Fax: (703) 836-7864
Primary Contact: Charles Amorosino, Executive Director
Codes Of Conduct (Encyclopedia of Everyday Law)
Among the many ingredients for successful schools is a student body that is not only eager to learn but also well behaved. Children are taught the difference between good and poor behavior from an early age, and ideally that training goes with them into the classroom. Teachers and school administrators are expected to serve as role models, and they also have an obligation to ensure that students meet certain conduct expectations.
Codes of conduct are designed to serve both the classroom and the individual. They outline students' rights, ensuring that no student will be penalized or singled out based on anything but a violation of established rules. They also outline students' responsibilities, thus letting individual students know that they need to meet certain standards for their own sake and that of the entire class.
"Conduct" covers such a wide variety of behaviors that establishing a formal code within a school system is a complicated matter. A violation of conduct rules can be anything from passing notes in class to carrying a concealed weapon into the building. It is up to the school administration, often working in conjunction with parents and students, to set rules and to enforce them.
A typical school code of conduct begins with an outline of rights and responsibilities for both the students and the faculty. It then lists different infractions (often categorized at different levels of severity) and prescribes appropriate disciplinary measures. It should also explain the student's right to appeal any disciplinary action.
It is important to remember that both the students and the faculty have rights and responsibilities. Students have the right to be informed of the school district's policies and regulations. They also have the right to know the academic requirements of each course and to be advised of their progress. Students have privacy rights as well; their personal possessions are generally off limits. If the school has reason to believe that a student is carrying something illegal, such as a knife, that becomes a different matter. Desks and lockers are school property, and schools can inspect them without student permission.
Teachers, likewise, have the right to be able to do their job without distractions. They also have the right to discipline students in an appropriate manner when necessary. Most codes of conduct are written with enough flexibility to allow teachers some leeway when choosing disciplinary action.
If a student is ACCUSED of committing a serious offense that results in suspension or expulsion, he or she has the right to appeal the decision under due process rules of law. No student can be singled out for punishment on the basis of race, sex, color, religion, DISABILITY, or national origin. Moreover, in most cases, school JURISDICTION applies to the actual school grounds, but codes of conduct are valid when students are attending school-related functions off the actual school property.
Basic Conduct Issues
The classroom is designed to provide students with a structured environment in which they can learn. In most cases the classroom model works quite well, but it fails to take simple human nature into consideration. Children, even those who are normally well behaved, will try to test the rules for two simple reasons. First, they are away from their parents, which makes them feel independent even though a teacher may be watching them. For this reason, some students habitually come to class late or skip class altogether. Second, as children learn to socialize they seek ways to generate attention, even negative attention for being disruptive, for example, by always talking out of turn or playing the class clown.
In years past, schools offered courses in what was known as "civics." Civics courses often included instruction on the importance of integrity, honesty, and respect for others. Civics courses have fallen out of favor for the most part, although many schools do offer some sort of course work focusing on understanding values. Nonetheless, there are always students who will break the rules.
The point teachers and administrators stress is that even minor infractions can represent more serious behavior problems, and failure to offer discipline and guidance can lead some students to more disruptive or harmful violations.
Among the more innocuous types of behavior that constitute conduct violations are the following:
Repeatedly coming to class without appropriate supplies (books, gym clothes, etc.)
Leaving school property without permission
Defacing school property (vandalizing books, for example)
Wearing inappropriate clothing
Bringing radios or CD players to class
Clearly each of these infractions warrants different punishment. Probably the most common punishment is still having the student stay after school. Faculty and administrators have a variety of other options, however. They can give a warning or reprimand, have a student conference, have a parent conference, change the student's class schedule, or impose a suspension. The student who brings a radio to class might benefit most from a reprimand (and from having the radio confiscated for the day). The student who cuts class regularly may require more direct involvement with teachers and parents. Students who drive to school could have their parking privileges revoked if they leave school grounds without permission.
More Serious Violations
When students commit more serious violations, a good code of conduct should be able to address the problematic behavior and prescribe appropriate punishment. Among those more serious violations are the following:
- Cheating or plagiarizing
- Using profane, obscene, or ethnically offensive language
- Possessing pornographic material
- Theft (from another student or from the school)
- Gambling on school grounds
- Threatening the safety of another student
- Fighting with another student
Students who commit these more serious offenses will face stronger punishment. But no school district wants merely to punish a student and let an incident drop, particularly in light of the heightened sensitivity to school violence. Intervention programs often begin with conferences between the student and his or her parents or guardians and teachers and school administrators. Discipline can be rehabilitative in form. Instead of being suspended from class, for example, a student might be assigned to do a community service project. Someone who vandalizes a school building may have to repair that damage instead of merely paying for it.
Violence and Other Extreme Behavior
For many years school violence was thought to exist only in poor inner-city schools, with most of that violence directed against specific students (gangs, for example). A series of highly publicized sniper attacks, many in affluent suburban schools, during the 1990s changed the public's perception of school violence. Although the National Center for Education Statistics (NCES) reported that in 1997 only 10 percent of schools reported any instance of serious crime, with 42 percent reporting no crimes at all, many believe that schools have becoming increasingly dangerous. What was particularly chilling about many of the attacks was often the students responsible were regarded as quiet and unassuming.
It is simplistic to say that a code of conduct would have kept some of the most deadly sniper attacks from taking place. That said, a code of conduct does send a clear message to students that certain behavior will not be tolerated, including teasing and bullying. Some of the students who killed their fellow students were said to have been bullied and taunted by their classmates over a period of years.
Identifying Troubled Students
Truly troubled students who might have tendencies to resort to extreme violence against their peers and teachers cannot be stopped simply by a code of conduct. What a code of conduct can do, however, is help identify behavior patterns in children early on. A youngster who is constantly disrupting class and breaking rules is clearly having trouble adjusting, and the school can work with the youngster and the parents to identify the problem. The class bully needs to be disciplined, but without some sort of additional action (such as counseling) the discipline becomes merely punitive. Not every troubled student will react violently, of course, but that does not mean the school has no obligation to reach out and help when help seems appropriate. Regarding serious crime, students who commit FELONY offenses are removed automatically from most schools; if under age these individuals may be placed in a juvenile detention facility where they can continue their education; if over 16 they can be tried as an adult for their crimes and imprisoned if convicted.
Conduct and Technology
The Internet has vastly expanded educational resources and opportunities for students and teachers. Students use the Internet both as a research tool and a means of communicating. The question responsible administrators and teachers need to ask is precisely what sort of research and communication the students are doing. There is a big difference between using the Internet to find biographical material of a local author, for example, and logging onto web sites to find out the latest gossip about a favorite pop music star. More dangerous still, some student use a school e-mail account to join a chat group. Teenagers in particular may feel that they possess enough maturity to make informed choices about what they are doing, but they may inadvertently lead themselves into harm's way. The not uncommon reports of adults being arrested for trying to meet up with minors they met in chat rooms are a red flag for most school districts.
Many districts avoid the issue by not providing students with their own e-mail accounts. They argue, quite convincingly, that student e-mail is difficult to monitor and ties up too many resources that could be used for other activities. A number of educators, however, believe that email has become so essential that students should be trusted with the responsibility until they do something to violate that trust. Software programs that filter e-mail and Internet sites is only a partial solution; a student who wants to view a particular site may be resourceful enough to be able to get past such barriers. Beyond those students who might willfully engage in irresponsible activity online, there are also students who may unwittingly create trouble for themselves or others. A student who is not computer savvy might inadvertently disclose personal information over the Internet, for example.
Acceptable Use Policies
Districts that do offer e-mail accounts to students have found that establishing an "acceptable-use" policy is essential to maintaining good "netiquette" among students. An acceptable-use policy begins by setting ground rules for when and how students can use the Internet and e-mail. Typically, students are expected to use appropriate language, to avoid off-limit sites and chat rooms, and to refrain from misuse of e-mail, such as spamming (sending unsolicited mass postings to hundreds of e-mail addresses). Students are also prohibited from using Internet information inappropriately (for example, downloading term papers or plagiarizing from web sites). Students are advised that the school has the right to review all electronic correspondence to ensure compliance with the established rules, and anyone violating those rules can be disciplined. For serious or repeat offenses, a student's Internet privileges can be revoked. Both students and parents are usually required to sign the acceptable-use policy.
Cell Phones and Pagers
The Internet is not the only high-tech tool that students have at their disposal. Cell phones are extremely popular with teenagers; pagers are perhaps less so. Some school districts do allow students to carry pagers for exceptional reasons, such as a medical condition that might require the student to contact help immediately. For general use, however, cell phones and paging devices are as distracting in a school building as they are everywhere else. Most schools have rules against bringing cell phones or pagers onto school property.
Although codes of conduct follow the same basic pattern, they vary not only from district to district but from school to school. The easiest way to find out about a particular school's code of conduct is to contact the school administration directly. Most likely, the school will have some sort of handbook listing the code, along with guidelines for punishing violations. Individual schools and school districts with web sites may also post their conduct rules online.
Legislatures have taken initiative in formalizing codes of conduct, also. In New York, for example, the Safe Schools and Violence in Education Act (SAVE) was passed by the state legislature in 2000. It required all school districts to create a comprehensive code of conduct by July 2001. Among the key requirements for these codes is a clear definition of teachers' authority to remove disruptive students from the classroom.
Helping Your Child Learn Right from Wrong: A Guide to Values Clarification. Simon, Sidney B. and Sally Wendkos Olds, Simon and Schuster, 1976.
Staying Safe at School. Chaiet, Donna, Rosen Publishing Group, 1995.
Zero Tolerance: Resisting the Drive for Punishment. Ayers, Rick, William Ayers, and Bernardine Dohrn, editors, New Press, 2001.
National Center for Education Statistics (NCES)
1990 K Street, NW, Room 9103
Washington, DC 20006 USA
Phone: (202) 502-7350
Fax: (202) 502-7475
Primary Contact: Gary W. Phillips, Acting Commissioner
National Education Association (NEA)
1201 16th Street, NW
Washington, DC 20036 USA
Phone: (202) 833-4000
Fax: (202) 822-7170
Primary Contact: Robert F. Chase, President
National Governors Association (NGA))
401 North Capitol Street
Washington, DC 20001 USA
Phone: (202) 624-5300
Fax: (202) 624-5313
Primary Contact: John Engler, Chair
National School Boards Association (NSBA)
1680 Duke Street
Alexandria, VA 22314 USA
Phone: (703) 838-67220
Fax: (703) 683-7590
Primary Contact: Anne L. Bryant, Executive Director
Competency Testing (Encyclopedia of Everyday Law)
Testing students for academic achievement or competency is not new. As early as the 1970s, some states were making adequate performance on "exit examinations" a prerequisite for high school graduation. This was done in an effort to enhance teacher quality as well as student achievement during an era when many questions were raised by parents, educators, and the public at large about the seeming lack of basic skills in high school graduates.
While varying and inconsistent approaches have been taken to measure student performance at the elementary school level, there is more unison in setting certain minimum criteria for graduation from high school. The vast majority of states require an overall accumulation of "Carnegie units" (reflecting the number of classroom hours spent learning) in addition to passing grades in certain core subjects. But by 2002, nearly half of all states required (or were planning to require within the next two years) "exit exams" in addition to accumulated credit hours in order for students to receive diplomas evidencing high school graduation.
"Exit Examinations" for High School Graduates
Following years of complaints from both employers and academic institutions of higher learning (that many high school graduates lacked basic educational skills in reading, writing, and math), both legislators and educators agreed to work toward raising educational standards nationwide. This has resulted in renewed focus on learning rather than remediation and more accountability for teachers and school systems.
Educational standards (and correlative exams) for gauging performance have been criticized in the past for being local or parochial in substance, making grades and class standing a "relative" achievement based only upon how well others in the same school system or state performed. The Education Reform Act helped standardize student performance on a national level, but new questions were raised as to whether teachers were actually enhancing learning skills or merely "teaching to the test," (i.e., merely teaching those things they knew students would be tested on, in order to make the school and/or the teacher appear favorably on ASSESSMENT reviews).
However, questions remain as to which system is the best to assess the academic competency of graduating students. By far the most often used tool of assessment is the multiple-choice EXAMINATION, in many cases combined with a writing sample. This, in combination with passing grades in key subjects and a minimum number of credit units, seems to be a growing method of choice for ensuring minimum competency levels of high school graduates in the United States. Because graduation from high school may be dependent upon passing an "exit exam," the process has been dubbed "high stakes testing."
Legal Authority for Setting Educational Standards
Most education reform since the 1980s has focused on "performance-based standards" which ostensibly indicate a minimum level of academic achievement that all graduating students should have mastered. Some important laws concerning standards-based school reform include:
- The No Child Left Behind Act, signed into law by President George W. Bush in January 2002, refines and makes major amendment to Title I (see below). Among other factors (like substantial flexibility for states in the use of federal funds), the new law requires states to assess reading and math skills in students from grades three to eight on an annual basis.
- The Educate America Act (20 USC 5801 et seq.) is only binding upon states that accept its grant funding (nearly all) but sets as its primary goal the development of strategies for setting statewide student performance standards and for assessing achievement of those standards.
- Title I of the Improving America's Schools Act of 1994 (20 USC 6301 et seq.) contains an explicit set of requirements for states to submit plans for challenging content and performance standards and assessing student mastery of the requirements in order to receive Title I funds (the largest federal school aid program).
- The Individuals with Disabilities Education Act (IDEA), (20 USC 1400 et seq.) was substantially amended in 1997. The Act requires that states which receive grant funds under its auspices must develop IEPs (individual education plans) for students with disabilities or who are deemed in need of special services. The 1997 amendments required states to develop policies and procedures to allow students with disabilities to participate in state and district-wide testing programs, with necessary accommodations.
Legal Challenges to Educational Testing
Courts have had numerous opportunities over the decades to pass on the validity of education testing in conjunction with high school graduation and promotion (e.g., to the next level grade). Most legal challenges have been grounded in the Due Process Clause and the EQUAL PROTECTION Clause of the Fourteenth Amendment to the U.S. Constitution. Challenges to testing of special education students have invoked IDEA and Section 504 of the Rehabilitation Act of 1973.
Due Process Claims
The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving "any person of life, liberty or property without due process of law." Over the years, it has been held by several courts that the receipt of a high school diploma was a "property interest" which a state could not deprive an individual of without DUE PROCESS OF LAW. Additionally, some courts have found that students have a constitutionally protected "liberty" interest in avoiding the stigma or impaired career advancement that accompanies the failure to achieve high school graduation. (See, e.g., the Goss case, 419 U.S. at 574.)
The key to "due process" is the requirement of substantial notice to a person of the manner in which he or she may be denied or deprived of such an interest (graduation from high school) or, alternatively stated, substantial notice of what will be required of the student in order to graduate. With respect to testing, some courts have held that two years' advance notice that graduation was conditioned upon the passing of an exit exam in addition to credit hour completion was adequate; other courts have demanded more time.
Still other courts have held that students had no protected property interest in the expectation that a former, lower standard would continue to be accepted as the threshold for academic promotion to the next grade or graduation. (See, e.g., Bester v. Tuscaloosa, 722 F.2d 1514, 11th Circuit).
In determining whether denial of a high school diploma based on a failure to pass a minimum competency exit exam is unconstitutional, courts balance "the private interests of the [students], the risk of an improper deprivation of such interest and the governmental interest involved." (Mathews v. Eldridge, 424 U.S. 319) Almost all cases presented on these issues have turned on whether the school system had provided prospective graduates with adequate notice of new diploma requirements.
Equal Protection Claims
Similarly, the Equal Protection Clause of the Fourteenth Amendment guarantees that no person will be denied the equal protection of the laws in the enjoyment and/or exercise of personal rights as that enjoyed by other persons in like circumstances. In order to ensure equal protection for students, school systems must uniformly apply educational standards and testing procedures across the board (with legal accommodations factored in for learning disabled or special needs students).
Generally, courts are more likely to uphold a testing program if there is a presence of additional factors such as opportunities for retesting, remedial or tutorial programs, and the availability of alternative ways to obtain a diploma.
High School Graduation Exit Options
While no standardized national test has been implemented for use as a criterion in the granting of a high school diploma, states have developed several ways in which students may meet graduation requirements.
Each state offers a standard diploma to students who have met the regular requirements for graduation. These are commonly the completion of a minimum number of Carnegie Units or credits (with passing grades), an attendance requirement, and (in an increasing number of states) a passing score on an exit exam. "Honors" diplomas are variations of standard diplomas in which student achievers may choose elective courses or independent studies in addition to their core studies. Such diplomas may also indicate accelerated or advanced coursework.
Individual Education Plan (IEP) Diploma
Students with special needs may be offered an alternative way to earn a high school diploma through completion of individual education plans constructed specifically to the needs of the student. Some states allow modified coursework to count as standard coursework and, therefore, award a standard diploma; others offer "certificates of attainment" or "special certificate of completion" to indicate the student's fulfillment of special criteria for graduation.
Several states offer work/study diplomas, the most effective of which are those offered in conjunction with exit exams, to ensure that elective coursework directed toward occupational interests does not compromise minimum skill levels in core subject areas.
ALABAMA: Alabama high school graduates must meet minimum credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance only, honors diplomas, and occupational diplomas.
ALASKA: Alaska does not require exit exams for high school graduation. The state does offer standard diplomas, IEP diplomas, and certificates of attendance as exit options.
ARIZONA: Graduation from an Arizona high school requires both credit hour completion and an exit exam. Only standard diplomas are granted.
ARKANSAS: Arkansas high school students must meet the credit hour criteria for graduation. The state offers exit options of standard diplomas, IEP diplomas, and certificates of attendance only.
CALIFORNIA: California has state-mandated credit hour requirements that must be met for graduation. Additionally, local education districts have the authority to require passing scores on some form of exit examinations. The state generally offers standard and honors program diplomas.
COLORADO: There are no state-level requirements for high school graduation. Local education associations may establish their own credit hour requirements as well as exit examination criteria. In addition to the standard diploma, a work/study diploma may be granted, as well as IEP diplomas
CONNECTICUT: Connecticut high school students must meet the credit hour criteria for graduation. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance only, honors diplomas, and GED diplomas.
DELAWARE: Delaware high school students must meet the credit hour criteria for graduation. The state offers exit options of standard diplomas and certificates of attendance only.
DISTRICT OF COLUMBIA: High school students must meet the credit hour criteria only. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance only.
FLORIDA: Florida high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance, and honors diplomas.
GEORGIA: In Georgia, high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, IEP diplomas, and certificates of attendance.
HAWAII: Hawaii students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance only, honors diplomas.
IDAHO: Alabama high school students must meet the credit hour criteria. The state offers exit options of standard diplomas only.
ILLINOIS: High school students in Illinois must meet the credit hour criteria for graduation. The state offers exit options of standard diplomas or certificates of attendance only.
INDIANA: Indiana high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, honors diplomas, or GED diplomas. It awards a certificate of achievement for special education students for whom a diploma track is not appropriate.
IOWA: Iowa high school students must meet the credit hour criteria only. However, in addition to state minimum credit requirements, local education boards may establish additional requirements for graduation. The state offers exit options of standard diplomas or IEP diplomas only.
KANSAS: In Kansas, high school students must meet the credit hour criteria to be granted a standard diploma. Kansas law also authorizes local school boards to grant diplomas under separate or special criteria.
KENTUCKY: Kentucky high school students need only meet the credit hour criteria for graduation, but as of 2002, the state was implementing assessment examinations. The state offers exit options of standard diplomas, IEP diplomas, and honors diplomas.
LOUISIANA: High school students in Louisiana must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas and certificates of attendance only.
MAINE: Maine high school students must meet the credit hour criteria. The state offers exit options of standard diplomas or IEP diplomas.
MARYLAND: In Maryland, high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance only, or GED diplomas.
MASSACHUSETTS: Massachusetts high school students must meet the credit hour criteria. The state offers standard diplomas only, except that IEP diplomas may be authorized by local school boards. In addition, part of the credit requirements for standard diplomas and the distribution of credits are left to the discretion of local authorities.
MICHIGAN: Michigan high school students must meet locally established criteria for graduation. They receive local high school diplomas with or without state endorsements. If local criteria require exit exams, depending on the performance level on an exit exam, state endorsements will appear on the transcripts. Generally, Michigan schools also offer IEP diplomas and certificates of attendance.
MINNESOTA: In Minnesota, high school students must pass an exit examination and demonstrate mastery of 24 standards. In return, they are granted a state endorsed standard diploma.
MISSISSIPPI: Mississippi high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, or certificates of attendance only.
MISSOURI: Missouri requires that high school students meet the credit hour criteria for receiving a diploma. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance only, honors diplomas.
MONTANA: In Montana, high school students must meet the credit hour criteria. The state offers exit options of standard diplomas or IEP diplomas.
NEBRASKA: Nebraska high school students must meet the credit hour criteria, but part of the credit requirements and/or the distribution of credits are left to the discretion of local education authorities. The state offers exit options of standard diplomas, certificates of attendance only, or a locallydetermined modified diploma for special needs.
NEVADA: High school students in Nevada must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, certificates of attendance only, or adult diplomas.
NEW HAMPSHIRE: In New Hampshire, high school students must meet the credit hour criteria. The state offers exit options of standard diplomas, IEP diplomas, and certificates of attendance only.
NEW JERSEY: New Jersey high school students must meet the credit hour criteria plus pass an exit examination. The state offers standard diplomas only.
NEW MEXICO: New Mexico high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance only, or "career readiness" diplomas.
NEW YORK: In New York, high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance only, honors diplomas, or an annotated local diploma.
NORTH CAROLINA: North Carolina high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance only, and honors diplomas.
NORTH DAKOTA: In North Dakota, high school students must meet the credit hour criteria. The state offers exit options of standard diplomas, IEP diplomas, or certificates of attendance only.
OHIO: Ohio high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, honors diplomas, or a diploma of adult education.
OKLAHOMA: Oklahoma high school students must meet the credit hour criteria. The state offers standard diplomas only.
OREGON: In Oregon, high school students must meet the credit hour criteria. The state offers exit options of standard diplomas or certificates of attendance only.
PENNSYLVANIA: Pennsylvania high school students must meet locally established criteria for graduation. The state offers standard diplomas or GED diplomas only.
RHODE ISLAND: In Rhode Island, high school students must meet the credit hour criteria. The state offers standard diplomas only.
SOUTH CAROLINA: South Carolina high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas or certificates of attendance only.
SOUTH DAKOTA: South Dakota high school students must meet the credit hour criteria. The state offers exit options of standard diplomas only.
TENNESSEE: In Tennessee, high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance only, honors diplomas.
TEXAS: Texas high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas or certificates of attendance only.
UTAH: Utah high school students must meet the credit hour criteria. The state offers exit options of standard diplomas or certificates of attendance only.
VERMONT: In Vermont high school students must meet the credit hour criteria. The state offers exit options of standard diplomas or certificates of attendance only.
VIRGINIA: Virginia high school students must meet the credit hour criteria plus pass an exit examination. The state offers exit options of standard diplomas, IEP diplomas, certificates of attendance only, honors diplomas, GED diplomas, and special diplomas.
WASHINGTON: In Washington, high school students must meet the credit hour criteria only. The state offers standard diplomas only.
WEST VIRGINIA: West Virginia high school students must meet the credit hour criteria. The state offers exit options of standard diplomas or IEP diplomas only.
WISCONSIN: In Wisconsin, high school students must meet the credit hour criteria. The state offers exit options of standard diplomas or certificates of attendance only.
WYOMING: Wyoming high school students must meet the credit hour criteria. The state offers exit options of standard diplomas or certificates of attendance only.
"Analysis: How Standardized Testing Changes Teaching and Learning." Conan, Neal, Talk of the Nation (NPR), March 21, 2002.
"Fact Sheet: No Child Left Behind Act" January 2002. Available at http://www.whitehouse.gov/news/releases/2002/01/20020101.ht... .
"Special Education and High Stakes Testing: An Analysis of Current Law and Policy" O'Neill, Paul T., Journal of Law & Education, April 2001.
"State Graduation Requirements for Students With and Without Disabilities" Guy, B., H. Shin, S. Y. Lee, and M. L. Thurlow. University of Minnesota, National Center on Educational Outcomes, 1999. Available (March 30, 2002) at http://education.umn.edu/NCEO/OnlinePUbs.
"Testing." Lawton, Millicent, Education Week, April 23, 1997.
Compulsory Education (Encyclopedia of Everyday Law)
What are Compulsory Attendance Laws?
Compulsory attendance laws are statutes put into force by state governments that require parents to have their children go to a public or state accredited private or parochial school for a designated period. Each state by law determines when this period starts and ends. Almost all states require a child to begin attending school at an age ranging from five to seven years. The age when a child may stop going to school varies from sixteen to eighteen.
To learn about the age requirements for your state, look in the telephone directory under the listing for state government agencies for either the department or board of education or the office or department of public instruction.
History and Development of Compulsory Attendance Laws
Modern compulsory attendance laws were first enacted in Massachusetts in 1853 followed by New York in 1854. By 1918, all states had compulsory attendance laws. One reason for the acceptance by the states of these laws was the belief that the public school was the best means to improve the literacy rate of the poor and to help assimilate an immigrant population that grew at a high rate between the mid nineteenth to the early twentieth centuries. Another explanation is that as children were required to attend school for a number of years, factory owners found it more difficult to exploit the cheap and plentiful child labor. This argument is substantiated by Alabama's decision for a period of time to REPEAL its compulsory attendance law due to pressure put upon state authorities by a company opening a large textile mill in that state. This industry was notorious for its use of child labor.
Penalties for Non-Compliance
Failure to comply is a MISDEMEANOR in almost every state. The penalties include fines for the first offense ranging from $20 to $100 and increasing thereafter for subsequent offenses from $250 to $1000 depending upon the JURISDICTION. Most states also have the option of sentencing parents for as long as 30 days in jail. Some states provide for alternatives such as community service or counseling. In the case of home schooling, although the prosecution is not required to show the parent intended to break the law, it must still prove in some jurisdictions that home education does not provide an adequate alternative.
Most states will not enforce these laws against parents whose children are physically or mentally disabled, are employed, or have received a designated education level, typically a high school diploma or its equivalent.
Equivalent Education may be obtained in a state accredited private school or a parochial school. According to a ruling by the U. S. Supreme Court in Pierce v Society of Sisters, states must recognize these schools as providing an education equivalent to that of the public schools so long as they follow state laws and regulations that bear a reasonable relationship to the interest the state has in educating its citizens and do not burden the religious practices of the parochial schools. These conditions placed upon non-public schools, including home schools, are permitted under the United States Constitution because the public schools must follow these regulations as well.
All non-public schools must qualify under the laws of that state as schools in order to be considered capable of providing an equivalent education. The criteria used include such factors as whether the school is established, the quality of the teaching, the soundness of the curriculum, how many hours per day are spent for instruction, how many days of the year the school is engaged in teaching, and whether the teachers are certified. A private, parochial, and home schools may have to comply with any combination of the above factors.
Court Case Exemptions from Compulsory Attendance Laws
Exemptions Accepted by Some Courts
- A threat to the health, safety, or welfare of a student if the parents can show the threat is imminent.
- The child has reached the age of majority.
- The child becomes mentally or physically disabled. However, this ground is now used less frequently because of special services for the disabled mandated by federal law.
- The parent objects to classes because the content violates their religious beliefs or practices.
- Either hazardous conditions are present between the child's home and his designated public school or the distance between the student's home and the school exceeds a distance provided by STATUTE.
Exemptions Rejected by Some Courts
- A parent's belief a given teacher is incompetent or otherwise not qualified to teach.
- A parent's belief the school is doing a poor job of educating his or her children.
- Objections to racial integration by the parents on religious grounds.
Meyer v. Nebraska (1923)
This decision struck down a state law prohibiting any instructor, either in a public or a private school, from teaching in a language other than English. The Court took this action because of the arbitrary interference from state officials of the right of parents to provide education for their children as they saw fit. The statute was arbitrary because it bore no relationship to a legitimate state purpose and violated the part of the Due Process clause of the 14th Amendment to the Constitution that says no person may be deprived of liberty without DUE PROCESS OF LAW. In this case, the right of the parents to employ a teacher to instruct their children in their native language fell under the right to determine how they were to be educated.
Pierce v. Society of Sisters (1925)
In this case, the Court said an Oregon law was unconstitutional which made it mandatory for parents to send their children to public school. As in Meyer, this law was unrelated to the legitimate state goal of educating children because it interfered with the fundamental right of parents to exercise control over how their children were to be taught. Forcing parents to have the educational options for their children limited to public schools infringed upon the above right and was an abuse of the state's police power to insure the health, safety, and morality of all localities in that jurisdiction. This standardization went against the sentiment of the Court often quoted in the part of their opinion that declares a child is not the creature of the state and that the responsibility for educating children should rest with the parents.
This decision is also important because it made clear that state governments had to permit private schools to operate. No challenge has since been made on this point.
Farrington v. Tokushige (1927)
The Hawaii legislature had passed a law strictly regulating hours, textbooks, and curriculum of schools that taught in the native language of the students. In striking down this law, the Court was indicating that this amount of regulation of private schools was unreasonable and that parents had the right to exercise control over how their children were educated without restrictions that were unrelated to any rational state goal.
Why Parents Home School and its Acceptance by State Governments
Eighty-five percent of the parents surveyed indicated they home schooled out of the religious CONVICTION that the authority and power to instruct their children should remain with them and not be given to outside authority. Another reason cited was the declining academic standards of public schools as indicated by decreasing scores on standardized tests beginning in the 1960s. Some parents objected to what was being taught on religious, moral, or philosophical grounds.
Legislative Requirements for Home Schools
Parents choosing to home school face many of the same hurdles encountered by parochial and private schools. In addition, the question may arise as to whether home instruction in a given state will come under the exemption routinely given to private schools because a home school is not established in the same way as are other non-public schools. In states in which laws remain unclear about what qualifies home instruction to be considered a school, the courts have given the term "school" a broad meaning as a place where instruction of children takes place. This definition eliminates the requirement that a school have its own facilities. So long as the home school meets the standards applied to schools established in the normal sense, the home school comes under the private school exemption.
Once a home school is considered by state statute or CASE LAW to be a school, it must comply with regulations to insure that students taught at home have an equivalent education. First, many states require parents to notify appropriate authorities, often the local school superintendent, of their intention to instruct their children at home. At this point, some states also make it mandatory for parents to obtain approval from designated local officials of the content of their curriculum and other aspects of how they will teach before they begin instructing their children. Some home school parents have gone to court claiming these officials are not objective in assessing home school programs because public school funding is often determined by the number of students enrolled. The courts have rejected these claims because of the difficulty in proving school officials' BIAS caused their negative decisions and the deference courts give to decisions of administrative officials.
The second requirement home schools face is that they must meet the time or durational requirements as well as at a minimum for their curriculum teach a list of designated subjects. They must do so according to the standards applied to public schools or by those required of home schools.
Third, a number of states require the parent to be certified as a teacher. When parents home school for religious reasons and challenge such laws in court as interfering with their religious practices, the courts have decided to uphold such laws. The courts side with the state officials because they believe the interest of the state in education outweighs the burden on religious practices. The courts contend that if parents do not meet the certification requirements public school teachers are subject to, they are unable to meet the burden of proof of showing they are able to provide an equivalent education as required by state law and regulation.
Fourth, state regulations often require the progress of the students instructed at home to be measured by standardized tests that are widely recognized as valid indicators. The tests must be taken at designated times in the student's studies. In some jurisdictions, the parents must maintain a portfolio of their children's work that is evaluated by state certified teachers.
In addition to these requirements, home schools are subject in some states to visits by state officials to assess the quality of the instruction. This practice is considered permissible by the courts so long as the visits do not hinder parents' efforts to instruct and that these appearances do not occur often. If parents do not wish to consent to these visits, they are given in some jurisdictions the option of going to court to convince a judge an equivalent education is being given.
Due Process Fundamental Rights
In Meyer v. Pierce and Farrington v. Tokushige, U.S. Supreme Court cases of the 1920s, the fundamental right of parents to direct the education of their children was established. These decisions are still heavily cited today by those claiming the right to home school in federal and state courts. They contend that because these decisions have given parents this right, its denial violates the right of due process. If a right is deemed to be fundamental, it is based on the premise that it is provided for in the U. S. Constitution.
Due Process Vagueness
Under the Due Process clause, parents of home schooled children have contended the compulsory attendance statutes of their state were so vague and ambiguous, they were unconstitutional because a reasonably intelligent person would not be able to determine when he was violating the law and the person deciding whether such violation had occurred had no clear standards to go by in making his ruling.
Frequently, the LITIGATION in this area revolves around the meaning of such terms as "equivalent education" or "private school." The meaning of these terms are important in these cases because it is upon these and other similarly worded phrases that states have granted exemptions from their compulsory attendance laws and their penalties.
Due Process Arbitrariness
The Due Process clause has also been used to challenge these laws by claims that officials have too much leeway in performing their duty to apply the law. Although court cases involving this issue have not been decided in favor of the parents, the U. S. Supreme Court in a context other than home instruction has said that any decision involving a fundamental right must be made by an IMPARTIAL party. In spite of subsequent U. S. Supreme Court cases which affirmed this principle in home schooling cases, the parents were unsuccessful.
By definition, a claim for exemption based on free exercise can only be used, if at all, by those who have home instruction for religious reasons. The only U. S. Supreme Court case that has ever decided any case involving home teaching is Wisconsin v. Yoder. Decided in 1972, it involved a group of Amish who challenged the compulsory attendance laws of their state. For three centuries, the members of this religious sect taught their children at home in accordance with their religious belief that education in a public school would violate the tenets of their faith. The Amish pointed out this home education gave their children the skills to function effectively in a society that was isolated from the general public.
Unlike the decisions in Meyer v. Pierce, and Farrington v. Tokshige the Amish in Yoder did not rely upon due process grounds, but on the belief that compulsory attendance laws of Wisconsin violated the Free Exercise clause of the U. S. Constitution prohibiting interference by the government with practices found to be religious and not just personal preferences. The Court balanced the interest of the state in educating children against the right of the Amish to practice their religious beliefs and concluded the state of Wisconsin had failed to show the state interest of educating its citizens in what is clearly the society of the general public outweighed the interest of the Amish in not having governmental interference with their religious practices.
In weighing and balancing the interests of these opposing parties, the Court sharply limited the use of Yoder to persons engaged in home schooling for future cases. The Court noted the three-century tradition of home education and that its content did enable Amish children to be able to function as adults in their separate society. Therefore, the state interest present in this case was rendered irrelevant by the Amish isolation from the general society. Through the use of this balancing test and its limited application of the Free Exercise clause to an unusual religious group, the court could affirm the interest of the state in educating its citizens, allowing the compulsory attendance laws to stand. In fact, lower federal court cases subsequent to Yoder have decided against other religious groups that instruct their children at home because they lacked the isolation of the Amish from modern life.
With this decision, a principle was established giving in theory greater protection to those who gave home instruction for religious reasons. However, the requirement that the belief of the party claiming Free Exercise protection was religious, and not one of personal preference or philosophy, and that the compulsory attendance law would severely impact such a belief would in practice be difficult to satisfy. The weight of cases subsequent to Yoder indicates it is far easier for the state to show the regulation fulfills a compelling or merely legitimate interest.
Only two state supreme court cases decided after Yoder involving home schooling parents using the Free Exercise clause resulted in a successful conclusion for them. Those states are Michigan in Michigan v. DeJonge, decided in 1993, and North Carolina in Delconte v. State of North Carolina, rendered in 1985.
There have been few successful cases on such claims, but a notable example is In re Falk, a New York Family Court case decided in 1981. So far there have been no state or United States Supreme Court cases upholding the use of the right of free speech under the 1st Amendment as a defense by parents against these laws.
Right to Privacy
The few cases that have used this defense for prosecution under compulsory attendance laws have not found courts to be receptive to it. The one case decided in favor of the parents was a trial court decision in Massachusetts that is not binding outside the state or to any great extent within that jurisdiction.
The Ninth Amendment says that the rights of the citizens of each state are not limited by those listed in the Constitution. The contention by parents that a right to home school is implied by this provision has only been agreed with by Perchemlides v. Frizzle, the case mentioned under the right of privacy.
Home School Parents' View
Parents who choose to home school cope with a number of disadvantages. These include isolation, the lack of opportunity to participate in scholastic sports and other extra curricular activities, and the lack of resources available in public schools, such as a library or instruction in specialized courses. In surveys, a majority of home school parents expressed the desire to have their children enroll in a public school on a part-time basis in order to take special courses that are beyond the parents' ability to teach or to participate in extra-curricular activities including athletics. Most of the litigation on part-time enrollment involves whether these children should be allowed to play on the athletic teams of public schools.
Opposition to access of public schools by those students not enrolled full-time is strong at the local, state, and national levels. Town and city boards of education, state athletic associations, and national trade groups, such as the National School Boards Association, have been against access by outside students because of fairness and administrative reasons. They argue the accessibility by non-enrolled students, including those home schooled, is unfair because since these students have chosen not to enroll, they should not be entitled to benefit from the limited resources of public schools. From an administrative point of view, the public schools would be faced with additional burdens such as providing supervision to a greater number of students participating in a class or activity and having perhaps to transport some students at times different from those of full-time enrolled students.
Furthermore, they argue that the U. S. Constitution does not provide a right for someone not enrolled in a public school to participate in any of its classes or other activities, including athletics. Home school parents have challenged these policies in the courts by using the Free Exercise clause of the First Amendment and the Due Process and EQUALPROTECTION provisions of the 14th Amendment.
Constitutional Arguments Raised in Court
Judges have, with few exceptions, been unreceptive to the claims of home school parents. Their unwillingness to grant the parents and their children what they want is based on the general principle cited by school administrators and others that there is no constitutional right to participate in any public school program, including athletics. Instead, whether a student is allowed to join a club or athletic team of a public school is a privilege local school officials can choose to grant or deny at their discretion. Courts agree with them that sports and other extracurricular activities are an integral part of a student's education in a public school, and this legitimate objective would be frustrated if students not enrolled full time were allowed to participate.
In regard to the specific constitutional arguments put forth by home school parents, courts have said that because there is no burden placed on the religious faith and practices of those in home schools, there is no violation of the Free Exercise clause. Fourteenth Amendment claims based on Equal Protection and Due Process have also generally failed. The interest of the public school officials in efficiently carrying out their administrative responsibilities outweighs any concern of the home school students' not being treated equally. Due Process claims also are usually unsuccessful because denial of access to public schools and their programs does not amount to a denial of a fundamental right under the U. S. Constitution. The liberty the parents are entitled to under the U. S. Constitution is inapplicable here because, since participation by home school children in public school activities and programs is a privilege that may be granted or denied, parents only have an expectation their offspring will be allowed to participate. Therefore, no constitutional claim under Due Process is viable.
In addition, courts view the parents' decision to educate their children at home as an exercise of their constitutional rights, and it is inconsistent for the parents to benefit from the public education they have chosen to reject.
In recent years, a number of states have chosen to address this problem through their legislatures. Oregon, Idaho, and Florida have enacted laws allowing children educated at home to take part in what is offered by the public schools. Each of these states places conditions on these STATUTORY provisions which may require submission to a greater degree of oversight and monitoring than home school students and parents would experience otherwise. For example, a student may have to submit additional documentation to prove to the satisfaction of local school officials that the state home school regulations are being followed. They may also have to obtain a designated minimum score on a standardized test considered credible by that state as well as to satisfy all the district eligibility and other requirements governing the behavior and performance expected of students enrolled full-time in public schools.
What is unique about the Florida statute is that it openly recognizes a state interest in the participation in public school programs and activities of students educated at home. This is significant because the outcome of many court cases involving children educated at home turns on the view of the courts as to whether the rights of these children are outweighed by the interests of the state in public education. Because these statutes have been passed only recently, it is difficult to assess their impact. However, making participation an interest of the state may result in less opposition to the presence of students who are not enrolled full-time.
Other jurisdictions, such as Maine, provide for access to the public school by children educated at home by obtaining approval from the local school superintendent. The decision to allow a home school student to participate will continue to be made on a case-by-case basis. However, the Maine statute and others similar to it require the superintendent not to make these decisions arbitrarily.
Keeping Current on New Developments in Your State
Compulsory education laws and their impact on home schooling are subject to frequent changes in any jurisdiction. New laws passed by the legislature, administrative regulations handed down by those state agencies given the responsibility over educational matters, and new court decisions can all affect parents who educate their children at home. Organizations, especially the Home School Legal Defense Association, monitor closely new developments at the state and federal level. In addition, every state now has web sites where you can access recent court decisions as well as the code of laws for that jurisdiction. Many states have also made their code of administrative regulations available to the public. These materials are generally searchable by key words in court decisions, administrative regulations, and the code of laws. The best way to access these kinds of materials for a particular state is to log on to http://www.findlaw.com. A number of links will appear that pertain to different categories of materials. Click on "State Resources" and separate links for each state will appear. A breakdown for each state will direct you to those separate links for the state code of laws, recent court decisions, and administrative regulations.
A Review of Home School Research: Characteristics of Families and Legal Outcomes. Brian D. Ray, National Home Education Research Institute, 1990.
Home Centered Learning Annotated Bibliography. Fourth Edition. Brian D. Ray, National Home Education Research Institute, 1994.
Home Education Magazine. Mark and Helen Hegnor, 1983.
Home Schooling and Research Guide for Fifty States. Ninth Edition. Steve Deckard, Vision Publishing, 1998.
Home Schooling on the Threshold: A Survey of Research at the Dawn of the New Millenium. Brian D. Ray, National Home Education Institute, 1999.
Home School Digest. Wisdom's Gate, 1987.
The Home School Report. Christopher J. Klinka, Home School Legal Defense Association, 1985.
Home Schooling in the United States: A Legal Analysis. Revised Edition. Christopher J. Klinka, Home School Legal Defense Association, 1999.
Home Schooling: Political, Historical, and Pedagogical Perspectives. Jane Van Galen and Mary Ann Pitman, Abex Publishing, 1991.
Home Schooling Today. S Squared Productions, 1992.
School Law Reporter. National Organization on Legal Problems in Education, 1987.
The Law of Homeschooling. William M. Gordon and Charles J. Russo, National Organization on Legal Problems in Education, 1994.
The Right to Home School: A Guide to the Law on Parents' Rights in Education. Christopher J. Klinka, Carolina Academic Press, 1998.
The Yearbook on Education Law. National Organization on Legal Problems in Education, 1988.
740 S. 128 St.
Seattle, WA 98168-2728 USA
Phone: (206) 246-5575
Primary Contact: Rev. Walter Lang, D.D, Director
Home School Legal Defense Association
P.O. Box 3000
Purcellville, VA 20139-9000 USA
Phone: (540) 338-5600
Primary Contact: Charles L. Hurst, Office Manager
National Association for Legal Support of Alternative Schools
P.O. Box 2823
Santa Fe, NM 87504 USA
Phone: (505) 471-6928
Primary Contact: Ed Nagel, Coord.
National Home Education Research Institute
P.O. Box 13939
Salem, OR 97309 USA
Phone: (503) 364-1490
Primary Contact: Brian Ray, Ph.D., President
National Homeschool Association
P.O. Box 327
Webster, NY 14580-0327 USA
Phone: (513) 772-9580
Primary Contact: Susan Evans, Office Coordinator.
National Organization for Legal Problems in Education
300 College Park
Dayton, OH 45469-2280 USA
Phone: (937) 229-3589
Primary Contact: Robert Wagner, Executive Director
Parents Rights Organization
12571 Northwinds Drive
St. Louis, MO 63146-4503 USA
Phone: (314) 434-4171
Primary Contact: Mae Duggan, President
Rutherford Institute Legal Department
P.O. Box 7482
Charlottesville, VA 22906-7482 USA
Phone: (804) 978-3888
Primary Contact: John W. Whithead, President
Curriculum (Encyclopedia of Everyday Law)
According to Black's Law Dictionary, "curriculum" refers to the "set of studies or courses for a particular period, designated by a school or branch of a school." But curriculum also refers to the complete range of activities designed by an educational institution to foster education. Fundamentally, curriculum outlines what students are supposed to learn and how they are to do it. Because there is much room for divergence of personal viewpoints in these issues, a school's curriculum fosters some of the most emotional and contentious debates in education law.
From a legal perspective, curriculum issues focus on two areas:
- The range of courses or instructional programs available to students
- The aggregate of activities, materials, procedures, and instructional aids used in the instructional program
Local school boards and officials typically make the decisions regarding curriculum and instructional materials for their schools, although some state authorities may limit their discretion to some extent.
The subject of curricula touches on federal, state, and local government authority, every course taught in school, and every level of school. The standards and objectives of every state differ with respect to curricula in their schools. All of this makes for a very extensive topic. A focus on the curricula in public schools from kindergarten through grade twelve (primary through secondary grades) touches on the key elements of the topic while reducing the scope of the topic to manageable proportions.
The curricula for primary and secondary schools are designed to integrate across the various grade levels. They are also intended to provide a coherent and comprehensive educational experience for each student who undertakes and completes all grade levels. Curricula are also meant to accommodate the many differences in learning styles and abilities and to account for different interests and aptitudes. Thus, a thoughtful school curriculum offers a broad range of options and tracks. Students either elect or are placed in these options or tracks based on diagnostic counseling, academic performance, and consultation with parents and students. Each state sets curricular policy that applies to schools within its JURISDICTION, but local and individual variations occur according to the degrees of freedom allowed by the basic policy.
Authority over Educational Curricula
Some may be surprised to learn that the federal government does not determine what students should know and be able to do in any subject at any level of schooling. Instead, implementing standards for students' performance is left to state and local authorities and to some extent with parents. There are some 16,000 school districts in the United States. Each one is administered and financed by a local community and by one of 50 state departments of education. This extensive local control, one of the defining characteristics of American education, has caused school standards to correlate with the socioeconomic status of the communities in which they are located.
As stated above, the federal government has historically played a minor role in education. In fact, the Constitution relegates most of the responsibility for education to the states. Thus, until the 1960s, the federal government largely stayed away from education. While the trend for the federal government to become involved in education issues has continued, even today, the total spending by the federal government accounts for less than 10 percent of the total spent for K-12 education. But because of heavy federal regulation, these federal dollars wield a disproportionate amount of influence.
Federal programs and regulations increased dramatically after 1965. As of 2002, the Department of Education spends over $30 billion per year on K-12 and higher education expenses, and hundreds of education programs are scattered throughout many other federal agencies. Most are designed to help disadvantaged children, though their records of success vary.
Perhaps the most prominent role of the federal government in terms of curricula has been to enforce and enhance rights to educational opportunities and educational equality. This function has involved the enforcement of constitutional rights to education and an adequate curriculum. These federal efforts have generally focused on guaranteeing equality of access to educational content rather than the content or purpose of the instruction itself. Other than these affirmative efforts, the federal government has hesitated to establish or control a school's curriculum. Rather, the government's role has been more to encourage schools to modify and improve curriculum, and currently, these suggestions are being backed up with funding and do not merely rely on persuasion.
The states are the entities primarily responsible for the maintenance and operation of public schools. The states are also heavily involved in the establishment, selection, and regulation of curriculum, teaching methods, and instructional materials in their schools.
Each state's constitution requires it to provide a school system where children may receive an education. Many state constitutions also contain express provisions for creating educational curricula. Some state constitutions even empower state authorities to select textbooks and educational materials. Besides constitutional authority, state governments also have authority to legislate in this area, or they can authorize officials to establish, select, and regulate curriculum.
State legislatures have frequently exercised their authority to mandate specific courses to be taught in public schools. They have also set mandatory requirements for students to graduate. In cases where state rules and regulations for courses do exist, they must be followed. Local school districts may, however, offer courses and activities in the instructional program beyond those required by state STATUTE. Other states delegate more of their authority. They usually prescribe a model curriculum framework, allowing local authorities to develop their own curricula based on the general state goals.
In many jurisdictions, state authorities adopt textbooks and instructional materials. Local boards and educators then may select from among the preapproved materials. Generally, local authorities have the authority to declare state-adopted instructional materials unacceptable. States may mandate the use of uniform, adopted textbooks within a school's instructional program, but such exercise of power is rare. Instead, local boards are usually allowed to select materials to supplement the state-selected materials.
It is well established that local school boards or districts hold a great deal of authority over the curricula in their schools. Their authority is paramount except when there are overriding federal and state concerns. Otherwise, the local school board has complete discretion to determine what courses to offer, continue, or discontinue. Federal and state governments may impose minimum standards with which local boards must conform, but local boards of education are generally permitted to supplement or expand courses or activities and materials.
The history of LITIGATION with respect to curricula shows that courts rarely interfere with a local board's authority to select and regulate the curriculum within its jurisdiction. By comparison, there are limits on the relative authority of teachers, students, parents, and the rest of the community. Local school boards have discretion over issues relating to the curriculum that it deems most suitable for students. This extends to the teaching methods that are to be employed and include the books and other educational tools to be used.
Parents are free to direct the education of their children, including the choice of a private school. However, states have the power to regulate private schools, with the exception of religious institutions.
Parents are particularly active in issues relating to special education which is available for children with disabilities. A child's DISABILITY must adversely affect the child's educational performance in order for the child to receive special education assistance. The Individuals with Disabilities Education Act (20 U.S.C. §§ 1400 et seq.) is a federal law that contains a process for evaluating a child's special needs and for prescribing an individualized education program for children with special needs. Most states have enacted their own laws that parallel the Act.
Homeschoolingegal in all fifty statess an increasingly popular option for some families. It is perhaps the greatest expression of parental control over the curriculum issues that affect their children. Homeschooling requires a large time commitment on the part of the family. There may be additional requirements as well. For example, in some states parents need to register their intent to homeschool with the state's department of education or the parent's local district school board. Furthermore, many states require annual EVIDENCE of home-schooled children's progress.
Schools may decide upon curricula based upon local community views and values as to educational content and methodology. Even so, school boards are limited in their ability to remove materials from the curriculum, especially when a removal is based exclusively on "ideological content." Decisions about the curriculum cannot be used to dictate views on politics, nationalism, religion, or other matters of opinion.
When trying to insure the school board's discretion is being exercised in a constitutionally permissible manner, people need to examine the intent of the board members. Courts are not limited to examining the objective motivation of the board but may consider individual motives and even the mental processes of individual board members.
Curriculum and Free Speech
Activities in the classroom are supervised by faculty and are designed to teach or convey particular knowledge or skills to students. Consequently, school boards and educators must have broad control over the approval of the materials used. In view of school board responsibilities in this respect, state laws have almost uniformly required the obedience of subordinate employees, including the classroom teacher, to follow the board's curriculum choices and related mandates. Teachers certainly enjoy a degree of academic freedom and First Amendment rights; these rights do not give teachers the authority to disregard the curriculum directives of the board. In sum, the courts have declared that individual teachers may not simply teach what they please.
A school board authority almost always extends to classroom expression. Thus, public schools may limit classroom speech to promote certain educational goals. This also touches on the use of public school facilities by groups that promote a certain agenda or otherwise exercise their right to free speech. Although a school may occasionally open a classroom for other purposes, there is no doubt that during instructional periods the classrooms are reserved for other intended purposes: the teaching of a particular course for credit. In such periods, classroom speech and expression may be reasonably restricted.
As we have seen, a school's curriculum includes actual instruction as well as classroom materials. For example, textbooks, lab equipment, and other routine instructional materials are used to support a school's curriculum. These are subject to the school board's control. Additionally, displays in or around the classroom or the school may be curricular in nature. These materials are therefore subject to broad control by school authorities.
Making Curriculum Decisions
Decisions about a school's curriculum must be based upon legitimate pedagogical concerns. On occasion, these concerns have included teaching material, classroom expression, or other matter criticized on the grounds of the following issues:
- Advocacy of political or similar matters
- Bias or prejudice
- Conformity or nonconformity to shared or community values
- Distracting from an educational atmosphere
- Inability to teach prescribed curriculum because of disagreements with course content
- Lack of neutrality on religious matters
- Quality or professionalism
- Sexually harassing speech
- Suitability or unsuitability for intended students
- Vulgarity, PROFANITY, nudity, sexuality, drug use, violence or other inappropriate themes
The definition of "legitimate pedagogical concerns" may be outlined in state statutes or regulations. State Education Board policies also may be relevant.
An important consideration is the age, maturity, and sophistication of the students to which educational material is to be provided. A school's oversight or authority over curriculum matters is greater where younger students are involved.
Schools need to identify pedagogical concerns before making decisions about a curriculum. Curricular decisions should not be made after a parent or someone else makes a complaint about ideological issues, and when there has been no pedagogical review. Such decisions are as suspect as the self-serving comments that attempt to justify those decisions made after the fact and not based on the previous record.
National Education Goals
At an education summit held in 1989, President George H. Bush and every state governor agreed upon 6 national education goals for the United States to achieve by the year 2000. Two more goals were added in 1994, and Congress passed legislation known as the National Education Goals. The goals created a framework for improving student achievement and refocusing the objectives of education. At the same time, the goals left specific tactics to state and local governments and to schools. Basically, the goals describe a general set of standards toward which all Americans should strive.
The National Educational Goals to be achieved by the year 2000 are:
- All children in the United States will start school ready to learn.
- The high school graduation rate will increase to at least 90 percent.
- U.S. students will leave grades 4, 8, and 12 having demonstrated competency in challenging subject matters, including English, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography; every school will ensure that all students learn to use their minds well, so they may be prepared for responsible citizenship, further learning, and productive employment in our nation's modern economy.
- The nation's teaching force will have access to programs for the continued improvement of their professional skills and the opportunity to acquire the knowledge and skills needed to instruct and prepare all students for the next century.
- U.S. students will be first in the world in mathematics and science achievement.
- Every adult American will be literate and will possess the knowledge and skills necessary to compete in a global economy and to exercise the rights and responsibilities of citizenship.
- Every school in the United States will be free of alcohol and other drugs, violence, and the unauthorized presence of firearms and will offer a disciplined environment conducive to learning.
- Every school will promote partnerships that will increase parental involvement and participation in promoting the social, emotional, and academic growth of children.
The Goals 2000: Educate America Act codified the goals and established federal support for voluntary, state-based systemic reform. These include the development and implementation of high academic standards. The Act calls for state plans to include:
- The development and implementation of content standards in core subjects
- Student assessments linked through performance standards
- Opportunity-to-learn standards or strategies
The Act also funds states' efforts to support systematic state reform based on state-developed plans. Also as a part of the Act, Congress established the Goals Panel as a new independent federal agency. The 18-member bipartisan panel consists of 8 governors, 4 members of Congress, 4 state legislators, the secretary of U.S. Department of Education, and the assistant to the president for Domestic Policy.
The Goals Panel functions in the following ways:
- Monitors and reports progress towards the goals
- Builds a national consensus for the reforms necessary to achieve education improvement
- Reports on promising or effective actions being taken at the national, state, and local levels to achieve the goals
- Identifies actions that federal, state, and local governments should take to enhance progress towards achieving the goals and to provide all students with fair opportunity to learn
- Collaborates with the National Education Standards and Improvement Council to review the criteria for voluntary content, performance, and opportunity-to-learn standards
The dialogue about national goals among legislators, educators, and school board members throughout the United States is focused on improving education standards for all students in U.S. schools. This dialogue and the directives and funding embodied in federal legislation have led nearly every state to design and implement curricular frameworks or guidelines. Many states have even developed or are in the process of developing ASSESSMENT instruments to monitor their schools' progress towards higher standards.
In terms of national trends, the consensus has been moving toward establishing a set of national standards for education. So far, there are voluntary national standards for math, science, and history. There are standards being developed for other subjects as well.
Many factors that go into decisions about the development and implementation of curriculum in U.S. schools. Some of these are:
- Whether the state and/or district have curriculum guidelines
- Whether state and local guidelines conflict with each other
- Whether there are a large number of students requiring bilingual education
- Whether the state or district requires schools to follow their guidelines or allows them to develop their own curricula
- For schools that retain local autonomy over curricular decisions, whether they may choose to adopt or ignore state or district guidelines
For the latter, the school's choice is likely to be influenced by the school's history of achievement, community standards, financial resources, and how it understands the relationship between these factors and the curriculum guidelines being provided by the state or district.
The issue of standards for learning and teaching has developed in the United States in recent years as policymakers, legislators, educators, parents, and community leaders have all shown an increasing concern with students' achievement levels. The word "standards" has been used in many ways during public discussions. Sometimes the term has been used to represent established levels of achievement; in other cases it refers to commonly shared sets of academic subject content, such as those embodied in state curriculum guidelines.
Curricular guidelines have been used to set standards in many states and have been linked to state-administered achievement tests. But standards in the United States also include more informal means by which schools maintain and promote the desired levels of achievement for their students. These achievement levels for schools and for students have usually been extrapolated from community expectations, and local communities continue to greatly influence curriculum and instructional decisions made at the school level. In the end, standards are partly a result of local decisions, such as those governing the selection of textbooks and those affecting a school's policy on the promotion or retention of students. The guides to standards have developed significantly, and school districts are feeling their influence.
Education and the Law: A Dictionary. Taylor, Bonnie B., ABC-Clio, 1996.
Educational Policy and the Law, Fourth Edition. Yudof, Mark G., David L. Kirp, Betsy Levin, and Rachel F. Moran, Wadsworth Group, 2002.
Education Law. Rapp, James A., LexisNexis, 2001.
"Mid-continent Research for Education and Learning." http://www.mcrel.org/. McREL, 2002.
"Rethinking Schools Online" Rethinking Schools, 2002. Available at http://www.rethinkingschools.org/.
"U.S. Department of Education" U.S. Department of Education, 2002. Available at http://www.ed.gov/.
The Alliance for Parental Involvement in Education (ALLPIE)
P.O. Box 59
East Chatham, NY 12060 USA
Phone: (518) 392-6900
American Association of School Administrators (AASA)
1801 N. Moore St.
Arlington, VA 22209-1813 USA
Phone: (703) 528-0700
Fax: (703) 841-1543
Education Law Association (ELA)
300 College Park 0528
Dayton, OH 45469 USA
Phone: (937) 229-3589
Fax: (937) 229-3845
National Institute on Student Achievement, Curriculum, and Assessment (NISACA)
555 New Jersey Avenue NW, Room 510
Washington, DC 20208-5573 USA
Phone: (202) 219-2079
Fax: (202) 219-2135
National School Boards Foundation (NSBF)
1680 Duke Street
Alexandria, VA 22314-3493 USA
Phone: (703) 838-6722
Fax: (703) 548-5516
U. S. Department of Education (USDE)
400 Maryland Avenue, SW
Washington, DC 20202 USA
Phone: (800) USA-LEARN
Fax: (202) 401-0689
Desegregation/Busing (Encyclopedia of Everyday Law)
One of the most important rights Americans have is the right to a free public education. No child in the United States, whether native- or foreign-born, can be denied access to a public school for elementary and secondary education. While in theory this means that everyone is entitled to the same educational experience, in fact that is not necessarily the case. Public schools can vary dramatically from community to community simply because some districts have more money to spend on education than others.
For years, SEGREGATION of black and white students was quite common. In some places, it was common because local and state laws mandated segregation in one form or another. In other places it was common because neighborhoods were segregated (often by choice) and students went to the closest schools. From the late nineteenth century to the mid-twentieth century, segregated schools were protected by the concept of "separate but equal," upheld by the U.S. Supreme Court in 1896. SEPARATE BUT EQUAL was overturned in 1954 in the famous Brown v. Board of Education decision, but segregation in the schools continued. In the 1960s and 1970s, efforts were made to desegregate schools across the country. Many of these efforts succeeded, but many failed. A number of desegregation efforts, begun with the best of intentions, turned out to be more divisive than inclusive.
Desegregation is one of the most complex issues educators and parents face. In the 1950s, desegregation was about blacks and whites. When people used the word "minority," they meant blacks. As of 2002, the entire concept of minorities and diversity has shifted. Minorities can include blacks, Central and South Americans, Southeast Asians (Vietnamese, Cambodian, Laotian), Arabs, and a host of others. This sort of multiple ethnicity existed in large cities for decades, but in the 21st century people are more mobile and even small communities can have a dozen or more ethnic minorities. Consequently, communities cannot merely take a "one size fits all" approach. Finding the right approach to desegregation, or rather, to encouraging diversity in the schools, is an ongoing challenge to school districts across the country.
Education was not always the universally accepted right that it is today in the United States. Although some communities did make education a priority, the United States was primarily an agricultural society until the twentieth century. Children might learn to work the land or be apprenticed to a tradesman after having only a few years of formal schooling. Many children had no formal education. Slave children had only as much education as their masters allowed or tolerated; most slave owners did not encourage their slaves even to learn to learn to read or write.
The Fourteenth Amendment
The Thirteenth Amendment to the U.S. Constitution, ratified shortly after the end of the Civil War prohibited slavery and involuntary servitude. But it did not specifically grant citizenship to freed slaves, and Southern states took advantage of this omission. Congress redressed the balance with the Fourteenth Amendment, which was ratified in 1868. The amendment stated that all citizens, whether by birth or by naturalization, were guaranteed EQUAL PROTECTION under the law, and called for Federal intervention if states failed to comply. Former Confederate states that wished to rejoin the United States were required to sign the Fourteenth Amendment before being readmitted.
What the Fourteenth Amendment did not do was guarantee equal rights. Southern states used the "separate but equal" argument, which allowed them to keep blacks and whites separate as long as they did not deprive them of basic legal rights. Eventually, this arrangement led to a series of discouraging developments that relegated blacks in the South to inferior status.
Plessy v. Ferguson
One of the factors affected by while Southern unwillingness to recognize blacks as equals was public transportation. In 1890 the General Assembly of Louisiana passed a law requiring railroads to provide separate cars for whites and blacks, with the stipulation that the separate cars be of equal quality and comfort. The law was immediately attacked by CIVIL RIGHTS groups, and to force the question of whether it was constitutional, a black man, Adolph Plessy, deliberately broke it by taking a seat in a whites-only car. The law was found constitutional by regional and state courts and went to the U.S. Supreme Court in 1896. The Court ruled seven to one against Plessy and thus established as constitutional the concept of "separate but equal." This concept was a springboard for what was called the "Jim Crow" system. Named for a character in a black minstrel show, the Jim Crow laws made segregation not merely acceptable but mandatory. Over the next several decades, "separate but equal" became pervasive, particularly in the South. Although there were some civil rights gains for blacks in the ensuing years, a definitive victory against Jim Crow did not come until 1954.
Brown v. Board of Education
"Separate but equal" may have seemed unconscionable to many, but it was the law in many states. In the 1950s 17 states and the District of Columbia had laws prohibiting SCHOOL DESEGREGATION. It was clear to most educators, parents, and children that there could be no such thing as a separate but equal education. Several cases appeared before the U.S. Supreme Court to challenge the constitutionality of segregated schools, and the Court's unanimous ruling on Oliver Brown et al. v. Board of Education of Topeka, Kansas on May 17, 1954 turned the doctrine of school segregation on its head. "Separate educational facilities," said the Court, "are inherently unequal."
Although the Brown decision marked the beginning of the end for sanctioned segregation in the schools, segregation's end did not come immediately. In fact, in the late 1950s and early 1960s, several Souther governors, notably Orval Faubus of Arkansas, Ross Barnett of Mississippi, and George Wallace of Alabama, vigorously defended segregation. Not until President Lyndon B. Johnson signed the Civil Rights Act of 1964 was desegregation dealt a definitive blow throughout the United States.
Desegregation in Theory and Practice
Throughout the 1960s it became evident that desegregation was not a clear-cut issue by any means. As communities struggled with finding the best ways to desegregate, the racial divide seemed to grow rather than diminish.
Southern states, which had borne the brunt of the negative publicity about segregation, began to point out that the Northern states were equally culpable, albeit in a different way. For years the South had de jure segregationn other words, segregation mandated by law. In the North, while there were no segregation laws on the books, most blacks and whites lived in separate enclaves; often the groups did not mix, and their children attended local schools. Thus, in the North there was de facto segregation in the schools because neighborhoods were segregated.
Busing and "White Flight"
Among the methods communities tried to desegregate the schools was the busing of black students to predominantly white schools. Since the black schools tended to be in poorer neighborhoods and had fewer resources, it seemed to make sense to bus black students to white schools until a balance of black and white students was attained. The case in the U.S. Supreme Court that set the ground rules for all future busing decisions in the courts was Swann v. Charlotte-Mecklenburg Board of Education, which was decided in 1970. Two years earlier, the Court had ruled in Green v. County School Board that the school board had the responsibility to integrate the schools and to do so promptly. The Charlotte-Mecklenburg (Virginia) school board was found to be out of compliance and was assigned a plan known as the Finger Plan (named for the man who devised it). Under the Finger Plan, schools throughout the district were to work to attain more racial balance in the schools by busing children into the schools.
Busing is one illustration of how difficult it is to achieve true desegregation. In the decades after Swann, other communities implemented busing. Invariably, busing is not well-received by blacks or whites. Legislating action is one thing, but legislating attitude is quite another. In many large urban cities, whites who could afford to move to the suburbs, where the population (and consequently the schools) were predominantly white, left inner-city schools with dwindling white student populations. In Denver, the school district was found to be practicing "subtle racism" by the U.S. Supreme Court in Keyes v. School District No. 1. A busing program was implemented, but the way the system was initially set up many elementary school students spent half a day in a de facto segregated school and half a day in an integrated school.
The 1974 case of Milliken v. Bradley addressed the issue of "white flight" to the suburbs by suggesting that one remedy would be to bus suburban children into the inner city schools in which whites were the minority. The U.S. Supreme Court ruled that suburban students could not be used to desegregate inner city schools. White flight continued. Because most of the people left behind were poor or working-class, cities lost a tax base. As cities became poorer, less money was spent on education. Blacks and other minorities who could afford to move did so, and the inner city populations became statistically poorer. By the end of the twentieth century, many of the largest cities in the United States had public schools that were racially imbalanced and sadly in need of funding for maintenance, basic supplies, and more teachers.
The Needs of the Children
Lost in many of these contentious proceedings was the simple question of what was best for the child. Children are not born with a predisposition to racial prejudice, but they are forced to live with the decisions of adults. In the inner cities, public education has not improved, and in affluent communities, de facto segregation is still common. While some see desegregation efforts such as busing as a positive move, others argue that the money spent on busing programs would be better spent in revitalizing poor neighborhoods and schools so that children could get a good education in their own neighborhood. But that brings back the question of segregated neighborhoods. Many people from all ethnic and racial backgrounds look at desegregation with a mix of cynicism and resignation.
Educators, government officials, and parents have all sought approaches to desegregation that are not merely superficial. Thinking up these approaches and implementing them is a challenge, but the fact that people are willing to seek alternatives to court-order remedies that may have inherent weaknesses is a start.
Many communities have created "magnet schools" in which students from across a community attend. These schools often emphasize particular courses of studycience or the arts, for example. Magnet schools, properly funded, can provide educational and social opportunities for children across a wide spectrum of racial and ethnic lines. Magnet schools do not keep people from moving out of the cities, however. In some places school districts have attempted to lure suburban students into inner city magnet schools. In Connecticut, cities such as Hartford and New Haven have created magnet schools that have been well received. One of the goals of these schools is to draw students from the predominantly white suburbs. As part of the state's desegregation efforts, suburban students can take part in a program called Open Choice that allows them to transfer to the inner city schools at no additional cost. Under normal circumstances, a student who goes to a district other than his or her own would have to pay tuition and transportation costs. In Connecticut, those costs are underwritten by the state.
Magnet schools are seen by many as a better way to achieve integration than charter schools, which are often created specifically to serve the needs of local neighborhoods and may not have racial or ethnic diversity as their prevailing goal (although as public entities they are subject to anti-discrimination laws).
Using Criteria Other than Race
One intriguing idea that some school districts have begun to implement is integrating schools on the basis of income rather than race. The idea was first explored in the early 1990s, and as of 2002 several high-profile districts use it, including Wake County, North Carolina (which includes the capital city of Raleigh) and Cambridge, Massachusetts. The idea behind income-based desegregation is that income may play a more critical role in a child's educational experience than race. If parents have enough money to make educational choices for their children, then it matters little what color they are; they can take their children out of the public school system or move to a more affluent community with better public schools. Wealthier schools and school districts will have more and better resources than inner-city schools, and all the students who attend will benefit. In contrast, no student benefits from attending an inner-city school with limited funds and overflowing classrooms.
Cambridge is best known as the home of Harvard University and the Massachusetts Institute of Technology (MIT). Like many college communities, its population is racially and economically mixed. There is no one ethnic majority group. As an article in Education Week noted in January 2002, "in a city with enclaves of working-class whites and upper-class African Americans, the lack of diversity in some schools had little to do with skin color or national origin. Instead, students from wealthier families tended to attend the same schools, and needier children were clumped together in other schools who tended to struggle academically." Approximately 40 percent of the 7,300 students qualify for free or reduced-priced school lunches. As of January 2002, the percentages of these students in various schools ranged from 21 percent to 72 percent.
Innovative approaches such as this one may provide a different frame of reference that meets the needs of students and communities better. They will also keep current in the minds of parents and school administrators the need to improve educational facilities across the board. As racial and ethnic groups become less clearly defined, it may become harder to justify any kind of desegregation plan. That said, it will also become harder to justify helping certain schools or school districts thrive at the expense of others.
Beyond Desegregation: The Politics of Quality in African-American Schooling. Mwalimu J. Shujaa, editor, Corwin Press, 1996.
Politics, Race, and Schools: Racial Integration 1954-1994. Watras, Joseph, Garland Publishing, 1997.
The Schools We Deserve: Reflections on the Educational Crises of Our Times. Ravitch, Diane, Basic Books, 1985.
Separate but Not Equal: The Dream and the Struggle. Hasking, James, Scholastic, 1998.
The Strange Career of Jim Crow. Woodward, C. Vann, Oxford University Press, 1974.
The Struggle for Equal Education. Lusane, Clarence, Franklin Watts, 1992.
Swann's Way: The School Busing Case and the Supreme Court. Schwartz, Bernard, Oxford University Press, 1986.
Center for Education Reform
1001 Connecticut Avenue NW, Suite 204
Washington, DC 20036 USA
Phone: (202) 822-9000
Fax: (202) 822-5077
Primary Contact: Jeanne Allen, President
National Association for the Advancement of Colored People (NAACP)
4805 Mt. Hope Drive
Baltimore, MD 21215 USA
Phone: (877) 622-2728
Primary Contact: Kwesi Mfume, President
National Center for Education Statistics (NCES)
1990 K Street NW
Washington, DC 20006 USA
Phone: (202) 502-7300
Primary Contact: Gary W. Phillips, Acting Commissioner
National Education Association (NEA)
1201 16th Street NW
Washington, DC 20036 USA
Phone: (202) 833-4000
Primary Contact: Bob Chase, President
U. S. Department of Education
400 Maryland Avenue SW
Washington, DC 20202 USA
Phone: (800) 872-5327
Primary Contact: Rod Paige, Secretary of Education
U. S. Department of Justice, Educational Opportunities Section, Civil Rights Division
950 Pennsylvania Avenue NW, PHB
Washington, DC 20530 USA
Phone: (202) 514-4092
Fax: (202) 514-8337
Primary Contact: Jeremiah Glassman, Chief
Discipline And Punishment (Encyclopedia of Everyday Law)
At the beginning of the new millennium, educators, law enforcement agencies, governments, courts, parents, and the general citizenry in the United States considered questions pertaining to student conduct which were new and troubling. The late1990s witnessed a number of spectacular on-campus crimes by juveniles, acts of murder, suicide, ASSAULT, and massive property damage. The seriousness of these events brought attention to the problems public schools face in managing students who act out in life-threatening criminal ways. Clampdown reaction to enhance security and student protection competed with legal concerns about student Constitutional rights, particularly the right to due process. Other widespread crimes in schools, such as physical conflicts between students and student drug use, weapon possession, and theft, disrupted the academic setting and all too often frustrated the true goals of education: teaching and learning.
The word, discipline, is akin to the word, disciple. Discipline, in its first definition, means learning, just as the word, disciple, refers to one who learns. Additional meanings of the word, discipline, suggest the complexity of the subject as it pertains to individuals (in this case specifically minors) and the U.S. public school system. Discipline refers to training and experience that corrects, molds, and strengthens individuals' mental faculties and moral character. It also refers to punishment which intends to correct and which is enforced by those in authority or may be self-imposed. Discipline refers to the control gained by enforcing obedience, and it refers to the systematic orderly behavior defined by codes or rules set forth by institutions for their members. Discipline also refers to self-control, to the development of skills that help individuals resist temptation, act positively, and function both independently and cooperatively in ways which enhance personal development and community life. All of these definitions have been central to educators' efforts to find the most effective and useful way to support child development and learning.
Origin of Corporal Punishment
In the colonial era, the Puritan belief that humankind is innately tainted by the Original Sin of Adam and Eve led adults to see children as contaminated by an evil element which needed to be driven out by force. Puritans believed that all disobedience and academic error was the work of Satan, and children's innate proclivity for evil had to be destroyed through pain and humiliation. The idea that suffering corrects became fundamental to institutional design, whether that design was the stocks in which prisoners were displayed for public abuse or the raised stools and dunce caps intended to correct student misbehavior or ignorance through humiliation. "To spare the rod." it was believed, led inevitably to spoiling the child, so slapping, spanking, and whipping were generally understood as beneficial educational tools. These beliefs persisted. Indeed, as late as 1977, in Ingraham v. Wright, the U.S. Supreme Court ruled that spanking did not violate students' rights, noting the widespread use of corporal punishment to maintain discipline in educational settings. Corporal punishment remained legal thereafter in over twenty states.
The U.S. Constitution does not address the subject of public education. Apparently the founding fathers thought the implementation of schools ought to be the sole responsibility of the States. Initially, education was for the wealthy, and a belief persisted through the eighteenth century that poor individuals were not educable or were not worthy of being educated. In 1852, however, then secretary of state of Massachusetts Horace Mann urged that States be obliged to offer public education to all children. The revolutionary idea behind this PLEA was that all individuals could and should be educated irrespective of economic class.
During the middle of the nineteenth century, some U.S. educators studied European models, for example, the theories of Philipp Emanuel von Fellen-berg (1771-1844) who urged that corporal punishment not be used for academic errors and suggested that learning occurred best with encouragement and kindness. Francis Parker introduced European ideas into the public school system in Quincy, Illinois. What came to be known as the progressive Quincy Movement attached kindergarten to elementary education and extended into the early grades the idea of learning through play. These pedagogical developments examined connections between education and discipline and considered teachers' roles in creating environments conducive to learning.
By 1910 attendance at public school was mandatory; children were thus absent on a daily basis from parental direction and placed under the authority of educators. This transfer extended teachers' roles to parental disciplinarians; teachers functioned in loco parentis, meaning in the place of parents. During the first decades of the 1900s as teachers were stepping further into these parental roles, State legal systems were beginning to evolve ways to handle juvenile offenders which intended to distinguish them from adult perpetrators. One value attached to this development asserted that while adults should be punished for their crimes, children should be rehabilitated for theirs, thus formalizing a beginning to the separation between juvenile misconduct and suffering as its remedy.
At the beginning of the twentieth century, good discipline was evinced as students sitting quietly while they learned by rote. The conventional wisdom saw education as a process of controlling student behavior while information was transferred from teacher to student. This model continues to shape concepts about classroom activities and goals. Challenging this model, however, were the increasingly popular post-World War II theories of Benjamin Spock (1903-1998) who disapproved of rigid child-rearing techniques and urged adults, parents and teachers alike, to be more affectionate and flexible. Some critics of Spock's theories asserted that they contributed to a growing attitude of permissiveness and relativity which blurred children's understanding of right and wrong and encouraged self-defeating traits like selfishness, indolence, or noncompliance. Additionally, in the second half of the twentieth century, healthcare professionals and educators became more informed about how student misbehavior may be connected to physiological or psychological problems, like attention deficit disorder, hyperactivity, or emotional disturbance. Changes in the family unit, increase in the Hollywood celebration of violence, and effects of illegal drug use also affected students' ability and willingness to learn in school. Finally, in the 1990s, juveniles committed serious felonies on school property, some of which converted schools temporarily to war zones. Reactions to these events caused many people to advocate for a return to more stringent controls of students, which in some circles acquired to the label, zero tolerance.
Codes of Conduct
In taking charge of students and teaching them, twentieth-century educators repeatedly faced the challenge of designing codes of conduct. Doing so required attention to multiple and sometimes seemingly conflicting issues: school organizational needs, the goals of education, and the nebulous area of personal rights both for those in charge and for those being controlled. Educators had to identify features conducive for learning and then set forth rules and consequences for misconduct which would allow problem children to be handled constructively while the behaving majority of students continued to learn without disruption. In short, educators had to define ways to support classroom productivity, encourage student academic progress, and bring misbehaving individuals back to positive conduct so they could resume learning. In this task, educators, administrators, and staff became increasingly conscious of legal issues connected to students' rights, juvenile legal status, and the handling of student crime. All of these issues were addressed independently by different school boards across the nation and handled differently by school boards and courts over time.
Creating Codes of Conduct
The issues involved in the process of developing these codes of conduct constitute an important part of pedagogical debate and ongoing courtroom deliberation. For example, in Blackwell v. Issaquene Co. Board (5th Cir Miss 373 f2d 749) and Baker v. Downey Board (California Dist. Ct 307 F supp517), court decisions attempted to define those school requirements and regulations which a court would deem "reasonable." A properly written document had to meet four criteria in order to carry a legal presumption of validity:
- The rules had to be in writing: Regulations students had to obey without a specific verbal command must be in writing.
- The rules had to be specific: Policies had to clearly stated to students, and without referring to an outside source or document the rules had to explain what was expected and what was prohibited.
- The writing had to be authorized: The writer of the rules had to have the authority to define them.
- The written rules had to be published: The code of conduct had be printed and distributed, for example in student handbooks, in letters home to parents, in public announcements during class time and assemblies, and in postings on bulletin boards.
Richard Curwin, a professor of Education at San Francisco State University, devised criteria for making codes of conduct more effective. His suggestions were:
- To use positive rather than negative statements
- To be definite about proper and prohibited behavior
- To be brief
- To spell out consequences
Thus, the courts began the process of educating the educators on how to arrange the business of school so that when it responded to misbehavior its rulings would be deemed valid in the legal setting.
Content of Codes
In light of their wisdom, experience, and training, educators devised these codes to meet their schools' particular goals and challenges. Some school codes employed step programs which distinguished first offenders from repeat offenders and which handed down mild penalties for first-offense students but then graduated the penalties for the misconduct of repeat offenders. In these cases, students faced consequences determined by their records of behavior. Thus for a repeat offender a minor INFRACTION might carry the serious PENALTY of suspension while the same infraction might elicit only a verbal reminder for the first offender. Some schools set aside special classrooms for extra training in matters of self-control, conflict resolution, and cooperation. Schools elicited parents' participation and support in encouraging their children back to positive behavior and academic progress.
Discipline policies stated clearly that rules benefited everyone in the educational community and were in effect inside school buildings, on school property, inside school-owned vehicles, and at school-sponsored activities on or off campus. Codes included rules about attendance, absence, and tardiness. They outlined steps for parents to take in excusing their children from class and required teachers in how to keep records of student attendance. Patterns of unexcused absence or tardiness were quantified and carried penalties or repercussions which correlated to the extent of the patterns of absence. Misbehaving students might be detained in the classroom after other students were free to go on to non-classroom activities, or they might be required to attend a Saturday detention period. During these times, students might be given extra academic work or required to perform maintenance chores on school property. Repeat offenders were subject by degrees to removal from school; they were removed from class to a study room; placed in an on-sight suspension area; suspended for a specified time; and expelled. Thus, for the benefit of the majority, those individuals who acted out, arguably the ones most in need of education and support, tended to be increasingly marginalized.
When students break the law on school property, police officers must take over for educators. Students who use alcohol or other drugs, who have in their possession or deliver to others controlled substances, who carry weapons, who assault others, are all subject to the same laws they would face elsewhere in the community. Therefore, these forms of misconduct are not within the school's JURISDICTION solely. Students can be charged for crimes committed on school property; they can go to court and face court decisions that place them in juvenile detention centers. Clearly, school codes must address a vast range of conduct, take into consideration innumerable factors that lie in or beyond the education setting. The codes must respond legally, in line with community, state, and federal laws on issues connected to DISCRIMINATION, harassment, gender, and DISABILITY. Academic codes of conduct aim to support educational goals and be in line with criminal and civil laws. Often times the courts have had the task of deciding if the codes achieve this end.
Students' Constitutional Rights and Selected Cases
Educators have to negotiate the complicated terrain of competing entities, managing difficult students yet remaining mindful of their constitutional rights, for example, their rights to privacy, JUST CAUSE, and due process. When crime in schools involve police, certain subjects, conflicts, and events may come before the courts. Courts elucidate legal issues but not once and for all: these judgments can be subsequently redefined, upheld, or found unconstitutional. Questions recur pertaining to the application of Fourteenth Amendment protections to students as these individuals are subjected to school regulations.
Issues pertaining to a student's right to privacy, to reasonable cause for SEARCH AND SEIZURE, and technicalities about Miranda rights, all were examined in New Jersey v. T. L. O. (1985) 105 S Ct 733, in which a juvenile (known only by her initials) who was suspected of smoking and then whose purse was found to contain cigarettes, rolling paper, a bag of hashish, and some file cards containing what appeared to be a list of amounts received for drug sales. The Supreme Court had to evaluate the relative rights of the student's right to privacy against the school's need to enforce an orderly environment. One of its conclusions was that education requires a disciplined environment and that means the authority to educate entails the authority to discipline.
In the 1986 case of IN RE William G., 221 Cal. Rptr. 118, a California court decided that students as a group have the right to be protected by school officials from dangerous items or substances and to have enforced an environment conducive for learning. In many cases, the courts have to balance competing entities or claims to rights by opposite parties. In Bethel v. Fraser (1986) 478 U.S. 675 and again in Veronica v. Acton (1995) 115 S Ct 2386, courts decided that students' rights are secondary to students' safety. In Georgia v. Combs (1989) 382 SE2d 691 Ga App 625, the court ruled PROBABLE CAUSE resulted from articulated facts which led to a high degree of certainty that a search would produce EVIDENCE indicating innocence or guilt. These and many other cases produce the body of court decisions which evolve social understanding of the law as it applies in everchanging circumstances.
Columbine and Its Aftermath: Zero Tolerance
On April 20, 1999 at Columbine High School in Littleton, Colorado, two heavily armed students killed twelve students and one teacher and seriously wounded nearly two dozen others before killing themselves. The following month in Conyers, Georgia, a 15-year-old student wounded six other students. In December an Oklahoma middle-school student took a semiautomatic handgun to school and wounded five students. In March 2001 a California student killed two classmates and wounded thirteen others.
These and other murders perpetrated by children against classmates and teachers caused a furor of reactive security measures, precaution taking, and a new commitment to stringent control. Zero tolerance, which initially referred to students carrying weapons to school, fueled provisions for suspension and expulsion and increased them. In Chicago, in the wake of commitment to zero tolerance, suspensions and expulsions jumped to an average of 90 per week, mostly Latinos and African Americans. Proponents of more stringent codes pointed to the staggering fact that every day in the United States twelve children are killed by gunshot. The fact that one day they were gathered together in their deaths at Columbine brought national consciousness to a new level. Many schools nation-wide, particularly in urban settings, instigated entry-area body and bag searches, stricter dress codes, and random drug testing. Yet critics of this stringent disciplinary action urged educators to return to a positive vision of students and search for punishments that teach rather than using those that increase the drop-out rate.
The Learning Moment
Many theories about discipline shift attention from external punishment and reward systems to internalization of socialization skills and moral sense. For example in Schools without Failure, William Glasser explains the short-term value of external punishment and the limitations of trying to control others through fear tactics. Theorists like Abraham Maslow, in Motivation and Personality, and W. Edwards Deming, in Out of the Crisis, suggest a return to humane education principles and affirmation of human goodness. Many thinkers want educational institutions to finds their path into a new way of being which creates the learning moment, which sees misbehavior as an opportunity and instills faith in human nature as it pursues learning and instructs through misconduct. Marvin Marshall, in Discipline without Stress, Punishment, or Rewards, urges people to remember that so long as they are manipulated by outward threats of punishment or hopes of reward, they may be neglecting intrinsic values which in the end are the ones that satisfy, induce self-control, and energize toward self-improvement. These affirmations have to be balanced with the seriousness of turn-of-the-millennium juvenile crimes and the awesome responsibility of educators to keep children safe while they engage in learning.
Discipline without Stress, Punishments, or Rewards: How Teachers and Parents Promote Responsibility and Learning. Marshall, Marvin. Piper Press, 2001.
Encyclopedia of American Education. 2nd ed. Unger, Harlow. G. Facts on File, 2001.
Safety, Order, and Discipline in American Schools: Defining the Authority of Educators and Law Enforcement Personnel. Avery, Gary. Law Advisory Group, Inc., 2001.
Schools without Failure. Glasser, William, Harper & Row, 1969.
Zero Tolerance: Resisting the Drive for Punishment in our Schools. Eds. Ayers, William, Bernardine Dohrn, Rick Ayers. The New Press, 2001.
Drug Testing (Encyclopedia of Everyday Law)
Mandatory drug testing in public schools is a relatively new issue for the law. Introduced during the late 1980s and expanding over the next decade, the practice of analyzing student urine for illegal drugs is carried out in a small but growing percentage of schools nationwide. In 2001, the New York Times estimated that hundreds out of the nation's 60,000 school districts require some form of testing. Thus students in thousands of individual schools are affected, and more districts have indicated their interest in adopting testing, too. Currently, the practice has been ruled constitutional in one form by the U.S. Supreme Court.
School drug-testing grew out of the so-called war on drugs. Prior to the 1980s, citizens were rarely tested for drugs except by law enforcement officers and primarily when there were grounds for suspicion. Exceptions existed in a few areas, notably in the routine testing of college and pro athletes and prison inmates. But along with other sweeping social changes, the drug war introduced the idea of socalled mandatory suspicionless testing in the workplace. After spreading from the public to the private sector, the trend reached public high schools in limited formn the testing of student athletesn the late 1980s.
Legally, mandatory suspicionless drug testing has proved controversial both in the workplace and school. The practice raises questions about how to balance a perceived social need for health and safety with privacy concerns. Not surprisingly, in light of its rulings favorable to workplace testing, the U.S. Supreme Court upheld suspicionless student drug testing in 1995. The Court already viewed the privacy rights of public school students as being lower than those generally enjoyed by adult citizens. Now, the majority saw an important social need for schools to combat drug usage, viewing the loss of student privacy as inconsequential.
However, the legal status of student drug-testing is cloudy. In large part, this is due to dramatic changes following the 1995 decision. School districts correctly saw the Supreme Court's decision as a green light, but some took the practice much further. Not merely student athletes but a range of student activities, such as band and choir, began requiring students to pass drug tests as a condition for eligibility. This trend has brought new lawsuits and divergent verdicts from the federal courts. As a result, the Supreme Court is expected to clarify certain limits on school drug testing in 2002.
Important legal milestones include the following:
- The Supreme Court defined students' reduced Fourth Amendment rights in New Jersey v. T.L.O. (1985), where it ruled that schools do not have to follow the customary requirements of having PROBABLE CAUSE or a WARRANT in order to carry out searches. Instead, school authorities must follow only a simple standard based on "the dictates of reason and common sense."
- In its first landmark drug-testing ruling, the Supreme Court upheld the suspicionless drug-testing of railroad employees who are involved in accidents in Skinner v. Railway Labor Executives' Ass'n (1989). The court held that the government has a compelling interest in public safety that overrides Fourth Amendment rights of the employees.
- In a second critical ruling on drug-testing, the Court upheld the suspicionless drug testing of U.S. Customs Service employees in sensitive positions that involve extraordinary safety and national security hazards in National Treasury Employees Union v. Von Raab (1989).
- The Supreme Court upheld the constitutionality of mandatory suspicionless drug-testing of student athletes in Vernonia v. Acton (1995). Applying its rulings in Skinner and Von Raab, the Court found that the students' Fourth Amendment rights were outweighed by the government's interest in drug-free schools when it approved a school's policy of random suspicionless testing of student athletes. In the wake of its landmark ruling, hundreds of school districts nationwide adopted similar policies.
- With the expansion of student drug testing beyond athletics, some schools began requiring random drug-testing as a condition for participation in other extracurricular activities. A panel of the Seventh Circuit Court of Appeals upheld the constitutionality of such a school program in Todd v. Rush County Schools (1998), and the Supreme Court refused to hear the case, letting the verdict stand.
- In contrast, another circuit court disapproved of broad extracurricular drug testing. A panel of the Tenth Circuit Court of Appeals overturned a school drug policy in Earls v. Tecumseh (2001), holding that extracurricular testing went further than what is permitted under Vernonia. With the two circuits in obvious disagreement, the Supreme Court accepted the case for review in 2002.
- A federal judge in Texas struck down what had been the nation's first school district policy requiring drug testing of all junior high school students in Tannahill v. Lockney School District (2001).
At both the federal and state level, the future of drug-testing policies is in question. In 2001, legal observers began to note a trend in the courts toward rejecting student drug testing as more cases ended in verdicts for plaintiffs who challenged their school policies. Although some viewed this as a shift in public attitudes, it was too early to say definitively what impact the cases would have on this developing area of law.
Mandatory Suspicionless Testing of Student Athletes Ruled Constitutional
The legal foundation for suspicionless student drug testing rests upon Vernonia v. Acton (1995). In that landmark decision, the Supreme Court upheld the constitutionality of a school policy requiring student athletes to pass random urinalysis tests as a ground for participation in interscholastic sports. The Court rejected a Fourth Amendment claim asserting that such tests are an unconstitutional invasion of privacy. Closely watched nationwide, the decision effectively opened the door for school districts to institute similar policies of their own.
In the late 1980s, school authorities in the small logging community of Vernonia, Oregon, noticed a sharp increase in illegal drug usage and a doubling in student disciplinary problems. They observed that student athletes were leaders of the drug culture. Officials responded by offering anti-drug classes and presentations, along with conducting drug sweeps with dogs. After these education and interdiction efforts failed, a large segment of the student body was deemed to be in "a state of rebellion," according to findings of the Oregon District Court.
With the support of some parents, school officials next implemented a drug-testing policy for student athletes in fall 1989. It had three goals: prevent athlete drug use, protect student health and safety, and provide drug assistance programs. It imposed strict eligibility requirements: parents of student athletes had to submit a consent form for drug testing of their children, and the student athletes had to submit to tests. Once weekly the school randomly tested 10 percent of all student athletes by taking urine samples that were analyzed for illegal drug usage procedure known as urinalysis.
A legal challenge to the policy arose when a student and his parents refused to consent to drug testing and he was denied the chance to play football. Their lawsuit charged that the district violated his Fourth Amendment right to be free from unreasonable searches and seizures as well as his privacy rights under the Oregon state constitution. The District Court rejected their claims, but they won on appeal. The school district then appealed to the U.S. Supreme Court.
In its 6-3 decision, the majority followed earlier precedents. In particular, it looked back on its landmark decision regarding privacy for public school students, New Jersey v. T.L.O. (1985). That decision extended the great basis in U.S. law for privacyFourth Amendment protectionso public school students. It held that they, too, were protected from "unreasonable" searches and seizures of their persons and property by authorities, since public school authorities are agents of the government. But T.L.O. set the standard that Fourth Amendment rights are "different in public schools than elsewhere." In lowering student rights, the Court did so observing that public school authorities have a compelling interest in supervision and maintaining order that outweighs individual student rights.
In Vernonia, the majority went further. First, it distinguished the rights of student athletes from the already reduced privacy rights of the public school student body. Justice Antonin Scalia's majority opinion stated that student athletes have an even lower expectation of privacy since they routinely undress in locker rooms, noting that "school sports are not for the bashful." Second, it approved the particulars of the Vernonia school district's policy. The urinalysis was performed under minimally intrusive conditions similar to those in the schools' restrooms. There was no concern that school officials might arbitrarily accuse certain students because every student athlete was subject to being tested. Furthermore, participation was ultimately voluntary, since no one was required to play sports. And finally, the school's goals in reducing a serious drug abuse and disciplinary problem justified the testing.
Three justices dissented. Writing for the dissenters, Sandra Day O'Connor observed that mass suspicionless searches of groups had been found unconstitutional throughout most of the court's history, except in cases where the alternativeearching only those under suspicionas ineffectual. She concluded that the school's policy was too broad and too imprecise to be constitutional under the Fourth Amendment.
Lower Court Disagreement over Broader Extracurricular Student Testing
The practical effect of Vernonia was to clear the way for student athlete drug-testing in schools nationwide. But the decision did not envision what happened next. By the mid-1990s, schools had begun adopting even broader testing policies that expanded the definition of testable extracurricular activities to include activities such as band and choir and, as in the extreme instance of Lockney, Texas, the entire junior high school student body. This broadening set the stage for the next constitutional challenges, which resulted in conflicting verdicts among federal circuit courts. Given these varying rulings, there is as of 2002 no single standard in federal caselaw for when public schools may require students to pass drug tests.
Initially, one such policy passed constitutional approval. In 1998, a three-judge panel of the Seventh Circuit Court of Appeals upheld a school system's broad drug testing program in Todd v. Rush County Schools (1998). At issue was a policy by the Rush County School Board of Indiana, which in 1996 banned a high school student from participation in extracurricular programs unless the student first passed negative for alcohol and other drugs, or tobacco in a random, unannounced urinalysis exam. The policy covered students in activities ranging from the Library Club to the Future Farmers of America Officers, as well as those who merely drove to and from school. Any student failing the urinalysis lost eligibility until such time as he or she successfully passed.
In rejecting a challenge to the policy, the Seventh Circuit found that the policy was consistent with the Supreme Court's ruling in Vernonia. Its brief opinion found sufficient similarity between the intent of the Indiana and Vernonia programs: deterring drug use rather than punishing users. The broader scope of the Indiana policy was not a constitutional problem, as the court observed that nonathletic extracurricular activities also "require healthy students." Its own 1988 decision on drug-testing student athletes, Schaill v. Tippecanoe County School Corp., also supported the broader policy. The Supreme Court declined to review the case. As with the earlier Vernonia decision, the New York Times reported that the Seventh Circuit's decision "set off a wave of such policies" nationwide. Ironically, however, the Indiana policy was later struck down on state constitutional grounds.
In 2001, a dramatically different verdict appeared. A panel of the Tenth Circuit Court of Appeals ruled that drug-testing for eligibility for extracurricular activities violated Oklahoma public school students' rights in Earls v. Tecumseh. Unlike the Seventh Circuit, the panel followed a very narrow reading of Vernonia. It applied that decision's facts and conclusions to the circumstances of the Tecumseh School District in Pottawatomie County, Oklahoma, and found sharp differences. No widespread drug problem existed in the school, unlike the Vernonia district. Moreover, the panel rejected the district's contention that drug testing was justified because extracurricular activities involved safety risks for unsupervised students. Instead, the panel ruled that the tests imposed unreasonable searches upon students in violation of their Fourth Amendment rights.
The Tenth Circuit panel specifically addressed the question of when a school drug testing policy was appropriate. It expressly stated that it did not expect schools to wait until drug abuse problems grew out of control. However, if school officials faced no requirements, they would be free to test students as a condition of attending schooln outcome that the justices did not believe the Supreme Court would uphold.
Significantly, the Earls decisions signaled a deep rift between two federal circuits in how to interpret Vernonia. Presumably for this reason, the Supreme Court accepted the case for review, with a decision expected some time in 2002. Lingering questions about the permissibility and scope of such policies may also have inspired the Court to return to the question. Indeed, in 2001, legal observers noted a shift in federal opinions away from support for student drug-testing policies. In addition to the Todd case, a federal judge struck down the pervasive policy of testing all public school students in grades seven through 12 in Tannahill v. Lockney School District (2001), while state courts also ruled against policies.
State Court Decisions
As a policy matter, student drug testing in public schools is widely determined by school districts. State legislatures have thus far not intruded, leaving these determinations to the discretion of local school boards. As such, policies vary widely nationwide, and even from district to district within given states. Most schools still have no testing policy, but those that have adopted policies tend to fall into two categories: mandatory suspicionless testing is required of students who wish to play intramural athletics, or, more broadly, it is required not only of athletes but also of students wishing to participate in extracurricular clubs and organizations.
Legal direction on school policies has come from the courts. The highest-profile challenges to the policies have been brought in federal court on Fourth Amendment grounds, but some cases have been brought on state constitutional grounds, too. State constitutions often have broader privacy protections than are found under the federal constitution, thus providing powerful legal grounds for plaintiffs who want to challenge overly aggressive school policies.
The first state constitutional challenge against mandatory testing of student athletes came in Wilson v. Ridgefield Park Board of Education (1997). The American Civil Liberties Union brought the case against Ridgefield Park, New Jersey school board, arguing that the policy violated state constitutional privacy rights. A state superior court judge agreed, additionally finding that the school had no EVIDENCE of a severe drug problem among athletes, and temporarily blocked enforcement of the policy pending trial. But before the case could be heard, the school board dropped the policy in a 1998 SETTLEMENT.
State courts in Indiana, Oregon, and Pennsylvania have also found constitutional problems with school policies. Some state courts have addressed themselves to policies resulting from the expansion of student testing to other extracurricular activities. In rejecting one such policy, the Colorado state supreme court applied the U.S. Supreme Court's 1995 standard from Vernonia v. Acton when it held that high school marching band members have a higher expectation of privacy than student athletes who undress in locker rooms, in Trinidad School District No. 1 v. Lopez (1998). In other state LITIGATION, school districts in Maryland and Washington discontinued policies following lawsuits. These cases signal that the legal future of suspicionless student drug testing is far from certain.
Back to Schoolnd a Test You Can't Study. For American Civil Liberties Union. Available at http://www.aclu.org/features/f083000a.html.
Constitutional Amendments: 1789 to the Present. Palmer, Kris E., ed., Gale Group, 2000.
"Court Rulings Signal a Shift on Random Drug Tests in Schools." Wilgoren, Jodi, The New York Times, March 25, 2001.
"Random Drug Testing of Students Proving To Be a Popular Idea". Walsh, Mark. Education Week, January 28, 1998. Available at: .
Vernonia School District 47J v. Wayne Acton. Supreme Court opinion. Available at http://supct.law.cornell.edu/supct/html/94-590.ZO.html.
West Encyclopedia of American Law. Lippert, Theresa J., ed., West Group, 1998.
American Civil Liberties Union (ACLU)
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Drug-Free Schools Coalition
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Primary Contact: David G. Evans, Executive Director
National School Boards Association
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Finance/Funding (Encyclopedia of Everyday Law)
More than half a century ago Adlai Stevenson said, "The most American thing about America is the free common school system." The public school system in the United States is free only in the sense that all students have a right to attend. According to the National Center for Education Statistics (NCES), it cost an average of just over $6,500 per student to keep public elementary and high schools (known in the education community as "el-hi") operating in academic year 1998-99. Overall the revenues raised for that school year totaled over $347 billion.
These revenues came from the federal government, state governments, and local government. (Local government includes individual towns as well as larger municipalities and county governments.) The bulk of that money (nearly half) came from the states. The federal government contributed only 7.1 percent of the revenues. That may seem low, but in fact the federal government has historically contributed only a small portion of public education funds.
Funding for education has always been a contentious issue. Some people believe that education funding should be much higher than it is to ensure that students get the best education they can with the best resources and the most motivated teachers. Others believe that educational expenses should be kept in check so that schools will focus on teaching students instead of adding educational "bells and whistles" that do little to provide real educational value. What constitutes bells and whistles, of course, makes the debate more challenging. In the early and mid 1980s many education experts argued that computers in the classroom were a waste of tax dollars. By the mid 1990s it was clear that computers were in the classroom to stay, a necessary and essential element in the education process.
Still, there are many other issues for people to debate. For example, does increased funding increase student achievement? How long should school equipment last before it is replaced? Do school districts need to fund extracurricular activities, such as athletic teams? The issue of school vouchers (discussed in detail in a separate entry) has raised enormous questions in some communities. The idea of allowing parents to earmark some of their tax dollars for private schooling has generated much controversy. Clearly, taking money away from the public schools puts them at a greater financial disadvantage than they already are. Yet it does children little good to know that the public school they attend is in the first year of a turnaround that may last several more years. Regardless of the many controversies surrounding public education funding, it remains vitally important and guarantees that all children in the United States have access to school.
What Is Funded?
Educational funding covers a wide variety of expenditures, all of which are necessary to keep school systems running. The U.S. Department of Education defines current expenditures as those that take care of a schools' day-to-day operations. Current expenditures include instruction (for example, teacher salaries, textbooks and other equipment), noninstruction (such as cafeteria services and in-school bookstores), and support services (including nurses, libraries, administration, and maintenance). Other expenditures include facilities equipment and construction, which covers new school construction including renovation and expansion of older buildings. It also includes the purchase of land on which to build new school structures. Replacement equipment includes expenditures for items that are purchased for the long term (furniture, for example). School districts also spend money on programs such as adult education, community colleges, and various other programs that are not actually a part of public el-hi education. School districts often have to borrow money to meet major expenses (such as new school construction) even after they receive government funding. Along with the other expenditures, schools also have to figure in interest expenses as they pay back long-term debt.
Sources of Funding
Before reading about federal, state, and local funding, it is important to remember that each state has a different breakdown of funds, based on such factors as how much federal funding it gets. The percentages below are average figures for the 50 states and U. S. territories. Using the 1998-99 figures listed above, some states get more in federal funding (in Mississippi the figure was 14 percent), while others got significantly less (in New Jersey the number was 3.7 percent). Likewise, state contributions can vary significantly. In Vermont, 74.4 percent of school funding came from the state, while in New Hampshire only 8.9 percent came from state funding.
Much of these rates are based on the types of programs that exist within each state or the internal tax structure. A state that has more federal education programs for children may end up with a higher percentage of federal funds overall. In general, the breakdowns tend to work. That said, whenever one source cuts back, it has an effect on the other sources. If, for example, the federal government were to decrease its educational contribution across the board by two percent, that would mean states and local communities would have to make up the shortfall. If either of those sources made cutbacks, the remaining source would feel more pressure to contribute more. If the necessary funding was simply not there, the result would either be higher taxes or reduced services.
The federal government contributes money to schools directly and indirectly. Part of this funding comes from the U. S. Department of Education, but other agencies contribute as well. The U. S. Department of Health and Human Services, for example, contributes to education through its Head Start program, while the U. S. Department of Agriculture funds the School Lunch program for students who cannot afford to pay for their own lunches. Even with these added contributions, the federal government accounts for less than 10 percent of school revenues. Using its own words, the Department of Education has long seen its role as "a kind of emergency response system" that fills gaps when state and local sources are inadequate to meet key needs. (For example, the 1944 GI BILL, a post-secondary program rather than el-hi program, helps fund college educations for nearly eight million World War II veterans.)
The Education Department's measures are not always merely stop-gap. During and after World War II Congress passed the LANHAM ACT (1941) and the Impact Aid laws (1950) to compensate school districts that housed military and other nontaxable federal installations. Today, the federal government continues to compensate communities that house such institutions. Moreover, Title I of the Elementary and Secondary Education Act of 1965 guaranteed aid to disadvantaged children in poor urban and rural communities. The Higher Education Act, passed the same year, provided financial aid programs to help qualifying students meet college expenses.
The states provide most of the funding that keeps public el-hi schools running in the U.S. For the academic year 1998-99, state sources accounted for 48.7 percent of total school revenues. The states raise this money through a variety of means including various taxes. Some states raise money for education through state-sponsored lottery games. Doing so is somewhat controversial because, while the schools may benefit from the added revenue, some see the lottery as nothing more than state-sponsored gambling, a potentially addictive activity that particularly affects poorer individuals.
Each state has an Education Department that oversees state programs (such as state university systems) as well as individual school districts. In some states a governing body, such as the Board of Regents in New York, plays a significant role. The New York Board of Regents provides a series of examinations for students to establish proficiency in various subjects based on established state standards. Many students in New York receive a Regents diploma as well as their regular school diploma when they graduate high school.
State funding for education can cause huge disagreements among communities with the state. The question state governments face constantly is how to distribute the revenues evenly to ensure that each school district gets its fair share. New York and Pennsylvania offer two examples of how state funds can be fought over. New York City holds nearly half the population of the state, yet it receives proportionally less per student from the state government than other districts in New York. Residents of upstate New York have little desire to see their state tax dollars sent to New York City schools, which they see as too bureaucratic and wasteful. Residents of central Pennsylvania feel the same about education expenditures in Philadelphia and Pittsburgh.
Urban and rural areas have separate needs and challenges. A large city may have an established infrastructure that allows its school officials to approach private companies for assistance. A local computer company may donate computer equipment to the city schools, for example. Yet city schools are often decrepit (many school buildings in New York City are heated by coal furnaces), classes are crowded, and teacher turnover is high. In rural areas, classes are unlikely to be overcrowded, and teachers may stay longer in one place. But having fewer students can also mean having access to fewer resources, and there may not be enough students in a given district to justify the expense of, for example, a special education program for developmentally disabled children.
Local sources make up nearly as much revenue as state sources. Local sources includes intermediate revenues from county or township governments, but the bulk of local funding comes from individual community school districts. Some of the local revenues come from sources such as revenues from student activities and food services. Most of the money comes from property taxes, which are raised to cover all community services as well as education. All homeowners pay taxes based on a local ASSESSMENT of their houses. Local school budgets are mapped out by elected officials, including mayors and council members, as well as the local board of education. Residents are able to vote on local school budgets in regularly scheduled elections.
Funding schools with local dollars has benefits and drawbacks. The primary benefit of local funding is accountability. Taxpayers can see exactly how their money is being spent. They can see the new cafeteria at the high school, the new science lab equipment, the new textbooks. The local elected officials who submit school budgets to the voters know that if they fail to keep the promises they make, those same voters will remove them from office in the next election.
Members of the community also have more say in how local dollars are spent. Those who have children in the school system will be particularly interested in how tax dollars are spent. Some of them may become quite active in school affairs by participating in the Parents Teachers Association (PTA) or on the local board of education.
This arrangement can be a drawback to local funding as well as a benefit. Because members of the community know they have a say in the school budgetary process, they may be more likely to examine each expenditure carefully. This scrutiny is not the problem. What creates difficulties is when local residents perceive expenses as unnecessary. Those who no longer have children in the school system may be reluctant to see their property taxes increase for programs that will bring them little if any benefit. Senior citizens likewise may be reluctant to support tax increases (even though in many communities they get a property tax break). People who feel that teacher salaries are already too high or that the old gym is perfectly fine for the students or that new instruments for the marching band are an extravagance, may vote down any school budget increases.
Local elected officials need to be able to show community residents the positive side of spending more money on the schools. Better-equipped schools attract better teachers. Better teachers prepare students better, and more students achieve success. This improvement in turn means more young families, since for young families the quality of the schools is the most important factor when they choose a place to live. As the community becomes more attractive to outsiders, property values will go up; often the rise in value far more than offsets the extra cost incurred by taxes. Of course, higher property values may also mean higher tax assessments, so for the homeowner who has no children and who has no plans to move, the process of increased values may feel like a personal financial burden rather than tax dollars at work. For these and other reasons local funding is more complex than it would appear to be.
Sources of Information
The federal government offers a number of sources of revenue information through the U. S. Department of Education (which oversees NCES), and other sources. Each state has its own education department, which can provide information about state education funding. Because education is such a critical issue to so many people, elected officials are a good source of statistical information on school revenues. Local government sources and boards of education are useful resources for information about local funding. Most public libraries compile information about local school revenue issues as well.
Funding Sources for K-12 Schools and Adult Basic Education. Oryx Press, 1998.
Goals 2000: A Progress Report. U. S. Department of Education, 1995.
National Center for Education Statistics (NCES)
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Washington, DC 20006 USA
Phone: (202) 502-7350
Fax: (202) 502-7475
Primary Contact: Gary W. Phillips, Acting Commissioner
National Education Association (NEA)
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Fax: (202) 822-7170
Primary Contact: Robert F. Chase, President
National School Boards Association (NSBA)
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Phone: (703) 838-67220
Fax: (703) 683-7590
Primary Contact: Anne L. Bryant, Executive Director
School Prayer/Pledge Of Allegiance (Encyclopedia of Everyday Law)
Prayer and the pledge of allegiance in public schools remain controversial legal issues. Since the mid-twentieth century, the federal courts have placed limits upon state power to require or even permit these popular cultural practices. Two landmark Supreme Court decisions in the 1960s banned prayer in public school, and subsequent decisions have mostly strengthened the ban. By comparison, the courts have held since the 1940s that the pledge of allegiance is permissible, provided that it is voluntary. Massive public dissatisfaction with these constraints is ongoing.
Prayer was a common practice in colonial American schools, which were often merely offshoots of a local Protestant church. Along with Bible study, this tradition continued after U. S. independence and flourished well into the nineteenth century. But historical forces changed education. As IMMIGRATION multiplied the ethnic and religious identities of Americans, modernization efforts led by education reformers like Horace Mann gradually minimized religious influences in schools. Although this secular reform swept cities, where diverse populations often disagreed on what religious practice to follow in schools, much of the United States retained school prayer.
As the twentieth century brought legal conflicts, the stage was set for even more far-reaching changes. From 1910 onward, lawsuits challenged mandatory Bible reading in public schools on the ground that students should not be forced to practice a faith other than their own. By the mid-century, social and religious tensions had pushed LITIGATION through the federal courts. Subsequently, the Supreme Court ruled repeatedly that school prayer, Bible reading, and related religious practices are violations of the First Amendment. The decisions stand as critical modern mileposts in the contest between federalism and states' rights:
- The Supreme Court first ruled against public school prayer in the 1962 case of Engle v. Vitale. The decision struck down a New York State law that required public schools to begin the school day either with Bible reading or recitation of a specially-written, nondenominational prayer.
- One year later, in Engle v. Vitale (1963), the Supreme Court struck down voluntary Bible readings and recitation of the Lord's Prayer in public schools.
- In 1980, in Stone v. Graham, the Supreme Court ruled against a Kentucky law that required the posting of the Ten Commandments in all public school classrooms.
- In 1981, the Supreme Court ruled in Widmar v. Vincent that a state university could not prohibit a religious group from using facilities that were made open for use by organizations of all other kinds. Congress responded three years later with the Equal Access Act, guaranteeing religious student groups the same rights of access to school facilities as other student groups.
- In the 1980s and 1990s, some states enacted so-called "moment of silence" or "minute of silence" laws with the intent of allowing students to conduct private prayer or spiritual reflection in the classroom. Although the Supreme Court found an early Alabama law unconstitutional in Wallace v. Jaffrey (1985), subsequent laws have generally survived legal challenges.
- In 1992, in Lee v. Weisman, the Supreme Court ruled that school officials violated the First Amendment by inviting clergy to give an invocation and a benediction at a public high school graduation.
- In Santa Fe Independent School District v. Doe (2000), the Supreme Court ruled against a Texas school district policy of facilitating prayers over the public address system at football games and holding popular elections to choose the student selected to deliver the prayer.
The Pledge of Allegiance is one of the nation's most honored secular symbols, viewed by many in the same light as the National Anthem. Written in 1892 by the socialist Francis Bellamy, the Pledge of Allegiance first appeared in a national family magazine, Youths' Companion, and later was modified by Congress and President Dwight D. Eisenhower in 1954 to include a reference to God. Many public schools featured the pledge as part of the school day throughout the mid-twentieth century.
Legal controversy in public schools grew out of a dispute over religious freedom. In the 1930s, West Virginia mandated compulsory saluting of the flag and recitation of the pledge. After members of Jehovah's Witnesses objected on religious grounds, students were expelled from school. The Supreme Court first upheld the state law but reversed itself three years later in West Virginia State Board of Education v. Barnette (1943). The court held that schools may not coerce or force students into reciting the pledge, observing the existence of an individual right of conscience to sit silently while others recited. Most schools responded by making the pledge voluntary.
Much less than the prayer controversy, contemporary legal challenges involving the pledge have been sporadic. Yet they are still passionate. High-profile cases in the late 1990s involved lawsuits against schools that instituted mandatory requirements and punished students who did not comply. Interest in the issue intensified again in 2001 following terrorist attacks upon the United States, which prompted states and school districts to revive long-dormant laws requiring students to recite the pledge.
Constitutional Basis for Ban
Since 1962, the Supreme Court's rejection of school prayer has rested upon its interpretation of the First Amendment. That interpretation has hardly varied, even in the face of public outrage, political opposition, and scholarly criticism. The court's decisions have remained largely consistent across several cases for four decades.
As one of the constitution's most powerful and sweeping guarantees of freedom, the First Amendment is generally thought to contain two contrasting principles with respect to religion. These are announced in the opening words of the amendment, which contains two clauses: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In constitutional law, the first clause is referred to as the Establishment Clause, and the second as the Free Exercise Clause.
Broadly general in their language, the two clauses say nothing morend neither does the Constitution itselfbout how to apply them. Thus their practical meaning is chiefly known through the ways courts interpret them in individual cases. Under the Establishment Clause, courts have generally held that government is forbidden to enact laws aiding any religion or creating an official religion. Under the Free Exercise Clause, courts have usually held that government is also forbidden to interfere with an individual's free exercise of religion, including the areas of belief, practice, and propagation.
Both principles require a position of government neutrality toward religion but of a different and seemingly contradictory kind. In practice, the two principles easily overlap. Advocates of school prayer have long argued that banning the practice is a violation of religious freedom guaranteed by the Free Exercise Clause. Opponents have argued that the rights to free exercise are outweighed by the prohibition laid out in the Establishment Clause. How the tension between these principles is resolved lies at the heart of the school prayer ban.
In school prayer cases, the Supreme Court has repeatedly given the Establishment Clause precedence. From the earliest case, Engel v. Vitale, which the Court reaffirmed in 1992, it has held that public school prayer is "wholly inconsistent" with the Establishment Clause. The majority opinion went out of its way to stress that the Court did not oppose religion itself. Instead, the opinion stated that "each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance."
Types of Prayer Banned
To date, the Supreme Court has never sanctioned any form of prayer spoken aloud in classrooms under the direction of officials in public schools. In a variety of decisions, it has repeatedly held or affirmed lower court rulings that several types of prayer are unconstitutional:
- Sectarian, as in the Lord's Prayer
- Non-sectarian or non-denominational, as in the state-authored prayer at issue in Engel v. Vitale
- Teacher or student-led classroom prayer
- Invocations or benedictions
From the start, these decisions have shown no tolerance for attempts to tailor prayers to make them more acceptable to a majority of citizens. In fact, the very first prayer case arose after the State of New York commissioned the writing of an original twenty-two word prayer that it determined would cover a broad spectrum of religious belief; the prayer was approved by Protestant, Catholic, and Jewish leaders who stated their goal was to avoid causing sectarian disputes. Yet the Supreme Court ruled that the prayer's non-denominational nature gave it no constitutional protection.
On Establishment Clause grounds similar to the prayer ban, the Supreme Court has also struck down related activities and practices involving religious worship in schools:
- Religious invocations at graduation ceremonies
- Prayers read by religious representatives
- Student-led prayers at assemblies and sporting events
- Posting of the Ten Commandments in schools
Permissible Private Prayer and Secular Study of Religion
Although the prayer ban has proven largely comprehensive, the Supreme Court has not banned religion from schools. Instead, it has held that context is critical in determining what is permissible and impermissible.
The Supreme Court has never banned students from praying voluntarily and privately on their own, provided there is no state intervention. Students simply must do so without the guidance or COERCION of school authorities. Religious student groups may meet after school like other student clubs, as guaranteed by the federal Equal Access Act, and pray on their own.
Study of religion is also constitutionally permitted. Even in its earliest prayer cases, the Supreme Court noted that schools were free to discuss religion within the context of a secular course of instruction, such as, for instance, a history course.
Between 1971 and 1990 the Supreme Court used a three-part test to determine whether state programs involving religion were permitted under the Establishment Clause. Following the standard first announced in Lemon v. Kurtzman (1971), the Court upheld a challenged religious program if it met all three conditions:
- It has a secular purpose
- It has a primary effect that neither advances nor inhibits religion
- It does not excessively entangle government with religion
This test began losing validity in the 1990s as the Supreme Court refused to apply it. Shifts in the court's analytical approach did not signal a reversal on doctrine, however; in fact, in 1992, the majority upheld its original school prayer ruling of thirty years earlier, and subsequent decisions extended the ban to prayers at public school events. By 2001, the test for compliance with the Establishment Clause generally required that a school policy demonstrate a secular purpose that neither advances nor inhibits religion in its principal effect. Courts continued to carefully scrutinize such policies to see that they did not endorse, show favoritism toward, or promote religious ideas.
Permissible "Minute of Silence"
During the 1980s, school prayer advocates were in search of new approaches that might prove constitutional. The so-called moment of silence has proven the most successful strategy, despite an early setback in which Alabama's requirement that school children be required to observe a moment of silence each day was held unconstitutional by the Supreme Court in Wallace v. Jaffrey (1985).
However, states subsequently crafted laws that did survive constitutional review. One example is Virginia's minute of silence law, which requires children to begin the school day with a minute to "meditate, pray or engage in silent activity." In July 2001, a panel of the 4th U. S. Circuit Court of Appeals upheld the constitutionality of the law, noting that it " introduced at most a minor and nonintrusive accommodation of religion" and, because it allowed any type of silent reflection, served both religious and secular interests. The U. S. Supreme Court declined to hear an appeal in the case, thus upholding Virginia's law. Legal observers predicted the law's success would lead to more such legislation in other states; as many as 18 states already permit moments of silence under law.
Responding to public demand for school prayer, federal lawmakers have occasionally sought a remedy of their own. Few advocates of school prayer believe legislation can survive JUDICIAL REVIEW. Thus, the chief proposal to enjoy perennial favor is the idea of a CONSTITUTIONAL AMENDMENT.
Following the first 1962 prayer ruling, lawmakers flooded Congress with such proposals but never passed any. Attempts were revived over the decades, with the most serious coming in the late 1990s. But constitutional amendments face difficult legal hurdles. Even before a proposed amendment can be sent for a state-by-state vote on RATIFICATION, it must pass by a two-thirds majority in the House of Representatives. Historically, lawmakers are significantly reluctant to tamper with the Constitution. Thus in June 1998, House members voted 224 to 203 in favor of a school prayer amendment, but that simple majority fell far short of the two-thirds majority needed for approval.
Another Congressional effort has borne some success for school prayer advocates. In 1984, with strong backing from conservative religious groups, Congress passed and President Ronald Reagan signed the Equal Access Act. The law requires any federallyfunded public secondary school to allow all school clubs, including religious organizations, equal access to facilities. As representatives of the state, teachers and officials are instructed not to encourage or solicit participation in these activities.
Limits on Pledge of Allegiance
In West Virginia State Board of Education v. Barnette, the Supreme Court ruled that requiring the Pledge of Allegiance in public schools violated the First and Fourteenth Amendments. The case grew out of West Virginia's passage of legislation requiring the pledge and flag-saluting. Lawmakers had intended them to be part of instruction on civics, history, and the Constitution, and they defined noncompliance as insubordination that was punishable by expulsion from school. Parents of expelled students were also subject to fines. After Jehovah's Witnesses students were expelled, their parents brought suit contending that the law infringed upon their religious beliefs, which they said required them not to engage in these secular practices.
The Supreme Court found two constitutional violations. The state law violated the Fourteenth Amendment's requirement of due process and the First Amendment's requirements of religious freedom and free speech upon the state. At heart, said the Court, were the principles of freedom of thought and government by consent. Critically, the majority observed a right of individuals to be free from official pressure to state a particular opinion, including that they honor their government. The opinion declared that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
The decision's practical effect is to permit voluntary recitation of the Pledge of Allegiance but to forbid mandatory requirements that students participate. The decision itself has not been challenged in court, but its requirements have not always been observed. In the 1990s, the American Civil Liberties Union (ACLU) repeatedly defended students in school districts who suffered reprisals for failing to participate in the Pledge of Allegiance. In 1998, for instance, the ACLU filed a federal lawsuit against the Fallbrook Union High School District of San Diego, California, after school officials required a dissenting student to stand silently during the pledge, leave the classroom, or face detention; settling the case out of court, the school district agreed to change its policy.
Although not officially required, presidents have traditionally led students in an annual nationwide Pledge of Allegiance. Schools may choose to participate, as many did when U. S. Secretary of Education Rod Paige urged participation in October 2001 following terrorist attacks upon the United States.
State and Local Laws
Despite many Supreme Court rulings against public school prayer, the legal picture in states is far from uniform. In some states and cities, politicians and school officials have simply ignored the Court's prayer decisions. Some school districts continue to allow classroom prayer in the absence of any direct legal challenge. Still others invite litigation, seeing in each lawsuit an opportunity to press the judiciary to reconsider the four-decade-old ban. Thus while federal judicial decisions may say one thing, the practical reality is widely acknowledged to be another: ongoing litigation, for years, has been the norm, with school prayer lawsuits frequently seeing national legal organizations representing both sides in what originate as local disputes.
The situation for the Pledge of Allegiance in public schools is also mixed. Most states, in fact, still have decades-old laws relating to the pledge. Thirty-two states mention some form of school participation in their laws, while twenty states require students to recite it. Enforcement of the laws was irregular or non-existent; however, as the Christian Science Monitor observed in March 2001. Following the September 11, 2001, terrorist attacks upon the United States, however, outpourings of patriotism and strong renewed interest in having students recite the pledge pushed the issue back to the forefront, with some governments declaring they would use old laws and others vowing to pass new ones.
In 2001, states and cities with laws, policies, and practices under legal challenge, or which enacted new legislation, included the following:
ALABAMA: For over a quarter century, lawsuits have been fought over the state's school prayer laws. Contemporary battles date to 1992, when the Supreme Court struck a law mandating prayers led by clergy at public school graduation ceremonies. In response, state lawmakers passed the "Student-Initiated Prayer Law" requiring schools to allow students to initiate prayer at sporting events, assemblies, and graduations. That law has been contested ever since, with seesawing victories for both sides. In 1997, a district court judge ruled the law unconstitutional and issued a broad injunction against it. Amidst high tensions, Governor James Fob vowed to use the state national guard to protect school prayer. Then in 1999, the law's supporters won on appeal to the Eleventh Circuit. In 2000, the Supreme Court vacated the Eleventh Circuit and sent the case back to it for further EXAMINATION, essentially restoring the force of the district court injunction. The case is still being contested.
ILLINOIS: In May of 2001, a U. S. district court ordered the Washington Community High School in Chicago not to use school-sanctioned prayers at a graduation ceremony. The order came in response to a lawsuit by the ACLU filed on behalf of the school's valedictorian and her parents.
FLORIDA: Since the early 1990s, lawsuits have contested the policy of the Jacksonville public school board to allow prayer at graduation ceremonies. In 1998, students and parents in the Duval County Public School District successfully sued to block the practice. The full Eleventh Circuit, however, declared that student-led prayers at graduation are constitutional. In 2000, the Supreme Court vacated the decision and sent it back to the appeals court for reconsideration.
NEBRASKA: In November of 2001, the Board of Education voted to require that schools follow the state's 1949 patriotism law. The law mandates that schools teach the lyrics to "The Star-Spangled Banner" and other patriotic songs, teach reverence for the flag, and discuss the dangers of communism.
NEW YORK CITY: In October of 2001, the New York City Board of Education adopted a resolution requiring all public schools to begin the school day, as well as all assemblies and events, with the Pledge of Allegiance.
VIRGINIA: The state requires public schools to begin each day with a minute of silence to be used by students for meditation or prayer, under a law upheld in July 2001 by a panel of the 4th U. S. Circuit Court of Appeals and declined review by the Supreme Court. The decision is binding only in Virginia, Maryland, West Virginia and the Carolinas. Beginning with the 2001 fall school year, Virginia state law also requires public schools to teach and start each day with the pledge; participation is optional.
WISCONSIN: Under a law effective September 1, 2001, the state requires schools in grades 1-12 to allow students to voluntarily recite the Pledge of Allegiance or sign the national anthem. The law states that children cannot be forced to participate. In the state capital of Madison, national controversy followed a late September decision by the city's school board to allow local schools only to use an instrumental version of the national anthem and barred them from using the pledge. In response to public outcry, the board rescinded the rule, thus implementing the state law.
A Call for Mandatory Pledge in Schools. Rein, Lisa, The Washington Post, January 25, 2001.
Constitutional Amendments: 1789 to the Present. Gale Group, Inc., 2000.
Fighting the Establishment (Clause). Bradley, Jennifer, The American Prospect, September 1, 1996. Available at: http://www.prospect.org/print/V7/28/bradley-j.html
Religion in the Public Schools: A Joint Statement of Current Law. The American Civil Liberties Union, 1996. Available at: http://aclu.org/issues/religion/relig7.html
West Encyclopedia of American Law. West Group, 1998.
American Civil Liberties Union (ACLU)
125 Broad Street, 18th Floor
New York, NY 10004 USA
Phone: (212) 549-2500
Primary Contact: Nadine Strossen, President
American Family Association
P.O. Box 2440
Tupelo, MS 38803 USA
Phone: (662) 844-5036
Fax: (662) 842-7798
Primary Contact: Donald E. Wildmon, President
Americans United for Separation of Church and State
518 C Street, NE
Washington, DC 20002 USA
Phone: (202) 466-3234
Fax: (202) 466-2587
Primary Contact: Barry Lynn, Executive Director
316 Pennsylvania Avenue, Ste. 203
Washington, DC 20003 USA
Phone: (202) 544-0353
Fax: (202) 547-6996
Primary Contact: Lori Cole, Executive Director
Special Education/Disability Access (Encyclopedia of Everyday Law)
Students with mental and physical disabilities in the United States were historically segregated from other students in most educational systems. While special programs were modified to provide different types of training for disabled children, these children were ordinarily separated from the mainstream students, not only to protect the children in special education but also to avoid disruption among other students without disabilities. The majority of disabled children did not attend school at all.
The move toward the recognition of rights for disabled students began with the famous 1954 case, Brown v. Board of Education, which established that "separate but equal" accommodations in education were not, in fact, equal. As other CIVIL RIGHTSmovements gained momentum throughout the 1960s, proponents for rights of disabled individuals also began to assert the rights of these individuals. Two landmark federal district court decisions in 1971 and 1972, PARC v. Pennsylvania and Mills v. Board of Education, established that denying education to children with disabilities and denying the proper procedures in such cases violated protections under the Fourteenth Amendment to the United States Constitution. A number of other cases since then have further established rights of disabled children.
A number of federal statutes have formed the basis for guaranteeing rights of disabled children since the mid-1970s. The following is a summary of these statutes:
- Rehabilitation Act of 1973: This act established that those who receive federal financial assistance cannot discriminate on the basis of a DISABILITY.
- Education for All Handicapped Children Act (EAHCA): Passed in 1975, this act provided support to state special education programs to provide free appropriate public education to disabled children.
- Perkins Act: Passed in 1984, this act required that ten percent of federal funding for vocational education must support the education of disabled students.
- Handicapped Children's Protection Act of 1986: This act amended the EAHCA to provide attorney's fees and costs to be awarded to parents who prevailed in an EAHCA case.
- Education to the Handicapped Act Amendments of 1986: These acts added early intervention services for three- to five-year-olds, with incentive programs for younger children with disabilities.
- Individuals with Disabilities Education Act (IDEA): Passed in 1990, this act amended the EAHCA by modifying a number of the provisions in the original STATUTE.
- Americans with Disabilities Act (ADA): Passed in 1990, this major piece of legislation set forth broad prohibitions against DISCRIMINATION of disabled individuals by most employers, public agencies, and those who provide public accommodations. Two titles in the Act apply specifically to schools.
Individuals with Disabilities Education Act
The Individuals with Disabilities Education Act (IDEA) is primarily a funding statute. It requires that each state educational authority develop a policy that ensures free appropriate public education is being provided to all children with disabilities by local agencies. The amount of funding is determined on a state-by-state basis by the number of disabled children between the ages of three and 21 who are receiving special education and/or other related services. At the center of IDEA is a requirement that a local educational agency develop on at least an annual basis an individualize education program for each disabled child. This plan states the current educational status of the child and sets forth goals and objectives for the child to meet. Room for parental consent or involvement is provided at each step in the child's education.
Free and Appropriate Public Education
IDEA defines free appropriate public education as special education and related services that are provided at public expense, under public supervision and direction. Free appropriate public education must also meet standards set forth by state educational agencies; must include appropriate education at the preschool, elementary, and secondary levels; and must be provided in conformity with individualized education programs required under IDEA.
State Educational Agencies
IDEA shifts responsibility for ensuring that educational programs are in compliance with the provisions of IDEA to state education agencies. These agencies are required to promulgate a complaint procedure that provides the following services:
- Receive and resolve complaints against state or local education agencies
- Review appeals from decisions regarding a local education agency complaint
- Conduct independent on-site investigations
- Set forth a 60-day time limit to investigate and resolve complaints
- Allow time extensions only in exceptional circumstances
- Review relevant information and issue written decisions
- Provide an enforcement mechanism
Local Educational Agencies
As the primary entity required to develop individualized educational programs for each disabled child in a particular locality, local educational agencies are at the center of the provision of IDEA. Residency of each child is the primary consideration for determining which local educational agency has responsibility for developing these educational programs. In some cases, determining the appropriate local agency can become difficult, particularly if the child's parents live in different districts. Many states have included provisions providing that the child's residency is that of the parent.
Individualized Education Programs
Local educational agencies must include a number of components in each individualized education program for each disabled child in its district. Among these components are the following:
- Descriptions of each child's current educational status, which describes the disabled child's cognitive skills, linguistic ability, emotional behavior, social skills and behavior, and physical ability
- Details of "measurable annual goals, including benchmarks or short-term objectives" related to the specific needs of each child, according to the provisions in IDEA
- Description of the instructional setting or placement of each disabled child
- Details of developmental, corrective, and other services designed to facilitate placement in a regular class or designed to allow disabled children to benefit from special education
- Additional specific statements required by IDEA, which relate to each child's progress, needs, advancement, and goal.
Parents are involved in each stage of the development of a child's individualized education program. Such participation in this process includes the following:
- Parents must approve each stage of the implementation of the individualized education program
- Parents participate in initial meetings and annual meetings reviewing the programs established for their children
- Parents and school districts must sign an individualized education program before each school year begins
- School districts must redevelop a new program for a disabled child at the request of a parent
- Parents are entitled to request a meeting at any time regarding the individualize education program
Section 504 of the Rehabilitation Act of 1973
Prior to the enactment of the American with Disabilities Act, the statute that provided the most comprehensive rights to disabled children other than IDEA was the Rehabilitation Act of 1973. This act forbids any entity that receives federal financial funding from discriminating on the basis of disability. The act protects all individuals with physical or mental impairments that substantially limit their major life activities and are regarded as having such impairments. Major life activities under this description include an individual's ability to care for himself or herself, performance of manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. If an entity, such as a school, violates the provisions of the Rehabilitation Act, the Department of Education will investigate. The most likely remedy for these violations is termination of federal financial assistance to the entity.
Americans with Disabilities Act
The American with Disabilities Act (ADA), passed by Congress in 1990, provides many of the same protections for disabled children as the Rehabilitation Act of 1973. However, unlike the Rehabilitation Act, the prohibitions under the ADA are not limited to those that receive federal financial assistance. The ADA is applicable in other areas as well where the provisions of the Rehabilitation Act may not provide protection. This is particularly true with respect to architectural barriers to a building. Part II of the ADA, which is applicable to public schools, requires accessibility for the entire program. Part III, applicable to private schools, contains similar provisions.
Definition of Disability and Eligibility for Special Education Services
All school districts in the United States are required by law to identify, locate, and evaluate children with disabilities. Once this has occurred, school districts have a duty to evaluate whether the children are eligible for special education and then begin to develop individualized education programs for them. IDEA and the corresponding regulations define "children with disabilities" as those suffering from at least one of the following conditions:
- Mental retardation
- Hearing impairment
- Speech or language impairment
- Visual impairment
- Serious emotional disturbance
- Orthopedic impairment
- Traumatic brain injury
- Specific learning disability
- Other health impairments
These disabilities must have adverse effects on disabled children in order for the children to be eligible for special education and services. The definition of disability and the application of this definition is broader under other statutes. The Americans with Disabilities Act, for example, employs a three-part definition of "disability." For the ADA to apply to an individual, the individual's physical or mental impairment must substantially limit the individual's major life activities. This individual must also have a record of such an impairment and be generally regarded as having such an impairment. Physical impairment can include any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of several major body systems, as defined by the statute. Mental impairment may include any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Since the definition is broader under the ADA, a child with a disability may request accommodation under the ADA, but the same child may not be eligible for special education under the provisions of IDEA.
Like the ADA, the provisions of the Rehabilitation Act of 1973 regarding the definition of disability are broader than those of IDEA. For example, a child with Acquired Immune Deficiency Syndrome may not be eligible for special education under IDEA. However, the same child may not be discriminated against on the basis if his or her disease, since AIDS and other diseases are considered disabilities under the Rehabilitation Act.
Placement of Children with Disabilities
Placement of children with disabilities under IDEA occurs after the development of an individualized education program, described above. Local agencies must take into account a variety of factors, many of which are described in relevant regulations concerning the implementation of IDEA. Such considerations include the child's performance on aptitude and achievement tests; parental input; recommendations from teachers; the physical condition of the child; the social and cultural background of the child; and the adaptive behavior of the child. If the local agency fails to provide appropriate placement, the child's parent(s) may place the child unilaterally and seek reimbursement from the agency.
Several requirements under IDEA apply to the placement of a child. Although placement should be as close to the child's home as possible, there is no absolute requirement that the school selected is the closest to the child's home. If the closest school would not provide what would be considered free appropriate public education, the agency may select a more suitable school, even if it is farther away. The placement must be in the least restrictive environment, which generally restricts the ability of a school to segregate children with special education needs. Only in cases where the disability is so severe that regular classroom attendance would not be appropriate can complete SEGREGATION occur. This provision is often referred to as a mainstreaming requirement.
The placement of a child must be reviewed annually. If placement is changed, an existing individualized education program must support it, since placement itself is based on the IEP. Parents must be notified under IDEA requirements, and several states require that parental consent must be obtained before a local agency can make a change in placement for a disabled child.
Procedures for Alleging Violations of Statutes Protecting Disabled Children
Since IDEA is a funding statute, if a local agency fails to provide free appropriate public education to a disabled child, the remedy is that the agency loses its federal funding. Many parents of disabled children, however, seek judicial and other remedies when they feel the education being provided to their child is not sufficient. The initial body required under IDEA and other statutes to hear a complaint is the state education authority, which must hold an IMPARTIAL hearing. Specific procedures that must be followed are set forth in IDEA regulations. Once the state education authority makes its decision, a parent may appeal to another state-level agency. Parents should consult their own state's laws to determine which is the appropriate agency for such an appeal.
Judicial bodies, including either a federal or a state court, may review administrative proceedings. Judicial action may not take place until the parties have exhausted each of their administrative remedies. The most typical remedy sought by parents in cases involving special education is injunctive or declaratory relief, although in some cases, monetary damages may be appropriate.
Complaints for INFRINGEMENT of the ADA in schools should be filed with the Department of Education. Once administrative remedies have been exhausted, parties may seek JUDICIAL REVIEW. Like the remedies under IDEA, most parents seek injunctive or declaratory relief, such as a court order requiring that a school provide the requested access.
State Provisions Regarding Special Education and Disability Access
Special education and disability access have become controlled primarily by federal STATUTORY schemes. This is true even though most educational regulation is governed by state statute. Under IDEA, if a state or local agency fails to provide the minimum provisions required by the statute, the state or local entity may lose federal funding. States may, however, provide greater protection than is afforded by the federal statutes.
Parents with disabled children should consult with the state educational agencies, as well as applicable state laws, to determine what rights their children may have in their particular state. The following is a listing of the appropriate agencies in each state.
ALABAMA: The primary state educational agency is the Special Education Services division of the Alabama State Department of Education.
ALASKA: The primary state educational agency is the Alaska Department of Education Special Education Programs.
ARKANSAS: The primary state educational agency is the Special Education Section of the Arkansas Department of Education.
CALIFORNIA: The primary state educational agency is the Special Education Division of the California Department of Education.
COLORADO: The primary state educational agency is the Special Education Services Unit of the Colorado Department of Education.
CONNECTICUT: The primary state educational agency is the Bureau of Special Education and Pupil Services of the Connecticut Department of Education.
DELAWARE: The primary state educational agency is the Exceptional Children Department of the Delaware Department of Education.
FLORIDA: The primary state educational agency is the Education for Exceptional Students Department of the Florida Department of Education.
GEORGIA: The primary state educational agency is the Division of Exceptional Students of the Georgia Department of Education.
HAWAII: The primary state educational agency is the Special Education Section of the Department of Education.
IDAHO: The primary state educational agency is the Bureau of Special Education of the Idaho State Department of Education.
ILLINOIS: The primary state educational agency is the Special Education Department of the Illinois State Board of Education.
INDIANA: The primary state educational agency is the Division of Special Education of the Department of Education.
IOWA: The primary state education agency is the Bureau of Children Family and Community Services of the Department of Education.
KANSAS: The primary state educational agency is the Student Support Services of the Kansas State Department of Education.
KENTUCKY: The primary state educational agency is the Office of Special Instructional Services of the Kentucky Department of Education.
LOUISIANA: The primary state educational agency is the Division of Special Populations of the Louisiana Department of Education.
MAINE: The primary state educational agency is the Special Education Department of the Maine Department of Education.
MARYLAND: The primary state educational agency is the Division of Special Education of the Maryland State Department of Education.
MASSACHUSETTS: The primary state educational agency is the Special Education Programs division of the Massachusetts State Department of Education.
MICHIGAN: The primary state educational agency is the Office of Special Education and Early Intervention Services.
MINNESOTA: The primary state educational agency is the Office of Special Education of the Minnesota Department of Children, Families, and Learning.
MISSISSIPPI: The primary state educational agency is the Office of Special Education of the Mississippi State Department of Education.
MISSOURI: The primary state educational agency is the Division of Special Education of the Missouri State Department of Education.
MONTANA: The primary state educational agency is the Special Education Division of the Montana Office of Public Instruction.
NEBRASKA: The primary state educational agency is the Special Populations Office of the Nebraska Department of Education.
NEVADA: The primary state educational agency is the Division of Special Education of the Nevada Department of Education.
NEW HAMPSHIRE: The primary state educational agency is the Bureau of Special Education of the New Hampshire Department of Education.
NEW JERSEY: The primary state educational agency is the Office of Specialized Populations of the New Jersey State Department of Education.
NEW MEXICO: The primary state educational agency is the Special Education Office of the State of Mexico Department of Education.
NEW YORK: The primary state educational agency is the Vocational and Educational Services for Individuals with Disabilities of the New York State Education Department.
NORTH CAROLINA: The primary state educational agency is the Special Education Division of the North Carolina Department of Public Instruction.
NORTH DAKOTA: The primary state educational agency is the Director of Special Education of the North Dakota Department of Public Instruction.
OHIO: The primary state educational agency is the Special Education Division of the Ohio Department of Education.
OKLAHOMA: The primary state educational agency is the Special Education Services Division of the Oklahoma State Department of Education.
OREGON: The primary state educational agency is the Office of Special Education of the Oregon Department of Education.
PENNSYLVANIA: The primary state educational agency is the Bureau of Special Education of the Pennsylvania Department of Education.
RHODE ISLAND: The primary state educational agency is the Office of Special Needs Services of the Rhode Island Department of Education.
SOUTH CAROLINA: The primary state educational agency is the Office of Special Education of the South Carolina Department of Education.
SOUTH DAKOTA: The primary state educational agency is the Office of Special Education of the Division of Education Resources and Services.
TENNESSEE: The primary state educational agency is the Division of Special Education of the Tennessee Department of Education.
TEXAS: The primary state educational agency is the Office for the Education of Special Populations of the Texas Education Agency.
UTAH: The primary state educational agency is the At Risk and Special Education Services division of the Utah State Office of Education.
VERMONT: The primary state educational agency is the Special Education Division of the Vermont Department of Education.
VIRGINIA: The primary state educational agency is the Division of Special Programs of the Virginia Department of Education.
WASHINGTON: The primary state educational agency is the Special Education Section of the Office of Superintendent of Public Instruction.
WEST VIRGINIA: The primary state educational agency is the Special Education Division of the West Virginia Department of Education.
WISCONSIN: The primary state educational agency is the Division for Learning Support, Equity and Advocacy of the Department of Public Instruction.
WYOMING: The primary state educational agency is the Special Education Programs Division of the Wyoming Department of Education.
The Complete IEP Guide: How to Advocate for Your Special Ed Child. Siegel, Lawrence M., Nolo Press, 1999.
Education Law. Rapp, James A., Lexis Publishing, 2001.
Special Education Law. 2nd ed., Guernsey, Thomas F., and Kathe Klare, Carolina Academic Press, 2001.
Special Education Law. 3rd ed., Rothstein, Laura F., Addison, Wesley, Longman, Inc., 2000.
U. S. Code, Title 20: Education, Chapter 33, Education of Individuals with Disabilities. U. S. House of Representatives, 1999. Available at .
The Council for Exceptional Children (CEC)
1110 North Glebe Road
Arlington, VA 22201-5704 USA
Phone: (703) 620-3660
Fax: (703) 264-9494
P.O. Box 22
Rockville Centre, NY 11571 USA
Phone: (516) 763-4787
U. S. Department of Education, Office of Special Education Programs
330 "C" Street, S.W., Mary Switzer Building
Washington, DC 20202 USA
Phone: (202) 732-1007
U. S. Department of Education, Office for Civil Rights
330 Independence Avenue, S.W.
Washington, DC 20201 USA
Phone: (202) 732-1213
Student Rights/Free Speech (Encyclopedia of Everyday Law)
Sixty years ago, when the U. S. Supreme Court decided its first free speech case involving students and the public schools, the idea that students had any right to free speech would have been considered laughable at best, dangerous at worst. At that time, school was considered a privilege to attend, and rules or regulations the school sought to enforce were untouchable. This generalization was collectively true at the elementary, secondary and college levels of education.
Student rights to free speech did not really become an issue until the Vietnam War, when more and more students found themselves at opposite ends of the political spectrum from their teachers and school administrators. The Supreme Court's 1969 decision in Tinker v. Des Moines Independent School District opened the floodgates to school free speech LITIGATION, and while court decisions have certainly gone back and forth between the right to free speech and the need to impose discipline and respect the feelings of all students, there has never been any attempt to go back to the strict free speech restrictions of the pre-Vietnam War era.
Public school free speech rights for students can be divided into those applying to elementary and secondary students and those dealing with college issues. Since college students are adults, the First Amendment situations dealt with are substantially different. Analyzing student free speech rights in this way can give a cohesive picture of those rights for students today.
Free Speech Rights in Public Schools
Free speech rights in public elementary and secondary schools have undergone a remarkable transformation in the past 30 years, from nonexistence to a perpetual tension between those rights and the need for schools to control student behavior in order to preserve the sanctity of the learning environment. Today, it would be most accurate to say that public schools students have some First Amendment rights in schools, but certainly not as many as adults do in the real world. Although Tinker v. Des Moines Independent School District was the landmark case that set forth the standards which current student free speech cases are judged, the first case that suggested students had some First Amendment rights was decided much earlieruring World War II, to be exact.
West Virginia State Board of Education v. Barnette
This 1943 case marked the first time the Supreme Court ever conceded students had First Amendment rights. During World War II, the West Virginia State Board of Education passed a law requiring all students to salute the flag and recite the Pledge of Allegiance. Several students and their parents who were members of the Jehovah's Witnesses challenged the policy, arguing their religion prevented them from swearing allegiance to anyone but God, and so they could not recite the Pledge of Allegiance. The Supreme Court decided the students were in the right, and on First Amendment grounds struck down the West Virginia ORDINANCE as violating the right of free expression.
" Educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual," said the Court, "if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." The Court determined that students had the right not to be coerced by school administrators to doing something that disagreed with their religious beliefs. Free speech in this case meant the right not to say something, in this case, the Pledge of Allegiance.
Tinker v. Des Moines Independent Community School District
After Barnette, the student First Amendment rights front was quiet in the courts, until the case of Tinker v. Des Moines Independent Community School District in 1969 shattered the peace and made sure there would be controversy for a long time to come. The Vietnam War was raging full force when the students at a Des Moines, Iowa, high school decided to wear black armbands to school one day to protest what they saw as an unjust struggle. The school administrators learned of their plan and passed a rule banning black armbands from the school and suspending any student caught wearing one. The students wore the armbands anyway, and as a result were suspended. They sued the school district.
In writing in favor of the students for the majority, Justice Abe Fortas wrote these iconic words: "It can hardly be argued that either students or teachers shed their constitutional rights to FREEDOM OF SPEECH or expression at the schoolhouse gate... School officials do not possess absolute authority over their students. Students in school as well as out of school are 'persons' under our Constitution. They are possessed of fundamental rights which the State must respect... In the absence of specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."
But Fortas added an important CAVEAT: conduct that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." In other words, not all student conduct is First Amendment protected, only that which does not disturb the classroom environment or invade the rights of others. This standard, also known as the "material and substantial disruption test," has basically remained the standard in which the school's right to prescribe free speech is examined at the secondary rank as well as at public colleges and universities.
After Tinker, a host of cases were brought at the lower court level litigating public school free speech issues. Many of these came down on the side of freedom of expression for students. Many lower courts found themselves asking, after Tinker, what student speech can in fact be regulated.
Bethel School District No. 403 v. Fraser
The Supreme Court finally attempted to set some limits on student First Amendment rights in the 1986 case of Bethel School District No. 403 v. Fraser. Matthew Fraser made a speech at an assembly full of obscenities and innuendoes. When school officials attempted to discipline him for his speech, he sued. The Supreme Court sided with the school.
The Court found that Fraser had failed the "substantial disorder" part of the Tinker test. CHIEFJUSTICE Warren Berger, writing for the majority, said that schools have a responsibility to instill students with "habits and manners of civility as values." The effect of Fraser's speech, suggested Berger, was to undermine this responsibility; therefore, he did not receive First Amendment protection for it. Not only can schools take into account whether speech is offensive to other students, said Berger, "the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the BOUNDARIES of socially appropriate behavior." Bethel served notice that the Supreme Court saw limitations on student free speech rights. The next big school First Amendment case decided by the court served to emphasize that point.
Hazelwood School District v. Kuhlmeier
The school newspaper at Hazelwood East High School in Missouri was courting controversy when it decided to publish an article on pregnancy among students naming names, as well as an article on students of divorced parents. The principal of the school censored both articles from the school paper. The student editors of the newspaper sued.
In 1988, the Supreme Court handed down its decision: a complete defeat for the students. The majority of the court claimed Tinker did not apply to this case, since the school newspaper was a school-sponsored activity. According to the Court, when an activity is school sponsored, school officials may censor speech as long as such CENSORSHIP is reasonably related to legitimate educational concerns. The Court went on to define these concerns broadly, stating that school officials would have the right to censor material that is "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences, or inconsistent with shared values of a civilized social order."
Hazelwood did distinguish between school-sponsored publications and other activities, and publications and activities that were not school sponsored, which the Court suggested would be given greater free-speech leeway. Nevertheless, the Hazelwood decision was clearly a defeat for student free speech rights. School officials were now allowed to censor school newspapers, as well as other school sponsored activities such as theatrical productions, in "any reasonable manner."
Elementary and Secondary Student Rights Since Hazelwood
Since Hazelwood, the Supreme Court has not tackled a non-religious free speech issue involving a public elementary or high school. Lower courts that have dealt with these issues have tended to follow Hazelwood's ruling pretty closely: a if a free speech case involves a school sponsored activity, school officials are given wide latitude. Since all but a few student free speech cases involve a school-sponsored activity, the effect has been that most free speech cases have gone against students, with some minor exceptions.
Lower courts have also determined that school officials have broad discretion at the elementary school level in controlling student speech, ruling in several cases that Tinker does not apply. However, most legal commentators believe that despite these developments, Tinker still remains in force, at least for high school students. School administrators are still required to show "material and substantial disruption" before limiting student speech in non-school sponsored activities.
Higher Education Free Speech Issues
Institutions of higher education have generally been held to have less control over student free speech rights than elementary and high school teachers and administrators. In part, this position reflects the fact that college students are adults. However, there have still been areas of controversy in post-secondary student free speech rights, generally having to do with funding issues. The latest area of controversy has been with so-called "hate codes," which ban certain types of speech considered offensive from college campuses.
Recognizing Student Groups
One way in which colleges and universities have traditionally imposed free speech restrictions on students is by determining which student groups they will recognize. Such recognition traditionally allows these groups to share in mandatory fees and receive space for offices and to hold meetings on college campuses. Generally speaking, colleges are held to have made available a "limited public forum" to such groups, and as such are limited in the restrictions they can impose.
In the 1973 case of Healy v. James, the Supreme Court established that a college or university could not refuse to recognize an organization simply because university officials had an unproven fear of school disruption. Healy applied the material and substantial disruption test of Tinker to the college environment and found that unless the school had a compelling reason to believe that a group, in this case, Students for a Democratic Society, would seriously interfere with learning on the campus environment, it could not deny recognition.
In 1981, the Court went further in the case of Widmar v. Vincent. Involving the decision by the University of Missouri to refuse to recognize and grant access to university property to a religious group, the Court ruled that the University's decision to do so, while allowing access to several secular based groups, violated the First Amendment. The Court's decision in Widmar effectively meant that any decision by a college to deny recognition to a particular group was going to be analyzed with strict scrutiny and most likely struck down.
While none of these cases has reached the Supreme Court, one of the most litigated issues of the past thirty years involving recognition of student groups has involved recognition of homosexual groups. Generally speaking, nearly all attempts by colleges to refuse to recognize gay groups have been held to violate these groups First Amendment rights.
Mandatory Student Fees
Mandatory student fees constitute another area in which colleges and universities have faced free speech issues. These fees are generally collected by colleges as part of student tuition, and then distributed to a wide variety of groups.
Colleges usually do not impose restrictions in terms of ideology on which groups receive these fees, but they have in the past denied funding to groups promoting a religious viewpoint. However, in 1995 in Rosenberger v. Rector of the University of Virginia, the Supreme Court struck down these restrictions at the University of Virginia and ruled the University could not silence the expression of selected viewpoints by denying the groups student fee money. The Rosenberger decision stated colleges have to be rigidly neutral in distributing student fee money and cannot discriminate on the basis of content or viewpoint without violating the First Amendment.
A related issue concerning mandatory student fees has been whether it violates a student's First Amendment rights to be forced to pay fees that fund groups with which the student disagrees. In 2000, in the case of Board of Regents v. Southworth, the Supreme Court determined that it does not, as long as the money is distributed in a viewpoint neutral fashion, and does not favor one viewpoint over another.
Hate Speech Codes
The most recent free-speech issue to hit college campuses involves so-called hate speech codes. These are codes passed by colleges that restrict speech considered offensive to other groups on campus, particularly speech that is believed to be racist or sexist.
While a case involving these hate speech codes has not yet reached the Supreme Court, lower courts have been undecided about allowing them to stand. For example, in Doe v. University of Michigan, in 1993, the United States Court for the Eastern District of Michigan struck down a policy passed by the University of Michigan regulating hate speech. The court found the policy overbroad and unconstitutionally vague. The university could not regulate speech "because it disagreed with the ideas or the messages sought to be conveyed," said the court, "nor because the speech was found to be offensive, even gravely so, by large numbers of people." Added the court: "These principles acquire a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution's educational mission." This has been the fate of speech codes that have been litigated, and as of this writing, not one has passed muster at the federal court level.
"The First Amendment and Higher Education Students: Part I: The Religion Cases." Zirkel, Perry, West Education Law Reporter, December, 1999.
"The First Amendment and Higher Education Students: Part II: The Secular Cases." Zirkel, Perry, West Education Law Reporter, April 2000.
"How Free is the Speech of Public School Students?" Rohr, Marc, Florida Bar Journal, June 2000.
"Injustice In Our Schools: Students' Free Speech Rights are not Being Vigilantly Protected." Lloyd, Heather K., Northern Illinois University Law Review, Spring, 2001.
The Law of Schools, Students and Teachers. Alexander, Kern, M. David Alexander, West Group, 1995.
"What's Next for Wayne Dick? The Next Phase of the Debate Over College Hate Speech Codes." Ohio State Law Journal, 2000.
Coalition For Student And Academic Rights (COSTAR)
Post Office Box 491
Solebury, PA 18963 USA
Phone: (215) 862-9096
Fax: (215) 862-9097
Freedom Forum First Amendment Center
1207 18th Ave. South
Nashville, TN 37212 USA
Phone: (615) 727-1600
Fax: (615) 727-1319
Primary Contact: Kenneth Paulson, Executive Director
Student Press Law Center (SPLC)
1815 N Fort Myer Drive, Suite 900
Arlington, VA 22209-1817 USA
Phone: (703) 807-1904
Primary Contact: Mark Goodman, Executive Director
Teacher's Unions/Collective Bargaining (Encyclopedia of Everyday Law)
In 1935 Congress passed the National Labor Relations Act (Wagner Act), which guarantees the right of private employees to form and join unions to bargain collectively. The vast majority of states have extended this right to public employees, including teachers at public school districts. Many states require school districts to bargain collectively with teachers who have formed a union. Other states require districts to meet with teachers' representatives. Some states expressly prohibit COLLECTIVE BARGAINING by public school teachers or other public employees.
A wide range of provisions may be negotiated in collective bargaining between teachers' unions and school districts. Some subjects are mandatory, while others are merely permitted or even prohibited. State law governs the appropriateness of subjects to be bargained. The following are some of the matters that are often the subject of this bargaining:
- Academic freedom
- Wages and salaries
- Hours, workload, and teaching responsibilities
- Tenure and probationary period
- Reclassification and reduction
- Evaluation procedures
- Grievance procedures
- Personnel files
- Student discipline
- Retirement benefits
- Sick leave
- Leaves and sabbaticals
Constitutional Considerations Regarding Unions
The First Amendment of the BILL OF RIGHTS provides: "Congress shall make no law . . . prohibiting . . . the right of people peaceably to assemble." This right, as applied to the states through the Fourteenth Amendment of the Constitution, has been interpreted to give teachers and other employees the right to free association, including the right to join a union, such as the National Education Association or the American Federation of Teachers. However, the Constitution does not grant teachers the right to bargain collectively with employers. This right is based on applicable provisions in state constitutions, federal statutes, or state statutes. Similarly, teachers do not have a constitutional right to strike, though other federal law or state law may permit teachers to strike.
Forming and Joining a Union to Bargain Collectively
Laws governing the representation process are often quite complex. This process prefaces the collective bargaining process and involves numerous considerations, including types of employees that will constitute a "bargaining unit," as well as the selection of an appropriate union to represent teachers. In the public school sector, state law affects both of these determinations. Some states exclude certain employees from a bargaining unit, including supervisors and individuals in management positions.
Teachers seeking to join for collective bargaining must define an appropriate bargaining unit. Under most labor relations statutes, only those individuals who share a "community of interests" may comprise an appropriate bargaining unit. Community of interests generally means that the teachers have substantial mutual interests, including the following:
- Wages or compensation
- Hours of work
- Employment benefits
- Training and skills
- Job functions
- Contact with other employees
- Integration of work functions with other employees
- History of collective bargaining
Many state statutes prescribe certain requirements or considerations with respect to bargaining units in the public sector. For example, some statutes require labor boards to avoid over-proliferation of bargaining units. Moreover, some statutes also set forth specific bargaining units, such as those for faculty, staff, maintenance, and similar distinctions.
The National Labor Relations Act and most state statutes provide formal processes for designation and recognition of bargaining units. If a dispute arises with respect to union representation, many states direct parties to resolve these dispute with the public employment relations board in that state. After the bargaining units are organized, members may file a petition with the appropriate labor board. The labor board will generally determine that JURISDICTION over the bargaining unit is appropriate, that the proposed bargaining unit is appropriate, and that a majority of employees approve the bargaining unit through an election. Several procedures are usually in place in the STATUTE and rules of the labor board to ensure that the vote is uncoerced and otherwise fair. After this election, the labor board will certify the union as the exclusive representative of the bargaining unit. Once a union is certified, usually for a one-year period, neither employees nor another union may petition for a new election.
Exclusivity and Good Faith in Bargaining Agreement
Once a union has been elected, both public and private school boards are bound to deal exclusively with that union. The elected union must bargain for the collective interests of the members of the bargaining unit. Both the school district and the union representing teachers must bargain in GOOD FAITH. The duty of parties to bargain in good faith is important in the collective bargaining process, since negotiations between school districts and unions can become intense and heated.
Interpretations of the term "good faith" under the National Labor Relations Act typically focus on openness, fairness, mutuality of conduct, and cooperation between parties. Many state statutes define "good faith" similarly, though some states provide more specific guidance regarding what constitutes good faith bargaining. Some states also provide a list of examples that are deemed instances of bargaining in BAD FAITH. Refusal to negotiate in good faith constitutes an UNFAIR LABOR PRACTICE under the National Labor Relations Act and many state statutes.
Terms of the Collective Bargaining Agreement
Most state statutes do not require schools to bargain on issues involving the educational policy of the school board. Many states require school boards and unions to bargain on "wages, hours, and terms and conditions of employment." Some states limit bargaining to such mandatory issues as benefits, insurance, or sick leave. When a state statute includes mandatory subjects, these subjects must be bargained over at the request of either the school board or the teachers' union. If either party refuses to negotiate over a mandatory subject, state statutes generally deem this a refusal to negotiate in good faith and, thus, an unfair labor practice.
In the absence of STATUTORY language specifying the scope of collective bargaining, teacher unions and school boards must consult relevant CASE LAW in that state to determine if the courts have set forth parameters. Other limitations to collective bargaining may also be present. A COLLECTIVE BARGAINING AGREEMENT, for example, cannot violate or contradict existing statutory law or constitutional provisions. Similarly, the collective bargaining agreement should recognize contract rights that may already exist through other agreements.
Negotiations may fail to lead to a completed agreement between a teachers' union and a school board. When good faith efforts fail to resolve the dispute or disputes between the parties, a legal impasse occurs. At the time impasse occurs, active bargaining between the parties is usually suspended.
Parties usually go through a series of options once an impasse has occurred, though public and private school teachers' options may differ. The first step after an impasse is declared is usually MEDIATION. When parties employ a mediator, the mediator acts as a neutral third party to assist the two sides in reaching a compromise. Mediators lack power to make binding decisions, and they are employed only as advisors. Many state statutes require use of mediators in the public sector upon declaration of an impasse. Private sector unions and schools may employ a federal mediator, though federal labor laws do not prescribe further options regarding dispute resolution.
If mediation fails, many state statutes require the parties to employ a fact-finder, who analyzes the facts of the bargaining process and seeks to recognize a potential compromise. The parties are not bound by the recommendations of the fact-finder, though it may influence public opinion regarding the appropriate resolution of the dispute. The recommendations are particularly influential in the public sector, where the school board is a government body consisting of elected officials, and teachers and other staff are public employees. However, this step in the process may not bring resolution to the dispute. In some states, fact-finding is the final stage of impasse resolution, leaving the parties to bargain among themselves.
A third option is ARBITRATION, though this is generally only employed in the public education sector. An arbitrator is a third party who performs functions similar to a fact-finder, yet the arbitrator's decision is binding on both parties. In several states, arbitration is permissive, meaning parties may submit their dispute to an arbitrator after fact-finding if they so desire. Some states mandate use of binding arbitration, often as an alternative to the right to strike.
If efforts for impasse resolution fail between a teachers' union and a school district, teachers may choose to strike to persuade or coerce the board to meet the demands of the union. A lockout by an employer is the counterpart to a strike. The right to strike in the private sector is guaranteed under the National Labor Relations Act. However, only about half of the states have extended this right to teachers in the public sector. These states usually limit this right under the respective labor laws. Where teachers do not have the right to strike, state statutes often impose monetary or similar penalties on those who strike illegally.
In states where strikes are permitted in the public sector, teachers often must meet several conditions prior to the strike. For example, a state may require that a bargaining unit has been certified properly, that methods for impasse resolution have been exhausted, that any existing collective bargaining agreement has expired, and that the union has provided sufficient notice to the school board. The purpose of such conditions is to give the parties an opportunity to avoid a strike, which is usually unpopular with both employers and employees.
Collective Bargaining in Higher Education
Collective bargaining in higher education differs somewhat from bargaining by primary and secondary school teachers. The National Labor Relations Act applies to many private institutions of higher education, which usually have much higher revenues and many more employees than private schools at the primary or secondary level. In many states, the same statutes that govern bargaining at the primary or secondary level govern collective bargaining in higher education. In other states, however, the statutes prescribe different rules with respect to state universities than they do with school districts. Governance of a public university is often much more complex than governance at a primary or secondary school, and the interests of the employees is often much more diverse among university faculty members and other employees than the interests of high school, middle school, or elementary school teachers and employees. Whereas a primary or secondary school may require only a minimal number of bargaining units, a large university may require several bargaining units to represent the various interests of the employees of the university.
State and Local Provisions Governing Collective Bargaining
The National Labor Relations Act (NLRA) governs labor relations in private schools, subject to some limitations. A teachers' union of a private schools should determine whether the NLRA applies to its school. State labor statutes generally govern labor relations between public school districts and teachers' unions. These provisions are summarized below. Collective bargaining statutes differ considerably from state to state, with some states providing much more guidance and specific rules than others.
ALABAMA: Teachers have a general right to join or refuse to join a labor organization.
ALASKA: Certified employees and school boards must follow specific procedures set forth in the statute. Under the state's Public Employment Relations Act, student representatives must be permitted to attend meetings and have access to documents in negotiations between a postsecondary education institution and a bargaining representative. The statute also permits a strike, with some limitations, by public school employees after mediation if a majority of employees vote by secret ballot to do so.
ARIZONA: Arizona has not enacted a collective bargaining statute governing public schools. Teachers in this state should consult relevant case law to determine when collective bargaining is permitted.
ARKANSAS: Teachers have a general right to organize and bargain collectively.
CALIFORNIA: An extensive statutory scheme is provided for governing collective bargaining between public schools and bargaining representatives, under the Public School Employee Relations Act. The statute limits the scope of representation to matters related to wages, employment hours, and other terms and conditions of employment. Employer and employee representatives are required to "meet and negotiate." If impasse is declared, mediation and, if necessary, fact-finding are required. Arbitration is permitted, but it is not required by statute.
COLORADO: Collective bargaining is permitted by statute. Teachers have a limited right to strike.
CONNECTICUT: A statute permits collective bargaining by members of the teaching profession. However, the state prohibits professional employees from striking and allows courts to enforce this prohibition.
DELAWARE: Public school employees are permitted to bargain collectively. Majority vote is required for union representation from all eligible members of the bargaining unit. The state prohibits strikes by teachers.
FLORIDA: The state constitution guarantees the right to collective bargaining but prohibits strikes by public employees. State statute defines "good faith bargaining," requiring parties to meet at reasonable times and places with the intent to reach a common accord.
HAWAII: Statute permits bargaining by all public employees. Statute defines certain bargaining units, including some supervisory employees. Mediation, fact-finding, and arbitration are provided in the statute. Strikes are permitted, but only in certain narrow circumstances.
IDAHO: Statute prescribes procedures for bargaining between a school board and certificated school employees.
ILLINOIS: Educational employees at all levels permitted to bargain under the Illinois Educational Labor Relations Act. However, several types of employees, including supervisors, managers, confidential employees, short-term employees, and students, are excluded from bargaining by statute. Impasse procedures include mediation and fact-finding. Arbitration is permitted. Strikes are permitted after several conditions set forth in the statute are met.
INDIANA: Certificated educational employees permitted to bargain by statute. Statute prescribes certain subjects that may be bargained and certain subjects that may be discussed. Strikes are prohibited.
IOWA: All public employees permitted to bargain collectively. Mediation and fact-finding required for impasse resolution. The state labor board at the request of the school board or union may order binding arbitration. Strikes are prohibited.
KANSAS: Statute permits bargaining by all public employees. Employer retains a number of rights, including right to direct work of employees. Strikes are prohibited.
LOUISIANA: No collective bargaining statute governs public schools. Teachers in this state should consult relevant case law to determine when collective bargaining is permitted.
MAINE: Statute permits collective bargaining by all public employees. Strikes by all state employees are prohibited.
MARYLAND: Statute permits bargaining by all certified and noncertified public school employees.
MASSACHUSETTS: Statute permits bargaining by all public employees. Strikes by public employees are prohibited.
MICHIGAN: Statute permits bargaining by public employees. Negotiations by teachers limited under some circumstances. Strikes by public employees are prohibited.
MINNESOTA: Statute permits bargaining by all public employees. State permits strikes only under certain circumstances, including completion of impasse resolution.
MISSISSIPPI: Strikes by teaches are illegal by statute.
MISSOURI: Teachers at public schools have the right to bargain collectively. Statute does not grant a right to strike.
MONTANA: Statute permits bargaining by all public employees. Courts have construed state statute to permit the right to strike.
NEBRASKA: Statute permits bargaining by all public employees. State restricts supervisors from joining a bargaining unit but permits some administrators, subject to restrictions, to join such a bargaining unit with teachers. Strikes by teachers are prohibited.
NEVADA: Statute permits bargaining by all public employees. Strikes by public employees are illegal by statute.
NEW HAMPSHIRE: Statute permits bargaining by all public employees. Impasse resolution procedures must be implemented within the time period specified by the statute. Strikes by public employees are illegal by statute.
NEW JERSEY: Statute permits bargaining by all public employees but excludes standards of criteria for employee performance from the scope of negotiation.
NEW YORK: Statute permits bargaining by all public employees. The statute limits the scope of negotiations to matters related to wages, employment hours, and other terms and conditions of employment. Arbitration is required by statute when an impasse is declared. Strikes by public employees are prohibited.
NORTH CAROLINA: Statute prohibits collective bargaining by all public employees. Statute also prohibits strikes by public employees.
NORTH DAKOTA: Statute permits bargaining by certificated school employees. Strikes by school employees are prohibited.
OHIO: Statute permits bargaining by public employees. Strikes by public employees are prohibited.
OKLAHOMA: Statute permits bargaining by all public school employees. Strikes by teachers are prohibited.
OREGON: Statute permits bargaining by all public employees. Impasse resolution procedures include mediation and fact-finding. Strikes are permitted after impasse resolution procedures have been implemented.
PENNSYLVANIA: Statute permits bargaining by all public employees under the Public Employee Relations Act. Statute limits which employees may be included in a single bargaining unit. Public school districts are not required to bargain over the "inherent management policy" of the district. Strikes by public employees are permitted after conditions set forth in the statute are met.
RHODE ISLAND: Statute permits bargaining by all certified public school employees. Strikes by public school employees are prohibited.
SOUTH DAKOTA: Statute permits bargaining by all public employees. Strikes by public employees are prohibited.
TENNESSEE: Negotiations by professional educators governed by the Education Professional Negotiations Act. Strikes by education professionals are prohibited.
TEXAS: Statute prohibits public employees from entering into a collective bargaining agreement. Statute also prohibits strikes by public employees.
UTAH: Statute permits union membership by public employees.
VERMONT: Statute permits bargaining by public school teachers, with representation election administered by the American Arbitration Association. Strikes by state employees are prohibited by statute.
VIRGINIA: Strikes by public employees are prohibited by statute.
WASHINGTON: Statute permits bargaining by public employees, including certified educational employees. Strikes by public employees are prohibited by statute.
WEST VIRGINIA: No collective bargaining statute governs public schools. Teachers in this state should consult relevant case law to determine when collective bargaining is permitted.
WISCONSIN: Statute permits bargaining by municipal employees. Impasse resolution procedures include mediation and arbitration. Strikes are permitted after impasse resolution procedures have been exhausted.
WYOMING: Statute permits right to bargain as a matter of PUBLIC POLICY.
Deskbook Encyclopedia of American School Law. Oakstone Legal and Business Publishing, 2001.
Education Law. Rapp, James A., Lexis Publishing, 2001.
Education Law. Imber, Michael, and Tyll Van Geel, Lawrence Erlbaum Associates, 2000.
The Law of Public Education. Reutter, E. Edmund, Jr., Foundation Press, 1994.
Private School Law in America. Oakstone Legal and Business Publishing, 2000.
School Law and the Public Schools: A Practical Guide for Educational Leaders. Essex, Nathan, Allyn and Bacon, 1999.
Teachers and the Law. Fischer, Louis, David Schimmel, and Cynthia Kelly, Addison Wesley Longman, 1999.
U. S. Code, Title 29: Public Health and Welfare, Chapter 7: Labor-Management Relations. U. S. House of Representatives, 1999. Available at
American Arbitration Association (AAA)
335 Madison Avenue, Floor 10
New York, NY 10017 USA
Phone: (212) 716-5800
Fax: (212) 716-5905
Primary Contact: William K. Slate II, President and Chief Executive Officer
American Association of School Administrators (AASA)
1801 N. Moore St.
Arlington, VA 22209 USA
Phone: (703) 528-0700
Fax: (703) 841-1543
Primary Contact: Paul Houston, Executive Director
American Federation of Teachers (AFT)
555 New Jersey Avenue, NW
Washington, DC 20001 USA
Phone: (202) 879-4400
Education Law Association (ELA)
300 College Park
Dayton, OH 45469 USA
Phone: (937) 229-3589
Fax: (937) 229-3845
Primary Contact: R. Craig Wood, President
Education Policy Institute (EPI)
4401-A Connecticut Ave., NW
Washington, DC 20008 USA
Phone: (202) 244-7535
Fax: (202) 244-7584
Primary Contact: Charlene K. Haar, President
National Education Association (NEA)
1201 16th Street, NW
Washington, DC 20036 USA
Phone: (202) 833-4000
Primary Contact: Bob Chase, President
Teachers' Rights (Encyclopedia of Everyday Law)
Teachers in the United States enjoy a number of rights pertaining to their employment, including recognition of certain freedoms, prohibition against certain forms of DISCRIMINATION, and significant protections against DISMISSAL from their position. These rights are derived from state and federal constitutional provisions, state and federal statutes, and state and federal regulations.
Constitutional provisions provide protection to teachers at public schools that are generally not available to teachers at private schools. Since public schools are state entities, constitutional restrictions on state action limit some actions that public schools may take with respect to teachers or other employees. Rights that are constitutional in nature include the following:
- Substantive and procedural due process rights, including the right of a teacher to receive notice of termination and a right to a HEARING in certain circumstances
- Freedom of expression and association provided by the First Amendment of the BILL OFRIGHTS
- Academic freedom, a limited concept recognized by courts based on principles of the First Amendment
- Protection against unreasonable searches and seizures by school officials of a teacher's PERSONAL PROPERTY provided by the Fourth Amendment
Though private school teachers do not generally enjoy as much of the constitutional protection as public school teachers, statutes may provide protection against discrimination. The CIVIL RIGHTS Act of 1964, for example, protects teachers at both public and private schools from racial, sexual, or religious discrimination. Private school teachers may also enjoy rights in their contracts that are similar to due process rights, including the inability of a private school to dismiss the teacher without cause, notice, or a hearing.
Every state requires that teachers complete certain requirements to earn a teacher's certificate in order to teach in that state. Most states extend this requirement to private schools, though some jurisdictions may waive this for certain sectarian or denominational schools. The requirements that must be satisfied and the procedures that must be followed to earn certification vary from state to state. Requirements generally include completion of a certified education program, completion of a student teaching program, acceptable performance on a standardized test or tests, and submission of background information to the appropriate state agency in charge of accreditation. Some states require more extensive physical and mental testing of teachers and a more extensive background check. Some states also require drug testing of applicants prior to certification. An increasing number of states now require teachers to complete a satisfactory number of continuing education credits to maintain certification.
Denial or Revocation of Teaching Certificate
Courts have held consistently that teaching certificates are not contracts. Thus, requirements to attain or maintain a certificate may be changed and applied to all teachers and prospective teachers. The certification process is administered by state certifying agencies in each state, and most of these agencies have been delegated significant authority with respect to the administration of these rules. Despite this broad delegation, however, the state agencies may not act arbitrarily, nor may these agencies deny or revoke certification on an arbitrary basis. Some state statutes provide that a certificate may be revoked for "just cause." Other common STATUTORY
grounds include the following:
- Immoral conduct or indecent behavior
- Violations of ethical standards
- Unprofessional conduct
- Misrepresentation or FRAUD
- Willful neglect of duty
Most states protect teachers in public schools from arbitrary dismissal through tenure statutes. Under these tenure statutes, once a teacher has attained tenure, his or her contract renews automatically each year. School districts may dismiss tenured teachers only by a showing of cause, after following such procedural requirements as providing notice to the teacher, specifying the charges against the teacher, and providing the teacher with a meaningful hearing. Most tenure statutes require teachers to remain employed during a probationary period for a certain number of years. Once this probationary period has ended, teachers in some states will earn tenure automatically. In other states, the local school board must take some action to grant tenure to the teacher, often at the conclusion of a review of the teacher's performance. Tenure also provides some protection for teachers against demotion, salary reductions, and other discipline. However, tenure does not guarantee that a teacher may retain a particular position, such as a coaching position, nor does it provide indefinite employment.
Prior to attaining tenure, a probationary teacher may be dismissed at the discretion of the school district, subject to contractual and constitutional restrictions. Laws other than those governing tenure will apply to determine whether a discharge of a teacher is wrongful. If a probationary teacher's dismissal does not involve discrimination or does not violate terms of the teacher's contract, the school district most likely does not need to provide notice, summary of charges, or a hearing to the teacher.
In the absence of a state tenure STATUTE, a teacher may still attain de facto tenure rights if the customs or circumstances of employment demonstrate that a teacher has a "legitimate claim of entitlement for job tenure." The United States Supreme Court recognized this right in the case of Perry v. Sindermann, which also held that where a teacher has attained de facto tenure, the teacher is entitled to due process prior to dismissal by the school district.
State laws do not govern the tenure process at private schools. However, a contract between a private school district and a teacher may provide tenure rights, though enforcement of these rights is related to the contract rights rather than rights granted through the state tenure statute.
Dismissal for Cause
A school must show cause in order to dismiss a teacher who has attained tenure status. Some state statutes provide a list of circumstances where a school may dismiss a teacher. These circumstances are similar to those in which a state agency may revoke a teacher's certification. Some causes for dismissal include the following:
- Immoral conduct
- Neglect of duty
- Substantial noncompliance with school laws
- CONVICTION of a crime
- Fraud or misrepresentation
Due Process Rights of Teachers
The Due Process Clause of the Fourteenth Amendment, like its counterpart in the Fifth Amendment, provides that no state may "deprive any person of life, liberty, or property, without due process of law." This clause applies to public school districts and provides the minimum procedural requirements that each public school district must satisfy when dismissing a teacher who has attained tenure. Note that in this context, due process does not prescribe the reasons why a teacher may be dismissed, but rather it prescribes the procedures a school must follow to dismiss a teacher. Note also that many state statutory provisions for dismissing a teacher actually exceed the minimum requirements under the Due Process Clause.
The United States Supreme Court case of Cleveland Board of Education v. Loudermill is the leading case involving the question of what process is due under the Constitution. This case provides that a tenured teacher must be given oral or written notice of the dismissal and the charges against him or her, an explanation of the EVIDENCE obtained by the employer, and an opportunity for a fair and meaningful hearing.
The law of contracts applies to contracts between teachers and school districts. This law includes the concepts of offer, acceptance, mutual ASSENT, and consideration. For a teacher to determine whether a contract exists, he or she should consult authority on the general law of contracts. This section focuses on contract laws specific to teaching and education.
Ratification of Contracts by School Districts
Even if a school official offers a teacher a job and the teacher accepts this offer, many state laws require that the school board ratify the contract before it becomes binding. Thus, even if a principal of a school district informs a prospective teacher that the teacher has been hired, the contract is not final until the school district accepts or ratifies the contract. The same is true if a school district fails to follow proper procedures when determining whether to ratify a contract.
Teacher's Handbook as a Contract
Some teachers have argued successfully that provisions in a teacher's handbook granted the teacher certain contractual rights. However, this is not common, as many employee handbooks include clauses stating that the handbook is not a contract. For a provision in a handbook to be legally binding, the teacher must demonstrate that the actions of the teacher and the school district were such that the elements for creating a contract were met.
Breach of Teacher Contract
Either a teacher or a school district can breach a contract. Whether a breach has occurred depends on the facts of the case and the terms of the contract. Breach of contract cases between teachers and school districts arise because a school district has terminated the employment of a teacher, even though the teacher has not violated any of the terms of the employment agreement. In several of these cases, a teacher has taken a leave of absence, which did not violate the employment agreement, and the school district terminated the teacher due to the leave of absence. Similarly, a teacher may breach a contract by resigning from the district before the end of the contract term (usually the end of the school year).
Remedies for Breach of Contract
The usual remedy for breach of contract between a school district and a teacher is monetary damages. If a school district has breached a contract, the teacher will usually receive the amount the teacher would have received under the contract, less the amount the teacher receives (or could receive) by attaining alternative employment. Other damages, such as the cost to the teacher in finding other employment, may also be available. Non-monetary remedies, such as a court requiring a school district to rehire a teacher or to comply with contract terms, are available in some circumstances, though courts are usually hesitant to order such remedies. If a teacher breaches a contract, damages may be the cost to the school district for finding a replacement. Many contracts contain provisions prescribing the amount of damages a teacher must pay if he or she terminates employment before the end of the contract.
Collective Bargaining by Teachers
Teachers' contractual rights often arise through
COLLECTIVE BARGAINING through teachers' unions. For more information regarding collective bargaining by teachers, see Education: Teacher's Unions/Collective Bargaining.
Freedom from Discrimination
The EQUAL PROTECTION Clause of the Fourteenth Amendment of the Constitution protects teachers at public schools from discrimination based on race, sex, and national origin. These forms of discrimination are also barred through the enactment of Title VII of the Civil Rights Act of 1964, which was amended in 1972 to include educational institutions. This law provides that it is an unlawful employment practice for any employer to discriminate against an individual based on the race, color, religion, sex, or national origin of the individual. Title IX of the Education Amendments of 1972 provides protection against discrimination based on sex at educational institutions that receive federal financial assistance. Title VII and IX also prohibit SEXUAL HARASSMENT in the workplace.
A teacher who has been subjected to discrimination has several causes of action, though proof in some of these cases may be difficult. A teacher may bring a cause of action under section 1983 of Title 42 of the United States Code for deprivation of rights under the Equal Protection Clause (or other constitutional provision). However, to succeed under this cause of action, the teacher would need to prove that the school had the deliberate intent to discriminate. Similarly, a teacher bringing a claim under Title VII must demonstrate that the reasons given by a school for an employment decision were false and that the actual reason for the decision was discrimination.
Teachers in public schools have limited freedoms in the classroom to teach without undue restrictions on the content or subjects for discussion. These freedoms are based on rights to freedom of expression under the First Amendment of the Bill of Rights. However, the concept of academic freedom is quite limited. The content taught by a teacher must be relevant to and consistent with the teacher's responsibilities, and a teacher cannot promote a personal or political agenda in the classroom. Factors such as the age, experience, and grade level of students affect the latitude in which a court will recognize the academic freedom of a teacher.
Freedom of Expression
A leading case in First Amendment JURISPRUDENCE regarding protected forms of expression is Pickering
v. Board of Education. This case involved a teacher whose job was terminated when he wrote to a local newspaper an editorial critical of the teacher's employer. The Supreme Court held that the school had unconstitutionally restricted the First Amendment rights of the teacher to speak on issues of public importance. Based on Pickering and similar cases, teachers generally enjoy rights to freedom of expression, though there are some restrictions. Teachers may not materially disrupt the educational interest of the school district, nor may teachers undermine authority or adversely affect working relationships at the school.
Freedom of Association
Similar to rights to freedom of expression, public school teachers enjoy rights to freedom of association, based on the First Amendment's provision that grants citizens the right to peaceful assembly. These rights generally permit public school teachers to join professional, labor, or similar organizations; run for public office; and similar forms of association. However, teachers may be required to ensure that participation in these activities is completely independent from their responsibilities to the school.
Freedom of Religion
The First Amendment and Title VII of the Civil Rights Act of 1964 provide protection against religious discrimination by school districts against teachers. Teaches may exercise their religious rights, though there are certain restrictions to such rights. This existence of restrictions is particularly relevant to the public schools, since public schools are restricted from teaching religion through the Establishment Clause of the First Amendment. Thus, for example, a teacher is free to be a practicing Christian, yet the teacher cannot preach Christianity in the classroom.
Teachers enjoy limited rights to personal privacy, though courts will often support disciplinary action taken by a school district when a teacher's private life affects the integrity of the school district or the effectiveness by which a teacher can teach. Thus, for example, a teacher may be terminated from his or her position for such acts as ADULTERY or other sexual conduct outside marriage, and courts will be hesitant to overrule the decisions of the school board.
The Age Discrimination in Employment Act of 1967, with its subsequent amendments, provides protection for teachers over the age of 40 against age discrimination. Under this act, age may not be the sole factor when a school district terminates the employment of a teacher. If a teacher charges a school district with age discrimination, the school district has the burden to show that some factor other than age influenced its decision.
The Pregnancy Discrimination Act of 1978 provides protection for teachers who are pregnant. Under this act, a school district may not dismiss or demote a pregnant teacher on the basis of her pregnancy, nor may a district deny a job or deny a promotion to a pregnant teacher on the basis of her pregnancy.
State and Local Laws Regarding Teachers' Rights
Each state provides laws governing education agencies, hiring and termination of teachers, tenure of teachers, and similar laws. Teachers should consult with statutes and education regulations in their respective states, as well as the education agencies that enforce these rules, for additional information regarding teachers' rights. Moreover, teachers should review their contracts, COLLECTIVE BARGAINING AGREEMENT, and/or employee handbook for specific provisions that may have been included in an agreement.
The information below summarizes the grounds on which a state may revoke or suspend a teaching certificate or on which a district may dismiss or suspend a teacher.
ALABAMA: Teacher's certificate may be revoked for immoral conduct, or unbecoming or indecent behavior. Teachers may be dismissed or suspended on similar grounds, except that tenured teachers may not be suspended or terminated on political grounds.
ALASKA: Teacher's certificate may be revoked or suspended for incompetency, immorality, substantial noncompliance with school laws or regulations, violations of ethical or professional standards, or violations of contractual obligations. Teachers may be dismissed or suspended by local school boards on similar grounds.
ARIZONA: Teacher's certificate may be revoked or suspended for immoral or unprofessional conduct, evidence of unfitness to teach, failure to comply with various statutory requirements, failure to comply with student disciplinary procedures, teaching sectarian books or doctrine, or conducting religious exercises. Teachers may be dismissed or suspended on similar grounds. Probationary employees may be dismissed when they are unsuited or not qualified. Permanent employees may be discharged only for cause, and are entitled to due process.
ARKANSAS: Teacher's certificate may be revoked for cause. Teachers may be dismissed for any cause that is not arbitrary, capricious, or discriminatory.
CALIFORNIA: Permanent teachers may be dismissed for immoral or unprofessional conduct, dishonesty, incompetency, evident unfitness for service, a physical or mental condition unfitting for a teacher to instruct or associate with children, persistent violation of school laws or regulations, conviction of a FELONY or crime involving moral turpitude, or alcoholism or drug abuse rendering teacher unfit for service. Teacher's certificate may be revoked or suspended on the same grounds as those for dismissal or suspension.
COLORADO: Teacher's certificate may be annulled, revoked, or suspended if certificate has been obtained through fraud or misrepresentation; teacher is mentally incompetent; teacher violates statutes or regulations regarding unlawful sexual behavior, use of controlled substances, or other violations. Teachers may be dismissed on similar grounds.
CONNECTICUT: Teacher's certificate may be revoked if certificate has been obtained through fraud or misrepresentation; teacher has neglected duties or been convicted of a crime involving moral turpitude; teacher has been neglectful of duties; or other due and sufficient cause exists. Teachers may be dismissed on similar grounds.
DELAWARE: Teacher's certificate may be revoked for immorality, misconduct in office, incompetency, willful neglect of duty, or disloyalty. Teachers may be dismissed or suspended on similar grounds.
FLORIDA: Teacher's certificate may be revoked or suspended for obtaining certificate by fraud, incompetence, gross immorality or an act involving moral turpitude, revocation of a teaching certificate in another state, conviction of a crime other than a minor traffic violation, breach of teaching contract, or delinquency in CHILD SUPPORT obligations. Teachers may be dismissed or suspended on similar grounds.
GEORGIA: Teachers may be dismissed for incompetency, insubordination, willful neglect of duties, immorality, encouraging students to violate the law, failure to secure and maintain necessary educational training, and any other good and sufficient cause.
HAWAII: Teacher's certificate may be revoked for conviction of crime other than traffic offense or if the employer finds that teacher poses a risk to the health, safety, or well being of children. Teacher may be dismissed for inefficiency, immorality, willful violations of policies and regulations, or other good and JUST CAUSE.
IDAHO: Teacher's certificate may be revoked for gross neglect of duty, incompetence, breach of contract, making a false statement on application for certificate, conviction of a crime involving moral turpitude or drugs or a felony offense involving children. Grounds for revocation of a teacher's certificate are also grounds for dismissal.
ILLINOIS: Teacher's certificate may be revoked or suspended for immorality, health condition detrimental to students, incompetence, unprofessional conduct, neglect of duty, willful failure to report CHILD ABUSE, conviction of certain sex or narcotics offenses, or other just cause. Teachers may be dismissed on similar grounds.
INDIANA: Teacher's certificate may be revoked for immorality, misconduct in office, incompetency, willful neglect of duty, or improper cancellation of a contract. Permanent and semi-permanent teachers may be dismissed on similar grounds.
IOWA: Teacher's certificate may be revoked for any cause that would have permitted refusal to grant the certificate. Teachers may be dismissed for just cause.
KANSAS: Teacher's certificate may be revoked for immorality, gross neglect of duty, annulling a written contract, or any other cause that would have justified refusal to grant the certificate.
KENTUCKY: Teacher's certificate may be revoked for immorality, misconduct in office, incompetency, willful neglect of duty, or submission of false information. Teachers may be dismissed or suspended on similar grounds.
LOUISIANA: Permanent teachers may be dismissed for incompetence, dishonest, willful neglect of duty, or membership or contribution to an unlawful organization.
MAINE: Teacher's certificate may be revoked for evidence of child abuse, gross incompetence, or fraud. Teachers may be dismissed on similar grounds.
MARYLAND: Teachers may be dismissed or suspended for immorality, misconduct in office, insubordination, incompetency, or willful neglect of duty.
MASSACHUSETTS: Teacher's certificate may be revoked for cause. Teachers may be dismissed for inefficiency, incapacity, conduct unbecoming of a teacher, insubordination, failure to satisfy teacher performance standards, or other just cause.
MICHIGAN: Teacher's certificate may be revoked or suspended for conviction of SEX OFFENSES and crimes involving children. Teachers may be dismissed for reasonable and just causes or failure to comply with school law.
MINNESOTA: Teacher's certificate may be revoked or suspended for immoral character or conduct, failure to teach the term of a contract without just cause, gross inefficiency, willful neglect of duty, failure to meet requirements for licensing, or fraud or misrepresentation in obtaining a license. Teachers may be dismissed on similar grounds.
MISSISSIPPI: Teachers may be dismissed or suspended for incompetency, neglect of duty, immoral conduct, intemperance, brutal treatment of a pupil, or other good cause.
MISSOURI: Teacher's certificate may be revoked or suspended for incompetency, cruelty, immorality, DRUNKENNESS, neglect of duty, annulling a written contract without consent from the local board, or conviction of a crime involving moral turpitude. Teachers may be dismissed on similar grounds.
MONTANA: Teacher's certificate may be revoked or suspended for false statements on an application for the certificate, any reason that would have disqualified the person from receiving a certificate, incompetency, gross neglect of duty, conviction of a crime involving moral turpitude, or nonperformance of an employment contract. Teachers may be dismissed on similar grounds.
NEBRASKA: Teacher's certificate may be revoked for just cause, including incompetence immorality, intemperance, cruelty, certain crimes, neglect of duty, unprofessional conduct, physical or mental incapacity, or breach of contract. Teachers may be dismissed for just cause, as defined by statute.
NEVADA: Teacher's certificate may be revoked for immoral or unprofessional conduct, unfitness for service, physical or mental incapacity, conviction of a crime involving moral turpitude or sex offenses, advocacy of the overthrow of the government, persistent refusal to obey rules, or breach of a teaching contracts. Teachers may be dismissed or suspended on similar grounds.
NEW HAMPSHIRE: Teachers may be dismissed for immorality, incompetence, failure to conform to regulations, or conviction of certain crimes.
NEW JERSEY: Teacher's certificate may be revoked if teacher is a noncitizen; certificate may be suspended if teacher breaches contract. Teachers may be dismissed on similar grounds.
NEW MEXICO: Teacher's certificate may be revoked or suspended for incompetency, immorality, or any other good and just cause. Teachers may be dismissed for good cause.
NEW YORK: Teacher's certificate may be revoked if teacher is unfit to teach due to moral character or if teacher fails to complete a school term without good cause. Teachers may be dismissed on similar grounds.
NORTH CAROLINA: Teachers may be dismissed for inadequate performance, immorality, insubordination, neglect of duty, physical or mental incapacity, HABITUAL or excessive use of alcohol or other controlled substances, or conviction of a crime involving moral turpitude.
NORTH DAKOTA: Teacher's certificate may be revoked or suspended for any cause that would permit refusal to issue the certificate, incompetency, immorality, intemperance, cruelty, commission of a crime, refusal to perform duties, violation of professional codes, breach of teacher contract, or wearing religious garb. Teachers may be dismissed on similar grounds.
OHIO: Teacher's certificate may be revoked for intemperance, immorality, incompetence, NEGLIGENCE, or other conduct unbecoming of the position. Teachers may be dismissed on similar grounds, including assisting a student to cheat on an achievement, ability, or proficiency test.
OKLAHOMA: Teachers may be dismissed for immorality, willful neglect of duty, cruelty, incompetency, teaching disloyalty to the U. S. government, moral turpitude, or criminal sexual activity.
OREGON: Teacher's certificate may be revoked or suspended for conviction of certain crimes (including sale or possession of a controlled substance), gross neglect of duty, gross unfitness, or wearing religious dress at school. Teachers may be dismissed or suspended on similar grounds.
PENNSYLVANIA: Teacher's certificate may be revoked for incompetency, cruelty, negligence, immorality, or intemperance. Teachers may be dismissed on similar grounds.
RHODE ISLAND: Teacher's certificate may be revoked, or teacher may be dismissed, for good and just cause.
SOUTH CAROLINA: Teacher's certificate may be revoked for just cause, including incompetence, willful neglect of duty, willful violation of state board rules, unprofessional conduct, drunkenness, cruelty, crime, immorality, conduct involving moral turpitude, dishonesty, evident unfitness, or sale or possession of narcotics. Teachers may be dismissed on similar grounds.
SOUTH DAKOTA: Teacher's certificate may be revoked or suspended for any cause that would have permitted issue of the certificate, violation of teacher's contract, gross immorality, incompetency, flagrant neglect of duty; or conviction of a crime involving moral turpitude. Teachers may be dismissed on similar grounds.
TENNESSEE: Teacher's certificate may be revoked if teacher is guilty of immoral conduct. Teachers may be dismissed or suspended on similar grounds, including incompetence, inefficiency, neglect of duty, unprofessional conduct, and insubordination.
TEXAS: Teacher's certificate may be revoked or suspended if teacher's activities are in violation of the law, the teacher is unworthy to instruct the youth of the state, the teacher abandons his or her contract, or the teacher is convicted of a crime. Teachers may be dismissed or suspended on similar grounds.
UTAH: Teacher's certificate may be revoked or suspended for immoral or incompetent conduct, or evidence of unfitness for teaching. Teachers may be dismissed for cause.
VERMONT: Teacher's certificate may be revoked for cause. Teachers may be dismissed for just and sufficient cause. Teachers may be suspended for incompetence, conduct unbecoming of a teacher, failure to attend to duties, or failure to carry out reasonable orders and directions of superintendent or board.
VIRGINIA: Teachers may be dismissed for incompetency, immorality, noncompliance with school laws or rules, certain DISABILITY, and convictions of certain crimes. Teachers may be suspended for good and just cause when the safety or welfare of children are threatened.
WASHINGTON: Teacher's certificate may be revoked for immorality, violation of a written contract, intemperance, a crime involving child neglect or abuse, or unprofessional conduct. Teachers may be dismissed for sufficient cause.
WEST VIRGINIA: Teacher's certificate may be revoked for drunkenness; untruthfulness; immorality; unfitness due to physical, mental or moral defect; neglect of duty; using FRAUDULENT, unapproved, or insufficient credit; or other cause. Teachers may be dismissed or suspended on similar grounds.
WISCONSIN: Teacher's certificate may be revoked for incompetency, immoral conduct, or conviction of certain felonies. Tenured teachers may be dismissed on similar grounds.
WYOMING: Teacher's certificate may be revoked or suspended for incompetency, immorality, other reprehensible conduct, or gross neglect of duty. Teachers may be dismissed on similar grounds.
Deskbook Encyclopedia of American School Law. Oakstone Legal and Business Publishing, 2001.
Education Law. Rapp, James A., Lexis Publishing, 2001.
Education Law, Second Edition. Imber, Michael, and Tyll Van Geel, Lawrence Erlbaum Associates, 2000.
The Law of Public Education, Fourth Edition. Reutter, E. Edmund, Jr., Foundation Press, 1994.
Private School Law in America, Twelfth Edition. Oakstone Legal and Business Publishing, 2000.
School Law and the Public Schools: A Practical Guide for Educational Leaders. Essex, Nathan, Allyn and Bacon, 1999.
Teachers and the Law. Fischer, Louis, David Schimmel, and Cynthia Kelly, Addison Wesley Longman, 1999.
U. S. Code, Title 42: Public Health and Welfare, chapter 21: Civil Rights. U.S. House of Representatives, 1999. Available at:
American Association of School Administrators (AASA)
1801 N. Moore Street
Arlington, VA 22209 USA
Phone: (703) 528-0700
Fax: (703) 841-1543
Primary Contact: Paul Houston, Executive Director
American Federation of Teachers (AFT)
555 New Jersey Avenue, NW
Washington, DC 20001 USA
Phone: (202) 879-4400
Education Law Association (ELA)
300 College Park
Dayton, OH 45469 USA
Phone: (937) 229-3589
Fax: (937) 229-3845
Primary Contact: R. Craig Wood, President
Education Policy Institute (EPI)
4401-A Connecticut Ave., NW
Washington, DC 20008 USA
Phone: (202) 244-7535
Fax: (202) 244-7584
Primary Contact: Charlene K. Haar, President
National Education Association (NEA)
1201 16th Street, NW
Washington, DC 20036 USA
Phone: (202) 833-4000
Primary Contact: Bob Chase, President
Truancy (Encyclopedia of Everyday Law)
Truancy, also called skipping school, is defined by all states as unexcused absences from school without the knowledge of a parent or GUARDIAN. It has been romanticized through literature and films by characters such as Tom Sawyer and Ferris Bueller as the harmless mischief juveniles do on sunny days. But the fact is juveniles who are school-aged are required by all states to attend school, whether that school be public, private, parochial, or some other educational forum. Truancy is, therefore, a STATUS OFFENSE as it only applies to people of a certain age. The school age of a juvenile varies from state to state, with most states requiring attendance either from age six to age 17 or from age five to 18. There are a number of exceptions, such as Pennsylvania, which denotes school age as between eight and 17 and Illinois which denotes school age as between seven and 16.
The number of days required in order for a juvenile to be labeled "truant," varies by school, school district, and state. State legislation tends to provide some guidelines for school districts by setting a maximum number of absences allowed. School districts then tighten these guidelines. For example, in Pennsylvania, a truant is a school-aged juvenile who is absent from school more than three times after a notice of truancy has been sent to the juvenile's home. In Louisiana, a juvenile is deemed truant after the fifth unexcused absence from school, provided the absences occur in a single month. Many school districts define truancy as any unexcused absence, where unexcused means the student has left school property without parental or school permission.
The Rational for Truancy Laws
Compulsory education began about sixty years ago and was strongly influenced by labor unions who were trying to keep children from working. The participation of children in the labor force kept adult wages low. Compulsory attendance in schools also lifted some authority of parents over their children to the state, as parents could no longer force their children to work. The state's authority in school attendance was underscored in Prince v. Massachusetts (1944). In this case, the Supreme Court decided that the state had the right to uphold CHILD LABOR LAWS and parents' authority could not preempt that of the state. Therefore, children had to attend school whether their parents supported education or not.
In recent research conducted by the Office for Juvenile Justice and Delinquency Prevention (OJJDP, 2001), links between truancy and other, more serious forms of delinquency have been delineated. For example, the links between truancy and substance abuse, VANDALISM, auto theft, and gang behavior have all been established in criminology literature (see Loeber & Farrington, 2000 for details). The link between truancy and later, violent offending has been established in studies that examine male criminality (e.g., see Ingersoll & LeBoeuf, 1997). In turn, adults who were truants as juveniles tend to exhibit poorer social skills, have lower paying jobs, are more likely to rely on welfare support, and have an increased likelihood of INCARCERATION (Hawkins & Catalano, 1995).
Residents have also put pressure on schools and lawmakers to tighten truancy laws as groups of young people loitering in public during school hours often appear threatening. In Tacoma, Washington, an increase in truancy was associated with an increase in juvenile perpetrated property crimes, such as BURGLARY and vandalism. This increase in juvenile daytime crime led to a program targeting the enforcement of truancy laws in this state.
Those school districts with the highest truancy rates also have the lowest academic achievement rates. This link is usually established through truancy policies which deem automatic failure in courses where students are regularly absent. Therefore, students who do not attend school on a regular basis are unlikely to graduate from high school. Between 1992 and 2002 there have been approximately three million young adults each year aged between 16 and 24 who have either failed to complete high school or not enrolled in high school (National Center for Education Statistics, 2001). This number represents about 11 percent of young adults in the United States. Within this group, there are a disproportionate number of minority students; for example, 30 percent of Hispanics are not completing high school (NCES, 2001). This number increases to 44 percent if the students counted were born outside of the United States (NCES, 2001). Thus, the recency of IMMIGRATION seems to have important implications in the study of high school dropout rates. Researchers have linked this correlation to parental attitudes toward education. However, coming from countries where education is not highly valued, parents may not encourage their children to attend school, increasing the truancy rate and also increasing the drop out rate (Alexander et al., 1997).
Failure at high school not only affects the individual, but it also affects society. Affected students cannot attend college, are more likely to have low paying jobs and feel political apathy; they then can constitute a loss in tax revenue, may experience health problems, and place a strain on social services (Rosenfeld, Richman and Bowen, 1998). A recent U. S. Department of Labor study shows that 6.7 percent of adults with no high school diploma are likely to be unemployed, while only 3.5 percent of adults with a high school diploma are likely to be unemployed. With a bachelor's degree, only 1.8 percent of adults are likely to be unemployed (U. S. Dept. of Labor, 1999).
Extent of the Truancy Problem
Although there are currently no national statistics available on the extent of the truancy, many states and cities do keep their own statistics which are often used to influence policy. A recent national study of school principals revealed that truancy was listed as one of the top five concerns by the majority of respondents (Heaviside, et al., 1998). In Chicago, a study conducted during the 1995-1996 school year indicated that the average 10th grader missed six weeks of instruction (Roderick et. al., 1997). Recent OJJDP research suggests that the number of truants are highest in inner city, public schools, where there are large numbers of students and where a large percentage of the student population participate in the free lunch program (OJJDP, 2001).
In terms of court processing, the number of truancy cases referred to juvenile courts is fairly small; for example, in 1998, about 28 percent of referred status offenses were truancies, which is an 85 percent increase compared with the previous ten years. However, this number is expected to increase dramatically given recent changes to truancy laws. Interestingly, the OJJDP (2001) reports that females are just as likely as males to be adjudicated for truancy.
Correlates of Truancy
The following factors have been found to have associations with truancy in that the likelihood of truancy is increased given the presence of these variables. First are family factors, such as lack of supervision, physical and psychological abuse, and failure to encourage educational achievement. Second are school factors which can range from inconsistent enforcement of rules to student boredom with curriculum. Economic factors are a third correlate, and these could be factors such as high family mobility or parents with multiple jobs. Last are student characteristics such as drug and alcohol abuse, ignorance of school rules, and lack of interest in education.
Enforcing Truancy Laws
In all states, the first body responsible for enforcing truancy laws is usually the school. School officials, such as school truancy officers, teachers, and school principals, refer truancy cases to juvenile court JURISDICTION. However, if truant individuals are found in a public area, they may be detained by police or taken to a detention facility.
Arizona was the first state in the United States to implement and enforce a get-tough approach to truancy laws. Research on truancy in Arizona began in the early 1990s. Pima County had the highest truancy rate in the state during this time period; in fact, truants from this county made up half of all truants in the state. Because of the extent of the problem, Pima County began a program called ACT Now (Abolish Chronic Truancy) which aimed to strictly enforce state and district truancy laws and offer a diversion program to address the root causes of truancy. The program also sought to provide serious sanctions for both juveniles and their parents if truancy persisted or if conditions specified by the diversion program were not met. School districts, school administrators, law enforcement personnel, and community agencies are involved in this program.
Once a student has one unexcused absence from school, a letter is sent home to the student's parents explaining the consequences of truancy. After a third unexcused absence, the juvenile is referred to the Center for Juvenile Alternatives (CJA) which makes a recommendation to the juvenile court. A letter is sent to the juvenile's parents explaining the diversion program or the alternative court imposed sanctions, and the parents decide which course of action they would prefer.
The diversion program consists of counseling, parenting classes, support groups, etc. Very often parents have no idea that their child is missing school, or they do not seem to care. Support groups and classes teach parents about the value of education and also help parents communicate more effectively with their teenagers. In their report, the CJA will identify which type of intervention is best for the family, and the juvenile and his or her parents will be referred accordingly. Both parents and the juvenile must sign an agreement promising to abide by the conditions of the diversion program. Successful completion of the program results in the truancy case being dismissed.
The ACT Now program has been formally evaluated by the American Prosecutors Research Institute (APRI), and each school district involved in the program has shown a steady decrease in the number of truancies each year. In the district with the highest percentage of truancies, ACT Now helped reduce truancies by 64 percent between 1996 and 1998. This program and versions of it are financially supported by the Department of Justice and have been implemented in many other states.
Getting Tough on Parents
Many states also hold parents accountable for their children's truancy, and Arizona was the first state to implement such laws. The rationale behind this movement was to coerce parents into taking an active role in their children's education and for all parties to take truancy laws and school attendance seriously. In Virginia, parents can be fined and jailed for failure to adequately supervise school-aged children, which includes making sure they are attending school. In Pennsylvania, parents can also be fined and jailed if they have not taken reasonable steps to ensure their child is attending school. In Texas and many other states, similar laws have recently been passed.
Truancy and Home Schooling
The popularity of home schooling has increased dramatically between 1997 and 2002, and the Department of Education estimates that between 700,000 and two million children were home schooled during the 1999-2000 academic year. This fact has a large impact on the enforcement of truancy laws, as home schooled children may be out in public during school hours and could be apprehended by police. In many states, the right to home school children is protected by the state's constitution. For example, the constitution of the state of Oklahoma reads:
THE LEGISLATURE SHALL PROVIDE FOR THE COMPULSORY ATTENDANCE AT SOME PUBLIC OR OTHER SCHOOL, UNLESS OTHER MEANS OF EDUCATION ARE PROVIDED, OF ALL THE CHILDREN IN THE STATE WHO ARE SOUND IN MIND AND BODY, BETWEEN THE AGES OF EIGHT AND 16 YEARS, FOR AT LEAST THREE MONTHS IN EACH YEAR.(Article XIII)
Many states, like Oklahoma, have not yet resolved how home schooling affects the enforcement of truancy laws. For example, in Illinois, there are currently no provisions for home schooled children under the law, and these children would be in violation of the state's truancy laws if those laws were enforced. The only exceptions to the truancy laws, that is, those circumstances in which school-aged individuals are not required to attend a public school in Illinois are: those attending private or parochial schools, those who are physically or mentally unable to attend school, those females who are pregnant or have young children, those who are lawfully employed, and those individuals who are absent for religious holidays.
The regulation of home schooling thus varies greatly by state. Some states have very little regulation and do not require parents to contact the state to inform officials that children will be home schooled. Some of these states are Arkansas, Indiana, Illinois, Oklahoma, Michigan, Missouri, and New Jersey. Other states, such as California, Arizona, New Mexico, Alabama, and Kentucky, have low regulation and require that parents who are home schooling their children report this fact to the state. Other states, such as Virginia, North Carolina, South Carolina, Georgia, Colorado, Oregon, Florida, Tennessee, Arkansas, and Louisiana, have moderate regulation in which parents must report test scores and student evaluations to the state. Some states, such as New York, Pennsylvania, West Virginia, Maine, Rhode Island, Massachusetts, Washington, and Utah, require parents to submit test scores and evaluations of students and also professional evaluations of teachers and curriculum for approval. The level of regulation in each state affects how truancy laws can be enforced. If the state has no record of students being home schooled, it is difficult to enforce truancy laws across the board.
Examples of State Truancy Laws
Although states vary in their responses to truancy, their laws in defining truancy are fairly similar. Below are some examples for various states.
CALIFORNIA: Any school-aged child who is absent from school without valid excuse three full days in one school year or tardy or absent for more than any 30-minute period during one school day on three occasions during the school year or any combination thereof is considered truant and should be reported to the supervisor of the school district.
CONNECTICUT: A truant is a child between the ages of five and 18 who is enrolled in any public or private school and has four unexcused absences in a month or 10 in any school year. A HABITUAL truant is a child of the same age who has 20 unexcused absences from school during a school year.
ILLINOIS: A truant is defined as any child subject to compulsory schooling and who is absent from school unexcused. Absences that are excused are determined by the school board. A chronic or habitual truant is a school-age child who is absent without valid cause for 10 percent out of 180 consecutive days. The truant officer in Illinois is responsible for informing parents of truancy and referring the case to juvenile court.
LOUISIANA: Any student between the ages of seven and seventeen is required to attend school. A student is considered truant when the child has been absent from school for five school days in schools operating on a semester system and for ten days in schools not operating on a semester basis. A student may be referred to juvenile court for habitual absence when all reasonable efforts by school administrators have failed and there have been five unexcused absences in one month. The school principal or truancy officer shall file a report indicating dates of absences, contacts with parents, and other information.
VIRGINIA: Any student between the ages of five and 18 is subject to compulsory school attendance. After a pupil has been absent for five days during the school year without a valid excuse, a notice is sent to parents outlining the consequences of truancy. A conference with school officials and parents is arranged within fifteen school days of the sixth absence. Once a truant has accumulated more than seven absences during the school year, the case will be referred to juvenile and domestic relations court.
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Dropout Rates in the United States: 1999. National Center for Education Statistics, 2001. Available on-line at , [Accessed October 28, 2001].
From First Grade Forward: Early Foundations of High School Dropout. Alexander, Karl L., Entwisle, Doris R and Horsey, Carrie S. (1997). Sociology of Education, 70, (2), 87-107.
Habits Hard to Break: A New Look at Truancy in Chicago's Public High Schools. M. Roderick, J. Chiong, M. Arney, K. DaCosta, M. Stone, L. Villarreal-Sosa and E. Waxman. Research in Brief: University of Chicago, School of Social Service Administration, 1997.
Manual to Combat Truancy. U. S. Department of Education and the Department of Justice, 1996. Available online at http://www.ed.gov/pubs/Truancy/index.html [Accessed October 28, 2001].
Reaching Out to Youth Out of the Education Mainstream. S. Ingersoll and D. LeBoeuf. Office of Juvenile Justice and Delinquency Prevention, 1997.
Risk Focused Prevention: Using the Social Development Strategy. J. D. Hawkins, and R. Catalano. Developmental Research and Programs Inc., 1995.
Supportive Communication and School Outcomes for Academically At-Risk and Other Low Income Middle School Students. Lawrence, B. Rosenfeld, Jack, M. Richman, and Gary, L. Bowen (1998). Communication Education, 47, (4), 309-325.
Truancy Reduction: Keeping Students in School. Myriam L. Baker, Jane N. Sigmon and M. Elaine Nugent. Office of Juvenile Justice and Delinquency Prevention, 2001.
Violence and Discipline Problems in U. S. Public Schools: 1996-1997. S. Heaviside, C. Rowand, C. Williams and E. Farris. U. S. Department of Education, 1998.
Young Children who Commit Crime: Epidemiology, Developmental Origins, Risk Factors, Early Interventions, and Policy Implications. Richard Loeber and David Farrington (2000). Development and Psychopathology, 12 (4), 737-762.
Home School Legal Defense Association
P.O. Box 3000
Purcellville, VA 20134-9000 USA
Kansas City In School Truancy Prevention Project
1211 McGee Street
Kansas City, MO 64106 USA
Phone: (816) 418-7946
National Home Education Research Institute
P.O. Box 13939
Salem, OR 97309 USA
Phone: (503) 364-1490
Fax: (503) 364-2827
1101 South Race Street
Denver, CO 80210 USA
Phone: (303) 777-5870
National Center for Juvenile Justice
710 Fifth Avenue, Suite 3000
Pittsburgh, PA 15219 USA
Phone: (412) 227-6950
Fax: (412) 227-6955
Office of Juvenile Justice and Delinquency Prevention U. S. Department of Justice
Washington, DC USA
U. S. Department of Education, OERI At Risk
555 New Jersey Avenue NW, Room 610
Washington, DC 20005 USA
Phone: (202) 208-5521
Types Of Schools (Encyclopedia of Everyday Law)
For parents and students alike, the type of education available within their community is critically important. Many people, in fact, choose the communities in which they live on the basis of the quality of the local schools. Some parents choose to send their children to public school, believing that public education provides a more well-rounded experience for children. Others feel that private education offers students a more varied and creative course of study. Those who wish to instill within their children a sense of their religion may choose religious (often called parochial) schools; these schools provide religious instruction along with the general academic program. In recent years, a growing number of parents have turned to homeschooling, which they feel allows them more control over what and how their children learn.
Each system has its advantages and drawbacks; choosing the best system is determined by a number of considerations. For example, a child who lives in an affluent community with a well-respected public school system will likely want to take advantage of this free education. A child in a poorer community, or one who needs more individualized attention, may fare better in a private school, where classes are smaller and teachers can focus more fully on specific issues. Children in small rural communities, who may have to travel dozens of miles to go to school, may profit more by being home-schooled, or they may be able to hook up to schools via technology (the concept known as distance learning). How a child is educated depends on his or her abilities and needs, the expectations of parents, and the available choices. For parents and children to make informed choices, they need to understand what each type of school offers.
In an address to educators in 1948, the statesman Adlai Stevenson said, "The most American thing about America is the free common school system." The concept of providing free public education to all children was born in Boston in 1635 with the establishment of a public institution that still exists today as the Boston Latin School. By the time of the American Revolution, free public schools were quite common in the northern colonies; in the South, schooling was done primarily at home until after the Civil War. By the end of the nineteenth century, public education was available to children across the country. Then, as now, the quality of education varied, sometimes dramatically, from region to region. Today, public school curricula are regulated by state and local governments.
According to the National Education Association (NEA), there were 14,568 public school districts in the United States in academic year 1998-99. There are approximately 89,500 public schools in the United States; nearly 63,000 of those schools are elementary (kindergarten through sixth grade). The rest are mostly secondary (middle and high schools), although a small number of schools go from kindergarten to 12th grade (K-12). These schools employ some 2.7 million teachers and serve more than 53 million students.
Public schools are funded primarily by state and local sources; the federal government historically has provided less than 10 percent of public education funding. Each school district has a board of education or similar administrative group to oversee the schools' performance; each state has an education department that sets academic standards for the school districts to follow.
The public school experience varies widely from district to district. A large city such as New York or Los Angeles has to address the education of hundreds of thousands of students with extraordinarily diverse needs. A small rural school district may have only a few hundred students who all come from a similar background. Affluent suburban communities with more local funding may pay higher salaries to attract the best teachers; this makes for strong suburban school districts but leaves poorer areas under-served. State governments do try to REDRESS this imbalance (by giving more funds to poorer districts, for example) but often they meet with limited success.
Private and Parochial Schools
Unlike public schools, private schools do not rely on government funding. They are supported by tuition, by grants from charitable organizations, and in the case of religious schools, by religious institutions. There are approximately 27,500 private schools in the United States, with some 395,000 teachers serving about 6 million students. Private schools include nonsectarian schools and religious schools covering many denominations (the term parochial usually denotes Catholic schools but can mean other Christian or Jewish institutions).
Tuition costs for private schools vary. As of 2002, figures available from the National Center for Education Statistics (NCES), indicated that nonsectarian private schools were the most expensive and Catholic schools were the least. Still tuition for school runs into tens of thousands of dollars over the course of a child's school years. Why would parents send their children to private schools when they have the option of sending them to public school for free?
For some, private school represents a stronger curriculum than public education can offer and a more personalized one as well. Public schools are generally much larger than private schools, and class size is also larger. Fewer students per teacher means that the teacher can spend more time one-on-one with each student.
The atmosphere in private and parochial schools is also different, sometimes vastly so, from that of public schools. A private school can focus its attention on a student's particular talents, such as music or science. As for parochial schools, they can provide religious instruction that no public school would be allowed to offer. This religions instruction is included in a curriculum that is generally strong academically.
Not merely the educational experience but also the social experience weighs in the minds of many parents as well. Schools that are unsafe (which could included anything from a building with antiquated electrical and heating systems to a school with a high rate of juvenile crime) make for a difficult atmosphere in which to learn. In general, these problems are more likely to develop in a public school than in a private one.
Teacher salaries tend to be lower in private schools, although some private schools offer teachers perks such as free meals and even free housing on campus. This gives private institutions more of a competitive edge against public systems that can pay quite well. Parents often perceive this as a sign that private school teachers are more committed to teaching than some of their public school counterparts.
Charter schools are most simply described as a cross between public and private schools. These schools are often created by teacher and parent groups who are dissatisfied with the bureaucracy that surrounds public education. The rules and regulations that shape a public school district, charter proponents argue, can cripple innovation in the schools. The result may be an uninspired and uninspiring educational program that fails to challenge students or meet their true needs.
The first charter school in the United States opened in St. Paul, Minnesota in 1993. As of the beginning of the school year in September 2001 there were some 2,400 charter schools operating in 34 states and the District of Columbia, serving 576,000 students. (Three additional states, Indiana, New Hampshire, and Wyoming, have charter school laws on the books but had not established charter schools by 2001.)
Typically, a charter school will be proposed by a group consisting of teachers, parents, and community leaders. Local and state organizations provide funding for charter schools, approve their programs, and monitor their quality. Charter schools are "public" in this sense, but unlike traditional public schools they are freed from traditional regulation. In general, the number of students per charter school is lower than in a traditional school, and there are also more teachers per pupil.
Proponents of charter schools claim that the structure not only enhances autonomy from oppressive bureaucracy but also increases accountability. Because they are monitored carefully, they have little room to do poorly. If they fail to accomplish their goal, they are closed. Moreover, because parents actively choose to send their children to charter schools, the school administrators know that if they fail to provide what they promise, parents and students will go elsewhere.
Opponents of charter schools say that they are merely private schools cloaked in a public-school mantle, allowing like-minded individuals to opt out of the public school system at the expense of those schools. This makes it even harder, they maintain, for public schools to excel. proponents counter that charter schools create a healthy competition that forces school districts to offer more and better services to students in their traditional schools.
One of the more controversial ideas in the public school arena is whether to privatize public school districts. This issue gained national attention in 2001 when the state of Pennsylvania initiated plans to take over the Philadelphia city school district and contract with a private firm to administer the city's schools. The move met with widespread opposition despite the fact that Philadelphia public schools had been in decline for some time. The main problem with allowing a private firm to take control of a public school district, say opponents, is that the emphasis will be on cutting costs rather than enhancing education. For-profit firms claim that they improve schools by streamlining and cutting unnecessary costs. School privatization has been tried in some districts, but the long-term benefits or drawbacks remain to be seen.
A growing number of parents are choosing to turn away from public and private schools and instead educate their children in their own homes. In 1999, the most recent year for which NCES has figures, some 850,000 students between the ages of 5 and 17 were being schooled at home. Approximately 697,000 of these children are schooled completely in their homes; the remaining 153,000 are schooled primarily in their homes but also go part-time to a traditional school.
In general, the makeup of a home-schooling family is fairly traditional. Most of these families (80 percent) are two-parent families, and most of them have three or more children. Typically, one parent works while the other assumes the primary role of teacher, although the other parent may also be involved in the education process as well.
The most common reason parents give for home-schooling (a reason voiced by nearly all of them) is that they feel they can provide a better education for their children at home than the schools can. They may feel that the local school's curriculum is inadequate, or that it focuses on the wrong areas. Some parents feel that traditional schools fail to teach values to children; they school their children at home to provide a strong moral education. Or they may school their children at home for religious reasons; they may feel that the public school system is too secular for their tastes. A small number of parents turn to home schooling because they cannot afford to send their children to a private school.
In some cases, parents who home-school their children seek and receive a degree of public school support in the form of supplies, curricular assistance, and allowing home-schoolers to participate in the school's extracurricular programs. Frequently, the parents of home-schoolers do not avail themselves of these resources, preferring to keep the education centered around the home classroom. Home-schooled children are of course required to demonstrate that they are learning at the proper educational level, and parents are expected to provide structured classes, homework, tests, and projects.
Before the twentieth century, education for many young people consisted of learning a trade, which usually meant serving as an apprentice to an experienced tradesman. Apprentices learned to be blacksmiths or cabinetmakers or carpenters. In some smaller towns, children were apprenticed to professions such as law. Since the early twentieth century public high schools have offered a version of these apprenticeships in the form of vocational education (also called occupational education). This includes shop and home economics courses, as well as courses geared toward specific occupations such as electrician or automobile mechanic or cosmetologist.
Although the average high school student takes fewer course-hours in occupational education today than in the 1980s (4.68 in 1982; 3.99 in 1998), the more specific programs held steady in the number of course-hours students devoted.
Distance learning (the use of telecommunications technologies to broadcast classes from a central location to remote locations) has become quite popular among colleges and universities, particularly with adult or continuing education courses. Since the late 1980s, it has also been used in elementary and high schools. Through a program supported by the Department of Education called the Star Schools Program, some 1.6 million students in all 50 states were receiving long-distance instruction by the beginning of the twenty-first century.
The benefits of distance learning are clear: access to lessons not otherwise available. This arrangement is useful for students living in remote rural areas, but it also proves effective in urban locations. While a distance learning experience is not the same as a person-to-person lesson, it opens up avenues for new experiences. Moreover, many distance learning programs are interactive and thus engage children in a way designed to hold their attention. As technology becomes more efficient and less expensive, it is likely that distance learning will make up a growing element of elementary and secondary education.
Charter Schools: The Parents' Complete Guide. Birkett,
Frederick A., Prima Publishing, 2000.
Education in a Free Society. Machan, Tibor R., Hoover Institution Press, 2000.
How to Pick a Perfect Private School. Unger, Harlow G., Facts on File Publications, 1999.
The Manufactured Crisis: Myths, Frauds, and the Attack on America's Public Schools. Berliner, David C., and Bruce J.Biddle, Addison-Wesley, 1995.
Parents' Guide to Alternatives in Education. Koetzsch, Ronald E., Shambhala, 1997.
The Struggle for Control of Public Education: Market Ideology versus Democratic Values. Engel, Michael, Temple University Press, 2000.
Unofficial Guide to Homeschooling. Ishizuke, Kathy, IDG Books Worldwide, 2000.
Center for Education Reform
1001 Connecticut Avenue NW, Suite 204
Washington, DC 20036 USA
Phone: (202) 822-9000
Fax: (202) 822-5077
Primary Contact: Jeanne Allen, President
National Association of Elementary School Principals (NAESP)
1615 Duke Street
Alexandria, VA 22314 USA
Phone: (703) 684-3345
Primary Contact: Vincent L. Ferrandino, Executive Director
National Association of Secondary School Principals (NASSP)
1904 Association Drive
Reston, VA 20191 USA
Phone: (703) 860-0200
Primary Contact: Gerald N. Tirozzi, Executive Director
National Education Association (NEA)
1201 16th Street NW
Washington, DC 20036 USA
Phone: (202) 833-4000
Primary Contact: Bob Chase, President
National Center for Education Statistics (NCES)
1990 K Street NW
Washington, DC 20006 USA
Phone: (202) 502-7300
Primary Contact: Gary W. Phillips, Acting Commissioner
U. S. Department of Education
400 Maryland Avenue SW
Washington, DC 20202 USA
Phone: (800) 872-5327
Primary Contact: Rod Paige, Secretary of Education
Violence And Weapons (Encyclopedia of Everyday Law)
Two major issues are central to the school safety debateourth Amendment rights in SEARCH AND SEIZURE and the extent of a school's authority in controlling the school environment and its occupants. Although all states impose minimal guidelines, each school and school district is responsible for its own governing policies. Setting the standard for all states is the 1994 Improving America's Schools Act passed which amended the Elementary and Secondary Education Act of 1965. Title IV of the Improving Schools Act, called Safe and Drug-Free Schools and Communities, outlines legislation and initiatives to make schools safe. For example, one of the goals of national education was to have drug-free and weapons-free school campuses by the year 2000 and, further, to offer students "a disciplined environment that is conducive to learning."
Violence in school has received much public attention during the past several years because incidents of school violence in which students and/or teachers have died of gunshot wounds have occurred across the United States from Springfield, Oregon to Edinboro, Pennsylvania. However, according to various sources, the number of violent crimes committed on school grounds has been declining for several years, following decreases in other violent crime (see Agnew, 2000; Office of Juvenile Justice and Delinquency Prevention (OJJDP), 1999; U. S. Department of Education (USEd), 1999). In fact, students are three times more likely to be victims of a non-fatal violent crime outside of school than they are at school (Agnew, 2000). The one type of violent crime committed on school grounds that has increased is the number of multiple victim homicides (OJJDP, 1999; USEd, 1999), but the odds of a student being a victim of such a HOMICIDE are about one in three million (Brezina & Wright, 2000).
The school setting is unique in that it forces large groups of people together for extended periods of time in small areas. Many state legislatures have recognized that certain acts committed under these circumstances have potentially greater harmful effects to the health and safety of people and have implemented legislation accordingly.
Weapons at School
Violence at school often involves the use of weapons. Traditionally, weapons prohibited on school grounds referred to firearms and explosives, but recently, many states have widened these guidelines. For example, in Kansas, weapons include firearms, explosive devices, bludgeons, metal knuckles, throwing stars, electronic stun guns, specific types of knives (such as switchblades and butterfly knives), and any weapon that "expels a projectile by the action of an explosive" (e.g., gunpowder). Other states have gone much further than these specifications. Georgia defines weapons in its school laws as items complying with these descriptions:
any pistol, revolver, or any weapon designed or intended to propel a missile of any kind, or any dirk, bowie knife, switchblade knife, ballistic knife, any other knife having a blade of three or more inches, straight-edge razor, razor blade, spring stick, metal knuckles, blackjack, any bat, club, or other bludgeon-type weapon, or any flailing instrument consisting of two or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain, or any disc, of whatever configuration, having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart, or any weapon of like kind, and any stun gun or taser (Code 1-33).
The only instances in which all states allow weapons and firearms on school property are when individuals are authorized to do so; for example, school police officers may be armed and teachers having instructional purposes. Many people wonder how many youth have access to weapons. Recent data indicate that about 30 percent of young individuals own a firearm (Brezina & Wright, 2000). Further, a national study conducted by the Center for Disease Control revealed that in 1997 about one-fifth of high school students reported carrying a weapon to school.
Ramifications of Possessing Weapons on School Grounds
In nearly all states, possession of a firearm on school property is a class C or class D FELONY. In addition to having the right to file criminal charges, all school districts have an automatic expulsion policy for students caught with any type of weapon on school property which action can be appealed on a case-by-case basis. Such policies are mandated by the Gun-Free Schools Act of 1994. Special Education students are protected from automatic expulsion under the Individuals with Disabilities Education Act (IDEA). A special education student who is found to be possessing a weapon on school grounds is subject to removal from the school to an interim setting for a period of up to 45 days. During this time, the incident is studied, and if the possession of the weapon was not due to the student's DISABILITY, that student can be punished in the same way as a non-special education student.
Some states, for example, Kansas and Florida, have also adopted laws that allow for the revocation of students' driver's licenses if they are found guilty of possessing a firearm or drugs on school property. Kansas goes so far to say that the state can revoke a student's driver's license for any behavior engaged in by a student that was likely to result in serious bodily injury to others at school.
Holding Parents Accountable
In nearly all states, parents can be held accountable for damages resulting from their child's criminal actions on school property, provided that child is living with the parents. This law means that parents of any student who vandalizes school property or attacks other students or teachers can be held liable. In addition, parents who allow minors access to firearms can be prosecuted on criminal charges, such as contributing to the delinquency of a minor.
Holding Teachers Accountable
Many states have adopted laws that require teachers to report a crime that they know or have reason to believe was committed on school property or at a school activity. Failure to do so may result in criminal prosecution for a MISDEMEANOR. Lacking uniformity on this issue, school districts vary greatly with regard to making criminal charges.
Limitations on School Authority
Another area that has been debated by the courts is the extent of school authority. Under the Gun Free School Zones Act of 1995, a firearm could not be brought within 1,000 feet of a school. The Supreme Court, in a rare decision that overturned this Congressional Act, decided in United States v. Lopez (1995) that it was unconstitutional to declare schools gun-free zones in this manner. Further, the court held that claims of increased school violence could not override Second Amendment constitutional rights.
There have been other challenges to school authority under the Fourteenth Amendment which allows for due process. Students must be given notification of charges against them, in addition to an opportunity to defend themselves, and to be represented when being expelled or suspended. A written school policy on the appeals process is recommended.
Constitutional Rights of Students
With the advent of increased availability of drugs and weapons for juveniles during the last twenty years, search and seizure laws have been challenged by many students who felt their constitutional rights were violated by unreasonable searches at school. Prior to 1968, the constitutional rights of students took a back seat to the doctrine of LOCO PARENTIS, which meant that the school and its officials took the place of the parent. Under this philosophy, students had few constitutional rights. The first serious challenge to this philosophy came in 1969 when the Supreme Court decided in Tinker v. De Moines Independent School District that students should be allowed to wear black arms bands as a symbol of protest against the United States involvement in the Vietnam war. The court held that this was an expression of free speech and therefore was a First Amendment right.
Fourth Amendment protection against search and seizure was argued in the courts for years and was finally resolved in New Jersey v. T.L.O. (1985). In this case, a teacher had searched a student's possessions after the student was found smoking a cigarette. Subsequently, the teacher found marijuana and drug paraphernalia. There were two major questions raised by this case. First was whether students who are searched on school property have Fourth Amendment privileges and, second, what determines PROBABLE CAUSE for a search. In other instances, a WARRANT is required before a search can be conducted.
The courts held that Fourth Amendment Privileges do extent to students, but school authorities can search without a warrant provided the search is reasonable in inception and reasonable in scope. However, in order for law enforcement personnel to conduct a search, a warrant must be procured. This point becomes important in light of the number of schools which have their own police officers. Thus, in order for a search to take place, there must be the following conditions:
reasonable grounds for suspecting that the search will turn up EVIDENCE that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonable and related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the INFRACTION. (New Jersey v. T.L.O. 1985, p. 733)
Whether a search is reasonable in inception has been interpreted as a search based on reasonable suspicion, which is very similar to probable cause. The extent of reasonable suspicion must be much higher for more intrusive searches. For example, a search of a student's locker requires a low level of reasonable suspicion, but in order for a student to be strip searched, there must be a much higher degree of reasonable suspicion. A body cavity search can only be conducted by law enforcement personnel after a warrant has been procured. Further, in order for the search to comply with the law, the search must be in proportion to the suspicion. A student should not be strip searched to find ten dollars that has been stolen.
One example of a situation in which a court determined a search to be reasonable is Martinez v. School District No. 60 (1992) in which a school dance monitor asked two students to blow on her face after observing them acting in a manner consistent with DRUNKENNESS. A second example is the Matter of Gregory M. (1992/1993) in which a security guard ran his hand along a student's school bag to feel for a gun after the bag had made an unusual noise on contact with the student's locker.
Locker searches are also affected by individual school policies. Some schools maintain that lockers are school property and, therefore, school administrators can conduct random searches of lockers. The courts have held this is permissible provided that students are notified of this policy in writing.
Metal Detectors in Schools
Metal detectors have been installed in schools around the country as a means of decreasing the number of weapons being brought to school. A metal detector is a type of mass search which has been challenged as a violation of Fourth Amendment privileges. The courts in several states, such as Florida, Louisiana and Tennessee, have held that metal detectors are not violating Fourth Amendment rights and are held to the same legal standards as metal detectors in other facilities, such as airports. Metal detectors are, therefore, considered administrative searches and may provide reasonable suspicion for further individualized searches. Some states have also noted that there is a need to violate privacy to some degree in order for the safety of the greater group. California has stipulated that a written policy detailing policies and the use of metal detectors be given to students and should be based on information about the dangers of students' weapons at school.
Use of Canine Units
The Supreme Court has not ruled on the constitutional limits of using drug-sniffing dogs in schools at the time of this publication, and the lower courts have had differing opinions on whether such tactics are in violation of the reasonable suspicion test. Some courts have held that a sniffer dog does not constitute a search at all, with the landmark case being Doe v. Renfrow (1980). Students who were singled out by dogs in this case were subjected to a strip search, which the Supreme court held was unreasonable. In Horton v. Goose Creek Independent School District (1982) courts held that sniffing a person was a search and that such a search was a violation of Fourth Amendment rights unless there was reasonable suspicion as dictated by T.L.O.
The debate over whether schools can implement mandatory, random drug tests to students using either urine analysis or blood testing has also been widely debated in the courts. In Jones v. McKenzie (1986) the courts held that drug tests violate a student's reasonable expectation of privacy. Since this case, the courts have been careful to distinguish between mandatory and voluntary drug testing, since the latter requires consent of the student.
Student athletes have long been subjected to different rules. Many athletic programs are required by their governing bodies to perform random, mandatory drug testing on athletes using urine analysis. In 1998, the U. S. Supreme Court declined to hear a constitutional challenge to a random drug testing policy of students involved in extracurricular activities that was implemented in an Indiana school district (Todd v. Rush County). This decision not to hear the case meant that the Supreme Court endorses random drug testing of student athletes and students involved in other extracurricular activities. This decision was in keeping with the courts ruling in Vernonia School District 47J v. Action (1995). In this case, the Supreme Court held that urine testing of student athletes was reasonable on the grounds that school order and discipline outweigh individual students' privacy. Further, student athletes should have a reduced expectation of privacy given that their grades and medical history are subject to scrutiny, and they are often placed in a communal setting for dressing and showering.
Searches of students' vehicles that are parked on school grounds are subject to the T.L.O. guidelines. However, like locker searches, it is prudent for school districts to have a written policy regarding vehicle searches and even some type of parking permit system that clearly outlines the school's policy on vehicle searches.
The following is an extract from a Virginia School district statement on policies on search and seizure.
FAIRFAX COUNTY (VIRGINIA): Desks, lockers, and storage spaces are the property of the school and the principal may conduct general inspections of those areas periodically in the presence of a witness. These areas, in addition to vehicles parked on school property may be searched on an individual basis if there is reasonable grounds to believe there may be illegal drugs, weapons, stolen property or other CONTRABAND. The search must be conducted for maintaining order and discipline at the school rather than for criminal prosecution. Reasonable effort will be made to locate the student prior to the search. Further, students believed to have any contraband on their person may be searched and metal detectors may be used. Personal searches may extend to pockets and the removal of outer garments and also to pocketbooks and backpacks. (Regulation 2601.14P, G)
Gang Related Violence and Drug Availability at School
The Department of Justice implemented the School Crime Supplements (SCS) to the National Crime Victimization Survey in 1995. Part of the SCS addressed the extent to which gangs and gang violence were present at schools. A little over half of the students interviewed in 1995 who attended school in areas with populations between 50,000 and one million, reported gang activity at their schools (Howell & Lynch, 2000). In terms of victimization at schools where gang activity is prevalent, 54 percent of students reported they had been victimized. The study also demonstrated an association between gangs at school and drug availability, as 69 percent of students said drugs such as marijuana, PCP, LSD, crack cocaine, and Ecstacy were easy to get hold of if there were gang activity present at school. In all states, students caught with drugs on school grounds are subject to criminal prosecution under the laws of the state.
Each state receiving Federal funds under the Elementary and Secondary Education Act of 1965 (ESEA) must comply with the Gun-Free Schools Act of 1994 which prohibits firearms to be brought within 1,000 feet of school property. Although part of this legislation was not upheld by the U. S. Supreme Court in United States v. Lopez, the legislation still stands, as various other GUN CONTROL bills have been debated but not passed as of 2002. The following is an extract from the Gun-Free Schools Act of 1994.
SECTION 14601. Gun Free Requirements . . . each State receiving Federal funds under this Act shall have in effect a State law requiring local educational agencies to expel from school for a period of not less than one year a student who is determined to have brought a weapon to a school.
State laws repeat stipulations required by this Act almost verbatim, for example, the following Florida provision:
FLORIDA: a person who exhibits a sword, sword cane, firearm, electric weapon or device, destructive device, or other weapon, including a razor blade, box cutter, or knife... at any school-sponsored event or on the grounds of facilities of any school, school bus, or school bus stop, or within 1,000 feet of the real property that comprises a public or private elementary school, middle school, or secondary school, during school hours or during the time of a sanctioned school activity, commits a felony of the third degree. (790.115)
Laws regarding weapons at school may change in the near future as school safety bills being debated by different states are acted upon. For more information, contact the appropriate state's Department of Education.
1999 Annual Report on school safety. U. S. Department of Education and U.S. Department of Justice, Government Printing Office, Washington, D.C., 1999.
Going armed in the school zone. Brezina, Timothy, & Wright, James D. Forum for Applied Research and Public Policy, 15, (4), 82-87, 2000.
Juvenile offenders and victims: 1999 National Report. Office of Juvenile Justice and Delinquency Prevention. Government Printing Office, Washington D.C., 1999.
School crime: A national crime victimization survey report. Bureau of Justice Statistics, Washington D.C.: Government Printing Office, 1991.
Strain theory and school crime. Robert Agnew. In Of crime and criminality, Sally Simpson (Ed). Pine Forge Press, Thousand Oaks, CA, 2000.
Youth Gangs in Schools. James C. Howell and James P. Lynch. Juvenile Justice Bulletin, August 2000.
Florida Department of Education
Turlington Building, 325 West Gaines Street
Tallahassee, FL 32399-0400 USA
The National Center for Juvenile Justice
710 Fifth Avenue, Suite 3000
Pittsburgh, PA 15219 USA
Phone: (412) 227-6950
Fax: (412) 227-6955
The National Drug Strategy Network, Criminal Justice Policy Foundation
1225 I Street NW, Suite 500
Washington, D.C. 20005-3914 USA
Phone: (202) 312-2015
Fax: (202) 842-2620
The National Resource Center for Safe Schools
101 SW Main Street, Suite 500
Portland, OR 97204 USA
Phone: (503) 275-0131
Fax: (503) 275-0444
The Office of Juvenile Justice and Delinquency Prevention, U. S. Department of Justice
Washington, DC USA
160 E. Virginia Street #290
San Jose, CA 95112 USA
Phone: (408) 286-8505
Fax: (408) 287-8748
U. S. Department of Education
400 Maryland Ave., SW
Washington, DC 20202-0498 USA
Violence Policy Center
1140 19th Street, NW, Suite 600
Washington, DC 20036