Sources of Law and Courts

How do these readings ( Chapter 1 of LaMorte and Corkill et al. (n.d.) article) change the view of the role of a school or organizational leader and implementation of the law?

LaMorte, M. (2012). School law: Cases and concepts. 10th edition. Pearson Education: London, England.

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CHAPTER 1: Educational Governance: Sources of Law and the Courts

Governance in the United States is based on the notion that we are “a nation of laws and not of men.” In other words, we are governed by the rule of law and not by the whims of those in power who openly flout the law. Consequently, those involved in making and enforcing public school policy should ensure that their actions are lawful. Educational policy may not be enforced arbitrarily or capriciously but must be based on such appropriate legal authority as federal or state constitutional or statutory provisions, state board of education or state department of education regulations, case law, or local school board policy.

However, there are several forces operating that at times make it difficult for those who administer public schools to function in a lawful manner. These forces include a system of government comprised of several levels and corresponding branches that bear on the educational enterprise; changing and sometimes conflicting laws or policies emanating from these levels and branches; and a climate of legal uncertainty that sometimes surrounds controversial educational issues that become highly politicized.

Under the U.S. system of government, the three levels—federal, state, and local—all have a voice in educational matters, although they may not necessarily be in unison. Difficulties may also develop when areas of educational governance overlap considerably in responsibility among the three levels of government and their corresponding branches— executive, legislative, and judicial. These difficulties may be exacerbated not only by the unclear delineation of authority but also in determining with certainty which authority is supreme when irreconcilable conflicts exist.

Although education is not specifically mentioned in the federal Constitution, the federal government has had a historic involvement in it. In fact, programs under various federal laws pertaining to K–12 education in recent years have made up nearly 9 percent of the total amount of money expended for public elementary and secondary education. And in the last half of the twentieth century, the federal judiciary often found itself playing the role of a pervasive and significant force in influencing educational policy. Such controversial public education issues as racial segregation in schools, financing of schools, due process for both students and teachers, the role of religion in the schools, searches of students and teachers, and the extent to which students and teachers may engage in freedom of expression were all addressed by the federal judiciary.

State government has plenary power* over public education, and this power is carried out by constitutional and statutory provisions, executive acts, state board of education policies, and actions of chief state school officers. The roles of governmental participants vary among the state governments. The extent of state authority over local school systems is also not uniform; however, it is generally considered to be directly proportional to the state’s financial contribution to public education.

The degree of authority that local school systems have over educational matters depends on a state’s constitutional and statutory provisions. These local powers may be delegated or implied. Although it is the prevailing belief that public schools are controlled locally, many students of educational governance suggest that a so-called myth of local control may be operating. They argue that in many instances, especially when the state is heavily involved in financing education, the state has more meaningful power over education policy than does the local school system.

Because each level of government is inextricably intertwined in public educational governance, problems have often arisen for building-level educators. This may be seen, for instance, when one level or branch of government does not agree with policies or decisions made by another level or branch. Misunderstanding on the part of educators may also exist regarding the legitimate role of each of the levels of governance.


I. Sources of Law

A. Federal Level

At the federal level, the Constitution and its amendments, statutes, rules and regulations of administrative agencies, case law, presidential executive orders, and attorney general opinions all constitute sources of law under which educators operate.

1. Constitution and Amendments

Although the federal Constitution does not contain the word education, constitutional interpretation by the judiciary has had unquestionable impact on educational policymaking. Particularly significant is the judiciary’s interpretation of the Fourteenth Amendment to the Constitution. A brief examination of this amendment may be helpful, on the basis both of its historical origins and of its requirements for due process and equal protection of the law as they pertain to educational matters.

a. Historical Perspective.

Prior to the adoption of the Fourteenth Amendment in 1868, Americans, under the federal system of government, had a particular kind of dual relationship with state and national governments regarding their civil rights. This came about largely as a result of skepticism, if not an outright distrust, of central government that existed after the Revolutionary War as a consequence of experiences under British rule. To ensure that a central government would not again run roughshod over an individual’s civil rights, a Bill of Rights was added to the Constitution shortly after that document was ratified. Protections afforded those early Americans under the Bill of Rights included freedoms regarding religion, speech, press, peaceable assembly, and petitioning for a redress of grievances; a right to bear arms; protection against unreasonable searches and seizures; guarantee of a grand jury indictment in capital offenses; protection against being subject to double jeopardy or self-incrimination; the right of due process concerning life, liberty, or property; the right to have a speedy trial by an impartial jury; and protection against excessive bail and cruel and unusual punishments. These protections, however, were those that Americans had against their central government. They did not automatically have these rights against their state government as a result of the inclusion of the rights in the federal Constitution.

Protection of civil rights against state action was provided by state constitutions, and every state, as it was accepted into the Union, provided for a Bill of Rights similar to that found in the federal Constitution. It should be noted, however, that prior to the adoption of the Fourteenth Amendment, if a state’s constitution did not contain a provision for guaranteeing, for instance, freedom of speech or religion, an American did not necessarily have those protections against his or her state. Although state constitutions may have contained language that afforded individuals their civil rights, as a practical matter, state-guaranteed civil rights protections were not always uniformly applied.

In the years prior to the Civil War, another factor influenced the dual relationship Americans had with their state and federal governments. For the most part, Americans, during that time, thought of themselves primarily as citizens of the state within which they resided and citizens of the United States secondarily. An individual considered himself a Virginian or New Yorker first, for instance, and an American citizen second.

This dual relationship with state and central governments and the historic primary allegiance to one’s state was significantly altered by the adoption of the Fourteenth Amendment to the Constitution in 1868. This amendment provided, in part, that:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

From a constitutional standpoint, the juxtaposition of the words “ are citizens of the United States and of the State wherein they reside” is most revealing because the United States is mentioned first. The legal significance of this juxtaposition and subsequent language of the amendment have been interpreted as establishing national citizenship as being primary where certain questions dealing with individual rights are concerned.

This amendment, which was intended initially to guarantee rights to newly freed slaves, has also provided protection for the individual from various forms of arbitrary or capricious state action. Because the amendment affords national citizenship primacy regarding constitutional rights, an individual is shielded against state action that may run counter to guarantees he or she has as a citizen of the United States. Under this concept, a state cannot deprive a person of rights he or she has as an American. As a result of federal court action, for instance, teachers may not be arbitrarily dismissed without due process. Neither may students be deprived of their freedoms pertaining to religion by school board policy that allows Bible reading for sectarian purposes or school-sponsored prayers during normal school hours. These are the kinds of rights individuals have as U.S. citizens, and no state action, local administrative conduct, or local school board policy may violate them.

Under the Fourteenth Amendment, a state and those operating under its auspices (such as local school systems) must honor those rights, guaranteed by the Constitution, federal statutes, and case law, that a person has as a result of being an American. From a constitutional standpoint, these rights must be observed by the state and those operating under the color of the state, and they may not be infringed on as a result of a state or local election, state or local administrative action, or state court action.

It should be noted that not all constitutional scholars agree with this interpretation of the Fourteenth Amendment. Proponents of a “state’s rights theory,” now often referred to as federalism, reluctantly accept certain court decisions based on the Fourteenth Amendment and, in some instances such as prayer and Bible reading in the public schools, often refused to abide by them. Those espousing federalism offer several reasons for their views. These include the fact that ratification of the Fourteenth Amendment was a required step for readmittance to the Union after the Civil War; that courts should follow the jurisprudence of “original intent” under which courts would be guided solely by the literal text of the Constitution—the specific ascertainable intentions of the framers—not the ruminations of latter-day judges; that over the years, largely due to national crises, the central government’s powers have greatly increased at the expense of the states; and last that the Tenth Amendment to the Constitution stricture that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” should be heeded. Essentially, proponents of federalism maintain that under the American federal system both the central government and the states have sovereignty and that an imbalance has been created. The aim is for the “powers” mentioned in the amendment to devolve or transfer back to the states

b. Due Process and Equal Protection.

In addition to establishing the primacy of national citizenship with the protection of certain individual rights, the Fourteenth Amendment also provides for due process and equal protection of the law. These two concepts stem from an ideal of fairness in applying the law, and they are not necessarily mutually exclusive. In cases dealing with educational matters where the Fourteenth Amendment is cited, it is generally alleged that either (or both) due process or equal protection of the law has been denied. Although extremely complex in a legal sense, these concepts may best be understood by keeping in mind that they require government officials, which of course includes educators, to be fair as they conduct governmental business. This necessitates reasonable and noncapricious action, in addition to abiding by statute and case law, on the part of public school officials when dealing with clients or personnel.


[1] Due Process

In the broadest sense, a person has received due process of law under the Fourteenth Amendment when he or she has been treated essentially the same by state action or local government action as another person has under similar circumstances when he or she is subject to deprivation of life, liberty, or property. Under this concept, governmental action may not be unreasonable or capricious, and when clients are not treated alike, there must be a sound basis for dissimilar treatment.

Although the line between substance and procedure is often quite hazy, some have drawn a distinction between so-called procedural and substantive due process of law. According to this view, procedural due process, in the larger sense, deals with the question of whether or not a person has been accorded fair and proper treatment or procedure when apprehended or tried in a court. Accused persons must be given twelve jurors, for instance, if everyone else in their circumstances is given twelve jurors. Evidence to be presented against them must have been obtained properly, and their trials must be conducted according to established procedures. Questions dealing with procedural due process in the educational arena have received much attention, particularly in the area of suspension and expulsion from school. Substantive due process essentially deals with the question of fair treatment of persons by those acting under the color of the state and also with the question of the fairness and reasonableness of laws, regulations, and policies in the light of our constitutional heritage. The Fifth Amendment also contains a due process clause, and although there are similarities with the Fourteenth Amendment provision, the Fifth Amendment is considered exclusively to be protection against the federal government.

As is the case with many concepts, due process resists definition in the dictionary sense. It is a dynamic rather than a static concept. The definition in each instance depends largely on a combination of the specific facts in a situation, the law governing the situation, the particular time in history in which judgment is being rendered, and the predilections of the individual judge(s) rendering the decision. The Supreme Court, for instance, has never unanimously agreed on a standard for due process. Yet, it is the body that renders the ultimate and final decision regarding whether or not due process has been denied. This point, in addition to a discussion of the question of due process, was asserted by Justice Frankfurter in Sweezy v. New Hampshire, 354 U.S. 234 (1957).

To be sure, this is a conclusion based on a judicial judgment in balancing two contending principles—the right of the citizen to political privacy, as protected by the Fourteenth Amendment, and the right of the State to self-protection. And striking the balance implies the exercise of judgment. This is the inescapable judicial task in giving substantive content, legally enforced, to the Due Process Clause, and it is a task ultimately committed to this Court. It must not be an exercise of whim or will. It must be an overriding judgment founded on something much deeper and more justifiable than personal preference. As far as it lies within human limitations, it must be an impersonal judgment. It must rest on fundamental presuppositions rooted in history to which widespread acceptance may be fairly attributed. Such a judgment must be arrived at in a spirit of humility when it counters the judgment of the State’s highest court. But, in the end, judgment cannot be escaped—the judgment of this Court. (pp. 266–67)

A basic issue—the balance between an individual’s rights and the necessity to protect the larger society—is addressed by courts when deprivation of due process is alleged. Courts must determine whether or not a regulation, policy, law, lower-court decision, or action on the part of someone who had a duty to perform was warranted in either limiting or condoning a person’s actions. A review of decisions involving educational matters reveals that courts consider many factors when examining alleged deprivation of due process by school officials. Foremost among these factors is whether, overall, the school official’s judgment was educationally sound. Additionally, courts examine whether an official’s actions were guided primarily by administrative convenience or represented the spirit of a conformity-minded, arrogant majority when there should have been a willingness on the part of the majority to accept a degree of nondisruptive deviance.

A brief discussion of social contract theory may amplify the genesis of the due process idea. Although the theory was discussed as early as Plato, its more familiar philosophical underpinnings were advanced by political philosophers several centuries ago, notably, Thomas Hobbes ( Leviathan), John Locke ( Two Treatises of Government), and Jean Jacques Rousseau ( The Social Contract). Locke, whose social contract theory is probably the one most familiar in the English-speaking world, attacked the divine right of kings theory. He contended that societies were organized and ruled by the consent of the governed and not by one who had potential for becoming autocratic. Furthermore, he asserted that individuals by their nature had certain rights, which included life, liberty, and property. When by their own volition individuals left the primitive state of nature and agreed to be governed, they made a social contract with government that protected these natural rights. The justification for the state’s existence, according to Locke, was based on its ability to protect these rights better than individuals could on their own. The price individuals paid for governmental protection was a diminution of the freedom they had in the state of nature. This freedom was extremely limited, however, because it existed in an environment where there was greater potential for the “law of the jungle” and “might makes right” to prevail.

Many modern-day political theorists agree that the original thoughts of Locke and others regarding the social contract have come to stand for several propositions concerning the individual’s relationship to government. These propositions include the notion that government rests on the consent of the governed; persons willingly yielded the freedom they had in the state of nature because they thought the state could offer them certain protections they could not provide for themselves; and although persons relinquished the freedom they had in the state of nature, their entering into a social contract with government included the government’s guarantee against an arbitrary, capricious, and unreasonable denial of their rights of life, liberty, and property when they and the government interacted.

These propositions have considerable implications for educators. In accordance with social contract theory, school authorities have not only a legitimate but also a mandatory role to play in protecting health and safety and in maintaining order. Students violating legitimate school rules may be subject to appropriate punitive action. Yet, school authorities may not act arbitrarily, capriciously, or unreasonably toward individuals when protecting the majority, and due process must be provided when a liberty or property interest is involved.

[2] Equal Protection

Constitutional authorities contend that the Equal Protection Clause was inserted in the Fourteenth Amendment to ensure that former slaves would be provided the same civil protections as white Americans. Under this notion, black Americans (referred to as Negroes at the time of the clause’s adoption) would not only have their civil rights protected, but they would also have the benefit of applicable laws. Although originally intended to ameliorate the transition from slavery to free status, the equal protection provision has had a dramatic effect in influencing policy in American public education.

From an educational standpoint, the Equal Protection Clause represents the legal basis for prohibiting unreasonable classifications. Although some type of classification is often necessary in laws, rules, or policies, arbitrariness may not play a part. Methods of classifying students in public schools have often been based on such factors as sex, age, intelligence, marital status, parents’ residence, race, pregnancy or motherhood, conduct, test scores, and wealth of their community. For these methods of classification to conform to equal protection guarantees, a reasonable relationship must exist between the objective to be accomplished and the type of classification employed. Also, if the state renders a benefit to one person within a class, all within that class must receive the benefit equally; and if one person within a class is deprived of a benefit by the state, all within that class must be deprived equally. This concept was expressed many years ago by the United States Supreme Court in Barbier v . Connolly, 113 U.S. 27 (1885), when it stated:

Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment. ( p. 32)

The principal idea inherent in equal protection, as in due process, is the concept of fairness. And as is the case with due process, whether or not equal protection has been granted or denied depends on a balancing of several elements. These include sociological and psychological factors, sound educational policy, the benefit of a larger good to society as a result of the classification, contemporary customs and mores, and the protection of the individual’s rights in the light of these considerations.

Courts have often employed a two-level test for measuring classifications against the Equal Protection Clause. One is a “rational basis” test, which is employed when a “fundamental interest” is not involved. Under this test, there must be a sound reason for the classification, and all those classified alike must be treated as uniformly as possible. Additionally, the burden of proof is on the complainant to demonstrate that a challenged law or policy has no rational basis to achieve a legitimate state objective. By using this test, the United States Supreme Court has commonly exercised restraint in holding legislation in violation of the equal protection provision of the Fourteenth Amendment.

A strict scrutiny test is applied when a “fundamental interest” or “suspect classification” is involved. A presumption of constitutional validity disappears when a classification is “suspect.” Examples of such classification include race, national origin, alienage, indigency, and illegitimacy. Differential treatment on the basis of gender requires the government to provide “exceedingly persuasive justification.” The strict scrutiny test was discussed by the United States Supreme Court in Plyler v . Doe, 457 U.S. 202 (1982). The Court explained that some classifications are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. It also stated that certain groups have historically experienced “political powerlessness” and thus have needed special protection from the majority. In situations where a suspect class or fundamental right is involved, the Court indicated that it is appropriate to enforce the mandate of equal protection by requiring the state to demonstrate that its classification has been narrowly tailored to serve a compelling governmental interest. Although the complainant has the burden of proof when the rational basis test is used, under the strict scrutiny test the burden of proof is placed on the state to show that the law or policy in question is necessary to accomplish a compelling state interest.

2. Statutes

Congress has enacted many statutes that provide educators with sources of law. The legal basis for this congressional involvement derives from the so-called General Welfare Clause in Article I of the United States Constitution. Some of the areas that the national legislature has dealt with over the years include vocational education (Vocational Education Act of 1963); defense (National Defense Education Act of 1958); elementary and secondary education (Elementary and Secondary Education Act of 1965); civil rights (Civil Rights Act of 1964*); protecting information concerning students (Family Educational Rights and Privacy Act of 1974*); sex discrimination (Title IX of the Education Amendments of 1972*); children with disabilities (Section 504 of the Rehabilitation Act of 1973,* the Education for all Handicapped Children Act of 1975, renamed the Individuals with Disabilities Act of 1990, and the Individuals with Disabilities Education Act Amendments of 1997); bilingual education (Bilingual Education Act of 1968 and Title VII of the Elementary and Secondary Education Act of 1965); and pregnancy bias (Pregnancy Discrimination Act of 1978*).

The No Child Left Behind (NCLB) Act of 2001 was a sweeping reform of the Elementary and Secondary Education Act of 1965 and redefined the federal role in K–12 education. A primary objective of the comprehensive nearly 800-page law was to improve the academic achievement of those students attending failing schools that receive Title I funds. Some of its provisions contained measures that allowed students to transfer from schools that were “in need of improvement,” with transportation costs borne by the local education agency; require parents in high-poverty Title I schools to be informed if their children are not being taught by “highly qualified” teachers; made available tutoring and other services to children in failing schools; and required parents in “persistently dangerous” schools, that is, those with high suspension, expulsion, and crime rates to be informed that their children could transfer to safer schools. NCLB applied only to those elementary students covered under the Act, such as low-achieving children in the highest-poverty schools, limited English proficient children, migratory children, children with disabilities, Native American children, neglected or delinquent children, and young children in need of reading assistance.

NCLB was embroiled in controversy since its inception, and this continued during its implementation. Controversy revolved around such issues as political conservatives and some state officials viewing NCLB as an inappropriate excursion into state and local district educational policy; an overemphasis on rote learning and test taking; states lowering standards in order to comply with the law by being allowed to use state tests (rather than nationally normed tests) and establishing low cutoff scores to ensure being able to report a high degree of student success; and allowing states to establish questionable standards to determine “highly qualified” status for veteran teachers of core academic classes, thereby ensuring that a high percentage of teachers meet this goal. There was also controversy surrounding NCLB’s “one size fits all” alleged inflexibility and the issue of unfunded requirements resulting in state legislative and legal challenges.

NCLB expired in 2007 and was not reauthorized.* Due to dissatisfaction with significant flaws in the law it is expected to be rewritten. It is no longer referred to as the NCLB but rather as the reauthorization of the Elementary and Secondary Education Act.

3. Case Law

Case law refers to principles of law established by courts. Such law is largely based on legal precedents declared in earlier court decisions in which there were similar factual situations. It is believed that following precedent affords a greater likelihood that citizens will be treated equally, and it has the added advantage of allowing a degree of predictability in future disputes. Under the doctrine of stare decisis, for instance, a court may stand by precedent and thereby not disturb a settled point of law. Although generally guided by precedent, courts are not bound by it in reaching a decision. A court may decide that the factual situation in the case being decided is not sufficiently similar to the one offering precedent or that the legal or philosophical rationale in the precedent-setting case no longer applies.

Federal courts have established a sizable body of case law. As a result, federal case law has been an influential, if not significant, force in educational policymaking during the last half of the last century. Federal courts have addressed such issues as racial segregation, questions of equity in state methods for financing education, separation of church and state, due process and equal protection considerations involving both students and teachers, the extent of freedom of expression for students and teachers, and dress and grooming standards for students and teachers. Precedent established by the federal judiciary in these areas provides educators with a significant source of law. Unfortunately, the case law is not always well settled, and conflicting opinions may occur among the federal district courts and courts of appeals. In this event, educators must follow the case law established for their particular jurisdiction; however, vigilance must be exercised to ascertain appellate or Supreme Court actions that may reverse or modify existing case law. Therefore, it is vital that educators have a thorough understanding of well-settled case law and also be familiar with legal cases relating to areas of the law not yet clearly settled.

Although not always fully understood by educators, a decision of the United States Supreme Court has the full force of law and may be altered or modified only by another High Court decision or an amendment to the Constitution.**Unfortunately, High Court decisions have not always been observed by local school systems. Desegregation decisions and those dealing with Bible reading and recitation of sectarian prayers during school hours have been prime examples. Because the Court does not have an enforcement arm, compliance with a decision must often be gained by continued court action, which may include requesting writs of injunction or mandamus.

4. Executive Orders and Attorney General Opinions

The president of the United States may issue an executive order that applies to education. Once issued, it would be a source of law of educators.

The attorney general of the United States may be asked to provide an official opinion pertaining to a constitutional or statutory educational provision or a controversial educational practice. Such an opinion may be thought of as advisory and does not represent as compelling a source of law as case law.

B. State Level

Major state-level sources of law include the state’s constitution, statutes, case law, state board of education policy, state department of education directives, rules and regulations of administrative agencies, executive orders, and attorney general opinions. As discussed previously, these state-level sources of law may not deprive individuals of the due process or equal protection of the laws they have as persons under the Fourteenth Amendment.

1. State Constitutions

All state constitutions contain language committing the state to a responsibility for providing education. Although the constitutional terminology varies, it often takes the form of requiring that the legislature ensure the establishment and maintenance of a thorough and uniform or efficient system of schools. Such broad language is recognized as the ultimate authority within a state for furnishing education. Constitutional provisions may designate constitutional offices for education officials, such as state superintendent of schools and state board members. Constitutional provisions may also specify the creation of local school systems, method of selection and number of members for local school boards, qualifications and selection of local school superintendents, and authority and possibly limitations for local taxation for school purposes. A review of constitutional provisions pertaining to educational matters among the states reveals a wide range of formats, from a few general designations in some states to a large number of provisions that are rather specific in other states.

Many states also have due process and/or equal protection of the law requirements similar to those found in the amendments to the federal Constitution. Consequently, state courts are often asked to interpret these in an educational context.

2. State Statutes

State statutes represent a significant source of law for educators. They are generally more explicit than state constitutional provisions, and their purpose is to bring a more specific outline to broad constitutional directives or to codify case law. Statutes may regulate governmental functions such as the method of selection, terms, and responsibilities of state-level education officials. They may also stipulate the type of local or regional school systems; the method of selection, responsibilities, and terms of local school officials; and the powers of local education units.

State statutes often deal with financing of the public schools, tax instruments, and the degree to which these instruments may be employed to raise local revenue. Often teacher–pupil ratios are specified, as are the teaching of certain subjects, minimum and maximum ages for subjection to compulsory education laws, length of school day and year,

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