Public School Law: What Does it Mean in the Trenches?

Abstract

When I entered the field of education 34 years ago, prudent and reasonable educators usually could rest assured that they wouldn't end up in That's no longer the case. Their risk of litigation has grown as our society has turned increasingly litigious and school populations have become more diverse and challenging. Throw in the demands of the No Child Left Behind Act of 2001 and recent amendments to the Americans with Disabilities Act (2008), and you have a perfect storm in which educators can err. The reflective articles presented in this issue of Kappan clearly demonstrate how practitioners must juggle a myriad of issues to maintain safe, secure, and productive learning environments. How must school officials respond when faced with day-to-day events that challenge their environments? STUDENTS The mission of my school district is to educate students to be responsible and contributing members of a global society. As Nelda Cabron-McCabe so succinctly explained, students have constitutional rights that they do not shed at the schoolhouse door. School officials carry the responsibility to preserve a balance between the constitutional rights of students and safe management of the educational environment. We have learned from Tinker to Fraser to Hazelwood to Morse that public school officials can censor speech that represents the school, that is obscene or lewd, or that promotes illegal activities, but they can't control other speech unless it substantially disrupts the school environment. We must also recognize Fourth Amendment rights that require reasonable suspicion before a search, and that the search isn't overly intrusive. Finally, in any disciplinary situation, students must be afforded procedural due process to allow both sides their day in court. As they consider the constitutional protections afforded to students, school authorities have been given sanction through their states to establish rules and regulations that are reasonable and definitive. Rules and regulations are usually held to be reasonable if they materially contribute to the maintenance and advancement of the educational process. They are generally held to be sufficiently definitive if they provide students with adequate information as to what is expected of them and can be interpreted by persons of common intelligence without having to guess at their meaning. (1) Because my school district is a small one, I address student issues that superintendents in larger districts would normally delegate to others. Fortunately, I haven't had to address weapons violations, but I have had to grapple with disciplinary issues including possession or use of drugs or alcohol in school or at school-sponsored events, threats of harm to teachers or students, and theft. I have the good fortune to have clear, concise, and reasonable school board policies and a student code of conduct as a basis for guiding my decisions when students land on my doorstep. Consistency is important, along with careful consideration of the circumstances behind the actions that led a student to me. TEACHERS When we hire teachers, we do so with the hope that they will teach our students well and be responsible members of our school communities. When the unthinkable happens and teachers behave badly, officials must respond while keeping in mind the protections that apply to our school employees. Those rights are particularly focused in the areas of freedom of expression, procedural due process, and search and seizure. As John Sanchez explained, a key to deciding whether a teacher's speech is protected is the determination of whether she is speaking as a public employee pursuant to her employment responsibilities or as a private citizen. In the first instance, the First Amendment doesn't prohibit managerial discipline. However, speech that is disruptive to the school environment is open to a disciplinary response regardless of whether the speech is made in the capacity of private citizen or school employee. …