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U.S. Constitution

Schools must be ever vigilant when it comes to constitutional issues. The law is in a state of constant flux and new regulations are being created relentlessly. Perry A. Zirkel tracks this trend in his book, A Digest of Supreme Court Decisions Affecting Education, Fourth Edition (2001). Educators, keep these rules in mind:

School Governance and Finance

  • If you are a school board, don't forget you must get clearance under the Voting Rights Act before you can require an employee to take unpaid leave while campaigning for political office. (Sec. 5 Voting Rights Act; Congress' Art. I power) Dougherty County Board of Education v. White, 439 U.S. 32 (1978).
  • If you are a school board, you have no constitutional protection against the state legislature if it decides to alter the boundaries of your school district. Attorney General of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905).
  • Is your school district receiving substantially less funding than others because your school funding system is based on the local property tax in your area? You will just have to cope, because this system is perfectly constitutional. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

Church-State Relationships in Education

  • You may not allow religious instruction during normal school hours, or excuse students from the normal secular classes to attend religious classes. (Establishment Clause, 1st Am.) Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948).
  • You may not encourage the recitation of prayer or bible reading on school grounds under the supervision of school personnel, during school hours (Establishment Clause, 1st Am.) Engel v. Vitale, 370 U.S. 421 (1962); School District of Abington v. Schemp, 374 U.S. 203 (1963).
  • Considering meditation as an alternative? You may only promote silent meditation that is for clearly secular purposes in public schools. What does that mean? Call the lawyer. (Establishment Clause, 1st Am.) Wallace v. Jaffree, 472 U.S. 38 (1985).
  • You may not include an invocation or benediction by clergy at a public school graduation ceremony (Establishment Clause, 1st Am.) Lee v. Weisman, 505 U.S. 577 (1992).
  • And no student-led and student-initiated prayer at athletic events. (Establishment Clause, 1st Am.) Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

Student Rights and Responsibilities

  • If you have a morning flag saluting ceremony at your school, but a student is urging others not to salute the flag for either religious reasons or mere personal opinion, the First Amendment protects his speech and you may not restrain him. Taylor v. Mississippi , 319 U.S. 583 (1943).
  • Are students wearing or displaying vulgar or offensive pictures or slogans? You may not discipline students for expressing social or political opinions unless you can show that it is causing "substantial disruption of the school's routine." What constitutes a substantial disruption? The burden of proof is on you to demonstrate this. (Freedom of Speech, 1st Am.) Tinker v. Des Moines Independent Community School District , 393 U.S. 503 (1969).
  • If you decide to suspend a student for up to ten days, you must provide the student with: "1) Oral or written notice of the charges, 2) an explanation of the evidence if he denies charges, and 3) an opportunity for him to present his side of the incident – if it is necessary that the student be removed immediately, notice and hearing must be held within a reasonable time." A suspension of over ten days is a different story. Goss v. Lopez, 419 U.S. 565 (1975) (Procedural Due Process, 14th Am.). See the flowcharts: How Do I Suspend a Disruptive Student? and How Do I Suspend a Special Education Student For Up To 45 Days?
  • As a school district, you are required to provide education to illegal alien children in public schools. Plyler v. Doe, 457 U.S. 202 (1982).
  • If you suspect a student of possessing an item or substance banned from school, the burden of proof is on you to demonstrate that you have reasonable grounds for suspecting the search will turn up evidence of such a violation. The scope of the search must be reasonably related to the discovery of the suspected behavior, the age or sex of the student, and the degree of the violation. New Jersey v. T.L.O., 469 U.S. 325 (1985).

Employee Rights and Responsibilities

  • As an employee of a public school, the school board may require you to take an oath of loyalty (that you are not a member of a group that advocates the overthrow of the government) as a condition of continued employment. The school board also may discharge any employee who refuses to answer questions regarding membership in such organizations as the school board feels it would relate to one's fitness to teach. Garner v. Board of Public Works, 341 U.S. 716 (1951); Lerner v. Casey, 357 U.S. 468 (1958).
  • Applying for a job with a school district? You may be required to live within the school district as a condition of employment. McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645 (1976).
  • Want to discipline a teacher who is not performing up to the standards set by the school? Because of teacher tenure acts, the state must demonstrate a substantial reason before it can alter the terms of a teacher's contract. Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938). See the flowchart: How Do I Fire an Inept Teacher?
  • If you are an employee who believes that your contract was terminated because of your private expression of personal opinions, the burden of proof is on you to prove that your speech was protected under the First Amendment. Mount Healthy City School District v. Doyle, 429 U.S. 274 (1977).
  • Although it is unconstitutional to provide religious services for your students, as a member of a school board, Title VII requires you to accommodate your employee's religious beliefs, including supplying leave or providing the means for individual observance. Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986).
  • Want to require all employees to take drug tests to determine their fitness to teach? The Fourth Amendment requires that you satisfy narrow "special needs" before you can require a drug test without a specific suspicion. Just what are those special needs? A judge will have to determine that by applying a balancing test. Chandler v. Miller, 520 U.S. 305 (1997).

Discrimination: Disability, National Origin, Race and Sex

  • If there are students at your school who do not speak English (and your school receives federal aid), instead of enrolling them in programs to help them learn English, the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 require you to provide the students with special instruction in their native language. Lau v. Nichols, 414 U.S. 563 (1974). Read about the Bilingual Education Act of 1986.
  • Does the racial make-up of your faculty reflect the demographics in your area? If not, you may be subject to scrutiny. Under Title VII of the 1964 Civil Rights Act, if your school's hiring numbers to not correlate with local demographics, you may be subject to a court order. An example of such a court order is a consent decree establishing a mathematical ratio based on race with which your school's hiring practices must conform. Hazelwood School District v. United States , 433 U.S. 299 (1977); United States v. Paradise, 480 U.S. 149 (1987).
  • If you have a disabled child in your school district, under the Individuals with Disabilities Education Act, you are required to provide a "free and appropriate education" for that child and you must develop an individualized education program (IEP) providing all necessary services related to the child's disability. In addition to specialized instruction, this may include nurse-provided medical attention, or even treatments administered by teachers who are not medically trained. Irving Independent School District v. Tatro, 468 U.S. 883 (1984).
  • If your school develops an IEP for a student, but the parents disagree with it, the parents may bring a civil action requesting that the child be placed in private school. The school district may have to reimburse the family for the cost of private school if a court determines that is the appropriate education for the child. The school district may have to reimburse the parents even if the program is not approved by the state. Burlington School Committee v. Department of Education, 471 U.S. 359 (1985); Florence County School District Four v. Carter, 510 U.S. 7 (1993).
  • If a court determines that your school district has acted in a discriminatory way, it may enter a consent decree against you which may require you to provide some benefit to others – even those who were not harmed by your actions. Local No. 93, International Association of Firefighters v. Cleveland, 478 U.S. 501 (1986).
  • If there is an emotionally disturbed student in your school who is causing disruption, you may not suspend him for up to 10 days, unless you provide the due process required by the Individuals with Disabilities Education Act. You do not have to comply with all of these requirements if you determine that the disabled child poses serious danger to others. Due process that is required for disabled and non-disabled students includes a description of charges against them and a hearing. Honig v. Doe, 484 U.S. 305 (1988). See the flowchart: How Do I Suspend a Special Education Student For Up To 45 Days?
  • If you are a school board that is interested in experimenting with different educational options including single-gender public school programs, you're out of luck because this is unconstitutional. United States v. Virginia , 518 U.S. 515 (1996).
  • As a school board, you may be held vicariously liable if an employee is charged with sexual harassment unless you can show that you behaved reasonably and the victim did not. The burden of proof is on you. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Civil Rights Cases: Special Rules

  • The Civil Rights Act of 1964 imposes additional restrictions on the hiring practices of school boards. Title IX of the Education Amendments of 1972 requires schools receiving federal funds to have hiring numbers that reflect gender percentages in the hiring pool. North Haven Board of Education v. Bell, 456 U.S. 512 (1982).
  • As a school board, if someone thinks that you have committed a civil rights violation, she may sue you in federal court as well as state court, and you will be liable for judgments from both. The plaintiff may raise any of the related issues in federal court that he did not raise in state court. Migra v. Warren City School District Board of Education, 465 U.S. 75 (1984).
  • In addition to adopting hiring practices that reflect racial percentages in the hiring pool, you must be sensitive to an applicant's country of origin as well (according to Sec. 1981 of the Civil Rights Act). How are you going to avoid liability when most hiring restrictions discourage or even forbid such questions? Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987).
  • You will probably have to pay attorney's fees if a plaintiff suing you succeeds in any one of his main claims, even if he loses the majority of claims. Texas State Teachers Association v. Garland Independent School District , 489 U.S. 782 (1989).

Procedural Parameters

  • As a school board, is it time for a change in your election procedures? You won't be able to do this without first consulting a court as to whether the changes would be consistent with the Voting Rights Act of 1965. Hathorn v. Lovorn, 457 U.S. 255 (1982).
  • As an individual member of the school board, you don't have standing to appeal a judgment brought against the whole board if your only participation in the suit is in your official capacity, nor do you have the right to appeal once you have left your post. Bender v. Williamsport Area School District , 475 U.S. 534 (1986); Karcher v. May, 484 U.S. 7 2 (1987).

Also, see the ACLU's handy reference guides for student rights:

Read the U.S. Constitution and the Amendments here.