Education and the LawEducation and the Law

Kathleen S. WhittierKathleen S. Whittier

Legal issuesLegal issues Roberts v. the City of Boston (1894Roberts v. the City of Boston (1894) a ) a

case concerning the denial of admission of case concerning the denial of admission of Sarah Roberts, a black woman, to a school Sarah Roberts, a black woman, to a school for whites. The courts ruled that Sarah was for whites. The courts ruled that Sarah was not being denied instruction by being not being denied instruction by being refused admission to the school in refused admission to the school in question, but no consideration was given question, but no consideration was given either to the possibility that her either to the possibility that her educational experiences were not educational experiences were not equivalent. This legal decision set equivalent. This legal decision set precedent for related exclusionary cases in precedent for related exclusionary cases in years to comeyears to come

Williams v Board of Education Williams v Board of Education (1908(1908))

established that school boards have the established that school boards have the power to assign pupils to particular power to assign pupils to particular schools, unless it is shown to be arbitrary schools, unless it is shown to be arbitrary as to negate the efficacy of placement. as to negate the efficacy of placement. Most educational legal decisions involving Most educational legal decisions involving children with mental retardation have children with mental retardation have exclusionary rather than facilitative. That exclusionary rather than facilitative. That is, they were concerned with protection of is, they were concerned with protection of schools rather than educational and social schools rather than educational and social needs of the “undesirable Child”.needs of the “undesirable Child”.

A philosophical change came about A philosophical change came about in the mid part of the 20th centuryin the mid part of the 20th century

Beattie v State Board of Education. Beattie v State Board of Education. City of Antigo (19S0City of Antigo (19S0) ) PettyPetty. Beattie . Beattie concerned a boy with CP excluded concerned a boy with CP excluded from public school classes because of from public school classes because of his condition - which was argued his condition - which was argued caused depressing effects on his caused depressing effects on his classmates and teachers. The school classmates and teachers. The school board recommended placement in a board recommended placement in a school for children who were deaf school for children who were deaf and/or speech-defective. and/or speech-defective.

The boy refused this placement and The boy refused this placement and was supported by his parents. An was supported by his parents. An appeal was made an the local appeal was made an the local superintendent asked for a ruling superintendent asked for a ruling from the State Superintendent of from the State Superintendent of Public Instruction in Wisconsin - when Public Instruction in Wisconsin - when no firm response was given the no firm response was given the school refused to allow the boy to school refused to allow the boy to enrollenroll

The municipal court of Antigo jury ruled in The municipal court of Antigo jury ruled in favor of reinstating the boy in public favor of reinstating the boy in public school - although this decision was school - although this decision was overruled on appeal to the Wisconsin overruled on appeal to the Wisconsin Supreme Court, an important dissenting Supreme Court, an important dissenting opinion was written:opinion was written:

1.1.school should yield to earlier opinionschool should yield to earlier opinion

2.2.physical appearance and related behavior physical appearance and related behavior did not have harmful effects or infringe on did not have harmful effects or infringe on the other children’s right to an educationthe other children’s right to an education

State Board of Education v In Re: State Board of Education v In Re: PettyPetty

occurred in Iowa in this case an argument occurred in Iowa in this case an argument almost diametrically opposed to Beattie almost diametrically opposed to Beattie case was heard –case was heard –

School system wanted to place a child who School system wanted to place a child who was deaf in a school for the deaf, parents was deaf in a school for the deaf, parents refused and enrolled the child in a rural refused and enrolled the child in a rural public school – court decided to uphold public school – court decided to uphold school case is important as it established school case is important as it established the right of a child with disabilities to an the right of a child with disabilities to an appropriate.appropriate.

Brown v Board of Education. Brown v Board of Education. TopekaTopeka, 1954, 1954

was to have far reaching effects on was to have far reaching effects on education in the issue was education in the issue was segregation and concomitant “equal segregation and concomitant “equal opportunity” education is a right and opportunity” education is a right and must be available on equal terms.must be available on equal terms.

Basic legal argumentBasic legal argument

Full educational opportunitiesFull educational opportunities: goal is : goal is to provide all children with to provide all children with disabilities with FAPE. disabilities with FAPE.

Priorities are given to children not Priorities are given to children not being served and to children with being served and to children with severe disabilitiessevere disabilities

Five major factors in this modelFive major factors in this model political coalitionspolitical coalitions - interest groups; - interest groups; laws and judicial interpretationlaws and judicial interpretation - rules - rules

created to stabilize coalitions; created to stabilize coalitions;

science and technology;science and technology; personal personal satisfactionsatisfaction - working and living - working and living environment and environment and

public attitudepublic attitude - the slowest and most - the slowest and most difficult to change.difficult to change.

PL 94-142 Education of All PL 94-142 Education of All Handicapped Children ActHandicapped Children Act

signed into law reluctantly by signed into law reluctantly by President Ford on Nov. 28,1 975President Ford on Nov. 28,1 975

received overwhelming congressional received overwhelming congressional support (Senate 87 to 7; House 404 support (Senate 87 to 7; House 404 to 7).to 7).

Ford’s reservations were not with Act Ford’s reservations were not with Act but its cost of implementationbut its cost of implementation

P.L. 94 -142 Four Major Purposes:P.L. 94 -142 Four Major Purposes:

1.1. Full educational opportunities (free/public)Full educational opportunities (free/public)

2.2. Procedural safeguards - specifically policies and Procedural safeguards - specifically policies and procedures for safeguarding due process rightsprocedures for safeguarding due process rights

3.3. Appropriate education – IEPAppropriate education – IEP

4.4. State assistance - monies, guidelines, and State assistance - monies, guidelines, and technical assistancetechnical assistance

Educational ChangeEducational Change

““the right to be the right to be human, human, based upon based upon principles of principles of equality, is equality, is applicable to applicable to all all individuals!”individuals!”

Educational law Educational law in the United States is a in the United States is a

function of the state function of the state government under the government under the Tenth amendment of the Tenth amendment of the ConstitutionConstitution

The Tenth Amendment The Tenth Amendment provides that powers not provides that powers not delegated by the delegated by the Constitution to the federal Constitution to the federal government are passed on government are passed on to the stateto the state

Constitutional GroundsConstitutional Grounds

Equal protectionEqual protection- -

__________th amendment - no state shall th amendment - no state shall deny to any person within its deny to any person within its jurisdiction the equal protection of jurisdiction the equal protection of the lawsthe laws

Substantive due processSubstantive due process

- - th (federal) and th (federal) and

____________th (state) amendment th (state) amendment

- Right to appropriate classification - Right to appropriate classification and treatmentand treatment

Procedural due processProcedural due process

th and th and

_____th amendment -_____th amendment -

placement rights in education and the placement rights in education and the criminal justice systemcriminal justice system

Other amendmentsOther amendments

_____th amendment_____th amendment-- right to treatment and rights in prisonright to treatment and rights in prison

_____ th amendment_____ th amendment-- no person shall be forced or coerced into no person shall be forced or coerced into workingworking-- the right to work (institutions)the right to work (institutions)

_____st amendment freedom_____st amendment freedom-- right to educationright to education-- free exercise of basic rightsfree exercise of basic rights

Legal TermsLegal Terms

• • Cause of actionCause of action•• Class actionClass action•• ComplaintComplaint•• Consent agreementConsent agreement

•• Constitutional rightsConstitutional rights

•• Declaratory reliefDeclaratory relief•• Due processDue process • • Equal protectionEqual protection•• Injunctive reliefInjunctive relief•• MotionMotion•• OrdinanceOrdinance

•• PetitionerPetitioner•• PetitionPetition•• PlaintiffPlaintiff•• PrecedentPrecedent

Private cause of actionPrivate cause of action•• ReliefRelief•• RemandRemand•• RespondentRespondent•• StatuteStatute•• Summary judgmentSummary judgment

Education is not a ____________ right, but Education is not a ____________ right, but rather a privilege granted to people rather a privilege granted to people through the state.through the state.

•• When a state undertakes to provide When a state undertakes to provide education, the ______th Amendment comes education, the ______th Amendment comes into use, stating that the state, when into use, stating that the state, when providing education, must do so on equal providing education, must do so on equal terms, and must not deny any state- terms, and must not deny any state- granted right without due process.granted right without due process.

Many cases went to court in regards to Many cases went to court in regards to segregation of blacks and students with segregation of blacks and students with disabilitiesdisabilities

Refer to cases:Refer to cases:

Brown vs. the Board of Education of Brown vs. the Board of Education of TopekaTopeka

Pennsylvania Association for RetardedPennsylvania Association for RetardedChildren (PARC) vs. PennsylvaniaChildren (PARC) vs. Pennsylvania

Mills vs. Board of EducationMills vs. Board of Education

Litigation intricately involved in Litigation intricately involved in development of policies/procedures for development of policies/procedures for

public education.public education.

freedom of speechfreedom of speech (refer to court case (refer to court case Tinker vs. Des Moines Independent School Tinker vs. Des Moines Independent School District and Bethel School District No. 403 District and Bethel School District No. 403 vs. Fraser)vs. Fraser)

Search and seizureSearch and seizure (in reference to the (in reference to the ______________th Amendment, refer to case ______________th Amendment, refer to case New Jersey vs. T.L.O., 1985)New Jersey vs. T.L.O., 1985)

___________________ testing___________________ testing

____________________ of students with ____________________ of students with disabilitiesdisabilities

expulsion and suspensionexpulsion and suspension

P.L.101-476P.L.101-476

amended P.L. 94-1 42amended P.L. 94-1 42

changed its title to Individuals with Disabilities changed its title to Individuals with Disabilities Education Act (IDEA)Education Act (IDEA)

reinforced the importance of considering the child reinforced the importance of considering the child first by altering all references to handicapped first by altering all references to handicapped children to children withchildren to children with

added autism and traumatic brain injury (TBI) asadded autism and traumatic brain injury (TBI) asnew categoriesnew categories

tightened requirements for transition tightened requirements for transition services for students sixteen years of age services for students sixteen years of age or olderor older

strongly emphasized collaboration among all strongly emphasized collaboration among all special education teachers, general special education teachers, general education teachers, and related services education teachers, and related services personnelpersonnel

Economic factorsEconomic factors

Due to the post war economy of the late 19 50’s, Due to the post war economy of the late 19 50’s, funding was formed throughfunding was formed through

National Defense Education Act (NDEA) and National Defense Education Act (NDEA) and

increased attention was given to math, science increased attention was given to math, science and foreign language,and foreign language,

textbooks were upgraded, teacher education was textbooks were upgraded, teacher education was supported, and supported, and

new teaching materials were developed.new teaching materials were developed.

In the 60’s and 70’sIn the 60’s and 70’s

increases in spending for education resulted increases in spending for education resulted from:from:

racial segregation (integration)racial segregation (integration) school lunch programsschool lunch programs remedial instructionremedial instruction Head StartHead Start FAPE for all children with disabilitiesFAPE for all children with disabilities

In the 1980’sIn the 1980’s

funding was used to funding was used to

reexamine the country’s educational reexamine the country’s educational system (A Nation at Risk, 1983; The system (A Nation at Risk, 1983; The Holmes Report,1 986, and others) and Holmes Report,1 986, and others) and

to increase the quality of schoolingto increase the quality of schooling

Political factorsPolitical factors

take two forms:take two forms: formal control - the power delegated to individuals formal control - the power delegated to individuals

or groups through statutes or laws and or groups through statutes or laws and regulations (work in a hierarchal fashion).regulations (work in a hierarchal fashion).

AndAnd

informal control influences exerted by individuals or informal control influences exerted by individuals or groups on those who formally possess power to groups on those who formally possess power to control the educational system.control the educational system.--

Examples of FormalExamples of Formal

Congress is involved when funding is needed Congress is involved when funding is needed - the larger the funding package, the - the larger the funding package, the greater the federal control over education greater the federal control over education becomes. Congressional involvement has becomes. Congressional involvement has expanded with the passage of Economic expanded with the passage of Economic Opportunities Act P.L. 88-452, Elementary Opportunities Act P.L. 88-452, Elementary and Secondary Education Act P.L. 89-10, and Secondary Education Act P.L. 89-10, and Education for All Handicapped and Education for All Handicapped Children Act P.L. 94-142.Children Act P.L. 94-142.

President’s involvement is generally limited to President’s involvement is generally limited to establishing legislative agendas and setting the establishing legislative agendas and setting the tone of the Supreme Court.tone of the Supreme Court.

Governor’s role in public education is to set Governor’s role in public education is to set legislative agendas and they have the power to legislative agendas and they have the power to veto legislation (except in North Carolina). States’ veto legislation (except in North Carolina). States’ governors began to increase their role in the governors began to increase their role in the educational system during the late 1 980s by educational system during the late 1 980s by forming the Educational Commission of the States forming the Educational Commission of the States and in conjunction with other groups, developed and in conjunction with other groups, developed several task forces to examine leadership and several task forces to examine leadership and management, school facilities, parent management, school facilities, parent involvement and choice, technology, readiness, involvement and choice, technology, readiness, teaching, and college quality.teaching, and college quality.

State legislatures have direct formal State legislatures have direct formal control over their educational system control over their educational system because they are able to crate and design because they are able to crate and design school districts, control teacher school districts, control teacher certification, prescribe curriculum, certification, prescribe curriculum, mandate attendance laws, regulate mandate attendance laws, regulate aspects of school administration, raise aspects of school administration, raise revenue and distribute funds.revenue and distribute funds.

School board - has 5-9 elected members School board - has 5-9 elected members who although may exert individual pressure, they who although may exert individual pressure, they must act as a single body to translate policy.must act as a single body to translate policy.

Superintendents - act as a liaison to the Superintendents - act as a liaison to the community, are responsible for the educational community, are responsible for the educational and business administration of all schools within and business administration of all schools within the district, prepare and implement budget, the district, prepare and implement budget, curriculum staff, and implement school boards’ curriculum staff, and implement school boards’ goals and policiesgoals and policies

Examples of informalExamples of informal

teachers’ unions, teachers’ unions,

parent groups (PARC), parent groups (PARC),

businesses,businesses,

civil liberties union, and civil liberties union, and

other lobbying groups.other lobbying groups.

Reform and RestructuringReform and Restructuring

Education reforms have been suggested by Education reforms have been suggested by politicians, state and local school boards, politicians, state and local school boards, associations, governmental agencies and associations, governmental agencies and commissions, university boards of regents, commissions, university boards of regents, and individuals. and individuals.

““Too frequently, however, the suggested Too frequently, however, the suggested reforms have been contradictory in nature, reforms have been contradictory in nature, poorly implemented, and eventually poorly implemented, and eventually abandoned” (Orlich,1989, p. 513).abandoned” (Orlich,1989, p. 513).

School reform efforts have historically School reform efforts have historically targeted very specific student population targeted very specific student population (Native Americans, Mexican Americans, (Native Americans, Mexican Americans, African Americans, students from low SES, African Americans, students from low SES, students with disabilities).students with disabilities).

The three major cycles of school reform The three major cycles of school reform have been identifiedhave been identified

Equal access and funding - examines the Equal access and funding - examines the dilemma of equal access and funding for all dilemma of equal access and funding for all children and youth to the public education system children and youth to the public education system in the United States.in the United States.

Being in school does not mean you will be Being in school does not mean you will be provided the chance to learn.provided the chance to learn.

Funding alone does not guarantee a quality Funding alone does not guarantee a quality educational experience.educational experience.

GuardianshipGuardianship

Legal procedureLegal procedure

~~ Court determines that person has severe Court determines that person has severe disabilitydisability

~~ disability impairs ability to make rational disability impairs ability to make rational decisionsdecisions

~~ person needs protection andperson needs protection and

~ ~ there is no less restrictive alternativethere is no less restrictive alternative

Traditional GuardianshipTraditional Guardianship

General or Plenary GuardianshipGeneral or Plenary Guardianship

•• FullFull•• person no longer acts for self in person no longer acts for self in anyany capacitycapacity•• for major decisions may need to seek for major decisions may need to seek court approvalcourt approval

Partial GuardianshipPartial Guardianship

Guardianship of Estate/PropertyGuardianship of Estate/Property

How, when, and where to spend How, when, and where to spend moneymoney•• How to administer propertyHow to administer property•• Collects monies due to personCollects monies due to person•• Pays billsPays bills•• Buys necessitiesBuys necessities•• Sells assetsSells assets

Person mayPerson may

•• Invests as sees fitInvests as sees fit•• still retain capacity to votestill retain capacity to vote•• decide to marrydecide to marry•• write a willwrite a will•• make medical decisionsmake medical decisions

Guardianship of the PersonGuardianship of the Person

•• Where to liveWhere to live

•• Medical treatmentMedical treatment

•• whom doctor will bewhom doctor will be

•• whom associate withwhom associate with

•• where can travelwhere can travel

Citizen AdvocateCitizen Advocate

mature and competent volunteermature and competent volunteer

represents the rights and interest of represents the rights and interest of another as if they are ownanother as if they are own

Community/Expressive AdvocacyCommunity/Expressive Advocacy

~ Educate community~ Educate community

~ Define and document problems~ Define and document problems

~ Organize community~ Organize community

~ Bring about change~ Bring about change

~~ Improve conditionsImprove conditions

Case or Legal AdvocateCase or Legal Advocate

Attorneys - at – lawAttorneys - at – law

Individual or group litigation or Individual or group litigation or

legal negotiation processlegal negotiation process

Self-advocacySelf-advocacy

~~ Individual whose rights are at riskIndividual whose rights are at risk

~Protects own rights and interests~Protects own rights and interests

~Speaks on one’s own behalf~Speaks on one’s own behalf

Systems (corporate) AdvocacySystems (corporate) Advocacy

~~ Independent collective of citizensIndependent collective of citizens

~~ Rights and interests of group of people Rights and interests of group of people with similar needswith similar needs

~ Pursue human services system quality ~ Pursue human services system quality and progressive change valid legal and progressive change valid legal consentconsent

Depends on three conditions associated with giving Depends on three conditions associated with giving consent:consent:

1.1. the provision of the provision of informationinformation on the nature and on the nature and consequence of the choices under consequence of the choices under consideration;consideration;

2.2. the the information and weigh choices; information and weigh choices; andand

3.3. the opportunity to the opportunity to free of coercion, expressed or implied.free of coercion, expressed or implied.