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Contents vii
3 STUDENTS AND THE LAW 85

I. Freedom of Expression 86
A. The Tinker Doctrine 86
Tinker v. Des Moines Independent Community
School District 86
Notes and Questions 91
B. Limiting the Tinker Doctrine 94
1. NONPOLITICAL SPEECH 94
Bethel School District No. 403 v. Fraser 94
Notes 98
2. SCHOOL-SPONSORED EXPRESSIVE ACTIVITIES 100
Hazelwood School District v. Kuhlmeier 101
C. Participation in Patriotic Exercises 106
Sherman v. Community Consolidated School District 21 106
II. Family Educational Rights and Privacy Act of 1974
(Buckley Amendment) 110
III. Suspension, Expulsion, and Disciplinary Transfer 111
A. Suspension 111
Goss v. Lopez 111
B. Expulsion 117
1. PUBLIC SCHOOL EXPULSION 117
Gonzales v. McEuen 117
2. PRIVATE SCHOOL EXPULSION 121
Allen v. Casper 121
Note 124
C. Disciplinary Transfer 124
IV. Corporal Punishment 124
Ingraham v. Wright 124
V. Search of Students and Lockers 129
A. Student Search 130
New Jersey v. T.L.O. 130
B. Search for Drugs and Weapons 134
C. Intrusive Search 136
D. Locker Search 140
viii Contents
VI. Student Appearance 140

A. Dress 141
B. Uniforms 143
C. Grooming 146
VII. Pregnancy, Parenthood, and Marriage 146
VIII. Participation in Extracurricular Activities 148
A. Legal Status of Extracurricular Activities 148
Palmer v. Merluzzi 148
B. Athletics 152
1. MARRIED STUDENTS 152
Beeson v. Kiowa County School District RE-1 152
2. GENDER EQUITY 154
IX. School Punishment for Out-of-School Offenses 156
4 TEACHERS AND THE LAW 158

I. Nonrenewal and Dismissal 158
Board of Regents of State Colleges v. Roth 159
II. Freedom of Expression 163
A. Tenured Teacher’s Public Expression 164
Pickering v. Board of Education of Township High
School District 205 164
Notes 166
B. Nontenured Teacher’s Freedom of Expression 168
Mt. Healthy City School District Board of Education v. Doyle 168
Notes 171
III. Academic Freedom 172
A. Appropriate Material 172
Fowler v. Board of Education of Lincoln County 172
B. Political Speakers 180
Wilson v. Chancellor 180
IV. Drug Testing 184
V. Personal Appearance 185
East Hartford Education Association v. Board of
Education of Town of East Hartford 186
Contents ix
VI. Teacher as Exemplar 189

A. Homosexual Teacher 190
Epilogue 193
B. Adulterous Teacher 194
Erb v. Iowa State Board of Public Instruction 194
Note 197
C. Criminal Activities 197
Gillett v. Unified School District No. 276 197
Notes 200
D. Impropriety with Students 201
Barcheski v. Board of Education of Grand Rapids
Public Schools 201
Notes 204
VII. Employment Discrimination 206
A. Racial Discrimination 207
B. Sex Discrimination 209
Fuhr v. School District of the City of Hazel Park 210
Notes 212
C. Pregnancy 213
Eckmann v. Board of Education of Hawthorn School District 214
D. Religious Discrimination 218
E. Age Discrimination 220
VIII. Teacher Bargaining 221
Lehnert v. Ferris Faculty Association 221
Notes 226
IX. Political Activities 226
5 SCHOOL DESEGREGATION 229

I. Historical Perspective 230
A. Separate but Equal Doctrine 230
Plessy v. Ferguson 230
B. De jure Public School Segregation
Unconstitutional (Brown I) 237
Brown v. Board of Education of Topeka 237
C. Implementation (Brown II) 240
Brown v. Board of Education of Topeka 240
x Contents
II. Early Desegregation in the South 242

III. Desegregation in the Non-Southern States 243
A. Intentional Segregative Action 244
B. Interdistrict Integration 244
IV. Recent Desegregation Issues 246
A. Release from Court Order 246
B. Race-Related Placement 248
V. Epilogue 251
6 INDIVIDUALS WITH DISABILITIES AND THE LAW 254

I. The Individuals with Disabilities Education Act 255
A. Eligibility 255
B. Identification and Evaluation of Students 256
C. Substantive Educational Rights 257
Board of Education of the Hendrick Hudson Central School
District v. Rowley 257
D. Individualized Education Programs 262
E. Appropriate Placements 262
F. Related Services 264
G. Procedural Protections 265
H. Discipline 267
I. Transition Services 273
J. Graduation and Competency Exams 273
K. Cost Issues 274
II. Section 504 of the Rehabilitation Act 275
A. Students and Section 504 277
Thomas v. Atascadero Unified School District 278
Notes 280
Grube v. Bethlehem Area School District 281
Note 284
B. Employees and Section 504 284
III. The Americans with Disabilities Act 286
7 SCHOOL FINANCE AND SCHOOL CHOICE ISSUES 287

I. School Finance Reform 287
A. Background 287
B. Early Decisions 288
C. Fiscal Neutrality 289
Contents xi
D. Rodriguez 289
San Antonio Independent School District v. Rodriguez 290
E. Post-Rodriguez Litigation 297
Rose v. Council for Better Education 298
Notes 303
F. Results to Date 303
1. DECISIONS UPHOLDING STATE FINANCE PROVISIONS 304
2. DECISIONS EFFECTING REFORM 304
Listing of Selected School Finance-Related Cases 306
II. Choice 312
A. Choice Plans 312
1. PUBLIC SCHOOL INTER- AND INTRA-DISTRICT OPEN ENROLLMENT 312
2. INTRA-DISTRICT SPECIALIZED SCHOOLS 312
3. VOUCHER PLAN 313
Zelman v. Simmons-Harris 315
Notes 320
4. CHARTER SCHOOLS 321
5. EDUCATION SERVICE PROVIDERS 323
6. TUITION TAX CREDITS 323
B. Legal Implications 324
8 EDUCATOR AND SCHOOL DISTRICT LIABILITY 326

I. General Principles Underlying Educator Liability 326
A. Intentional Torts 327
B. Negligence 327
1. DUTY OF CARE 327
2. STANDARD OF CARE 327
3. PROXIMATE CAUSE 328
4. ACTUAL LOSS OR INJURY 328
C. Defenses for Negligence 328
II. Liability under State Law 328
A. Immunity 328
B. Supervision Issues 329
1. BEFORE AND AFTER SCHOOL 329
2. DURING SCHOOL HOURS 330
3. OFF-CAMPUS ACTIVITIES 331
III. Liability under Federal Law 332
A. Liability under Title IX 332
1. TEACHER-TO-STUDENT HARASSMENT 332
Gebser v. Lago Vista Independent School District 332
Notes 335
xii Contents
2. STUDENT-TO-STUDENT HARASSMENT 336

Davis v. Monroe County Board of Education 336
B. Liability under 42 U.S.C. § 1983 341
Wood v. Strickland 341
Carey v. Piphus 346
Notes 348
IV. Parental Consent 349
V. Malpractice 350
VI. Insurance 352
Questions 352
APPENDIX A—Analyzing a Court Decision 353

APPENDIX B—An Introduction to Research in School Law 355
APPENDIX C—The Constitution of the United States of America—Edited 363
APPENDIX D—Statutory Material 367
Title VII of the Civil Rights Act of 1964 367
Pregnancy Discrimination Act of 1978 369
Age Discrimination in Employment Act of 1967 369
Title IX of the Education Amendments of 1972 370
Section 504 of the Rehabilitation Act of 1973 371
Family Educational Rights and Privacy Act of 1974 371
Equal Access Act of 1984 374
Civil Rights, 42 U.S.C. § 1981–1983 375
Chapter 92 of the Massachusetts Acts of 2010: An Act Relative
to Bullying in Schools 376
Glossary 379
Index 382
TABLE OF CASES*
Abbeville County School Dist. v. State, 310 Beaufort County Bd. of Educ. v. Lighthouse
Abbott v. Burke, 309 Charter School Comm., 322
Abood v. Detroit Bd. of Educ., 226 Beeson v. Kiowa County School Dist.
Adler v. Duval County School Bd., 48 RE-1, 152
Agostini v. Felton, 76 Belk v. Charlotte-Mecklenburg Bd.
Aguilar v. Felton, 76 of Educ., 248
Albach v. Olde, 151 Bensalem School Dist. v. Pennsylvania, 310
Alfonso v. Fernandez, 84 Berg v. Glen Cove City School Dist., 81
Alexander v. Holmes County Bd. of Bethel School Dist. No. 403 v. Fraser, 94
Educ., 243 Beussink v. Woodland R-IV School Dist., 99
Allegheny v. American Civil Liberties Bismarck Pub. School Dist. No. 1 v. State, 310
Union, 34 Bivens v. Albuquerque Pub. Schools, 142
Allen v. Casper, 121 Blase v. Illinois, 307
Ambach v. Norwick, 162 Blau v. Fort Thomas Pub. School Dist., 142
American Civil Liberties Union of New Blessing v. Mason County Bd. of Educ., 24
Jersey v. Black Horse Pike Regional Bd. of Bluestein v. Skinner, 185
Educ., 46 Bd. of Educ., Island Trees Union Free School
American Federation of Teachers-West Virginia Dist. No. 26 v. Pico, 179
v. Kanawha County Bd. of Educ., 184 Bd. of Educ., Levittown Union Free School Dist.
Anderson v. Creighton, 346 v. Nyquist, 309
Anderson v. Town of Durham, 315 Bd. of Educ. of Boone County v. Bushee, 307
Ansonia Bd. of Educ. v. Philbrook, 218 Bd. of Educ. of City School Dist. of Cincinnati v.
Arlington Central School Dist. v. Murphy, 275 Walter, 310
Bd. of Educ. of Indep. School Dist. No. 92 of
B. M. v. Montana, 351 Pottawatomie County v. Earls, 130, 135, 136
Bagley v. Raymond School Dept., 315 Bd. of Educ. of the Hendrick Hudson Central
Bailey v. Truby, 152 School Dist. v. Rowley, 257
Bannon v. Palm Beach County Bd. of Educ. of Oklahoma City Pub. Schools v.
School Dist., 104 Dowell, 247
Barcheski v. Bd. of Educ. of Grand Rapids Bd. of Educ. of the Town of Stafford v. State Bd.
Pub. Schools, 201 of Educ., 78
Barnes v. Bott, 330 Bd. of Educ. of the Westside Community Schools
Bar-Navon v. Brevard County School Bd., 141 v. Mergens, 52
Bartell v. Palos Verdes Peninsula School Bd. of Regents of State Colleges v.
Dist., 330 Roth, 158, 159
Battles v. Anne Arundel County Bob Jones Univ. v. U.S., 78
Bd. of Educ., 23 Bonner v. Daniels, 307
Bauchman v. West H.S., 177 Boone v. Boozman, 83
Beall v. London City School Dist. Boring v. Buncombe County Bd. of Educ., 176
Bd. of Educ., 192 Bostic v. Smyrna School Dist., 335
*Edited cases are indicated by boldface.

xiii
xiv Table of Cases
Boyd v. Harding Academy of Memphis, Cedar Rapids v. Garret F., 265

Inc., 218 Ceniceros v. Bd. of Trustees of the San Diego
Boy Scouts of America v. Dale, 74, 193 Unified School Dist., 53
Boy Scouts of America v. Till, 74 Chalk v. U.S. Dist. Court, 285
Bragg v. Swanson, 92 Chandler v. Miller, 185
Brands v. Sheldon Community School, 151 Charlet v. Legislature, 307
Brayton v. Monson Pub. Schools, 168 Cheema v. Thompson, 35
Brigham v. State, 311 Chevron U.S.A., Inc. v. Echazabal, 286
Britt v. North Carolina State Bd. of Educ., 310 Chicago Teachers Union Local No. 1
Brookhart v. Illinois State Bd. of Educ., 274 v. Hudson, 226
Brosnan v. Livonia Pub. Schools, 351 Chipman v. Grant County School Dist., 147
Broward County School Bd. v. Ruiz, 331 Chittenden Town School Dist. v. Dept.
Brown v. Bd. of Educ. of Topeka (Brown I), of Educ., 315
60, 207, 229, 230, 237, 242, 245, 254 Christian Legal Society Chapter of the Univ.
Brown v. Bd. of Educ. of Topeka (II), 240, 245 of Cal., Hastings College of Law v.
Brown v. Bd. of Educ. of Topeka (Brown III), Martinez, 54
248 Circle School v. Pappert, 108
Brown v. Bd. of Educ. of Topeka (Brown IV), City of Boerne v. Flores, 35
248 City of Pawtucket v. Sundlun, 310
Brown v. Gilmore, 32 Claremont School Dist. v. Governor, 308, 309
Brown v. Hot, Sexy and Safer Productions, Clark County School Dist. v. Breeden, 212
Inc., 177 Clark v. Shoreline School Dist. No. 412, 286
Brown v. Unified School Dist. No. 501, 248 Clements v. Bd. of Trustees of the Sheridan
Brunelle v. Lynn Pub. Schools, 22 County School Dist. No. 2, 157
Buckley v. Archdiocese of Rockville Center, 336 Cleveland Bd. of Educ. v. La Fleur, 213
Burruss v. Wilkerson, 288, 289, 311 Clyde K. v. Puyallup School Dist., 263, 271
Buse v. Smith, 311 Coalition for Adequacy and Fairness in School
Bush v. Holmes, 313, 320 Funding, Inc. v. Chiles, 307
Busch v. Maple Newtown School District, 178 Coalition for Equitable School Funding, Inc.
v. State, 310
Cain v. Horne, 321 Cockrel v. Shelby County School Dist., 183
Caldwell v. Cannady, 157 Colin ex. rel. Colin v. Orange Unified School
Calendra v. State College Area School Dist., 83 Dist., 52
California Federal Savings and Loan Ass'n Columbia Falls v. State, 308
v. Guerra, 217 Columbus Bd. of Educ. v. Penick, 244
Cameron v. Bd. of Educ. of Hillsboro, Ohio City Committee for Educational Equality
School Dist., 218 v. State, 308
Campaign for Fiscal Equity v. State, 309 Comm. for Educational Rights v. Edgar, 307
Campbell County School Dist. v. State, 311 Comm. for Pub. Educ. and Religious Liberty
Capitol Square Review and Advisory Bd. v. Nyquist, 75
v. Pinette, 34 Comm. for Pub. Educ. and Religious Liberty
Carey v. Piphus, 341, 346 v. Regan, 75
Carrollton-Farmers Branch Indep. School Commonwealth v. Cass, 140
Dist. v. Edgewood Indep. School Dist., 311 Commonwealth v. Douglass, 129
Castle v. Colonial School Dist., 228 Connick v. Myers, 166, 177, 190
Caudillo v. Lubbock Independent School Cooper v. Aaron, 242
Dist., 53 Cooper v. Eugene School Dist. No. 4J, 219
Table of Cases xv
Coquille School District 8 v. Castillo, 322 EEOC v. Kamehameha Schools/Bishop

Cordrey v. Euckert, 262 Estate, 219
Craig v. Selma City School Bd., 116 EEOC v. READS, Inc., 219
Curtis v. School Comm. of Falmouth, 83 Erb v. Iowa State Bd. of Pub. Instruction, 194
Curay-Cramer v. The Ursuline Academy, 168 Estate of Thornton v. Caldor, Inc., 218
Everson v. Bd. of Educ. of Township
D.B. v. Clarke County Bd. of Educ., 120 of Ewing, 77
Dailey v. Los Angeles Unified School Dist., 331 Ex parte James, 306
Dallam v. Cumberland Valley School
Dist., 151 Fair School Finance Council of Oklahoma
Danson v. Casey, 310 v. Oklahoma, 310
Davenport v. Washington Educ. Assn., 226 Farver v. Bd. of Educ., 151
Davis v. Monroe County Bd. of Educ., 332, 336 Farrington v. Tokushige, 20
De Michele v. Greenburgh Central School Dist. Felter v. Cape Girardeau School Dist., 264
No. 7, 205 Firefighters Local Union No. 1784
Dennin v. Connecticut Interscholastic Ath. v. Stotts, 207
Conf., 284 Flores v. Morgan Hill Unified School Dist., 349
DeRolph v. State, 310 Forest Grove School Dist. v. T.A., 263
Dibortolo v. Metropolitan School Dist. Fowler v. Bd. of Educ. of Lincoln County, 172
of Washington Township, 331 Fowler v. Williamson, 143
Dickens v. Johnson County Bd. of Educ., 116 Franklin v. Gwinnett County Schools, 332
Dickey v. Robinson, 309 Frazier v. Winn, 108
Dike v. School Bd. of Orange County, 217 Freeman v. Pitts, 247
diLeo v. Greenfield, 162 Freiler v. Tangipahoa Parish Bd. of Educ., 59
Dist. 27 Community School Bd. v. Bd. of Educ. Fuhr v. School Dist. of the City of Hazel Park,
of the City of New York, 280 209, 210
Doe v. Dekalb County School Dist., 285
Doe v. Little Rock School Dist., 136 Garcia v. Miera, 128
Doe v. Porter, 64 Garnett v. Renton School Dist. No. 403, 54
Donohue v. Copiague Union Free School Gaylord v. Tacoma School Dist. No. 10, 190
Dist., 351 Gebser v. Lago Vista Indep. School Dist., 332
Downing v. West Haven Bd. of Educ., 188 General Electric Co. v. Gilbert, 213
Dubuclet v. Home Insurance Co., 200 Georgia Ass'n of Retarded Citizens
Dupree v. Alma School Dist. No. 30, 306 v. McDaniel, 261
Gernetzke v. Kenosha Unified School Dist., 54
East Hartford Educ. Ass'n v. Bd. of Educ. of Gillett v. Unified School Dist. No. 276, 197
Town of East Hartford, 186 Gillman v. School Bd. for Holmes County, 92
East Jackson Pub. Schools v. Michigan, 308 Glover v. Williamsburg Local School Dist.
Eckmann v. Bd. of Educ. of Hawthorn School Bd. of Educ., 192
Dist., 214 Goetz v. Ansell, 108
Edgewood Indep. School Dist. v. Kirby, 311 Gong Lum v. Rice, 236
Edgewood Indep. School Dist. v. Meno, 311 Gonzaga University v. Doe, 110
Edwards v. Aguillard, 55 Gonzalez v. California State Personnel Bd., 286
Employment Div., Dept. of Human Resources Gonzales v. McEuen, 117
of Oregon v. Smith, 35 Good News Club v. Milford Central
Engel v. Vitale, 25 School, 68, 69
Epperson v. Arkansas, 59 Gosche v. Calvert High School, 197
xvi Table of Cases
Gosney v. Sonora Indep. School Dist., 162 Hot Springs County School Dist. No. 1
Goss v. Lopez, 111 v. Washakie County School Dist. No. 1, 311
Gottlieb v. Laurel Hills School Dist, 128 Howard v. Missouri State Bd. of Educ., 205
Gould v. Orr, 308 Hoyem v. Manhattan Beach City School
Grand Rapids School Dist. v. Ball, 76 Dist., 331
Grant of Charter School Application of Hsu v. Roslyn Union Frr Union School Dist.
Englewood on the Palisades Charter No. 3, 53
School, 322 Huffman v. State, 83
Gratz v. Bollinger, 250 Hull v. Albrecht, 306
Green v. County School Bd. of New Kent Hunter v. Bd. of Educ. of Montgomery County,
County, 243, 247 351
Griffin v. County School Bd. of Prince Edward
County, 242 IBEW Local 1245 v. Skinner, 185
Griggs v. Duke Power Co., 208 Idaho Schools for Equal Educational
Grove City Coll. v. Bell, 213 Opportunity v. State, 307
Grube v. Bethlehem Area School Dist., 281 Immediato v. Rye Neck School Dist., 94
Grutter v. Bollinger, 250 In re Grossman, 190
Guinn v. Nevada, 308 Ingraham v. Wright, 124
Guyer v. School Bd. of Alachua County, 34 Irving Indep. School Dist. v. Tatro, 264
Isaacs ex. rel. Isaacs v. Bd. of Educ. of Howard
Hancock v. Commissioner of Education, 308 County, 143
Hampton v. Orleans Parish School Bd., 331 Isiah B. v. State, 140
Harlow v. Fitzgerald, 345
Harper v. Edgewood Bd. of Educ., 143 Jackson v. Benson, 324
Harris v. Robinson, 129 Jackson v. Birmingham Bd. of Educ., 213
Harry A. v. Duncan, 348 Jefferson County School Dist. R-1 v.
Hazelwood School Dist. v. Kuhlmeier, 98, 100, Justus, 330
101, 177, 179 Jeglin v. San Jacinto Unified School Dist., 143
Heard v. Payne, 83 Jenkins v. Missouri, 247
Hearn v. Savannah Bd. of Educ., 185 Jerkins v. Anderson, 329
Helena Elem. School Dist. No.1 Johnson v. Burmaster, 323
v. Montana, 308 Johnson v. Ouachita Parish Police Jury, 329
Heller v. Hodgin, 98 Johnson v. Pinkerton Academy, 168
Helmes v. South Colonie Central School Jonathan G. v. Caddo Parish School Bd., 277
Dist., 217 Jones v. Clear Creek Independent School
Hennessy v. Webb, 329 Dist., 45
Herndon v. Chapel Hill-Carrboro City Bd. Jones v. State Board of Elementary and
of Educ., 94 Secondary Education, 307
Hernandez v. Don Bosco Preparatory Jordan v. School Dist. of City of Erie, 124
High, 124
Hoke County Bd. v. State, 309 Kadrmas v. Dickinson Pub. Schools, 80
Honig v. Doe, 267, 270 Kansas v. Stein, 140
Hornbeck v. Somerset County Bd. of Kari v. Jefferson County School Dist., 201
Educ., 308 Keyes v. School Dist. No. 1, 244
Horton v. Goose Creek Independent School Killion v. Franklin Regional School Dist., 99
System, 139 Kimble v. Worth County R-III Bd. of Educ., 200
Horton v. Meskill, 306 Kinsey v. Salado Indep. School Dist., 168
Table of Cases xvii
Kitzmiller v. Dover Area School Dist., 59 M.A.L. v. Kinsland, 104

Knights of the Ku Klux Klan v. East Baton Rouge Malnak v. Yogi, 64
Parish School Bd., 74 Marbury v. Madison, 16
Knox County Educ. Ass’n v. Knox County Bd. Marsh v. Chambers, 33
of Educ., 184 Matanuska-Sustina Borough School Dist.
Koenick v. Felton, 64 v. State, 306
Kotterman v. Killian, 323 Marrero v. Commonwealth
Kukor v. Grover, 311 of Pennsylvania, 310
Martinez v. School Bd. of Hillsborough
Labrosse v. Saint Bernard Parish School County, 281
Bd., 120 Maryland State Board v. Bradford, 308
Lacks v. Ferguson Reorganized School May v. Evansville-Vanderburgh School
Dist. R-2, 177 Corp., 219
Lake View School Dist. No. 29 v. Huckabee, 306 Mazanec v. North Judson-San Pierre
Lamb v. Panhandle Community Unit School School Corp., 22
Dist. No. 2, 116 Mazevski v. Horseheads Central School
Lamb's Chapel v. Center Moriches Union Free Dist., 151
School Dist., 68 McCann v. Fort Zumwalt School Dist., 104
Landstrom v. Illinois Dept, of Children and McCollum v. Bd. of Educ. of School Dist.
Family Services, 140 No. 71, 63
Lanner v. Wimmer, 63 McCormick v. School Dist. of Mamaroneck, 155
Lassonde v. Pleasanton Unified School McCreary County v. American Civil Liberties
Dist., 48 Union of Kentucky, 33
Lawrence v. Texas, 194 McDaniel v. Thomas, 287, 307
League of United Latin American Citizens McDuffy v. Sec'y of the Exec. Office
v. Wilson, 24 of Educ., 308
Leandro v. State, 309 McInnis v. Ogilvie, 288, 307
Lee v. Weisman, 36, 47 McInnis v. Shapiro, 288, 307
Lehnert v. Ferris Faculty Assn., 221 McLean Indep. School Dist. v. Andrews, 156
Lemon v. Kurtzman, 75 McNaughton v. Circleville Bd. of Educ., 156
Levitt v. Comm. for Pub. Educ. and Religious Meek v. Pittenger, 76, 77
Liberty, 75 Melzer v. Bd. of Educ. of School Dist.
Lewis v. Spagnola, 307 of New York, 204
Lipp v. Morris, 108 Members of the Jamestown School Comm.
Littlefield v. Forney Independent School v. Schmidt, 77
Dist., 145 Meredith v. Jefferson County Board
Livingston School Bd. v. Louisiana State of Education, 249
Bd. of Educ., 308 Metzl v. Leininger, 64
Lobato v. Colorado, 306 Miller v. Weaver, 193
Londonberry School Dist. SAU #12 Milliken v. Bradley (Milliken I), 245
v. State, 308 Milliken v. Bradley (Milliken II), 245
Lujan v. Colorado State Bd. of Educ., 306 Milliken v. Green, 308
Lynch v. Donnelly, 34, 35 Mills v. Bd. of Educ. of the Dist.
Lyons v. Penn Hills School Dist., 121 of Columbia, 254, 267
Missouri ex rel. Gaines v. Canada, 237
Madera v. Bd. of Educ. of the City of New Missouri v. Jenkins, 247
York, 124 Mitchell v. Helms, 76, 77
xviii Table of Cases
Mohammed ex rel. Mohammed v. School Dist. Ollier v. Sweetwater Union High School
of Philadelphia, 348 Dist., 155
Monell v. Dept. of Social Services of City Olsen v. Oregon, 310
of New York, 345 Owasso Indep. School Dist. No. I-011
Monroe v. Pape, 345 v. Falvo, 110
Monteiro v. Tempe Union High School Dist., 179 Owen v. City of Independence, 345
Montgomery v. Carr, 227 Owens v. Congress of Parents, 320
Montana v. Bd. of Trustees of School Dist.
No. 1, 152 Packer v. Bd. of Educ., 120
Montoy v. Kansas, 307 Palmer v. Bd. of Educ. of the City
Moore v. Knowles, 205 of Chicago, 172
Morse v. Frederick, 93, 98 Palmer v. Merluzzi, 148
Mozert v. Hawkins County Bd. of Educ., 61 Parents Involved in Community Schools
Mt. Healthy City School Dist. Bd. of Educ. v. Seattle School Dist., No. 1, 249, 324
v. Doyle, 163, 168, 176 Parents United for Better Schools, Inc.
Mueller v. Allen, 323 v. School Dist. of Philadelphia, 83
Muller v. Jefferson Lighthouse School, 61 Pauley v. Bailey, 311
Murray v. Curlett, 29 Pauley v. Kelly, 311
M.W. v. Panama Buena Vista Union Peck v. Upshur County Bd. of Educ., 62
School Dist., 330 Pegram v. Nelson, 151
Pendleton School Dist. v. State, 310
Nabozny v. Podlesny, 349 Pennsylvania Assn. for Retarded Children
Nagy v. Evansville-Vanderburgh School v. Pennsylvania, 254
Corp., 79 Pennsylvania School Bds. Assn.
Nat'l Gay Task Force v. Bd. of Educ. v. Zogby, 323
of Oklahoma City, 191 Perry v. Sindermann, 162
Nat'l Socialist White People's Party v. Ringers, 74 Peter W. v. San Francisco Unified School
Nat'l Treasury Employees' Union Dist., 350
v. Von Raab, 185 Pfeiffer v. Marion Center Area School
Nebraska Coalition for Educational Equity Dist., 147
and Adequacy v. Heineman, 308 Phillips v. Anderson County School Dist., 143
Neeley v. West Orange-Cove Consolidated Indep. Picarella v. Terrizzi, 139
School Dist., 310 Pickering v. Bd. of Educ. of Township
Newdow v. Rio Linda School District, 109 H.S. Dist. 205, 163, 164
New Jersey v. T.L.O., 130 Pierce v. Society of Sisters, 17, 18
New Life Baptist Church Academy v. Town of Pierce v. Sullivan West Central School
East Long Meadow, 21 Dist., 63
New York State Ass'n for Retarded Children Planned Parenthood v. Clark County School
v. Carey, 281 Dist., 105
Newport News Shipbuilding and Dry Dock Co. Pleasant Grove City v. Summum, 34
v. EEOC, 217 Plessy v. Ferguson, 229, 230
North Haven Bd. of Educ. v. Bell, 212 Plyler v. Doe, 8, 24
Northshore School Dist. No. 417 Poe v. Hamilton, 351
v. Kinnear, 311 Police Dept. of the City of Chicago
v. Mosley, 68
Oklahoma Educ. Assn. v. State, 310 Pub. Funds for Pub. Schools of New
Olesen v. Bd. of Educ., 141 Jersey v. Byrne, 77
Table of Cases xix
R.R. v. Bd. of Educ. of the Shore Regional Seattle School Dist. No. 1 of King County
H.S. Dist., 156 v. Washington, 311
Raleigh v. Indep. School Dist. No. 625, 332 Seemuller v. Fairfax County School Bd., 167
Reed v. Rhodes, 248 Serrano v. Priest, 289, 306
Reform Educational Financing Inequities Settlegoode v. Portland Pub. Schools, 171
Today v. Cuomo, 309 Shanklin v. Fitzgerald, 209
Richard v. St. Landry Parish School Bd., 330 Sharon v. City of Newton, 350
Roark, v. South Iron R-1 School District, 62 Sheff v. O'Neill, 245
Roberts v. Madigan, 61 Sherman v. Community Consolidated School
Robinson v. Cahill, 309 Dist. 21, 106
Romans v. Crenshaw, 154 Shofstall v. Hollins, 306
Romer v. Evans, 193 Skarin v. Woodbine Community School
Roncker v. Walter, 274 Dist., 177
Roosevelt Elem. School Dist. No. 66 Skeen v. State, 308
v. Bishop, 306 Skinner v. Railway Executives' Assn., 185
Rose v. Council for Better Educ., 298, 307 Sloan v. Lemon, 76
Rowell v. State, 136 Smith v. Bd. of School Commissioners
Rowland v. Mad River School Dist., 190 of Mobile County, 61
Rucker v. Colonial School Dist., 120 South Carolina Richland County
Rupp v. Bryant, 332 v. Campbell, 310
Rusk v. Crestview Local Schools, 62 South Gibson School Bd. v. Sollman, 121
Russo v. Central School Dist. No. 1, 172 Spring Branch Indep. School Dist.
v. Stamos, 152
S. v. Bd. of Educ., San Francisco Unified Springdale School Dist. v. Grace, 274
School Dist., 157 State v. Chafin, 311
Safford Unified School District v. Redding, 137 State v. Rivera, 22
Sain v. Cedar Rapids Community School State Bd. for Elem. and Sec. Educ.
Dist., 351 v. Howard, 228
San Francisco NAACP v. San Francisco Unified State ex rel. Woodahl v. Straub, 308
School Dist., 251 Steirer v. Bethlehem Area School Dist., 94
Santa Fe Indep. School Dist. v. Doe, 44, 47 Stewart v. Baldwin County
San Antonio Indep. School Dist. v. Rodriguez, Bd. of Educ., 345
289, 290, 311 Stoddard v. School Dist. No. 1, 162
San Diego Comm. Against Registration and the Stone v. Graham, 33
Draft v. Governing Bd. of Grossmont Union Stratechuk v. Bd. of Educ., South Orange-
H.S. Dist., 105 Maplewood School Dist, 35
Scarnato v. Parker, 297, 308 Strout v. Albanese, 315
Schaffer v. Weast, 275 Swann v. Charlotte-Mecklenburg
School Admin. Dist. No. 1 v. Commissioner, Dept. Bd. of Educ., 243, 248
of Educ., 308 Swanson v. Guthrie Indep. School
School Bd. of Nassau County v. Arline, 284 Dist. No. I-1, 23
School Dist. of Abington Township v. Schempp, Sweatt v. Painter, 237
25, 29 Sweezy v. New Hampshire, 5
School Dist. of Wilkinsburg v. Wilkinsburg
Educ. Assn., 323 Taborn v. Hammonds, 163
Schroeder v. Hamilton School Dist., 191 Taxman v. Bd. of Educ. of Township
Scott v. Commonwealth, 311 of Piscataway, 208
xx Table of Cases
Tennessee Small School Systems Walthart v. Edgewood-Colesburg Community

v. McWherter, 310 School Dist., 205
Texas v. Johnson, 109 Wards Cove Packing Co. v. Atonio, 208
Texas v. Project Principle, 209 Warren v. Nat'l Assn. of Secondary School
Thomas v. Atascadero Unified School Dist., Principals, 156
277, 278 Washakie County School Dist. No. 1
Thompson v. Carthage School Dist., 193 v. Herschler, 311
Thompson v. Engelking, 307 Washegesic v. Bloomingdale Pub. Schools, 33
Tibbs v. Bd. of Educ. of the Township Weaver v. Nebo School Dist., 192
of Franklin, 156 Webb v. McCullough, 134
Timothy v. Rochester School Dist., 261 West Orange-Cove Consolidated Indep. School
Tinker v. Des Moines Indep. Community Dist. v. Alanis, 310
School Dist., 85, 86 West Virginia State Bd. of Educ.
Truelove v. Wilson, 329 v. Barnette, 108
Truth v. Kent School District, 53 Wigg v. Sioux Falls School Dist., 49-5, 219
Tudor v. Bd. of Educ. of Borough Wiley v. Franklin, 64
of Rutherford, 61 Williams v. Vidmar, 178
Tyler v. Hot Springs School Dist. No. 6, 208 Willoughby v. Lehrbass, 331
Wilson v. Chancellor, 180
Unified School Dist. No. 229 v. Kansas, 307 Wimberly v. Labor and Industrial Relations
Unified School Dist. No. 501 v. Smith, 248 Comm. of Missouri, 217
U.S. v. Bd. of Educ. for the School Dist. Winkelman v. Parma City School Dist., 275
of Philadelphia, 218 Winn v. Arizona Christian School, 323
U.S. v. Eichman, 109 Wisconsin v. Yoder 20
U.S. v. LULAC, 209 Wisniewski v. Bd. of Educ. of Weedsport Central
U.S. v. O’Brien, 145 School Dist., 99
U.S. v. South Carolina, 209 Withers v. State, 310
United Teachers of New Orleans v. Orleans Wolman v. Walter, 76, 77
Parish School Bd., 184 Wood v. Strickland, 341
Wygant v. Jackson Bd. of Educ., 207
Valeria v. Davis, 179
Van Dusartz v. Hatfield, 308 Yap v. Oceanside Union Free School
Van Orden v. Perry, 33 Dist., 348
Vargas-Harrison v. Racine Unified School Yeo v. Town of Lexington, 105
Dist., 167 Younge v. Bd. of Educ., 185
Vernonia School Dist. 47J v. Acton, 130, 135
Vincent v. Voight, 311 Zamora v. Pomeroy, 124
Virgil v. School Bd. of Columbia Zelman v. Simmons-Harris, 78, 315, 324
County, 179 Zobrest v. Catalina Foothills School
Dist., 264
Wagenblast v. Odessa School Dist., 350 Zorach v. Clauson, 63
Wallace v. Jaffree, 32 Zweifel v. Joint Dist. No. 1, 24
PREFACE
This textbook borrows from the teaching traditions of the legal community. It is a “casebook”
similar to those routinely used in the preparation of lawyers in law schools. Such texts are collec-
tions of actual court opinions, in which instructional material and exposition are minimized and
through which students learn legal principles by examining real-life situations. Casebook authors
select, edit, and arrange judicial opinions to facilitate extracting what the author considers to be
important points of law. Brief written comments and questions assist in this process.
Accordingly, the presentation of court cases herein should not be considered as supplementary il-
lustrations of the textual material but rather as the book’s primary raw material.
Particularly in the last half of the twentieth century, courts began playing a significant role
in establishing educational policy. During this time the judiciary, especially the federal, was often
viewed as a branch of government that would redress grievances the other branches of government
were perceived as unwilling to address. Although this view of the courts has diminished in recent
years, the judiciary continues to be a considerable force in determining educational policy.
Groundbreaking court decisions dealing with such issues as school desegregation, separation of
church and state, the extent to which students and teachers may engage in freedom of expression,
due process for both students and teachers, individuals with disabilities, equitable financing of
public schools, and educator liability all attest to the extent and magnitude of judicial influence.
This judicial activity has produced a sizable body of school law that educators should be
familiar with if they wish to conduct themselves in a legally defensible manner. Those educators
who “fly by the seat of their pants” or who act on the basis of what they think the law “should be”
may be in difficulty if sufficient thought is not given to the legal implications and ramifications
of their policies or conduct. Consequently, this text provides introductory K–12 legal material for
educators and laypersons who have little or no knowledge of or background in school law. This
group would include teachers, school administrators and leadership personnel, school board
members, preservice teachers, and public school students and their families.
It would be difficult for a one-volume work to cover all significant school law topics.
Therefore, this text attempts to address selected school law issues with an emphasis on those
having direct impact at the school building level. When appropriate, for a better understanding of
current educational law, an historical perspective is provided in addition to case and statutory
law. Because there is no single legal educational authority under which the American educational
system operates, it is important that educators have an understanding of the various government
entities involved in the governance process. Chapter 1 identifies these entities and describes their
role in providing educators with the policies and rules under which they operate. These sources
of law include federal and state constitutions, federal and state statutes, state school board policy,
attorney general opinions, local school board policy, and local school policy. Also addressed in
this chapter is the significance of the Fourteenth Amendment’s Due Process and Equal
Protection provisions as a basis for many school lawsuits, the importance of case law in estab-
lishing educational policy, and the organization of the American dual court system.
Chapter 2 examines the extent of the state’s and local school system’s authority when patrons
disagree with educational policy. A reading of the court decisions in this chapter reveals the judi-
ciary’s attempt to establish a balance between the legitimate demands or objections of individuals
toward education policy and school authorities’ perception of their responsibility to the greater pop-
ulation to maintain a safe and nondisruptive environment. School law issues selected to illuminate
xxi
xxii Preface
this area include compulsory school attendance, private schools and homeschooling; religion in the
schools; use of school facilities; aid to nonpublic schools; school fees; and health services.
Issues pertaining to students and teachers are of particular interest to school law students;
therefore, Chapters 3 and 4, which address these topics, comprise a major portion of the text.
Chapter 3 presents material pertinent to student issues such as freedom of expression (including cy-
berbullying); privacy of records; suspension, disciplinary transfer, and expulsion; corporal punish-
ment; search of students; student appearance; pregnancy, parenthood, and marriage; participation in
extracurricular activities; and school punishment for out-of-school offenses. Chapter 4 examines
such teacher-related issues as nonrenewal and dismissal; freedom of expression; academic freedom;
drug testing; personal appearance; the teacher as an exemplar; employment discrimination based on
race, sex, pregnancy, religion, and age; teacher bargaining; and political activities of teachers.
Chapter 5 provides an historical legal perspective to the issues of school desegregation. Such
an inquiry is necessary for practitioners and school patrons to better understand current school poli-
cies and practices related to racial issues. Early desegregation efforts in the South and more recent
desegregation endeavors in the non-Southern states are revealed, and such current issues as the re-
lease from desegregation court orders and the race-related placement of students are also reviewed.
Chapter 6, written by Professor John Dayton, addresses the legal status of individuals with
disabilities. Historical perspective is provided for this important area of school law, in addition to
a review of current law under the Individuals with Disabilities Education Act (IDEA), Section 504
of the Rehabilitation Act, and the Americans with Disabilities Act (ADA). Emphasis is given to
IDEA and its most current amendments and regulations.
Chapter 7 provides an historical perspective to the legal attacks on the financing and adequacy
of state school finance plans. These legal issues emerged in the early 1970s and have continued to be
litigated in many states. A listing of state finance-related decisions is provided. Also discussed is the
school reform measure known as school choice. Legal decisions addressing such school-choice issues
as voucher programs, tuition-reimbursement policies, and charter schools are presented. Knowledge of
the complexities of school finance is not necessary for an understanding of the material in this chapter.
Chapter 8 addresses the extent, if any, of educator and school district liability for damages
as a result of their official action or inaction. Because the law in this area varies considerably
among the states, emphasis is given to such general concepts as duty and standard of care, school
district immunity, duties of supervision, and malpractice. Liability for damages under Title IX
pertaining to teacher-to-student and student-to-student harassment and liability for damages
under Section 1983 of the Civil Rights Act of 1871 are also presented. Tort law is a highly spe-
cialized branch of law that is exceedingly complicated; therefore, this chapter makes the reader
aware of the potential of liability for damages resulting from improper behavior.
Appendices provide additional information, enabling the reader to gain a broader perspec-
tive. Appendices A and B are designed to be primers for the reader who wishes to become more
adept at analyzing court decisions or engaging in school-related legal research. Appendix B is de-
signed to provide rudimentary legal-research methodology and information on primary and sec-
ondary legal resources available to those interested in legal research. Computer-minded readers
may be interested in the brief section discussing legal material available on the Internet. Appendix C
contains sections of the U.S. Constitution and amendments that are most relevant for educators.
Appendix D contains edited statutory material that has significance for educators. A glossary of
often-used legal terminology is included for the reader’s convenience in better understanding the
edited court decisions. An index lists school law topics for facilitating their reference.
Edited, reported, verbatim decisions constitute a substantial portion of this book. The reading of
a judge’s or justice’s written opinion—majority, concurring, or dissenting—provides valuable philo-
sophical underpinnings for a thorough understanding of judicial rationale. It also enables the reader to
Preface xxiii
relate a court’s legal rationale to a specific factual context. Emphasis is on substantive school law is-
sues. Deleted from the edited cases is material not related to the issue being examined, material per-
taining to technical legal matters, and procedural legal issues that are of primary interest to attorneys.
Inclusion in this text of a particular court decision is based on several factors, which in-
cluded selecting the case decided by the highest-level court that had addressed the specific
school law issue under consideration, thereby providing the widest applicability; the case that best
represented the majority of cases in areas where the law was not well settled; or the case that
best illustrated the historic evolvement of the case law under consideration.
Students of school law are encouraged to read entire unedited court opinions in those areas
of school law in which they have a particular interest. Fortunately, most opinions are now avail-
able on the Internet. Search engines such as Google provide links to many verbatim court deci-
sions in addition to commentary regarding the decision.
Notes and questions follow many of the edited decisions. The notes are designed to pro-
vide helpful information such as background material, additional citations for those interested in
pursuing further the issue under consideration, the extent to which the law is well settled, or
other views if the law is not well settled. Provocative questions are included throughout the text
to illuminate the topic and foster discussion.
This book has not been written with the intention of expressing opinions for or against
views espoused by school administrators, teachers, or students, nor to contend that the judiciary
is a meddlesome institution thwarting the efforts of educators. Rather, the book’s purpose is to
provide those who are involved in public school education with a rudimentary knowledge base
for making educationally sound decisions within the legal framework. Having such knowledge
may reduce the tendency to act on the basis of what the law should be rather than what it is. In
that sense, this book stresses the descriptive, not the prescriptive.
I assume that public school students learn best about law and order through its observance by
knowledgeable teachers, school administrators, and school board members. And because an impor-
tant aspect of public school education is the inculcation in students of the notion that we are a “na-
tion of laws and not of men,” educators must be familiar with school law to abide by the law. This is
of considerable concern to me because of my experience as a youth under Adolf Hitler in Nazi
Germany. It was observed that one strategy a dictator such as Hitler used to strengthen and solidify
his power was the systematic breakdown of law in Germany. As the law was increasingly disre-
garded, the power of the Nazis increased, and the country became a “nation of men and not of laws.”
In acknowledgment, students in my school law classes over the years deserve a special
word of thanks, not only for their scintillating and penetrating questions but also for sharing with
me those school law topics they deemed important as they carried out their school-related re-
sponsibilities. Several students—Robert Meadows, Betty Hull, Jeffrey Williams, Pat McCollum,
and Neil McIntyre—have made valuable contributions, and they have my gratitude. A special
thank-you is due Professor John Dayton, Department of Leadership, College of Education, at
The University of Georgia. He has contributed Chapter 6, entitled Individuals with Disabilities
and the Law. He is a delightful colleague and dear friend who continues to share his valuable in-
sights and suggestions with me. Troy Bassett’s technical assistance has been particularly invalu-
able. Over the years, Dan Long, Publications Officer at the United States Supreme Court, has
been most helpful in providing me with the most current Court citations. Of course, any failure
of omission or commission in this book is my sole responsibility.
This book does not serve as a substitute for competent legal advice should it be needed.
However, in addition to having acquired knowledge of school law, an understanding of other
legal material in this book should help to foster a more fruitful exchange with an attorney when
that is necessary.
xxiv Preface
Finally, it was a delight to have the opportunity of again revising this text, as the examina-
tion of school law issues continues to be, for me, an exciting and rewarding enterprise.
NEW TO THIS EDITION

Although the vast body of school law may not change markedly over time, there are some areas
of the law which are new, where there is uncertainty, or where change has occurred since the last
edition. These developments may be minor, yet in some instances, they may be quite dramatic.
To ensure that this edition contains the most current available information, the previous edition
has been examined to determine whether the case law contained therein has been overturned or
revised or whether new case law has been established. Statutory material no longer operative has
been deleted and relevant statutory material added.
It is imperative that those involved in making and enforcing educational policy have access to
the most up-to-date law. Having such a knowledge base allows them to ascertain whether school
policies under which they operate reflect current law. When disputes arise, having such knowledge
ensures that all members of the school community are treated fairly and in a lawful manner.
New Material for the Tenth Edition Includes:
• Extensive examination of recent U.S. Supreme Court decisions, including: Morse v.
Frederick, which upheld a school principal’s sanction of a student who refused to take
down a banner he had unfurled proclaiming BONG HiTS 4 JESUS; Safford Unified School
District v. Redding, which established the limits of intrusive student strip search; Parents
Involved in Community Schools v. Seattle School District No. 1, which ruled that race can-
not be the sole determinant for student placement when attempting to establish racial di-
versity; and Christian Legal Society Chapter of the University of California, College of
Law v. Martinez, in which the Court upheld a college’s rejection of a Christian group’s of-
ficial recognition because members had to sign a “Statement of Faith”
• Examination of lower court decisions and commentary on such student issues as: wear-
ing the confederate flag, gay student harassment, regulating student Internet messaging,
cyberbullying, bullying, parental notification when students refuse to pledge the flag, body
piercings, and failure to provide equal opportunities under Title IX
• Examination of lower court decisions and commentary on such teacher issues as: ran-
dom drug testing, lesbian teacher discrimination, and maternity leave discrimination
• Examination of lower court decisions and commentary on such religious issues as: re-
strictions on celebratory religious music, religious requirements for student membership in
religious clubs under the Equal Access law, Bible distribution, and not allowing a parent to
read Bible verses to kindergarten students
• Examination of lower court decisions and commentary on such issues as: homeschool-
ing, online learning, home-based charter schools, and vouchers
• Continued examination of the role of federalism philosophy in Supreme Court decisions
interpreting the Fourteenth Amendment
• Up-to-date listing of school finance-related decisions
• The most current statement of the law on the IDEA including up to date statutory and reg-
ulatory language and reference to all recent U.S. Supreme Court cases
• Massachusetts edited bullying statute added to the appendix
A NOTE TO USERS OF THIS TEXT
Learning the law from a casebook allows the reader to discover what the law “is” from a primary
source such as a court decision. It also has the added advantage of the reader being exposed to
legal rationale and reasoning. Reading the exact words of justices or judges in a casebook pro-
vides a richness to school law information that is superior to merely being presented with an au-
thor’s secondary analysis of what a court decision has said.
Although knowledge of specific school law information is essential, understanding legal
rationale and learning to engage in legal reasoning are equally important, in my view, than acquiring
an encyclopedic knowledge of specific laws that may change over time. Few factual patterns
encountered by the practicing educator will match perfectly an explicit legal rule. Therefore, having
a broad understanding of legal precedent combined with staying abreast of school law developments
will provide the educator on the firing line with a background to deal with the host of novel situations
that may be faced. This approach also has the benefit of furnishing the reader with sufficient back-
ground to determine whether the law in a particular area is “well-settled” or is in a state of flux.
The majority of the material in this book provides useful legal information that may be uti-
lized immediately in the workplace regarding issues dealing with students, teachers, or the legit-
imacy of controversial policies. Material is also presented to serve a more educative function by
providing a historical perspective or information that an “educated” as opposed to a trained edu-
cator should have in order to fully understand the present legal landscape.* Examples of such
material include religion in the schools, freedom of expression, student and teacher rights, pub-
lic school desegregation, school finance litigation, and school choice issues.
This text may be used with a Socratic Method of teaching. When employing this teaching
strategy, the instructor assigns a group of cases to be read and analyzed, and in class he or she calls
individually on students orally to “brief” a case. Briefing a case is a systematic analysis of a court
decision designed to extract the most pertinent information from the decision under consideration.
Such a method of examination is described in Analyzing a Court Decision in Appendix A.
When employing the Socratic Method, the instructor attempts through questioning to draw
from students their overall understanding of the case and, perhaps most important, their under-
standing of the relevant legal principles. In this process, students are often challenged to the lim-
its of their abilities to make increasingly fine observations and distinctions, and feedback of the
student’s recitation is provided. Initially, this individual questioning may not always be pleasant
for students, but they soon learn that casual readings of cases for their main ideas are insufficient;
instead, cases must be read slowly, deliberately, and repeatedly. The technique demands thor-
ough preparation from both instructor and student.
I successfully employed this demanding method in my school law classes and found that
analyzing case law in this manner does indeed cause students to gain a more thorough under-
standing of school law. Additionally, the promise of having to recite in class motivates most stu-
dents to superb performance, which unquestionably enhances learning. Inducing students to
think “on their feet” and to perform under pressure seems to be highly appropriate in the prepa-
ration of educational leaders. Whether or not other instructors choose to complement this case-
book with the Socratic Method, it is hoped that the cases speak to at least the rudiments of an
enormous, diffuse body of law and that the book will challenge readers to further study.
*Trained in this sense refers to having information to do a specific job rather than having knowledge of a broader picture
of the world in which one operates.
xxv
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ABOUT THE AUTHOR
The author was born in Hackensack, New Jersey, and shortly after his birth was moved to
Bielefeld, Germany. He retains vivid memories of experiences in Nazi Germany as a young boy.
After returning to the United States, just before World War II, he spent his younger years in
northern New Jersey. He attended Stevens Institute of Technology in Hoboken, New Jersey, for
two years before entering the U.S. Air Force. During almost six years on active duty, and contin-
ued air force activities as a reserve officer, he flew, in many types of aircraft, all over the globe.
He retired as a colonel, his last assignment being the Mobilization Augmentee to the
Commandant of the Air Force War College, a brigadier general’s position.
After leaving the military, he spent several years attempting to become “educated.” He
graduated from San Jose State University with a BA in political science and minor in economics,
spent a year at UC Berkeley Boalt Hall School of Law, earned an MA in political science and
minor in economics from San Francisco State University, and obtained a PhD in the school ad-
ministration program in the School of Education, University of California, Berkeley.
He has taught at the high school level and taught School Law, Politics of Education, and
Economics of Education at the University of Georgia. During his tenure at the university, he
served as associate dean and, for twenty years, was a continuing consultant on school finance re-
form matters to the Georgia General Assembly, the governor’s office, and the state superintend-
ent of schools.
xxvii
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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 arbi-
trarily 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 gov-
ernment 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 teach-
ers, the role of religion in the schools, searches of students and teachers, and the extent to
1
2 Chapter 1 • Educational Governance
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; how-
ever, 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 oper-
ating. 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 gov-
ernance, 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 re-
garding the legitimate role of each of the levels of governance. Examples of these conflicts
abound: a local school system not wishing to allow after-hours use of its schools to certain
types of groups, but forced to do so by a federal court order; “wealthy” local school systems
barred, as a result of a state supreme court decision, from appreciably supplementing the state-
financed program; and local school systems having to accept an amount of disruption by stu-
dents wishing to express themselves on political, social, or economic matters, protected by a
United States Supreme Court decision.
The difficulty of attempting to administer schools in a lawful manner is compounded when
educators, unfamiliar with the nuances of the legal system, perceive that there are seeming incon-
sistencies and occasionally acrimonious disagreement among judges in certain court decisions.
Such a situation may occur when a decision is changed one or more times as an educational issue
winds its way through the appellate process. Occasionally, this judicial review process can reveal
sharp philosophical differences among judges. Such a perceived lack of consistency in court de-
cisions, in their state or among other states, regarding certain issues is also often troubling to
some educators. They find it difficult to understand why an educational practice has court ap-
proval in one state or area of federal jurisdiction and not in another. The legitimacy of a federal
court overruling a state court’s decision is also not always completely understood, especially
when such a ruling increases the difficulty of administering schools because of strong local,
state, or regional disagreement with such a ruling.
School administrators often view themselves as working in a climate of uncertainty as to
the legality of their administrative decisions. This may be due to insufficient knowledge of
constitutional law as it pertains to educational matters or inadequate knowledge of recent court
decisions. Relying on what is perceived as sound educational practice in making administrative
decisions is helpful, but it is not always a guarantee that the practice will avoid conflict with legal
mandates.
*
This plenary power is diminished, of course, when the state accepts federal education funds, which requires compliance
with federal mandates and decisions of the federal judiciary.
Chapter 1 • Educational Governance 3
One remedy for ensuring lawful educational policymaking and administrative conduct,
thereby reducing conflict and misunderstanding among educators, is a systematic study of the
sources of law under which educators operate. Such a study follows and is designed to illuminate
the legitimate role of the various levels of government and their component branches. Although
sources of law may be examined in various ways, a particularly fruitful method is to analyze
those sources that spring from each level of government.
I. SOURCES OF LAW
A. Federal Level
At the federal level, the Constitution and its amendments, statutes, rules and regulations of ad-
ministrative 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 re-
sult 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 of-
fenses; 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 automat-
ically 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 alle-
giance 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 ques-
tions 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 stand-
point, 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 administra-
tive 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 federal-
ism, 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 rat-
ification 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 inten-
tions 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 del-
egated to the United States by the Constitution, nor prohibited by it to the States, are reserved to
Chapter 1 • Educational Governance 5
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 citi-
zenship 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 educa-
tional 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 govern-
ment officials, which of course includes educators, to be fair as they conduct governmental busi-
ness. 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 appre-
hended or tried in a court. Accused persons must be given twelve jurors, for instance, if every-
one 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 re-
ceived 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 reason-
ableness 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 pro-
tection 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 re-
garding 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 con-
sider 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 educa-
tionally sound. Additionally, courts examine whether an official’s actions were guided prima-
rily 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 un-
derpinnings 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 indi-
viduals 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 jun-
gle” 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 individ-
ual’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.
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looked into Collins’ distorted face, I began to wonder. However, so
far as I was concerned, that was neither here nor there. We were
going to have a long time in the ice yet together, and if life was to
continue reasonably pleasant in the imprisoned Jeannette’s cabin,
Collins must not make a fool of himself.
“Come now, Collins,” I begged persuasively, “think it over, and
you’ll see what I tell you is so—the order’s reasonable enough. But
even if it weren’t, you’d only make a bad matter worse by your ‘silent
protest.’ I wouldn’t do that. It bears on me the same as it does on
you. Now I’m an officer of twenty-three years seniority, which is more
than De Long has, and were we both on board a frigate I’d be very
much Mr. De Long’s senior. But here on the Jeannette he’s captain
and my superior, so I don’t feel it bears on me at all that I have to ask
his permission to come or go—it’s only a custom of the Service. And
there’s the skipper now,” I added as De Long appeared on deck from
the poop and stood blinking a moment in the glare from the ice.
“Think it over!”
But unfortunately for my clumsy efforts to pour oil on the troubled
waters, Collins’ eyes, gazing out over the ice, happened to fall at that
moment on the two little wood and canvas outhouses a ship’s length
off the starboard beam, which served officers and men as toilets,
since frozen in as we were, the regular ship’s “heads” on the
Jeannette itself had been placed out of commission. To these
“heads” on the ice all hands of course went freely as nature called.
Collins’ eyes lighted up as he contemplated them. He faced me with
a queer grin.
“Well, chief, I’ll modify a bit what I just said about asking
permission to leave the ship. In such simple language that he can’t
possibly misunderstand, I’ll beg the captain’s royal permission every
time I have to visit the ‘head’ and I’m going to start right now!” He
turned aft toward the poop.
Amazed at Collins’ intended action, I grabbed his arm and stopped
him short.
“Look here, old man, none of that! Do you want to insult the
captain openly?”
Collins twisted out of my grip.
“What do you think he’s trying to do to me, chief? I’ll merely be
carefully obeying his order. By God, I’m going to ask him to let me go
on the ice right now!” He strode aft, stopped before the skipper,
saluted him elaborately.
What he said to De Long, I can only imagine, since I was too far
away to hear, but I judge he phrased his request in about as plain
old-fashioned Anglo-Saxon as it could be put, for De Long, obviously
startled, flushed a fiery red, retorted angrily, and then turned on his
heel.
And from that time forth, Mr. Collins and Captain De Long
remained separate in all things as much as they could, simply
carrying on the duties of the ship. And from that time also, Collins,
fancying offense to himself in almost every remark made in the
wardroom mess, withdrew more and more from association with the
rest of us, sticking only the more closely to Newcomb, who as the
sole other non-seagoing civilian aboard, he may have considered as
a sort of fellow victim.
CHAPTER XII
September passed, and the hoped-for gales which might break up

the pack and allow us to escape, or at least to work into a winter
harbor in distant Wrangel Land, failed to materialize. October came
and went in the same manner, no real gales, no winds strong
enough to have any effect on the ice, nothing but daily gusts of fine
snow which cut our faces and spoiled our footing for exercise.
Frozen in, we went with the ice drift, in a general northwesterly
direction, till the rocky outline of Herald Island faded into the
hummocky horizon to the south, while our continued failure to sight
land to the westward made it less and less likely every day that
Wrangel Land stretched northward as we had been led to expect.
But we were not idle. After all, our expedition was a scientific one.
Aside from attempting to reach the Pole, aside from discovering new
lands in this unexplored ocean, our major aim was to add to the
world’s knowledge of the Arctic seas, of the Arctic skies, of magnetic
phenomena, of meteorological information and of animal life in the
unknown north. For these purposes we were the most elaborately
equipped expedition which had ever gone north. We carried two
scientists and God only knew what varieties of scientific instruments
gathered from the Smithsonian Institution and the Naval
Hydrographic Office.
Since exploration and discovery were for the present out of
question, De Long turned to all hands intensively on these scientific
phases. On the ice a hundred yards from the ship so as to be
unaffected by the iron in her, we set up a canvas observatory, with
compass, dip circle, anemometer, rain-gauge, barometer, pendulum,
and a variety of thermometers. Over the side, through a hole
chopped in the thick ice, we provided an opening for our dredge and
our drift lead. Hourly we took observations (and carefully recorded
them) of every type of phenomenon for which we were equipped to
measure—magnetic variation and dip, wind velocity and direction,
humidity, air pressure and temperature, gravity readings,
temperature of the sea at top, bottom, and points in between, salinity
of the sea water, speed and direction of drift—all this data laboriously
read night and day in the Arctic chill went into our logs. And for the
zoological and botanical side of our expedition, all hands were
directed to bring in for Newcomb’s inspection specimens of anything
found on the ice, under, or above it, which meant that whatever our
guns could knock down in the form of birds or beasts, or our hooks
could catch in the way of fish, passed under Newcomb’s scrutiny
before (in most cases) they went to Ah Sam and were popped into
the galley kettles.
And to top off all in completing our polar records, we brought along
an extensive and expensive photograph outfit, intending to get a
continuous record of our life in the Arctic and particularly some
authentic views of Aurora Borealis.
So there being nothing else to compete with it for our time, science
received a double dose of attention, too much in fact. Taking the
multitude of readings every hour (there were sixteen thermometers
alone to be read) kept the watch officer hopping, and as each of us,
except Collins and Newcomb, had ship and personnel matters to
look after, it became to a high degree a nuisance. Most of this
scientific work naturally should have fallen to Collins and Newcomb,
but unfortunately matters in their departments went none too
smoothly. The captain received a severe jolt when he learned that
the photographic outfit, entrusted to Collins’ care, was practically
useless because our meteorologist had neglected when buying his
photographic plates in San Francisco to get any developer for them
and that not a picture he took could be developed till we got back to
civilization. When on top of this, one of our barometers and some of
our precious thermometers entrusted also to Collins were carelessly
broken, the captain began to mistrust Collins as a scientist and
loaded a considerable part of the observation work on Chipp, on
Ambler, and on me—a development which did not help to make any
more amicable the attitude of Collins towards his shipmates.
Speaking frankly, after two months’ close association in the cabin
of the Jeannette, we were beginning to get tired of each other’s
company. Life on shipboard is difficult at best with the same faces at
every meal, the same idiosyncrasies constantly rubbing your nerves,
the same shortcomings of your messmates to irritate you; but
ordinarily there are compensations. Shore leave gets you away from
your shipmates, while foreign ports, foreign customs, foreign scenes,
and foreigners give flavor to a cruise that makes life not only livable
but to my mind rich in variety, and to a person like myself, completely
satisfying. But in the polar ice, we came quickly to the realization that
life on the Jeannette was life on shipboard at its worst—a small
cramped ship, a captain who socially had retired into himself, only a
few officers, and not a solitary compensation. No possibility of shore
leave, no foreign ports—nothing but the limitless ice pack holding us
helpless and no hope of any change (except for the worse) till
summer came and released us. And, impossible to conceal, a mental
despondency, as ponderable and as easily sensed as the cold
pervading the ship gripped our captain as we drifted impotently with
the pack between Herald Island and Wrangel Land, a thousand
miles from that Pole which in a blare of publicity from the Herald, he
had set out in such confidence to conquer.
Gone now were all the fine theories about the Kuro-Si-Wo Current
and the open path to the northward through the Arctic Ocean that its
warm waters would provide. We had only to look over the side at the
ice floes fifteen feet thick gripping our hull to know that the “black
tide” of Japan had no more contact with these frozen seas than had
the green waters of the Nile. And just as thoroughly exploded was
that other delusion on which we had based our choice of route—the
Herr Doktor Petermann’s thesis that Wrangel Land was a continent
stretching northward toward the Pole along the coasts of which with
our dog teams we could sledge our way over firm ground to the Pole.
Every glimpse we got of it as we drifted northwest with the pack for
our first eight weeks showed conclusively enough that Wrangel Land
was nothing more than a mountainous island to the southward and
not a very large island at that. As for Dr. Petermann and his idea that
Greenland stretched upward across the Pole to reappear on the
Siberian side as Wrangel Land, if that ponderous German scientist
who so dominated current European opinion on polar matters could
have been forced to spend a week in our crow’s-nest observing how
insignificant a speck his much publicized Wrangel Land formed of
the Arctic scene, I am sure the result would have been such a
deflation of his ego and his reputation as might be of great benefit at
least to future explorers even if too late to be of service to us in the
Jeannette, already led astray by the good doctor’s teachings.
How much the general knowledge amongst our officers that every
theory on which the expedition had been based was false had to do
with the lack of sociability and of harmony among us, and how much
of it may have been owing simply to our physical imprisonment in the
ice, I will not venture to say. But in my mind, the belief of all that as a
polar exploring expedition we were already a failure, doomed never
to get anywhere near the Pole, had a decided, if an unconscious,
bearing on the reactions of all of us, and most of all on the captain
and on Collins, both of whom had brought along massive blank
journals whose pages they had confidently expected to fill with the
records of their discoveries.
The captain’s journal I sometimes saw, as each evening around
midnight he toiled over his entries. Instead of records of new lands
discovered, of the attainment of ever-increasing latitudes exceeding
those around 83° North reached by the English through Baffin Bay
and Smith Sound, how it must have gnawed the captain’s heart that
his entries had to be confined to such items as my struggles with our
distilling apparatus, our difficulties with such newfangled gadgets as
telephones and electric generators, or the momentous facts that
Aneguin, Alexey, or Captain Dunbar (as the case might be) had
chased a polar bear (or perhaps a walrus) which had been shot (or
had escaped). All of these happenings to De Long’s chagrin must be
recorded as having occurred in the low seventies, latitudes far to the
south of those reached even by the insignificant and ill-equipped
caravels of Dutch seamen three hundred years ago in their
explorations of Spitzbergen.
What Collins put in his journal, I never knew. But I can well
imagine how much it must have irked him, a newspaper man
accustomed to live in an atmosphere of printing presses rumbling
away over their grist of momentous world events to be spread daily
before the eager eyes of Herald readers, to have nothing to record
except perhaps his personal sense of injustice. Yet put down
something every day he did, for I can still see him, his long drooping
mustaches almost sweeping the pages, religiously bending over the
leather-bound ledger every afternoon in his chilly cabin in the
Jeannette’s poop, pouring the bitterness of his soul onto those
pages, building up a record with which I doubt not he hoped when
we returned to civilization to blast De Long out of the Service in
disgrace.
CHAPTER XIII
On November 6, two months to a day of our being trapped in the

pack, came the first break in the monotony of our imprisonment.
About four in the afternoon Collins, trudging perhaps for the
thousandth time the rough path to the observatory across that
hundred yards of ice which we had come to regard as substantial as
a Broadway sidewalk, came pell-mell back to the ship and up the
gangway into the wardroom to startle us with the news that the pack
ice had cracked wide open between our ship and the observatory!
We rushed on deck and over the side. Sure enough it was so. A little
behind Dr. Ambler and the captain, I arrived at the edge of the rent,
over a yard wide already and continuously growing wider. While we
could still jump the gap, there was a wild dash to get our precious
instruments out of the observatory and back across the opening to
the ship, which (all the officers taking a hand) we shortly
accomplished without mishap. That done, with varying emotions we
watched as over the next few hours the chasm widened, with the
dark sea water showing in strong contrast to the whiteness of the
snow-covered ice. But not for long did we see really open water, for
with the temperature far below zero, the water which was welling up
to within two feet of the top of the parted edges of the floe promptly
froze, even though it was salt, into a sheet of young ice. The gap
nevertheless kept widening till by midnight it was perhaps ten
fathoms across.
What was causing the rupture? One man’s guess was as good as
another’s, and all were worthless, I suppose. There was little wind,
no land in sight for the edge of the pack to strand on, no evidence of
pressure from any direction, and plenty of water beneath us, for the
soundings showed over twenty fathoms to a soft mud bottom.
Chipp’s surmise, that a tidal action was responsible, was as good an
explanation as any. But what is not satisfactorily explainable is
always fearsome, and it was perhaps excusable that we looked with
some anxiety toward our ship and were secretly relieved to see her
as steady as Gibraltar there in the ice some fifty fathoms off, still
heeled as usual to starboard with her masts and spars showing not
even a quiver as they stood sharply outlined against the frosty polar
sky. And so the day ended.
But morning brought a different scene. During the night from
somewhere came a push on the pack which closed that chasm,
forcing the layer of young ice which had formed over it up into
broken masses on our floe. Then with all the young ice squeezed
out, the two parted edges of the original pack came together under
such great pressure that the advancing sheet was shoved up over
the edge of the floe holding the ship, leaving broken masses seven
to eight feet thick strewn helter-skelter in a long ridge along the line
of junction.
As an engineer, I regarded that broken ice with severe misgivings.
We fortunately were solidly frozen in, with our thick floe spreading in
all directions interposed as a buckler between us and the pressing
pack, but suppose our floe should split and leave us exposed? Could
any ship withstand a squeeze in that Titan’s nutcracker? In spite of
our thick sides and reenforcing trusses, the sight of those eight foot
thick blocks of ice tumbled upon our floe was not reassuring.
On the Jeannette, men and officers alike questioningly scanned
the scene while slowly the hours drifted by and we waited
apprehensively in the silence of that Arctic morning for what was
next, and while we waited even what light breeze there was died
away to a perfect calm. Then without apparent reason and without
warning, the gap in the ice suddenly yawned open to a width of
some five fathoms and immediately down the canal thus formed,
broken ice started to flow in a groaning, shrieking mass that so
shook the floe in which the Jeannette was imbedded that to us there,
only a few yards away clinging to the rail of our ship, it appeared
each instant the sheet of ice protecting us must shatter and the
Jeannette herself be sucked in to join that swirling maelstrom of
hurtling ice cakes. Our eyes glued to the quaking floe into which we
were frozen, we watched it shiver and throb under the battering of
the broken blocks hurrying by, inwardly speculating on how long it
would stand up. Occasionally I glanced furtively at the five sledges
standing on the poop, packed with over a month’s provisions for men
and dogs, ready at a moment’s notice to go over the side should we
have to abandon ship. But if our ship, torn loose and caught in that
mass of churning ice, was crushed and sank, how could we ever get
safely away from her with our lives, let alone get clear those sledges
carrying the food?
Five hours of that scene and of such thoughts we stood, and then,
thank God, the flow of ice stopped. The Jeannette was unharmed.
We were still safe. But how long a respite would we have? Who
knew? Evidently not our captain. As I went below, worn and frozen, I
heard him call out to our executive officer,
“Knock off all regular ship’s work, Chipp. Turn to immediately with
all hands and make a couple of husky sledges to carry our dinghies
over that ice if we have to abandon ship. And for God’s sake, shake
it up!”
We got a day’s rest if one may call it that, while Nindemann,
Sweetman, and both watches toiled feverishly on the sledges. Then
came another day of strain, watching the moving ice grinding and
smashing at our floe, breaking it away to within a hundred feet of us.
Then a brief respite over night, only at 6 a.m. to have the motion start
again worse than ever.
This time, hell seemed to have broken loose. From the pack came
a noise the like of which I never heard before on land or sea, in war
or peace, sounding like the shrieking of a thousand steamer
whistles, the thunder of heavy artillery, the roaring of a hurricane,
and the crash of collapsing houses all blended together as down that
canal in the pack, a terrifying sight to behold, came stupendous
pieces of floe ice as high as two and three story buildings. Sliding by
crazily upended, they churned and battered against each other and
against the thick edges of our floe with such unearthly screeching
and horrible groanings that my eardrums seemed in a fair way to
split under the impact of that sound!
Occasionally a berg would jam in the canal blocking the current.
With that, under the force of the ice pressing behind, our floe would
groan and heave up into waves till several feet of its edge cracked
off, easing the pressure and relieving the jam—but each time leaving
us with less and less of the floe between us and disaster.
Half an hour of this in the dim light of the early dawn, and then the
movement ceased, leaving our tortured ears and jumping nerves to
return to normal as best they could while the day broke. But our relief
was considerably tempered when in the better light we discovered
that a new crack had formed a little distance ahead across our bows
and that into this opening an advancing floeberg was being driven
along like a wedge towards our port side, threatening to cut into the
undisturbed pack there and leave us imbedded in a tiny island of ice,
to be exposed then to the wear of churning bergs on both sides of
us!
With no further noticeable movement of the pack, we were left in
peace to contemplate the possibilities of this situation till late
afternoon, when the main stream again got underway and
bombarded our floe to starboard heavily for four hours so
strenuously that it seemed to all of us that this time we must surely
go adrift. But at about 8 p.m., the motion ceased again, leaving us all
in such a state of mind that the captain’s order for all hands to sleep
in their clothes with knapsacks close at hand ready for instant flight,
seemed to us the most natural thing in the world.
We didn’t get much sleep. Hardly had the midwatch ended, when
little Newcomb, who unable to rest at all, had in spite of the bitter
cold stayed on deck till 4 a.m., darted into De Long’s cabin, seized
his shoulder, woke him with a shout,
“Turn out, captain! It’s all over this time! That ice is coming right
down on us!”
De Long, already fully clothed, sprang from his bunk, seized his
knapsack, and rushed on deck. The rest of us in the poop, none too
sound asleep ourselves, were roused by the noise and hurriedly
followed him up to find that Newcomb had hardly exaggerated.
On the starboard side, like buildings being poured through a chute,
the broken floes were cascading along the channel at a livelier rate
than ever, but that at least was hardly novel to us now. What froze
our blood as we stood there in the cold light of the moon was the
sight ahead. The rift in the pack which yesterday was headed across
our bows, had changed direction squarely for our bowsprit, and now
along that opening was coming toward us irresistibly and steadily,
towering as high as our yardarms, a torrent of floebergs, thundering
down on the yet unbroken pack between with a violence that made
the sturdy Jeannette quiver under our feet like jelly!
Hardly audible in the roaring of the ice, Jack Cole shrilled away on
his bosun’s pipe, then his hoarse voice bellowed along the berth
deck,
“All hands! Stand by to abandon ship!”
Our entire crew poured up from below to shiver in a temperature of
twenty below zero and shake, I have no doubt for other good
reasons, as they stood helpless round the mainmast, all eyes riveted
on that fearful wall of advancing ice, with a crest of hummocks,
weighing twenty to fifty tons each, toppling forward like surf breaking
on our floe. Another crash, another startling advance of the
floebergs, and on top of the deckhouse I saw De Long suddenly
grasp the mainstay with both hands and hang on for dear life,
awaiting the final smash as that Niagara of ice struck us.
The blow never came. God alone knows why, but hardly twenty-
five feet from our bows, the onrushing wall of ice suddenly halted,
the pressure vanished, and we on the Jeannette were left to
contemplate, in the deathly Arctic silence which ensued and in the
growing light, the indescribable wreckage that had been wrought in
the level floe that had once surrounded us. And then like a feeble
anti-climax, the stillness was broken by the whistling of the bosun’s
pipe, followed by his call,
“All hands! Lay below for breakfast!”
Breakfast? Who really wanted breakfast? What each of us
earnestly wished was only to be far to the south, away from that
dreaded pack ready to crush us, but seemingly delaying the fatal
moment as a cat delays, knowing that the mouse with which it toys
cannot get away.
CHAPTER XIV
Nothing else happened that day. Our dogs, which in the face of
disaster we had rounded up and penned inside the bulwarks, where
they relieved themselves by staging a continuous battle, we now let
loose and they joyously celebrated their freedom in chasing each
other over the broken ice. Watching their antics was some relief, little
though it might be, to frayed nerves and helped take our
imaginations off what that broken ice threatened to our ship.
As a further distraction, we had a clear day and far to the
southward sighted mountains, which we made out to be the familiar
north coast of Wrangel Land, some sixty miles away.
And that was all. The day which for us had dawned in imminent
peril, ended quietly with the Jeannette still frozen in that two months
old cradle of ice, still uncomfortably heeled well over to starboard.
We began to breathe more freely.
We took no more meteorological observations, but so far as I was
concerned, I had more to do than before. Though the fires were out
in my boilers and all the machinery laid up, at De Long’s direction I
spent a great part of my time below during this period continually
scanning the sides and the trusses for any signs of giving way, and
inspecting the bilges to see if the ship was making any water. Of
such troubles there were no indications, but I had constantly while
below to be wary of my head, for I found that the banging of the ice
shook down a good deal of loose matter in the holds, and particularly
in the bunkers.
November 13, one week from the day the pack first opened up on
us and inaugurated our reign of terror, brought new excitement.
Sleeping as before in my clothes, I was wakened at 2 a.m. by a loud
crack which seemed to come directly from our keel. I slid from my
bunk, in the passage outside bumped into the captain, and together
we ran on deck, there to meet Collins who, on the midwatch taking
the hourly temperature readings, had rushed over the side and now
was coming back aboard. He reported that there was nothing new
except a crack in the ice not over an inch wide running out from our
stem. This was disquieting, but nothing else happened during the
night and the daylight hours passed quietly enough without further
disturbance; so much so that by afternoon the skipper (full of
scientific zeal and expecting apparently some days of peace)
ordered our meteorological instruments reinstalled in a temporary
observatory. This we accordingly erected on one of the newly-formed
hills of ice as far from the ship as we dared but still, fairly close
aboard our starboard side.
From the grumbling of the seamen at this task as they dug into the
flintlike ice for anchorage for the guys holding down the canvas tent
over the instruments, I would say that the captain’s optimism was
hardly shared by his crew, but that was neither here nor there and by
5 p.m. when the twilight faded and night fell, the job was done.
Chipp took the first sets of readings. At eight o’clock, after supper,
I relieved him, to trek over the broken ice and by the dim light of an
oil lantern inside that flapping tent, read the dip circle, the barometer,
the anemometer, and a varied assortment of thermometers. All the
time as I struggled for footing on the rough ice pinnacle I wondered
what earthly good it all was, considering the negligible chances of
any of this data ever being returned home for scientific minds to
study.
At 10 p.m., I turned the job over to the captain (who, staying up
anyway the while he wrote in his journal, ordinarily took the readings
till midnight when Collins relieved him), and as was now my habit
after a week of alarms, I turned in with my fur boots on, earnestly
hoping to get some sleep to make up for the past week’s wear and
tear.
Till 11 p.m., De Long in his cabin scratched away industriously at
his journal. Then six bells struck, he dropped his pen, drew on his
parka, and went over the side to take the hourly observations.
Being the commanding officer, and not one of his subordinates (in
whom such an appreciation of the beauties of nature at the expense
of punctuality in observations might have seemed a fault), De Long
on his way to the observatory paused a few moments to stand on an
ice hummock and admire a splendid auroral exhibition, a magnificent
prismatic arch to the northward, filling the sky from east to west and
reaching almost to the zenith. The beauty of this phenomenon was
no longer a novelty to any of us, but still he stood awestruck in the
silent night drinking in that soundless electrical play of colored light,
when he heard behind him a crisp crackling as one of our dogs
walking on the snow. Turning, he saw to his surprise no dog but
instead two men, our so-called “anchor watch,” racing down the
starboard gangway and over the ice to our stern.
Both the aurora and the still unread instruments were forgotten as
the captain ran immediately for the bow. To his astonishment, there
he found the ice pack peaceably floating away from our port side,
leaving it completely exposed with open water lapping our hull for the
first time in months!
And as he watched in dazed amazement, the gap opened so that
in a few minutes we had alongside the Jeannette thirty fathoms of
rippling water in which was gorgeously reflected the northern lights
(a detail the beauty of which I think our captain now took little note).
The split in the pack was as clean and as straight along our fore and
aft centerline as if a giant hand had cut the ice with our keel, leaving
the ship still imbedded in the starboard floe toward which she
heeled. Meanwhile the port side pack, intact even to the bank of
snow which had built up above our gunwales, was sliding noiselessly
away to the northward, carrying with it, still asleep, three of our dogs
who had bedded themselves down in its white crust!
A glimpse at our heeled over clipper bow and at our bowsprit
thrusting forward over his head, quickened De Long into action.
Nothing visible now remained to hold that tilted ship from sliding any
second out of her bed and into open water! Back aboard he rushed,
and once more the quiet of the night was torn by the whistling of the
bosun’s pipe and Cole’s hoarse cry,
“All hands! Shake a leg! On deck wid yez!”
And again no sleep, as hastily in the darkness we hurried our
meteorological instruments back aboard, struck the observatory we
had so laboriously rigged only a few hours before, chased on board
all the dogs we could catch, rigged out our dinghies and our other
boats for immediate lowering, dug our steam-cutter out of the ice
alongside and hoisted it aboard, ran in our gangway, and lastly
rigged out a fall for lowering provisions over the side and into the
boats.
That all this, on the sloping deck of the Jeannette, was done in the
darkness at fifteen below zero and completed by midnight in less
than an hour, indicates what speed and strength fear gave to our
fingers and our feet. For the men tumbling up from below had to look
but once at the precarious perch to which the Jeannette clung to
send them flying to their tasks.
Midnight came.
Our work done, we stood by in the inhuman cold momentarily
expecting to feel the ship lurch under our feet, slide suddenly off into
the water, and without rudder, without steam, and without sails go
adrift in the darkness in that ever widening rift in the parted pack.
After an hour of this, with nothing happening to relieve the strain,
the tension became almost unbearable. De Long, looking over the
silent groups of fur-clad seamen clustered there on deck alongside
the boats, ordered Ah Sam to fire up the galley range and serve out
hot coffee to the men, hot tea to the officers. He then told Cole to
pipe down, but with all hands to stay in their clothes, ready for any
call. So we lay below, but I doubt if anyone had much better luck
than I getting to sleep again.
There was no need for reveille in the morning. The first streaks of
light found the whole crew from Irish bosun to Chinese cook lining
the bulwark, staring off to port. I climbed the bridge to get clear of the
snarling dogs. There before me, already ensconced in the port wing
was the skipper, rubbing his glasses to clear them of frost for a better
view.
“What do you make of it, chief?” asked De Long, nodding in the
direction of the distant pack.
I squinted off to port. A thin skin of young ice, possibly four inches
thick, had formed over the exposed water. Across that, perhaps five
hundred to a thousand yards away, was the bank of snow which the
day before had been piled up against our bulwark.
“Well, captain, it’s a quarter of a mile off anyway,” I answered.
“Maybe more.” From the overhanging wing of the bridge I glanced
curiously down on our inclined side, exposed now for the first time in
months. Near the waterline, still looking fresh and bright, were those
gouges in our elm doubling we had received in early September
while butting and ramming a way through that twisting lead into the
pack. Looking at those battle scars, I wished fervently that we had
had less luck that day in battering our way in. But that was a subject
the rights and wrongs of which were now never discussed among
the officers. Instead, scanning our listed masts and our unsupported
port side, I asked,
“What in the name of all that’s holy is keeping us from sliding
clear?”
“God knows, I don’t,” replied De Long solemnly. “I just can’t figure
it out. When one side of our ice cradle slides away from us without
so much as taking with it any splinters from our hull, it makes my
theory that our planking’s solidly frozen to the ice on our starboard
side seem crazy. For why should the ice attach itself so firmly to the
planking on one side, and to the other side not at all? It’s beyond me,
Melville, why we don’t slide off.” He adjusted the furry edge of the
hood of his parka around his eyeglasses, peered down a second at
the scarred side below him, then while his glasses were still bright
and clear, stared off toward the wall of snow topping the edge of the
departed pack and finally nodded his head as if agreeing with my
estimate of its distance.
Looking worn and haggard, for if possible our captain had had
even less sleep than any of us during the past week, De Long
finished his examination, eyed for a long time his crew stretched out
below us along the rail, then turned to me,
“Melville, you’re older than I. In the late war you were at sea
fighting the rebels when I was still a midshipman, and you’ve been
through lots besides. So I feel I can talk to you, and lean on you as
on no one else on this ship, and God above us knows, I need
someone here to lean on! Every morning I pray to Him for our safety,
every night I give thanks to Him for our escapes during the day. But
here in the Arctic, God seems so distant, and this steady strain on
my mind is fearful! Look at my men below there, look at my ship!
Neither my men nor my ship are secure for a second, and yet I can’t
take a single step for their security. A crisis may come any moment
to bring us face to face with death—and all I can do is to be thankful
in the morning that it has not come during the night, and at night that
it has not come since the morning! And that’s the Arctic exploration
I’ve brought them on! Living over a powder keg with the fuse lighted,
waiting for the explosion, would be a similar mode of existence!
Melville, it’s hardly bearable!” And then looking down again at the
crew, he muttered wearily,
“But I’ve got to keep on bearing it. Call me if anything happens,
chief. So long as we’re still hanging on here, I’ll try to get some sleep
now.” With sagging shoulders eloquently proclaiming his utter
exhaustion, he slumped down the ladder and off the bridge, leaving
me alone, figuratively to add an “Amen” to his estimate of our
situation.
For over a week, the listing Jeannette, which looked as if the
pressure of a little finger would send her tumbling out of her inclined
bed, nevertheless clung to her half cradle in the pack, defying
apparently all the principles of physical force so far as I as an
engineer understood them.
On the third day after the pack separated, we had a bad southeast
gale blowing all night and all day, with terrific squalls at times
reaching a velocity of fifty miles an hour. Although that wind hit us
squarely on the starboard bow, its most favorable angle for casting
us adrift, the Jeannette held grimly to her berth and nothing
happened. Then on the fifth day, urged on by a northerly blow, the
floebergs again got underway, broke up the young ice to port of us,
and jammed themselves under our bows with heavy masses of ice
pressing directly on the stem. We confidently looked to see the ship
knocked clear this time, but evidently other floebergs jammed
against our exposed side exerted such a heavy beam pressure that
we stayed in place, though the poor Jeannette, squeezed both
ahead and abeam, groaned and creaked continuously under the
stresses on her strained timbers. The sixth day, the seventh day, and
the eighth day, we had more of the same, with streams of floebergs
bombarding our exposed port side, and on the starboard side our
floe steadily dwindling under the impact of the bergs hurtling through
the canal there.
Life on the Jeannette became almost impossible. Sleeping with
our clothes on, jumping nervously from our bunks at every sudden
crackling in the ship’s timbers, at each unexpected crash of the
bergs outside, we got slight rest for our bodies and none at all for our
nerves. And in the middle of all this, the sun disappeared below the
horizon for good, leaving us to face what might come in the
continuous gloom of the long Arctic night. According to
Danenhower’s calculations, we could expect the sun to rise again in
seventy-one days, unless meanwhile we drifted farther to the
northward, in which case of course our night would be still further
prolonged.
On the ninth day since the separation of the pack, the wind rose
once more, blowing directly on our starboard beam, and the never-
ceasing stream of bergs began again to pile up across our stem, for
us an ominous combination.
On the tenth day, fearing the worst, we rounded up all our dogs,
and waited. The pressure ahead increased, with floating ice piling up
along the port side higher than our rail, finally starting the planking in
our bulging bulwarks. Under the bowsprit, the rising ice blotted from
sight our figurehead. Then an upended floeberg crashed violently
into the pack under our starboard bow and wedged its way
relentlessly toward our side. The pressure became tremendous.
Beneath our feet the Jeannette’s tortured ribs groaned dismally. On
deck we looked silently at one another, waiting. Something was
going to collapse this time. Which would give way first, ship or ice?
Suddenly the Jeannette lifted by the stern, shifted a little in her
cradle. Instantly the floeberg under our starboard bow drove forward,
split our floe, and with a lurch and a heavy roll to port we slid into
open water, afloat and undamaged, on an even keel once more!
Intensely relieved at having got clear without being crushed, we
nevertheless looked back sadly, as we drifted off among the
floebergs, at the shattered remnants of the ice cradle which for two
and a half months had sheltered us, to see it now tumbling about in
elephantine masses, no longer a haven of refuge in our trials.
Well, we were afloat. It was at least some consolation to have a
level deck beneath our feet while we waited, sailors with no control
whatever over our ship, for what next the ice pack had in store for
us.
But the pack gave us a respite. Idly we drifted about in a wide bay
of broken ice, stopping for a brief time alongside one floe, then
drifting off till stopped by another. The wind moderated, the
temperature rose somewhat till it stood near zero, and finally it
began to snow. There being no signs of imminent danger, the
captain ordered the bosun to pipe down and we went below,
permitted at last to eat a meal without having the plates threaten to
slide each instant off the table.

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School Law: Cases and Concepts (Allyn

& Bacon Educational Leadership) 10th

Law and Ethics in Educational Leadership: Law Ethic

Organizational Behavior in Education: Leadership and

The Ethics of Educational Leadership (2nd Edition)

Contemporary Criminal Law: Concepts, Cases, and

Policy Studies for Educational Leaders: An Introduction

Administrative Law and Politics: Cases and Comments 5th

Introduction to Professional School Counseling:

Business Law: Text & Cases – Commercial Law for

3 STUDENTS AND THE LAW 85

VI. Student Appearance 140

4 TEACHERS AND THE LAW 158

VI. Teacher as Exemplar 189

5 SCHOOL DESEGREGATION 229

II. Early Desegregation in the South 242

6 INDIVIDUALS WITH DISABILITIES AND THE LAW 254

7 SCHOOL FINANCE AND SCHOOL CHOICE ISSUES 287

8 EDUCATOR AND SCHOOL DISTRICT LIABILITY 326

2. STUDENT-TO-STUDENT HARASSMENT 336

APPENDIX A—Analyzing a Court Decision 353

*Edited cases are indicated by boldface.

Boyd v. Harding Academy of Memphis, Cedar Rapids v. Garret F., 265

Coquille School District 8 v. Castillo, 322 EEOC v. Kamehameha Schools/Bishop

Kitzmiller v. Dover Area School Dist., 59 M.A.L. v. Kinsland, 104

Tennessee Small School Systems Walthart v. Edgewood-Colesburg Community

NEW TO THIS EDITION

September passed, and the hoped-for gales which might break up

On November 6, two months to a day of our being trapped in the

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