Professional Documents
Culture Documents
ODU School Law PP
ODU School Law PP
ELS 657
This and School Finance will help
you stay out of jail!
History of American Schooling
Foundations
Rousseau – “public education is one of the
fundamental rules of legitimate government”
Montesquieu – “…the republican form of
government requires education to instill a
desire for freedom and equality, a preference
for public over private interests, and an
appreciation for (ex) knowledge.”
History
Mass. Law of 1642
Required fathers and masters to see to
children’s and servants (apprentices)
education – public humiliation
Revised in 1647 – apparently the law
five years earlier had failed. Mass.
required taxation for settlements of 50
or more for “Ye Olde Deluder Satan”
Geographic Variations
Distinctions existed between various
regions in the colonies – Cubberley
(1934)
Good School Conditions
Mixed Conditions
Pauper/Parochial Schools
No Action Group
Good School Conditions
New England (generally) valued
education
Maine, Vermont, New Hampshire,
Mass., Conn., N.Y., Ohio
Mixed Conditions
Mixed settlements of people had
conflicting ideas about the value and/or
purpose of education
Indiana, Illinois
Pauper/Parochial Schools
Mostly middle colonies with traditional
English ideas (elitist) about education –
somewhat necessary for all – very
necessary for the elite.
STATE PREROGATIVE
STATE PREROGATIVE
Exclusive or official right to do
something
The State has the right and duty to
make certain its people are educated –
if only for their own protection.
We hospitalize individuals for their own
protection. Restrain, medicate,
institutionalize, etc.
STATE PREROGATIVE
Elevation of society
Protection of democratic republic
Protect liberty
Intentional interference
Strict liability
Negligence
Intentional Interference
Can be a bit misleading
Results from an act of anything from
malice to a practical joke
“Intentional” refers to consequences,
not just the intent of the action
If the party knows the consequences
are substantially certain, it may be
intentional interference
Peace of Mind
Interference with peace of mind
Mental or emotional anguish
If an act is malicious (not just
negligent) there may be recovery
Assault and Battery
Examples of intentional torts
Battery – hitting, touching, physical
contact
Assault – apprehension of battery – a
mental assault
Chastisement of a pupil may constitute
assault and battery if cruel, brutal,
excessive, or done in anger or insolence
Spears v. Jefferson Parish
Court of Appeals of Louisiana, 1994
School system was liable for an
intentional act of a teacher that
produced emotional harm to a student
Justin Spears was a kindergarten
student who was misbehaving in PE
A teacher called the boy (and others) to
sit beside him
Spears v. Jefferson Parish
The boys played with the teacher’s hair and
ears (classroom management ills)
Teacher decided to play a trick on the boys
telling them he would kill them by hanging
them with a jump rope
He took the boys into an office
Another teacher was talking with Jason
Teacher and boys played a trick on Jason
Spears v. Jefferson Parish
Jason walked back into the office where one
of the boys was playing dead
Jason experienced emotional problems
(attachment disorder with mother, failure to
go to the bathroom alone, refusal to wipe
himself, etc.)
Court awarded $100,000 general damages,
$2,100 therapy, and $5,000 to each parent
Strict Liability
Often referred to as liability without
fault
Liability imposed apart from
Intent to interfere with a legally-protected
interest without legal justification for doing
so
Breach of duty to exercise reasonable care
Abnormally Dangerous
Defined
Existence of high degree of risk
Great likelihood of harm
Non-elimination of risk by reasonable
care
Extent the activity is not common usage
Inappropriateness of activity to place
Extent of value versus danger
Fallon v. Indiana Trail School
Appellate Court of Illinois, 1986
Case involved a sixth grade girl who
suffered spine injuries on a trampoline
Parents sued claiming trampoline was
an abnormally dangerous device (under
strict liability)
Parents also claimed negligence on the
part of the teachers
Fallon v. Indiana Trail School
The trial court ruled that the trampoline
was not abnormally dangerous and no
negligence was evident
Appealed and the higher court agreed
with the lower court ruling
Negligence
Negligent acts are not expected or intended
(as opposed to intentional torts)
Here the key is a reasonable and prudent
person would have anticipated harmful results
Accidents that can be prevented by
reasonable care are not ones of negligence
Standard of Conduct
Various rules apply in different circumstances
– no standard rules
The key is the standard of conduct by the
responsible party (actor)
The court must strike a balance between
conduct and harm – reasonable person
theory
Injury must result from an unreasonable risk
Elements of Negligence
A duty to protect others
Failure to exercise appropriate standard
of care
Existence of a causal connection
between the act and injury (proximate
or legal cause)
An injury, damage, or loss
Duty
The duty is to abide by a reasonable conduct
when apparent risks are evident
No duty exists when one could not have
reasonably foreseen the danger of risk
Generalities
No relationship
Truants
Good Samaritan
Standard of Care
As level of risk increases, so does the
standard care
Up to about 7 years of age children can
not be held liable for negligence
Between 7 and 14 years presumed not
capable of negligence until proven
otherwise
Proximate Cause
Also called legal cause
It is the connection between act and
injury
Must be duty to maintain reasonable
standard of conduct
Negligence must be the substantial
cause of harm
Proximate Cause
Considerations
A teacher may be relieved of liability of a
student being injured if the principal
allowed them to run in the street and a
student ran in front of a car
The teacher’s role in the proximate cause
or causal relation was too remote
Brown v. Tesack
Supreme Court of Louisiana, 1990
Children got duplicating fluid and
started fires in the projects
One student was injured
Plaintiff argued foreseeability of hazard
Court reversed trial and appellate courts
Brownell v. Los Angeles
Court of Appeals, 1992
Student left school and was
misidentified by gang members as a
rival member
Boy was shot (wounded)
Plaintiffs argued that inadequate
supervision and forseeability were
issues
Brownell v. Los Angeles
Jury awarded plaintiff $120,000
Court of Appeals reversed
Absent were
Gang-related threats
Prior incidents
Johnson v. School District of
Millard
Supreme Court of Nebraska, 1998
Music class with 1st graders learning
London Bridge – with chaos
The game got out of hand and resulted
in 50 stitches, blurred vision, and
headaches for Robbie Johnson
Standard of care, direct supervision,
and negligence were issues
Johnson v. School District of
Millard
Trial court found for the plaintiff and
awarded $21,000
Supreme Court of Nebraska upheld the
decision based on the idea that the
negligence was the proximate cause of
the injury
Richardson v. Corvallis Public
School District No.1
Mom went into the high school with son
to explain tardiness
Mom walked across a packed-down
snowy path without problem
On returning to car, Mom slipped and
was injured
She sued claiming breach of duty to
warn of hazard – all courts disagreed
Defenses for Negligence
Contributory negligence –
negligence of plaintiff contributed to
injury
Comparative negligence – partial
payment for partial negligence
Assumption of risk – knowledge and
acceptance of danger
Immunity – allowed for certain people
Selected Court Cases
Brief absence from classroom does not
mean negligence
Female student playing football
assumed risks (Hammond v. Carroll
County, 1994)
Required release of liability for
negligence forms are not valid and
violate public policy
Educational Malpractice
Peter W. v. San Francisco (1976) and
Donohue v. Copiage Union Free School
District
Educational malpractice is not
recognized as a tort
Chapter 12
Defamation and Student Records
Defamation
Long legal history
Diffamatus – evil enough for the church
to place on trial
1600s libel and slander were referenced
Defamation imputes immorality,
dishonesty, or dishonorable conduct to
another by writing or speaking
Libel v. Slander
Libel involves writing (and TV and
radio) and defamation
Slander involves speaking and
defamation
Public figures are often fair game for
libel and slander
Defamation in Schools
Teachers and administrators need to be
sensitive
A matter of privilege exists – as in
privileged information
Student issues and personnel issues
Conditional versus absolute privilege
Good Faith
Protected if acting in good faith
Without malice
In answer to question
Believe information to be true
Reasonable grounds to believe
information
Information goes no further than inquiry
Hett v. Ploetz
Supreme Court of Wisconsin, 1963
Hett was a speech therapist who did not do a
wonderful job. He had the option of
resigning or being dismissed. He chose the
former and applied for another job.
Hett gave permission to check references –
Ploetz, the previous superintendent
Ploetz told the truth
Hett v. Ploetz
Hett sued Ploetz for libel and damaging
his ability to make a living
Court ruled against Hett
Said telling truth violates libel
Negative recommendation is
conditionally privileged
Desselle v. Guillory
Court of Appeals, Louisiana, 1981
Rumors existed in the high school about
coaches and teachers molesting
students
Counselor heard of the matter and
reported it to the principal – he would
watch
Desselle v. Guillory
Big mess – confusing statements
Teacher sued counselor for defamation
Court found for counselor and allowed
attorney fees
Fees overturned on appeal
Long and short – qualified privilege
protects parents who share information
about teachers if some truth exists
Milkovich v. Lorain Journal Co.
Supreme Court of the United States,
1990
Reporter wrote that the wrestling coach
lied under oath – in his opinion
Lower court said the article as an
opinion was protected under the 1st
amendment
Coach sued for defamation
Milkovich v. Lorain Journal Co.
After fifteen years of appeals and three
trips to the SC, it was found that no
privilege exists for opinion
Allowed coach to sue for damages
Richmond Newspapers v.
Lipscomb
Virginia Supreme Court, 1987
Richmond Times Dispatch carried an
article about a disorganized teacher and
named her
Teacher sued for libel and was awarded
one million dollars for compensatory
damages
Richmond Newspapers v.
Lipscomb
Supreme Court (VA) agreed that libel
existed and teachers are not public
figures – therefore not required to
prove malice
Reduced award to $100,000 to reporter
and publisher
Student Records
Sensitive grounds
Category 1 and 2 (no longer to be kept
in different locations!)
Information not to be conveyed
“outside relevant educational
function”
Proper release of records is required
FERPA, 1974
FERPA, 1974
Confidential, written release required
Parent and adult student inspections
Ease of location
Identified access of records
Record of access
Appeal
Directory information release protocol
Fay v. South Colonie
US Court of Appeals, 2nd Circuit, 1986
Difficult case – divorced husband with
joint custody of children was not getting
school information
School did not give the information in
violation of FERPA
FERPA does not allow for damages, but
can under section 1983
Chapter 13
Sovereign Immunity
Long-standing legal tradition
Old English law – the King can do no
wrong
Has been held for a long time on a
variety of reasons – money and
precedent being chief
Even though sovereign immunity is
undergoing revision, it is generally held
for public schools as general welfare
Molitar v. Kaneland
Community Unit District #302
Supreme Court of Illinois, 1959
Through negligence of a bus driver there was
an accident and a bus exploded and burned
School system cited sovereign immunity
Court in Illinois eliminated sovereign
immunity from Illinois State Code
Later conditionally reinstated by legislature
Dollar v. Dalton Public Schools
Georgia Court of Appeals, 1999
Mother sued school district after child
fell from playground equipment and
broke her arm
Dismissed on immunity grounds in state
constitution
Lower and appeals court upheld
Lentz v. Morris
Supreme Court of Virginia, 1988
Student in Virginia Beach high school was in
PE class playing tackle football where he was
injured
Sued teacher and system for damages citing
negligent supervision
Teacher and system claimed immunity for
acts of his own negligence
Court agreed – trial and Supreme Court of VA
Now, the confusion
Duke v. Grady Municipal Schools, U.S. Court of
Appeals, 10th Circuit, New Mexico, 1997
New Mexico case involving a teacher dismissal
case without due process
Teacher sued and the court ruled that a local
school board is not protected under the 11th
amendment for immunity because it is not an
arm of the state
Minton and Wood may add to confusion (Board
not immune – individuals may be)
Chapter 14
Certification, Contracts, and
Tenure
Chapter Overview
Certification, Contracts, and Tenure
Certification
Education is a state function
Each state may set up its own
certification process for teachers and
revise them at any time
Must have no intent to discriminate and
must not be arbitrary
Certification
Background
Early schools were poor and quality
varied greatly
Why?
Poor teacher training
Teacher training institutions in Europe
in the mid-1700’s
Certification
First American Normal school opened in
Lexington, Mass. in 1839, started by…
Not a good start
As John Swett said in 1872, certification
and licensure are needed to protect the
public from “charlatans, ignoramuses,
and humbugs” masquerading as
teachers.
Ambach v. Norwick
U.S. Supreme Court, 1979
NY required US citizenship to be
certified
Two otherwise qualified individuals
applied for certification and were denied
Lower court said “no can do”
SC reversed – on loyalty and promoting
civics being a function of education
Wardwell v. Cincinnati
U.S. Court of Appeals, 6th Circuit, 1976
Can a local school system require
residency within its corporate limits for
teachers?
Wardwell lived outside city limits upon
being hired and refused to move
Sued under Equal Protection and lost 2X
Moral Character Required
Application of Bay, Oregon SC, 1963
Applicant had past felonies – denied
certificate
Erb v. Iowa, SC of Iowa, 1974
Had affair with another teacher;
husband showed up at Board meeting
with details
Board moved to revoke license
Erb v. Iowa
What did the State Board do?
What did the Court do?
What did State Supreme Court do?