5 What are the Ethical and Legal Issues in Schools?
Myra Haulmark and Jennifer Beasley
Let’s examine some of the rights guaranteed to all Americans and how those rights change once they enter school. We will also answer some of the most common questions held by students. What is free speech? Is it protected in school? How safe am I in my possessions? Do I have any expectation of privacy when it comes to my things? A good understanding of students’ rights benefits everyone: the students who exercise them, the teachers who challenge them, and the democratic society which lives by them. Lawsuits have become increasingly common in our society and many Americans act and speak out of the fear of being taken to court. In any environment, one must be conscious of how their words and actions will affect others.
A thoughtless statement or inappropriate physical contact might land you in court. This is especially true in schools, where daily contact, high emotions and stressful circumstances can all come together at the wrong moment. As such, it is good to understand the rights of students trying to express themselves and the rights of teachers trying to keep a safe, orderly learning environment. Few people know their constitutional rights, and even fewer teachers & students know how their constitutional rights change once they enter the ‘semi-public/semi-private” classroom.
- A cheerleader is suspended for using inappropriate language on social media after school.
- Male Texas student suspended for violating dress code by wearing nail polish.
- Student suspended for having a BB gun in his bedroom during virtual class.
- Broward teacher banned over alleged sexual comments.
- Teacher fired after being accused of forcing student to dig waste out of toilet.
All of the above cases are real and recent headlines. The cases represent a variety of the legal and ethical areas of the teaching profession that exist today. Since the majority of teacher preparation candidates do not have legal backgrounds, this chapter exists to provide an overview of some of the pitfalls that can plague not only the new teacher but those that have been in the profession for years. The legal landscape of the teaching profession seems to be ever evolving with increasingly complex ethical and moral challenges. While this chapter will in no way be all inclusive, it will provide you some basics and food for thought.
Objectives and Key Terms
In this chapter, readers will…
- Distinguish the difference between laws and ethics and explain how both are necessary for teachers
- Identify several ways that ethics are involved with teachers day to day activities
- Describe the hierarchy of school systems
- Identify several key areas of the law related to student and teachers
Key terms in the chapter are…
- Ethics
- Individuals with Disabilities Education Act (or IDEA)
- Least Restrictive Environment
- In loco parentis
- Due process
Educator Ethics
Key moments: Regulatory Framework 10:53 | An Ethical Framework 12:12 | Trajectory Decision Making 12:45
This section of the chapter will discuss professional ethics and the teaching profession with the takeaway being that you will be able to discern the difference between your legal responsibilities and ethical ones and the impact that your ability to make sound decisions will keep you from potentially hurting a student and your teaching career. Knowing your ethical responsibilities and how to practice ethical decision making can mitigate the teacher’s risk. Having some training in ethical decision making can serve as a foundation to build your philosophy of education.
So why discuss ethics? Within teaching there is a unique set of ethical relationships and legal obligations that are embedded in the work of a teacher. Teachers have this awesome responsibility to build moral character and be an example of that too. In the article section “What Professional Ethics Mean” Dr. Troy Hutchings (2016) states:
From preschool to high school teachers have an enormous impact on students. At the heart of the matter, the teacher’s relationship to a student is a special kind of power as students can be considered impressionable and malleable. Because of this power there can be the potential abuse of power. We all have seen headlines of this “abuse” of power and generally once we see these headlines, they are not only violations of ethical standards that are occurring, but now illegal behaviors.
Questions for you to think about are:
Does the lack of ethical decision making happen all at once?
Where does it go wrong?
What types of ethical decisions do teachers make that may fly under the radar?
What are ethics?
“Ethics is knowing the difference between what you have a right to do and what is right to do.” Supreme Court Justice Potter StuartEthics refers to well-founded standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness, or specific virtues. Ethics, for example, refers to those standards that impose the reasonable obligations to refrain from rape, stealing, murder, assault, slander, and fraud. Ethics can also be defined as a system or code of morality embraced by a person or group.
Ethical standards also include those that enjoin virtues of honesty, compassion, and loyalty; as well as including standards relating to rights, such as the right to life, the right to freedom from injury, and the right to privacy.
But ethics applies as much to the behavior of the atheist as to that of the devout religious person. Religion can set high ethical standards and can provide intense motivations for ethical behavior. Ethics, however, cannot be confined to religion nor is it the same as religion.
How are ethics different from laws?
Laws are related but more formal, they are written and they must be followed. Ethical norms tend to be broader and more informal than laws. Although most societies use laws to enforce widely accepted moral standards and ethical and legal rules use similar concepts, ethics and law are not the same. An action may be legal but unethical or illegal but ethical.
Howe (1986) specifically mentions that ethical judgement consists of six characteristics: appreciation for moral deliberation, empathy, knowledge, reasoning, courage and interpersonal skills. So you may be thinking that’s great – I have those characteristics most of the time so I should be fine! What is the problem with this line of thinking? The problem becomes the reliance solely on a teacher’s personal code of ethics that may rely on many varying moral standards.
“That’s why we, as a profession, need to shift away from the idea that our personal sense of ethics — driven in large part by our upbringing and our life experiences — is enough to help us navigate all the situations we face in the classroom. Even the expectations and norms that evolve in each school vary so much that they alone can’t serve as the sole guide to our decisions. And along with the need for collective understanding of the challenges we face as professionals, we need to acknowledge the inherent risks — ethical, practical and often legal — teachers face on a daily basis…”
Ryan, Cooper, Bollick (2016) put it like this: “some people’s codes of ethics are like a beacon and some are a dim light in a dark room” therefore clarifying the need to have written codes of ethics for teachers. However, where some professions such as attorneys and medical doctors have this universal code, there is not yet a standard code of ethics accepted for all teachers. Some short strides have been made with NEA (National Education Association) and NASDTEC (National Association of State Directors of Teacher Education and Certification) but most states rely on their own individual codes or teachers adhere to district policy on behavior, often in the form of codes of conduct where there are disciplinary actions if there is a violation of those codes of conduct.
Take some to review the below Codes of Ethics from state and national organizations? Which are more detailed and provide the clearest standards?
NEA (National Education Association)
NASDTEC (National Association of State Directors of Teacher Education and Certification)
What do you think? Many teachers make decisions in isolation out of fear they will spark the perception they are being unethical.
In the above video, Dr. Troy Hutchins speaks with teachers about the need for a code of ethics or a common decision making framework for ethics. Describe what might go through a new teacher’s mind as they are encountering an ethical decision they may need to make – What can be done to help teachers make ethical decisions and ask for assistance if needed? What can a teacher do to mitigate any negative perceptions if they talk to someone about an ethical dilemma? What can the school do to support teachers?
Ethics Case Studies:
Social Media Dilemma
Out for a Drink
Ride Dilemma
Parent Teacher Relationship
Coach Dilemma
Schools and the Law
The Hierarchy of the System
Who oversees school systems? The public school governing system is actually a hierarchy (March, 1978). There are several tiers to this hierarchy beginning with the federal level and ending with the individual teachers. It is a pyramid of administrators doing everything they can to educate today’s students.
Federal and State
While some may believe that administration of schools starts with the federal government, the truth is that on the federal level there is very little involvement in education, even in funding (Federal Role, n.d.). The federal government sets some guidelines for education, such as the “Every Student Succeeds Act”, but not specific ones such as curriculum taught. In actuality, the states have most of the power over their own schools and what they teach (Education Commission of the States [ECS], 1999). The states set what the students will learn and what standards they have to meet. This means that if a child is meeting their grade level standard in Tennessee they may or may not be meeting the Virginia standards for that grade level. States try to decide what knowledge is imperative for students to learn before they move on to the next grade or even college (ECS, 1999).
The “Common Core Standards” are an attempt to “level the playing field.” The process began in 2009 with a group of state governors and school officials. The idea was to create real-life, relevant learning goals that could be adopted by states, and lead to our students learning the same things at the same time. With this idea, that same student in Tennessee would be working on the same standards as the student in Virginia. The CCS, however, were not mandated by the federal government, nor created by the federal government and this is important to know. It was a state initiative and states had the right to adopt the standards or not. Not all states have adopted the CCS, and some adopted the standards and then repealed them. More information on the Common Core Standards can be found at Common Core State Standards Initiative.
Michigan adopted the standards in 2010. Michigan has used the CCS to create our learning standards. Michigan’s curriculum standards can be found on the Michigan Academic Standards Page.
States also choose the standards that the teachers must meet (ECS, 1999). The state wants the teacher to be able to educate the students to achieve the set standards. There are things that every state requires, but each of them has their own variation. Every state requires the teacher to have a college degree and some form of standardized testing to be able to teach in their public school system. There are national tests available, but each state requires different ones. Teachers moving to a different state may be required to complete a new test or even a new course before gaining certification in that state.
States have the largest financial role in the schools. Very little funding comes from the federal government. Most of the federal funding is applied for by the individual school in the form of a grant for a special purpose (Federal Role, n.d.). The states provide teacher salaries and the money required to run each individual school. Schools may also have a Parent/Teacher Association which can help to raise additional funds for individual schools. (ECS, 1999).
Hierarchy Tiers on a District Level
School Board
Superintendent
Principal
Teacher
District
Each state is broken up into districts (ECS, 1999). Most administration deals on a small level, either within the district, or in the individual school (March, 1978). The districts each have their own school board made of elected members (Office of the Education Ombudsman, n.d.). Those boards decide how their schools will achieve the standards set by the state. They will also decide anything else they believe the schools should be doing to service their district’s children. Some of these things include overseeing the curriculum and helping to promote better teaching techniques (Education Administrators, n.d.). The board has to have all schools achieving at a level set by the state, so they use their resources to push the schools to achieve the standards they have set (ECS, 1999).
Superintendent
A superintendent is chosen to oversee the schools in the district (ECS, 1999). While the school board is elected by the community, the superintendent is hired by the school board. Anyone who meets the qualifications may apply. The school board conducts interviews and makes the decision on which individual to hire. Sometimes individuals from within the district are hired, and other times the individual hired comes from outside of the district. They are in charge of making sure the schools are doing what is required by the school board. They make routine visits to schools to check on how they are doing. They work with the principals and teachers to see that children are getting the most out of each school day.
Principal and Assistant Principal
The district hires principals to oversee each individual school. These principals are there to see that the teachers are doing their job and the children are getting the education they deserve (Office of the Education Ombudsman, n.d.). They are responsible for scheduling, planning the daily activities, and managing the overall activities of the school (Office of the Education Ombudsman, n.d.). Principals make routine visits to classrooms to make sure they are running smoothly and that teachers are making the most of their instructional time. Another difficult duty of the principal is the budget for the school. The principal must decide how to best spend the school’s money (Education Administrators, n.d.).
The schools also have assistant principals. These administrators help the principal in the daily activities of the school. They also handle most of the discipline problems leaving the principal available to focus on other duties (Education Administrators, n.d.).
Teacher
Each school district is responsible for the hire of their teachers. In some districts there is a hiring committee formed to interview and recommend teachers to hire. In other districts the school board interviews and there are some districts where the individual school will conduct interviews and make a recommendation to the board.
The teacher is the one with the most direct affect on students. They ultimately decide what happens in the classrooms (ECS, 1999). When the door closes every morning it is up to the teacher to make an effective use of time and get children to those standards set by the state. If children in their classrooms are not performing well, the teacher is held responsible. It’s vital that we hire individuals with the “right stuff” to make learning fun and a successful experience for children.
Teachers and the Law: Rights and Responsibilities
Read Bonus Module: Legal Issues in Teaching
https://kstatelibraries.pressbooks.pub/EDCI702/chapter/bonus-module-legal-issues-in-teaching/
Once you have completed all of the necessary requirements of your educator preparation program to earn a teaching license in your state, there will be ongoing work for you to not only maintain it but protect it as well. Each state has specific laws in place to protect both the student and teacher, in addition each state may also have certain sets of laws that prohibit someone from becoming licensed as well. Immoral conduct and willful neglect of duty are some of the most common reasons that teachers are fired today. The above paragraphs overview the role ethics impact a teacher’s daily decision making and the following paragraphs will overview some of the laws and results of court cases that may impact your work as a teacher. (Teachers’ Rights in the Classroom )
Freedom of Expression
A court case in which a teacher criticized the school board’s financial policies and was fired. He took the case to the Supreme Court and won. Teachers are guaranteed the right to express their opinions and beliefs under the First Amendment, as long as they do not disrupt the business of the school and the learning environment.
Pickering v. Board of Education of Township High School (1968)
- Teacher wrote a letter-to-the-editor about school board tax/revenue spending and was then fired by the school board.
- Teacher sued the school board in violation of 1st Amendment rights.
- SCOTUS 9-0: The school board, as a government agency, violated both the 1st and 14th amendments of the teacher. SCOTUS ruled that teachers, though employed by the school district/government, were still private citizens and their free speech, as long as not slanderous or false, was protected from firing by the school board/government.
Pickering Balance Test for Freedom of Expression for Teachers:
- Need for harmony in the workplace.
- Close working relationship – does the speech violate it.
- The time, place, and manner of the speech.
- The context of the dispute.
- The degree of public interest in the speech.
- Does the speech impede or impair the teacher’s ability to perform their duties.
Mt. Healthy City Board of Education v. Doyle (1977)
- A teacher claimed he was not rehired due to his Free Speech activities.
- The teacher in question had, during the same year, become hostile with other teachers and school employees, swore at students, and committed obscene gestures at work.
- SCOTUS 9-0: While the teacher did engage in free speech activities, his firing was not a result of those free speech activities, nor did his free speech activities factor into his firing. His ‘behavior’ had been documented by the school prior to his free speech activities.
Academic Freedom
Fowler v. Board of Education of Lincoln County (1987)
- Fowler was fired after showing an R-rated movie (Pink Floyd – The Wall) to students as a reward on the last day of class, a movie she had not personally seen and did not watch with the student.
- Fowler said her termination was unlawful under Free Speech and the tradition of academic freedom.
- Ruling by Federal court: Free speech only applies when it is expressive or communicative. Because Fowler did not watch the movie with the students to explain or answer questions and/or the movie did not have an inherent educational value, she could not claim free speech or academic freedom and her termination was lawful.
Wilson v. Chancellor (1976)
- A government teacher had various political party speakers come in and talk to their class; however, when a Communist was invited the school board banned all political speakers before the presentation date.
- Does banning ‘all political speakers’ violate the 1st and 14th amendment?
- Federal District court ruled that the school district violated the teachers freedom of expression as part of the teachers established method of instruction of inviting guest speakers germane to the topic of instruction. Banning ‘all political speakers’ in this instance was unconstitutional.
Copyright Laws
- Protects the intellectual property of authors
- Must receive permission from author to reproduce materials
- Many items on the internet are also copyrighted
- Some authors give permission for copying to teachers for use in their classroom
Fair Use Guidelines
- Policies which specify limited use of copyright materials for educational purposes
- Can make one copy for planning purposes
- Can make copies for one time use in class
- Pages from consumable materials may not be copied
- Cannot create a collection of works
- Cannot charge students
Students and the Law
Overview of Special Education Law
Special Educational Needs
Three People on the Margins
The First Person: In 1761 a six-year-old girl was captured from West Africa, given the name Phillis Wheatley, and sold into slavery in the City of Boston. By the time she was 17, Phillis had taught herself to read and write and had developed a special love and talent for poetry. Her owner was a wealthy businessman and sought to improve his reputation by publishing an anthology of her poems. Unfortunately he encountered stiff resistance from publishers because few people at that time believed Africans to be capable of the thought and imagination needed to write poetry. People who heard of her poetry were skeptical and inclined to think that it was faked. Eventually, to save his own reputation, the owner assembled a tribunal of 18 prominent judges—including the governor of Massachusetts and John Hancock, one of the signers of the Declaration of Independence—to assess the young woman’s mental capacity. After cross-examining her, the judges finally decided that Ms. Wheatley was, after all, capable of writing poetry (Robinson, 1982).
The Second Person: A century later, a child named Helen Keller lost her sight and hearing as a result of illness during infancy. In spite of this misfortune, though, Helen devised a language of gestural signs for communicating with a tutor, and was soon also using Braille to study both French and Latin. At ten she wrote and published a short story. Yet like Ms. Wheatley, Ms. Keller also faced substantial, chronic skepticism about her capacities. Prominent educators accused her of plagiarizing others’ writings and merely “parroting” others’ ideas without understanding them (Keller, 1954; Bogdan, 2006). Eventually, as with Wheatley, a panel was assembled—though this time the members were professional experts about disabilities—to determine whether Ms. Keller was in fact capable of writing what she published. The panel decided that was indeed capable, though only by a slim margin (five judges vs. four judges).
The Third Person: In 1978, Sue Rubin was born with a disability that limited her speech to disordered bursts of sound and occasionally echoing phrases of other people. She was labeled autistic because of her symptoms, and assumed to be profoundly retarded. With support and encouragement from her mother and others, however, Sue eventually learned to type on a keyboard without assistance. She learned to communicate effectively when she was about 13 and was able to go to school. Since then she has made many presentations about autism at conferences and recently co-edited a book about autism, titled Autism: The Myth of the Person Alone (Bogdan, et al., 2005).
One of these individuals experienced racial discrimination and the other two experienced physical disabilities, but notice something important: that all three were defined by society as disabled intellectually. Initially, their achievements were dismissed because of widespread assumptions—whether about race or disability—of their inherent incompetence. All three had to work harder than usual, not only to acquire literacy itself, but also to prove that their literacy was genuine and worthy of respect.
Since the time of Phillis Wheatley, North American society has eliminated slavery and made some progress at reducing certain forms of racism, though much remains to be done. In 1954, for example, the United States Supreme Court ruled that public schools could not be segregated by race, and in doing so recognized, at least legally, the moral obligation of society to provide all citizens with the best possible education. It has taken longer to recognize legally the rights and competence of persons with disabilities, but events and trends beginning in the 1970s have begun to make it happen. This chapter begins by explaining some of these and how they have altered the work of teachers.
Growing Support for People with Disabilities: Legislation and Its Effects
Since the 1970s political and social attitudes have moved increasingly toward including people with disabilities into a wide variety of “regular” activities. In the United States, the shift is illustrated clearly in the Federal legislation that was enacted during this time. The legislation partly stimulated the change in attitudes, but at the same time they partly resulted from the change. Three major laws were passed that guaranteed the rights of persons with disabilities, and of children and students with disabilities in particular. Although the first two affected teachers’ work in the classroom, the third has had the biggest impact on education.
Rehabilitation Act of 1973, Section 504
This law—the first of its kind—required that individuals with disabilities be accommodated in any program or activity that receives Federal funding (PL 93-112, 1973). Although this law was not intended specifically for education, in practice it has protected students’ rights in some extra-curricular activities (for older students) and in some child care or after-school care programs (for younger students). If those programs receive Federal funding of any kind, the programs are not allowed to exclude children or youth with disabilities, and they have to find reasonable ways to accommodate the individuals’ disabilities.
The definition of a disability under Section 504 is much broader than under another law providing special education services, “The Individuals with Disabilities Education Act.” Therefore, many of our students may receive special services under the umbrella of Section 504. These students will be in general education classrooms and you will have to make the necessary accommodations for them.
Americans with Disabilities Act of 1990 (or ADA).
This legislation also prohibited discrimination on the basis of disability, just as Section 504 of the Rehabilitation Act had done (PL 101-336, 1990). Although the ADA also applies to all people (not just to students), its provisions are more specific and “stronger” than those of Section 504. In particular, ADA extends to all employment and jobs, not just those receiving Federal funding. It also specifically requires accommodations to be made in public facilities such as buses, restrooms, and telephones. ADA legislation is therefore responsible for some of the “minor” renovations in schools that you may have noticed, such as wheelchair-accessible doors, ramps, and restrooms, and public telephones with volume controls.
Individuals with Disabilities Education Act (or IDEA)
As its name implied, this legislation was more focused on education than either Section 504 or ADA. It was first passed in 1975 and has been amended several times since, including most recently in 2004 (PL 108-446, 2004). In its current form, the law guarantees the following rights related to education for anyone with a disability from birth to age 21. In Michigan, services are provided for individuals with disabilities until the age of 26.
- Free, appropriate education: An individual or an individual’s family should not have to pay for education simply because the individual has a disability, and the educational program should be truly educational (i.e. not merely caretaking or “babysitting” of the person).
- Due process: In case of disagreements between an individual with a disability and the schools or other professionals, there must be procedures for resolving the disagreements that are fair and accessible to all parties—including the person himself or herself or the person’s representative.
- Fair evaluation of performance in spite of disability: Tests or other evaluations should not assume test-taking skills that a person with a disability cannot reasonably be expected to have, such as holding a pencil, hearing or seeing questions, working quickly, or understanding and speaking orally. Evaluation procedures should be modified to allow for these differences. This provision of the law applies both to evaluations made by teachers and to school-wide or “high-stakes” testing programs.
- Education in the “least restrictive environment”: Education for someone with a disability should provide as many educational opportunities and options for the person as possible, both in the short term and in the long term. In practice this requirement has meant including students in general education classrooms and school activities as much as possible, though often not totally.
- An individualized educational program: Given that every disability is unique, instructional planning for a person with a disability should be unique or individualized as well. In practice this provision has led to classroom teachers planning individualized programs jointly with other professionals (like reading specialists, psychologists, or medical personnel) as part of a team. Parents are also a part of this team, and when students are old enough, they can be a part of this process also. These plans, often referred to as an “IEP”, are reviewed annually and revised. In some cases, these can be reviewed each semester, or as needed.
Considered together, these provisions are both a cause and an effect of basic democratic philosophy. The legislation says, in effect, that all individuals should have access to society in general and to education in particular. Although teachers certainly support this philosophy in broad terms, and many have welcomed the IDEA legislation, others have found the prospect of applying it in classrooms leads to a number of questions and concerns. Some ask, for example, whether a student with a disability will disrupt the class; others, whether the student will interfere with covering the curriculum; still others, whether the student might be teased by classmates. Since these are legitimate concerns, I will return to them at the end of this chapter. First, however, let me clarify exactly how the IDEA legislation affects the work of teachers, and then describe in more detail the major disabilities that you are likely to encounter in students.
Responsibilities of Teachers for Students with Disabilities
The IDEA legislation has affected the work of teachers by creating three new expectations. The first expectation is to provide alternative methods of assessment for students with disabilities. The second is to arrange a learning environment that is as normal or as “least restrictive” as possible, and the third is to participate in creating individual educational plans for students with disabilities.
Alternative Assessments
Assessments are used in education to determine the strengths of our students, and areas that need further development, and then use that information to plan educational experiences. In the context of students with disabilities, assessment refers to gathering information about a student in order both to identify the strengths of the student, and to decide what special educational support, if any, the student needs. In principle, of course, these are tasks that teachers have for all students: assessment is a major reason why we give tests and assignments, for example, and why we listen carefully to the quality of students’ comments during class discussions. For students with disabilities, however, such traditional or conventional strategies of assessment often seriously underestimate the students’ competence (Koretz & Barton, 2003/2004; Pullin, 2005). Depending on the disability, a student may have trouble with
- holding a pencil,
- hearing a question clearly,
- focusing on a picture,
- marking an answer in time even when he or she knows the answer,
- concentrating on a task in the presence of other people, or
- answering a question at the pace needed by the rest of the class.
There are many more concerns a student may have, but the point is that we will be dealing with a variety of needs among all of our students, whether they qualify for special education services or not. The challenge for teachers is meeting the wide variety of needs of our students. ALL STUDENTS CAN LEARN! What they learn, how they learn it, and the time it takes to learn it will vary among all of our students. Keep an open mind always and be willing to make any adaptations that will benefit students.
Traditionally, teachers have assumed that all students either have these skills or can learn them with just modest amounts of coaching, encouragement, and will power. For many other students, for example, it may be enough to say something like “Remember to listen to the question carefully!” For students with disabilities, however, a comment like this may not work and may even be insensitive. A student with visual impairment need not be reminded to “look at the page closely” or “at what I am writing on the board”; doing so will not cause the student to see the chalkboard more clearly—though the reminder might increase the student’s anxiety and self-consciousness.
We also hear teachers tell students to “try harder”, or to “do it again and this time concentrate or pay attention to your work” when they are not successful with a task, or when students ask a question. Please don’t do this! When students ask a question, are not successful with an assignment, or stop working, these are all indicators that they are struggling and need support. Whether they are general education students or students receiving special services, they need to have questions answered and guidance given. Simply telling them to “try again” or “try harder” is insulting and disrespectful. Responding in this way will quickly lead to students who may shut down and stop making attempts at their work. When this happens, we have more problems.
There are a number of strategies for modifying assessments in ways that attempt to be fair and that at the same time recognize how busy teachers usually are. One is to consider supplementing conventional assignments or tests with portfolios, which are collections of a student’s work that demonstrate a student’s development over time, and which usually include some sort of reflective or evaluative comments from the student, the teacher, or both (Carothers & Taylor, 2003; Wesson & King, 1996). Another is to devise a system for observing the student regularly, even if briefly, and informally recording notes about the observations for later consideration and assessment. A third strategy is to recruit help from teacher assistants, who are sometimes present to help a student with a disability; an assistant can often conduct a brief test or activity with the student, and later report on and discuss the results with you. Keep in mind that an assessment does not always mean a test. Projects and observation can also be powerful and effective assessments.
If you reflect on these strategies, you may realize that they may sometimes create issues about fairness. If a student with a disability demonstrates competence one way but other students demonstrate it another, should they be given similar credit? On the other hand, is it fair for one student to get a lower mark because the student lacks an ability—such as normal hearing—that teachers cannot, in principle, ever teach? These ethical issues are legitimate and important.
As educators, it is our responsibility to help ALL students learn. We know that every person learns differently, so why would we try to teach all students in the same way? It’s not possible. Therefore, we have to help students understand that “equal” and “fair” are two different ideas. In our classrooms, we cannot treat students equally and have each of them be successful. . We have to adapt to their learning needs. We will talk more about this later, but we have to talk with our students from the very first day about the practices of the classroom. They have to understand there will be times when they will be doing things differently from their friends, or vice versa, and it’s all in the name of learning; learning that meets their individual needs.
Least Restrictive Environment
The IDEA legislation calls for placing students with disabilities in the least restrictive environment (or LRE), defined as the combination of settings that involve the student with regular classrooms and school programs as much as possible. The precise combination is determined by the circumstances of a particular school and of the student. A kindergarten child with a mild cognitive disability, for example, may spend the majority of time in the regular kindergarten, working alongside and playing with non-disabled classmates and relying on a teacher assistant for help where needed. An individual with a similar disability in high school, however, might be assigned primarily to classes specially intended for their need, but nonetheless participate in some school wide activities alongside non-disabled students. The difference in LREs might reflect teachers’ perceptions of how difficult it is to modify the curriculum in each case; rightly or wrongly, teachers are apt to regard adaptation as more challenging at “higher” grade levels. By the same token, a student with a disability that is strictly physical might spend virtually all his or her time in regular classes throughout the student’s school career. In this case, adjustment of the curriculum would not be an issue.
For you, the policy favoring the least restrictive environment means that if you continue teaching long enough, you will very likely encounter a student with a disability in one or more of your classes, or at least have one in a school-related activity for which you are responsible. It also means that the special educational needs of these students will most often be the “mildest.” Statistically, the most frequent forms of special needs are learning disabilities, which are impairments in specific aspects of learning, and especially of reading. Learning disabilities account for about half of all special educational needs—as much as all other types put together. Somewhat less common are speech and language disorders, cognitive disabilities, and attention deficit hyperactivity disorders (abbreviated ADHD). Because of their frequency and of the likelihood that you will meet students for whom these labels have been considered, I describe them more fully later in this chapter, along with other disability conditions that you will encounter much less frequently.
Individual Educational Plan
The third way that IDEA legislation and current educational approaches affect teachers is by requiring teachers and other professional staff to develop an annual individual educational plan (or IEP) for each student with a disability. The plan is created by a team of individuals who know the student’s strengths and needs; at a minimum it includes one or more classroom teachers, a “resource” or special education teacher, and the student’s parents or guardians. Sometimes, too, the team includes a school administrator (like a vice-principal) or other professionals from outside the school (like a psychologist or physician), depending on the nature of the child’s disability. An IEP can take many forms, but it always describes a student’s current social and academic strengths as well as the student’s social or academic needs. It also specifies educational goals or objectives for the coming year, lists special services to be provided, and describes how progress toward the goals will be assessed at the end of year. IEPs originally served mainly students in the younger grades, but more recently they have been extended and modified to serve transition planning for adolescents with disabilities who are approaching the end of their public schooling (West, et al., 1999). For these students, the goals of the plan often include activities (like finding employment) to extend beyond schooling as such.
If you have a student with an IEP, you can expect two consequences for teaching. The first is that you should expect to make definite, clear plans for the student, and to put the plans in writing. This consequence does not, of course, prevent you from taking advantage of unexpected or spontaneous classroom events as well in order to enrich the curriculum. But it does mean that an educational program for a student with a disability cannot consist only of the unexpected or spontaneous. The second consequence is that you should not expect to construct an educational plan alone, as it is commonly done when planning regular classroom programs. When it comes to students with disabilities, expect instead to plan as part of a team. Working with others ensures that everyone who is concerned about the student has a voice. It also makes it possible to improve the quality of IEPs by pooling ideas from many sources—even if, as you might suspect, it also can challenge professionals to communicate clearly and cooperate respectfully with team members in order to serve a student as well as possible.
A student in your class refuses to recite the Pledge of Allegiance. Can you send that student to the principal’s office?
- Yes
- No
- It depends!
Students Rights
https://www.youtube.com/watch?v=HFZgce7TZRI
Student Rights Explained
https://www.youtube.com/watch?v=ntEQfooBxTk&t=25s
Religion and Public Schools
The founding fathers deliberated for days on end when writing the first draft of our nation’s Constitution and later the Bill of Rights. They agonized over wording; argued over semantics. It is likely they had no idea just how successful this “great experiment in democracy” would turn out to be. Equally likely is this: they never once considered how these rights would pertain to young students in the classroom. The landmark case of Tinker v. Des Moines School District clearly defined the benchmark for how rights may be exercised and when they may be curtailed:
“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.… On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.
… Our problem lies in the area where students in the exercise of [their] rights collide with the rules of the school authorities.”
Constitutional Topic: Student Rights
In other words, one doesn’t surrender his or her constitutional rights by attending school. However the courts have recognized that the unique nature of the school environment requires that certain liberties be suppressed in the interest of maintaining a safe, orderly learning environment. According to the doctrine of “in loco parentis” school officials are more than government officials; they are, in a legal sense, the temporary parents of their students. Just what exactly that allows them to do and say is a matter of debate and has led to numerous legal challenges, many involving the Supreme Court.
The 1st Amendment
Freedom of Speech, Expression & Religion
Perhaps the most quoted court decision on the subject, Tinker v. Des Moines was a battle over students’ 1st amendment rights, specifically the right to free speech. High school students John Tinker, 15, and Christopher Eckhardt, 16, decided to show their opposition to the Vietnam War by wearing black armbands to school. Administrators countered by banning armbands and threatened disciplinary actions for any students violating the rule. Tinker and Eckhardt wore their armbands and were suspended, not allowed back until they agreed to stop violating school rules. Tinker’s father subsequently sued and lost in District Court. The Appellate Court was unable to reach a decision and the case was passed up to the Supreme Court, who overturned the District Court’s decision and ruled in favor of the plaintiffs. The court stated that if the student’s actions did not disrupt the learning environment, or advocate or cause harm to themselves or others, it was permissible. This has been the rationale in virtually every other opinion held by the court regarding student’s constitutional rights. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
While a student’s right to free speech is protected, it is not a blanket protection covering any form of protest. A recent example of this is Morse v. Frederick, also known as the “Bong Hits 4 Jesus” case.Morse v. Frederick, 127 S. Ct. 2618 (2007) This case is particularly eye-opening in that the offense occurred off school grounds. Frederick, a high school student, displayed a banner at a local parade featuring the phrase “Bong Hits 4 Jesus,” a reference to marijuana use. Morse, a school official, noticed the banner and instructed the student to take it down. When Frederick refused, he was suspended by Morse and the decision was upheld by the school board. Frederick sued, claiming protection under his 1st amendment rights. This time the Supreme Court sided with the school board, noting “ … schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, [therefore] the school officials in this case did not violate the First Amendment…” This fits with the consistent message of the courts – a student’s Constitutional rights will be protected only as long as their exercise does not endanger the health or academic progress of others.
Other cases regarding the Rights of Free Speech & Expression:
West Virginia v. Barnette, 1943 – The court ruled that it is unconstitutional to require students to salute the American flag. The 1st amendment not only protects freedom “of” expression but also freedom “from” expression. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
Bethel School District v. Fraser, 1986 – Washington high school student Matthew Fraser was suspended for using sexually explicit language in a speech given on school grounds. The court sided with the school, affirming that schools can prohibit “lewd, indecent or plainly offensive” language. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)
Guiles v. Marineau, 2004 – A 14- year old student in Vermont was suspended for repeatedly wearing a T-shirt depicting President George W Bush as an alcoholic and a cocaine addict. The shirt contained both written and visual depictions of banned substances. The court sided with the student, citing two factors: 1) the shirt did not advocate the use of illegal drugs and 2) the shirt did not cause significant disruptions to the learning environment. Guiles v. Marineau, 461 F.3d 320, 324-25 (2d. Cir. 2006)
Summary – A student’s exercise of speech or expression is legal and constitutionally protected so long as it doesn’t:
- endanger the public
- disrupt the learning environment
- advocate the use of illegal substances or other violations of the law
Student Expression Quiz
https://mclellan.law.msu.edu/quizzes/student-expression-quiz
4th Amendment
Unreasonable Search & Seizure
https://www.youtube.com/watch?v=tY4fPF6dijU
The student’s desire for freedom of speech can only be matched by their desire for privacy and for security of their possessions. The right of school officials to search a student’s belongings is a contentious issue, and few teachers know the limits of their authority and few students understand the extent of their rights. Just as Tinker v. Des Moines set the standard for the protection of 1st Amendment rights, so did another case set the precedent for search & seizure: New Jersey v. T. L. O., 469 U.S. 325 (1985).
Two female high school students were caught smoking in the restroom and assistant principal Theodore Choplick confronted them. One of the two admitted her wrongdoing but the other student (T.L.O.) denied it. Choplick searched T.L.O.’s purse and discovered cigarettes, drugs and drug paraphernalia, along with a large amount of money. T.L.O. was tried and convicted in court on charges of delinquency. The student countered that the school had violated her 4th amendment rights, depriving her of protection against unreasonable search and seizure (i.e. searching without a warrant) and the evidence should be inadmissible. The Supreme Court disagreed, stating: “a school official may properly conduct a search of a student’s person if the official has a reasonable suspicion that a crime has been or is in the process of being committed, or reasonable cause to believe that the search is necessary to maintain school discipline or enforce school policies.”
This is a departure from the court’s usual position requiring “probable cause” for government officials to search someone without a warrant. This change, although appearing slight, has enormous ramifications. School officials may search someone based solely upon a well-grounded suspicion, not iron-clad evidence of wrongdoing. This is analogous to the difference between “reasonable doubt” and “beyond a shadow of a doubt.” This threshold however applies only to school personnel and NOT to law enforcement officials on school grounds. The court has been careful not to slide down that slippery slope. In the court’s decision, they state that a teacher’s right to protect him- or herself and the safety of their students is on par with the rights of firefighters, EMS, OSHA officials, etc. The right to privacy must be balanced against the public’s right to safety. In a school, the balance is tilted toward protecting safety and maintaining order, even if it is at the expense of student rights.
The issue of locker searches has not come to the Supreme Court. As the locker is school property and therefore “public space” it is not afforded the same protections as a student’s personal possessions.
State of Iowa v. Marzel Jones (2003) – A student whose locker was cleaned out by school personnel. Finding a small amount of marijuana, the student was charged. Marzel claimed 4th amendment protection against unreasonable search & seizure but was denied by the State Supreme Court who “noted that the search occurred on school grounds, ‘where the State is responsible for maintaining discipline, health, and safety.’(Bd. of Ed. of Indep. Sch. Dist. 92 v. Earls, 536 U.S. 822)”. State of Iowa vs. Marzel Jones, Appellee 02-505 (2003).
Another issue of concern has been the constitutionality of drug screenings for student-athletes.
Vernonia School District v. Acton (1995) – 7th grade Oregon student James Acton signed up to play football but refused to take a mandatory urine test. Drug testing was administered to athletes after a recent ‘explosion’ in drug-use and the related discipline problems which arose. Citing public health concerns and noting the prevalence of student-athletes involved in drug-related incidents, the school board deemed urinalysis a necessary requirement for participation in sports. The Supreme Court agreed and upheld their decision. Once again, the desire to protect public health overrode student’s desire for privacy. Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)
Summary – School personnel may search a student and their belongings if the health & welfare of the public is at risk or they have a ‘reasonable suspicion’ that a crime has been, is being, or will be committed
5th & 14th Amendment
The Right to Due Process
These amendments protect an individual’s right to a fair trial and must be considered whenever “a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him…” Wisconsin v. Constantineau, 400 U.S. 433 (1971)
1). This includes the enforcement of disciplinary actions such as suspension or expulsion. The expectations of a fair trial are very different however, depending on the circumstances. Disciplinary expulsion is treated differently than an ‘academic dismissal.’ Claire La Roche makes the point by citing Barnard v. Inhabitants of Shelburne: “Misconduct is a very different matter from failure to attain a standard of excellence in studies…. A public hearing may be regarded as helpful to the ascertainment of misconduct and useless or harmful in finding out the truth as to scholarship.” (emphasis added)
According to La Roche’s interpretation of the courts, the following are necessary in the expulsion of a student on disciplinary grounds:
- a timely & formal hearing
- a detailed explanation of the charges
- a strict adherence to the schools stated policy
- a ‘punishment that fits the crime’
She goes on: “To ensure fundamental fairness, decisions must be based on the facts and supported by the evidence. Moreover, punishment should be commensurate with the severity of the offense. Consequently, it is important for schools to establish guidelines and be consistent with sanctions.”
Other Miscellaneous Cases
The following are other judgments handed down by the Supreme Court:
School uniforms and dress codes are intended to stop disruptions to the learning process by banning lewd, obscene or offensive clothing. As such, the courts have ruled them constitutional despite students pleading for “the freedom of expression” and the lesser-known “freedom to see skin.”
Corporal punishment (physically disciplining a student) barely passed a constitutional challenge in 1977 with a divided court ruling 5-4 that it is neither “cruel and unusual punishment” nor a denial of due process. (Ingraham v. Wright, 430 U.S. 651 [1977]) While corporal punishment is not allowed in Michigan, there are states where it is still legal.
The censorship of school newspapers was upheld with the understanding that the school is not a “forum of public expression.” Further, the justices declared that a school “need not tolerate student speech that is inconsistent with its basic educational mission.” (Hazelwood v. Kuhlmeier, 484 U.S. 260 [1988]).
Additional Information
Religion and the Law
- Prayer or other religious activities cannot be initiated by the school or teacher
- Prayer and other religious activities are permitted if initiated by students
- Schools must give religious organizations the same access to facilities as they give other secular organizations
- Prayer is permitted in school if initiated by students, and does not interfere with the functioning of the school; all students are not required to participate
- Schools cannot teach a particular religion but may teach the history of religion, comparative religions, or the role of religion in the history of the United States or other countries
- No religious symbols permitted
Civil Rights Act of 1964 prohibits discrimination based on race, color or national origin.
Title IX prohibits discrimination based on gender.
Family Education Right and Privacy Act (FERPA): make school records open to parents and students; must inform parents of their rights regarding records; must provide access; must create procedures for allowing students and parents to challenge and/or amend information believed to be inaccurate; protects against disclosure of confidential information to third parties without consent.
Summary
In summary, within teaching, there is a unique set of ethical relationships and legal obligations that are embedded in the work of a teacher. Teachers have the responsibility to build moral character and be an example of that too. Adhering to a shared code of ethics can assist teachers in mitigating risk and protecting students and themselves.
The federal government makes general regulations for education and contributes very little funding for the schools (Federal Role, n.d.).
The states have most of the power because they are able to set the standards for teachers and students, and they fund the public school system almost completely (ECS, 1999).
The district has the power in the area entrusted to them by the state. Each district has an elected school board that determines how state standards are achieved and anything else they see fit to better the students’ education (Office of the Education Ombudsman, n.d.).
The superintendent oversees the schools in the district and makes sure they are following what is set by the states and the district (ECS, 1999).
The principals manage their individual schools with assistance from the assistant principal (Office of the Education Ombudsman, n.d.).
The teachers instruct the students in accordance with the standards set before them by all levels of the hierarchy.
Thoughts
Watch the following video with this question in mind: Freedom of speech remains a hot topic in schools. What do you think about the court’s ruling on Frederick’s banner? What elements of this case relate to the more current case described below. What elements are different?
Dig Deeper
Untangling Legal Issues that Affect Teachers and Student Teachers
https://www.findlaw.com/education/teachers-rights/teachers-rights-basics.html
Teachers Rights Basics
https://lawshelf.com/videocoursesmoduleview/the-basic-structure-of-education-law/
The Basic Structure of Education Law
https://www.youtube.com/watch?v=3xLo0ZiY6mE&t=1s
Code of Ethics for Arkansas Educators Training Video
Did You Get It?
Quiz for this chapter
Test your vocabulary skills!
Modified from “Foundations of Education and Instructional Assessment” by Alyschia Conn, Jasmine Tucay and Sarah Wolff licensed under CC BY-SA 4.0 and “Education 2010 – Introduction to Education” by Brenda Alward.