Authors: Robert J. Shoop, Dennis R. Dunklee
ISBN-13: 9781412925945, ISBN-10: 1412925940
Format: Paperback
Publisher: SAGE Publications
Date Published: March 2006
Edition: 2nd Edition
Dennis R. Dunklee is professor emeritus in the Education Leadership Department in the Graduate School of Education at George Mason University. During his 25 years in public schools, he served as a teacher, elementary school principal, junior high and middle school principal, high school principal, and central office administrator. During his tenure as a professor, he taught courses in education law and school leadership and served as an advisor and chair for masters in school administration candidates. He continues to advise doctoral candidates in school leadership and serves as an adjunct professor. Because of his expertise and practical experience, he is frequently called on to consult in the areas of effective schools, school law, administrator evaluation, instructional supervision, school-community relations, problem solving, and conflict resolution. In addition, he has been involved as a consultant and expert witness in numerous school-related lawsuits nationwide. As a university scholar and researcher, he published 10 textbooks, two monographs, and more than 100 articles on issues in the fields of school law, business management, administrative practice, and leadership theory. He is active in a number of professional organizations; has presented papers at international, national, regional, state, and local conferences; and is a widely sought-after clinician for inservice workshops. Dunklee was an invited participant and presenter in the 2005 Oxford (University) Round Table on Education Law: Individual Rights and Freedoms and in 2007 was recognized by Kappa Delta Pi as an educator "who exemplifies the high professional, intellectual, and personal standards our Societypromotes, who demonstrates dedication to educators, students, and the field of education."
Dunklee has written or co-written seven books for Corwin Press. His other Corwin books are You Sound Taller On The Telephone: A Practitioner's View of the Principalship (1999); If You Want to Lead Not Just Manage (2000), The Principal's Quick Reference Guide to School Law (2002) (with Robert J. Shoop), Strategic Listening for School Leaders (2005) (with Jeannine Tate), Anatomy of a Lawsuit: What Every Education Leader Should Know about Legal Actions (2006) (with Robert J. Shoop) and The Principal's Quick Reference Guide to School Law 2nd Edition (2006) (with Robert J. Shoop).
He received his PhD in school administration and foundations from Kansas State University. His major area of research was in the field of education law, and his dissertation was on tort liability for negligence. He holds a master's degree in elementary and secondary school administration from Washburn University.
Book Synopsis
These recognized school law experts translate school law into proactive day-to-day practice to minimize legal risk and respect legal rights in the school community.
Table of Contents
Foreword Charles J. Russo xxiii
Preface and Advisement xxv
Acknowledgments xxvii
About the Authors xxix
Introduction 1
Focus Point: Understanding Judicial Decisions 3
Preventive Law: Developing Risk and Crisis Management Programs 6
Focus Point: Tenets of Preventive Law and Risk Management 7
Focus Point: What Is Preventive Law? 8
Focus Point: Identifying Potential Risks 8
Focus Point: Affirmative Duty of School-Based Personnel in Risk Management and Prevention 11
Focus Point: Adopting a Preventive Law Mind-Set 13
Examples of Management Cues 14
Suggested Risk Management Guidelines 14
Focus Point: Working With the Media 15
Suggested Risk Management Guidelines 15
Chapter Resources 16
The School and the Legal Environment 17
Foundations of the School's Relationship to the Legal Environment 18
Focus Point: Basic Principles of Our Legal System 18
Focus Point: Constitutional Law, Common Law, Statutory Law, and Administrative Law 19
Focus Point: How Laws Are Made and Enforced 20
FocusPoint: Court Functions 22
Clauses of and Amendments to the U.S. Constitution That Affect Education Practice 23
Focus Point: General Welfare Clause 23
Focus Point: First Amendment 24
Focus Point: Fourth Amendment 24
Focus Point: Fifth Amendment 24
Focus Point: Fourteenth Amendment 24
Other Provisions of the U.S. Constitution of Interest to Educators 25
Landmark Supreme Court Rulings That Affect Education Practice 27
Focus Point: Desegregation 27
Focus Point: School Finance 29
Focus Point: Student and Teacher Rights 31
Focus Point: Special Education 33
Focus Point: Church and State 34
Highlights of Selected Portions of Federal Statutes That Affect Education Practice 34
Focus Point: Civil Rights Acts of 1866,1870 42
U.S.C. [section section] 1981 and 1988; Civil Rights Acts of 1871-42 U.S.C. [section section] 1983, 1985, and 1986; Civil Rights Acts of 1964, Titles IV and VII-42 U.S.C. [section section] 2000d, 2000e-2 34
Focus Point: Title IX of the Education Amendments of 1972 and the Title IX Regulations 34 C.F.R. [section] 106-1 et seq. 35
Focus Point: Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. [section] 1232g 36
Focus Point: Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 42 U.S.C. [section section] 12101-12213 38
Focus Point: Individuals with Disabilities Education Act (IDEA), as Amended in 1997, Pub. L. No. 105-17, 20 U.S.C. [section section] 1400-1485 38
Focus Point: Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. [section] 621 ([section] 623) 38
Examples of Management Cues 39
Suggested Risk Management Guidelines 39
Focus Point: Rehabilitation Act of 1973, 29 U.S.C. [section] 794 ([section] 504) 39
Focus Point: Equal Educational Opportunities Act, 20 U.S.C. [section] 1703 40
Focus Point: The Family and Medical Leave Act of 1993 (FMLA), Pub. L. No. 103-3, 29 C.F.R. [section] 825 40
Workers' Compensation 41
Focus Point: General Provisions Regarding Workers' Compensation 42
Suggested Risk Management Guidelines 45
Legal Status of School Choice 45
Focus Point: Legislation Governing Charter Schools and Vouchers 46
Examples of Management Cues 48
Suggested Risk Management Guideline 49
Statute of Limitations for Federal Cases 49
Examples of Leading U.S. Supreme Court Cases on Education 49
Additional Cases of Interest to Educators 52
Chapter Resources 53
The No Child Left Behind Act: Implications of NCLB on Local Schools 56
Major Provisions of NCLB of Interest to Principals 57
Focus Point: Highly Qualified Teachers 57
Examples of Management Cues 58
Suggested Risk Management Guidelines 53
Focus Point: NCLB and Annual Testing 58
Focus Point: NCLB and ELLs 59
Example of a Management Cue 59
Suggested Risk Management Guidelines 59
Focus Point: Public School Choice 59
Examples of Management Cues 60
Suggested Risk Management Guidelines 60
Focus Point: Unsafe Schools and Choice 61
Examples of Management Cues 61
Suggested Risk Management Guidelines 61
Focus Point: Supplemental Educational Services 61
Examples of Management Cues 62
Suggested Risk Management Guidelines 62
Focus Point: NCLB and Military Recruiters 62
Examples of Management Cues 62
Suggested Risk Management Guidelines 63
Current Legal Challenges to NCLB 63
Focus Point: State Standards More Rigorous Than NCLB Mandates 63
Focus Point: Conflicts between NCLB and Federal Special Education Law 64
Focus Point Unfunded Mandate-States and Schools Have Insufficient Funds to Comply With NCLB Mandates 65
Examples of Management Cues 66
Suggested Risk Management Guidelines 66
Chapter Resources 67
Constitutional and Statutory Foundations of Staff Selection, Contracting, and Evaluation 68
Equal Employment 69
Focus Point: Title VII of the Civil Rights Act of 1964 69
Examples of Management Cues 70
Suggested Risk Management Guidelines 70
Focus Point: The Equal Pay Act of 1963 71
Example of a Management Cue 72
Suggested Risk Management Guidelines 72
Focus Point: The Age Discrimination in Employment Act (ADEA) 72
Example of a Management Cue 72
Suggested Risk Management Guidelines 73
Focus Point: The Rehabilitation Act of 1973 73
Examples of Management Cues 74
Suggested Risk Management Guidelines 74
Focus Point: The Americans with Disabilities Act of 1990 (ADA) 74
Examples of Management Cues 75
Suggested Risk Management Guidelines 75
Focus Point: The Veterans' Reemployment Rights Act of 1940 75
Example of a Management Cue 76
Suggested Risk Management Guidelines 76
Focus Point: The Immigration Reform and Control Act of 1986 (IRCA) 77
Examples of Management Cues 77
Suggested Risk Management Guidelines 77
Focus Point: Title IX of the Education Amendments of 1972 77
Examples of Management Cues 78
Suggested Risk Management Guideline 78
Staff Selection 79
Focus Point: Employment Selection 80
Example of a Management Cue 80
Suggested Risk Management Guidelines 80
Negligent Hiring, Defamation, and Referencing 84
Focus Point: Negligent Hiring 84
Examples of Management Cues 88
Suggested Risk Management Guidelines 88
Focus Point: Defamation and Referencing 89
Examples of Management Cues 90
Suggested Risk Management Guidelines 90
Performance Evaluation 91
Focus Point: Evaluation Guidelines and Congruence 92
Example of a Management Cue 95
Suggested Risk Management Guidelines 95
Chapter Resources 96
Teachers' Constitutional Rights, Terms, and Conditions of Employment 97
Licensure and Employment Contracts 98
Focus Point: Probationary Contracts, aka Term Contracts 99
Examples of Management Cues 100
Suggested Risk Management Guidelines 100
Focus Point: Tenure, aka Continuing Contracts 100
Examples of Management Cues 101
Suggested Risk Management Guidelines 101
Focus Point: Supplementary Contracts, aka Addendum to Contract, aka Supplemental Duty 101
Examples of Management Cues 102
Suggested Risk Management Guidelines 103
Focus Point: Employment Requirements 103
Example of a Management Cue 104
Suggested Risk Management Guidelines 105
Focus Point: Collective Bargaining and Contracts 105
Examples of Management Cues 106
Suggested Risk Management Guidelines 106
Teachers' Rights 107
Focus Point: Teachers' Rights to Hearings and Procedural Due Process 108
Examples of Management Cues 109
Suggested Risk Management Guidelines 109
Focus Point: Teachers' Rights in Evidence and Bias 110
Example of a Management Cue 110
Suggested Risk Management Guidelines 111
Focus Point: Teachers' Rights in a Reduction in Force (RIF) 111
Examples of Management Cues 111
Suggested Risk Management Guideline 112
Focus Point: Teachers' Rights Regarding Property Interests 112
Examples of Management Cues 112
Suggested Risk Management Guidelines 112
Focus Point: Teachers' Rights and the Concept of Vagueness 113
Examples of Management Cues 113
Suggested Risk Management Guideline 113
Focus Point: The Student Teacher or Intern-Substitute Teachers 114
Examples of Management Cues 115
Suggested Risk Management Guidelines 115
Teacher Behaviors 116
Focus Point: Teacher Behavior-The Concept of Nexus 117
Examples of Management Cues 117
Suggested Risk Management Guideline 117
Focus Point: Teacher Behavior-The Concept of Privacy 118
Example of a Management Cue 118
Suggested Risk Management Guideline 118
Focus Point: Teacher Behavior-Freedom of Speech in Evaluation and Other Teacher and Principal Matters 119
Example of a Management Cue 119
Suggested Risk Management Guidelines 119
Focus Point: Teacher Behavior-Incompetence 120
Examples of Management Cues 121
Suggested Risk Management Guidelines 121
Focus Point: Teacher Behavior-Insubordination 122
Examples of Management Cues 122
Suggested Risk Management Guideline 123
Focus Point: Teacher Behavior-Immoral Conduct 123
Examples of Management Cues 124
Suggested Risk Management Guidelines 125
Focus Point: Teacher Behavior-Other Causes for Dismissal 126
Examples of Management Cues 127
Suggested Risk Management Guidelines 128
Examples of Leading U.S. Supreme Court Cases on Education 128
Additional Cases of Interest to Educators 130
Chapter Resources 130
Students' Rights 131
Students' Rights to Symbolic Expression 131
Focus Point: Symbolic Expression through Buttons, Jewelry, and So Forth 132
Example of a Management Cue 133
Suggested Risk Management Guidelines 133
Focus Point: Symbolic Expression through Dress and Hairstyle 133
Examples of Management Cues 134
Suggested Risk Management Guidelines 134
Focus Point: Symbolic Expression through Physical Gestures 134
Examples of Management Cues 135
Suggested Risk Management Guidelines 135
Focus Point: Symbolic Expression through School Mascots 135
Example of a Management Cue 135
Suggested Risk Management Guideline 136
Focus Point: Symbolic Expression through Gang-Related Regalia and Behaviors-Related Issue: Cults and Satanism 136
Examples of Management Cues 137
Suggested Risk Management Guidelines 137
Students' Rights to Oral and Written Expression 138
Focus Point: Expression through Students' Oral Communication 138
Examples of Management Cues 139
Suggested Risk Management Guidelines 139
Focus Point: Expression through Students' Written Communication 139
Examples of Management Cues 141
Suggested Risk Management Guidelines 142
Students' Rights to Freedom of Assembly 143
Focus Point: Expression through Freedom of Assembly 144
Example of a Management Cue 144
Suggested Risk Management Guideline 144
Students' Rights to Have Wireless Communication Devices 144
Focus Point: The Prohibition of Wireless Communication Devices 145
Examples of Management Cues 145
Suggested Risk Management Guidelines 145
Examples of Leading U.S. Supreme Court Cases on Education 145
Additional Cases of Interest to Educators 146
Chapter Resources 147
Student Discipline 149
Exclusion from School 150
Focus Point: Short-Term Suspension 151
Example of a Management Cue 152
Suggested Risk Management Guidelines 152
Focus Point: Long-Term Suspension and Expulsion 152
Examples of Management Cues 153
Suggested Risk Management Guidelines 153
Corporal Punishment, Reasonable Punishment, Excessive Punishment, Intentional Torts 153
Focus Point: Corporal Punishment 153
Examples of Management Cues 155
Suggested Risk Management Guideline 156
Disciplining Students for Acts Off School Grounds 156
Focus Point: Institutional Authority Off School Grounds 156
Examples of Management Cues 158
Suggested Risk Management Guidelines 158
Liability for the Violation of Students' Rights 159
Focus Point: Liability for Violation of Students' Rights-The Civil Rights Act of 1871 159
Examples of Management Cues 160
Suggested Risk Management Guideline 160
Zero Tolerance 160
Focus Point: Zero Tolerance Policy Development and Implementation 160
Examples of Management Cues 163
Suggested Risk Management Guidelines 164
Examples of Leading U.S. Supreme Court Cases on Education 164
Chapter Resources 165
The Principal's Responsibilities in Providing Special Education Services 166
Key Terminology and Principles in Special Education Law 169
Focus Point: Free, Appropriate, Public Education (FAPE) 170
Examples of Management Cues 170
Suggested Risk Management Guidelines 171
Focus Point: The IDEA Definition of Disability 171
Examples of Management Cues 171
Suggested Risk Management Guidelines 172
Focus Point: Special Education, Related Services, and Supplementary Aids and Services 172
Examples of Management Cues 173
Suggested Risk Management Guidelines 174
Focus Point: Least Restrictive Environment (LRE) 174
Examples of Management Cues 175
Suggested Risk Management Guidelines 175
Focus Point: Procedural Safeguards 175
Examples of Management Cues 177
Suggested Risk Management Guidelines 177
Special Education Procedures 177
Focus Point: Conducting Prereferral Interventions 178
Examples of Management Cues 179
Suggested Risk Management Guidelines 179
Focus Point: Early Intervening Services 180
Examples of Management Cues 180
Suggested Risk Management Guidelines 181
Focus Point: Determining Eligibility for Services under IDEA 181
Examples of Management Cues 182
Suggested Risk Management Guidelines 183
Focus Point: Developing a Student's IEP 183
Examples of Management Cues 185
Suggested Risk Management Guidelines 186
Focus Point: Making Placement Decisions 186
Examples of Management Cues 187
Suggested Risk Management Guidelines 187
Focus Point: Implementing Required Procedural Safeguards 188
Examples of Management Cues 190
Suggested Risk Management Guidelines 190
Focus Point: Participation of Students with Disabilities in State and Districtwide Assessments 190
Examples of Management Cues 191
Suggested Risk Management Guidelines 191
Focus Point: Disciplining Students with Disabilities 191
Examples of Management Cues 193
Suggested Risk Management Guidelines 194
Focus Point: Determining Eligibility for Services under Section 504 of the Rehabilitation Act of 1973 194
Examples of Management Cues 195
Suggested Risk Management Guidelines 195
Focus Point: Ensuring That School-Based Special Education Teachers Are Highly Qualified 196
Examples of Management Cues 197
Suggested Risk Management Guidelines 197
Examples of Leading U.S. Supreme Court Cases on Special Education 197
Chapter Resources 198
Academic Issues and Student Records 200
Grade Assignment, Grade Reduction, and Minimum Competency Tests 200
Focus Point: Grade Assignment and Minimum Competency Testing 201
Examples of Management Cues 201
Suggested Risk Management Guideline 201
Focus Point: Grade Reduction and Student Attendance 202
Example of a Management Cue 202
Suggested Risk Management Guidelines 202
Focus Point: Grade Reduction, Withholding a Diploma, and Student Misconduct 203
Examples of Management Cues 203
Suggested Risk Management Guidelines 203
Participation in Extracurricular Activities 203
Focus Point: Academic and State Standards for Athletics and Other Extracurricular Activities 204
Focus Point: Disabled Student Athletes 205
Examples of Management Cues 206
Suggested Risk Management Guideline 206
Focus Point: Participation Fee Plans 206
Student Records 207
Focus Point: Family Rights and Privacy Act (FERPA), aka the Buckley Amendment 207
Focus Point: FERPA and IDEA 210
Focus Point: FERPA and Privacy in the Classroom 210
Examples of Management Cues 211
Suggested Risk Management Guidelines 212
Chapter Resources 213
Copyright Law 217
Focus Point: What Copyright Protects 218
Focus Point: The Source of Copyright Law 219
Focus Point: Public Domain 220
Focus Point: Fair Use Doctrine 220
Focus Point: School-Sponsored Internet 222
Focus Point: Educational Media Projects 224
Examples of Management Cues 224
Suggested Risk Management Guidelines 226
Chapter Resources 232
Search and Seizure 233
Focus Point: Proper or Improper Search and Seizure 234
Examples of Management Cues 238
Suggested Risk Management Guidelines 238
Additional Cases of Interest to Educators 239
Chapter Resources 239
The Principal's Responsibilities in Program Management 240
School Attendance 240
Focus Point: Constitutional Right to an Education 241
Focus Point: Home Instruction 242
Examples of Management Cues 243
Suggested Risk Management Guidelines 243
Focus Point: Homeless Children and Youth 243
Examples of Management Cues 245
Suggested Risk Management Guidelines 245
Bilingual and Special Language Programs 246
Focus Point: Court Rulings That Have Affected the Education of Language Minority Students 246
Examples of Management Cues 250
Suggested Risk Management Guidelines 250
Focus Point: Education of Migrant Children 251
Religion in Public Schools 252
Focus Point: Official Neutrality Regarding Religious Activity 254
Focus Point: School Prayer and Bible Reading 254
Focus Point: Distribution of Religious Literature by Students 257
Focus Point: Accommodation of Students With Special Religious Needs 257
Focus Point: Teaching About Religion 258
Focus Point: Religious Holidays 260
Focus Point: Religious Excusals 260
Focus Point: Released Time 260
Focus Point: Character Education 261
Focus Point: Student Attire 261
Focus Point: The Equal Access Act 261
Focus Point: Using Federal Funds for Remedial Education Services 264
Focus Point: Pledge of Allegiance 264
Focus Point: The Ten Commandments 265
Focus Point: Distribution of Bibles in Public Schools 266
Focus Point: Public Aid to Private Schools 266
Focus Point: The Religious Freedom Restoration Act 267
Examples of Management Cues 267
Suggested Risk Management Guidelines 268
The Marketplace of Ideas 269
Focus Point: Community Service 269
Focus Point: Censorship of Print Material 270
Focus Point: The Harry Potter Argument 273
Examples of Management Cues 274
Suggested Risk Management Guidelines 275
Focus Point: Issues Related to the Use of the Internet 275
Examples of Management Cues 277
Suggested Risk Management Guidelines 277
Focus Point: Internet Privacy for Student Files 278
Examples of Management Cues 279
Suggested Risk Management Guidelines 279
Focus Point: Technology and Student Misconduct 280
Suggested Risk Management Guidelines 281
Health and Safety Issues 281
Focus Point: School Violence and Liability for Failing to Protect Students 281
Examples of Management Cues 283
Suggested Risk Management Guidelines 284
Focus Point: Drug Testing of Students 285
Examples of Management Cues 287
Suggested Risk Management Guidelines 287
Focus Point: Drug Testing of School Employees 288
Examples of Management Cues 289
Suggested Risk Management Guidelines 290
Focus Point: Child Abuse 290
Examples of Management Cues 292
Suggested Risk Management Guidelines 293
Focus Point: Teacher Abuse of Students 293
Examples of Management Cues 294
Suggested Risk Management Guidelines 294
Focus Point: Child Abduction 294
Examples of Management Cues 295
Suggested Risk Management Guidelines 295
Focus Point: Students With AIDS 296
Examples of Management Cues 298
Suggested Risk Management Guidelines 298
Focus Point: Medication Administration 300
Focus Point: Immunization 300
Examples of Management Cues 300
Suggested Risk Management Guideline 301
Examples of Leading U.S. Supreme Court Cases on Education 301
Additional Cases of Interest to Educators 302
Chapter Resources 302
Sexual Harassment 310
Focus Point: Sexual Harassment Defined and Categorized 312
Focus Point: School Liability for Sexual Harassment 314
Focus Point: Appropriate Physical Contact versus Unwelcome Conduct or Hostile Environment 316
Focus Point: Harassment of Males 318
Focus Point: Duty to Prevent Antigay Student Harassment 318
Focus Point: Affirmative Response to a Complaint 322
Focus Point: Defense Against Allegations 322
Focus Point: Protecting Teachers' Reputations 324
Suggested Risk Management Guideline (Prohibited Conduct regarding Sexual Orientation) 324
Suggested Risk Management Guideline (Advice for Parents) 325
Suggested Risk Management Guidelines (Policy Development) 325
Suggested Risk Management Guidelines (Policy Implementation and Enforcement) 326
Suggested Risk Management Guidelines (Codes of Conduct and Training to Support Policy) 327
Suggested Risk Management Guideline (For Teachers and Other Employees) 327
Suggested Risk Management Guidelines (Cautions) 328
Suggested Risk Management Guideline (Compliance) 329
Suggested Risk Management Guidelines (Additional Considerations) 329
Chapter Resources 330
State-Created Danger and Deliberate Indifference 332
Focus Point: School District Liability at the Federal Civil Level, Based on the Fourteenth Amendment's Due Process Clause and Section 1983 of Chapter 42 of the United States Code 332
Example of a Management Cue 337
Suggested Risk Management Guidelines 337
Chapter Resources 338
The Principal's Tort Liability for Negligence as Applied to Expected Duty and Standards of Care 339
The Law of Torts and the Concept of Negligence 340
Focus Point: The Law of Torts 340
The Concept of Negligence and Its Application to Duty and Standards of Care 344
Focus Point: The Concept of Negligence 345
Examples of Management Cues 347
Suggested Risk Management Guidelines 347
Focus Point: The Concept of Duty and Standard of Care 349
Examples of Management Cues 351
Suggested Risk Management Guidelines 351
The Concepts of Negligence, Duty, and Standards of Care and Their Application to Proper Instruction, Proper Supervision, Proper Maintenance, Field Trips, Postinjury Treatment, Athletic Liability, and Spectator Safety 353
Focus Point: The Application of Negligence to Proper Instruction 354
Examples of Management Cues 357
Suggested Risk Management Guidelines 357
Focus Point: The Application of Negligence to Proper Supervision 359
Examples of Management Cues 363
Suggested Risk Management Guidelines 363
Focus Point: The Application of Negligence to Proper Maintenance 363
Example of a Management Cue 368
Suggested Risk Management Guidelines 368
Focus Point: The Application of Negligence to Field Trips 369
Examples of Management Cues 372
Suggested Risk Management Guidelines 373
Focus Point: The Application of Negligence to Postinjury Treatment, Athletic Liability, and Spectator Safety 373
Examples of Management Cues 376
Suggested Risk Management Guidelines 377
Additional Cases of Interest to Educators 378
Chapter Resources 379
Index 381
Subjects