Week 3 - Student Records and FERPA

Week 3 - Student Records and FERPA

Please read the information below. These experts were lifted from the textbook.

1. Respond to the discussion questions in the case study.
2. Respond to at least two comments on your classmates' posts.
3. Post a "What if" question on one of the two topics.

I will makes comments to your post by Sunday evening. Next week's topic will be posted by Monday evening. Happy blogging..........

 
FAMILY EDUCATION RIGHTS AND PRIVACY ACT (FERPA)

Landmark U.S. Supreme Court Rulings

On February 1 9, 2002, the U.S. Supreme Court ruled in Owasso ISD v.  Falvo that peer grading

does not violate FERPA.7 Student papers are not “maintained” within the meaning of FERPA

when students correct them or call out grades. “Maintained” suggested that FERPA records were

kept in files or cabinets in a records room at the school. The court stated further that FERPA

should not be construed to prohibit techniques currently used by teachers. If homework or class

work were considered educational records, a substantial burden would be placed on teachers

across the country. Simply stated, an assignment is not considered an educational record as soon

as it is graded by another student.

On June 20, 2002, the U.S. Supreme Court ruled in Doe v.  Gonzaga. 8 In the Gonzaga case,

a student brought litigation against the university for disclosing personally identifiable informa-

tion, without his consent, in violation of FERPA. The Supreme Court ruled that students and par-

ents may not sue for damages under 42 U.S.C. § 1 983 to enforce provisions of FERPA.

U.S. Court of Appeals for the Sixth Circuit Ruling

On June 27, 2002, the Sixth Circuit Court of Appeals unanimously affirmed a lower court’s rul-

ing that university disciplinary records are “education records” under FERPA and that disclosing

such records without students’  consent constitutes a violation of FERPA. In 1 998, the U.S.

Department of Education asked a federal district court in Ohio to enjoin Miami University and

The Ohio State University from disclosing records containing the names of student victims

and accused students as prohibited under FERPA.9 On March 20, 2000, the U.S. District Court for the Southern District of Ohio permanently enjoined the two Ohio universities from disclosing

their on-campus disciplinary records to the public under the state’s open-records law.

In affirming the ruling, the circuit court concluded that continued release of student disci-

plinary records “will irreparably harm the United States” and the Department of Education. This

is important for three reasons:

1. The court agreed with the lower court that the Student Right-to-Know and Campus

Security Act provides parents and students with statistical information about the type and

amount of crimes on campus.

 

2. The court reaffirmed the department’s broad reading of the term “education records” and

stated that Congress, in amending FERPA in 1 998 to allow postsecondary institutions to

disclose the final results of disciplinary proceedings, must have intended that disciplinary

records be education records or this amendment would be “superfluous.”

 

3. The court held that the Department of Education was within its rights in seeking an injunc-

tive relief in this case because none of the administrative remedies authorized by FERPA

would have stopped the violations. In effect, the court held that the department can take

preemptive actions in enforcing FERPA, rather than only after violations occur.

NO CHILD LEFT BEHIND ACT OF 2002

Annual Notification Requirements

The Secretary of Education is now required to annually inform each state education agency (SEA)

and each local education agency (LEA) of their obligations under both FERPA and the Protection

of Pupil Rights Amendment (PPRA). This provision is found in § 1061(c)(5)(C), the amendments

to PPRA (discussed below). The Family Policy Compliance Office (FPCO) is in the process of

finalizing the notices to be provided to SEAs and LEAs. (See Chapter 4 for No Child Left Behind

and School Safety.)

Transfer of School Disciplinary Records

FERPA currently permits schools to transfer any and all education records, including discipli-

nary records, on a student who is transferring to another school. See § 99.31 (a)(2) and § 99.34 of

the FERPA regulations. This new provision requires states that receive funds under the

Elementary and Secondary Education Act (ESEA) to provide, within two years, an assurance to

the secretary of education that the state “has a procedure in place to facilitate the transfer of dis-

ciplinary records, with respect to a suspension or expulsion, by local educational agencies to any

private or public elementary school or secondary school for any student who is enrolled or seeks,

intends, or is instructed to enroll, on a full- or part-time basis, in the school.”

 

Armed Forces Recruiter Access

FERPA currently allows schools to designate and disclose without consent certain items of infor-

mation as “directory information.” FERPA regulations define “directory information” under

§ 99.3 of the regulations and set forth the requirements for implementing a “directory information”

policy under § 99.37 of FERPA. Generally, “directory information” may be disclosed by a school

to any party, provided the requirements of FERPA are followed.

Congress passed a provision in the No Child Left Behind (NCLB) Act that addresses the

disclosure of directory-type information (students’  names, addresses, and telephone listings) to military recruiters. Congress also included similar language in the National Defense

Authorization Act for fiscal year 2002. Both laws, with some exceptions, require schools to pro-

vide directory-type information to military recruiters who request it. Typically, recruiters request

names, addresses, and telephone listings of junior and senior high school students that will be

used for recruiting purposes and college scholarships offered by the military.

Student Privacy and Physical Exams

NCLB contains a major amendment to PPRA that gives parents more rights with regard to the

surveying of minor students, the collection of information from students for marketing purposes,

and certain nonemergency medical examinations. PPRA has been referred to as the Hatch

Amendment and the Grassley Amendment, after the authors of amendments to the law. School

officials may also hear the law referred to as the Tiahrt Amendment, after Congressman Todd

Tiahrt, who introduced to PPRA the changes regarding surveys. The statute is found in 20 U.S.C.

§ 1 232h, and the regulations are found in 34 CFR Part 98.

 

DEFAMATION INVOLVING SCHOOL PERSONNEL

Defamation, discussed in Chapter 6, regarding liability applies to student records. When

school personnel communicate personal and sensitive information to another unauthorized

person that results in injury to the student’s reputation or standing in the school or that dimin-

ishes the respect and esteem to which the student is held, they may face charges of libel or

slander, depending on the manner and intent with which such information was communi-

cated. Defamation is a tort or civil wrong committed against another in which recovery is

appropriate with a showing that the offended party received injury based on the deliberate or

malicious action of others.

 

Slander

Slander is oral defamation, which occurs when school personnel inadvertently communicate

sensitive and damaging information contained in student files to others who have no need to be

informed. Libel and slander involve communication to a third party. Information contained in

student files is there for the exclusive use of the teacher, principal, or counselor who has a legiti-

mate interest in accessing this information as each works with the student. Information should

not be accessed without meeting this requirement.

Once the information is ascertained, it should be used only in providing and improv-

ing educational opportunities for the student. By no means should confidential information

be discussed in a thoughtless and j oking manner. Under no circumstances should the stu-

dent be ridiculed. The law is very specific in indicating that personally identifiable infor-

mation should not be communicated to third parties without proper consent. When this is

done, not only has the law been violated, but the educator has run the risk of defaming the

student.  Off-the-cuff remarks and sharing sensitive information regarding a student are

absolutely prohibited and may result in liability damages to those who are guilty of com-

mitting such acts.

School personnel are well advised to maintain strict confidentiality in all cases involving

students’  personal files. In cases involving claim of personal injury, the burden of proof rests

with the student in demonstrating that actual harm occurred based on deliberate communication

to a third party.

Libel

Libel, unlike slander, is written defamation. Teachers, counselors, and principals should refrain

from including damaging information in the student’s record for which there is no basis. Any

information recorded should be factual and specific with respect to serious infractions committed

by the student—for example, time and place in which infractions occurred and possible wit-

nesses who might verify, if needed, that the incident described is an accurate account of what

actually occurred.

Another consideration involves a determination as to whether certain types of information

should be included in the student’s permanent file. Some legal experts feel that information that

is subject to change and minor disciplinary infractions should be maintained in a separate file

and destroyed after the student leaves school. For example, if there is no evidence of serious and

recurring behavior problems, one might question the wisdom of including a single occurrence on

the student’s permanent records. On the other hand, if there is a strong belief that the behavior is

sufficiently serious that it needs to be passed on to those who will be working with the student in

the future, it might be appropriate, under the circumstances, to do so. Sound and rational judg-

ment is required in these cases. These decisions must be carefully drawn, due to the serious

implications involved. When it becomes necessary to record a serious disciplinary infraction on

the student’s record, it should be executed in the presence of the student, who should be provided

a copy of the document.

Schools should refrain from statements that are based on opinion, particularly those

involving questions of morality,  contagious diseases,  family marital conditions, and mental or

emotional issues. These statements are damaging, based on their content, and, if communicated

to others, may result in injury to the student’s reputation, self-esteem, or standing in the school.

Categorical statements or stereotypical statements should be avoided. If educators adhere to con-

fidentiality and respect for the privacy rights of students, they will avoid liability claims involv-

ing injury to students. Professionalism and ethics dictate that these practices be followed.

Privilege

On many occasions, school personnel are requested to provide either oral or written information

regarding a student, some of which might be contained in the student’s file. When such requests

are made and school personnel respond in a truthful and reasonable manner in accordance with

their prescribed duties, they are protected by qualified privilege. When school personnel and the

recipient of the information both have a common interest, they also are protected by a qualified

privilege when the communication is reasonable to achieve their objective. Those who have com-

mon interest would likely include counselors, subject matter teachers, administrators, and par-

ents. Interestingly, this privilege is lost if the communication is transmitted to another who does

not share this common interest and consequently has no need to be apprised of the information.

 

Good Faith

Qualified privilege is based on the premise that the educator is operating in good faith. When

damaging or sensitive information is communicated to others who have no need to know, good

faith has been violated. Good faith requires that a legitimate purpose be served by communicat-

ing the information. Common interest in the student’s well-being would constitute a legitimate

purpose. Good faith efforts dictate that as information is shared with other eligible parties, it is

communicated for legitimate purposes and without any intent or desire to damage the student. An absence of good faith may result in personal damages against those who do not operate in a

reasonable and prudent manner.

An unusual case arose in Maryland when a special education student was sexually abused

by her grandfather, who was charged with child abuse. Prior to his trial, he attempted to sub-

poena his granddaughter’s school records. The child was enrolled in a special education program

for emotionally disturbed children. The school district refused to furnish the records and filed a

motion for a protective order. The defense attorney argued that the records were relevant in that

they could reveal mental deficiencies that affected the child’s ability to control her actions. The

judge examined the records privately and determined that there was nothing contained in them

that would serve to impeach the child’s testimony. The grandfather was convicted and then

appealed his conviction, contending that his rights were violated when the judge refused to allow

him access to his granddaughter’s records.

Maryland requires parental consent or a court order before a student’s record can be dis-

closed. The Sixth Amendment to the Constitution requires that a criminal defendant be allowed

to confront and cross-examine his or her accusers. The defendant in this case (Zall v.  State)

argued that the information contained in personal records was needed in order to cross-examine

the granddaughter. The court ruled that the defendant’s right to cross-examine was not violated

since it had been established by the lower court that the files contained no material evidence per-

tinent to the case. The Sixth Amendment only requires that the defendant receive material evi-

dence. It is the court’s role, not the defendant’s, to determine material evidence. The defendant’s

appeal was denied.

Acts of Malice

Malice exists when there is intent to harm or injure another. Intent is an important element

regarding malicious behavior. When statements are communicated about a student, either

written or oral, with the intent to injure his or her reputation, a tortious act has occurred, espe-

cially if these statements are false. Truth is a defense for liability, if no malicious intent is

present. School personnel should exercise care in ensuring that statements communicated to

others are free of malice, based on defensible evidence, and communicated in a professional,

nonbiased, and truthful manner. When evidence reveals that school personnel acted in bad

faith with the intent to injure a student’s reputation and standing in the school or community,

liability charges may be justified, even if statements are true. Students are entitled to a liberty

right with respect to the expectation that their reputation be protected against unwarranted

attacks.

There are essentially two types of malice. In implied malice, the offender has no defense

for conveying harmful information. Such statements normally fall in the category of unsolicited

or derogatory statements aimed at another person. In actual malice, the offended person must

demonstrate that the person making the offensive comment had a motive for doing so and that

this motive was calculated to generate ill will against the offended person. Both types may create

serious legal problems for school personnel.

Since the passage of FERPA, numerous forms of litigation have surfaced, covering a full

range of legal issues. The following cases summarize a number of issues faced by the courts

related to the enforcement of FERPA:

 

1. A New York court ruled that a public school was required to release names of bilingual stu-

dents with English deficiencies because complainants had demonstrated a genuine need

for the information that outweighed the privacy rights of students.

2. Another New York court ruled that a father’s request to release third-grade test scores of

other students so that they could be compared to his child’s score could be honored if the

test results were not identified by student names.

 

3. A Missouri court upheld a school board member against charges of defamation who com-

mented during a board meeting that marijuana cigarettes had been found in a student’s car.

His statement was held to be privileged.

 

4. A federal court in New York ruled against a student who withheld his records from a grand

jury when he could not show that they bore no relevance to the subject under investigation.

 

In other developments, a case emerged in Illinois when a group of parents requested that

their school district disclose standardized achievement scores for students for certain years,

grades, and schools within the district, along with a listing of educational programs available in

those schools. The district, using FERPA as its defense, refused to comply with their request.

Suit was filed by parents, seeking disclosure under the Freedom of Information Act. The district

court dismissed the case, which was then appealed to the Illinois Court of Appeals. The appeals

court reversed the district’s court decision and remanded, finding that the district had an obliga-

tion to release and mask all released information regarding students. The school district then

appealed, contending that releasing masked information was in conflict with the Freedom of

Information Act and would not protect the privacy rights of students. The Supreme Court held

that the act was designed to open governmental records to public scrutiny. The act did not pro-

hibit disclosure of masked student records. Since no students were identified, there is no invasion

of privacy and the records must be released.

Main Points: Liability and Student Records

1. School districts and schools should have legally defensible policies and procedures consistent with the requirements of FERPA. Students, parents, and legal guardians should be informed of their rights under this act.
2. Accurate records should be maintained in the student’s file, indicating the name, title, date, description of educational interest, specific records examined, and the place of examination of student records for those who have access.
3. Any corrections or adjustments to student records should be dated and initialed by the person responsible, with the knowledge and approval of school officials.
4. School personnel should avoid labeling children.
5. When it becomes necessary to place disciplinary infraction information on student records, the information should be specific regarding the infraction committed—time, place, and witnesses, as appropriate. The student should be present when such information is recorded.
6. School personnel should refrain from aimless chatter involving third parties regarding confidential information found on student records. Gossip or careless talk among school personnel calculated to harm a student is not protected by qualified privilege.
7. Student records should be maintained in a safe and secure place and should not be removed from school premises by school personnel unless proper authorization is secured.
8. Unless prohibited by court order, the noncustodial parent should be afforded the same right to access student records as the custodial parent.
9. To avoid allegations of malicious intent, transmit only the information that is requested by a prospective employer.
10. Refrain from releasing information over the telephone, unless identity of the other party has been firmly established.
11. Where conflict or difficulty arises regarding interpretation of FERPA, consultation with the school district’s attorney would be appropriate.
12. Public disclosures of students’  grades will not likely be supported by the courts. Such practices violate the intent of FERPA and should not be supported by school officials.

CASE STUDIES

Student Records and FERPA
Bernice Evans, mother of a twelve-year-old daughter, sued the board of education for releasing
to a local newspaper reporter information regarding her daughter’s medical condition. The news-
paper article referred to a twelve-year-old female hermaphrodite with severe emotional and
behavioral problems. School board members asserted that they were simply attempting to
explain why the district needed to expand emergency funds to meet the needs of students with
special problems. They further argued that the information did not personally identify the student
because no name was revealed to the reporter.

Discussion Questions:

1. Did the school board err in releasing this information? Why or why not?
2. Does Mrs. Evans have a valid claim? Why or why not?
3. Does the school board have a defensible basis for revealing the information? Why or why not?
4. How does FERPA apply in this case?
5. How do you think the court would rule in this case?
6. Provide a rationale for your response.
7. What are the administrative implications of this case?

Disclosure of Disciplinary Action Involving a Student
An elementary student was disciplined for verbally and physically abusing other students.
Parents of the victims were notified by the district of the student’s actions. The assaulting student
was suspended. His parent filed suit alleging a violation of FERPA by disclosing information
about her son to other parents.

Discussion Questions:

1. Does the complaining parent have a valid claim? If so, why? Why or why not?
2. Does disclosure under the circumstances described constitute a FERPA violation? Why or why not?
3. Does the memorandum sent to parents constitute a release of an educational record? Why or why not?
4. How would a court likely rule on the complaining parent’s allegation? Provide a rationale for your response.
5. What criteria would the court use in reaching a decision?
6. What are the administrative implications in this case?

Week 2 - Student Rights and Due Process

Week 2 - Student Rights and Due Process

 

Please read the information below. These experts were lifted from the textbook.

1. Respond to the discussion questions in the case study.
2. Respond to at least two comments on your classmates' posts.
3. Post a "What if" question on one of the two topics.

I will makes comments to your post by Sunday evening. Next week's topic will be posted by Monday evening. Happy blogging..........

 

Freedom of Expression

1. School officials may restrict freedom of expression where there is evidence of material and substantial disruption, indecent or offensive speech, violation of school rules, destruction of school property, or disregard for authority. In each case, students must be provided minimal due process before any punitive action is taken.
2. Buttons, pamphlets, and other insignia may be banned if the message communicated is vulgar or obscene or mocks others based on race, origin, color, sex, or religion. They may also be banned if their content is inconsistent with the basic mission of the school. School policies that address these issues should be developed and communicated to students and parents.
3. To justify the prohibition of a particular form of expression, there must be something more than a mere desire to avoid the discomfort and unpleasantness associated with an unpopular view. Such action is arbitrary, capricious, and indefensible.
4. The time, place, and manner of the distribution of pamphlets, buttons, and insignia may be regulated by school officials. Prohibiting distribution in class during regular school hours or in the corridors between classes is considered reasonable.
5. Unsubstantiated fear and apprehension of disturbance are insufficient grounds for restricting the right to freedom of expression.

Protests and Demonstrations

1. Demonstrations that deprive other students of the right to pursue their studies in an orderly and peaceful environment can be disallowed.
2. Students engaged in demonstrations and protests cannot obstruct the corridors or prevent free movement among students who are not participants in these activities.
3. Any activities associated with demonstrations and protests that result in disrespect for authority, destruction of property, violation of school rules, or any other unlawful activities may be banned.
4. An activity involving students’ right to freedom of expression cannot be banned because it creates discomfort or conflicts with the views of school officials.

Student Newspapers

 

In light of the Eighth Circuit Court’s posture, school authorities would be well advised to consider these suggestions to avoid legal challenges regarding school-sponsored student newspapers:

1. Through the involvement of representative students, teachers, and other interested persons, formulate a set of legally defensible policies governing publication of the school’s newspaper.
2. Choose responsible student editors who will exercise high standards of responsible journalism.
3. Be aware that administrative prerogatives vary based on whether the student newspaper is considered to be an open forum or a curriculum-based publication.
4. Emphasize to student editors that they have primary responsibility to see that the newspaper is free of libelous statements and obscenity. In addition, remind them that newspapers are subject to the law of libel.
5. Develop regulations that prescribe procedures to be followed in the event that prior review is warranted. These should include the following:
• A definite period of time in which the review of materials will be completed
• The specific person to whom the materials will be submitted
• What specific materials are included for review
6. Do not impose policy restrictions on school-sponsored publications that cannot be defended on reasonable grounds.
7. Consult the school district’s legal advisor in cases where there is uncertainty regarding the appropriate administrative action to be taken when controversial subject matter is proposed by

Non School Sponsored Student Publications

1. Defensible policies should be developed that cover all aspects of student publications. These policies should be carefully crafted and communicated to students and their parents. Fundamental fairness should be the guiding principle in developing these policies.
2. School policies regarding non school-sponsored publications should not be written using broad and vague language so as to provide unlimited discretion in exercising prior restraint measures by school officials.
3. School officials must establish proof of disruption of a material and substantial nature before they can initiate disciplinary action against students. Disciplinary actions must meet the standards of fundamental fairness.
4. Actions by school officials are justified when there is evidence that the publication encourages disregard for school rules and disrespect for school personnel.
5. If the publication contains vulgar or obscene language, ridicules others, or violates policies on time, place, and conditions for distribution, disciplinary action by school officials is generally supported by the courts.
6. School officials may not be held accountable for content in a non school-sponsored newspaper.
7. Student editors are responsible for their own acts of libel. students.

Censorship

1. Courts are in disagreement regarding the extent to which school officials may examine and make judgments on student publications prior to their distribution.
2. If prior restraint is invoked, justification for doing so should be demonstrated and compelling.
3. School officials must be able to demonstrate that the distribution of a student publication will create a material and substantial disruption.
4. If limited review is legally justified, the following safeguards should be included:
• A brief review process
• An explanation of the person(s) vested with the authority to approve or disapprove the material
• The form in which the material is to be submitted
• A clear and specific explanation of the types of items that are prohibited, with a rationale as to why they are prohibited
• An opportunity for students to appeal the decision if they feel that it is unjust

Dress and Appearance

1. Local school dress codes developed by the school should be approved by the board of education.
2. Faculty, students, parents, and citizens should be involved in the formulation of such regulations.
3. Policies and regulations governing dress should be communicated and discussed with students and parents.
4. Dress codes will be supported by the courts only when there is evidence that they are reasonable.
5. Dress and appearance restrictions based on taste, style, and fashion rather than health, safety, and order will not pass court scrutiny.
6. Appearance that does not conform to rudiments of decency may be regulated.
7. Dress that is considered vulgar or that mocks others on the basis of race, gender, religion, color, or national origin may be prohibited.

Search and Seizure

1. A student’s freedom from unreasonable search should be carefully balanced against the need for school officials to maintain order, maintain discipline, and protect the health, safety, and welfare of all students.
2. Factors such as the need for the search, the student’s age, history, and record of behavior, the gravity of the problem, and the need for an immediate search should be considered before initiating a search.
3. A school search should be based on reasonable grounds—that is, believing that something contrary to school rules or significantly detrimental to the school and its students will be produced by the search.
4. The information leading to school searches should be independent of law enforcement officials.
5. Searches involving law enforcement officials must be accompanied by probable cause and a search warrant.
6. Although the primary purpose for the search should be to secure evidence of student misconduct for school disciplinary purposes, it may be contemplated under certain circumstances that criminal evidence may be made available to law enforcement officials.
7. Strip searches should be avoided except where imminent danger exists. Such searches can be justified only in cases of extreme emergency where there is an immediate threat to the health and safety of students and school personnel. In such cases, school authorities should be certain that their actions are fully justified and that they have convincing information to support this more intrusive search.
8. School personnel should conduct the search in a private setting. At best, a search is a demoralizing experience; care should be taken to minimize embarrassment to the student as much as possible.
9. The magnitude of the offense, the extent of the intrusiveness, the nature of the evidence, and the background of the student involved should be considered before a search is initiated.
10. A pat-down search of a student, if justified, should be conducted by a school official of the same sex and with an adult witness of the same sex present, if possible. Personal searches conducted by persons of the opposite sex can be very risky.
11. Arbitrary searches or mass shakedowns cannot be justified as reasonable and are illegal.
12. The use of canines should be avoided unless sufficient evidence justifies the need to employ these methods. Serious incidents that pose an imminent threat to students’ safety should form the basis for such action.

“No Pass, No Play”

1. Involve parents and students in the development of “no pass, no play” policies.
2. Make certain that policies are fair, reasonable, and legally defensible.
3. Provide strong remedial support for students who experience academic difficulty in classes.
4. Closely monitor policy implementation and maintain the necessary flexibility to modify the policy as the need arises.

Cell Phones, Pagers, PDAs, and Other Electronic Devices

1. Do not arbitrarily ban the use of cell phones, pagers, PDAs, and other electronic devices by students unless there is sufficient evidence of disruption or improper use.
2. If permitted, develop specific guidelines governing the conditions under which these devices may be used.
3. If not permitted for general use, allow for exceptional cases involving medical emergencies or other special circumstances that warrant the use of these devices.
4. Policies or guidelines should always be guided by a sense of fairness and due consideration for the unique and personal needs of students.
5. School officials may determine if students are allowed to use personal digital assistants.

Corporal Punishment

1. Corporal punishment should not be used except for acts of misconduct that are so antisocial and disruptive in nature as to shock the conscience.
2. School officials should not expect the courts to support malicious and excessive physical punishment of students.
3. The punishment must not be inflicted with such force or in such manner as to be considered malicious, excessively cruel, or unusual.
4. Reasonable administration of corporal punishment should be based on such factors as the gravity of the offense and the age, size, gender, and physical ability of the child to bear the punishment.
5. If a student professes a lack of knowledge regarding the rule violation or innocence of the rule violation, a brief but adequate opportunity should be provided to explain the rule and to allow the student to speak on his or her behalf.
6. Whenever possible, students should be provided punishment options for deviant behavior. Corporal punishment should never be administered when the child is physically resisting.
7. Attempts should be made to comply with the parent’s request that corporal punishment not be administered on the child with the understanding that the parent assumes responsibility for the child’s behavior during the school day.

Due Process

1. The essential focus of due process is fundamental fairness.
2. Due process provides a remedy for students against arbitrary or capricious acts by school officials.
3. The level of due process is a function of the seriousness of the threat to deprive students of their liberty or property interests.
4. Procedural or substantive due process singularly is of no value to school officials, unless the requirements of both aspects are met when they contemplate depriving students of liberty and property interests.
5. Fairness is not always absolute. What constitutes fairness in one situation may be totally unfair in another. The courts use a balancing test to determine the appropriateness of the procedures that should apply in a given situation.
6. For suspensions of more than ten days (and expulsions), obviously more than rudimentary due process procedures must be observed. However, the Supreme Court has not currently addressed this situation, and case law precedents are conflicting among the various circuit courts of appeals. A prudent school leader, however, should err on the side of providing students an opportunity for full protection of due process, including but not limited to the following:
• Notice of charges
• Prior notice of hearing
• Right to legal counsel at all appropriate stages
• Hearing before impartial party
• Right to compel supportive witnesses to attend
• Right to confront and cross-examine adverse witnesses and/or to view and inspect adverse
• evidence prior to hearing
• Right to testify on one’s own behalf
• Right to have a transcript of proceedings for use on appeal

Case Study: Search of Student Involving Protruding Object
Jim Robinson is a tenth-grade teacher. While walking down the hall, he spotted a suspicious
object protruding from a student’s pocket. He asked the student to empty his pocket, but the student refused.

Discussion Questions

1. Does the teacher have grounds to make such a request?
2. Does the student have a right to refuse to obey the teacher’s request?
3. Should physical force be used to identify the object?
4. Would such a search be legal?
5. What guidelines would you suggest school personnel follow in matters involving student search in situations such as this one?

Drug Teating and Collective Bargaining

Week 1 Blog
Please read the information below on drug testing and collective bargaining. These experts were lifted from the textbook.

1. Respond to the discussion question after the section on drug testing.
2. Respond to the discussion questions in the case study.
3. Respond to at least two comments on your classmates' posts.
4. Post a "What if" question on one of the two topics.

I will makes comments to your post by Sunday evening. Next week's topic will be posted by Monday evening. Happy blogging..........

Chapter 1 0 • Recruitment, Tenure, Dismissal, and Due Process

DRUG TESTING
In an interesting case involving dismissal, teachers sued a school district after being fired

for reporting to work while under the influence of marijuana. After observing behavior and

physical symptoms that were out of character for both teachers, they were tested for drug use and

both tested positive for marijuana. After administrative hearings, both teachers were fired with-

out written notice because their behavior was deemed to be “irremediable.” The court held for

the school district. One of the school board’s options for a teacher who reports to work under the

influence of drugs, alcohol, or any controlled substance is to terminate the employee. It was at

the school board’s discretion to determine whether the teachers’ conduct was irremediable.

Given the weight of the evidence, the board found the conduct to be irremediable and therefore

written notice was not required before the teachers could be terminated.

Discussion:
Conviction of a felony or a series of misdemeanors may form grounds for dismissal and revocation

of the teaching certificate. Do you believe the school board was right to terminate the teachers for reporting to work under the influence of marijauana? Why? Why not?

COLLECTIVE BARGAINING

Collective bargaining has grown in popularity and appeal in public education. Although collec-

tive bargaining has always provoked controversy, many educators view it as a mechanism to

achieve a greater role in management and operation of public schools. Since many of the issues

involving collective bargaining focus on the rights of employees as well as terms and conditions

of employment, its very nature sometimes evokes conflict and adversarial relationships between

school boards and union representatives.

 

It is well recognized that collective bargaining has not always enjoyed the popularity it

does today. In fact, it did not gain legal protection until the early 1930s in the private sector. The

evolution of this concept in the public sector developed very slowly, due primarily to the belief

and acceptance of governmental sovereignty. Public schools, as agents of the state, exerted

almost complete control of school operations as well as terms and conditions of employment

consistent with their state’s statutory mandates and local district policy. The prevailing view

among state lawmakers was that this sovereign power should not be abrogated.

 

Collective bargaining gradually emerged in the public sector in the late 1940s, when

Wisconsin became one of the first states to enact legislation allowing bargaining to occur.

However, it was not until the 1960s that teachers launched a major effort to gain a greater level of

involvement in the administration and operation of their schools. Most states currently permit

some form of bargaining between teachers and school boards. These agreements may vary from

required bargaining to some form of meet and confer provision.

 

Irrespective of these variations, the basic intent is to create teacher empowerment and

shared power between teachers and school boards. Obviously, some states are more liberal than

others in deciding on items that are negotiable. For example, arbitration is mandated in some

states yet prohibited in others. In any case, the primary objective is to create conditions within

which school employees are afforded the opportunity to affiliate with a union without fear of

reprisal for their participation. One common element found in most state statutes is a good faith

requirement imposed on employers, which implies that they must bargain with the recognized bargaining unit with the sincere intent to reach a reasonable agreement. In fact, this good faith

provision affects both parties during the bargaining process.

1. The collective negotiations process should always be guided by a good faith effort involving both parties: school boards and union officials.
2. School boards should not negotiate items for which they have no legal authority to negotiate (e.g.,setting salaries and employing personnel) unless there is express statutory authority to do so.
3. Any sustained action taken by striking teachers that may disrupt educational opportunities for students will not likely receive court support.
4. Constitutionally protected rights and freedoms of teachers should not be impaired by collective bargaining agreements.

CASE STUDY
Insubordination—Failure to Change a Student’s Grade

 

Alice Hill, an eleventh-grade English teacher at Fairview High School, located in a fairly pro-

gressive school district, assigned the grade of F to a star basketball player, Tom Benson, who had

failed to turn in assigned work. Hill encountered considerable criticism from coaches and other

colleagues at school. A request was made by the principal, Jim Martin, for Hill to return to

school and change the grade. Due to stress associated with this event, Hill was unable to do so

and arranged for a substitute to cover her classes for two days. The principal recommended dis-

missal based on charges of insubordination for failure to return to change the grade.

 

Discussion Questions

1. Was Alice Hill justified in not returning to change the grade? Why or why not?
2. Does the principal have sufficient grounds to recommend insubordination? Why or why not?
3. Did Alice Hill’s failure to return constitute insubordination? Why or why not?
4. As principal, would you have taken the position the principal took in this situation? Why or why not?
5. How would the court likely rule in this case? Provide a rationale for your response.