Legal Issues for Principals

1. Legal Issues for Principals Region18 ESC Leadership Certification Program

2. Legal Liabilities for Teachers and Supervisors • “Can I be held liable?”, is the question asked by educators more than others..

3. Legal Liabilities for Teachers and Supervisors • Legal liabilities can be seperated into two different distinct catagories, criminal law and civil law. Most civil cases involve a lawsuit brought by one person against another, usually seeking monitary damages.

4. Legal Liabilities for Teachers and Supervisors • All teachers and administrators have a legal and professional liability that are governed by the law of “torts” or civil law in relation to their “duty of care” for students. A tort is a wrong committed by one person against another.

5. Legal Liabilities for Teachers and Supervisors • Under Criminal law sovereign immunity is applied. Sovereign immunity is the doctrine that states the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, the king (or queen) can do no wrong. Government entities, such as school districts and its employees, are immune from liabilities due to the doctrine of sovereign immunity.

6. Legal Liabilities for Teachers and Supervisors • Unless motor vehicles are involved, a school district and its employees are shielded by Texas law from tort liability. A clear cut example of the law shielding a district and its employee is seen in the 1978 Barr v. Bernhard case.

7. Legal Liabilities for Teachers and Supervisors • Public school professional employees are covered by a provision called qualified immunity which is provided by the Texas Education Code.

8. Legal Liabilities for Teachers and Supervisors • The specific provision, found at TEC 22.0511 provides in part that “a professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee’s position of employment and that involves the exercise of judgment or discretion on the part of the employee”.

9. Legal Liabilities for Teachers and Supervisors • Professional employees include superintendents, principals, teachers, subs, supervisors, social workers, counselors, nurses, student teachers, DPS –certified bus drivers, school board members, teachers employed by a third party that contracts with the school district, and anyone else who is required to certification and an exercise of discretion.

10. Legal Liabilities for Teachers and Supervisors • When employees step outside of their protective zone they loose their immunity. The immunity conferred upon Texas public school employees by the qualified immunity statue is not automatic. Protection from civil liability is weakest when hands-on discipline is involved.

11. Legal Liabilities for Teachers and Supervisors • Federal lawsuits filed against school districts and their employees are referred to as Section 1983 suits. This law was designed to protect the civil rights of citizens while providing a broad basis for litigation in federal court.

12. Legal Liabilities for Teachers and Supervisors • Section 1983 suits involve a charge of an abuse of governmental authority that deprives someone (teacher, student) of federally protected rights.

13. Legal Liabilities for Teachers and Supervisors • The rights can range from infringing upon a student’s rights of his Fourth Amendment to an employee’s First Amendment rights to speak as a citizen on matters of public concern

14. Legal Liabilities for Teachers and Supervisors • The law states that “if a person making a decision is characterized as a policy-maker for the governmental entity, then that person’s action is attributable to the governmental entity”.

15. Legal Liabilities for Teachers and Supervisors • Another legal liability of employees and supervisors is the federal statutory law. Liability under federal statutory law of section 22.0511 states that a professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee’s position of employment.

16. Legal Liabilities for Teachers and Supervisors • In conclusion, Texas public school educators are shielded by state law from tort suits as long as they are acting in the scope of their duties and are exercising discretion.

17. Legal Liabilities for Teachers and Supervisors • On the other hand, educators in Texas have no immunity from violations of criminal law. The professional employee is only vulnerable to damage suits in disciplinary matters or in the operation, use, or maintenance of a motor vehicle.

18. Introduction to Student Discipline Perhaps there is no area of school law more interesting to parents and the public than student discipline. Surveys show a high degree of concern over a perceived lack of discipline in public schools. What are the rules for student behavior? Can school administrators impose disciplinary consequences without undue fear of litigation?

19. Guidelines for Rule Making Rules are necessary for society to function…rules are important for an orderly educational environment. Rules are a prerequisite to due process, since accused persons are entitled to notice of the charges against them. A 1982 court decision Board of Education of Rogers, Arkansas v. McCluskey dealt with a student being expelled from school for drinking. The Supreme Court ruled in favor with the school district citing that although alcohol was not written in the districts rules, it was interpreted under “drugs” which was written. The message was clear, local school boards can interpret their own rules and courts must defer to those interpretations, within reason.

20. Guidelines for Rule Making Schools still must bear the burden of proving legal authority of school rules when they touch on constitutionally or statutorily protected behavior. Rules Must Have a Rational Purpose People are more inclined to follow rules if they can see that rules are realistic and provide a safe environment. Ask whether the rule in question in really necessary to prevent disruption and to safeguard the rights of others.

21. Guidelines for Rule Making The Meaning of Rules Must Be Clear Rules that are so vague as to be meaningless are self-defeating. A way to improve clarity is to keep them short and comprehensive by including several diverse examples to illustrate meaning. Rules That Relate to Protected Behavior Must Be Carefully Developed. Rules that pertain to constitutionally or statutorily protected behavior must be drawn with special care so as not to suppress the exercise of these rights. Legal validity comes into play most often with these rules. Legal validity relates primarily to issues of vagueness and over breadth. -- Legal Validity: executed with legal proper authority and formalities. -- Vagueness: not clearly expressed. -- Over breadth: the rules are too broad and penalizes protected behavior.

22. Guidelines for Rule Making In 1972, the Fifth Circuit Court of Appeals ruled that when the constitutionality of a school rule is questioned, the burden of proof falls on the school board. (Shanley v. Northeast ISD) In Chalifoux v. New Caney ISD, New Caney ISD tried to enforce its anti-gang rule for students wearing rosary beads on campus. The court viewed the wearing of the rosary as religious expression. The judge noted that the districts student handbook defined gang-related attire as any attire that identifies students as a group (gang-related). He noticed that it was improper to define a word by using that same word in the definition. As phrased in the handbook, the definition revealed little of what was prohibited, further more he [the judge] noted the handbook definition could encompass numerous extracurricular groups on campus that used certain attire or symbols for identification. He also stated that it would not be overly burdensome for the district to provide a specific list of prohibited items and to update the list as needed.

23. Guidelines for Rule Making Rules Must Be Consistently Enforced Unless rules are enforced, they lose their influence as behavior guides. School administrators encounter practical and legal difficulty when they inconsistently enforce rules. This does not mean that a “zero tolerance” policy is the only way to go, the mindless application of “zero tolerance” policies has led to some embarrassing situations for school administrators. Late night comedians have a field day at the expense of some underpaid and overworked assistant principals. Most school districts in Texas have the following language in local policy, which is taken from the Texas Association of School Boards (TASB)

24. Guidelines for Rule Making Students shall be treated fairly and equitably. Discipline shall be based on careful assessments of the circumstances of each case. Factors should include: A. The seriousness of the offense; B. The student’s age; C. The frequency of misconduct; D. The student’s attitude; E. The potential effect of the misconduct on the school environment; F. Requirements of Chapter 37 of the Education Code; G. The Student Code of Conduct adopted by the Board. To enforce rules consistently and fairly does not mean that there is no room for discretion, but administrators must be prepared to explain why different cases are handled differently due to the factors cited in the district’s policy or code of conduct. Inconsistent enforcement creates problems when the inconsistency is based on favoritism and toward certain students.

25. Chapter 37 Student discipline is covered by Chapter 37 of the Texas Education Code (TEC) which is part of Senate Bill I. Decisions should be made in local communities, not Austin. Texas is too diverse to have a one-size-fits-all approach to problems. Chapter 37 went against giving local control of discipline to districts, the state had more control over student discipline, but over time the legislature has returned some degree of control to local school districts in dealing with student disciplinary matters. (The word “may” appears rarely in Chapter 37, but “Shall” and “Must” are frequent.) The legislature’s desire to keep students in school if at all possible is evident in Chapter 37. Despite calls for “zero tolerance,” the legislature has not made it easy to expel students. The legislature has removed some of the reasons a student can be expelled from school. If a student violates any of the removed “expellable offenses,” they will be placed in a disciplinary alternative education program (DAEP). Expulsion is reserved for only the most serious offenses.

26. Chapter 37 Schools are required to establish at least one DAEP and are required to place students there in case of certain misconduct. Students assigned to the DEAP must be separated from other students. The notion seems to be that if we can keep the “bad kids” from the “good kids” schools will be safer and better. Houston ISD does not have it’s own DAEP, it has contracted with at Nashville, TN firm called Community Education Partners or CEP. There are two locations in Houston, one off Beechnut and Fondren (SW) and one off Gulf Freeway and Ferndale (SE).

27. Chapter 37 Chapter 37 gives the teacher more control over the classroom. The bill strengthens the hand of the teacher who wants to remove an unruly student from the classroom, but perhaps not as much as some teachers would like.

28. Student Code of Conduct Chapter 37 TEC 37.001 (a) requires districts to adopt a student code of conduct that will specify standards for student conduct and outline the types of behavior that might get a student in trouble in school. The code of conduct is a familiar concept in school law. It is a basic rule of due process that students can only be punished for misconduct after they are advised that such conduct is prohibited. Most schools fulfill this responsibility by distributing a “student handbook” containing all the rules and regulations of the school, including those pertaining to discipline. Most school districts require parents and students so sign a receipt indicating that they have received [and read] the book.

29. Teacher Initiated Removal Chapter 37 One of the stated purposes of the disciplinary changes incorporated into Chapter 37 was to give classroom teachers more authority. The TEC spells out three different ways for teachers to remove students from the classroom…temporarily 1. Teacher removal for assistance: send students to the principal’s office for general disruptions. 2. Discretionary teacher removal: repeated offenses by the student which interferes with the learning environment or offenses the teacher deems as unruly, disruptive, or abusive as to interfere with the teachers ability to teach and students to learn. When the teacher exercises this authority, the principal is required to convene a conference within three class days with the student, teacher, and parent. But the conference may continue whether all parties are present or not. 3. Mandatory removal: student commits an offense that requires removal to a DAEP.

30. Other forms of Removal Chapter 37 Suspension Expulsion Possession of weapons Assaultive offenses Arson Murder Indecency with a child Aggravated kidnapping Drug or Alcohol offenses Retaliation against a school employee

31. Criminal Justice Chapter 37 Communication between schools and law enforcement is required in Chapter 37. School districts must notify the juvenile board when students commit an offense that requires placement in DAEP or expulsion. State law also requires local law enforcement to give oral notice to the superintendent within 24 hours after a student is arrested or taken into custody with certain offenses. These include: terroristic threats drug offenses weapons A Juvenile Justice AEP (JJAEP) is required in any county of Texas with a population of more than 125,000 residents. Smaller counties may develop a JJAEP, but are not required to do so. JJAEPs serve students who have been expelled and found to have engaged in delinquent behavior. JJAEPs are joint ventures operated by the school districts and the juvenile justice board.

32. Corporal Punishment Chapter 37 Corporal Punishment continues to be legal in Texas. It also continues to be one of the few areas where local control truly exists. There is no state law regarding corporal punishment, therefore, all decisions about this is left to local districts. There have been efforts to eliminate corporal punishment by judicial decree, but they have not been successful. In the 1977 U.S. Supreme Court case Ingraham v. Wrightruled that corporal punishment did not require any formal due process measures. Thus the Court left the regulation of corporal punishment to state and local officials.

33. Student Discipline Summary The law pertaining to student discipline, like many other areas of the law swings like a pendulum from emphasis on authority to an emphasis on individual liberty. The very concept of in loco parentis was designed to recognize that authority to the same degree that the law would recognize a parent’s.

34. Suspension v. Expulsion • TEC states that a student may be suspended from school if the student engages in conduct identified in the student code of conduct for which a student may be suspended—the local school district is authorized to decide what types of offenses should call for a suspension. • Suspension is designed as a short-term disciplinary action. Under TEC 37.005 suspension is limited to three days per offense, but there is no limit on the number of suspensions that might be imposed on a student, provided that each is for a separate incident of misconduct. This applies only to out-of-school suspension, not in-school suspension.

35. Suspension v. Expulsion • Expulsion is the harshest penalty the school can impose, and thus is reserved for only the most serious offenses and is available only with students who are at least 10 years old. • TEC 37.007 spells out several types of conduct that require expulsion from school. They are: (1) possession of weapons • (2) assaultive offenses • (3) arson • (4) murder, capital murder, criminal attempt to commit murder or capital murder • (5) indecency with a child • (6) aggravated kidnapping • (7) drug or alcohol offenses if punishable as a felony • (8) retaliatory commission of an expellable offense against a school employee. • The first 7 must occur on school property or school-related function, but retaliation is expellable no matter where it took place.

36. Suspension v. Expulsion • A district has discretion over the following offenses: • (1) serious or persistent misconduct while placed in a DAEP • (2) drug or alcohol offenses, if not punishable as a felony • (3) inhalant offenses • (4) criminal mischief if punishable as a felony. • Most students will be expelled from the school programs (including DAEP) to a Juvenile Justice AEP (JJAEP) or other school program. • Because a student’s “property right” to a public education is being taken, the 14th amendment requires that the student be afforded an appropriate level of due process, although the Education Code does not tell us how much process is due.

37. Suspension v. Expulsion • 37.009 provides • “Before a student may be expelled under Section 37.007, the board or the board’s designee must provide the student a hearing at which the student is afforded appropriate due process as required by the federal constitution and which the student’s parent or guardian is invited in writing to attend.” • State law imposes two other requirements • (1) the student is entitled to be represented at an expulsion hearing by some adult who can give guidance to the student; this person is usually the parent or guardian, but can be someone else, as long as it is not a district employee • (2) if an expulsion is ordered by the board’s designee, then it is appealable to the board, and then to the district court of the county in which the school district’s administrative office is located.

38. Suspension v. Expulsion • School districts can rely on student or staff witnesses, and even read their written witness statements at an expulsion hearing, without a right to cross-examine by the accused student. • Courts have decided that such prerecorded statements (considered hear-say in court) are admissible in student discipline matters. • The minimum due process requirements for a long-term expulsion consist of: • (1) oral and written notice of the charges against the student • (2) an explanation of the evidence • (3) an opportunity for the student to present his side of the story.

39. Suspension v. Expulsion • Reasons for denying the right to cross examine include: • (1) the fact that the administrators who investigate the offenses are qualified to determine the truthfulness of student accusers • (2) the fact that, if forced to testify, any students would fail to come forward • (3) reasons associated with administrative convenience. • The best policy to follow when students are caught in the act of breaking a school rule and admit guilt is to give them notice of the rule violation and an opportunity in the presence of their parents or a representative to confirm their admission of guilt in writing and to waive formal due process rights.

40. Suspension v. Expulsion • 37.009 provides • “Before a student may be expelled under Section 37.007, the board or the board’s designee must provide the student a hearing at which the student is afforded appropriate due process as required by the federal constitution and which the student’s parent or guardian is invited in writing to attend.” • State law imposes two other requirements • (1) the student is entitled to be represented at an expulsion hearing by some adult who can give guidance to the student; this person is usually the parent or guardian, but can be someone else, as long as it is not a district employee • (2) if an expulsion is ordered by the board’s designee, then it is appealable to the board, and then to the district court of the county in which the school district’s administrative office is located.

41. Off-Campus Rules • Schools retain the same authority over students at school-sponsored activities occurring off campus as they have when students are on campus. • According to TEC 37 • students must be removed to a DAEP if they engage in conduct that would be felonious under certain sections of the Texas Penal Code. • One factor that comes into play with regard to off-campus behavior is the nature of the disciplinary punishment. • If the proposed sanction is a suspension from extracurricular activities, rather than a suspension from school, the courts are much more likely to support the school district’s position. The courts have consistently ruled that participation in athletics and other extracurricular activities is a “privilege” rather than a “right.” Therefore, where these activities are concerned, schools have more authority to create and enforce rules, even those that apply off campus. • A second key factor with regard to off-campus activity is whether or not the school has some legitimate interest at stake; examples include the use of the internet. • If the student’s activity moves beyond “offensive” to “threatening” the school can assert its interest in maintaining safety by taking disciplinary action.

42. Off-Campus Rules • Killion v. Franklin Regional School District (2001) • a student composed a top 10 list listing the personal and professional failings of the school’s AD at his home and he emailed it to others who printed and distributed it at school. The school suspended the student and removed him from the track team, but at regional court the case was overturned and the court held that the school had failed to show that the student’s actions were materially disruptive to the education process. • JS, a Minor v. Bethlehem Area School District • A student created a website against his algebra teacher that was threatening; the court decided that the conduct was materially disruptive and a substantial invasion of the rights of others and the student’s expulsion was upheld.

43. Due Process • Notice/hearing • There are 3 key concepts necessary to an understanding of the due process clauses in our Constitution: • (1) There must be some action of the state—generally speaking, actions by private entities do not implicate the due process clause • (2) the state must have deprived the individual of “life, liberty, or property” –a person who sues over a violation of due process must assert a “property interest” or “liberty interest” • (3) the nature of the process due depends on the severity of the deprivation.

44. Due Process • In the case Dixon v. Alabama State Board of Education, the court held that students at a public college are entitled to fair notice of the rules they were charged with breaking and a fair hearing before they could be expelled and the court also established what it considered to be the components of fair notice and a fair hearing: • (1) the notice should contain a statement of the specific charges and the grounds that, if proven, would justify expulsion • (2) students should be given an opportunity to present to the board of trustees or administrative officials of the college their own defense against the charges, including the right to call witnesses on their behalf • (3) students should be apprised of the results and findings of the hearing in a report open to their inspection.

45. Due Process • Goss v. Lopez deals with due process in public schools. • In Meyer v. Austin (1999), the court emphasized that due process must be provided to the student, not the parents. • The greater the loss suffered by the student, the more sympathetic courts are likely to be to claims of lack of due process and the courts do not appear very sympathetic to disputes over a students grades.

46. Goss v. Lopez In Ohio, 9 students were given a 10-day suspension from school and the school principal did not hold hearings for the affected students before ordering the suspensions. The US Supreme Court concluded that due process is required before a student can be suspended from school. Since the “deprivation of property” imposed by the state is less harsh in a case of short-term suspension, the “process” that is “due” is much less burdensome. In this case, the Court concluded that, because the state provides compulsory schooling, even a short-term suspension deprives the student of a property right and, thus, requires due process. In cases of suspensions of 10 days or less, the Court ruled that due process requires school officials to give the student informal notice of the misbehavior and an opportunity to offer an explanation.

47. Corporal Punishment • Corporal punishment continues to be legal in Texas and also continues to be one of the few areas where local control truly exists. • There is no state law regarding corporal punishment, therefore the decisions are left to local school officials. • In Ingraham v. Wright, the Court ruled that corporal punishment of public school students • (1) did not require any formal due process measures, such as notice and a hearing • (2) under no circumstances could be considered “cruel and unusual punishment” as that term is used in the Eighth Amendment. • TEC 37.0021 absolutely prohibits the use of “seclusion” by public schools. • Seclusion is defined as a technique in which a student is confined in a locked box, locked closet, or locked room that is designed solely to seclude a person and whose area is less than 50 square feet.

48. Students Searches Are They Legal in Public Schools?

49. Fourth Amendment • "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." • This was the amendment that protected people from unreasonable search and seizures, including public school students.

50. New Jersey v. T.L.O., • T.L.O. and a friend were accused of violating school rules by smoking cigarettes in a school lavatory, the latter, who admitted to smoking, was not brought to the office for a search. The Supreme Court of New Jersey decreed that the search of T.L.O.'s purse violated the Fourth Amendment. On appeal, in New Jersey v. T.L.O., the Supreme Court reversed in favor of the State of New Jersey (Russo). • This was the case that laid the basic principles for student searches.