LEGAL RIGHTS OF TEACHERS AND STUDENTS
Responses to Points to Ponder
Chapter 2: Tort Liability
Points to Ponder (p. 41)
1. During a faculty meeting, a high school principal mentioned that one of the teachers in the building had been arrested for shoplifting and that extra precautions should be taken to safeguard personal belongings. However, the principal failed to mention that although the teacher had been arrested, evidence was inadequate to support her guilt or conviction and that she was released soon after her arrest. Other than the fact that she was arrested, there was no reason to believe she was guilty. The principal did not mention the teacher by name, but his comments about her gender and teaching area left no doubt as to her identity. Her reputation was tarnished and her personal relationships were adversely affected. She sued the principal claiming defamation of character. Is she likely to win? Why or why not?
The teacher is likely to win. She is not a public person and therefore must show only that the statements were false and were communicated to a third party. The defense of privilege would not apply in a communication involving a principal and an entire faculty. Moreover, it is not relevant that the teacher was not mentioned by name, because persons with additional information were able to determine her identity based on the information provided by the principal. Also, it is not necessary for her to prove actual injury as the principal’s comments would qualify as defamatory per se.
2. A secondary school principal directed a student teacher in social studies to supervise a chemistry class, because the regular science teacher was ill. During lab, a student was injured in an explosion. The parents of the injured child sued the principal (even though he was not present during the explosion, nor had he instructed the class in regard to the chemicals) and the school district. Are the parents likely to prevail in this suit? Explain your reasoning.
Assuming the state does not provide immunity in such matters, the plaintiff is likely to succeed against both the principal and the school district. It is irrelevant that the principal did not personally instruct the class or was present at the time of the explosion. What is relevant is that a student teacher with inadequate instructional and supervisory training and experience was assigned to supervise a task that was foreseeably dangerous. Also of note is the fact that the plaintiff as a student qualified as an invitee, thereby enhancing the obligation of school officials to provide a safe place.
3. A physical education instructor requires a student to climb a 30-foot rope in physical education class even though the student informed the teacher that he was afraid of heights (a fact that also is part of his school record). After the instructor threatened the student with corporal punishment, he climbed the rope, but fell when about half way up. He is not injured, but sued the instructor and the district, claiming negligence. Is he likely to win? Why or why not?
Although it might appear that the coach acted negligently, as that term is commonly used, legal negligence is not supported in this instance. To qualify as legal negligence, the plaintiff must show that defendant had a duty that was breached; that the coach’s action was the proximate cause of the injury, and that an actual injury resulted. In the above example, there was not actual injury for which a jury could base an award. Any minor emotional injury the student may purport would be an insufficient basis for damages.
4. While on the school bus, two students got into an altercation over a loud radio. The zydeco music (a type of cajun music) emanating from the boombox was more than the second student could tolerate. The owner of the boombox refused to turn off or even turn down the music. As a result, the one student informed the other that if the music was not turned off, the radio would be destroyed and the owner would be struck. Numerous passengers overheard the conversation. The boombox owner was a large, athletic, 18-year-old male; the confronting student was a small, frail, 12-year-old female. She had no special martial arts skill and did not give the impression of being capable of carrying out the threat. The male student sued the female, claiming assault. Will he succeed in his claim? Why or why not?
No liability would result in the above scenario. The words spoken by the female may appear as though they would qualify as an assault, but to qualify legally, a reasonable victim must perceive an actual threat. In the present case, the small, frail female did not pose a risk to the large, athletic male.
Chapter 3: Church/State Relations
Points to Ponder (p. 69)
1. Some courts have emphasized that for student-initiated devotional activities in public schools to be upheld, prayers must be “nonsectarian.” Can a prayer be nonsectarian, or is the term “nonsectarian prayer” an oxymoron?
According to Webster’s Third International Dictionary, “prayer” is defined as “a solemn and humble approach to Divinity in word or thought.” The term “nonsectarian” means not being an adherent of a particular religious sect or reflecting narrow attachment to a sect or denomination. Since prayer by its nature depicts a particular faith (those believing in prayer and God), “nonsectarian prayer” does appear to be an oxymoron.
2. A student who attended the middle school was killed in an automobile accident. The next day, a classmate asks you if she can lead the class in saying a prayer for the deceased student. What would be your response and why?
If the teacher or a student leads a public school class in a prayer during the school day, a court would likely find that the activity promotes religion in violation of the Establishment Clause. However, it would be constitutional to lead the class in a moment of silence to remember the deceased classmate, as long as students are not encouraged to pray during the period of silence. Those who want to say a silent prayer can do so, and those who would be offended by a prayer can still participate in the observance for the deceased.
3. The majority of the senior class engaged in a recitation of the Lord's Prayer five minutes before the high school graduation ceremony. School authorities did not lead the prayer, and although they had heard rumors that the student-initiated recitation was planned, they had not been officially informed. Did this activity represent the school? Did it violate an injunction prohibiting school personnel from authorizing, conducting, sponsoring, or intentionally permitting prayers during the graduation ceremony? See Goluba v. Sch. Dist., 45 F.3d 1035 (7th Cir. 1995).
In this case, a student who complained about religious observances in the graduation ceremony entered into a consent decree with the school district, under which school personnel were prevented from intentionally allowing prayers during graduation. After the “spontaneous” recitation of the Lord’s Prayer by the senior class, the complaining student alleged that the decree had been violated. Disagreeing, the court did not find sufficient evidence that the principal or other school personnel deliberately allowed the graduation prayer, regardless of whether the principal had heard about the students’ plans. Noting that the consent decree was somewhat ambiguous as to prohibited actions, the court nonetheless found no breech of an affirmative duty that would result in a contempt sanction for violating the decree. However, if there had been evidence of school personnel encouraging the students to say the prayer before the ceremony, the outcome of the case would likely have been different.
4. High school students have requested that their religious club be allowed to hold meetings in the public school during lunch when other student groups meet. They also have asked for access to student activity funds to promote their meetings and distribute religious materials, because other student groups can use such funds to support their activities. How would you respond and why? See Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002).
Courts seem to be broadly interpreting the federal Equal Access Act (EAA) and the Free Speech Clause of the First Amendment as requiring equal treatment of student religious and sectarian noncurriculum clubs in secondary schools. In Prince v. Jacoby, the Ninth Circuit declared that it would entail viewpoint discrimination to allow secular clubs to be featured in the yearbook free of charge but to deny this privilege to religious groups. Similarly, the court reasoned that the religious clubs must be treated like other student groups in terms of equal access to school funds and fund-raising activities, the public address system, and bulletin boards. The court concluded that once the secondary school decided to provide school time for clubs to meet and furnished supplies, audio/visual equipment, and use of school vehicles, religious groups could not be treated differently from other student groups.
5. The “wall of separation” has been the dominant metaphor in church/state litigation for almost half a century. How viable is this metaphor today?
The “wall of separation” has been noticeably absent in the Supreme Court’s Establishment Clause decisions during the past decade. The current Court favors the concepts of equal access and equal treatment of religious groups more than the notion of separation of church and state. There is a trend in judicial decisions favoring governmental accommodation toward religion unless the controversy involves a blatant effort to promote particular religious doctrine.
Chapter 4: Instructional Issues
Points to Ponder (p. 96)
1. A school board decided to eliminate several books from the English curriculum, including The Learning Tree, The Adventures of Huckleberry Finn, and The Catcher in the Rye, because of parental complaints. Several teachers contend that they have a right to use these books in their classes, because the books relate to course objectives and their use is supported by the profession. How would the court rule and why?
These award-winning books have been frequent targets of censorship efforts because of their earthy language and subject matter dealing with race relations and youth coming of age. Courts lean over backwards to uphold decisions of local school boards. Only if the decisions are arbitrary or in violation of constitutional rights will the federal judiciary intervene. Although parental challenges to board decisions to use these materials would likely fail, courts will usually uphold school boards’ censorship decisions that are based on pedagogical concerns. Teachers do not have an academic freedom right to determine the curriculum; they must follow school board policies in this regard. Illustrating the broad discretion of school boards to censor instructional materials is Virgil v. School Board, 862 F.2d 1517 (11th Cir. 1989), in which the Eleventh Circuit upheld the school board’s authority to remove a humanities text from an elective course because board members perceived some of the selections (including Chaucer’s “The Miller’s Tale”) to be vulgar.
2. A school district has a policy stipulating that students cannot be promoted from third to fourth grade or from seventh to eighth grade until they demonstrate on proficiency tests that they have mastered specified skills. Parents of children who were promoted at both grade levels based on test passage have brought an instructional negligence suit against the school district. They claim that their child does not have the specified academic skills based on an external evaluation by a licensed psychometrist. Is the testing program vulnerable? Will the parents prevail in their educational malpractice suit? Why or why not?
School districts have the right to condition grade promotion and graduation on passage of a proficiency test. Thus, the imposition of a test requirement is not likely to be challenged successfully as long as: sufficient lead time is provided before conditioning benefits on test passage, the test covers what has been taught, opportunities for remediation and retaking the test are provided, and appropriate accommodations are available for children with disabilities. However, tests cannot be used as a diploma sanction in a school until all students subjected to the high stakes test entered first grade under desegregated conditions.
If the school is certifying that children who pass the proficiency test have specified skills, and certain children actually do not have such skills (based on valid external assessments), there possibly could be a successful claim against the school district. Although there have been no successful educational malpractice (instructional negligence) decisions to date, it is conceivable that one could be mounted if a district conditions benefits on invalid assessment practices.
3. A school secretary’s daughter gained access to a classmate’s file without permission and divulged that he was adopted. Should the school be liable for a FERPA violation? See Appelberg v. Devilbiss, No. 00-0202 BH-C, 2001 U.S. Dist. LEXIS 1456 (S.D. Ala. Jan. 30, 2001).
Central to the court’s finding that there was no violation of the Family Educational Rights and Privacy Act was the fact that the access was unauthorized in that school personnel did not share the data with third parties. No staff member had knowledge of the unauthorized access. This was an isolated incident, with no evidence of a pattern or practice of the school releasing information in violation of FERPA. So the school’s only vulnerability seems to be whether the records were kept in a sufficiently secure location. If the records were easily accessible to unauthorized individuals, possibly a successful FERPA challenge could be mounted. The remedy would be the withdrawal of federal funds, because the Supreme Court has rejected a private right to sue for damages for FERPA violations. Unless Congress amends FERPA to authorize such private suits (as has been proposed in Congress), the remedy for FERPA violations will remain tied to federal aid.