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The Clearing House, 83: 7375, 2010

Copyright C Taylor & Francis Group, LLC

ISSN: 0009-8655 print
DOI: 10.1080/00098651003662148

Guest Editors Introduction

Teachers and the Law: Evolving
Legal Issues

P erhaps one of the most common fallacies related

to education today is that the vast majority of de-
cisions that teachers, principals, superintendents, and
cable to school cases are the First Amendment (freedom
of religion, speech, and assembly) the Fourth Amend-
ment (reasonable search and seizure), and the Four-
school boards face can be addressed with an exact or teenth Amendment (equal protection and due process).
xed legal response. It is true that legal principles pro- Nathan Essex and David Stader and colleagues explain
vide guidance in the decision-making process. Ignoring in this issue how the U. S. Supreme Court has applied
these legal principles is almost always a recipe for disas- the Fourth Amendment to the search of a student for
ter. However, the law is constantly evolving and chang- contraband drugs in school. Christine Kiracofe illus-
ing as new state and federal statutes impacting education trates how courts apply the First Amendment to teacher
are enacted, and as various federal and state courts in- religious expression in the public schools.
terpret these statutes or apply constitutional principles In the U.S. federalist system, the powers of govern-
to prior cases. Consequently, educators at all levels are ment are shared between a central government and
urged to stay abreast of the often rapidly evolving law the various states and territories. The U.S. Constitution
of educationhence, the title of this special issue of The does not mention education. Therefore, under the Tenth
Clearing House: Teachers and the Law: Evolving Legal Amendment to the Constitution (The powers not del-
Issues. egated to the United States by the Constitution, nor
When teachers, administrators, parents, politicians, prohibited by it to the states, are reserved to the states
and others speak of the law in reference to educa- respectively, or to the people), each state is charged
tion, they are, for all practical purposes, speaking of a with creating and maintaining a public education sys-
combination of ve types of law: federal and state con- tem for the education of youth residing in that particu-
stitutional law, statutory law, regulations, school board lar state. Consequently, state courts interpret and apply
policy, and common (or case) law. Here, we provide a state law to educational issues that are governed by the
brief description of these types of laws and examples state. For example, a state court will consider a school
from this special edition. nance lawsuit in the context of the wording of the state
constitution and the funding formula developed by the
Federal and State Constitutional Law state legislative body.
The Constitution of the United States was designed
primarily to protect citizens from excesses of govern- Statutory Law
ment. All laws passed by federal and state bodies, all Statutory law is conceived, debated, and enacted by
state constitutions, all regulations, and all school board the U.S. Congress or by state legislative bodies, and
policies are subject to the provisions of the U.S. Consti- it is subject only to the limitations that have been
tution. Areas of constitutional law that are most appli- established by the federal Constitution or the state

David L. Stader, EdD, is a professor and chair of educational leadership and counseling
at Southeast Missouri State University, Cape Girardeau, MO. Thomas J. Graca, PhD,
is an associate dean and professor of social sciences and human services, Easteld
College, Dallas County Community College District, Mesquite, TX. David W. Stevens,
EdD, is an assistant professor of educational leadership and counseling, Southeast
Missouri State University, Cape Girardeau, MO.
74 The Clearing House 83(3) 2010

constitutions. Federal statutes must be consistent on the premise that not all legal problems can or should
with the U.S. Constitution, and state statutes must be be covered by a statute. Consequently, in the English sys-
consistent with the state constitution, federal statutory tem, judges are allowed to create solutions to problems.
law, and the U.S. Constitution. Both federal and Though fraught with ambiguities, common law is
state statutes impact education (e.g., Title IX and the especially important to school administrators. For
Individuals with Disabilities Act). South Carolinas Safe example, several federal courts around the nation are
School Climate Act, which is discussed in this issue, is currently applying the same logic to the issue of harass-
one example of a state law impacting K12 education. ment of gay and lesbian students and teachers that they
Federal statutory law can be found in the United States apply to the issue of heterosexual harassment. As Holly
Code, which is available from a variety of Internet Bishop and colleagues point out, these decisions are
sources such as Findlaw ( beginning to motivate, or at least should motivate, ad-
State statutory law can be found on each states Depart- ministrators and school boards to reexamine their poli-
ment of Education Web site, and from state teacher and cies and practices. Federal and state court decisions are
administrator associations. available from a variety of sources, including Findlaw
( U.S. Supreme Court deci-
Regulations sions are available from Findlaw and from the Supreme
Regulations are developed by various federal and state Court Web site (
agencies that are empowered to interpret, disseminate,
and enforce statutory law and state school board policy. Overview of the Articles
As long as the agency remains within the boundaries The eight articles in this special issue illustrate how
of the statute or policy, its decisions have the force of the law of education, as applied to teachers, adminis-
law. Two agencies that impact public schools are the trators, and school boards, has evolved over time as
U.S. Department of Education and state departments of new or unique situations arise. Placed rst in this spe-
education. For example, the federal Department of Edu- cial edition, Tennessee to Texas: Tracing the Evolution
cation is charged with the interpretation, dissemination, Controversy in Public Education, illustrates how the
and enforcement of the congressional intent that served First Amendment has been and continues to be applied
as the guiding force behind the No Child Left Behind to the controversy surrounding the teaching of evo-
Act. Similarly, state departments of education, which are lution in secondary schools. Tony Armenta and Ken-
overseen in most states by the chief state school ofcer, neth Lane trace the ongoing debate over the teaching
are charged with the duty to interpret, disseminate, and of creationism or intelligent design in science courses
enforce state law and state school board policy. Infor- that include Darwins theory of evolution as part of the
mation on regulations is provided free of charge from curriculum. This excellent article briey traces the his-
the state departments of education and the federal De- tory of the debate starting with the Scopes trial in 1925
partment of Education ( and continuing to present day. Of particular interest to
secondary teachers and administrators should be Ar-
School Board Policy menta and Lanes description of how various state leg-
Local boards of educationcalled boards of trustees islatures and school boards have attempted to pass
in some statesare designed to represent the beliefs laws and policies mandating the teaching of alterna-
and values of the community, establish and maintain tives along with the theory of evolution. As Armenta
a public school system, oversee the expenditure of pub- and Lane point out, it has been the federal courts that
lic funds, and serve in a direct supervisory capacity for have served as the arbiters of this debate (XX).
the local school district. Boards of education codify and Christine Kiracofe continues the discussion of
exercise their authority through a set of written policies. religion in public education in her article entitled
As long as a written policy does not violate statutory, Can Teachers Really Wear That to School? Religious
regulatory, or constitutional law, then it is enforceable, Garb in Public Classrooms. This article provides a
and teachers, students, and administrators must abide clear and concise explanation of the conict between
by it. School board policies and district budgets are of- the Establishment Clause (school districts may not
ten found on school district Web sites. sponsor or endorse a particular religion) and the Free
Exercise Clause (school districts may not prohibit the
Common (or Case) Law free exercise of religion) as they apply to teacher dress.
Common law, or case law, develops from court de- Problems arise when the enforcement of one clause
cisions that interpret a constitutional, statutory, or reg- seemly violates the other clause. Kiracofe explains
ulatory law or a school board policy and apply it to a the conict between school district policy regarding
particular situation. The concept of common law has its religious dress and teacher rights in a legally sound,
genesis in the English legal system, dating back to the well-researched, and readable article. The ongoing
late Middle Ages. The concept of common law is based debate surrounding religious expression in public
Teachers and the Law 75

schools makes this article particularly interesting to Surprisinglyor maybe notit seems that the problem
parents, teachers, and administrators. of inappropriate sexual relationships is becoming more
Elizabeth Meyer (Teachers, Sexual Orientation, and common between middle school male students and
the Law in Canada) and Holly Bishop and colleagues their female teachers. Regardless of the extent of the
(A Case for Legal Protection for Sexual Minority Edu- problem, child sexual abuse must be taken seriously by
cators) discuss the challenges faced by sexual minority teachers, administrators, and school boards. Mitchell
teachers and administrators in both the United States presents a prevention framework that could be adapted
and Canada. These two articles trace the history of to the needs of virtually every middle or high school
discrimination faced by many sexual minority teach- campus. The last two articles in this edition discuss the
ers, administrators, and youth. These articles point implications of a recent U. S. Supreme Court decision re-
out that many school board policies do not protect garding the search of thirteen-year old Savana Reddings
sexual minority teachers from discrimination in either underwear for contraband drugs (Safford v. Redding
country. Sexual minority teachers and administrators 2009). The rst article, The U.S. Supreme Court Raises
face further difculties when challenging school board the Bar for Strip Searches in Public Schools, by Nathan
discriminatory decisions in court. More important, Essex presents a brief overview of the case. Essex pro-
the authors argue passionately for an educational vides readers with a well-researched and legally sound
environment free of discrimination. As Bishop and discussion of several strip-search decisions from various
colleagues state: educational settings should be places courts around the nation that help put the decision in
of learning that foster inclusion, and not places where context. David Stader and colleagues, in their article
some are ostracized for being different. entitled Drugs, Strip Searches, and Educator Liability:
Student-student bullying is relatively common Implications of Safford v. Redding, present a more de-
in schools. In 2005, about 28 percent of twelve- tailed discussion of the facts leading up to the decision
to eighteen-year-old students reported having been to search Savana and the courts reasoning in ruling
bullied at school in the past six months (Dinkes et al. that the search of Savanas underwear was excessively
2006). These statistics, along with a recent focus on intrusive. In addition, Stader and colleagues provide an
bullying as a signicant factor in school violence, have important discussion of the tort of negligence and the
served as the catalyst for state legislative policymakers to courts reasoning behind their decision that the school
enact laws that specically address bullying in schools. administrator who initiated the search was not liable in
Troy Terrys article, Blocking the Bullies: Has South this case. Interestingly, Essex argues that the ruling cre-
Carolinas Safe School Climate Act Made Public Schools ates new law to some extent, while Stader and colleagues
Safer? addresses one states efforts. Terry examines the argue that the ruling does not create new law, but sim-
degree of implementation of the law in school districts ply claries previous U. S. Supreme Court rulings.
in South Carolina and presents both qualitative and Regardless of viewpoint, both articles provide excellent
quantitative data, as well as research on bullying, to recommendations to guide middle and high school
discuss whether state laws, school board policy, or administrators in limiting potential liability when
punitive practices are effective in reducing bullying in making decisions about how far to go when searching
schools. The fact that many states have recently passed a student for contraband drugs on their person.
antibullying laws make this article a must read for The purpose of this issue is to provide readers of
all secondary school teachers, administrators, and The Clearing House with a variety of evolving legal
parents. issues that are interesting, thought provoking, and
Mark Mitchells article, Child Sexual Abuse: A informative. The articles in this special theme issue of
School Leadership Issue, addresses a little-discussed TCH accomplish this purpose.
but vital issue in our schools. Mitchell argues that any
sexual relationship between teachers and students is a REFERENCE
form of child abuse. Although little empirical research
exists about the extent of inappropriate student-teacher Dinkes, R., E. F. Cataldi, G. Kena, and K. Baum. 2006. Indi-
cators of school crime and safety: 2006. NCES Doc. No. 2007-
sexual relationships, a perusal of newspaper reports 003/NCJ 214262. Washington, DC: U.S. Government Printing Of-
on the Internet indicates that a serious problem exists. ce. (accessed December 5, 2006).
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