School Law and The Public Schools A Practical Guide For Educational Leaders The Pearson Educational Leadership Series 6th Edition Ebook PDF

School Law and the Public Schools: A
Practical Guide for Educational Leaders

(The Pearson Educational Leadership
Series) 6th Edition, (Ebook PDF)
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Contents
Preface xix
Chapter 1 Legal Framework Affecting Public Schools 1

Sources of Law 1
Bill of Rights and the Fourteenth Amendment 1
The Federal Constitution 2
Key Amendments 2
State Constitutions 2
Statutes 3
Court or Case Law 3
Researching Case Law 3
Locating a Case by Citation 4
Finding a Case by Case Name 4
Locating a Case by Topic 4
State Agencies 4
State Boards of Education 4
Local School Boards 5
School Board Policies 7
The U.S. System of Courts 7
Federal Courts 7
State Courts 9
Courts of General Jurisdiction 9
Courts of Special Jurisdiction 9
Intermediate Appellate Courts 9
Appellate Courts 9
The Trial Process 9
Analysis of an Appellate Court Opinion 11
Case (Citation) 11
Procedure 12
Facts 12
Ruling and Justification 12
Disposition 12
The U.S. Supreme Court 12
U.S. Supreme Court Ritual 13
U.S. Supreme Court Decisions 14
Legal Information Retrieval Systems 14
Resources 15 • Case Study 15 • Endnotes 15
Chapter 2 Religion and the Public Schools 16

School-Sponsored Prayer 18
School-Sponsored Bible Reading 19
vii
viii Contents
Silent Prayer and Meditation 20

Prayer at School Events 20
Student-Led Prayer at Public School Events 20
Prayer at Athletic Contests 21
Voluntary Prayer at Commencement Exercises 23
Landmark Rulings 23
Impact of Ruling 24
Prayer at School Board Meetings 25
Prayer at Legislative Meetings 26
Aid to Parochial Schools 27
Religious Symbols 28
Religious Displays 29
Ten Commandments 29
Posting Religious Mottos and Expressions 30
Religious Banners at Football Games 30
Use of School Facilities by Religious Student
Groups 31
Legal Precedents 31
Use of School Facilities by Outside Religious
Groups 33
Relevant Cases 34
Use of School Facilities by Community Groups 35
Right to Deny Access 35
Religious Activities and Holiday Programs 36
Merry Christmas Bill 37
Released Time for Religious Instruction 37
Teaching the Bible in Public Schools 38
Intelligent Design and School Curriculum 39
Theory of Evolution 40
Teaching the Theory of Evolution 40
Distribution of Religious Materials 42
Pledge of Allegiance 43
Landmark Case 43
Religious Freedoms Involving Teachers 45
Religious Rights of Teachers in the School
Environment 46
Use of Religious Garb by Teachers 46
Case Studies 48 • Endnotes 51
Chapter 3 Student Rights and Restrictions 53

Freedom of Expression 54
Protests and Demonstrations 57
School-Sponsored Newspapers 58
Contents ix
Nonschool-Sponsored Newspapers 60
Censorship 61
Dress and Appearance 62
Health and Safety Issues 63
Controversial Slogans 64
Search and Seizure 65
Reasonable Suspicion 65
Search and Social Media 67
Student Desks 68
Student Lockers 68
Book Bags 68
Automobiles 69
Strip Searches 69
Involvement of Law Enforcement Officials 70
Drug and Alcohol Testing 71
Drug Testing 72
Alcohol and Breathalyzer Testing 73
Use of Canines 74
Use of Cell Phones and Electronic Devices 76
U.S. Supreme Court and Cell Phones 78
Mobile Devices in the Classroom 79
Due Process 80
Procedural Due Process 80
Due Process of Law 80
Substantive Due Process 81
Vagueness Doctrine and Presumption Standard 81
Corporal Punishment 83
Reasonable Punishment 85
Minimal Due Process 86
Excessive Punishment 86
School Suspension 88
Expulsion 89
Student Discipline for Off-Campus
Behavior 91
Classroom Harassment 93
The Supreme Court’s Decision 93
A Dissenting Opinion 93
Danger Signals 94
Child Abuse 95
Pregnant Students 96
Married Students 96
x Contents
Chapter 4 National Security and School Safety 101

Homeland Security 101
USA PATRIOT Act 101
No Child Left Behind and School Safety 102
Procedures for Evaluating and Responding to Threats 105
Preparing for National Emergencies 106
Handling Violence in Schools 106
Hazing 106
Bullying 107
Cyberbullying 111
Megan Meier Cyberbullying Prevention Act 111
Jeffrey Johnston Stand Up for All Students Act 112
School Violence and Negligence 112
Emerging Legal Issues 112
Freedom of Expression: Prohibitions and School Violence 114
Gangs 115
Legal Challenges Related to School Gangs 115
Gang Characteristics and Membership 115
Gang Dress 115
Duty of Care and Gang Violence 117
School Uniform Dress Policies, School Safety, and Students’ Freedom of
Expression Rights 118
Early Legal Challenges 118
Zero Tolerance and School Safety 119
Zero Tolerance 119
Zero Tolerance and Due Process 119
Recent Zero Tolerance Practices 120
Metal Detectors 121
Chapter 5 Individuals with Disabilities 125

Individuals with Disabilities Education Act of 1990 (IDEA) and the
Individuals with Disabilities Education Improvement Act of 2004
(IDEIA) 126
Mandatory Requirements 126
National Council on Disability 128
Functional Exclusion of Disabled Children 128
Interpretation and Identification of Children with Disabilities 129
Teacher Qualifications 129
Prereferral Intervention 129
English Language Learners and Special Education 129
Response to Intervention 130
Multi-tier System of Support—Response to Intervention 130
Alternative Assessment 132
Contents xi
Individualized Educational Program Requirement 132

Equal Access to Assistive Technology for Students with
Disabilities 133
Personal Data Assistants for Disabled Students 134
Program Review and Changes 134
Education-Related Service Requirement 135
Least Restrictive Environment 135
Inclusion of Children with Disabilities 137
Length of School Year 138
Residential Placement 138
Private School Placement 139
Isolation and Restraint Laws for Students with Disabilities 140
Disciplining Students with Disabilities 142
Expulsion 142
Suspension 144
Individuals with Disabilities Education Act of 1997 145
Amendments Regarding Discipline 145
Discipline and Optional Sanctions 145
Pre/Postsanction IEP Review, Behavior Modification Plan, and
Functional assessment 146
Premanifestation Determination Action 146
Manifestation Determination Review 146
Appeal from Disciplinary Action 147
Placement During Appeals 147
Proposed New Placement (Following IAES) 147
Preemptive Strike 147
Reporting Criminal Behavior and Referring to Law Enforcement and Judicial
agencies 148
Transmitting Student Information 148
Discipline and Behavior are Now Linked 148
Attention-Deficit/Hyperactivity Disorder and Federal Protection 148
Section 504 Rehabilitation Act of 1973 150
The ADA Amendments Act of 2008 150
Chapter 6 School Personnel and School District Liability 156

The School as a Safe Place 156
Liability of School Personnel 157
Individual Liability 157
Vicarious Liability 158
Foreseeability 158
Nuisance 159
Invitees 159
Licensees 160
Trespassers 160
Liability Involving Students and Bus Stops 160
xii Contents
School Liability and Use of Technology by Students 161

Parental Access to School Premises 161
Intentional Torts 162
Assault 162
Battery 162
Assault and Battery Involving Physical Fights 163
Defamation 163
Libel and Slander 163
Defenses Against Defamation 164
Privilege 164
Good Faith 164
Truth 164
Mental Distress 165
False Imprisonment 166
Trespassing on Personal Property 166
Unintentional Torts 167
Standard of Care 167
Breach of Duty 169
Proximate Cause 169
Injury 170
Defenses for Negligence 170
Contributory Negligence 170
Assumption of Risk 171
Comparative Negligence 172
Immunity 173
Immunity Costs 174
Proper Instruction and Student Safety 174
Duties of Supervision 175
Before School 175
During School 176
After School 177
During Field Trips 178
Parental Consent and Written Waivers 179
Field Trips and Buses 179
Liability Involving Civil Rights Statutes 179
Filing Charges Under Section 1983 of the Civil Rights
Act of 1871 180
Liability Insurance for Teachers and
Administrators 180
Educational Malpractice 180
Professionalism in Education 181
Educational Malpractice Cases 181
Contents xiii
Chapter 7 Liability and Student Records 188

Sanctions for Violating Family Privacy Rights 188
Rights of Parents 190
Family Educational Rights and Privacy Act 190
Notice of Proposed Rulemaking 190
Student Records 191
Rights of Noncustodial Parents 192
Rights of Eligible Students 192
Rights of School Personnel 192
Student Complaints and FERPA 194
Digitizing Student Records 194
Confidentiality Issues Involving School Counselors 194
Enforcement of State or Federal Statutes 195
Family Education Rights and Privacy Act (FERPA) 195
Landmark U.S. Supreme Court Rulings 195
U.S. Court of Appeals for the Sixth Circuit Ruling 195
No Child Left Behind Act of 2002 196
Annual Notification Requirements 196
Transfer of School Disciplinary Records 196
Armed Forces Recruiter Access 196
Student Privacy and Physical Exams 197
Defamation Involving School Personnel 197
Slander 197
Libel 197
Privilege 198
Good Faith 198
Acts of Malice 199
Chapter 8 Teacher Freedoms 203

Substantive and Procedural Considerations 203
Freedom of Expression 204
Speech Outside the School Environment 204
Academic Freedom 207
Teacher Use of Facebook and Social Media 209
Freedom of Association 210
Membership in Subversive Organizations 211
Political Rights 212
Right to Hold Office 213
Participation in Political Campaigns 213
Dress and Grooming 213
Right to Privacy 215
xiv Contents
Religious Discrimination in Public Schools 217

Family and Medical Leave Act (FMLA) 218
Chapter 9 Discrimination in Employment 223

Equal Protection Provisions of the Fourteenth Amendment
and Employment Discrimination 223
Presumption Test 223
Due Process Standards and Employment Discrimination 224
Title VII: Discrimination 224
Retaliation 226
Schools and Transgender Teachers 227
Unwed Pregnant Teachers 227
Sexual Discrimination 228
Title IX 229
The Rehabilitation Act of 1973 and the Americans with
Disabilities Act of 1990 230
Qualifications for Employment 231
Scope of Protection: Section 504 and the ADA 232
Gender Discrimination 233
Racial Discrimination 233
Religious Discrimination 236
Age Discrimination 237
Genetic Information Discrimination 238
Pregnancy and Public School Employment 239
Sexual Harassment 241
Chapter 10 Recruitment, Tenure, Dismissal, and Due Process 247

Recruitment of Personnel 247
The Employment Interview 247
Vague Interviews 248
Retention of Personnel Data 248
Hiring Discrimination 249
Tenure 249
Acquisition of Tenure 250
Nonrenewal 252
School Leader (Principal) Evaluation 254
Tenure for Principals 254
Teacher Evaluation 255
Documentation of Teaching Performance 256
Dismissal for Cause 256
Incompetency 256
Contents xv
Insubordination 259
Neglect of Duty 260
Just Cause 261
Documenting Teacher Misconduct 261
Immorality 262
Homosexuality and Employment in Public Schools 262
Conduct Involving Morality 266
Criminal Activity 267
Sexual Advances Toward Students 268
Financial Exigency (Abolition of Positions) 270
Just Cause 272
Fair Labor Standards Act 273
Collective Bargaining 274
Private Sector Versus Public Sector Bargaining 274
Right to Work Statutes 275
Teacher Strikes 275
State Involvement 276
Scope of Collective Bargaining 276
Impasse and Bargaining 277
Legal Issues 277
Teachers’ Union National Strike Strategy 278
Workers’ Compensation 279
Chapter 11 The Instructional Program and School

Attendance 283
Control of Public Schools 283
Compulsory Attendance 284
Compulsory Attendance Exceptions 285
Truancy 285
McKinney-Vento Homeless Assistance Act 286
Enrollment and Transportation 286
Home Schools 286
Charter Schools 288
Funding 288
Facilities 289
School Vouchers 289
Health Requirements 290
Residence 291
Curriculum Standards 292
Common Core Standards 293
Special Interest Groups and Public School
Curriculum 293
xvi Contents

Increased Accountability 295
More Choices for Parents and Students 295
Greater Flexibility for States, School Districts, and Schools 295
Summary and Implications 296
Accountability 296
Participation 296
Adequate Yearly Progress 296
Public School Choice 296
Supplemental Services 296
Unsafe School Choice Option (Usco) 297
Exceptional Students 297
School Improvement 297
Limited English Proficiency Students 297
Assessments 297
Stronger Accountability for Results 298
Proven Education Methods 298
Teacher Quality 298
Qualified Teachers 298
Paraprofessionals 298
Restructuring (Corrective Action) 299
Alternative Governance 299
Intellectual Property and Fair Use 300
Copying Computer Software 301
Use of the Internet for Instruction 303
School Officials’ Responsibility 303
Children’s Internet Protection Act 306
School or District Responsibility 306
Teacher’s Responsibility 307
Parent’s Responsibility 307
Grading and Academic Requirements 307
Student Testing 308
Grade Reductions for Absences 309
Grade Reductions for Unexcused Absences 309
Grade Reductions for Academic Misconduct 310
Physical Punishment for Poor Academic Performance 311
Withholding Diplomas 311
Chapter 12 School Desegregation 315

De Jure Segregation 315
Historical Background 315
Brown II Implementation 316
Racial Balances or Racial Quotas 317
One-Race Schools 317
Contents xvii
Remedial Altering of Attendance Zones 318

Transportation of Students 318
Intra District Segregation 319
Attendance Zones 319
Busing and Desegregation 320
Free Transfer and Freedom of Choice Program 321
De Jure Segregation 322
De Facto Segregation 322
Faculty Desegregation 323
Student Classifications and Desegregated Public Schools 323
Latino Students and Racial Diversity 324
No Child Left Behind and Civil Rights 325
Seeking Unitary Status 325
Chapter 13 Public School Finance 330

Taxation for Public Schools 330
Tax Rate 331
Equity Funding in Education 331
Legal Challenges to School Funding 332
The Landmark Rodriguez Case 334
Litigation Following Rodriguez 334
Post-Rodriguez Cases 334
Equity and Adequacy of Funding for Public Schools 336
Endnotes 338
Appendix The Constitution of the United States and Selected

Key Provisions and Amendments Affecting
Education 340
Glossary of Relevant Legal Terms 343
Case Index 347
Subject Index 352

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Preface
How do educational leaders respond to the legal challenges facing their organizations in a highly
litigious society? How do they ensure that their organizations are achieving their mission with-
out unduly restricting the constitutional rights and personal freedoms of their students and staff?
How do leaders know when they are operating within the law? How can they build and foster an
organizational culture that places high value on the personal rights and uniqueness of each indi-
vidual? These are issues this book addresses. The courts expect educational leaders to possess
the necessary knowledge and skill that will enable them to meet legal challenges that impact
their organizations.
School Law and the Public Schools: A Practical Guide for Educational Leaders, Sixth Edi-
tion, is based on the premise that educational leaders and policy makers must be knowledgeable of
the law that governs the operation and conduct of their organizations as they face a highly litigious
society. Increasingly, educational leaders need to exercise discretion in making sound and legally
defensible decisions that affect students and school personnel under their authority. They need to
guide the development and execution of sound and well-developed policies, rules, and regulations
governing many aspects of their operation. Educational leaders must ensure that they possess the
legal knowledge necessary to accomplish these important administrative tasks successfully.
New to This Edition

The basic intent of this sixth edition is to better equip educational leaders and policy makers with
relevant and timely information that will assist them in meeting legal challenges while minimizing
legal exposure as they execute their defined duties and responsibilities in a highly litigious envi-
ronment. The goal of the sixth edition is to provide comprehensive and practical information
regarding relevant and emerging contemporary issues that impact the organization and administra-
tion of public schools. An additional goal is to better prepare educators at all levels to perform their
professional duties within the boundaries of the U.S. Constitution, statutory law, case law, and
school district policies. Information included in this edition will focus on practices that are legally
defensible as well as those that are not. Knowledge of existing and emerging legal issues will
enable educational leaders to exercise discretion in addressing the myriad legal issues they face on
a daily basis. Increasingly, school leaders are expected to operate within the context of well-defined
policies, rules, and regulations governing all aspect of their organizations. This edition will ensure
that they possess the legal knowledge necessary to accomplish their essential administrative tasks
successfully. The sixth edition includes the following additions and revisions:
• New addition to chapter on legal framework to include searching case law and the trial
process
• Guidance in identifying and researching cases and a visual depiction of how the trial
process works
• Revised chapter on religion includes a discussion of prayer at legislative meetings, reli-
gious banners at football games, and legislation on acknowledging Christmas in schools
• Includes an in-depth discussion of all issues relating to the Exercise Clause of the First
Amendment
• Search and Social Media
• Provides guidance regarding the extent to which school personnel may or may not search
cell phones of students in public schools
• Use of electronic devices by students and teachers
• Provides guidance regarding academic advantages of electronic devices in the class-
room for instructional purposes
xix
xx Preface
• Procedures for Evaluating Threats

• Includes steps that should be taken to properly assess and respond to threats in schools
• Legal Liability and Hazing
• Zero Tolerance and Due Process
• Discusses the issue regarding the fairness of zero tolerance policies in the context of
Fourteenth Amendment applications
• English Language Learners and Special Education
• Examines the issues surrounding misclassification of English learners into special edu-
cation based on English language deficiencies
• Multitiered System of Support
• Discusses the tiered learning system as a mechanism to improve learning outcomes for
all students including students with special needs
• Liability at Bus Stops
• Discusses the legal limits of school or district liability regarding student activities at bus stops
• School Liability and Technology Use by Students
• Provides guidance for school personnel regarding potential liability for negligence in
failing to monitor how students use technology in schools
• Digitizing Student Records
• Discusses advantages and precautions that should be exercised by school personnel
regarding digitization of student records and student privacy issues
• Student Complaints and FERPA
• Discusses the extent to which students are covered under FERPA when they register
complaints regarding their teachers
• Teachers’ Use of Facebook and Other Social Media
• Discusses the dangers associated with teachers’ use of Facebook and other social media
and the inherent problems associated with communicating with students
• Transgender Teachers
• Discusses the rights afforded transgender teachers and how they should be treated in
schools
• Unwed Pregnant Teachers
• Discusses the rights of pregnant teachers and the privileges they should be afforded in
schools
• Genetic Information Discrimination Act
• Defines actions that are discriminatory with respect to requesting or requiring disclosure
of genetic information regarding a prospective employee or his/her family members
when rendering an employment decision
• Vague Interviews
• Provides guidance regarding the appropriateness or inappropriateness of certain inquir-
ies during the interview process
• Retention of Personnel Data
• Provides insight relative to the length of time in which certain personnel records should
be maintained for legal purposes
• School Leader Evaluation
• Provides guidance with respect to factors that might be considered in assessing leader-
ship effectiveness
• Teaching Evaluation
• Provides information regarding myriad factors to be considered in assessing teacher
effectiveness
Preface xxi
• Documentation of Teacher Performance

• Discusses methods of recording vital information regarding teaching performance as a
means of assisting teachers in improving performance
• Insubordination Steps
• Provides a systematic and legally defensible process for determining whether a teacher’s
conduct constitutes insubordination.
• Documentation of Teacher Misconduct
• Discusses legal steps that should be considered in determining teacher misconduct
• McKinney-Vento Homeless Assistance Act
• Provides guidance regarding the liberty interests of homeless students to attend public
schools and the support systems that are required to ensure that they are provided an
opportunity to succeed.
• Common Core Standards
• Provides an overview of Common Core Standards to include objectives, outcomes, and
opposition regarding these standards
This book is organized and written in a style that facilitates ease of reading even for indi-
viduals who have little or no legal background. Significant court cases are carefully selected to
address issues that are most relevant to effective practice. The text begins with an in-depth
focused discussion of the development of the U.S. Constitution and major legal issues, followed
by relevant constitutional, statutory, and case law. Legal citations are used to support and
enhance the discussion of these issues, and a section on searching case law and the trial process
also is included. Legal references supporting the topics under discussion are found on each
page, thus enabling the reader to easily ascertain the legal sources of authority related to those
particular topics.
One unique and salient feature of this text is its focus on the development of adminis-
trative guides that relate to major issues discussed in each chapter. These guides provide
leaders with information pertinent to directing their day-to-day decisions and actions as they
encounter a wide array of legal challenges within their organizations. No attempt was made
to review or include a significant number of state statutes or interpretations because varia-
tions are numerous from state to state. The primary focus of this text involves legal sources
or developments that have significant implications for effective educational leadership
throughout public schools in the United States. A significant component of the book is the
inclusion of case studies at the end of each chapter that provide meaningful application
exercises for educational leaders, thus allowing them to make sound and legally defensible
decisions.
The book concludes with appendices that include selected amendments of the U.S. Consti-
tution, as well as an expanded glossary of important legal terms to assist the reader and provide
relevance to the body of the text. School Law and the Public Schools, Sixth Edition, provides a
practical and useful resource guide for educational leaders and is aimed at increasing their
knowledge and awareness of the complex legal issues that impact their organizations. It will
enable them to more effectively perform their legal duties and meet the requirements of reasona-
bleness as they move their organization toward their mission.
The Instructor’s Manual with Test Items is available online to adopters. Please contact
your local Pearson representative for access.
Acknowledgments
I would like to express my heartfelt appreciation to my administrative assistant, Carol Brown,
for the countless hours spent preparing this document. Her energy, enthusiasm, encouragement,
and support far exceeded my expectations. For her untiring efforts, I am eternally grateful.
xxii Preface
I would also like to express my appreciation to my wife, Lorene, and my children,

imberly, Jarvis, and Nathalie, for their love, support, and encouragement during the writing
K
of this text. Their support provided me inspiration to persevere through the completion of
this project.
I express gratitude to my daughter, Nathalie, an attorney, for her editorial research and
technical assistance, which aided me greatly in the production of this book.
I would also like to thank the following reviewers for their time and input:
Brett Geier, University of South Florida; Susan Sostak, Loyola University Chicago; Joe
Flora, University of South Carolina; Terry McDaniel, Indiana State University, and Richard
“Kent” Murray, The Citadel.
Last, I express appreciation to my administrative team, friends, and colleagues for their
support and encouragement during the writing of this sixth edition.
To my staff, colleagues, and family, I am immensely grateful.
— N.L.E.
Chapter 1
Legal Framework Affecting

Public Schools
Sources of Law
Public schools as governmental agencies must operate within the boundaries of law at the local,
state, and federal levels. Therefore, school personnel are expected to perform their prescribed
duties within a framework of law. A number of legal sources affect the administration and oper-
ation of schools.
Bill of Rights and the Fourteenth Amendment

The Bill of Rights represents the primary source of individual rights and freedoms under the U.S.
Constitution. The first ten amendments to the Constitution are viewed as fundamental liberties of
free people because they place restrictions on the government’s powers to intrude on the funda-
mental rights of all citizens. These restrictions simply mean that the government cannot exercise
certain powers in relationship to free people. For example, the government cannot pass laws
prohibiting the freedom of speech. Consequently, citizens may speak freely within the bounda-
ries of the Constitution without undue interference by the government. At its inception, the Bill
of Rights limited only the federal government’s powers and not those of state government, which
meant that each state relied on its own bill of rights to limit state powers.
However, this changed with the adoption in 1868 of the Fourteenth Amendment, which
guarantees that due process of law and fundamental fairness are applied to the states. The Four-
teenth Amendment stipulates, “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person within its juris-
diction the equal protection of the laws.” Fourteenth Amendment provisions are considered fed-
eral law and are enforced by state or federal courts operating within their proper jurisdictions.
Before the adoption of the Fourteenth Amendment, very few controls were placed on state
governments if they failed to abide by their own bills of rights. Relief could be sought only in the
state courts without any certainty that these courts would enforce their own states’ bills of rights.
Federal courts had no authority to enforce a state bill of rights that was solely under the jurisdic-
tion of state courts. By virtue of the Fourteenth Amendment, that authority is now vested in the
federal courts.
Along with due process and equal protection provisions, the most formidable freedoms
contained in the Bill of Rights include freedom of speech, press, assembly, and religion as well
as freedom from unreasonable searches and protection against self-incrimination. Thus, the first
ten amendments now apply to encroachment by state government. Because public schools are
1
2 Chapter 1 • Legal Framework Affecting Public Schools
agents of the state, they are subject to the provisions of the Bill of Rights, which means that
school officials must recognize and respect the constitutional rights of students and school per-
sonnel. Failure to do so will result in infringement of constitutionally protected rights and
possible legal challenges through the courts.
The Federal Constitution

The Constitution of the United States is the basic law of the land. It provides a framework of law
in which orderly governmental processes operate. The Constitution thus becomes the primary
source of law. All statutes enacted at the federal, state, and local levels as well as state constitu-
tions, local regulations, and ordinances are subordinate to the Constitution.
The U.S. Constitution is distinguishable in its provision to protect the fundamental rights
of all citizens of the United States. Inherent among these rights are those involving personal,
property, and political freedoms. Although the Constitution does not make reference to educa-
tion, it impacts the operation and management of schools, particularly with respect to amend-
ments, which protect the individual rights of students, faculty, and staff.
One salient feature of the Constitution is the provision that calls for the separation of pow-
ers involving the executive, judicial, and legislative branches of government. The precept of
separated powers provides each branch with the proper checks and balances on the powers of
other branches.
Key Amendments
Several amendments to the U.S. Constitution have a direct bearing on the operation of public
schools, namely the following:
The First Amendment addresses basic personal freedoms of students and school person-
nel involving speech, press, assembly, and religion.
The Fourth Amendment addresses rights to privacy and protects students and school
personnel from unreasonable intrusion into their person or property.
The Fifth Amendment provides protection against self-incrimination in cases when the
individual’s life, liberty, or property is in jeopardy.
The Eighth Amendment does not directly apply to school discipline but has been
referenced by parents and students in cases involving corporal punishment where there is an
allegation of cruel and unusual punishment by school personnel. The intent of the Eighth
Amendment is to protect individuals against cruel and unusual punishment involving those who
have committed criminal offenses.
The Tenth Amendment reserves education as a state function, thus placing the primary
responsibility for public schools on individual states.
The Fourteenth Amendment addresses the due process rights of students and school per-
sonnel to ensure that equal protection under the laws and fundamental fairness occur in matters
involving deprivation of liberty and property.
State Constitutions
Based on the Tenth Amendment to the U.S. Constitution, powers not delegated to the United
States by the Constitution, nor prohibited by it to the states, are reserved to the states respec-
tively. Because education is not mentioned in the Tenth Amendment, it is left to states to control.
Therefore, state constitutions represent the basic source of law for individual states and generally
require legislative bodies to perform various functions, including establishing systems of public
education. They prescribe funding and operational schemes for public schools. State constitu-
tions also restrict the powers that legislative bodies may exercise.
State constitutions often address the same subject matter found in the U.S. Constitution,
such as due process, individual rights and freedoms, and separation of church and state. State
Chapter 1 • Legal Framework Affecting Public Schools 3
constitutions may exceed coverage granted by the U.S. Constitution but may not fail to meet the
basic requirements of the Constitution or contradict it in any manner. Thus, a state statute may be
in direct conflict with both federal and state constitutions or may violate one and be in compli-
ance with the other. In all cases, federal and state constitutions prevail.
Statutes
Statutes represent acts of the legislative branch of government. The word statute is derived from
the Latin term statutum, meaning “it is decided.” Statutes are the most abundant source of law
affecting public schools. School district policy, rules, and regulations generally are based on
statutory law. Because education is considered a state function by virtue of the Tenth Amendment,
courts tend to support the view that state legislatures should exercise power over public schools.
It is only when statutes conflict with the U.S. Constitution, federal law, or state constitutions that
a challenge is brought to the courts. In short, statutes are always subject to review by the judicial
branch of government to determine their constitutionality. Statutes represent the most effective
means of developing new law or changing old laws.
State legislators grant local school boards the authority to adopt and enforce reasonable
rules and regulations necessary for the operation and management of schools. When challenged,
school officials must be able to demonstrate that a legitimate state interest is met by enforcing a
particular rule or regulation, especially in cases where individual freedoms are restricted.
Court or Case Law

Case law is generally reflected in judge-made or common law, as distinguished from statutory
law. Common law consists of the judgments, opinions, and decisions of courts adopting and
enforcing preceding usages and customs. Frequently, case law relies on past court decisions,
which are called precedents. This practice is derived from the rule of law known as stare decisis,
a Latin term meaning “let the decision stand.” This doctrine requires courts to observe legal
precedents established in previous cases in the same jurisdictions in making future decisions
involving the same or similar subject matter and factual circumstances. Although courts gener-
ally rely on precedent, they are not absolutely bound by it in rendering a decision. Factual
circumstances may be sufficiently different to warrant a different decision, even when the sub-
ject matter is similar. Moreover, the rationale used in reaching the decision may not be viewed as
applicable to the particular case under review. Federal courts, in their rulings, have contributed
to a significant body of case law, which affects the development of educational policies govern-
ing the administration and operation of public schools.
Case law is sometimes viewed as unsettled law because occasionally courts render
conflicting rulings within their jurisdictions. Thus, a ruling by a federal, district, or appellate
court only affects educational policymakers in that particular jurisdiction. Consequently, what is
actually practiced, accepted, and enforced varies by time and place regardless of precedent. For
example, if a Florida court sets a precedent, schools in Connecticut are not bound by the decision
because they are not located in the same jurisdiction. The U.S. Supreme Court is the single court
whose decisions affect the organization and administration of public schools across the nation.
Even so, in many instances state and federal appellate decisions are not followed due, in large
measure, to the fact that the Supreme Court has no ability to hear every conceivable issue relat-
ing to schools.
Researching Case Law

A case is a written decision issued by a court.1 Federal and state courts publish their decisions in
reporters. These reporters are organized chronologically. This system provides a methodology to
research case law relevant to student conduct as well as permissible teacher and administrative
action. The most effective means of understanding the context of a case and its application is to
read the case in its entirety. The facts and the holding (the court’s decision) of the case provide
key information that will be helpful in understanding the genesis of the law in a particular area.
There are free legal research sites such as Lexis-Nexis, Westlaw, and FindLaw. Each of
these sites provides an opportunity to conduct case research by citation, case name, and subject
matter. These sites typically provide access to post-1990 court opinions with the exception of
United States Supreme Court opinions, which typically are accessible to the public. Access to any
case law prior to this time may require a paid membership. Access to these sites provides an oppor-
tunity to read and gain a better understanding of the law on any particular subject matter of interest.
Locating A Case by Citation. New Jersey v. TLO will be used as an example in the following
discussion to illustrate how to conduct case research.
A standard three-part citation indicates where to find the case:
Volume Number Reporter Page Number
469 US 325
Simply entering this citation into a search box will enable the researcher to easily locate any case
that is being researched. Another research option is locating the case style (name of court, case
number, and names of plaintiffs and defendants) or case name.
Finding A Case by Case Name. Enter in the find by name or case name search box:
New Jersey v. TLO

Case names are organized by party names. The plaintiff is listed first and the defendant second.
Entering the style or name of a case will also facilitate the location of the case desired.
Locating A Case by Topic. The New Jersey v. TLO decision centered on searches in public
schools. Because this is a Supreme Court decision, a simple word search of “public school
searches and United States Supreme Court” will reveal the decisions of the Supreme Court relat-
ing to public school searches.
State Agencies
State legislatures in virtually all states have created administrative agencies to execute various
laws and policies governing public schools. One of these agencies typically includes state boards
of education. The legislature generally prescribes the duties and scope of authority delegated to
state boards. Members of each state board of education are either appointed by the governor or
elected by popular vote by citizens within the state. Conflicts frequently arise with state boards
of education based on the separation of the executive, legislative, and judicial branches of gov-
ernment. The legislature is prohibited from delegating its powers to an administrative agency.
For example, the legislature in the state of Illinois commanded the superintendent of pub-
lic instruction to prepare specifications for minimum requirements to conserve the health and
safety of students. The specifications developed by the superintendent of instruction were chal-
lenged by the board of education under a claim that they were unconstitutional. The board sought
injunctive relief against their enforcement. The circuit court granted relief. The superintendent
appealed the decision. The Supreme Court of Illinois held that the statute was a proper delega-
tion of administrative authority to the superintendent. However, the superintendent’s specifica-
tions, which preempted the entire field of school safety and purported to strike down all local
codes and ordinances relating to school safety, were invalid. Only the legislature had the power
to preempt local codes and ordinances regarding school safety.
State Boards of Education. The state board of education may exercise broad or limited
powers, based on legislative authorization. Public schools generally are placed under the control
of the state board of education. In this capacity, the state board of education determines, to some
degree, the direction of education in its state and also functions as a planning and evaluative
body that functions immediately below the legislature. Through delegated power, the board may
develop policies covering an array of legal issues such as, among others, health and safety, min-
imum requirements for teacher licensure, graduation requirements for students, rights of students
with disabilities, and student disciplinary practices. The courts generally recognize the board’s
authority based on state statute to regulate student and school personnel conduct as long as its
actions are not arbitrary or capricious.
In general, most state boards have six legal powers in common. They (1) establish certifi-
cation standards for teachers and administrators, (2) establish high school graduation require-
ments, (3) establish state testing programs, (4) establish standards for accreditation of school
districts and teacher and administrator preparation programs, (5) review and approve the budget
of the state education agency, and (6) develop rules and regulations for the administration of
state programs.*
State boards of education may not abrogate responsibilities delegated to them by state
statutes. The courts are reluctant to impose their judgment regarding decisions that are made
within the state board of education’s designated authority unless there is evidence of arbitrary
and capricious acts or a violation of an individual’s constitutional rights. In such cases, the
courts will intervene to determine whether the evidence supports constitutional violations. In
reviewing the action of an administrative board, one court has held that it will go no further
than to determine (1) whether the board acted within its jurisdiction, (2) whether it acted
according to law, (3) whether its action was arbitrary, oppressive, or unreasonable and repre-
sented its will rather than its judgment, and (4) whether the evidence was such that it might
reasonably make the order or determination in question.2
In addition to state boards of education, each state has a state department of education,
which is headed by a state superintendent or chief state school officer (CSSO). State departments
are the professional arm of the CSSO. These departments consist of specialists in virtually all areas
relating to education. They provide consultation and advice to local school districts, the state
board, and the CSSO. State departments generally are depositories for massive amounts of research
data and strategic reports collected from local school districts. Much of these data consists of
reports necessary to ensure that the state is in compliance with federal and state mandates and to
facilitate education planning at the state and local levels. Among other duties, the state department
of education conducts research on school practices, develops short- and long-term plans for educa-
tional outcomes, enforces state and federal law, evaluates districts for accreditation, evaluates
statewide testing programs, and monitors compliance of state-approved curriculum.
Local School Boards

Local school boards impact education policy and the administration of public schools. The
school board exercises general supervision over the schools within its district. However, its
broader role involves the formulation of school district policy. Consequently, it is viewed as a
policy-making body. School district policy is generally based on state statute. If consistent with
state and federal laws, state and federal constitutions, and court rulings, school district policies
are considered to be legally enforceable.
The local school board has a responsibility to formulate a vision that defines the future it
envisions for the district. Certain goals, objectives, and measurable outcomes may be included as
integral components of the board’s vision.
The vision of the school district is closely aligned with the district’s mission. The mission
generally defines the basic purpose of the district and the core values embraced by the district as
*
Reprinted with permission from 2009 Education Commission of the States, “Equipping Leaders, Advancing Ideas,” 700
Broadway, #1200, Denver, CO 80203-3460.
it moves toward achieving its mission. Virtually all districts have formulated standards of per-
formance for both students and teachers that in general are closely aligned with state standards
related to No Child Left Behind provisions. Certain performance measures are established to
determine the extent to which specified standards are met. The board has a leading responsibility
for formulating goals that contribute to student achievement and continuous improvement of all
educational programs. The board typically functions as the appellate body involving faculty,
staff, and students when legal issues emerge involving recommended sanctions such as suspen-
sions, expulsions, and dismissal.
The board is responsible for the formulation of policies, rules, and regulations that provide
direction for the administration and operation of schools. The board is viewed as a corporate
body. Therefore, individual board members have no power beyond the power that is granted to
the full board by the legislature. Consequently, individual school board members are not free to
formulate policy or to act independently of the board as a whole. School board members are
considered public school officers and are granted powers by the legislature that are essential to
the execution of their duties and responsibilities. The board is typically advised by its attorney
and strives to act within legal boundaries established by the U.S. Constitution, state constitu-
tions, state and federal statutes, and relevant court decisions affecting the school district.
The size of school boards varies and is generally determined by state statute. The number
of school board members is typically odd to prevent a pattern of tie votes. Board members are
either appointed or elected. School boards generally consist of five to seven members, although
some districts may have fewer than five or more than seven.
One very significant duty of the school board involves the selection of its superintendent,
unless the board operates in one of the few states where the superintendent is elected by citizens
within the district. The relationship between the superintendent and the school board is best
described as a legislative–executive one within which the board formulates policy and the super-
intendent executes policy. The board delegates certain duties and responsibilities and holds the
superintendent accountable for performing them. The board evaluates the effectiveness of its
policies and may revise or delete existing policies or formulate new ones based on district needs.
The board also adopts an annual budget covering personnel, instruction, student services,
transportation, facilities, equipment, and materials needed to meet desired educational outcomes.
Professional and support personnel are employed by the board based on the superintendent’s rec-
ommendation. If the board has defensible grounds, it has the latitude to accept or reject personnel
recommendations. Terms and conditions, salary schedules, and overall staffing and evaluation
policies are determined by the board.
Because the board is accountable to the public, it is expected to operate in an open and
transparent manner. Thus, school board meetings are viewed as open meetings, as virtually all
states have enacted “sunshine laws” that allow citizens to attend open meetings and be informed
of actions taken by the board. Citizens may request an opportunity to be included on the board’s
agenda during a regular board meeting in order to speak on issues that are of concern to them-
selves or the community at large. Citizens may also access school board minutes because they
are considered public records.
School boards may hold executive sessions to discuss sensitive matters such as employee
discipline, contract issues, or attorney–board consultation. Only board members may attend
these meetings. The intent of these meetings is to protect the confidentiality of sensitive informa-
tion or potentially damaging information that may injure a person’s good name or reputation.
Consequently, all items discussed during executive sessions are confidential and should not be
divulged by board members.
School boards are expected to be accountable to the general public and specifically to their
communities for what occurs in the district regarding school safety, student achievement, teach-
ing performance, financial management, and other areas of importance. In recent years, the No
Child Left Behind Act has changed the culture of schools through the enactment of initiatives
aimed at an assessment of year-to-year student progress based on statewide assessment measures.
The school board has a leading responsibility for establishing high quality standards and
system priorities centered on enhancing student achievement. Not only is it expected to establish
high-quality performance standards, but it also has a responsibility to create an environment and
climate within which excellent teaching and learning occur. Therefore, the board must ensure to
the greatest degree possible that proper resources are provided to achieve desired district out-
comes and that funds are administered responsibly.
School Board Policies. School board policies represent a basic source of law for school per-
sonnel as reflected in the rules and regulations governing the total operation of schools. School
board policies are legally defensible as long as they do not conflict with the federal or state con-
stitutions, federal or state statutes, or case law. Once these legal requirements are met, the school
board as the delegated policy-making body at the local level may not violate its own policies. A
school board is legally required to adhere to its own policies. Failure to do so may result in legal
challenges by those adversely affected by the board’s actions.
The U.S. System of Courts

The judicial system consists of federal and state courts. The organization of the courts at both
levels is essentially the same: trial courts, intermediate courts of appeal, and the highest court,
which is the U.S. Supreme Court. State constitutions usually prescribe the powers of state courts
as well as their jurisdiction. Irrespective of the level, courts are limited only to cases or legal
conflicts presented to them for resolution. Courts cannot take it upon themselves to decide on the
constitutionality of a statute or a policy unless a suit is brought challenging the legality of that
particular statute or policy.
The courts usually perform three types of judicial functions when they are called on to act.
They (1) settle controversies through applying basic principles of law to specific factual circum-
stances, (2) interpret legislative enactments, and (3) determine the constitutionality of legislative
or administrative mandates. When applying principles of law to specific situations, the courts
may find that principles of law are vague or ambiguous. In such cases, the courts must rely on
legal precedent for direction.
In interpreting statutes, the courts, through their analogies and rulings, may actually affect
the definition of the legislation by assigning meaning to it. When determining the constitutional-
ity of statutes, courts make the presumption that such statutes are constitutional. Consequently,
those who challenge the legality of the statute must assume the burden of proof to demonstrate
otherwise. The Supreme Court in Florida addressed this issue as follows:
We have held that legislative acts carry such a strong presumption of validity that they should
be held constitutional if there is any reasonable theory to that end. . . . Moreover, unconstitu-
tionality must appear beyond all reasonable doubt before an act is condemned. . . . If a statute
can be interpreted in two different ways, one by which it will be constitutional, courts will
adopt the constitutional interpretation.3
Federal Courts
Federal courts typically deal with cases involving federal or constitutional issues (“federal ques-
tions”) or cases in which the parties are residents of different states (“diversity of citizenship”).
The federal court system includes district courts, appellate courts, and the Supreme Court.
There are ninety-five federal district courts in the United States. At least one federal court is
found in each state; larger states, such as New York and California, have as many as four. Fed-
eral courts usually hear cases between citizens of different states and cases involving litigation
of federal statutes.
Federal appellate courts are represented by circuit courts of appeal. The thirteen federal
circuit courts include eleven with geographic jurisdiction over a number of states and territories,
one for the District of Columbia, and one involving three specialized federal courts. Table 1.1
and Figure 1.1 identify the geographic areas associated with each circuit.
Many judges sit on the various courts of appeals; for example, the Sixth Circuit Court of
Appeals has fourteen judges and eight “senior” judges available to sit in panels of three judges.
The primary function of the appellate court is to review the proceedings of lower courts to deter-
mine whether errors of law (as opposed to facts) were committed, such as procedural irregulari-
ties, constitutional misinterpretations, or inappropriate application of rules of evidence. Panels of
TABLE 1.1 Jurisdiction of Federal Circuit Courts of Appeal

Circuit Jurisdiction
1st Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island
2nd Connecticut, New York, Vermont
3rd Delaware, New Jersey, Pennsylvania, Virgin Islands
4th Maryland, North Carolina, South Carolina, Virginia, West Virginia
5th Louisiana, Mississippi, Texas
6th Kentucky, Ohio, Michigan, Tennessee
7th Illinois, Indiana, Wisconsin
8th Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota
9th Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana
Islands, Oregon, Washington
10th Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming
11th Alabama, Florida, Georgia
DC Washington, DC
Federal Washington, DC (specialized courts)
Source: Administrative Office of the U.S. Courts. (n.d.). Court Locator. USCourts.gov. Retrieved September 14,
2010, from http://www.uscourts.gov/courtlinks
WA ME
Western Eastern NH
VT
1
MT ND
2 MA
OR MN
Western Northern
RI
ID SD WI MI NY
Eastern Eastern Western Southern
Western
CT
Eastern WY 8 Northern
Western
3
Northern PA Eastern
NJ
Northern
IA Northern
WesternMiddle
Northern
NE 7 OH DE
Southern Southern
NV IN Northern
Central MD
UT IL Southern 6WV Eastern
CA Southern VA
9 CO MO Southern D.C.Circuit
KS Eastern KYEastern
Western
Middle
4 Federal Circuit
Western Western
10 WesternNC Eastern
Middle Eastern
Northern
Western Western TN
Eastern
Central
OK Northern SC
AR
AZ Eastern Northern
PR
Southern
NM Northern
GA VI
Western AL Middle
Northern MS Middle Southern
Western
Eastern LA SouthernSouthern 11
TX Northern
Middle
AK 5 Eastern
FL
Middle
Western
Southern
Southern
HI
GU
MP
FIGURE 1.1 U.S. Courts: The Federal Judiciary

SOURCE: Administrative Office of the U.S. Courts. (n.d.). Court Locator. USCourts.gov. Retrieved
September 14, 2010, from http://www.uscourts.gov/courtlinks
judges for appellate courts hear oral arguments from the appellant and the appellee, examine
written arguments, vote, and render a ruling. The appellate court may also, based on its finding,
remand the case to be retried by the lower court.
State Courts
State courts are the part of each state’s judicial system with the responsibility of hearing cases
involving issues related to state constitutional law, state statutes, and common law. Many
education cases are heard in state courts because they do not involve a federal question. The
structure of state courts is similar to those found in the federal courts: courts of general juris-
diction, courts of special jurisdiction, courts of limited jurisdiction, and appellate courts.
The names of these courts vary among the fifty states, but all states have at least three to four
tiers of courts.
State statutes generally prescribe the types of cases that must be heard by the various courts
within a state. Discretionary jurisdiction involves cases in which a party files a petition to the
state supreme court seeking redress. It is then left to the court to use its discretion (or discretionary
power) in deciding to accept or reject the case. It is important to understand that state courts play
a vital role in addressing many issues involving the administration of public schools.
Courts of General Jurisdiction. Courts of general jurisdiction are often referred to as dis-
trict or circuit courts. Their jurisdiction covers most cases except those held for special courts. In
many instances, decisions of these courts may be appealed to intermediate appellate courts or
even to the state supreme court. Areas adjudicated by these courts include civil, criminal, traffic,
and juvenile issues.
Courts of Special Jurisdiction. Courts of special jurisdiction hear legal disputes on special
matters. They are generally referred to as trial courts with limited jurisdiction and may be called
municipal, justice of the peace, probate, small claims, or traffic court.
Intermediate Appellate Courts. Intermediate appellate courts have emerged over the
past three decades to hear appeals from trial courts or certain state agencies. Their primary
role involves reviewing proceedings from trial courts to determine whether substantive or
procedural errors occurred in applying the law. In a sense, their duties are similar to those of
the highest court within the state; however, the primary difference between the two courts is
discretion: The intermediate court has less discretion in accepting cases than does the high-
est or state supreme court. Many, but not all, of the cases heard by the intermediate courts
are mandatory.
Appellate Courts. Appellate courts represent the highest courts within the state. They are
considered courts of last resort. In forty-four states, these are referred to as the state supreme
courts. These courts have some discretion in accepting cases, but they must hear mandatory
cases based on appeal and decide on the merits of each.
See Figure 1.2, which depicts the progression of a case through the U.S. court system.
The Trial Process. There are five essential stages to a trial. These stages are as follows:
Pleadings stage involves a complaint filed by the plaintiff and an answer to the complaint
by the defendant. The defendant may also file a motion rather than an answer requesting that
the court dismiss the case, or may require the plaintiff to further clarify the intent of the case.
Pre-trial stage is designed to seek resolution of issues that can be resolved prior to the
trial. Issues are identified that are in dispute and must be resolved at trial versus issues that
are not in dispute.
State Courts
District Court
Intermediate
Courts of
Appeal
Court of Last
Resort–
Supreme Court
Federal Courts
U.S. District
Court
U.S. Courts of
Appeal
U.S. Supreme
Court
Appeals and/or
Writ of
Certiorari*
FIGURE 1.2 Case Progression Through the Court System

*A writ of certiorari is a discretionary review granted or denied by the U.S. Supreme Court.
Motions are used by attorneys to request that the court initiate a specific action by issuing
an order to resolve a dispute. Summary judgment is an example, where the court decides
to settle a dispute or dispose of a case promptly without conducting full legal proceedings
because no issue, material, or facts exist that support a cause of action.
Discovery stage entails gathering evidence by attorneys from the plaintiff and defendant,
which involves inspecting relevant documentation and interviewing individuals who are
aware of the circumstances leading to the lawsuit. Depositions are taken and interrogato-
ries also are initiated.
Trial stage consists of jury selection. If a jury is involved (as opposed to a bench trial)
from a pool of potential jurors, jurors are questioned to determine their suitability to serve
impartially. The judge and counsel for both the plaintiff and defendant are involved in this
process. When a jury is seated, opening statements are made by the plaintiff’s and defend-
ant’s attorneys. Closing arguments are also made by each attorney when the trial con-
cludes. The judge provides specific instructions to the jury regarding the evaluation of the
case prior to its deliberations.
Case Begins
Pleadings
Pre-Trial Activity
Discovery, Motions,
Settlements,
Dispute Resolution
Efforts
Deposition
Trial
Jury Trial
Bench Trial
Jury Selection
Presentation of Evidence
Closing Arguments
Instructions and Standards of Proof
Deliberation and Verdict
Post Trial
Judgment
Right to Appeal
FIGURE 1.3 Trial Progression
Post-trial stage consists of a verdict rendered by the jury and a ruling by the court. The
party, either plaintiff or defendant, may appeal for the case to be heard by a higher court.
teps involving pre-trial, discovery, and motions may be completed concurrently or inter-
S
changeably depending upon the circumstances within the case.
See Figure 1.3 for components of the trial progression process.
Analysis of an Appellate Court Opinion

Court proceedings are concluded with a written opinion setting forth the decision of the court on
an issue under review by the court. These opinions consist of a set of components designed
to facilitate an understanding of the court’s ruling. The most common elements include the name
of the case, the year in which the case was decided by the court, the appellant’s contention,
the appellee’s defense, the procedure by which the case reached the court, the facts giving rise
to the case, the ruling of the court, the court’s rationale for the ruling, and the final disposition
on the issue.
Case (Citation)
Cases are usually named for the parties involved in the controversy. The party initiating the suit
at the trial court level is referred to as the plaintiff. The party against whom the suit or action is
brought is called the defendant. The plaintiff’s name comes first, followed by the defendant’s
(e.g., Baker v. Owen). If the case is appealed, the party initiating the appeal who was not sup-
ported at the first level becomes the appellant, and the other party becomes the appellee. In this
instance, the appellant is listed first and the appellee last (e.g., Owen v. Baker). Even though it
may take as long as several years before all legal remedies are exhausted in a particular case, the
year in the case citation indicates the time when the decision was rendered.
Procedure
The initiator of the suit (plaintiff) files a complaint seeking relief by the courts for alleged
improper actions taken by the defendant or failure on the defendant’s part to meet certain legal
standards. In either case, the plaintiff contends that an indefensible act has been attributed to the
defendant. The party against whom a complaint is filed responds to the complaint with a rationale
as to why certain actions were or were not taken. The defendant attempts to justify actions taken
in regard to the plaintiff. In appellate decisions, an explanation may be given as to how the case
reached the appellate level. An appeal or a petition for a writ of certiorari is the most common
means used to bring a case to a higher court level. At the U.S. Supreme Court level and in some
state courts of appeals, the writ of certiorari is used to remove a case from a lower court to a
higher court for review.
Facts
The facts of a case describe the specific details leading to the conflict or controversy that resulted
in the case reaching the court. The facts describe the nature of the conflict as determined by the
evidence presented during the actual proceeding. The facts are at issue only at the lower trial court
level, not at the appeals stage. Appellate courts apply the law to the facts as determined by the trial.
Ruling and Justification

The ruling of the court, made manifest in the form of the written decision or opinion of the court,
represents the court’s response to the issue presented for its review. The ruling is usually accom-
panied by a justification detailing the basis on which the ruling was made. The ruling usually
includes statements covering primary facts and the major conclusions reached by the courts.
Stare decisis— the following of precedents—is an important component of all court decisions.
Disposition
The disposition follows the ruling of the case that determines whether the plaintiff or the defend-
ant was supported by the courts in the dispute. Once the victor is determined, the court reaches a
conclusion and orders that some action be taken consistent with its ruling. If the plaintiff wins,
the court will prescribe a remedy for the damages suffered by the plaintiff. It may be in the form
of an order compelling the defendant to compensate the plaintiff for damages or an injunction
prohibiting the defendant from continuing a certain practice deemed to be unjust. If the defend-
ant is upheld, the case may be dismissed with an order that the plaintiff pay court fees and other
legal fees associated with the case. In some instances, the case may be passed to an appellate
court to determine the proper remedy. The appellate court may uphold the lower court decision,
reverse the lower court decision, or modify the decision in some manner. The court may also
remand the case back to the lower court for further proceedings based on its review of the case.
The U.S. Supreme Court

The U.S. Supreme Court is the highest court in the land. Unlike lower courts, there is no appeal
beyond the decision of this court. The Supreme Court’s ruling can be overturned only by an
amendment to the U.S. Constitution. Nine justices, including a chief justice, comprise the High
Court. To avoid political infringement, they are appointed to life terms.
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DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI
Newala, too, suffers from the distance of its water-supply—at least

the Newala of to-day does; there was once another Newala in a lovely
valley at the foot of the plateau. I visited it and found scarcely a trace
of houses, only a Christian cemetery, with the graves of several
missionaries and their converts, remaining as a monument of its
former glories. But the surroundings are wonderfully beautiful. A
thick grove of splendid mango-trees closes in the weather-worn
crosses and headstones; behind them, combining the useful and the
agreeable, is a whole plantation of lemon-trees covered with ripe
fruit; not the small African kind, but a much larger and also juicier
imported variety, which drops into the hands of the passing traveller,
without calling for any exertion on his part. Old Newala is now under
the jurisdiction of the native pastor, Daudi, at Chingulungulu, who,
as I am on very friendly terms with him, allows me, as a matter of
course, the use of this lemon-grove during my stay at Newala.
FEET MUTILATED BY THE RAVAGES OF THE “JIGGER”
(Sarcopsylla penetrans)
The water-supply of New Newala is in the bottom of the valley,

some 1,600 feet lower down. The way is not only long and fatiguing,
but the water, when we get it, is thoroughly bad. We are suffering not
only from this, but from the fact that the arrangements at Newala are
nothing short of luxurious. We have a separate kitchen—a hut built
against the boma palisade on the right of the baraza, the interior of
which is not visible from our usual position. Our two cooks were not
long in finding this out, and they consequently do—or rather neglect
to do—what they please. In any case they do not seem to be very
particular about the boiling of our drinking-water—at least I can
attribute to no other cause certain attacks of a dysenteric nature,
from which both Knudsen and I have suffered for some time. If a
man like Omari has to be left unwatched for a moment, he is capable
of anything. Besides this complaint, we are inconvenienced by the
state of our nails, which have become as hard as glass, and crack on
the slightest provocation, and I have the additional infliction of
pimples all over me. As if all this were not enough, we have also, for
the last week been waging war against the jigger, who has found his
Eldorado in the hot sand of the Makonde plateau. Our men are seen
all day long—whenever their chronic colds and the dysentery likewise
raging among them permit—occupied in removing this scourge of
Africa from their feet and trying to prevent the disastrous
consequences of its presence. It is quite common to see natives of
this place with one or two toes missing; many have lost all their toes,
or even the whole front part of the foot, so that a well-formed leg
ends in a shapeless stump. These ravages are caused by the female of
Sarcopsylla penetrans, which bores its way under the skin and there
develops an egg-sac the size of a pea. In all books on the subject, it is
stated that one’s attention is called to the presence of this parasite by
an intolerable itching. This agrees very well with my experience, so
far as the softer parts of the sole, the spaces between and under the
toes, and the side of the foot are concerned, but if the creature
penetrates through the harder parts of the heel or ball of the foot, it
may escape even the most careful search till it has reached maturity.
Then there is no time to be lost, if the horrible ulceration, of which
we see cases by the dozen every day, is to be prevented. It is much
easier, by the way, to discover the insect on the white skin of a
European than on that of a native, on which the dark speck scarcely
shows. The four or five jiggers which, in spite of the fact that I
constantly wore high laced boots, chose my feet to settle in, were
taken out for me by the all-accomplished Knudsen, after which I
thought it advisable to wash out the cavities with corrosive
sublimate. The natives have a different sort of disinfectant—they fill
the hole with scraped roots. In a tiny Makua village on the slope of
the plateau south of Newala, we saw an old woman who had filled all
the spaces under her toe-nails with powdered roots by way of
prophylactic treatment. What will be the result, if any, who can say?
The rest of the many trifling ills which trouble our existence are
really more comic than serious. In the absence of anything else to
smoke, Knudsen and I at last opened a box of cigars procured from
the Indian store-keeper at Lindi, and tried them, with the most
distressing results. Whether they contain opium or some other
narcotic, neither of us can say, but after the tenth puff we were both
“off,” three-quarters stupefied and unspeakably wretched. Slowly we
recovered—and what happened next? Half-an-hour later we were
once more smoking these poisonous concoctions—so insatiable is the
craving for tobacco in the tropics.
Even my present attacks of fever scarcely deserve to be taken
seriously. I have had no less than three here at Newala, all of which
have run their course in an incredibly short time. In the early
afternoon, I am busy with my old natives, asking questions and
making notes. The strong midday coffee has stimulated my spirits to
an extraordinary degree, the brain is active and vigorous, and work
progresses rapidly, while a pleasant warmth pervades the whole
body. Suddenly this gives place to a violent chill, forcing me to put on
my overcoat, though it is only half-past three and the afternoon sun
is at its hottest. Now the brain no longer works with such acuteness
and logical precision; more especially does it fail me in trying to
establish the syntax of the difficult Makua language on which I have
ventured, as if I had not enough to do without it. Under the
circumstances it seems advisable to take my temperature, and I do
so, to save trouble, without leaving my seat, and while going on with
my work. On examination, I find it to be 101·48°. My tutors are
abruptly dismissed and my bed set up in the baraza; a few minutes
later I am in it and treating myself internally with hot water and
lemon-juice.
Three hours later, the thermometer marks nearly 104°, and I make
them carry me back into the tent, bed and all, as I am now perspiring
heavily, and exposure to the cold wind just beginning to blow might
mean a fatal chill. I lie still for a little while, and then find, to my
great relief, that the temperature is not rising, but rather falling. This
is about 7.30 p.m. At 8 p.m. I find, to my unbounded astonishment,
that it has fallen below 98·6°, and I feel perfectly well. I read for an
hour or two, and could very well enjoy a smoke, if I had the
wherewithal—Indian cigars being out of the question.
Having no medical training, I am at a loss to account for this state
of things. It is impossible that these transitory attacks of high fever
should be malarial; it seems more probable that they are due to a
kind of sunstroke. On consulting my note-book, I become more and
more inclined to think this is the case, for these attacks regularly
follow extreme fatigue and long exposure to strong sunshine. They at
least have the advantage of being only short interruptions to my
work, as on the following morning I am always quite fresh and fit.
My treasure of a cook is suffering from an enormous hydrocele which
makes it difficult for him to get up, and Moritz is obliged to keep in
the dark on account of his inflamed eyes. Knudsen’s cook, a raw boy
from somewhere in the bush, knows still less of cooking than Omari;
consequently Nils Knudsen himself has been promoted to the vacant
post. Finding that we had come to the end of our supplies, he began
by sending to Chingulungulu for the four sucking-pigs which we had
bought from Matola and temporarily left in his charge; and when
they came up, neatly packed in a large crate, he callously slaughtered
the biggest of them. The first joint we were thoughtless enough to
entrust for roasting to Knudsen’s mshenzi cook, and it was
consequently uneatable; but we made the rest of the animal into a
jelly which we ate with great relish after weeks of underfeeding,
consuming incredible helpings of it at both midday and evening
meals. The only drawback is a certain want of variety in the tinned
vegetables. Dr. Jäger, to whom the Geographical Commission
entrusted the provisioning of the expeditions—mine as well as his
own—because he had more time on his hands than the rest of us,
seems to have laid in a huge stock of Teltow turnips,[46] an article of
food which is all very well for occasional use, but which quickly palls
when set before one every day; and we seem to have no other tins
left. There is no help for it—we must put up with the turnips; but I
am certain that, once I am home again, I shall not touch them for ten
years to come.
Amid all these minor evils, which, after all, go to make up the
genuine flavour of Africa, there is at least one cheering touch:
Knudsen has, with the dexterity of a skilled mechanic, repaired my 9
× 12 cm. camera, at least so far that I can use it with a little care.
How, in the absence of finger-nails, he was able to accomplish such a
ticklish piece of work, having no tool but a clumsy screw-driver for
taking to pieces and putting together again the complicated
mechanism of the instantaneous shutter, is still a mystery to me; but
he did it successfully. The loss of his finger-nails shows him in a light
contrasting curiously enough with the intelligence evinced by the
above operation; though, after all, it is scarcely surprising after his
ten years’ residence in the bush. One day, at Lindi, he had occasion
to wash a dog, which must have been in need of very thorough
cleansing, for the bottle handed to our friend for the purpose had an
extremely strong smell. Having performed his task in the most
conscientious manner, he perceived with some surprise that the dog
did not appear much the better for it, and was further surprised by
finding his own nails ulcerating away in the course of the next few
days. “How was I to know that carbolic acid has to be diluted?” he
mutters indignantly, from time to time, with a troubled gaze at his
mutilated finger-tips.
Since we came to Newala we have been making excursions in all
directions through the surrounding country, in accordance with old
habit, and also because the akida Sefu did not get together the tribal
elders from whom I wanted information so speedily as he had
promised. There is, however, no harm done, as, even if seen only
from the outside, the country and people are interesting enough.
The Makonde plateau is like a large rectangular table rounded off
at the corners. Measured from the Indian Ocean to Newala, it is
about seventy-five miles long, and between the Rovuma and the
Lukuledi it averages fifty miles in breadth, so that its superficial area
is about two-thirds of that of the kingdom of Saxony. The surface,
however, is not level, but uniformly inclined from its south-western
edge to the ocean. From the upper edge, on which Newala lies, the
eye ranges for many miles east and north-east, without encountering
any obstacle, over the Makonde bush. It is a green sea, from which
here and there thick clouds of smoke rise, to show that it, too, is
inhabited by men who carry on their tillage like so many other
primitive peoples, by cutting down and burning the bush, and
manuring with the ashes. Even in the radiant light of a tropical day
such a fire is a grand sight.
Much less effective is the impression produced just now by the
great western plain as seen from the edge of the plateau. As often as
time permits, I stroll along this edge, sometimes in one direction,
sometimes in another, in the hope of finding the air clear enough to
let me enjoy the view; but I have always been disappointed.
Wherever one looks, clouds of smoke rise from the burning bush,
and the air is full of smoke and vapour. It is a pity, for under more
favourable circumstances the panorama of the whole country up to
the distant Majeje hills must be truly magnificent. It is of little use
taking photographs now, and an outline sketch gives a very poor idea
of the scenery. In one of these excursions I went out of my way to
make a personal attempt on the Makonde bush. The present edge of
the plateau is the result of a far-reaching process of destruction
through erosion and denudation. The Makonde strata are
everywhere cut into by ravines, which, though short, are hundreds of
yards in depth. In consequence of the loose stratification of these
beds, not only are the walls of these ravines nearly vertical, but their
upper end is closed by an equally steep escarpment, so that the
western edge of the Makonde plateau is hemmed in by a series of
deep, basin-like valleys. In order to get from one side of such a ravine
to the other, I cut my way through the bush with a dozen of my men.
It was a very open part, with more grass than scrub, but even so the
short stretch of less than two hundred yards was very hard work; at
the end of it the men’s calicoes were in rags and they themselves
bleeding from hundreds of scratches, while even our strong khaki
suits had not escaped scatheless.
NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAHUTA
I see increasing reason to believe that the view formed some time
back as to the origin of the Makonde bush is the correct one. I have
no doubt that it is not a natural product, but the result of human
occupation. Those parts of the high country where man—as a very
slight amount of practice enables the eye to perceive at once—has not
yet penetrated with axe and hoe, are still occupied by a splendid
timber forest quite able to sustain a comparison with our mixed
forests in Germany. But wherever man has once built his hut or tilled
his field, this horrible bush springs up. Every phase of this process
may be seen in the course of a couple of hours’ walk along the main
road. From the bush to right or left, one hears the sound of the axe—
not from one spot only, but from several directions at once. A few
steps further on, we can see what is taking place. The brush has been
cut down and piled up in heaps to the height of a yard or more,
between which the trunks of the large trees stand up like the last
pillars of a magnificent ruined building. These, too, present a
melancholy spectacle: the destructive Makonde have ringed them—
cut a broad strip of bark all round to ensure their dying off—and also
piled up pyramids of brush round them. Father and son, mother and
son-in-law, are chopping away perseveringly in the background—too
busy, almost, to look round at the white stranger, who usually excites
so much interest. If you pass by the same place a week later, the piles
of brushwood have disappeared and a thick layer of ashes has taken
the place of the green forest. The large trees stretch their
smouldering trunks and branches in dumb accusation to heaven—if
they have not already fallen and been more or less reduced to ashes,
perhaps only showing as a white stripe on the dark ground.
This work of destruction is carried out by the Makonde alike on the
virgin forest and on the bush which has sprung up on sites already
cultivated and deserted. In the second case they are saved the trouble
of burning the large trees, these being entirely absent in the
secondary bush.
After burning this piece of forest ground and loosening it with the
hoe, the native sows his corn and plants his vegetables. All over the
country, he goes in for bed-culture, which requires, and, in fact,
receives, the most careful attention. Weeds are nowhere tolerated in
the south of German East Africa. The crops may fail on the plains,
where droughts are frequent, but never on the plateau with its
abundant rains and heavy dews. Its fortunate inhabitants even have
the satisfaction of seeing the proud Wayao and Wamakua working
for them as labourers, driven by hunger to serve where they were
accustomed to rule.
But the light, sandy soil is soon exhausted, and would yield no
harvest the second year if cultivated twice running. This fact has
been familiar to the native for ages; consequently he provides in
time, and, while his crop is growing, prepares the next plot with axe
and firebrand. Next year he plants this with his various crops and
lets the first piece lie fallow. For a short time it remains waste and
desolate; then nature steps in to repair the destruction wrought by
man; a thousand new growths spring out of the exhausted soil, and
even the old stumps put forth fresh shoots. Next year the new growth
is up to one’s knees, and in a few years more it is that terrible,
impenetrable bush, which maintains its position till the black
occupier of the land has made the round of all the available sites and
come back to his starting point.
The Makonde are, body and soul, so to speak, one with this bush.
According to my Yao informants, indeed, their name means nothing
else but “bush people.” Their own tradition says that they have been
settled up here for a very long time, but to my surprise they laid great
stress on an original immigration. Their old homes were in the
south-east, near Mikindani and the mouth of the Rovuma, whence
their peaceful forefathers were driven by the continual raids of the
Sakalavas from Madagascar and the warlike Shirazis[47] of the coast,
to take refuge on the almost inaccessible plateau. I have studied
African ethnology for twenty years, but the fact that changes of
population in this apparently quiet and peaceable corner of the earth
could have been occasioned by outside enterprises taking place on
the high seas, was completely new to me. It is, no doubt, however,
correct.
The charming tribal legend of the Makonde—besides informing us
of other interesting matters—explains why they have to live in the
thickest of the bush and a long way from the edge of the plateau,
instead of making their permanent homes beside the purling brooks
and springs of the low country.
“The place where the tribe originated is Mahuta, on the southern
side of the plateau towards the Rovuma, where of old time there was
nothing but thick bush. Out of this bush came a man who never
washed himself or shaved his head, and who ate and drank but little.
He went out and made a human figure from the wood of a tree
growing in the open country, which he took home to his abode in the
bush and there set it upright. In the night this image came to life and
was a woman. The man and woman went down together to the
Rovuma to wash themselves. Here the woman gave birth to a still-
born child. They left that place and passed over the high land into the
valley of the Mbemkuru, where the woman had another child, which
was also born dead. Then they returned to the high bush country of
Mahuta, where the third child was born, which lived and grew up. In
course of time, the couple had many more children, and called
themselves Wamatanda. These were the ancestral stock of the
Makonde, also called Wamakonde,[48] i.e., aborigines. Their
forefather, the man from the bush, gave his children the command to
bury their dead upright, in memory of the mother of their race who
was cut out of wood and awoke to life when standing upright. He also
warned them against settling in the valleys and near large streams,
for sickness and death dwelt there. They were to make it a rule to
have their huts at least an hour’s walk from the nearest watering-
place; then their children would thrive and escape illness.”
The explanation of the name Makonde given by my informants is
somewhat different from that contained in the above legend, which I
extract from a little book (small, but packed with information), by
Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my
results agree exactly with the statements of the legend. Washing?
Hapana—there is no such thing. Why should they do so? As it is, the
supply of water scarcely suffices for cooking and drinking; other
people do not wash, so why should the Makonde distinguish himself
by such needless eccentricity? As for shaving the head, the short,
woolly crop scarcely needs it,[49] so the second ancestral precept is
likewise easy enough to follow. Beyond this, however, there is
nothing ridiculous in the ancestor’s advice. I have obtained from
various local artists a fairly large number of figures carved in wood,
ranging from fifteen to twenty-three inches in height, and
representing women belonging to the great group of the Mavia,
Makonde, and Matambwe tribes. The carving is remarkably well
done and renders the female type with great accuracy, especially the
keloid ornamentation, to be described later on. As to the object and
meaning of their works the sculptors either could or (more probably)
would tell me nothing, and I was forced to content myself with the
scanty information vouchsafed by one man, who said that the figures
were merely intended to represent the nembo—the artificial
deformations of pelele, ear-discs, and keloids. The legend recorded
by Pater Adams places these figures in a new light. They must surely
be more than mere dolls; and we may even venture to assume that
they are—though the majority of present-day Makonde are probably
unaware of the fact—representations of the tribal ancestress.
The references in the legend to the descent from Mahuta to the
Rovuma, and to a journey across the highlands into the Mbekuru
valley, undoubtedly indicate the previous history of the tribe, the
travels of the ancestral pair typifying the migrations of their
descendants. The descent to the neighbouring Rovuma valley, with
its extraordinary fertility and great abundance of game, is intelligible
at a glance—but the crossing of the Lukuledi depression, the ascent
to the Rondo Plateau and the descent to the Mbemkuru, also lie
within the bounds of probability, for all these districts have exactly
the same character as the extreme south. Now, however, comes a
point of especial interest for our bacteriological age. The primitive
Makonde did not enjoy their lives in the marshy river-valleys.
Disease raged among them, and many died. It was only after they
had returned to their original home near Mahuta, that the health
conditions of these people improved. We are very apt to think of the
African as a stupid person whose ignorance of nature is only equalled
by his fear of it, and who looks on all mishaps as caused by evil
spirits and malignant natural powers. It is much more correct to
assume in this case that the people very early learnt to distinguish
districts infested with malaria from those where it is absent.
This knowledge is crystallized in the
ancestral warning against settling in the
valleys and near the great waters, the
dwelling-places of disease and death. At the
same time, for security against the hostile
Mavia south of the Rovuma, it was enacted
that every settlement must be not less than a
certain distance from the southern edge of the
plateau. Such in fact is their mode of life at the
present day. It is not such a bad one, and
certainly they are both safer and more
comfortable than the Makua, the recent
intruders from the south, who have made USUAL METHOD OF
good their footing on the western edge of the CLOSING HUT-DOOR
plateau, extending over a fairly wide belt of
country. Neither Makua nor Makonde show in their dwellings
anything of the size and comeliness of the Yao houses in the plain,
especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a
Makonde hamlet not far from Newala, on the road to Mahuta, is the
most important settlement of the tribe I have yet seen, and has fairly
spacious huts. But how slovenly is their construction compared with
the palatial residences of the elephant-hunters living in the plain.
The roofs are still more untidy than in the general run of huts during
the dry season, the walls show here and there the scanty beginnings
or the lamentable remains of the mud plastering, and the interior is a
veritable dog-kennel; dirt, dust and disorder everywhere. A few huts
only show any attempt at division into rooms, and this consists
merely of very roughly-made bamboo partitions. In one point alone
have I noticed any indication of progress—in the method of fastening
the door. Houses all over the south are secured in a simple but
ingenious manner. The door consists of a set of stout pieces of wood
or bamboo, tied with bark-string to two cross-pieces, and moving in
two grooves round one of the door-posts, so as to open inwards. If
the owner wishes to leave home, he takes two logs as thick as a man’s
upper arm and about a yard long. One of these is placed obliquely
against the middle of the door from the inside, so as to form an angle
of from 60° to 75° with the ground. He then places the second piece
horizontally across the first, pressing it downward with all his might.
It is kept in place by two strong posts planted in the ground a few
inches inside the door. This fastening is absolutely safe, but of course
cannot be applied to both doors at once, otherwise how could the
owner leave or enter his house? I have not yet succeeded in finding
out how the back door is fastened.
MAKONDE LOCK AND KEY AT JUMBE CHAURO

This is the general way of closing a house. The Makonde at Jumbe
Chauro, however, have a much more complicated, solid and original
one. Here, too, the door is as already described, except that there is
only one post on the inside, standing by itself about six inches from
one side of the doorway. Opposite this post is a hole in the wall just
large enough to admit a man’s arm. The door is closed inside by a
large wooden bolt passing through a hole in this post and pressing
with its free end against the door. The other end has three holes into
which fit three pegs running in vertical grooves inside the post. The
door is opened with a wooden key about a foot long, somewhat
curved and sloped off at the butt; the other end has three pegs
corresponding to the holes, in the bolt, so that, when it is thrust
through the hole in the wall and inserted into the rectangular
opening in the post, the pegs can be lifted and the bolt drawn out.[50]
MODE OF INSERTING THE KEY
With no small pride first one householder and then a second

showed me on the spot the action of this greatest invention of the
Makonde Highlands. To both with an admiring exclamation of
“Vizuri sana!” (“Very fine!”). I expressed the wish to take back these
marvels with me to Ulaya, to show the Wazungu what clever fellows
the Makonde are. Scarcely five minutes after my return to camp at
Newala, the two men came up sweating under the weight of two
heavy logs which they laid down at my feet, handing over at the same
time the keys of the fallen fortress. Arguing, logically enough, that if
the key was wanted, the lock would be wanted with it, they had taken
their axes and chopped down the posts—as it never occurred to them
to dig them out of the ground and so bring them intact. Thus I have
two badly damaged specimens, and the owners, instead of praise,
come in for a blowing-up.
The Makua huts in the environs of Newala are especially
miserable; their more than slovenly construction reminds one of the
temporary erections of the Makua at Hatia’s, though the people here
have not been concerned in a war. It must therefore be due to
congenital idleness, or else to the absence of a powerful chief. Even
the baraza at Mlipa’s, a short hour’s walk south-east of Newala,
shares in this general neglect. While public buildings in this country
are usually looked after more or less carefully, this is in evident
danger of being blown over by the first strong easterly gale. The only
attractive object in this whole district is the grave of the late chief
Mlipa. I visited it in the morning, while the sun was still trying with
partial success to break through the rolling mists, and the circular
grove of tall euphorbias, which, with a broken pot, is all that marks
the old king’s resting-place, impressed one with a touch of pathos.
Even my very materially-minded carriers seemed to feel something
of the sort, for instead of their usual ribald songs, they chanted
solemnly, as we marched on through the dense green of the Makonde
bush:—
“We shall arrive with the great master; we stand in a row and have
no fear about getting our food and our money from the Serkali (the
Government). We are not afraid; we are going along with the great
master, the lion; we are going down to the coast and back.”
With regard to the characteristic features of the various tribes here
on the western edge of the plateau, I can arrive at no other
conclusion than the one already come to in the plain, viz., that it is
impossible for anyone but a trained anthropologist to assign any
given individual at once to his proper tribe. In fact, I think that even
an anthropological specialist, after the most careful examination,
might find it a difficult task to decide. The whole congeries of peoples
collected in the region bounded on the west by the great Central
African rift, Tanganyika and Nyasa, and on the east by the Indian
Ocean, are closely related to each other—some of their languages are
only distinguished from one another as dialects of the same speech,
and no doubt all the tribes present the same shape of skull and
structure of skeleton. Thus, surely, there can be no very striking
differences in outward appearance.
Even did such exist, I should have no time
to concern myself with them, for day after day,
I have to see or hear, as the case may be—in
any case to grasp and record—an
extraordinary number of ethnographic
phenomena. I am almost disposed to think it
fortunate that some departments of inquiry, at
least, are barred by external circumstances.
Chief among these is the subject of iron-
working. We are apt to think of Africa as a
country where iron ore is everywhere, so to
speak, to be picked up by the roadside, and
where it would be quite surprising if the
inhabitants had not learnt to smelt the
material ready to their hand. In fact, the
knowledge of this art ranges all over the
continent, from the Kabyles in the north to the
Kafirs in the south. Here between the Rovuma
and the Lukuledi the conditions are not so
favourable. According to the statements of the
Makonde, neither ironstone nor any other
form of iron ore is known to them. They have
not therefore advanced to the art of smelting
the metal, but have hitherto bought all their
THE ANCESTRESS OF
THE MAKONDE
iron implements from neighbouring tribes.
Even in the plain the inhabitants are not much
better off. Only one man now living is said to
understand the art of smelting iron. This old fundi lives close to
Huwe, that isolated, steep-sided block of granite which rises out of
the green solitude between Masasi and Chingulungulu, and whose
jagged and splintered top meets the traveller’s eye everywhere. While
still at Masasi I wished to see this man at work, but was told that,
frightened by the rising, he had retired across the Rovuma, though
he would soon return. All subsequent inquiries as to whether the
fundi had come back met with the genuine African answer, “Bado”
(“Not yet”).
BRAZIER
Some consolation was afforded me by a brassfounder, whom I

came across in the bush near Akundonde’s. This man is the favourite
of women, and therefore no doubt of the gods; he welds the glittering
brass rods purchased at the coast into those massive, heavy rings
which, on the wrists and ankles of the local fair ones, continually give
me fresh food for admiration. Like every decent master-craftsman he
had all his tools with him, consisting of a pair of bellows, three
crucibles and a hammer—nothing more, apparently. He was quite
willing to show his skill, and in a twinkling had fixed his bellows on
the ground. They are simply two goat-skins, taken off whole, the four
legs being closed by knots, while the upper opening, intended to
admit the air, is kept stretched by two pieces of wood. At the lower
end of the skin a smaller opening is left into which a wooden tube is
stuck. The fundi has quickly borrowed a heap of wood-embers from
the nearest hut; he then fixes the free ends of the two tubes into an
earthen pipe, and clamps them to the ground by means of a bent
piece of wood. Now he fills one of his small clay crucibles, the dross
on which shows that they have been long in use, with the yellow
material, places it in the midst of the embers, which, at present are
only faintly glimmering, and begins his work. In quick alternation
the smith’s two hands move up and down with the open ends of the
bellows; as he raises his hand he holds the slit wide open, so as to let
the air enter the skin bag unhindered. In pressing it down he closes
the bag, and the air puffs through the bamboo tube and clay pipe into
the fire, which quickly burns up. The smith, however, does not keep
on with this work, but beckons to another man, who relieves him at
the bellows, while he takes some more tools out of a large skin pouch
carried on his back. I look on in wonder as, with a smooth round
stick about the thickness of a finger, he bores a few vertical holes into
the clean sand of the soil. This should not be difficult, yet the man
seems to be taking great pains over it. Then he fastens down to the
ground, with a couple of wooden clamps, a neat little trough made by
splitting a joint of bamboo in half, so that the ends are closed by the
two knots. At last the yellow metal has attained the right consistency,
and the fundi lifts the crucible from the fire by means of two sticks
split at the end to serve as tongs. A short swift turn to the left—a
tilting of the crucible—and the molten brass, hissing and giving forth
clouds of smoke, flows first into the bamboo mould and then into the
holes in the ground.
The technique of this backwoods craftsman may not be very far
advanced, but it cannot be denied that he knows how to obtain an
adequate result by the simplest means. The ladies of highest rank in
this country—that is to say, those who can afford it, wear two kinds
of these massive brass rings, one cylindrical, the other semicircular
in section. The latter are cast in the most ingenious way in the
bamboo mould, the former in the circular hole in the sand. It is quite
a simple matter for the fundi to fit these bars to the limbs of his fair
customers; with a few light strokes of his hammer he bends the
pliable brass round arm or ankle without further inconvenience to
the wearer.
SHAPING THE POT
SMOOTHING WITH MAIZE-COB
CUTTING THE EDGE

FINISHING THE BOTTOM
LAST SMOOTHING BEFORE

BURNING
FIRING THE BRUSH-PILE

LIGHTING THE FARTHER SIDE OF
THE PILE
TURNING THE RED-HOT VESSEL
NYASA WOMAN MAKING POTS AT MASASI

Pottery is an art which must always and everywhere excite the
interest of the student, just because it is so intimately connected with
the development of human culture, and because its relics are one of
the principal factors in the reconstruction of our own condition in
prehistoric times. I shall always remember with pleasure the two or
three afternoons at Masasi when Salim Matola’s mother, a slightly-
built, graceful, pleasant-looking woman, explained to me with
touching patience, by means of concrete illustrations, the ceramic art
of her people. The only implements for this primitive process were a
lump of clay in her left hand, and in the right a calabash containing
the following valuables: the fragment of a maize-cob stripped of all
its grains, a smooth, oval pebble, about the size of a pigeon’s egg, a
few chips of gourd-shell, a bamboo splinter about the length of one’s
hand, a small shell, and a bunch of some herb resembling spinach.
Nothing more. The woman scraped with the
shell a round, shallow hole in the soft, fine
sand of the soil, and, when an active young
girl had filled the calabash with water for her,
she began to knead the clay. As if by magic it
gradually assumed the shape of a rough but
already well-shaped vessel, which only wanted
a little touching up with the instruments
before mentioned. I looked out with the
MAKUA WOMAN closest attention for any indication of the use
MAKING A POT. of the potter’s wheel, in however rudimentary
SHOWS THE a form, but no—hapana (there is none). The
BEGINNINGS OF THE embryo pot stood firmly in its little
POTTER’S WHEEL
depression, and the woman walked round it in
a stooping posture, whether she was removing
small stones or similar foreign bodies with the maize-cob, smoothing
the inner or outer surface with the splinter of bamboo, or later, after
letting it dry for a day, pricking in the ornamentation with a pointed
bit of gourd-shell, or working out the bottom, or cutting the edge
with a sharp bamboo knife, or giving the last touches to the finished
vessel. This occupation of the women is infinitely toilsome, but it is
without doubt an accurate reproduction of the process in use among
our ancestors of the Neolithic and Bronze ages.
There is no doubt that the invention of pottery, an item in human
progress whose importance cannot be over-estimated, is due to
women. Rough, coarse and unfeeling, the men of the horde range
over the countryside. When the united cunning of the hunters has
succeeded in killing the game; not one of them thinks of carrying
home the spoil. A bright fire, kindled by a vigorous wielding of the
drill, is crackling beside them; the animal has been cleaned and cut
up secundum artem, and, after a slight singeing, will soon disappear
under their sharp teeth; no one all this time giving a single thought
to wife or child.
To what shifts, on the other hand, the primitive wife, and still more
the primitive mother, was put! Not even prehistoric stomachs could
endure an unvarying diet of raw food. Something or other suggested
the beneficial effect of hot water on the majority of approved but
indigestible dishes. Perhaps a neighbour had tried holding the hard
roots or tubers over the fire in a calabash filled with water—or maybe
an ostrich-egg-shell, or a hastily improvised vessel of bark. They
became much softer and more palatable than they had previously
been; but, unfortunately, the vessel could not stand the fire and got
charred on the outside. That can be remedied, thought our
ancestress, and plastered a layer of wet clay round a similar vessel.
This is an improvement; the cooking utensil remains uninjured, but
the heat of the fire has shrunk it, so that it is loose in its shell. The
next step is to detach it, so, with a firm grip and a jerk, shell and
kernel are separated, and pottery is invented. Perhaps, however, the
discovery which led to an intelligent use of the burnt-clay shell, was
made in a slightly different way. Ostrich-eggs and calabashes are not
to be found in every part of the world, but everywhere mankind has
arrived at the art of making baskets out of pliant materials, such as
bark, bast, strips of palm-leaf, supple twigs, etc. Our inventor has no
water-tight vessel provided by nature. “Never mind, let us line the
basket with clay.” This answers the purpose, but alas! the basket gets
burnt over the blazing fire, the woman watches the process of
cooking with increasing uneasiness, fearing a leak, but no leak
appears. The food, done to a turn, is eaten with peculiar relish; and
the cooking-vessel is examined, half in curiosity, half in satisfaction
at the result. The plastic clay is now hard as stone, and at the same
time looks exceedingly well, for the neat plaiting of the burnt basket
is traced all over it in a pretty pattern. Thus, simultaneously with
pottery, its ornamentation was invented.
Primitive woman has another claim to respect. It was the man,
roving abroad, who invented the art of producing fire at will, but the
woman, unable to imitate him in this, has been a Vestal from the
earliest times. Nothing gives so much trouble as the keeping alight of
the smouldering brand, and, above all, when all the men are absent
from the camp. Heavy rain-clouds gather, already the first large
drops are falling, the first gusts of the storm rage over the plain. The
little flame, a greater anxiety to the woman than her own children,
flickers unsteadily in the blast. What is to be done? A sudden thought
occurs to her, and in an instant she has constructed a primitive hut
out of strips of bark, to protect the flame against rain and wind.
This, or something very like it, was the way in which the principle
of the house was discovered; and even the most hardened misogynist
cannot fairly refuse a woman the credit of it. The protection of the
hearth-fire from the weather is the germ from which the human
dwelling was evolved. Men had little, if any share, in this forward
step, and that only at a late stage. Even at the present day, the
plastering of the housewall with clay and the manufacture of pottery
are exclusively the women’s business. These are two very significant
survivals. Our European kitchen-garden, too, is originally a woman’s
invention, and the hoe, the primitive instrument of agriculture, is,
characteristically enough, still used in this department. But the
noblest achievement which we owe to the other sex is unquestionably
the art of cookery. Roasting alone—the oldest process—is one for
which men took the hint (a very obvious one) from nature. It must
have been suggested by the scorched carcase of some animal
overtaken by the destructive forest-fires. But boiling—the process of
improving organic substances by the help of water heated to boiling-
point—is a much later discovery. It is so recent that it has not even
yet penetrated to all parts of the world. The Polynesians understand
how to steam food, that is, to cook it, neatly wrapped in leaves, in a
hole in the earth between hot stones, the air being excluded, and
(sometimes) a few drops of water sprinkled on the stones; but they
do not understand boiling.
To come back from this digression, we find that the slender Nyasa
woman has, after once more carefully examining the finished pot,
put it aside in the shade to dry. On the following day she sends me
word by her son, Salim Matola, who is always on hand, that she is
going to do the burning, and, on coming out of my house, I find her
already hard at work. She has spread on the ground a layer of very
dry sticks, about as thick as one’s thumb, has laid the pot (now of a
yellowish-grey colour) on them, and is piling brushwood round it.
My faithful Pesa mbili, the mnyampara, who has been standing by,
most obligingly, with a lighted stick, now hands it to her. Both of
them, blowing steadily, light the pile on the lee side, and, when the
flame begins to catch, on the weather side also. Soon the whole is in a
blaze, but the dry fuel is quickly consumed and the fire dies down, so
that we see the red-hot vessel rising from the ashes. The woman
turns it continually with a long stick, sometimes one way and
sometimes another, so that it may be evenly heated all over. In
twenty minutes she rolls it out of the ash-heap, takes up the bundle
of spinach, which has been lying for two days in a jar of water, and
sprinkles the red-hot clay with it. The places where the drops fall are
marked by black spots on the uniform reddish-brown surface. With a
sigh of relief, and with visible satisfaction, the woman rises to an
erect position; she is standing just in a line between me and the fire,
from which a cloud of smoke is just rising: I press the ball of my
camera, the shutter clicks—the apotheosis is achieved! Like a
priestess, representative of her inventive sex, the graceful woman
stands: at her feet the hearth-fire she has given us beside her the
invention she has devised for us, in the background the home she has
built for us.
At Newala, also, I have had the manufacture of pottery carried on
in my presence. Technically the process is better than that already
described, for here we find the beginnings of the potter’s wheel,
which does not seem to exist in the plains; at least I have seen
nothing of the sort. The artist, a frightfully stupid Makua woman, did
not make a depression in the ground to receive the pot she was about
to shape, but used instead a large potsherd. Otherwise, she went to
work in much the same way as Salim’s mother, except that she saved
herself the trouble of walking round and round her work by squatting
at her ease and letting the pot and potsherd rotate round her; this is
surely the first step towards a machine. But it does not follow that
the pot was improved by the process. It is true that it was beautifully
rounded and presented a very creditable appearance when finished,
but the numerous large and small vessels which I have seen, and, in
part, collected, in the “less advanced” districts, are no less so. We
moderns imagine that instruments of precision are necessary to
produce excellent results. Go to the prehistoric collections of our
museums and look at the pots, urns and bowls of our ancestors in the
dim ages of the past, and you will at once perceive your error.
MAKING LONGITUDINAL CUT IN
BARK
DRAWING THE BARK OFF THE LOG
REMOVING THE OUTER BARK

BEATING THE BARK
WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

SOFT
MANUFACTURE OF BARK-CLOTH AT NEWALA

To-day, nearly the whole population of German East Africa is
clothed in imported calico. This was not always the case; even now in
some parts of the north dressed skins are still the prevailing wear,
and in the north-western districts—east and north of Lake
Tanganyika—lies a zone where bark-cloth has not yet been
superseded. Probably not many generations have passed since such
bark fabrics and kilts of skins were the only clothing even in the
south. Even to-day, large quantities of this bright-red or drab
material are still to be found; but if we wish to see it, we must look in
the granaries and on the drying stages inside the native huts, where
it serves less ambitious uses as wrappings for those seeds and fruits
which require to be packed with special care. The salt produced at
Masasi, too, is packed for transport to a distance in large sheets of
bark-cloth. Wherever I found it in any degree possible, I studied the
process of making this cloth. The native requisitioned for the
purpose arrived, carrying a log between two and three yards long and
as thick as his thigh, and nothing else except a curiously-shaped
mallet and the usual long, sharp and pointed knife which all men and
boys wear in a belt at their backs without a sheath—horribile dictu!
[51]
Silently he squats down before me, and with two rapid cuts has
drawn a couple of circles round the log some two yards apart, and
slits the bark lengthwise between them with the point of his knife.
With evident care, he then scrapes off the outer rind all round the
log, so that in a quarter of an hour the inner red layer of the bark
shows up brightly-coloured between the two untouched ends. With
some trouble and much caution, he now loosens the bark at one end,
and opens the cylinder. He then stands up, takes hold of the free
edge with both hands, and turning it inside out, slowly but steadily
pulls it off in one piece. Now comes the troublesome work of
scraping all superfluous particles of outer bark from the outside of
the long, narrow piece of material, while the inner side is carefully
scrutinised for defective spots. At last it is ready for beating. Having
signalled to a friend, who immediately places a bowl of water beside
him, the artificer damps his sheet of bark all over, seizes his mallet,
lays one end of the stuff on the smoothest spot of the log, and
hammers away slowly but continuously. “Very simple!” I think to
myself. “Why, I could do that, too!”—but I am forced to change my
opinions a little later on; for the beating is quite an art, if the fabric is
not to be beaten to pieces. To prevent the breaking of the fibres, the
stuff is several times folded across, so as to interpose several
thicknesses between the mallet and the block. At last the required
state is reached, and the fundi seizes the sheet, still folded, by both
ends, and wrings it out, or calls an assistant to take one end while he
holds the other. The cloth produced in this way is not nearly so fine
and uniform in texture as the famous Uganda bark-cloth, but it is
quite soft, and, above all, cheap.
Now, too, I examine the mallet. My craftsman has been using the
simpler but better form of this implement, a conical block of some
hard wood, its base—the striking surface—being scored across and
across with more or less deeply-cut grooves, and the handle stuck
into a hole in the middle. The other and earlier form of mallet is
shaped in the same way, but the head is fastened by an ingenious
network of bark strips into the split bamboo serving as a handle. The
observation so often made, that ancient customs persist longest in
connection with religious ceremonies and in the life of children, here
finds confirmation. As we shall soon see, bark-cloth is still worn
during the unyago,[52] having been prepared with special solemn
ceremonies; and many a mother, if she has no other garment handy,
will still put her little one into a kilt of bark-cloth, which, after all,
looks better, besides being more in keeping with its African
surroundings, than the ridiculous bit of print from Ulaya.
MAKUA WOMEN

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School Law and The Public Schools A Practical Guide For Educational Leaders The Pearson Educational Leadership Series 6th Edition Ebook PDF

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School Law and the Public Schools: A

Practical Guide for Educational Leaders

Chapter 1 Legal Framework Affecting Public Schools 1

Chapter 2 Religion and the Public Schools 16

Silent Prayer and Meditation 20

Chapter 3 Student Rights and Restrictions 53

Chapter 4 National Security and School Safety 101

Chapter 5 Individuals with Disabilities 125

Individualized Educational Program Requirement 132

Chapter 6 School Personnel and School District Liability 156

School Liability and Use of Technology by Students 161

Chapter 7 Liability and Student Records 188

Chapter 8 Teacher Freedoms 203

Religious Discrimination in Public Schools 217

Chapter 9 Discrimination in Employment 223

Chapter 10 Recruitment, Tenure, Dismissal, and Due Process 247

Chapter 11 The Instructional Program and School

No Child Left Behind Act of 2001 294

Chapter 12 School Desegregation 315

Remedial Altering of Attendance Zones 318

Chapter 13 Public School Finance 330

Appendix The Constitution of the United States and Selected

Glossary of Relevant Legal Terms 343

Case Index 347

Subject Index 352

New to This Edition

• Procedures for Evaluating Threats

• Documentation of Teacher Performance

I would also like to express my appreciation to my wife, Lorene, and my children,

Legal Framework Affecting

Bill of Rights and the Fourteenth Amendment

The Federal Constitution

Court or Case Law

Researching Case Law

New Jersey v. TLO

Local School Boards

The U.S. System of Courts

TABLE 1.1 Jurisdiction of Federal Circuit Courts of Appeal

FIGURE 1.1 U.S. Courts: The Federal Judiciary

FIGURE 1.2 Case Progression Through the Court System

FIGURE 1.3 Trial Progression

Analysis of an Appellate Court Opinion

Ruling and Justification

The U.S. Supreme Court

Newala, too, suffers from the distance of its water-supply—at least

The water-supply of New Newala is in the bottom of the valley,

NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAKONDE LOCK AND KEY AT JUMBE CHAURO

MODE OF INSERTING THE KEY

With no small pride first one householder and then a second

Some consolation was afforded me by a brassfounder, whom I

SMOOTHING WITH MAIZE-COB

CUTTING THE EDGE

LAST SMOOTHING BEFORE

FIRING THE BRUSH-PILE

TURNING THE RED-HOT VESSEL

NYASA WOMAN MAKING POTS AT MASASI

DRAWING THE BARK OFF THE LOG

REMOVING THE OUTER BARK

WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

MANUFACTURE OF BARK-CLOTH AT NEWALA

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