In this chapter, we review the roles and responsibilities of teachers in today’s public schools as they relate to ethical and legal issues in education. We explore ethical teaching, along with legal parameters, established through case law and set up in the U.S. Constitution and its amendments. Rights for both teachers and students are examined, and current implications are discussed.

Ethics in Education

When you think of your favorite teacher, it is not often that you consider whether he or she was ethical. Yet professional ethics and dispositions, as well as the legal responsibilities of teachers, are central in defining how students view their favorite teacher. Ethics provides a foundation for what teachers should do in their roles and responsibilities as an educator. It is a framework that a teacher can use to help make decisions about what is right or wrong in a given situation.

​What is a Code of Ethics?

Most professions have a Code of Ethics that binds its members together through shared values and purpose. This professional Code of Ethics is a widely accepted standard of practice that outlines the accountability of its members to those they serve as well as to the profession itself (Benninga, 2013).

For educators, this shared Code of Ethics is outlined by various educational organizations, as shown in Table 5.1.

Table 5.1:  Varying Codes of Ethics in Educational Organizations

Educational Organization	Code of Ethics
National Educational Association (NEA) http://www.nea.org/	The educator recognizes the magnitude of the responsibility inherent in the teaching process. The desire for the respect and confidence of one’s colleagues, of students, of parents, and of the members of the community provides the incentive to attain and maintain the highest possible degree of ethical conduct (NEA, Code of Ethics, 2019).
Association of American Educators (AAE) https://www.aaeteachers.org	The professional educator endeavors to maintain the dignity of the profession by respecting and obeying the law, and by demonstrating personal integrity (AAE, Code of Ethics, Principle II, 2019).
The Interstate New Teacher Assessment and Support Consortium (InTASC) https://ccsso.org/ Standard 3, Learning Environments Standard 9, Professional Learning and Ethical Practice	The teacher works with others to create environments that support individual and collaborative learning, and that encourage positive social interaction, active engagement in learning, and self-motivation (CCSSO, InTASC Standard #3, 2013). The teacher engages in ongoing professional learning and uses evidence to continually evaluate their practice, particularly the effects of their choices and actions on others (learners, families, other professionals, and the community), and adapts practice to meet the needs of each learner (CCSSO, InTASC Standard #9, 2013).

Each of the statements on ethics from these teacher professional organizations complements the others, outlining expected behaviors and dispositions, identifying professional intent, and solidifying commitments that are expected from educators in their roles representing public schools throughout the state and nation.

Let’s see how a Code of Ethics could impact the scenario that opened this chapter. Recall that the high school English teacher wanted to include a controversial book on his reading list for the school year that has been banned from use. He believes this book will provide a rich experience for his students and provide stimulating class discussion and debate around identity and race. In determining whether or not to incorporate the text, the teacher must ask himself if he is truly presenting different points of view. In so doing, the teacher is adhering to the National Education Association (NEA) Code of Ethics, specifically Principle I, Item 2:

Principle I: Commitment to the Student

The educator strives to help each student realize his or her potential as a worthy and effective member of society. The educator therefore works to stimulate the spirit of inquiry, the acquisition of knowledge and understanding, and the thoughtful formulation of worthy goals.

Item 2:

In fulfillment of the obligation to the student, the educator shall not unreasonably deny the student access to varying points of view (National Education Association, 2019, para. 8).

With this Code of Ethics in mind, this teacher could argue that reading this book stimulates the spirit of inquiry and knowledge acquisition, and not reading the book would unreasonably deny the students access to varying points of view.

Code of Ethics in Action

As you consider the following scenario, think about the ethical dilemmas that are present and the ethical decisions that this teacher must make. Consider how each decision that this teacher makes impacts the functioning of the school, the well-being of the students, and the personal goals of the teacher in pursuit of the profession of teaching and supporting student learning. (Note: If you are using a downloaded version of this text and cannot load the interactive activity below, please turn to Appendix A to participate.)

As you gathered from this activity, there is not always one right “answer” to any given situation. A Code of Ethics provides moral standards to help guide your decision making and teaching practice. It helps with what you should do. It does not provide specific directions on what to do or even how to do it.

In the above scenario, the teacher is questioning her beliefs about academic integrity and whether the repercussions of reporting the act of cheating will cause this student unreasonable harm. The NEA Code of Ethics under Principle I, Item 4 states that part of a teacher’s responsibility is to make a reasonable effort to protect the student from conditions that could be harmful to learning (National Education Association, 2019, para. 10).

Depending on the teacher’s interpretation, she might believe that she should not report the student for cheating because it would impact his grade point average and cause more stress for his mother. Another teacher might interpret this situation differently, believing instead that this student would be harmed if she were to ignore the transgression by not being held accountable and not having an opportunity to learn an important lesson about cheating.

Ethical decisions take place every day in our classrooms. Oftentimes, you may believe that treating students equally is an ethical approach. But if you go into a classroom, you may notice a teacher calling on a shy student and not calling on another student who usually dominates the discussion. Is this equal? The teacher is clearly treating the two students differently. This is what we refer to in education as good teaching practice. The NEA Code of Ethics guides your teaching behaviors by placing your students central to your practice. Always consider that you must treat all students equitably, not necessarily equally.

A professional Code of Ethics governs a teacher’s relationships, roles, conduct, interactions, and communication with students, as well as families, administrators and the larger community. It provides educators with a way to regulate personal conduct and ethical decision making. It does not tell a teacher why he or she should do something. Having an informed awareness of statutes, laws, and other legal influences will assist you in defining your role as an ethical teacher who is also fair and responsible.

 

The U.S. Constitution and the 1st and 14th Amendments

Significant, ground-breaking court cases have influenced the practice of public schools throughout history and many have come from the U.S. Supreme Court. The majority of these cases focus on the First and Fourteenth Amendments.

The First Amendment addresses the freedom of speech, religion, press, and the right to petition the government, and assemble peaceably (U.S. Constitution, First Amendment).

It states:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

-First Amendment of the U.S. Constitution ratified in 1791

Courts have been called to answer questions about the freedoms outlined in the First Amendment as they relate to teachers and students (American Library Association, 2006). From wearing religious or political symbols to speaking profanity at a school assembly, the consequence of dismissal or suspension has been petitioned to the courts questioning the reasonableness or fairness of the accusation or offense.

For the first time in U.S. history in Bartels v. Iowa (1923), the Supreme Court affirmed that a teacher has First Amendment rights and provided teachers a degree of protection for in-class curricular speech. In Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico (1982), the Supreme Court found that the school board could not restrict certain books in the school system’s libraries because school board members disagreed with the content. This was found to be a violation of the First Amendment and our protection with regards to freedom of speech.

These rulings have come into conflict over the years due to school systems also having the right to set the curriculum. This school system precedent was upheld in Krizek v. Board of Education (1989) when a non-tenured English teacher showed an “R”-rated film to high school students and her contract was not renewed. The district court found that the teacher’s First Amendment rights were not violated, rather the school board acted reasonably in determining that the film was inappropriate. (We’ll discuss tenure in more depth later in this chapter.)

The Fourteenth Amendment of the U.S. Constitution guarantees equal opportunity for due process and equal protection to all who live within the jurisdiction of the United States. This amendment was ratified in 1868 and written specifically to protect the rights of recently freed enslaved people.

Ensuring that this opportunity applies to all persons, it reads:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 jurisdiction the equal protection of the laws.

–Fourteenth Amendment of the U.S. Constitution ratified in 1868, Section 1

The Fourteenth Amendment provides a guarantee that a state cannot take away constitutional rights or privileges as identified in the U.S. Constitution (National Constitution Center, 2020). It has three primary clauses:

• Citizenship Clause, which grants citizenship to those born or naturalized in the United States;
• Due Process Clause, which affirms that states may not deny any person “life liberty, or property, without due process of law”; and
• Equal Protection Clause, which establishes that states may not “deny to any person within its jurisdiction the equal protection of the laws”.

Both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment significantly impact education. The Equal Protection Clause is examined throughout this chapter as it relates to foundational legal cases, racial issues, and LGBTQ+ rights and discrimination. Next, we will consider how the Due Process Clause affects educators and students.

Due Process

For educators and students, due process requires considering whether a constitutional right has been infringed upon, and then affords the accused student, teacher, school district or state the right to a fair and impartial trial. If an individual believes an action is unfair or unjust, the Due Process Clause of the Fourteenth Amendment allows the accused to have an unbiased trial or hearing.

All members of the school community have the right to due process with the purpose of providing a fair trial. The central premise of due process is fairness. A school district can be sued if it is believed that it was unfair or unreasonable. This legal argument can be brought by a teacher, student, parent, or community member. Anyone who believes that they were unfairly or unreasonably impacted by a policy or procedure of the school can bring a legal case against the school.

In the Supreme Court case Hortonville Independent School District No. 1 v. Hortonville Education Association (1976), the Justices ruled that the school board was able to deliver due process in a reasonable manner when it fired teachers who went on strike after contract negotiations failed. The teachers were asked to return to work but refused. They were then terminated. The teachers argued that their dismissal violated their due process and should be reviewed by an impartial decision maker. The court did not agree, citing instead that the school board was viewed as the impartial decision maker, and they did not need to be independent from the issue.

Foundational Legal Cases

Throughout U.S. history, there have been many notable court cases heard by the Supreme Court related to public education in the United States (National Constitution Center, 2015). Select foundational legal cases are highlighted in Table 5.2.

Table 5.2:  Examples of Foundational Legal Cases in Education

Case	Decision
Plessy v. Ferguson (1896)	Racial segregation was upheld, allowing states to segregate schools under the “separate but equal” doctrine: equal but separate accommodations did not violate the Equal Protection Clause of the Fourteenth Amendment.
Brown v. Board of Education (1954)	This landmark Supreme Court case overturned Plessy v. Ferguson (1896) and addressed segregation of public schools on the basis of race. African American students who were denied admittance to public schools argued that the Equal Protection Clause of the Fourteenth Amendment was violated. The Justices agreed stating that “separate but equal educational facilities for racial minorities is inherently unequal”.
San Antonio Independent School District v. Rodriguez (1973)	The Justices ruled that education is not afforded protection under the Constitution. The Supreme Court also held that a school district is responsible for providing only a “minimum educational threshold” for students within their jurisdiction, as defined by the state, and which adheres to federal law.
Plyler v. Doe (1982)	The Supreme Court held that education is not a “fundamental right” because it is not mentioned in the U.S. Constitution nor the Bill of Rights, but reinforced that public education does have “a pivotal role in maintaining the fabric of… society and in sustaining … political and cultural heritage” of society. The Justices then went on to state that, “deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological wellbeing of the individual, and poses an obstacle to individual achievement” and because of this a public education system cannot “deny to any person within its jurisdiction the equal protection of the laws”. This ruling underscored the importance of public schools throughout the United States and held that all children within a state’s jurisdiction, whether legal or illegal, have the right to a public education, if a public education is provided by the state.

Schools in the United States accept responsibility for children as they enter through their doors, and teachers have responsibilities that relate to educating students as well as providing physical, social, and emotional safety to all children, beyond teaching the required curriculum. Because of the diverse nature of schools, the U.S. court system helps to balance teachers’ and students’ responsibilities and rights.

Legal arguments can be heard in state or federal courts depending on the allegations from the plaintiff, the person or entity that has a complaint. Before hearing a case related to education, state policies prefer that the plaintiff follow procedures set forth by the local school board. The issue is discussed in the school and if not settled equitably, it is then taken to the school board for an impartial hearing.

If the decision is not agreed upon, the complaint can be taken to the school superintendent for review. If the accused is still not satisfied with the decision issued, they can take their complaint to the state board of education or state superintendent. In addition, at any time the complaint can be taken to the lower court in the jurisdiction of the school. A teacher or a student can also take their complaint to the U.S. Department of Education’s Office of Civil Rights (OCR) which investigates the complaint to determine if a civil rights law has been violated (U.S. Department of Education, 2020c).

State Oversight

States have a responsibility to provide a minimum public education to each child in their respective jurisdiction. Thus, each state has a compulsory attendance statute, which is a law requiring children to attend school based on specific age ranges. For example, in Virginia, students are required to attend school between the ages of 5 and 18 (Compulsory Attendance, 2020).

Each state must follow its respective State Constitution as well as the U.S. Constitution when defining the role and responsibilities of public schools within their state. Although education is a responsibility of the state, school districts have authority over their individual schools as it relates to curriculum and discipline. Rights are afforded to teachers in normal day-to-day functioning and when appealing grievances as it relates to such things as contracts, policies, denial of tenure, or suspension. Students must also adhere to this authority, unless it overrides a student’s constitutional rights.

States provide a wide range of oversight. They identify the minimum licensure requirements for educators. States also dictate what educators must do within that state to maintain their teaching license. State laws provide guidelines regarding how schools are organized based on funding. The legislature and Governor of each state allocate a certain amount of funding to school districts throughout their state. School districts then decide how those funds are spent. State legislatures and courts have intervened to help reduce funding disparities among poorer and wealthier school districts to better ensure that all students have equal access to education. States also create a state board of education, set-up school districts throughout the state, and establish school boards for each district. State laws also help to define student discipline and due process policies.

Examples of state involvement within public schools include:

• Creating school districts
• Allocating a budget to school districts
• Regulating schools throughout those districts
• Establishing the organizational structure for schools
• Defining policies and functions of the school
• Setting minimum curriculum requirements for schools
• Defining licensure requirements for educators, and
• Determining working conditions (National Conference of State Legislatures, 2020).

Within a state, courts serve a certain geographical area or jurisdiction. When a state court makes a decision, it does not necessarily become state law. It is also important to note that with multiple decisions being made in multiple courts across a state, decisions will sometimes conflict between the different lower circuit courts. As such, judges tend to review case law from previous cases to find precedents that align to their interpretation of the law when making a ruling on a specific case.

Laws influence the functioning of public schools in the United States. This includes the role and responsibilities of teachers and students and the policies and procedures outlined in the teacher and student handbooks as it relates to schooling. Because state courts are different and each follow their own State Constitution, there tends to be a multitude of state laws to choose from on an issue or topic when making a ruling. Only the federal Supreme Court opinion influences national statutory precedent.

Cases in State courts: Involve state laws Concern school board policies Are impacted by the State Constitution

Cases in Federal courts: Involve federal laws Deal with national regulations Concern U.S. Constitutional issues

Neither the state nor the school district’s power is unlimited. The judicial system provides the necessary checks and balances. Because of this balance of power, a school has limits on its control, operations, and functioning. It must also provide evidence of effectiveness and document adherence to state and federal laws.

Rights of Teachers

As a teacher, you have certain protected rights related to your legal employment, membership in unions and other professional organizations, academic freedom, freedom of speech and expression, liability, privacy, and religion. It is important to be aware of the rights you do have, as well as the limits of your legal protection.

Teaching License, Contract, and Tenure

As discussed in Chapter 1, the first step in becoming a legally-recognized teacher is to earn a teaching license. Each state has different requirements for earning a teaching license, as they define the specific dispositions, knowledge, and skills needed to obtain and maintain employment within a school in that state. If you choose to complete an educator preparation program (like an education major in college), you will be working toward fulfilling the requirements of a teaching license in the state where your institution is located. Many states have reciprocity with other states’ teaching licenses, meaning that you can earn a teaching license in one state and still go teach in another one, as long as you also complete the requirements for earning a teaching license in that new state. Oftentimes, reciprocity means getting a second teaching license is as simple as taking a test, or it may require a few additional classes or trainings. In most states, you will need a valid teaching license to teach in public schools; private schools may or may not require a teaching license, depending on the state.

Once a teacher applies for and receives a job at a school, they receive a teaching contract. A teaching contract is a written agreement between the school system and the teacher and serves as a legal document identifying the roles and responsibilities for the teaching position. If the school board negotiated with a teacher’s union, then the policies and regulations of the union will also be identified in the contract. The teaching contract must be signed by the teacher, school, and ratified by the school board to be binding. The teaching contract is binding unless it is breached, should either party fail to perform as agreed during the time frame specified in the teaching contract. Each state has a different definition of the types of teaching contracts that are presented to teachers within the state, but some traditional types of teaching contracts are explained in Table 5.3.

Table 5.3:  Comparison of Teaching Contracts

Type of Contract	Length of Contract	Description of Contract
Probationary or Provisional	Short (usually 1-2 years)	Issued early in a teacher’s career; may not carry tenure; may vary based on hours worked per day, amount of teaching experience, emergency need for teachers, etc.
Specified Term	Varies (usually 1-5 years)	After the specified term expires, the teacher must complete specified tasks (such as professional development) to apply for re-certification
Continuing or Tenured	Longer term; often lasts until a teacher resigns or retires	Typically offered after a teacher has met the probationary or provisional requirements; awarded once teachers have met specific criteria defined by the state and the local school district as necessary to continue employment

You may have heard of the word “tenure” in discussions about teaching contracts. Tenure protects teachers from arbitrary dismissal by school officials. Tenure derived from the Pendleton Civil Service Act of 1883, which was originally established as a merit system for government workers. Tenure rights for teachers in the United States date back to 1909, when the NEA lobbied for these rights. States define tenure laws for teachers in public schools, including elements like probationary periods and termination procedures. A school district can dismiss a tenured teacher for justifiable reasons such as noncompliance, immoral conduct, committing a crime, and insubordination. A teacher can also be dismissed for financial reasons, such as when a school district has a deficiency of funds.

Tenure does not guarantee a teacher a job for life, nor does it offer lifetime employment security (Hart, 2010). The focus of tenure is on supporting and protecting good teachers. It is an earned process that mandates due process. The benefits of a continuing contract or tenure are that a school must show cause in order to dismiss you because you, as the teacher, have due process rights. Advocates for tenure see its benefits for teachers in that it “significantly strengthens legal protections embodied in civil service, civil rights, and labor laws” and “protects a range of discriminatory firings not covered under race and gender antidiscrimination laws” (Kahlenberg, 2015, p. 7). In addition, teacher tenure has been shown to increase morale and overall teacher involvement within a school and collaboration among colleagues. Tenure affords teachers the ability to question and engage with school leadership as it relates to the functioning of a school and in building a strong school culture, which has been linked to increased academic achievement for students (Lee & Smith, 1996).

Presently, some states are changing their legislation as it relates to teacher tenure. The Every Student Succeeds Act (ESSA) and Race to the Top grants through the U.S. Department of Education both require states to evaluate student achievement and teacher effectiveness. Certain state legislatures view teacher tenure as a barrier to these initiatives because it is more difficult for school districts to dismiss tenured teachers for poor performance, and as a result, relatively few tenured teachers are fired (Goldhaber & Hansen, 2010). Therefore, some states have begun to change tenure laws to adhere to the accountability requirements stipulated by the U.S. Department of Education as it relates to teacher evaluation and student achievement. As a result, some tenure systems have been removed or revamped with annual contracts requiring satisfactory performance. Florida, Indiana, North Carolina, and Kansas have eliminated tenure completely (Underwood, 2018). Additional states are also currently contemplating limiting or removing tenure for teachers.

Unions and Participation in Professional Organizations

The National Education Association (NEA) and American Federation of Teachers (AFT) are two of the largest teacher labor unions and professional organizations in the United States at present. Both have been in existence for more than 100 years and support teachers, along with other school personnel. As unions, both organizations support their members with collective bargaining, whereby they work alongside teachers as they negotiate with their respective school districts to resolve disputes, as well as to lobby Congress for state and federal legislation that would impact educational related issues, including teacher rights and responsibilities.

You can join either organization, but since not all states recognize unions, the NEA or AFT may not be able to assist you with collective bargaining or school board negotiations, depending on your state of employment. Collective bargaining is illegal in Virginia, North Carolina, South Carolina, Georgia, Alabama, Texas, and Arizona. You may hear this referenced as a “right to work state,” which means that employees have a right to work without being forced to join a union. Even so, each professional organization provides support, a rich network of educators, and professional development around issues and opportunities that can be beneficial for your teaching practice.

It is not often that educators are permitted to strike because they are employed by the state and are considered vital to public service. Still, some teachers do strike regardless of state laws that may prevent them from striking, such as we saw in 2018 in West Virginia, Kentucky, and Oklahoma. When teachers go on strike, the impacted school board can obtain a court injunction to order teachers back to the school and teachers can lose pay for each day on strike. In many states, they can also be dismissed from their teaching positions for striking.

Academic Freedom

Many teachers consider academic freedom to be a constitutional freedom outlined by the First Amendment. Because a teacher is a state employee and has signed a legally binding teaching contract, the teacher has a legal obligation to adhere to the rules and regulations identified by the school board and the laws of the state and federal government. A teacher represents the school and cannot do whatever he or she wants in the classroom. Likewise, a teacher does not have complete freedom of speech to say whatever he or say wishes either. All teachers must follow guidelines represented in their teacher contract and the policies and procedures of the school board.

While the legal system has afforded teachers the right to select appropriate class materials, the educational purpose, the age and sophistication of students, and the context and length of time to complete assignments must all be considered. For example, if you wanted to teach the muscular system in human anatomy in your sixth grade science curriculum, but this content is not taught until tenth grade, you would not be able to change the curriculum framework set by the school district per your teaching contract.

If an activity aligns to your curriculum framework and you have followed the guidelines set forth by the school board, you could, for example, have a speaker come into your classroom to talk about an aspect of your curriculum or use an article published in the newspaper. This would not be in breach of your contract. As you prepare for class instruction, consider your assigned curriculum, review school policies, and ask your school principal or other mentor teachers for guidance.

Freedom of Speech and Expression

Freedom of expression for a teacher outside of the classroom has been challenged in the court system if it was felt that the speech or behavior was disruptive to the effectiveness or efficiency of a school. Because a teacher has a professional responsibility to their school, educators must be careful about what they say, both at school and outside of school.

In the Pickering v. Board of Education (1968) case, the Supreme Court reversed a lower court ruling and found that the teacher’s First Amendment right to free speech had been violated after he was dismissed by the school board for writing and publishing a letter in the local newspaper criticizing the board. The court held that teachers were able to voice concerns, even if those concerns were unfavorable to the school, as long as the regular school operations were not disrupted. In the case, the court’s opinion was that the plaintiff’s First Amendment rights to free speech were not lost because a school district believes the speech is not in its “best interest.” After this ruling, the teacher in this case was reinstated to his position.

This influential case regarding First Amendment rights and freedom of speech for public school teachers established precedent that public employees have the ability to speak out on issues of public concern, even as state or government employees. Even so, the rights of public employees continue to be challenged in the U.S. court system.

In Connick v. Myers (1983), the Supreme Court again reversed a lower court decision and ruled that speech of public employees is protected only when they speak on matters of public concern. The case results here showed that the rights of public service employees must be balanced between matters of public importance and an employer’s interest to maintain a disruptive free workplace.

Similar to freedom of speech, a teacher’s freedom of expression can also be called into question as it relates to personal presentation and dress. Court cases surrounding dress code requirements established by school boards and imposed on teachers in their local schools have established some legal precedent, but this also continues to be a hotly debated topic. As a public school teacher, can you exercise your own ‘personal liberty’ in how you dress?

In East Hartford Education Association v. Board of Education (1977), a public school teacher was reprimanded for failing to wear a necktie while teaching an English class. Joined by his teachers union, he sued the board of education on the basis that the admonishment for the dress code violated his rights to free speech and privacy. This case was heard in the U.S. Court of Appeals who found that the school board was justified in imposing the dress code. As a teacher and public servant in a position of trust, the court felt that this professional requirement and overall governance by the school board on the appearance of its teachers was warranted.

For many teachers and students alike, dress and personal appearance is considered a freedom of expression. Geographic diversity and individual school culture can also be a factor in what is allowed or not allowed as it relates to dress codes in schools across the United States (Sternberg, n.d.). What is acceptable in southern California may or may not be in West Virginia or Vermont.

School principals often become the main authority for ensuring compliance (Waggoner, 2008). A standard of reasonableness is useful when crafting a successful dress code, along with clarity of language and flexibility dependent on the situation to determine appropriate dress and professional presentation. Review the dress code for your school and district to ensure that you are in compliance.

Liability and Teachers

Now, imagine an elementary school teacher is outside with their students on the playground. Two children ask if they can climb on the climbing wall. The teacher agrees and begins to walk over so they can monitor their play. At that very moment, a child falls off the monkey bars she was playing on and begins to cry. The teacher quickly walks over to the fallen child and notices that she has a cut on her arm. Can this teacher be sued for negligence?

When at school, educators have a responsibility that is referred to by the courts as “in loco parentis” or “in place of parents”. This means that while in school it is the responsibility of educators to make similar judgements as it relates to the safety of children that a parent might make. Because an educator is legally responsible for the safety of children under their supervision, a teacher is considered negligent if they fail to protect a child from injury or harm.

Accidents happen, and there are multiple ways that a child could be injured, such as in the playground scenario described above, in the lab of a science classroom, or even running down the hallway. However, if it is determined that negligence did occur, or even if a parent believes that negligence took place, a liability suit can be brought against the teacher or the school. The person who was harmed can bring civil or criminal charges against the student or teacher who threatened harm. In addition, a teacher can be dismissed and lose his or her teaching license as well as be criminally or civilly charged.

Protections exist for teachers that limit liability. These include:

• A reasonable attempt was made to anticipate a dangerous condition;
• Proper precautions were instituted to include establishing rules and procedures to prevent injury;
• Students were warned of possible danger; and
• The teacher provided proper supervision (Legal Information Institute, n.d.).

The Supreme Court of Wyoming held in Fagen v. Summers (1972) that the teacher did everything possible to keep students safe following a playground accident, citing that “a teacher cannot anticipate the varied and unexpected acts which occur daily in and about the school premises.” Schools and/or teachers are generally not held responsible for accidents occurring on school property under these types of circumstances.

In another playground accident in Louisiana several years later, Partin v. Vernon Parish School Board (1977), the judge reiterated the importance of a teacher demonstrating a “high degree of care” for students under his or her supervision, while confirming the earlier decision and citing that “the teacher is not the absolute insurer of the safety of the children she supervises.” In both of these cases, the teacher was not found guilty of any negligence based on the above criteria.

Teachers can have a lawsuit brought against them for civil liability or civil statutes if it is believed that:

• a student has been mistreated or abused either verbally, physically, emotionally, or sexually.
• a teacher discriminated against a child due to his or her gender, race, or a special need(s).
• a teacher treated certain children unfairly, such as through grading practices.
• offensive material was assigned by the teacher for homework (Legal Information Institute, n.d.).

Once you begin teaching, your school and state will have specific policies regarding liability protection for teachers.

Teacher Privacy

Privacy is considered to be a protection in the U.S. Constitution under the Fourth Amendment as it relates to unreasonable searches and seizures (U.S. Constitution, Fourth Amendment).

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

-Fourth Amendment of the United States Constitution ratified in 1789, revised 1992

In the Supreme Court case, O’Connor v. Ortega (1987), the court ruled that public employees retain their Fourth Amendment rights with regard to administrative searches in the workplace. The Court held that a standard of reasonableness was sufficient for work-related intrusions by public employers, citing that an employee’s expectation of privacy may be unreasonable when the intrusion into the office is by a supervisor rather than a law enforcement official in conducting normal business functions.

For teachers, the school is considered a public place and therefore there are minimal limitations placed on search and seizure. All places in a school building and on school grounds are considered public space. This means all classrooms, teacher desks, offices, even student lockers are considered a part of the workplace and can be searched, and items seized. Personal belongings are separate from this public workspace. This means your personal effects, such as a phone or bag, do not belong to the workplace and if searched, require a warrant. For your own protection, use care when deciding what to bring into the school.

Religion and Schools

The First Amendment separates religion from the business of the state. Government is prohibited from imposing religious beliefs on any person. Public school serves as a state government service and therefore it must be neutral and not promote religious beliefs on anyone in the school. Religion in schools has been challenged from prayer in schools, to religion in the curriculum, religious clubs and access to public school facilities, to artifacts and clothing.

The Supreme Court has continuously upheld the separation of religion from the school environment (ACLU Legal Bulletin, 2020), as shown in Table 5.4.

Table 5.4:  Supreme Court Cases on Religion in Schools

Year	Outcome
1962	In Engel v. Vitale, the Supreme Court upheld that nondenominational prayers were unconstitutional because it promoted religion and schools could not officially encourage student prayer as it would interfere with the function of school.
1963	In Abington School District v. Schempp, the Supreme Court ruled that the state legislation passing a law requiring all schools to read the Bible daily was unconstitutional.
1971	In Lemon v. Kurtzman, the Supreme Court held that prayers or blessings by clergy at the opening or closing of a public ceremony in a school violates the free exercise clause. From this case there was a test that courts use to determine if religion in schools is constitutional. The questions are: Is the policy or the act for a secular purpose? Does the primary effect either advance or inhibit religion? Does the law or policy result in excessive entanglement of government and religion?
1981	The Supreme Court ruled in Stone v. Graham that a Kentucky state law requiring the Ten Commandments be posted in school classrooms was illegal.

The courts have upheld that there is a separation between church and state even to the extent of your own personal beliefs. In 1980, a teacher refused to teach a city-designed curriculum that she said violated her own religious beliefs. In the Palmer v. Board of Education of the City of Chicago (1980) decision, the court recognized that a teacher can have personal views that might be different from the curriculum, but upheld that the mandate of the school district to provide an education requires that teachers “cannot be left to teach the way they please.”

Rights of Students

Students share many of the same constitutional rights to ensure protection as adults. Several sections outlined below follow those shown above under Teacher Rights, but with additional emphasis on the students themselves.

Courts have mandated that for a school to operate safely it needs to have broad authority to establish rules and regulations as it relates to student conduct within the school. This means that parents agree to give some level of control to schools when they enroll their child in the public school system. The courts have also insisted that students do not lose all of their constitutional rights and a school’s influence is not absolute. Within the U.S. legal and educational systems, control is defined as a standard of reasonableness which was similarly stated in multiple examples above.

Freedom of Speech and Expression

Schools have an obligation to provide a safe and orderly learning environment. Reasonable limits are put in place regarding language, such as banning offensive language, to assure appropriateness and respect. Forms of expression that are protected in schools include:

• the right to wear religious clothing and talk about religion,
• to be free from bullying and harassment, and
• to be free from racial or national origin discrimination (United States Courts, n.d.).

Protecting students’ rights to political speech was explored in Tinker v. Des Moines Independent School District (1969). It served as a landmark Supreme Court case and the decision upheld that free speech was permitted in schools.

This ruling was later challenged in 1986 when a student used what was considered ‘vulgar’ language by the school in a speech at an assembly. The student was reprimanded by the school and the student sued the school claiming that his constitutional right to freedom of speech had been violated. The case went to the U.S. Supreme Court where the court decided in Bethel School District No. 403 v. Fraser (1986) that a school is not required to permit offensive or disruptive speech on school grounds at a school sanctioned event because offensive speech or language disrupts the educational mission of the school and is inappropriate for a school setting.

Freedom is also limited as it relates to a student newspaper. In Hazelwood School District v. Kuhlmeier (1988), the U.S. Supreme Court decided that a student newspaper can be regulated for “legitimate pedagogical concerns” allowing a school to remove articles that school officials deemed inappropriate for the school community. The decision went further, allowing a school to determine if the speech was written in a reasonable manner for members of the school community and ensuring that it did not contain language that was “ungrammatical, poorly written, inadequately researched, biased, prejudiced, vulgar or profane, or unsuitable for immature audiences.” The court found that because a school newspaper is not intended to have a public forum, a school can limit speech by imposing reasonable constraints if it is determined the speech would disrupt a classroom and the normal functioning of a school.

In the present day, free speech as it relates to the Internet is the same for teachers as it is for students. If it is found that the speech posted online ‘substantially disrupts’ the functioning and purpose of a school, disciplinary actions can be taken against either cohort.

In Doninger v. Niehoff (2008), a student’s derogatory comments posted online were found to make a substantial disruption to the school. A blog post contained language that would be prohibited within the school and was disruptive to the work and discipline of the school. A Court of Appeals held that even though the online comments were made off campus, the speech could be restricted to promote school related goals on campus. This case relates to disruptive speech and cyberbullying. It underscores school responsibility in maintaining a safe environment for students.

The speech of students and teachers is constitutionally protected, but the extent of the speech, as it relates to the mission and goals of a school, must always have a legitimate pedagogical focus and direction. This holds true whether it is in print in a school newspaper, in the local newspaper, or in electronic format. It is true if it is part of the curriculum or in a theater production on school grounds. Speech is influenced both on and off campus and can come under the school’s authority both in-person and online.

Dress Code

Dress codes have been challenged by students and teachers alike as a form of freedom of speech and expression. Courts have upheld that school boards can impose student dress codes to include symbols, clothing, and jewelry if it is believed to have the potential to disrupt a school’s functioning.

In addition to supporting free speech as discussed above, the Tinker v. Des Moines (1969) case also weighed in regarding dress code. During the Vietnam War, students planned to wear armbands to protest the War. The principal tried to limit these protests by banning armbands. The court ruled against the school, holding that there was no evidence that students wearing armbands would disrupt school functioning.

In 2006, a student wore a shirt to school that other students found offensive and which depicted a particular political viewpoint. He was asked to cover the shirt based on the off-putting image and speech. He refused and was given a disciplinary referral. In Guiles v. Marineau (2006), the student then sued the school administrators to have the disciplinary referral expunged from his record and to disallow the school from enforcing the dress code policy against him. The District court held that the school was entitled to enforce its dress code policy, but upon appeal, the U.S. Court of Appeals ruled that the shirt was protected speech under the First and Fourteenth Amendments.

In another case, B.H. and K.M. v. Easton Area School District (2013), students were suspended for wearing bracelets that showed support for breast cancer awareness. In this case, the judge ruled in favor of the students. The school district then elevated the case to the Supreme Court, but the court refused to hear the case, stating that the message on the bracelet did not use lewd language and was not disruptive to the purpose of education. The First Amendment requires schools to see all student views equally, as long as they are not obscene or disruptive, irrespective of the message expressed (Sherwin, 2017).

The purpose of a dress code is to provide an optimal learning environment. It can also do the opposite with gender-biased language that results in stricter enforcement of rules for female minority students rather than other sub-groups. A gender-neutral dress code is recommended, along with gathering student input when revising the school dress code and ensuring that female students are not ‘victim-blamed’ (Barrett, 2018).

 

The American Civil Liberties Union also provides guidance on student rights as they relate to school dress codes, gender, and self-expression:

• Views are protected by the First Amendment and therefore schools cannot ban symbols or slogans or messages that they disagree with on student shirts, buttons, wristbands, or other garments or accessories.
• While public schools can establish dress codes, they cannot treat boys and girls differently, censor viewpoints, or force students to conform to gender stereotypes under federal law.
• Students are allowed to wear clothing that aligns with their gender identity and expression (ACLU Fact Sheet, 2016).

Schools administrators must be aware of the constitutional rights of students and protect these freedoms. Schools can assert certain restrictions as they relate to freedom of speech and expression, but at the same time they also need to be cognizant of student diversity and cultural differences, as well as gender distinctions, and economic disparities.

 

Search and Seizure

Imagine that a teacher suspects a student has illegal drugs in her backpack. They noticed the student at her locker placing a small bag in the front pocket. The teacher immediately reports their suspicions to the principal. What should be the next step? The school administrator must have a “reasonable suspicion” based on facts specific to the student or the situation. A “hunch” is not sufficient. Rather, the principal must believe that searching the student will turn up evidence of violating a school rule or law. “Reasonable” is based on what is being searched for and the age of the student.

The Fourth Amendment of the Constitution protects U.S. citizens from unlawful search and seizure of possessions. If there is probable cause for a search, a warrant is required from the court system before a person can be searched. Because of the nature and purpose of school, courts have allowed schools to both search and seize possessions if there is probable cause.

In New Jersey v. T.L.O. (1985), the Supreme Court established a standard of reasonableness for student searches conducted at school and by public school personnel. While the Fourth Amendment of disallowing unreasonable search and seizure still applies, if school administrators have a reasonable suspicion that a student has either broken the law or violated a school rule, the search is justified. In this case, the student was found smoking in the bathroom, a violation of school rules, and taken to the principal’s office where her purse was searched based on a reasonable assumption that the student had cigarettes in her purse.

Random drug tests have historically been permissible for both teachers and students. In the Supreme Court case Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002), the court held that athletes can be randomly tested for drugs to protect the safety of the school and to ensure a drug free school. The safety and knowledge of the drug free school outweighed the privacy rights of students who were voluntarily participating in the sporting events. The Court concluded that while the students participating in extracurricular activities have limited Fourth Amendment rights, within the school setting there is a lesser expectation of privacy, and the students’ rights must be balanced against the school’s interest in keeping illegal drug use to a minimum (Staros & Williams, 2007).

In 2005, a 13-year old special education student was called out of class and questioned by police officers with school officials present regarding neighborhood burglaries. His parents were not contacted, nor was he read his Miranda rights, such as the right to remain silent, leave the room, or have access to a lawyer. The child confessed to the crime but later sought to suppress his confession based on not receiving any indications of his rights while he was in police custody in the school conference room. This case, J.D.B. v. North Carolina (2011), was later heard by the Supreme Court where they ruled that age should have been considered in deciding whether the student was in police custody within the school grounds. The Justices went on to state that there are psychological differences between an adult and a child, and when police are involved in questioning students, they must use “common sense” due to the developmental differences of children. The Miranda warnings should have been applied in this case in a manner appropriate for the student prior to his questioning.

Search has also been controversial with the use of video surveillance and metal detectors in schools. Currently, courts have held that if school safety has been threatened, means of surveillance can be introduced into the school, but that extensive surveillance using video or metal detectors can hinder reasonableness of the surveillances and violate Fourth Amendment protections. The intent of school policies and procedures are consistently to provide and maintain “a safe, secure, healthy, and disruption-free learning environment” that is conducive and supportive to teaching and learning (Vacca, 2014, p. 5).

Privacy of Records

In 1974, Congress passed the Family Educational Rights and Privacy Act (FERPA), also called the Buckley Amendment. This was an Amendment to the Elementary and Secondary Education Act (ESEA) of 1965. FERPA is a federal law that protects the privacy of student educational records. FERPA requires schools to allow parents and students access to official school records. It also requires schools to provide procedures for parents to challenge the accuracy or completeness of information in their child’s record. Parents retain the rights of access to their child’s school record until the child reaches the age of eighteen or is enrolled in a postsecondary institution.

The intent of FERPA is to improve parental access to their child’s information within the school. It does not guarantee access to all school records on a child, such as personal teacher notes, letters of reference, grade books, or correspondence with a principal. These items are exempted from view. There may also be files or information that is kept separate from a student’s file to protect the privacy rights of other students in the school.

Passed in 1978, the General Education Provisions Act is an amendment to FERPA. It additionally provides access to parents, guardians, and the students themselves on research collected on students. The Act also states that no student is required to participate in testing nor can students be questioned about their personal beliefs, such as sexual attitudes or behaviors, political affiliations, or income. It also limits asking about feelings or behaviors, such as psychological or mental issues.

In total, the FERPA guidelines require schools to:

• Inform parents annually of their rights regarding their child’s records.
• Provide parents access to their child’s records.
• Maintain procedures that allow parents to challenge and if needed, amend inaccurate information.
• Protect parents from disclosure of confidential information to third parties without their consent (Family Educational Rights and Privacy Act, 1974).

As a teacher, you want to consider information and data collected on students carefully. Any information collected must serve a legitimate goal for both instruction and the school. The privacy of student educational records must be protected, and official records and confidential documents securely stored.

Discipline

Classroom discipline has been presented in the courts to assist in decisions regarding the reasonableness of discipline procedures from both teachers and schools. While the U.S. court system upholds that a school has the authority to enforce standards, it also recognizes that this authority is not without restrictions. For example, suspensions and time outs cannot limit students and their right to a public education.

The purpose of discipline is to modify the behavior of a student who is disrupting learning and the functioning of the school. The school has the right to preserve the rights of other students by enforcing disciplinary actions if it is determined that the enforcement is fair and reasonable and supports the education process.

Students who have disciplinary actions brought against them have the right to procedural due process. This was upheld in Goss v. Lopez (1975). The Supreme Court ruled that any suspension of a student requires procedural due process that provides the student both oral and written notice, as well as an explanation and evidence of the charges. The student then has the right to explain their side of the argument and provide evidence. It is important that all students be afforded due process. The student and parent or guardian must be provided all of the evidence that makes the school’s case and have an opportunity to speak in their defense.

Students with Special Needs

All students have a right to a Free Appropriate Public Education (FAPE) as part of their educational entitlement in the United States. This is supported through the Rehabilitation Act of 1973, Section 504 which addresses protection for students with disabilities (U.S. Department of Education, 2010). In 1975, the Education for All Handicapped Children Act was signed into law to support states in protecting the rights and meeting the needs of students with disabilities. This law was amended in 1997 and is currently the Individuals with Disabilities Education Improvement Act (IDEIA) (2004).

This law guarantees every child with a disability access to a free appropriate public education. The IDEIA Act requires schools to make accommodations for students with disabilities and to create individual education programs in the least restrictive way for each student that has a special need (Individuals with Disabilities Education Act, 2003). Public schools must provide reasonable and safe accommodations for students with disabilities, and at the same time provide them with an equitable education. You read about the specific disability categories listed in this act in Chapter 2.

The intent of IDEIA is to provide equal educational opportunity and protection for students. This basic access includes consistent specialized instruction and services that are individually designed for students to provide similar educational benefits to a child with special needs (U.S. Department of Education, 2020a). Individual states and local educational systems can choose services and programs in cooperation with a parent or guardian.

Current Implications

Throughout the history of schools in the United States, ethics and the function of laws have evolved as society has changed. To date, current issues continue to be addressed in our nation’s public schools and within our court systems. While others exist as well, below are three current issues within education and society as a whole.

Racial Issues

Today, racial concerns remain a key issue for schools and society at large. In T.B. et al. v. Independent School District 112 (2019), African American students filed a complaint against white students in Minnesota. They claimed they had been harassed and the school did not intervene to remove racism, harassment, and discrimination nor did it protect their rights to safe and equal access to education within the school environment. This is required as part of the Equal Protection Clause under the Fourteenth Amendment of the U.S. Constitution and Title VI of the Civil Rights Act of 1964. As of this writing, the case remains open in the court of appeals.

Title VI of the Civil Rights Act of 1964 states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (Civil Rights Act, 1964).

Racial harassment continues to occur in schools to the present day. As a teacher, you are responsible for enforcing policies and procedures that are appropriate within the classroom to maintain a safe environment for all students. Immediate action is required to respond to bullying and intimidation, such as speaking up and talking with the offending students and reporting the action to your principal when you hear or see questionable behavior or actions within your school. Regular professional development and training can additionally help inform and support teachers. A culture of inclusion and acceptance is required by school leadership that permeates throughout the school and community.

Freedom of Speech

Freedom of speech continues to be challenged in our schools. In B.L. v. Mahanoy Area School District (2019), a court of appeals in Pennsylvania held that a school district violated a student’s First Amendment rights when they removed her from a school event for a Snapchat message. The message was sent by the student on a weekend and away from the school. The case made it to the U.S. Supreme Court, and the final ruling on Mahanoy Area School District v. B.L. (2021) found that the student had First Amendment rights to free speech and that the school’s decision to suspend her was wrong. The court used the ruling of Tinker v. Des Moines Independent Community School District (1969) in its opinion stating that the student’s message was posted off campus and was not controlled by the school. Therefore, the First Amendment protected the student when she engaged in off-campus speech similar to a community citizen.

In another case, Ali v. Woodbridge Township School District (2020), a high school history teacher in New Jersey was terminated in 2016 from his teaching position for altering curriculum and teaching what the school believed were “conspiracy theories.” The teacher appealed to the courts, stating that his dismissal was discriminatory, and he was wrongfully terminated on the basis of his race, ethnicity, and religion. The case was resolved in 2020 after the court of appeals upheld the lower court’s decision in favor of the school and the teacher’s dismissal, stating that the teacher does not have the right to decide what is taught in the classroom; rather, that is the public school’s responsibility.

LGBTQ+ Rights and Discrimination

Discrimination based on sexual orientation and gender identity are important issues in today’s schools. For LGBTQ+ teachers, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of race, color, religion, sex, or national origin (Civil Rights Act, 1964). For students, Title IX under the Office of Civil Rights of the U.S. Department of Education bans sex discrimination in schools and reads “No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient to which this subpart applies” (U.S. Department of Education, 2015).

Students or teachers who believe they have been discriminated against can bring litigation under the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause in Section 1 of the Fourteenth Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 jurisdiction the equal protection of the laws (U.S. Constitution, Fourteenth Amendment).

In addition, in 1984 Congress passed the Equal Access Act requiring federally-funded secondary schools to uphold students’ First Amendment rights to conduct meetings and hold an open forum with equal access to extracurricular student groups or clubs (Equal Access Act, 1984).

In Davis v. Monroe County Board of Education (1999), the mother sued the school system on behalf of her fifth-grade daughter for failing to prevent sexual harassment by another student. The Supreme Court upheld that there is an implied right to education under Title IX and found that the school board acted with deliberate indifference, ignoring the mother’s complaints of harassment that were serious and systematic.

In Nabozny v. Podlesny (1996), the Court of Appeals ruled that public schools and their officials could be held liable for failing to protect homosexual students from antigay harassment and harm. Since signed into law in 2009, schools must follow the Matthew Shepard Hate Crimes Prevention Act (2009). This law expanded the federal hate crime law, to include crimes motivated by the victim’s actual or perceived gender, sexual orientation, gender identity or disability.

On the basis of sexual orientation and/or gender identity, students receive protection from bullying by other students, teachers, and school staff and cannot be discriminated against in school by being unfairly denied access to facilities, sports teams, or clubs. Both anti-bullying and school nondiscrimination laws support and protect LGBTQ+ students. In addition, sexual harassment guidelines are provided through the Office for Civil Rights at the U.S. Department of Education (2020b). It is the responsibility of a school to take meaningful steps to support and protect all students.

Conclusion

During this chapter, you have learned about how ethical and legal issues impact education. A professional Code of Ethics influences a teacher’s practice by outlining standards that ensure that all teachers demonstrate integrity, impartiality, and ethical behavior to assure that students receive a fair and equitable education. Teachers and students do not give up their constitutional rights when entering into public schools in the United States; however, the courts have declared that there is a difference between teacher and student rights outside of a school and those inside the school. Rights and responsibilities must align to state and federal law, as well as the safety of students, and the mission of the public school. Case law has provided guidance for schools on procedures and regulations as well as the roles and responsibilities of teachers and students. The legal cases highlighted in this chapter are significant to the purpose and goals of public schooling throughout the United States. There continue to be challenges over time, especially as society changes and the United States becomes more diverse. A robust legal system is needed to maintain a fair and responsible system of education that supports all students. Understanding ethical and legal issues related to education will help you make informed decisions as an educator in our public school system within the United States.