The bubbly drinks have been consumed. The confetti has fallen. At the dawn of this new decade, it’s time to turn our attention to more serious matters—specifically, legal literacy. Along with your personal New Year’s resolutions, consider cultivating a legally literate faculty and staff. Unlike resolutions to hit the gym or to read more, this resolution can be measured in what doesn’t happen—namely, lawsuits.
News from the past year indicates that school leaders need to prioritize legal literacy. In fact, recent school law violations have not typically been caused by personal ineptitude or intentional wrongdoing. Rather, most of the headline-making lawsuits were the result of educators who did not understand their legal responsibilities. This lack of legal literacy—or lack of legal knowledge, understanding, and skills that educators need to apply the law to their daily lives—is not uncommon. Past studies indicate that administrators and teachers lack legal knowledge and training but wish they were better versed in the law.
By increasing legal literacy, districts will not only save time and money avoiding lawsuits, but will also ensure students’ and employees’ legal rights are protected. Teachers are often the first to encounter legal dilemmas, and if they inadvertently violate the law, little can be done to rectify the situation after the fact. Consider offering proactive training to ensure that employees are less fearful of the law and more empowered to understand and influence policy. To make the 2020 school year headline-free, examine these five ways to increase legal literacy.
1. Church and State Issues in Public Schools
Last year, a Georgia public school principal invited the community to a prayer vigil to bless the school campus. In Indiana, the Freedom From Religion Foundation called on public high school football coaches to cease praying with their players on the field. These examples seem to be clear violations of the First Amendment’s Establishment Clause as interpreted by the U.S. Supreme Court. Yet, some educators still do not understand that their role as a government employee prohibits them from offering religiously based curriculum, praying with their students at school events, and using their official capacity to promote prayer or other religious activities. On the flip side, teachers retain the right to silently pray when students are not present—during a personal lunch break. Prayer must not take place during instructional time or appear to be school-sponsored.
2. Students’ Rights Regarding the Pledge of Allegiance
This issue is perennial. Year after year, we read about teachers violating students’ rights—which were established by the U.S. Supreme Court more than 70 years ago—to refuse to stand for or recite the Pledge of Allegiance. In one recent example, a Colorado teacher was accused of assaulting her student after she forcibly pulled the boy up by his jacket to remove him from the room simply because he refused to stand for the pledge. This teacher was forced to retire and now has a criminal record. You can avoid this problem simply by discussing it at a staff meeting.
3. Teachers’ Limits to Their Free Expression
A Louisiana teacher was arrested after speaking out at a school board meeting against a superintendent’s salary increase. And last year, Arizona state legislators filed bills to restrict the speech rights of the state’s teachers. While the limits of teachers’ speech in and out of the classroom can be confusing, school leaders can establish clear guidelines. If teachers’ speech relates directly to their official job duties, it is not protected under the First Amendment. If educators speak on a matter of public concern that does not relate to their official job duties—political and social concerns—it is typically protected. However, if that speech interferes with the management of the school, school officials may be able to regulate the speech as well. In sum, teachers’ speech rights are limited, and it would benefit administrators to provide guidance about the boundaries of free speech. These general guidelines also apply to speech that occurs online, and school leaders should be sure to educate employees about what they can and cannot share on social media.
4. Equitable Treatment of Transgender Students
A Virginia teacher was fired for refusing to use a student’s preferred pronouns. Other school leaders have continued to refuse requests that would allow transgender students to use restrooms that align with their gender identities. These are only a few of the continuing controversies about the rights of transgender students in public schools. Although the U.S. Supreme Court has yet to rule on the scope of transgender student rights and the Trump administration has rescinded previous federal guidance requiring schools to protect transgender students from discrimination, all 10 federal and state courts that have addressed restroom access in the K–12 context have sided in favor of transgender students. Additionally, cisgender students were not successful in three federal courts when they alleged privacy concerns related to sharing a restroom with a transgender student. School leaders should be aware of any court decisions addressing this issue within their jurisdiction. Further, if a school district establishes policies to protect transgender student rights, teachers may not violate those policies based on their personal beliefs.
5. Rights of Students With Disabilities
Principals must be informed about their duty to respond appropriately when students with disabilities are bullied. Recently, litigation involving this type of bullying has increased because school districts have been sued for failing to do enough to address the bullying under federal disability law. For example, bullying students with disabilities can lead to a student not receiving a free appropriate public education under the Individuals with Disabilities Education Act (IDEA). Also, districts have been sued for violating Section 504 of the Rehabilitation Act after school officials failed to adequately address disability-based harassment. Special education remains the most litigious area in schools today. So, in addition to safeguarding students with disabilities from bullying, school leaders must stay abreast of their many legal responsibilities, including:
- Identifying and evaluating students with disabilities
- Providing Individualized Education Programs that are reasonably calculated so that each student may “make progress in light of the child’s circumstances,” ensuring students with disabilities are educated in the least restrictive environment
- Following IDEA’s discipline procedures, including manifestation determination reviews
- Complying with procedural requirements such as written consent
- Collaborating with parents
Education law has many nuances—or exceptions to the rules—that require administrators to stay current with a variety of legal sources such as case law and federal/state statutes. Translating the law so that frontline professionals understand how to apply the law requires some effort. However, it is worth the time. Not only do the recent incidents described infringe upon legal rights, they also put the districts and all employees in jeopardy of legal liability. These lawsuits waste precious resources on costly litigation and shift the focus away from academics. By increasing legal literacy of all educators, schools can avoid some of these headaches.
Janet R. Decker is an associate professor at Indiana University. Suzanne E. Eckes, JD, PhD, is a professor at Indiana University and the immediate past president of the Education Law Association. Jennifer Rippner is a faculty member at Indiana University teaching education law courses.
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017).
Garcetti v. Ceballos, 547 U.S. 410 (2006).
Pickering v. Bd. of Educ., 391 U.S. (1968).
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).