Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P9 pps

two-year stint as director of the Center for Law and Education at Harvard University. Her husband served as vice president of the University of Massachusetts at the same time. Upon their return to Washington, D.C., in 1973, Edelman created an offshoot of her Washington Research Project, which she called the Child ren’s Defense Fund. Edelman’s CDF began as a small, nonprofit organization interested in children’s issues and funded entirely by private foundation grants. In CDF’s early days, Hillary Rodham Clinton worked as a staff attorney and later became a member of the CDF board of directors. In 1999, with a staff of 130 and a budget of $10 million, CDF had grown considerably in size and stature but remained committed to its original goal: providing hope and social change for the poor, neglected, and abused children in the United States. CDF conducts research, drafts legisla- tion, lobbies, and provides educational support on issues affecting children. It has buttonholed elected officials on issues including childhood diseases and immunizations, homelessness, CHILD ABUSE, education, and foster care. Edelman lobbied for a national CHILD CARE bill, increases in Medicaid spending, and, of course, additional spending for her cherished Head Start programs. Edelman’s productivity and stamina are legendary. In addition to lobbying, she gives an average of 50 spe eches per year and has made frequent appearances on popular talk shows. Edelman has received more than 65 honorary degrees and awards including t he Albert Schweitzer Humanitarian Prize, the H. John Heinz Award, and a MacArthur Foundation Prize Fellowship. In 2000 President BILL CLINTON awarded Edelman the Presidential Medal of Freedom, the nation’s highest civilian award. Edelman is also a prolific writer; among her books are Families in Peril: An Agenda for Social Change (1987); The Measure of Our Success: A Letter to My Children and Yours (1992), which sold over 1.25 millio n copies and appeared on the best-seller list; a children’s book titled Stand for Children (1998); I’m Your Child, God: Prayers for Children and Teenagers (2002); the children’s book I Can Make a Difference: A Treasury to Inspire Our Children (2005); and The Sea Is So Wide and My Boat Is So Small: Charting a Course for the Next Generation (2008). In 1996 Edelman founded Stand for Chil- dren, a grassroots organization that advocates for children’s rights throughout the country with a focus on early childhood education, after-school programs, and health care. In 2000 the Chil- dren’s Defense Fund took note of the fact that presidential candidate GEORGE W. BUSH had adopted the fund’s slogan Leave No Child Behind for his campaign. In early 2003 Edelman accused the Bush administration of “waging a budget war against poor children” based on proposed tax cuts. The Children’s Defense Fund later released a state-by-state report showing that states experiencing fiscal crisis were making cuts in vital child-care, early education, and after- school programs. As of late 2009, Edleman was writing a weekly column, Child Watch, and a blog, both carried by the Huffington Post. She continues to serve as president of the Children’s Defense Fund and its Action Council. As the country debated health care, she continued to be the voice for underserved children. FURTHER READINGS Igus, Toyomi, ed. 1991. Book of Black Heroes. Vol. 2: Great Women in the Struggle. New York: Scholastic. Edelman’s Huffington Post site. Available online at www. huffingtonpost.com/marian-wright-edelman (accessed September 24, 2009). Stand for Children Web site. Available online at www.stand. org (accessed September 24, 2009). EDICT A decree or law of major import promulgated by a king, queen, or other sovereign of a government. An edict can be distinguished from a public proclamation in that an edict pu ts a new statute into effect whereas a public proclamation is no more than a declaration of a law prior to its actual enactment. Under ROMAN LAW, an edict had different meanings. It was usually a mandate published under the authority of a ruler that commanded the observance of various rules or injunctions. Sometimes, however, an edict was a citation to appear before a judge. EDUCATION DEPARTMENT Created in 1980, the U.S. Department of Education (DOE) is the cabinet-level agency that establishes policy for, administers, and coordinates most federal assistance to educa- tion. It is directed by the secretary of education, who assists the president of the United Stat es by WE MUST NOT, IN TRYING TO THINK ABOUT HOW WE CAN MAKE A BIG DIFFERENCE , IGNORE THE SMALL DAILY DIFFERENCES WE MAKE WHICH , OVER TIME , ADD UP TO BIG DIFFERENCES THAT WE OFTEN CANNOT FORESEE . —MARIAN WRIGHT EDELMAN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EDUCATION DEPARTMENT 69 executing policies and implementing laws enacted by Congress. The Department of Education has six major responsibilities: (1) providing national leader- ship and building partn erships to address critical issues in U.S. education; (2) serving as a national clearinghouse of ideas on schools and teaching; (3) helping families pay for college; (4) helping local communities and schools meet the most pressing needs of their students; (5) preparing students for employment in a changing economy; and (6) ensuring non- discrimination for recipients of federal educa- tion funds. Department of Education International Affairs Office Center for Faith-Based and Community Initiatives Office of Communications and Outreach Risk Management Service Office of the Secretary Office of the Under Secretary Federal Student Aid Office of Vocational and Adult Education Office of Postsecondary Education WH Initiative on Historically Black Colls & Univs Staff WH Initiative on Tribal Colleges and Universities Staff Office of the General Counsel Office of Inspector General Institute of Education Sciences Office for Civil Rights Office of Legislation & Congressional Affairs Office of the Chief Financial Officer Office of Management Office of the Chief Information Officer Office of Planning, Evaluation and Policy Development Office of the Deputy Secretary Office of Safe and Drug-Free Schools Office of Innovation and Improvement Office of Special Education and Rehabilitative Services Office of English Language Acquisition Office of Elementary and Secondary Education WH Initiative on Educational Excellence for Hispanic Americans Budget Service ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 70 EDUCATION DEPARTMENT Although the DOE functioning in 2009 has existed for only a short time, its history dates back to 1867, when President ANDREW JOHNSON signed legislation creating the first education department as a non-cabinet-level, autonomous agency. Within one year, the department was demoted to the office of education because Congress feared that it would exercise too much control over local schools. Since the Constitu- tion does not specifically mention education, Congress declared that the secretary of educa- tion and other officials should be prohibited from exercising direction, supervision, or con- trol over the curriculum, instructional pro- grams, administration, or personnel of any educational institution. Such matters are the responsibility of states, localities, and private institutions. Over the next several decades, the office of education remained small, operating under different titles and housed in various govern- ment agencies, including the U.S. DEPARTMENT OF THE INTERIOR and the former U.S. Department of Health, Education, and WELFARE (later the U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES). Beginning in 1950, political and social changes resulted in greatly expanded federal aid to education. The Soviet Union’s success- ful launch of the satellite Sputnik in 1957 resulted in an increase in aid for improved U.S. education in the sciences. President Lyndon B. Johnson’s War on Poverty in the 1960s involved many programs to improve education for poor people. In the 1970s these programs were expanded to include members of racial minori- ties, women, individuals with disabilities, and non-English-speaking students. In October 1979 Congress passed the Department of Education Organization Act (93 Stat. 668 [20 U.S.C.A. § 3508]), which established the Department of Education as it basically exists in the early 2000s. Since that time, the DOE has continued to expand its duties by taking an active role in education reform. In 1983, the DOE published A Nation at Risk, a report that described the deficiencies of U.S. schools, stating that mediocrity, not excellence, was the norm in public education. This publication led to the development in 1990 of a long-range plan to reform U.S. education by the year 2000. Called America 2000: An Educational Strategy, the plan had eight goals: (1) all children will start school ready to learn by participating in preschool programs; (2) the high-school graduation rate will increase to at least 90 percent; (3) all students will leave grades 4, 8, and 12 having demonstrated competency in English, mathematics, science, foreign languages, civics and government, eco- nomics, art, history, and geography; (4) teachers will have opportunities to acquire the knowledge and skills needed for preparing students for the twenty-first century; (5) students will be first in the world in mathematics and science achieve- ment; (6) every adult will be literate and will possess the knowledge and skills necessary to compete in a global economy; (7) every school will be free of drugs, violence, and the unautho- rized presence of firearms and alcohol; and (8) every school will promote partnerships to increase parental involvement in the social, emotional, and academic growth of children. Many of the goals of this educational initiative were praised by some educators, although the initiative was not without its skeptics. Its proposals called for revolutionary reforms in educational systems across the United States at a relatively low cost. Propo- nents of the program also claimed the program would end complacency in the educational systems, woul d allow employers to hire more qualified teachers, and would dramatically increase student achievement. One aspect of the America 2000 program was that federal spending on K-12 education increased from over $9 billion in 1990 to almost $18 billion in 2000. Nevertheless, the promise of massive improvements in student achievement never came to fruition. Mathematics and reading scores only increased slightly from 1996 to 2000, while proficiency in science actually decreased during the same time period. President GEORGE W. BUSH pre mised much of his campaign in 2000 on educational reform. Among the more striking statistics he cited related to the teachers in U.S. schools. For instance, only about 40 percent of mathematics teachers had studied math in college, while one- fifth of the nation’s students in English classes were taught by instructors who did not hold a major or minor in English. On January 8, 2002, Bush signed into law the No Child Left Behind Act of 2001 (NCLB) (Pub. L. No. 107-110, 115 Stat. 1425 [20 U.S.C.A. §§ 6301 et seq.]). Supporters of the act promised a major reform in national GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EDUCATION DEPARTMENT 71 educational policy. The overall goal of the act was to “ensure that all children have a fair, equal, and significant opportunity to obtain high-quality education.” Moreover, the act was designed to allow children to achieve higher proficiency on achievement tests and other assessments. The act requires every state to test students in grades three through eight in mathematics, reading, and science. Testing has been a major issue among educators due in part to the anxiety it causes among students. Moreover, many claim that achievement tests are often flawed and that they may disfavor minorities and low-income children. Proponents of the act, however, point out that testing is one of the few recognized methods for measuring student abilities and that standardized testing ensures that children are not failing because they attend a failing school. Additional provisions provide funding to prepare and train teachers and principals. The act also promotes use of scientifically based reading instruction and stresses the importance of using established instructional methods. These provisions have likewise been subject to criticism, as detractors claim that forcing schools to adopt stringent educational models inhibits development of effective methods by individual teachers. Supporters note that many independent efforts fail and that students suffer from such failures. Additional provisions of the No Child Left Behind initiative focus upon safer schools, including provisions that allow parents to remove children from unsafe schools; improve- ments of academic achievement of the disad- vantaged; enhancements in language instruc- tion; promotion of informed parental choices; and flexibility and accountability in education. By the time the Obama administration to ok office in 2009, the strengths and deficiencies of NCLB had become clear. Secretary of Education Arne Duncan stated that the law had significant flaws: It puts too much emphasis on standard- ized tests, unfairly labels many schools as failures, and does not account for students’ academic growth in its accountability system. Most importantly, the law does not encourage higher learning standards; it inadvertently encourages states to lower standards. On the positive side, NCLB highlights the achievement gap in schools and focuses accountability on student outcomes. In the 1860s, federal education had a budget of $15,000 and four employees to handle education fact-finding. By 1965 the Office of Education employed 2,113 employees and had a budget of $1.5 billion. In 1995 the DOE administered about $33 billion, or about 2 percent of all federal spending, and had 4,900 employees, making it the smallest cabinet agency. The DOE elementary and secondary educa- tion programs annually serve 15,000 local school districts and almost 50 million students attending more than 84,000 public schools and 24,000 private schools. Approximately 7 million post-secondary students receive grant, loan, and work-study assistan ce. From 1975 to 1995, approximately 40 million students attended college on student financial aid programs. An additional 4 million adults received assistance each year to attend literacy classes and upgrade their skills to further their employment goals. Although the nation spends about $500 billion per year on education for elementary to post-secondary education, the federal govern- ment contributes only 8 percent of that amount. Federal funding helps approximately one of every two students pay for post-secondary education, and approximately four of five disadvantaged elementary and secondary school students receive special assistance. Structure The DOE is made up of the offices of a number of administrative officials, including a secretary, deputy secretary, and under secretary; seven program offices; and seven staff offices. Report- ing directly to the secretary are the deputy secretary, undersecretary, general counsel, in- spector general, and public affairs director. All other staff offices and program offices are under the jurisd iction of the deputy secretary. Offices of the Secretary The secretary of education advises the president of the United States on federal education plans, policies, and programs. The secretary directs department officials in carrying out these pro- grams and activities and serves as the chief spokesperson for public affairs, promoting public understanding of DOE goals and programs. The secretary also performs certain federal responsibilities for four federally aided corpora- tions. The American Printing House for the Blind in Louisville, Kentucky, distributes Braille GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 72 EDUCATION DEPARTMENT books, talking books, and other educational aids without cost to educational institutions for blind people. Gallaudet University, in Washing- ton, D.C., provides a liberal arts education for deaf persons. The National Technical Institute for the Deaf, a division of the Rochester Institute of Technology, located in Rochester, New York, provides educational programs that focus on careers and are geared towards helping hearing-impaired individuals o btain marketable skills in a s ociety that i ncreasingly relies on technology. H oward University, in Washington, D.C., is a comprehensive university that offers instruction in seven teen schools and colleges and was e stablished primarily t o support African American students. The deputy secretary serves as the principal policy adviser to the secretary on all major program and management issues and is respon- sible for the department’s internal management and daily operations. The deputy oversees the Executive Management Committee and the Reinvention Coordination Council, coordinates federal-state relations, and serves as acting secretary in the secretary’s absence. The undersecretary advises the secretary on matters relating to program plans and budget. Through the Planning and Evaluation Service and the Budget Service, this officer directs, coordi- nates, and recommends policy and administers analytical studies on the economic, social, and institutional effect of existing and proposed policies, legislative proposals, and program operations. Program Offices Bilingual Education and Minority L anguages Affairs The Office of Bilingual Education and Minority Languages Affairs funds pro- grams designed to help persons with limited English proficiency participate effectively in classrooms and work environments in which English is the primary language. This task is accomplished through 14 grant programs and one formula grant program, as well as through contracts for research and evaluation, technical assistance, and clearinghouse activities. Civil Rights The CIVIL RIGHTS Office enforces federal statutes that prohibit discrimination based on race, color, national origin, sex, age, or handicapping condition in education pro- grams receiving federal financial assistance. Civil rights laws extend to a wide range of educational institutions, including every school district, college, and university as well as proprietary schools, libraries, museums, and correctional facilities. Educational Research and Imp rovement The primary function of the Office of Educational Research and Improvement is to gather, ana- lyze, and make available to the public statistical and other types of information about the condition of U.S. education. This work is accomplished through the dissemination of information and research findings about suc- cessful education practices, student achieve- ments, and nationally significant model pro- jects. The office also supports a wide range of research and development activities and pro- motes the use of technology in education. Elementary and Secondary Education The Office of Elementary and Secondary Education formulates policy for and directs and coordi- nates activities relating to preschool, elemen- tary, and secondary education. Grants and contracts are awarded to state educational agencies, local school districts, post-secondary schools, and nonprofit organizations for com- pensatory, migrant, and Indian programs; drug- free programs ; other school improvement programs; and impact aid, which compensates school districts for the loss of property taxes for students who live on federally owned property such as military bases or Indian reservations. Post-secondary Education The Post-second- ary Education Office formulates policy and directs and coordinates programs for assistance to post-secondary institutions and to students who need financial assistance to attend college or a vocational training center. Financial aid is awarded in the form of grants, loans, and jobs. In addition, this office provides support for institutional development, student services, housing and facilities, veterans’ affairs, cooper- ative education, international and graduate education, colleges for African Americans, foreign language and area studies, and innova- tive teaching methods and practices. Special Educational and Rehabilitation Services The Office of Special Educational and Rehabilitation Services supports programs that help educate children with special needs, provides for the rehabilitation of youths and adults with disabilities, and supports research to improve the life of individuals with disabilities GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EDUCATION DEPARTMENT 73 regardless of age. Programs include support for the training of teachers and other professional personnel; grants for research; financial aid to help states initiate, expand, and improve their resources; and media services and captioned films for hearing-impaired individuals. Vocational and Adult Education Grant, con- tract, and technical assistance programs for vocational-technical education and adult edu- cation and literacy are administered through the Office of Vocational and Adult Education. This office also works with the DEPARTMENT OF LABOR in administering the School-to-Work Opportu- nities Initiative, which helps states and localities design and build innovative systems to prepare youths for college and careers. Staff Offices Assistant Secretary for Management The assistant secretary for management provides the deputy secretary with advice and guidance on administrative management and is responsi- ble for activities involving personnel, training, grants and procurement management, manage- ment evaluation, automated data proce ssing, and other support functions. Chief Financial Officer The chief financial officer manages grants and contract services and oversees financial management, financial con- trol and accounting, and program analysis. Assistant Secretary of Intergovernmental and Interagency Affairs The assistant secretary of intergovernmental and interagency affairs acts as a liaison to state and local governments and other federal agencies and oversees the ten DOE regional offices. Inspector General The inspector general audits and investigates programs and operations to promote their efficiency and effectiveness and to detect and prevent FRAUD, waste, and abuse. This officer seeks to recover misused federal funds through courts and administrative procedures and, in cooperation with the DEPARTMENT OF JUSTICE, prosecutes wrongdoers. General Counsel As the chief legal adviser to the secretary and other department officials, the general counsel directs, coordinates, and recom- mends policy for activities involving the prepa- ration of legal documents and department rules and regulations, including proposed or pending legislation. Public Affairs Director The public affairs director, who reports directly to the secretary, develops and coordinates public affairs poli cy and serves as the chief public information officer. Assistant Secretary for Legislation and Con- gressional Affairs The assistant secretary for legislation and congressional affairs serves as the principal adviser to the deputy secretary on the DOE legislative program and congressional relations. FURTHER READINGS U.S. Department of Education website. www.ed.gov (accessed October 7, 2009.) U.S. Department of Education. October 20, 1995. “How We Help America Learn: A Summary of Major Activities.” National Library of Education website. http://www.ed. gov/NLE (accessed November 25, 2009). ———. 1994. National Education Goals Report. Washing- ton, D.C.: Government Printing Office. http://www.ed. gov/NLE (accessed November 25, 2009). ———. September 5, 1995. “U.S. Department of Education Staff Organization.” U.S. Department of Education website. http://www.ed.gov/NLE (accessed November 25, 2009). CROSS REFERENCES Colleges and Univer sities; School Desegr egation; Schools and School Districts. EDUCATION LAW Education law is the body of state and federal constitutional provisions; local, state, and federal statutes; court opinions; and government regula- tions that provide the legal framework for educational institutions. The laws that control public education can be divided into two categories: those written exclusively for schools and those pertaining to society in general. Federal statutes regarding the education of children with disabilities are an example of the former, and Title VII ( CIVIL RIGHTS Act of 1964 , §§ 701 et seq., as amended, 42 U.S.C.A. §§ 2000e et seq.), a federal statute that covers employment in schools and elsewhere, is an example of the latter. Much of the litigation, legislation, and debate in education law has concerned eight main issues: student speech and expression; searches of students; the separation of church and state; racial segregation; the education of disabled children; EMPLOYMENT LAW; employee SEXUAL HARASSMENT and abuse of students; instructional programming; and the financing of public education. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 74 EDUCATION LAW History Throughout U.S. history, government, in one form or another, has expressed an interest in education. Indeed, this interest predates the American Revolution by more than 100 years. In 1647, the General Court of the Colony of Massachusetts Bay passed the Old Deluder Satan Act. Section 2 of that act provided that “when any town increased to one hundred families or households, a grammar school would be estab- lished with a master capable of preparing young people for university level study.” The Massa- chusetts Bay Colony was not unique in its concern for education: Other colonies also gave unrestricted aid to local education through land grants and appropriations of money. Both forms of support were adopted later by the CONTINENTAL CONGRESS and the CONGRESS OF THE UNITED STATES. The first measure enacted by the federal government in support of education came when the Continental Congress passed the Ordinance of 1785, which disposed of lands in the Western Territory and reserved section 16 of each con- gressional township for the support of schools. Two years later, the same Congress passed the NORTHWEST ORDINANCE, which was the first policy statement by Congress with respect to education. Its third article recognizes knowledge as being essential to good government and to the public welfare, and it encourages happiness of mankind, schools, and the means of education. These early acts by the colonies, and support from the federal Congress, forged a partnership in public education that continues to modern times. This partnership has thrived despite the absence of any explicit reference to education in the Constitution. The legal authority for the intrusion of the federal government into education is based on an interpretation given to the GENERAL WELFARE clause of the Constitu - tion, which reads, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises to pay the Debts and provide for the common Defence and general Welfare of the United States” (art. I, § 8). The TENTH AMENDMENT to the Const itution provides the basis in legal theory f or making education a function of the states. It reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are rese rved to the St ates respectively, or to the people.” Although this amendment d oes not specifically direct the states to assume the respon- sibility for providing education, its e ffect has b een no less. Each state constitution provides for the establishment of a stat ewide school system. Some state constitutions define in detail the structure for organizing and m aintaining a system of public education; others merely accept that responsibility and delegate authority for its implementation to the s tate legislature. The U.S. Supreme Court and the state courts have consisten tly ruled that education is a function of the states. Student Speech and the First Amendment In the mid-twentieth century, the U.S. Supreme Court began to recognize that children do not give up their constitutional rights as a condition of attending public school. The Court acknowl- edged that the public school is an appropriate setting in which to instill a respect for these rights. Freedom of expression is perhaps the most preciously shielded of individual liberties, and the Court has noted that it must receive “scrupulous protection” in schools “if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes” (West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 [1943]). The Court also has recognized that schools function as a “marketplace of ideas” and that the “robust exchange of ideas is a special concern of the First Amendment” (Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 [1967]). Tinker v. Des Moines addressed the scope of students’ freedom of expression in public schools. The case arose from an incident in which students, including Mary Beth and John Tinker (pictured), were suspended for wearing black armbands in protest of the Vietnam War. CORBIS-BETTMANN. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION EDUCATION LAW 75 Nevertheless, the right to free expression can be restricted. As Justice Oliver Wendell Holmes Jr. noted, FREEDOM OF SPEECH does not allow an individual to yell “Fire!” in a crowded theater when there is no fire (Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]). A determination that specific conduct communi- cates an idea does not ensure constitutional protection. The judiciary has recognized that defamatory, obscene, and inflammatory expres- sion may fall outside the protections of the FIRST AMENDMENT . Moreover, the Supreme Court has acknowledged that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings” (Bethel Sch. Dist. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 [1986]). Accordingly, students’ rights to free expression may be restricted by policies that are reasonably designed to take into account the special circumstances of the educational environment. It was not until 1969 that the Supreme Court specifically addressed the scope of students’ freedom of expression in public schools. Its landmark decision in this area, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), often is referred to as the Magna Carta of students’ rights. Tinker arose from an incident in which students were suspended for wearing black armbands to protest the VIETNAM WAR. Concluding that school authorities had suspended the students for expression that was not accompanied by any disorder or disturbance, the U.S. Supreme Court ruled that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” For almost two decades, lower courts interpreted the Tinker mandate broadly, apply- ing it to contro versies involving a range of expressive activities by students, school- sponsored and otherwise. Although Tinker has not been overturned, the Court limited the application of its principle in the late 1980s and early 1990s, beginning with the 1986 decision of Bethel School Dist. 403 v. Fraser. In Fraser, the Court upheld disciplinary action taken against a student for using a sexual metaphor in a nominating speech during a student govern- ment assembly. The Court recognized that the inculcation of fundamental values of civility is an important objective of public schools and that a school board has the authority to determine what manner of speech is inappro- priate in classes and assemblies. Two years after Fraser, the Court affirmed the right of a school principal to delete two pages from the school newspaper because of the content of arti cles on divorce and teen- age pregnancy ( Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 [1988]). The Court acknowledged school authorities’ broad discretion to ensure that expression appearing to bear the school’s imprimatur is consistent with educational objectives. Further, the Court expansively interpreted the category of student expression that is subject to CENSORSHIP as that which occurs in school publications and in all school- sponsored activities. In both Hazelwood and Fraser, the Court indicated that school authori- ties could determ ine for themselves the expres- sion that is consistent with their schools’ objectives. The Supreme Court, in Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007), extended the power of school authori- ties to regulate speech. A principal may restrict student speech at a school-supervised event when that speech is reasonably viewed as promoting illegal drug use. The student in question displayed a banner reading “Bong Hits 4 Jesus” across the street from the school he attended. Because he had been excused for a school event, school officials could discipline him for violating the school district’s anti-drug policy. The Court reaffirmed Tinker and made clear that schools had an “important, indeed, perhaps compelling interest” in deterring drug use by students. Although many questions remain unan- swered concerning the application of the First Amendment guarantee of free speech in the unique forum of the public school, the law does seem to be settled in the following areas: n School offici als may discipline students whose speech or expression materially and substantially disrupts the educational environment (Bethel School Dist. 403 v. Fraser). n School administrators may reasonably reg- ulate the content and distribution of printed material at school (Hazelwood School Dist. v. Kuhlmeier). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 76 EDUCATION LAW n The Equal Access Act (Pub. L. 98-377, Title VIII, Aug. 11, 1984, 98 Stat. 1302 [20 U.S. C.A. §§ 4 071 et seq.])requiresaschoolto permit religious student groups to meet during non-instructional time i f the school permits other extracurricular groups to meet in the same or a similar manner (Board of Education v. Mergens, 496 U.S. 226, 110 S. Ct. 2 356, 110 L. Ed. 2d 191 [1990]). n School officials have far more control and flexibility in selecting and rejecting curric- ular materials than they do in deciding about library books and magazines (Board of Education v. Pico, 457 U.S. 853, 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982), 4 Ed. Law Rep. 1013 [1982]). n School officials may make judgments on the appropriateness of student speech in school, based on the content of the speech, when that speech is vulgar or otherwise offensiveinnature(Bethel School Dist. 403 v. Fraser). n School officials may reasonably regulate student speech and expression when its exercise either intrudes on the rights of others or is in some way inconsistent with a school’s overall curricular mission (see Fraser). Searches of Students and Lockers The FOURTH AMENDMENT to the U.S. Constitution provides that “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.” This provision is made applicable to the states through the due process clause of the FOUR- TEENTH AMENDMENT . The Supreme Court has stated that the BILL OF RIGHTS (the first ten amendments to the Constitution) is applicable to children, even in a classroom setting. To paraphrase the Court in Tinker, students do not shed their rights at the schoolhouse gates. Does the Tinker ruling suggest that the Fourth Amendment protection from unreasonable searches extends to public schools? Must a principal obtain a warrant before searching students or their lockers? Are principals to be held to the “probable cause” standard that is generally required by the Fourth Amendment? These are important questions because evidence of wrongdoing that is obtained in an illegal search is generally inadmissible; that is, it must be excluded from consideration at trial. The issue of admissibility of evidence is especially critical when school officials are searching for drugs, alcohol, or weapons. The U.S. Supreme Court addressed these questions in 1985, in New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720. The case involved a 14-year-old girl, T.L.O., and a female companion, whom a teacher observed smoking in the girls’ restroom in violatio n of school rules. T.L.O. denied smoking on that occasion and claimed she did not smoke at all. The assistant principal opened T.L.O.’s purse and found a pac k of cigarettes. While searching the purse, he also discovered evidence of marijuana possession, use, and sale. He then called the police. T.L.O. subsequently admitted her involvement in selling marijuana to other students, but she sought to have the evidence excluded in criminal court on the ground that the search violated her rights under the New Jersey Constitution and the Fourth Amendment to the U.S. Constitution. This issue was litigated at three levels in the New Jersey courts and finally decided by the U.S. Supreme Court. The Court held that the assistant principal did not need a warrant to search T.L.O. and that the reduced stan dard of “reasonable suspicion” governs school searches. The Court established a two-pronged test of reasonableness: (1) the search must be justified at its inception; and (2) as conducted, the search must be reasonably related in scope to the circumstances. The Court weighed T.L. O.’s interest in privacy against the school’s need to obtain evidence of violations of school rules and of the law. The result tipped the scale in favor of broad school discretion in searching for contraband in students’ pockets, purses, and lockers. State and federal courts have expanded the scope of T.L.O. since it was decided in 1985. The reasonable-suspicion standard has survived student challenges in searches of lockers, desks, and cars in school parking lots. A 1995 ruling by the U.S. Supreme Court continued the erosion of students’ Fourth Amendment rights that began with the T.L.O. decision. In Vernonia School District 471 v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564, the Court rejected a constitutional challenge to a public school district’s random GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EDUCATION LAW 77 urinalysis testing program for students who participate in interscholastic athletics. In exam- ining the “nature of the privacy interest” at stake, the Court explained that public-school children generally have diminished privacy interests because they require constant supervi- sion and control. Athletes further have their privacy interests diminished, the Court wrote, because they regularly undergo physical exams and routinely experience conditions of “com- munal undress” in locker rooms. The court held that the district’s random testing program was minimally intrusive because the program re- quired urine collection under conditions that were virtually identical to those that students confront in public-school restrooms. Finally, the Court found several goals of the school district to be sufficiently compelling to justify random testing: deterring drug use in schoolchildren, maintaining the functi oning of the schools, and protecting athletes from drug-related injury. The Court’s ruling enabled school systems that follow the procedures approved in Vernonia to test student athletes randomly for drugs. It remained unclear, however, whether school districts may conduct drug testing of students who are not involved in athletics. Drugs are not the only items that are subject to searches by schools, and searches are not limited to high-school students. In Jenkins v. Talladega City Board of Education, 115 F.3d 821 (11th Cir. 1997), the Eleventh CIRCUIT COURT of Appeals held that two eight-year-old girls who were subject to two strip searches could not recover under theories that the teachers who had conducted the searches had violated state and federal law. Both teachers, along with the superintendent of the school district, were protected by qualified immunity, which applies when a state actor’s conduct does not violate “clearly established statutory or constitutional rights of which a REASONABLE PERSON would have known.” The case arose when a schoolteacher in Talladega, Alabama, suspected that two second- grade girls had stolen money from a classmate. The teacher, along with a guidance counselor, subjected the girls to two strip searches in the girls’ restroom at the school. Both searches proved fruitless. The parents of the children later brought an action alleging that the teachers had violated the girls’ rights under the First and Four teenth Amendments of the U.S. Constitution, Title IX of the Education Amend- ments of 1972 (20 U.S.C.A. § 1681), and Alabama law. The U.S. district court for the Northern District of Alabama granted SUMMARY JUDGMENT in favor of the defendants, holding that they were immune from the suit as state actors acting within their official capacities. Although a panel of the Eleventh Circuit reversed part of the district court ’s decision, the full court affirmed the dismissal of the case. The CASE LAW governing these types of searches was T.L.O., but the U.S. Supreme Court’s decision, according to the majority in Jenkins, was not defined clearly enough to put defendants on notice that their actions were unconstitutional or contrary to the law. For example, T.L.O. did not clarify whether a search of a younger student was more intrusive than one of an older student; whether a search of a girl was more intrusive than a search of a boy; or what kind of infraction is serious enough to warrant a strip search. Without this information, held the Jenkins majority, the defendants could not have known that their actions were unconstitutional. They were, therefore, immune from suit. Separation of Church and State The First Amendment provides that “Congress shall make no law respecting an establishment of RELIGION, or prohibiting the free exercise thereof.” The First Amendment has been incorporated into the Fourteenth Amendment and applies to the states and their subdivisions. The first provision is called the establishment clause; the second, the free exercise clause. Thus, the guarantee of religious freedom has a double aspect. The establishment clause prohibits laws requiring that anyone accept any belief or creed or the practice of any form of worship. Courts have relied on the establishment clause to nullify numerous practices in public schools, such as offering school-prescribed prayers in classrooms and at commencement exercises, posting the Ten Commandments in classrooms, requiring Bible reading, displaying religious symbols, observing moments of silence, studying scientific creation- ism, and distributing Bibles. The free exercise clause safeguards the freedom to engage in a chosen form of religion. Again, practices in the public schools have produced a host of litigation on this clause of the First Amendment. Parents with strong religious convictions have brought numerous suits alleging that a part of the science, health, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 78 EDUCATION LAW . Chief Financial Officer Office of Management Office of the Chief Information Officer Office of Planning, Evaluation and Policy Development Office of the Deputy Secretary Office of Safe and Drug-Free. Universities Staff Office of the General Counsel Office of Inspector General Institute of Education Sciences Office for Civil Rights Office of Legislation & Congressional Affairs Office of the Chief Financial. education of disabled children; EMPLOYMENT LAW; employee SEXUAL HARASSMENT and abuse of students; instructional programming; and the financing of public education. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD