and place of the meeting in local newspapers. School board meetings give the public an opportu- nity to express opinions on educational policy. State statutes set forth minimum qualifica- tions for public school teachers. Most states require full-time teachers to have a four-year degree from a college or university and to have completed a student-teaching program. States may add other prerequisites, such as physical and psychological examinations and drug tests. Upon completing all the prerequisites, a teacher may obtain the license or permit necessary to teach in a particular state. States require public school teachers to complete a probationary period before they receive tenure. In the context of employment, tenure is a status that carries with it certain rights and protections, the most important of which is the protection from summary dis- missal. A teacher who has gained tenure status Private School Vouchers: Church vs. State T he specifics of school tuition voucher systems vary from pro- gram to program, but generally such systems offer parents of schoolchildren a tax-funded voucher that is redeemable at the educational institution of their choice. The vouchers are issued yearly or at some other regular interval, and they pay for a certain amount of tuition fees each year at nonpublic and alterna- tive charter schools. The most contro- versial programs allow parents to use the publicly funded vouchers to pay tuition at a religious school. Private school vouchers implicate at least two provisions in the U.S. Consti- tution: the establishment and free exer- cise of religion clauses in the FIRST AMENDMENT . According to the U.S. SU- PREME COURT , the establishment clause prohibits the federal government and the states from setting up a religious place of worship, passing laws that aid religion, and giving preference to one religion or forcing belief or disbelief in any religion (Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 [ 1947]). Private school vouchers have been chal- lenged under the establishment clause, because they involve a form of govern- mental support that may be used for religious-oriented activities. Critics of private school vouchers have charged that taxpayer support for religious schools is a patent violation of the establishment clause. Critics also note that because vouchers do not cover the entire amount of tuition at a private school, the option of private school remains out of reach for the lowest- income students. Opponents of private school vouchers further claim that vou- chers rob public schools of funds because funding is based in part on student enrollment. Finally, critics maintain that vouchers implicate other constitutional provisions, such as the EQUAL PROTECTION clause of the FOURTEENTH AMENDMENT, because they provide taxpayer funds to institutions that may discriminate on the basis of race, religion, disability, or socioeconomic status. Supporters of private school vou- chers have argued that voucher systems are actually protected by the First Amendment. According to advocates, the First Amendment, with its guarantee of the free exercise of religion, protects vouchers because they give devoutly religious parents the same rights as less devout parents: public funding for the education of their children. In this view, educational systems without private school vouchers violate the First Amend- ment by discouraging religion and plac- ing devout parents at a disadvantage. Supporters contend that vouchers merely provide some balance of rights between devoutly religious parents and less de- vout or nonreligious parents. Other supporters of private school vouchers focus on the aspect of choice. Whereas public schools are increasingly perceived as inadequate and dangerous, private schools are viewed by many as offering safe, high-quality education. In response to these perceptions, legislators have offered private school vouchers as a means of escape from public schools. Supporters of private school vouchers assert that they offer potential benefits for impoverished children. Under some proposals, private school vouchers would give a limited number of low-income families another choice for their chil- dren's schooling. Proponents of private school vou- chers cite such political philosophers as JOHN STUART MILL, THOMAS PAINE, and Adam Smith as early advocates of school vouchers. Mill, Paine, and Smith did, in fact, argue that the fairest and most efficient way to fund public education would be to give parents money that they could spend on tuition at a school of their choice. Detractors counter that these views received no attention until 1955, the year after the Supreme Court outlawed racial SEGREGATION in public schools in BROWN V. BOARD OF EDUCATION OF TOPEKA (347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 [1954]). According to many voucher opponents, the real driving force behind private school vouchers is an effort to facilitate the flight of white GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 28 SCHOOLS AND SCHOOL DISTRICTS may not be terminated from a teaching position without the benefit of a lengthy procedure. The termination process may include a detailed account of reasons for the termination, an opportunity for the teacher to correct any problems, a hearing with school district admin- istrators, review and judgment by school district administrators, and, finally, a meeting with the school board, which votes on whether the teacher should be dismissed. Teachers who have not attained tenure have no recourse for a firing. In any case, a public school teacher can only be terminated for cause, or some substan- tial, articulable reason. A teaching license may be revoked if the teacher engages in conduct that demonstrates unfitness to teach. The prohibited conduct varies with different states, school districts, and school boards. A criminal conviction that involves MORAL TURPITUDE, such as a conviction for theft, dishonesty, or sexual ASSAULT,generallyisavalid ground for revocation of a teaching license. persons from city schools that have large nonwhite student populations. Proposals for private school voucher systems have been rejected by courts and defeated at the polls, but voucher advo- cates have been unrelenting. In 1998, in an 8-1 ruling, the U.S. Supreme Court refused to hear a challenge to the Wisconsin school voucher system, which was upheld as constitutional by the Wisconsin Supreme Court in Jackson v. Benson (218 Wis. 2d 835, 578 N. W. 2d 602 [1998]). While the Court's action set no national legal precedent, it signaled a willingness by the Court t o permit vouchers. Wisconsin had been using a voucher system since 1989, but in 1995 the Wisconsin legislature amended the law. The original voucher plan allowed up to 1.5 percent of Milwaukee public school students to attend any private nonsectar- ian school of their choice. The new program allowed use of the vouchers for enrollment in sectarian private schools, and it increased allowable student enroll- ment to 15 percent. But most significant was the mandate that monies would no longer be paid directly to the chosen schools. Instead, a state check would be paid to the student's parent or guardian, who would endorse the check and forward it to the school of choice. Opponents challenged the new law, claiming that it violated the establishment clause. The Wisconsin Supreme Court disagreed. It concluded that the statute did not pro- mote religion, but rather provided parents with a “religious-neutral benefit.” The U.S. Supreme Court took up vouchers again in Zelman v. Simmons- Harris (536 U.S. 639, 122 S. Ct. 2460, 153 L. Ed. 2d 604 [2002]). The Court, in a 5-4 decision, upheld the constitutionality of a voucher program established for Cleve- land, Ohio. The voucher program pays scholarships based on family income, with a maximum annual payment of $2,250 per child. The parents are sent a check that may be used to pay tuition at private and parochial schools. For the 1999–2000 school year, approximately 3,700 children enrolled in the program, with 60 percent of the children from families at or below the poverty level. Of the 56 schools that participated, 46 were church-affiliated and actively taught Christian doctrines; 96 percent of the scholarship students attended the reli- gious schools. The curriculum of these schools intertwined religious beliefs and secular topics. After a parent filed suit in federal court challenging the law, the district court ruled the voucher program uncon- stitutional. The Sixth Circuit Court of Appeals upheld this decision, basing its ruling on a 1973 Supreme Court deci- sion, Committee for Public Education v. Nyquist (413 U.S. 756, 93 S. Ct. 2955, 37 L. Ed. 2d 948 [1973]). The Court in Nyquist struck down a New York tuition reimbursement plan that provided low- income parents with partial reimburse- ment for sending their children to private elementary and secondary schools only. The Supreme Court overturned the Sixth Circuit decision. Chief Justice WILLIAM REHNQUIST, in his majority opinion, ruled that the program did not violate the establishment clause. Rehnquist stated that the “program is entirely neutral with respect to religion” because “it provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district.” The law “permits such indivi- duals to exercise genuine choice among options, public and private, secular and religious.” Proponents of vouchers saw Zelman as a major victory. They believed that the decision cleared the way for similar voucher programs throughout the United States. Opponents reiterated their concerns that voucher programs would take away public education dollars from school systems and divert them to private schools. In 2006 the Florida Supreme Court ruled that a state school voucher program was unconstitutional under its state constitution. A universal school voucher program was enacted by the Utah State Legislature in 2007, but voters passed a REFERENDUM repealing the law before it became effective. As of 2009, only a handful of states had enacted some type of school voucher program. Only 61,000 of 50 million U.S. students attend school with a voucher. FURTHER READINGS Bolick, Clint. 2003. Voucher Wars: Waging the Legal Battle over School Choice. Washing- ton, D.C.: Cato Institute. Moe, Terry M. 2001. Schools, Vouchers, and the American Public. Washington, D.C.: Brookings Institution. CROSS REFERENCE Religion. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCHOOLS AND SCHOOL DISTRICTS 29 Schools and school districts have a great deal of control over public school students. Rules and regulations can vary from school to school and range from restrictions on appearance and hair length to prohibitions on electronic transmission devices, or beepers. Schools may not implement unreasonable rules, however. Before a student can be suspended from school for a lengthy time period, the school must give the student notice of the intent to suspend and an opportunity to be heard by school officials. Students may not be forced to pray in school or to pledge allegiance to the U.S. flag. Teachers may inflict CORPORAL PUNISHMENT to control, train, or educate a student but may use only such force as is necessary for those purposes. The amount of force that is permissible varies according to the situation, with careful consideration given to the student’sage and maturity. A teacher may use more force on an older, physically mature high-school student than on a younger, less mature student. Despite the general acceptance by the courts of some measure of corporal punishment, the threat of LITIGATION makes corporal punishment a poten- tially risky behavior. Beginning in the 1990s, school boards adopted zero-tolerance polices toward drugs and weapons on school grounds. Violations of ZERO TOLERANCE policies typically lead to suspension or expulsion from the school. The federal Drug Free School Act and Gun Free School Act require the expulsion and arrest of students who bring illegal drugs and firear ms to school. At the heart of these policies and laws is the desire to protect students and teachers and to prevent illegal activities from taking place on school district property. However, school districts have broadened zero tolerance to include an array of infractions, including the wearing of clothing associated with GANGS, and threats directed at other persons. Zero-tolerance policies have attracted critics, who contend that overly rigid inter- pretations of the rules, coupled with severe punishments, can lead to disproportionate results. In 2001, the AMERICAN BAR ASSOCIATION (ABA) issued a statement in which it criticized zero-tolerance rules for failing to take into account the individual circumstances of each case or the individual student’s history. The ABA called for the end of such rigid policies. Nevertheless, the courts generally support school district zero tolerance policies, especially when drugs or weapons are the issue. School districts have the right to require students to take drug tests if they wish to participate in athletic and extracurricular activi- ties. The U.S. SUPREME COURT,inBoard of Education, Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002), concluded that the drug-testing pro- gram was reasonable under the FOURTH AMEND- MENT because it furthered the school district’s “important interest in preventing and deterring drug use amon g its schoolchildren.” Moreover, the court found that violation of student privacy interests was minimal. School districts are also not bound by rigid rules of privacy when it comes to having students grade each other’s papers and tests. The Supreme Court, in Owasso Independent School District No. I-011 v. Falvo, 534 U.S. 426, 122 S.Ct. 934, 151 L.Ed.2d 896 (2002), reviewed the scope of the federal Family Educational Rights and PRIVACY ACT OF 1974 (F ERPA) 20 U.S.C.A. § 1232 (g), which regulates the release of student educatio n records. The Court rejected the claim that peer grading violated FERPA. To rule otherwise would “force all instructors to take time, which otherwise could be spent teaching and in preparation, to correct an assortment of daily student assignments.” Students enrolled (in millions) Public elementary and secondary schools Private elementary and secondary schools a 1970 1980 1985 1990 1995 2000 2006 Year SOURCE: U.S. Department of Education, National Center for Education Statistics, Digest of Education Statistics, 2008. Enrollment in Public and Private Schools, 1970 to 2006 45.9 5.4 0 10 20 30 40 50 60 40.9 5.3 39.4 5.5 41.2 5.6 44.8 5.9 47.2 6.2 49.3 6.1 a Beginning in fall 1980, data include estimates for an expanded universe of private schools. Therefore, these totals may differ from figures shown in other tables, and direct comparisons with earlier years should be avoided. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 30 SCHOOLS AND SCHOOL DISTRICTS The court concluded that Congress would never have meant to “intervene in this drastic fashion with traditional state functions.” A school board has power only over the public schools within its school district. Pri- vate schools must comply with generally applicable federal, state, and local laws, but they are privately owned and operated and are not obligated to follow the rules and regulations of the school district in which they are located. Private schools are not governed by the U.S. Constitution and state constitut ions in the same way that public schools are. Constitutions Charter Schools: The Educational Petri Dish M B ost families think that they have only three choices for the education of their school-age children: a sectarian school or other form of private school that charges tuition, a free public school , or home schooling. In many states there is a fourth option: a charter school. Charter schools do not have a religious agenda and are free of cost, but they differ from the typical public school. Although charter schools are governed by the public school district in which they are located, they are free of many of the constraints imposed on other public schools in the district. Charter schools are created to be innovative and experimental in nature and to serve as models for future ch anges in ordinary public schools. The classes offered by c harter schools may differ in substance from classes in public schools, and the teachers may use new, alternative approaches to education. Charter schools re present an opportunity to experience a form of experimental, alternative schooling that was previously open only to students who could afford alternative private schools o r who could be educated at home. Parents also like charter schools because they have a say in t he school's administration. Charter schools usually are run by a board comprised of the t eachers in the school and a few of the students' parents. The board makes its own decisions on-site. Unlike other publi c schools, a charter scho ol does not have to seek appro val from the school district or school board befo re it can t ake action. T o teach English literature, for example, the teachers at a charter school might discard the traditional texts prescribed for other public schools and assign only contemporary poetry. They might even decide t hat their students should study poetry by attending open poetry readings or by setting up their own regular poetry r eadings. The first charter scho ol legislation was passed in Minnesota in 1991 (Minn. Stat. Ann. §§ 120.064, 124.248 [West 1996]). Since 1991 approximately half of the states have enacted some form of charter school legislation. The details vary, but the pro- grams share the basic goal of creating a limited number of schools where teachers may experiment with a vari ety of learning techniques. The schools have a high degree of independence, but they are all results oriented. Thus, each school must s how a state or local governmental education agency that its students are making satisfactory progress. A state may, for example, require that students in charter schools pass a yearly achievement test to prove that they are receiving a well-rounded education. By virtue of their experimental nature, charter schools are highly individualistic. Some schools focus on a particular area of study, such as computers, the environment, the arts, or aeronau- tics. A school that emphasizes computers, for instance, will have a large number of personal computers and many teachers who specialize in computer edu cation. Other schools are designed for certain types of students, s uch as teenage students who have drop ped out before earning their high school degree. FURTHER READING Ericson, John, et al. 2001. Challenge and Opportunity: The Impact of Charter Schools on School Districts. Washing- ton, D.C.: Office of Educational Research and Improve- ment, U.S. Dept. of Education/GPO. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCHOOLS AND SCHOOL DISTRICTS 31 are designed mainly to protect persons from the actions of government. Public schools are funded by governments and so must answer to constitutions, but private schools are not funded by public monies, so their actions are not deemed governmental in nature. Public school districts have little involve- ment with private schools for another reason: the Establishment Clause of the FIRST AMEND- MENT . Under the Establishment Clause, Con- gress may not make any laws respecting the establishment of, or prohibiting the free exercise of, religion. The Establishment Clause has been made applicable to the states by the U.S. Supreme Court, which has interpreted the clause to mean that public schools should be free of religious influences. This does not mean that public schools can have no connection with private schools. In many school districts, public schools share buses and textbooks with private schools, and these arrangements have not been declared unconstitutional. In 1997, in Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997, 138 L. Ed. 2d 391, the Supreme Court reversed its decisions in Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232, 87 L. Ed. 2d 290 (1985) and School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 105 S. Ct. 3216, 87 L. Ed. 2d 267 (1985) and held that a public school teacher may teach disadvantaged students in a private school classroom if the legislation authorizi ng such activity contains safeguards that prevent the teacher from advancing religion. Many states have set up programs that challenge the limits of the Establishment Clause. Voucher programs are an example of education-related legislative experimentation with the Establishment Clause. Under a voucher program, the state provides taxpayer money to parents and guardians of public school students to be used to send the students to religious or private schools. The Supreme Court, in Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), upheld the constitutionality of an Ohio program that provided low-income Cleveland parents tax- supported vouchers worth $2,250 per pupil, which they could use to transfer a child to a participating private school of the family’s choice. The court stated that “Cleveland’s pilot program permits individuals to exercise genuine choice among options public and private, secular and religious.” The decision cleared the way for other states to adopt voucher programs. School districts do not have power over sectarian private schools, but they do have authority over home schools. Home schooling is a form of education provided by parents or guardians. By 2007, 1.5 million children were home-schooled in the U.S. The growing popularity of charter schools puts additional administrative burdens on school districts. Charter schools do not have a religious agenda and are free of cost, but they differ from the typical public school. Although charter schools are governed by the public school district in which they are located, they are free of many of the constraints imposed on other public schools in the district. The first charter school legislation was passed in Minne- sota in 1991. By 2009 there were more than 4,000 charter schools in the U.S., serving over one million students. Charter schools are created to be innovative and experimental in nature and to serve as models for future changes in ordinary public schools. The classes offered by charter schools may differ in substance from classes in public schools, and the teachers may use new, alterna- tive approaches to educat ion. They usually are run by a board comprising the teachers in the school and a few of the students’ parents. The board mak es its own decisions on-site. Unlike other public schools, a charter school does not have to seek approval from the school district or school board before it can take action. However, each school must show a state or local governmental education agency that its students are making satisfactory progress. A state may, for example, require that students in charter schools pass a yearly achievement test to prove that they are receiving a well-rounded education. Schools and school districts continually adapt their policies, rules, and regulations to keep pace with societal changes and to meet the needs of students and the community. Curric- ula, grades, attendance requirements, and age standards vary from district to district and even from school to school. The federal government imposed new requirements on local school districts when it enacted the No Child Left Behind Act of 2001 (NCLB). The act, which was proposed by GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 32 SCHOOLS AND SCHOOL DISTRICTS President GEORGE W. BUSH, contained sweeping reforms for the U.S. public school system and was centered on four basic principles: increased accountability by school districts, increased flexibility and local control, expanded options for parents, and an emphasis on proven teaching methods. Under the NCLB, states have developed learning standards for students and have insti- tuted annual testing to ensure that the standards have been met. Schools must make Adequate Yearly Progress in test scores to continue to receive federal aid. If they fail to meet these standards, they may be closed. Test results for each school in the United States are published yearly, which places pressure on school districts to improve failing schools. By 2009, NCLB continued to generate debate over its effective- ness. Proponents pointed to rising test scores throughout the country, while critics charged that teachers were forced to “teach to the test” so students’ test scores would continue to rise. FURTHER READINGS Abernathy, Scott. 2007. No Child Left Behind and the Public Schools. Ann Arbor: Univ. of Michigan Press. Green, Preston C., and Julie F. Mead. 2003. Charter Schools and the Law: Establishing New Legal Relationships. Norwood, Mass.: Christopher-Gordon. Sugarman, Stephen D., and Emlei M. Kuboyama. 2001. “Approving Charter Schools: The Gate-Keeper Func- tion.” Administrative Law Review 53 (summer). Yudof, Mark G., David L. Kirp, and Betsy Levin. 2001. Educational Policy and the Law. 4d ed. San Francisco: Wadsworth. CROSS REFERENCES Abington School District v. Schempp; Brown v. Board of Education of Topeka, Kansas; Civil Rights; Education Law; Engel v. Vitale; In Loco Parentis; Integration; School Desegregation. SCIENTER [Latin, Knowingly.] Guilty knowledge that is sufficient to charge a person with the consequences of his or her acts. The term scienter refers to a state of mind often required to hold a person legally accountable for her acts. The term often is used interchangeably with mens rea, whic h describes criminal intent, but scienter has a broader application because it also describes knowledge required to assign liability in many civil cases. Scienter denotes a level of intent on the part of the defendant. In Ernst and Ernst v. Hochfelder, 425 U.S. 185, 96 S. Ct. 1375, 47 L. Ed. 2d 668 (1976), the U.S. Supreme Court described scienter as “a mental state embracing intent to deceive, manipulate, or defraud.” The definition in Ernst was fashioned in the context of a financial dispute, but it illustrates the sort of guilty knowledge that constitutes scienter. Scienter is relevant to the pleadings in a case. Plaintiffs and prosecutors alike must include in their pleadings allegations that the defendant acted with some knowledge of wrongdoing or guilt. If a legislative body passes a law that has punitive sanctions or harsh civil sanctions, it normally includes a provision stating that a person must act willfully, knowingly, inten- tionally, or recklessly, or it provides similar scienter requirement. Legislative bodies do not, however, always refer to scienter in statutes. In the Ernst case, the investors in a brokerage firm brought suit against an account- ing firm after the principal investor committed suicide and left a note revealing that the brokerage firm was a scam. The investors brought suit for damages against the brokerage firm’s accounting firm under sections 10(b) and 10b-5 of the Securities Exchang e Act of 1934 (15 U.S.C.A. § 78a et seq.), which makes it unlawful for any person to engage in various financial transgressions, such as employing any device, scheme, or artifice to defraud, or engaging in any act, practice, or course of business that operates as a FRAUD or deceit upon any person in connection with the purchase or sale of any security. Significantly, the Securities Exchange Act does not mention any standard for intent. The courts had to decide whether a party could make a claim under the act against a person without alleging that the person acted inten- tionally, kno wingly, or willfully. The investors in Ernst did not allege that the accounting firm had an intent to defraud the investors. Rather, they alleged only that the accounting firm had been negligent in its accounting and that the NEGLIGENCE constituted a violation of the Securities Exchange Act. The Supreme Court ruled that an allegation of negligent conduct alone is insufficient to prove a violation of the Securities Exchange Act. According to the Court, the language in the act reflected a congressional intent to require plaintiffs to prove scienter on the part of the defendant to establish a claim under the act. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCIENTER 33 Most courts hold that reckless conduct may also constitute scienter. The definition of reckless includes conduct that reasonable persons know is unsafe or illegal. Thus, even if a defendant did not have actual knowledge that his behavior was criminal, scienter may be implied by his reckless actions. In some cases the level of scienter required to find a defendant liable or culpable may fluctu- ate. In Metge v. Baehler, 762 F.2d 621 (1985), a group of investors brought suit against a bank, alleging that the bank had aided and abetted a securities fraud operation. To establish a defendant’s liability for aiding and abetting a securities fraud transaction, the plaintiff must prove that there was a SECURITIES LAW violation, that the defendant knew about the violation, and that the defendant substantially assisted in the violation. In sending the case back to the trial court, the U.S. Court of Appeals for the Eighth Circuit stated that in a case alleging aiding and abetting, more scienter is required if the plaintiff has little proof that the defendant substantially assisted in the violation. The court noted that the bank seemed blameworthy only because it failed to act on possible suspicions of impropriety and that the bank had no duty to notify the plaintiffs about the actions of others. In such a case, the court advised that “an alleged aider-abettor should be found liable only if scienter of the high ‘conscious intent’ variety can be proved. Where some special duty of disclosure exists, then liability should be possi- ble with a lesser degree of scienter.” In some cases or claims, a plaintiff need not prove that the defendant acted with any scienter. These cases or claims are based on STRICT LIABILITY statutes, which impose criminal and civil liability without regard to the mental state of the defendant. For example, a statute that prohibits the sale of cigarettes to minors may authorize punishment for such a sale even if the seller attempted to verify the buyer’s age and believed that the buyer was not a minor. Courts have held that a legislative body may not authorize severe punishment for strict liability crimes because severe punishment is generally reserved for intentional misconduct, reckless conduct, or grossly negligent conduct. In United States v. Wulff, 758 F.2d 1121 (1985), the U.S. Court of Appeals for the Sixth Circuit declared that the felony provision of the MIGRATORY BIRD TREATY Act, 16 U.S.C.A. § 703 et seq., was unconstitutional because it made the sale of part of a migratory bird a felony without proof of scienter. According to the court, eliminating the elem ent of criminal intent in a criminal prosecution violates the DUE PROCESS CLAUSE of the FIFTH AMENDMENT to the U.S. Constitution unless the pen alty is relatively small and the conviction does not gravely besmirch the reputation of the defendant. The penalty in the act authorized two years in prison and a $2,000 fine, and the court considered that punishment too onerous to levy against a person who had acted without any scienter. FURTHER READINGS Bard, Lawrence R. 1992. “A Distinct-Responsibility Ap- proach to Accountants’ Primary Liability under Rule 10B-5.” George Washington Law Review 61 (November). Hodges, Clarissa S. 2002. “The Qualitative Considerations of Materiality: The Emerging Relationship between Mate- riality and Scienter.” Securities Regulation Law Journal 30 (spring). Karmel, Roberta S. 2001. “‘Wharf,’ the Reform Act and Scienter.” New York Law Journal (December 26). Langevoort, Donald C. 2006. “Reflections on Scienter.” Lewis & Clark Law Review 10 (spring). CROSS REFERENCE Aid and Abet. SCIENTIFIC EVIDENCE Evidence presented in court that is produced from scientific tests or studies. Scientific evidence is evidence culled from a scientific procedure that helps the trier of fact understand evidence or determine facts at issue in a judicial proceeding. Under rule 702 of the FEDERAL RULES OF EVIDENCE and similar state court rules of evidence, “a witness qualified as an expert by knowledge, skill, experience, training, or education” may testify and offer opinions in court if “scientific, technical, or other special- ized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Article VII of the Federal Rules of Evidence contains other rules on EXPERT TESTI- MONY and scientific evidence. All states have rules on expert testimony and scientific evi- dence that are similar to the rules in article VII. Expert testimony on scientific evidence is different from ordinary testimony from layper- sons. A lay witness may testify to inferences and give opinions only if they are rationally based upon the witness’s perceptions of the subject of the testimony. Experts, by contrast, may give GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 34 SCIENTIFIC EVIDENCE opinions and testify about possible inferences based in part on information obtained from secondhand sources and not from observation of the object of the testimony. For example, a layperson would not be allowed to take the witness stand and offer an opinion on a plaintiff’s injury unless the individual had witnessed relevant information regarding the injury. How- ever, a doctor who is certified as a specialist in the particular injury could take the stand and offer opinions on the injury based not only on an examination of the plaintiff but also on secondhand information that is normally relied on by experts in that particular field of medical study. One of the most important issues that arises in expert testimony is which scientific procedures a court should accept as evidence. Many scientific procedures are not seriously in dispute and are accepted by courts with little or no inquisition into their validity. Examples include fingerprint tests for purposes of identification, blood tests, breathalyzer tests for alcohol con- sumption, and ballistics tests of bullets and their impact areas. These scientific procedures are so widely accepted that a court may take JUDICIAL NOTICE of the procedure’s validity. Judicial notice means that the parties in the case do not have to present evidence to the court to establish the validity of the scientific procedure. In some instances legislatures have specifically authorized the use of scientific tests, such as breathalyzer tests for suspected drunk drivers. Whether they are judicially noticed or legislatively mandated, scientific tests that are universally accepted must be presented by a qualified expert. A person is established as a qualified expert before the court through questioning by the attorney who is using the witness as an expert. The attorney asks a series of questions to establish that the witness has adequate education and trai ning to testify as an expert—a process called laying a foundation for the witness. Once the court is convinced that the witness is an expert on the procedure or subject matter that will be presented as evidence, the witness gives an expert opinion to the exact procedures that were used or the factual circumstances that aro se in the case at hand. For example, assume that a person sues a doctor for MEDICAL MALPRACTICE, arguing that the defendant failed to set a broken bone properly. If the plaintiff offers a bone specialist as an expert witness on the issues surrounding the care he received from the defendant, the expert witness must testify about the witness’s creden- tials and give details about the plaintiff’s treatment. Some scientific tests and examinations that are not universally accepted are nevertheless generally considered reliable. Some examples are neutron activation analysis to determine the identity of goods, voiceprints to determine a person’s identity, and genetic testing or DNA analysis. These types of scientific procedures may be accepted in the medical communities, but they are not so established that they may be judicially noticed as automatically valid sources of scientific evidence. They may be admitted as evidence, but only after an expert witness has testified to the validity of the test. In determining whether to admit scientific evidence from procedures that are not universally accepted, a court must ask whether the test is reliable. A technique’s reliability depends on a number of factors, including whether the technique can be or has been tested, whether it has been subjected to peer review, whether the test procedures have been published, whether the test has a margin of error and, if so, at what rate, and whet her the technique, as applied, conformed to existing standards for the test (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 [1993]). In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) the U.S. Supreme Court ruled that the Daubert standards govern not just the admissi- bility of scientific evidence in federal court, but should be applied to all witnesses seeking federal court approval to testify as an expert. Thus, the Supreme Court found that a pur- ported expert on tire failure was subject to a Daubert inquiry before he could be permitted to testify on the subject in a products liability trial, even if some of his proffered testimony was not wholly “scientific.” The lower court had attempted to draw a distinction between scientific expert for which the Daubert standards did apply and a technical expert for which the Daubert standards did not apply. By expanding the DAUBERT TEST, the Court reemphasized the trial court’s broad discretion in matters of expert testimony. In some instances courts are reluctant to admit certain scientific evidence because the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCIENTIFIC EVIDENCE 35 procedures yield results that are not considered sufficiently reli able to be used as evidence. Such procedures include POLYGRAPH and chemical tests that have been created to determine whether a person is telling the truth. If all parties agree that testimony derived from such procedures shall be admissible, however, a court is free to allow the evidence to be introduced. In any case, regardless of the level of acceptance of a particular scientific procedure, the scientific evidence presented must be relevant to the issue at hand. Furthermore, the scientific evidence must have be en obtained in a manner that is consistent with the way such evidence is normally obtained. For instance, assume that a physicist intends to testify to the speed of the defendant’s vehicle in a personal injury case stemming from a car accident. If the physicist used different methods from those used by other physicis ts in determining a vehicle’s speed, the court may refuse to allow the physicist to testify as to the vehicle’s speed. An expert witness giving testimony on scientific evidence may offer opinions on issues related to that evidence. An expert witness may also give an opinion on the ultimate issue in the case. Under rule 704 of the Federal Rules of Evidence, however, an expert witness testifying with respect to the mental state or condition of a criminal defendant may not state “an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.” This rule, which is applied by courts only in criminal cases, was approved by the U.S. Congress in 1984, largely in response to the outcome of the criminal prosecution of John Hinckley, who attempted to assassinate President RONALD REAGAN in 1981. Hinckley was charged with attempted assassina- tion, assault on a federal officer, and use of a firearm in the commission of a federal offense, but was found not guilty by reason of insanity after the jury heard testimony from a psychia- trist who declared that Hinckley could not be found guilty because he lacked the knowing mental state required for a conviction on the charges. The weight given to scientific evidence may vary according to the particular test that yielded the evidence. One party’s expert testimony may be convincing, but it may not be dispositive of the case because the other party may have experts from the same field who have studied the same evidence and come to different conclusions. Experts have become indispensable to the vast majority of litigated cases, and many cases, civil and criminal alike, come down to a battle between experts. One notable exception to this trend is the PATERNITY case, in which blood test results or DNA test results can establish the ultimate issue in the case. This is true, however, only if the parties in the paternity case agree that the particular tests will be conclusive and if the tests show that the individual named as the father could not be a parent of the child in question. If the tests show that the individual named as the father could be the parent, the test results will not dispose of the case, and the parties will have to present further evidence. Courts have the discretion to appoint an expert witness to testify to scientif ic evidence. Under rule 706 of the Federal Rules of Evidence and similar state court rules of evidence, a court may appoint an expert to present evidence on a particular topic and order compensation for the expert’s time and effort. Typically, in a civil case, the parties must apportion the costs as the court directs. In just compensation cases under the FIFTH AMENDMENT and in criminal cases, the court orders payment for the expert out of government funds. One of the most well-known experts on scientific evidence in the United States is Barry Scheck, a criminal defense lawyer who rose to prominence during the 1995 O.J. SIMPSON murder trial as a member of Simpson’sso- called “Dream Team.” In 1992 he and fellow Dream-Team member Peter Neufeld opened the National Association of Criminal Defense Lawyers’ Innocence Project, a nonprofit legal clinic at the BENJAMIN N. CARDOZO School of Law in New York. Through testing of DNA EVIDENCE , the Innocence Project has helped exonerate 127 wrongly convicted inmates. Scheck, 43, has chronicled the stories of his exonerated clients in books and on the lecture circuit. He also assisted Colorado prosecutors and police offi- cers investigating the Jon-Benet Ramsey murder case. FURTHER READINGS Guidotti, Tee L., and Susan G. Rose. 2001. Science on the Witness Stand: Evaluating Scientific Evidence in Law, Adjudication, and Policy. Beverly Farms, Mass.: OEM Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 36 SCIENTIFIC EVIDENCE Masters, Brooke A. 2000. “Helping Those Who Might Be Wrongfully Imprisoned; Lawyers, Students Pursue New Trials in Questionable Cases.” Washington Post (December 7). Moenssens, Andre A., and Carol E. Henderson. 2007. Scientific Evidence in Civil and Criminal Cases. 5th ed. New York: Foundation Press. CROSS REFERENCES Fingerprints; Forensic Science; Insa nity Defense. SCINTILLA A glimmer; a spark; the slightest particle or trace. “Scintilla of evidence” is a metaphorical expression describing a very insignificant or trifling item of evidence. The common-law rule provides that if there is any evidence at all in a case, even a mere scintilla, that tends to support a material issue, the case cannot be taken from the jury but must be left to its decision. A court may not enter a DIRECTED VERDICT where there is a scintilla of evidence which would support a contrary conclusion. However, the scintilla of evidence upon which a case must be sent to the jury must be real, material, pertinent, and relevant evidence, not speculative and theoretical deductions. CROSS REFERENCE Directed Verdict. SCIRE FACIAS [Latin, Made known.] A judicial writ requiring a defendant to appear in court and prove why an existing judgment should not be executed against him or her. In the law, scire facias is a judicial writ that is brought in a case that has already been before a court. Writ is the old English term for a judicial order. Some states still use the term. A scire facias writ commands the person against whom it is brought to appear before the court and show why the record should not be resolved in favor of the party who brought the writ. The scire facias writ originated in England, and its use was adopted by the American colonists. In eighteenth-century England, the writ was used to repeal letters patent. Letters patent were letters written by the king or queen that granted inventors exclusive patent rights over their inventions. Any person who thought a patent was invalid based on false information or the existence of a prior invention could ask the royal Court of Chancery to request the presence of the patent holder to justify the patent. If there was a genuine dispute about the validity of the patent, the patent holder could request a trial before a jury in the Court of King’s Bench. The jury resolved any issues of fact, and then the case was sent back to the Chancery. The chancellor made the final judgment on whether to revoke the patent. The scire facias writ did not survive in patent law. Under modern law, only a person with a case or controversy with respect to a particular patent may challenge the patent. Also, a claim of patent invalidity is not tried before a royal court but a federal patent court. However, the issue of patent valid ity may be tried before a jury, much like the old scire facias writ. In modern practice, the writ of scire facias is used in the enforcement and collection of judgments. When a plaintiff in a civil case obtains a money judgment against a defendant, the court order to pay the judgment may expire after a certain number of years if the judgment remains unpaid. State and federal laws allow the plaintiff to make a motion to the court before the time period expires to continue the effect of the court’s order. If the plaintiff fails to make such a motion, she may file a writ of scire facias to revive the judgment. The defendant would then have to appear before the court and explain why the judgment should not be revived. If the defendant has already paid the plaintiff, or if the defendant has evidence that he owes the plaintiff nothing, the defendant may present evidence and shift the burden of proof to the plaintiff. If the defendant is unable to defend his failure to pay the judgment, the court will order execution of the judgment. The court may order the defendant to submit to a financial status examination, to sell property to satisfy the judgment, or to take other measures to satisfy the judgment. The writ of scire facias has been abolished on the federal level and in most states. Plaintiffs may revive an expired or dormant judgment by filing a civil claim in a court of general jurisdiction and asking for revival of the judgment. The courts that have eliminated the writ have found its complex procedures unsuited to the needs of modern society. In some jurisdictions that still permit a scire facias writ, the writ has fallen into disuse. In Connecticut, for example, the judicially GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCIRE FACIAS 37 . The Impact of Charter Schools on School Districts. Washing- ton, D.C.: Office of Educational Research and Improve- ment, U.S. Dept. of Education/GPO. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCHOOLS. Vouchers, and the American Public. Washington, D.C.: Brookings Institution. CROSS REFERENCE Religion. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCHOOLS AND SCHOOL DISTRICTS 29 Schools and school. assortment of daily student assignments.” Students enrolled (in millions) Public elementary and secondary schools Private elementary and secondary schools a 197 0 198 0 198 5 199 0 199 5 2000 2006 Year SOURCE: