23 Feb 2004 Class Notes
Discussion of Academic Freedom cases and start
discussion of search and seizure cases
EDLD
5340
23 February 2005
Next Thursday we will receive the open note midterm
- chapters and cases through chap 9
- midterm will NOT go into chap 10 in A&A
plurality opinion in Pico
- see p 318 in A&A
- not a binding precedent
- is at best persuasive, has limited applicability
Pico case cited in Counts case, bottom of p. 315 2nd column
- restriction of access to Harry Potter
Remember from Tinker case
- student's don't leave their constitutional rights at the schoolhouse gate
If you knowingly violate someone's constitutional or statutory rights, you may be individually liable!
- you are just immunized from STATE claims by the state of Texas immunity provisions
- they won't protect you from federal court claims
Starting case tonight: p. 335
- Keefe case
- teacher's use of "dirty" word is protected if conveyed for demonstrated educational purpose
- in section following Pico, references fact that if there are other books in the library with the same "offensive" word that argues
- teacher makes case that the procedure was not extremely clear about seeking approval for curriculum (guidelines and policies were not clear)
a lot of your school law use should be PREVENTATIVE in nature
- once you get on the job, think in advance if you have a specific type of situation, how will you deal with them
- will you exercise prior restraint with supplementary curriculum materials
Refer to academic freedom section in Kemerer and Walsh starting on p. 201
Pico case discusses academic freedom as a marketplace, both the right to publish info but also receive information
arguments you can use successfully in academic freedom situations
- "the students need to know" can be persuasive
"Boring" case on A&A p. 337
- drama teacher who selected a play and school administration's authority to modify the script
Tinker case was really decided under a "different court" than the Bethel and Hazelwood cases
- all of these were US Supreme Court decisions on 1st Amendment issues
in Boring case, p. 336
-
In Georgia there is pending legislation about requiring textbooks to say that evolution is a theory
Most civil rights legislation came about in the mid 1960s, hadn't had much since around 1871 after the civil war
- civil rights legislation in the mid 1960s was the most sweeping civil rights legislation we have had in this nation, what has followed since mostly builds on the Civil Rights Act of 1964
Tinker case in 1969 was made by this same court
take idea of black arm band and someone "taking offense" to take offense, and we allow the school to censor those shirts, where does that leave us?
- whose disruption is it? Are you creating your own disruption?
what other type / place / manner / forum provisions do we have for self-expression
- administrators need to basically be neutral on the expression of viewpoints
Now look at p. 404 New Jersey v T.L.O.
- this starts as a criminal case
- GUARANTEE there will be something on search and seizure on the TLO case on the midterm and/or the final
When the assistant principal opens the purse (and does not ask permission) he is engaging in a search
- he in this case found what he was looking for (cigarettes)
- after this, he also noticed cigarette rolling papers (but he was not looking for that)
Prongs for reasonable search: (2 part test)
1- reasonable suspicion that a law or rule is or has been broken (if you don't have reasonable suspicion, you don't have a legal search)
-- this is NOT the same thing as PROBABLE CAUSE
-- by comparison, in TLO case, Supreme Court said law enforcement officals have high expectation of probably cause, but school officials just need "reasonable suspicison" (that is a lot less than probable cause, because school officials are not law enforcement officers)
2- your search must be no more intrusive than reasonable for what you are looking for (no more intrusive than reasonably necessary)
-- example: looking for contraband like drugs or weapons, your search can be a lot more extensive or expansive
-- it can go to the point of a strip search and still be constitutional
-- the reason is because the contraband can cause an immediate harm to the student or to others
in the Watkins case, they were looking for $10, in the TLO case they were looking for cigarettes
once the search process has begun, it is probably not possible to ask for permission without some level of coercion
is patting the student down going to be reasonable?
- depends on what is being searched for and other circumstances
if administrator and students being searched are not the same sex, then that can have a big impact on the intrusiveness of the search
If at any point you violate either of the prongs of this test, you arguably have violated the 4th amendment rights to reasonable search
23 February 2005
Next Thursday we will receive the open note midterm
- chapters and cases through chap 9
- midterm will NOT go into chap 10 in A&A
plurality opinion in Pico
- see p 318 in A&A
- not a binding precedent
- is at best persuasive, has limited applicability
Pico case cited in Counts case, bottom of p. 315 2nd column
- restriction of access to Harry Potter
Remember from Tinker case
- student's don't leave their constitutional rights at the schoolhouse gate
If you knowingly violate someone's constitutional or statutory rights, you may be individually liable!
- you are just immunized from STATE claims by the state of Texas immunity provisions
- they won't protect you from federal court claims
Starting case tonight: p. 335
- Keefe case
- teacher's use of "dirty" word is protected if conveyed for demonstrated educational purpose
- in section following Pico, references fact that if there are other books in the library with the same "offensive" word that argues
- teacher makes case that the procedure was not extremely clear about seeking approval for curriculum (guidelines and policies were not clear)
a lot of your school law use should be PREVENTATIVE in nature
- once you get on the job, think in advance if you have a specific type of situation, how will you deal with them
- will you exercise prior restraint with supplementary curriculum materials
Refer to academic freedom section in Kemerer and Walsh starting on p. 201
Pico case discusses academic freedom as a marketplace, both the right to publish info but also receive information
arguments you can use successfully in academic freedom situations
- "the students need to know" can be persuasive
"Boring" case on A&A p. 337
- drama teacher who selected a play and school administration's authority to modify the script
Tinker case was really decided under a "different court" than the Bethel and Hazelwood cases
- all of these were US Supreme Court decisions on 1st Amendment issues
in Boring case, p. 336
-
In Georgia there is pending legislation about requiring textbooks to say that evolution is a theory
Most civil rights legislation came about in the mid 1960s, hadn't had much since around 1871 after the civil war
- civil rights legislation in the mid 1960s was the most sweeping civil rights legislation we have had in this nation, what has followed since mostly builds on the Civil Rights Act of 1964
Tinker case in 1969 was made by this same court
take idea of black arm band and someone "taking offense" to take offense, and we allow the school to censor those shirts, where does that leave us?
- whose disruption is it? Are you creating your own disruption?
what other type / place / manner / forum provisions do we have for self-expression
- administrators need to basically be neutral on the expression of viewpoints
Now look at p. 404 New Jersey v T.L.O.
- this starts as a criminal case
- GUARANTEE there will be something on search and seizure on the TLO case on the midterm and/or the final
When the assistant principal opens the purse (and does not ask permission) he is engaging in a search
- he in this case found what he was looking for (cigarettes)
- after this, he also noticed cigarette rolling papers (but he was not looking for that)
Prongs for reasonable search: (2 part test)
1- reasonable suspicion that a law or rule is or has been broken (if you don't have reasonable suspicion, you don't have a legal search)
-- this is NOT the same thing as PROBABLE CAUSE
-- by comparison, in TLO case, Supreme Court said law enforcement officals have high expectation of probably cause, but school officials just need "reasonable suspicison" (that is a lot less than probable cause, because school officials are not law enforcement officers)
2- your search must be no more intrusive than reasonable for what you are looking for (no more intrusive than reasonably necessary)
-- example: looking for contraband like drugs or weapons, your search can be a lot more extensive or expansive
-- it can go to the point of a strip search and still be constitutional
-- the reason is because the contraband can cause an immediate harm to the student or to others
in the Watkins case, they were looking for $10, in the TLO case they were looking for cigarettes
once the search process has begun, it is probably not possible to ask for permission without some level of coercion
is patting the student down going to be reasonable?
- depends on what is being searched for and other circumstances
if administrator and students being searched are not the same sex, then that can have a big impact on the intrusiveness of the search
If at any point you violate either of the prongs of this test, you arguably have violated the 4th amendment rights to reasonable search
Posted: Wed - February 23, 2005 at 08:55 PM |
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Published On: Feb 23, 2005 08:55 PM
Total entries in this category: 7
Published On: Feb 23, 2005 08:55 PM
