2 March 2005 Class Notes
More on search and seizure (TLO and Goss
issues), Child Protection issues, lots of current events and info from Fred's
recent conference he attended
EDLD
5340
2 March 2005
today is perhaps a monumental day in 1st amendment establishment clause litigation
- Supreme Court today heard 2 separate oral arguments relating to establishment clause
Chap 5 of A&A will be the last thing we'll cover this term
- Van Orden v. Perry involves 10 commandments on state capitol grounds in Texas, US Attorney General argued this before the Supreme Court today
in other Kentucky case, the organization added other displays of the magna carta, US Declaration of Am
- question is whether the Lemon versus Kertzman (Lemon test) decided in 1970s
- Lemon test has fallen out of disfavor with the US Supreme Court, but there has not been a substitute or amendment / new test
- question of "excessive confusion / entanglement" in establishment clause papers
Fred has had a small finger in this case, in his role with the Horace Mann League
- http://www.hmleague.org/
Supreme Court could reach different conclusions in each
- around June 27 (last full week) we will probably hear a decision in both of these cases
- reason is that the Supreme Court's new term starts July 1st
said justice Renquiest would not be participating in oral arguments because of his health problems
- he will be listening to recorded versions
Bush administration position seems to be pro-10 commandments
- Horace Mann league and other groups are requesting clarification from the US Supreme Court: if you are going to do away with the Lemon test, adopt the
briefs for the supreme court are limited to 25 pages, have a different color depending on which side of the aisle you are advocating for
School boards have been sued either way if they recognize Good Friday or if they don't
- if they let local groups distribute Bibles at school
- if schools can be required to offer a course in history dept on the Bible
- if a school must include a disclaimer as evolution as a theory in front of science textbooks
If you want to see this US Supreme Court friend of the court brief, link to:
http://www.nsba.org/site/docs/34900/34872.pdf
This is not as much of a legal argument as it is a policy argument
- these decisions could determine the direction we will go as a society and culture for the next 5, 10, 50, or 100 years...
We will revisit establishment clause litigation again when we get to Chapter 5 at the end of the course
30th Anniversary of Goss vs Lopez
- had a handout from "common good" - a "group dedicated to restoring common sense to American law"
- http://cgood.org/
- Flyer says today it can take up to 105 days to suspend a disruptive student from school
These steps and other examples are online at:
http://cgood.org/burden-of-law.html
Due process involves life, liberty or property
- Goss statement in a nutshell: you need to provide minimal due process, temporary suspension (up to 10 days) is not a long term penalty
- poster has a long
- on a sliding scale, US Supreme Court didn't say that students really had a heck of a lot of constitutional due process
- if the penalty is reasonable (short term suspension)
minimal due process is something we have talked about before
- Step 1: NOTICE - you are entitled to know what you are charged with
- Step 2: you are entitled to be able to present your side of the case
- Step 3: whoever hands out the punishment must be decided by an impartial entity (not having made up their mind yet)
According to Goss, the same person can perform all 3 of these steps
- need to provide in some cases the right to legal counsel, if the state legislation or court has provided it
- this provision is not required by the US Supreme Court (Goss v Lopez)
- many do have to provide time for the accused to consider their charges and prepare their case
Reasons for this situation
- too many lawyers (graduate about 40,000 new lawyers from our law schools every year)
- soft juries?
- threats of lawsuits lead to settlements, so there is a perception that easy money is available?
- misinterpretation of the law?
Wyoming educational code was about 80 pages long when Fred came to Texas in '93
- Wyoming had 2 changes to its educational code
- Texas had over 80 changes to its education code in that same year, even with expectation of sunsetting the Texas Education Code in 1995, which they did and started over with Senate Bill 1
Wyoming population: 460,000
Texas population: 20 million
- obviously this is a factor
so with more people, there are more instances of things happening, more attorneys, more chances for jury cases, etc...
Court in the 1970s did give a minimal guideline in Goss v. Lopez in mid 1970s
- the constitutional amendment (1st Amendment) hasn't changed in years since it's adoption
- so we can't / shouldn't blame the federal government for this
can have at state level:
- laws at state level
- statutes at state level from educational agency
- court decisions usually tied to a particular judge
at local level
- most of these requirements come into play
- school boards make more policies
More states have banned the use of corporal punishment than permit it
- Texas, Wyoming and Colorado all still permit it
Look in WebCT at Chapter 37 of Texas Education Code (the student discipline section of the TEC)
- that could be on the mid-term or the final exam
- to deal with this, be familiar with Goss v. Lopez and what Chapter 37 in TEC says (it encompasses all of student discipline)
-- adopted in 2003, but hasn't been changed by TX legislature since
-- if we are given a question involving student discipline, we will want to refer to TEC Chapter 37 (this is the primary source: what does the law say)
-- also refer to Kemerer and Walsh as a secondary source on this
Also presenter on Myers versus Doe case
- Mad Dog sexual assault case with special ed student
- claim of district employees was that they had statutory immunity, these were not discretionary policies, you created your own mandatory obligation and you did not fulfill your obligations, so people involved (diagnostician, administrators) can be personally liable
Fred wouldn't recommend that anyone go without liability insurance even though Texas has the statutory immunity provision
- if charged, you still have to answer a judge with proper court filings if charged
in the Myers verus Doe case, apparently the educators involved basically overlegislated themselves
- they created very stringent rules/policies for themselves, which they in fact did not fulfill
- so they might have been better off (and retained their statutory immunity in this case) if they had not created such sharply defined rules for themselves
heard on Texas finance reform issues at his conference
- one speaker contended we have gone from a discrepancy of $600 to $14,500 per student in spending: between wealthiest and poorest students
- we are now spending about $6000 per child in Texas public schools
on testing issues
- TAKS has been criterion referenced
- NCLB however is norm-referenced
-- with norm referenced approach: this is like you are above average or below average
--- so how can you have more more than 50% of the student population above average? (point is: you can't when you use norm referenced instruments)
Midterm exam will be available on WebCT tomorrow
- due back a week from tonight at 5 pm (before class)
- Fred will be evaluating these over spring break, but we should turn these in before class next week
- we are not looking to provide a norm-referenced experience for us!
The exam will probably be available from 3-5 pm tomorrow
- we should have 2 scenarios, we will have to respond to several questions for each scenario
- Fred is not wanting to push the envelope to the point that these scenarios are beyond the realm of possiblity
Last week we ended talking about TLO and Search / Seizure
- we had previously talked about Tinker and different types of speech: lewd, profane, written (journalism class) versus spoken
In March issue of Principal Leadership, page 63
- Michael Brooks writing summary about Wolford vs Evans, he is a law student now
- student was interrogated on 2 different locations, held for a fair amount of time and not allowed to see her mother even though she asked twice to do so
WE HAVE GOT TO KNOW THE 2 PRONGS OF TLO
- TLO really isn't all that cumbersome:
1- reasonable suspicison that a rule or law had been or was being broken at the onset of the search
2- no more intrusive than reasonable
How to breakdown a scenario on search and seizure
1- was there a search?
2- what were they looking for?
3- did they ask for the student's permission?
4- did the administrator have reasonable suspicion? (this is not a very high threshold)
Prong 2 - reasonably intrusive?
1- depends on what you are looking for and what you do
-- fishing expeditions are unconstitutional
-- need to have particularized suspicion, if you are taking reasonable measures then you are going to be ok
What about when law enforcement officials get involved?
- it is going both ways
- in most cases, however, as long as the law enforcement officials are just working in conjunction with the school administrator (and are not handling the entire investigation) then the standard sticks with the lower standard (reasonable) applicable for the school administrator
- school districts will often argue that when a law enforcement person is employed by the district, they are employed for more administrative rather than criminal law related issues (making this arguement to keep the threshold for searches at the lower / administrative level)
You do need to work independently on your exam
- your rationale may be correct based on the plan of action you develop
- if you support your case well, you can earn a good grade even if you disagree with others (appropriately apply the law to the facts in your interpretation)
- you don't have to restate all the facts first, not just like "process model of reflective thinking" or whatever
- do state facts as they are relevant to the rationale that you are developing
- you are better off citing court law rather than your opinion for a basis for action
- more you can substantiate your responses on the law (broadly)
-- public policy, statutes, Constitution, court decisions, etc.
What Fred is looking for is the WHY, the rationale, for a particular course of action
in TLO the US Supreme court would have probably come up with the same standard whether or not contraband was found
- so it really doesn't matter (in terms of the determination of whether or not something was found in the search) if something is found
There have been cases of strip searches when there was money lost, when the Supreme Court has held that they were reasonable
- if it is guns or weapons, that makes it a bit different
Guidelines for search and seizure concerning students
1- know your district policies
2- don't rush the process
3- base the decision to search on facts (witness credibility plays as a factor)
4- document the search
Ingraham case will be covered by one of the group projects (only US supreme court corporal punishment case)
Next week and the following week we'll spend most of our time on special education
- so special ed chapter will take us through spring break
mandatory child abuse reporting statutes
- Family Code provisions are in WebCT supplementary materials
- focus is mandatory, non-delegatory, statutory obligations that some people have...
- these statutes are about as black and white as ANYTHING we will study this year
There is a website where teachers can report CPS complaints
More info: http://www.dfps.state.tx.us/About/About/default.asp
2 March 2005
today is perhaps a monumental day in 1st amendment establishment clause litigation
- Supreme Court today heard 2 separate oral arguments relating to establishment clause
Chap 5 of A&A will be the last thing we'll cover this term
- Van Orden v. Perry involves 10 commandments on state capitol grounds in Texas, US Attorney General argued this before the Supreme Court today
in other Kentucky case, the organization added other displays of the magna carta, US Declaration of Am
- question is whether the Lemon versus Kertzman (Lemon test) decided in 1970s
- Lemon test has fallen out of disfavor with the US Supreme Court, but there has not been a substitute or amendment / new test
- question of "excessive confusion / entanglement" in establishment clause papers
Fred has had a small finger in this case, in his role with the Horace Mann League
- http://www.hmleague.org/
Supreme Court could reach different conclusions in each
- around June 27 (last full week) we will probably hear a decision in both of these cases
- reason is that the Supreme Court's new term starts July 1st
said justice Renquiest would not be participating in oral arguments because of his health problems
- he will be listening to recorded versions
Bush administration position seems to be pro-10 commandments
- Horace Mann league and other groups are requesting clarification from the US Supreme Court: if you are going to do away with the Lemon test, adopt the
briefs for the supreme court are limited to 25 pages, have a different color depending on which side of the aisle you are advocating for
School boards have been sued either way if they recognize Good Friday or if they don't
- if they let local groups distribute Bibles at school
- if schools can be required to offer a course in history dept on the Bible
- if a school must include a disclaimer as evolution as a theory in front of science textbooks
If you want to see this US Supreme Court friend of the court brief, link to:
http://www.nsba.org/site/docs/34900/34872.pdf
This is not as much of a legal argument as it is a policy argument
- these decisions could determine the direction we will go as a society and culture for the next 5, 10, 50, or 100 years...
We will revisit establishment clause litigation again when we get to Chapter 5 at the end of the course
30th Anniversary of Goss vs Lopez
- had a handout from "common good" - a "group dedicated to restoring common sense to American law"
- http://cgood.org/
- Flyer says today it can take up to 105 days to suspend a disruptive student from school
These steps and other examples are online at:
http://cgood.org/burden-of-law.html
Due process involves life, liberty or property
- Goss statement in a nutshell: you need to provide minimal due process, temporary suspension (up to 10 days) is not a long term penalty
- poster has a long
- on a sliding scale, US Supreme Court didn't say that students really had a heck of a lot of constitutional due process
- if the penalty is reasonable (short term suspension)
minimal due process is something we have talked about before
- Step 1: NOTICE - you are entitled to know what you are charged with
- Step 2: you are entitled to be able to present your side of the case
- Step 3: whoever hands out the punishment must be decided by an impartial entity (not having made up their mind yet)
According to Goss, the same person can perform all 3 of these steps
- need to provide in some cases the right to legal counsel, if the state legislation or court has provided it
- this provision is not required by the US Supreme Court (Goss v Lopez)
- many do have to provide time for the accused to consider their charges and prepare their case
Reasons for this situation
- too many lawyers (graduate about 40,000 new lawyers from our law schools every year)
- soft juries?
- threats of lawsuits lead to settlements, so there is a perception that easy money is available?
- misinterpretation of the law?
Wyoming educational code was about 80 pages long when Fred came to Texas in '93
- Wyoming had 2 changes to its educational code
- Texas had over 80 changes to its education code in that same year, even with expectation of sunsetting the Texas Education Code in 1995, which they did and started over with Senate Bill 1
Wyoming population: 460,000
Texas population: 20 million
- obviously this is a factor
so with more people, there are more instances of things happening, more attorneys, more chances for jury cases, etc...
Court in the 1970s did give a minimal guideline in Goss v. Lopez in mid 1970s
- the constitutional amendment (1st Amendment) hasn't changed in years since it's adoption
- so we can't / shouldn't blame the federal government for this
can have at state level:
- laws at state level
- statutes at state level from educational agency
- court decisions usually tied to a particular judge
at local level
- most of these requirements come into play
- school boards make more policies
More states have banned the use of corporal punishment than permit it
- Texas, Wyoming and Colorado all still permit it
Look in WebCT at Chapter 37 of Texas Education Code (the student discipline section of the TEC)
- that could be on the mid-term or the final exam
- to deal with this, be familiar with Goss v. Lopez and what Chapter 37 in TEC says (it encompasses all of student discipline)
-- adopted in 2003, but hasn't been changed by TX legislature since
-- if we are given a question involving student discipline, we will want to refer to TEC Chapter 37 (this is the primary source: what does the law say)
-- also refer to Kemerer and Walsh as a secondary source on this
Also presenter on Myers versus Doe case
- Mad Dog sexual assault case with special ed student
- claim of district employees was that they had statutory immunity, these were not discretionary policies, you created your own mandatory obligation and you did not fulfill your obligations, so people involved (diagnostician, administrators) can be personally liable
Fred wouldn't recommend that anyone go without liability insurance even though Texas has the statutory immunity provision
- if charged, you still have to answer a judge with proper court filings if charged
in the Myers verus Doe case, apparently the educators involved basically overlegislated themselves
- they created very stringent rules/policies for themselves, which they in fact did not fulfill
- so they might have been better off (and retained their statutory immunity in this case) if they had not created such sharply defined rules for themselves
heard on Texas finance reform issues at his conference
- one speaker contended we have gone from a discrepancy of $600 to $14,500 per student in spending: between wealthiest and poorest students
- we are now spending about $6000 per child in Texas public schools
on testing issues
- TAKS has been criterion referenced
- NCLB however is norm-referenced
-- with norm referenced approach: this is like you are above average or below average
--- so how can you have more more than 50% of the student population above average? (point is: you can't when you use norm referenced instruments)
Midterm exam will be available on WebCT tomorrow
- due back a week from tonight at 5 pm (before class)
- Fred will be evaluating these over spring break, but we should turn these in before class next week
- we are not looking to provide a norm-referenced experience for us!
The exam will probably be available from 3-5 pm tomorrow
- we should have 2 scenarios, we will have to respond to several questions for each scenario
- Fred is not wanting to push the envelope to the point that these scenarios are beyond the realm of possiblity
Last week we ended talking about TLO and Search / Seizure
- we had previously talked about Tinker and different types of speech: lewd, profane, written (journalism class) versus spoken
In March issue of Principal Leadership, page 63
- Michael Brooks writing summary about Wolford vs Evans, he is a law student now
- student was interrogated on 2 different locations, held for a fair amount of time and not allowed to see her mother even though she asked twice to do so
WE HAVE GOT TO KNOW THE 2 PRONGS OF TLO
- TLO really isn't all that cumbersome:
1- reasonable suspicison that a rule or law had been or was being broken at the onset of the search
2- no more intrusive than reasonable
How to breakdown a scenario on search and seizure
1- was there a search?
2- what were they looking for?
3- did they ask for the student's permission?
4- did the administrator have reasonable suspicion? (this is not a very high threshold)
Prong 2 - reasonably intrusive?
1- depends on what you are looking for and what you do
-- fishing expeditions are unconstitutional
-- need to have particularized suspicion, if you are taking reasonable measures then you are going to be ok
What about when law enforcement officials get involved?
- it is going both ways
- in most cases, however, as long as the law enforcement officials are just working in conjunction with the school administrator (and are not handling the entire investigation) then the standard sticks with the lower standard (reasonable) applicable for the school administrator
- school districts will often argue that when a law enforcement person is employed by the district, they are employed for more administrative rather than criminal law related issues (making this arguement to keep the threshold for searches at the lower / administrative level)
You do need to work independently on your exam
- your rationale may be correct based on the plan of action you develop
- if you support your case well, you can earn a good grade even if you disagree with others (appropriately apply the law to the facts in your interpretation)
- you don't have to restate all the facts first, not just like "process model of reflective thinking" or whatever
- do state facts as they are relevant to the rationale that you are developing
- you are better off citing court law rather than your opinion for a basis for action
- more you can substantiate your responses on the law (broadly)
-- public policy, statutes, Constitution, court decisions, etc.
What Fred is looking for is the WHY, the rationale, for a particular course of action
in TLO the US Supreme court would have probably come up with the same standard whether or not contraband was found
- so it really doesn't matter (in terms of the determination of whether or not something was found in the search) if something is found
There have been cases of strip searches when there was money lost, when the Supreme Court has held that they were reasonable
- if it is guns or weapons, that makes it a bit different
Guidelines for search and seizure concerning students
1- know your district policies
2- don't rush the process
3- base the decision to search on facts (witness credibility plays as a factor)
4- document the search
Ingraham case will be covered by one of the group projects (only US supreme court corporal punishment case)
Next week and the following week we'll spend most of our time on special education
- so special ed chapter will take us through spring break
mandatory child abuse reporting statutes
- Family Code provisions are in WebCT supplementary materials
- focus is mandatory, non-delegatory, statutory obligations that some people have...
- these statutes are about as black and white as ANYTHING we will study this year
There is a website where teachers can report CPS complaints
More info: http://www.dfps.state.tx.us/About/About/default.asp
Posted: Wed - March 2, 2005 at 08:51 PM |
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Total entries in this category: 8
Published On: Mar 02, 2005 08:51 PM
Total entries in this category: 8
Published On: Mar 02, 2005 08:51 PM
