“POTENTIAL ISSUES TO WATCH IN THE 2006-2007 SCHOOL YEAR”
Overview
The 2005-2006 school year has come to an
end and summer is here. The summer months give educational
policy-makers and school administrators time to reflect back on
and reexamine the problems and issues faced during the past
school. At the same time, the summer months allow time to
predict and plan for problems and issues that may either carry
over from last year or spring to life during the next year.
In an effort to assist educational policy-makers and school
administrators as they forecast and plan, I always devote my
final commentary to predicting potential issue producers. To
this end, I have identified and selected five topics for brief
discussion.
Potential Issue Areas to Watch
Special Education: This past year the United States Supreme
Court decided Schaffer v Weast (2005), a case out of the United
States Court of Appeals for the Fourth Circuit. By a vote of 6
to 2, the high court held that because IDEA is silent on the
subject, the burden of proof in this situation (parents
challenged the appropriateness of their child’s IEP) “lies, as
it typically does, on the party seeking relief.” The reader is
cautioned that the court left open the possibility that States
can enforce their own statutes that assign the burden of proof.
More recently the United States Supreme Court heard oral
arguments in a case out of the United States Court of Appeals
for the Second Circuit, in which the issue of attorney’s fees
was involved. In Arlington Central School District v Murphy (2nd
Cir. 2005), the high court must determine whether or not a
prevailing party in an IDEA case (in this situation it would be
the parents) is eligible to be reimbursed for fees paid to a
non-attorney advocate who assisted them with their case in the
administrative and judicial processes. With a growing number of
non-attorney advocates involved in special education cases,
school officials must watch for this decision and study the
implications for school system policy.
Two other potential issue producers must be watched. First, the
ramifications of recent reports claiming an over identification
and inclusion in special education programs of minority students
must be analyzed. Second, a growing movement calling for special
classes and schools for specific categories of students with
educational disabilities (e.g., students with autism) must be
watched.
Religion in Schools: The reader is reminded that no precise
formula exists to decide what is or is not acceptable under the
First Amendment’s religion clauses. The Lemon v Kurtzman (1971)
3-pronged standard; Endorsement; Coercion; Equal Access; and the
application of the Public Forum doctrine still apply. The reader
is reminded that neutrality (non-establishment) and free
exercise of religious beliefs sometimes come into direct
conflict; thus, drafting and implementing workable policies is a
challenge.
Two specific areas to watch for potential religion-related
issues are: (1) the curriculum (e.g., evolution v intelligent
design, subject matter in family life and health-related
courses, holiday celebrations, school plays and musical
performances), and (2) student clubs (e.g., student requests to
establish non-traditional student interest clubs). Because each
future situation will be fact-bound, school system policies must be such that they enable school principals to make decisions on a
case-by-case basis.
Student-on-Student Harassment and Violence: Bullying is
bullying. While this type of behavior is not criminal behavior,
it is nonetheless disruptive and destructive behavior. Because
bullying behavior (which to this writer is a form of peer
harassment) among and
between students is on the rise, school system policies must be
proactive and must grant school principals the discretion to
immediately act to eliminate the potential for such acts in
their schools. In my view, bulling behavior breeds violent,
assaultive behavior.
In 2006-2007, youth gang activity in communities will cause
school officials to reexamine school security and emergency
policies and plans, including arrangements for immediate
response and assistance form police agencies. As I have
advocated in previous commentaries, it would be prudent for
school officials to seek the most recent and up-to-date data
from a variety of federal, state, and local law enforcement
agencies in an effort to establish an accurate picture of gangs
(their names, membership demographics, identifying attire and
communication system) and gang ties to criminal activities in
the community.
School officials, administrators, teachers, and staff must keep
in mind that the judicial standard relied on to establish
liability for student injury is “deliberate indifference.” This
means that when you receive actual notice that something is
happening or about to happen in your school, or at a school
sponsored activity, and that an immediate threat to the safety
and wellbeing of students, staff, parents, spectators exists, do
something about it.
Search and Seizure: The T.L.O. 2-pronged standard remains the
judicial test relied on to determine the constitutionality of
school searches and seizures. New Jersey v T.L.O. (1985) More
specifically, to pass judicial muster under the Fourth Amendment
a school search must be based on (1) reasonable suspicion, and
as the search is carried out it must remain (2) reasonable in
scope. In 2006-2007, because of the increased emphasis on
security, public school searches and seizures may, out of
necessity, become more intrusive in nature. Lamb v Holmes (KY.
2005) Thus, the need to reexamine existing policies and
procedures will be critical, especially as they impact on
working relationships between school resource officers and
school administrators. School principals and staff must be able
to move quickly when the situation requires immediate action.
Teacher Evaluation: In 2006-2007, the emphasis will remain on
linking student academic performance and achievement to
classroom teacher performance. Recent case law emphasizes the
critical importance of school officials demonstrating, by
substantive evidence, a nexus between documentation of concerns
regarding a teacher’s work performance, and failure of that
teacher to improve classroom performance. Brown v Regional
School District 13 (D.Conn. 2004) The same evaluation link
exists between the academic performance and accreditation of a
school and the work performance of the school principal. Suffice
it to say, this area of school system operation contains
potential issues.
A second area of employment law to watch involves employee
speech rights. In 2005, the United States Supreme Court decided
Jackson v Birmingham (2005). This case involved a teacher/coach
who publicly spoke out and complained about the disparity
between male and female athletic teams. By a vote of 5 to 4 the
high court ruled that the teacher/coach had a “private right of
action under Title 9” to sue his employer for violating his
First Amendment free speech rights. In effect, he successfully
argued that his employer had “retaliated” against him for
speaking out on a matter of public concern. The advice taken
from Jackson is clear. Do not take an adverse employment action
against an employee solely because he/she speaks out on a matter
of public concern. Pickering v Board of Education (1969)
However, where an employee’s comments cause disruption in the
work place and/or have a negative impact on staff morale,
employee speech is not under the guarantees of the First
Amendment. Connick v Myers (1983)
Policy Implications
The purpose of this final commentary is to spot potential issues
facing local school officials as they plan for the 2006-2007
school year. Realizing that it is not possible to identify and
treat every potential issue area, I selected the five discussed
above. Because the policy implications were identified,
included, and discussed in each section of this commentary, it
would be redundant to restate them again at this time.
Final Comment. I hope that this commentary (along with the
discussions contained in the nine previous commentaries of this
past school year) proves helpful in crafting effective and
practical school system policies and procedures. It is my hope
that my work has contributed in a positive way to the efforts
of local school officials and administrators to provide a safe,
secure, and disruption free environment in schools where
teachers can teach and students can learn.
Resources Cited
Arlington Central School District v Murphy, 402 F.3d 332 (2nd
Cir. 2005), cert. granted, 126 S.Ct. 978 (2006)
Brown v Regional School District 13, 328 F.Supp.2d 289 (D.Conn.
2004)
Connick v Myers, 461 U.S. 138 (1983)
Jackson v Birmingham Board of Education, 544 U.S. 167 (2005)
Lamb v Holmes, 162 S.W.2d 902 (KY. 2005)
Lemon v Kurtzman, 403 U.S. 602 (1971)
New Jersey v T.L.O., 469 U.S. 325 (1985)
Pickering v Board of Education, 391 U.S. 563 (1968)
Schaffer v Weast, 126 U.S. 528 (2005)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this commentary are those of the author.
