Copyright 2000 by Russell Dennis


The United States Constitution

The Tenth Amendment to the United States Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Since education is not mentioned in the Constitution, it is one of those powers reserved to the states. Of course, the United States Supreme Court can declare that something not mentioned in the Constitution is so closely related to something that is mentioned in the Constitution that the unmentioned power is a fundamental interest, which rises to constitutional protection. So far, the Supreme Court has not declared that education is a fundamental interest. Thus, states have plenary, or absolute, power in the area of education.

However, the Constitution still has an effect upon public education in the United States. The Fourteenth Amendment to the Constitution, which was ratified in 1868, contains both the due process and equal protection clauses, which concern state action in these two areas. The effect of the due process clause is described in Basic Due Process for Pennsylvania Students and Basic Due Process for Pennsylvania Educators. The equal protection clause is involved in issues of race, ethnicity, national origin or sex when there is a question of discrimination. The United States Supreme Court has also used the Fourteenth Amendment to apply other amendments to action by the fifty states. The most important amendments concerning public education, which are applied to state action under the umbrella of the Fourteenth Amendment, are: (1) the First Amendment in terms of the religion clauses, speech and assembly; (2) the Fourth Amendment in terms of search and seizure; and, (3) the Eighth Amendment in terms of cruel and unusual punishment. A student or teacher who feels that one of these rights guaranteed by the U.S. Constitution has been infringed may bring an action in a federal court.

The United States Congress

The Congress of the United States, composed of the House of Representatives and the Senate, passes legislation that affects public education in the United States. The Congress has power to do this under the "Commerce" and "General Welfare" clauses of the U.S. Constitution. The laws, or statutes, passed by the Congress and signed into law by the President that affect public education are of two general types. Some are general statutes concerning areas such as civil rights, which also affect education, while others are specific statutes that apply only to education. Examples of the first type are Title VII of the Civil Rights Act of 1964 (P.L. 88-352), codified at 42 U.S.C. Sect. 2000(e), et seq, and the Age Discrimination In Employment Act of 1967 (P.L. 90-202), codified at 29 U.S.C. Sect. 621, et seq, and their amendments. Most specific statutes that apply only to public education require that the public school be a recipient of federal funds. Examples of such statutes are Title IX of the Education Amendments of 1972 (P.L. 92-318), codified at 42 U.S.C. Sect. 1681, et seq and The Equal Access Act (EAA) of 1984 (P.L. 98-377), codified at 20 U.S.C. Sect. 4071, et seq. Title IX applies to both private and public schools that receive federal financial assistance. The EAA applies only to public secondary schools receiving federal financial assistance that create a limited open forum.

Each federal statute has a statutory citation that can be used to locate the text of the law. The citation for Title IX is 42 U.S.C. Sect. 2000(e), et seq. The federal statutes are located in the United States Code (U.S.C.). The text of Title IX of the Education Amendments of 1972 is located in volume 42 of the United States Code beginning at Section 1681 and continuing thereafter. This statute also can be found in the United States Statutes at Large, using the public law (P.L.) number (92-318), which indicates that Title IX was the 318th law passed during the 92nd session of the Congress.There are many federal laws that affect education. Some of the major federal laws affecting public education are presented in the table below.

 Some Federal Laws Affecting Public Education
 Statute  Covers  Applies to  Citation
Age Discrimination in Employment Act Employment discrimination on the basis of age Educators and other employees 29 U.S.C. Sect. 621 et seq
Equal Access Act

Speech and assembly

Viewpoint discrimination

Students who meet on school grounds during non-instructional time if a "limited open forum" has been created by the school 20 U.S.C. Sect. 4071 et seq
Family Educational Rights and Privacy Act (FERPA) Student and parent access to school records and parent right to request modification of them; Confidentiality of student records Student records and teacher recommendations 20.U.S.C. Sect 1232g et seq
Individuals with Disabilities Education Act (IDEA)  Discrimination against students with disabilities who receive special education Education and related services for disabled students. 20 U.S.C. Sect.1400 et seq
Sect. 504 of the Rehabilitation Act of 1973 Discrimination against disabled individuals Employment and educational issues 29 U.S.C. Sect. 794 et seq
 Title VII of the Civil Rights Act of 1964 Discrimination on the basis of race, color, religion, sex or national origin Employment issues including affirmative action and harassment 42 U.S.C. Sect 2000(d), et seq
 Title IX of the Educational Amendments of 1972 Discrimination on the basis of sex Student issues including athletics and harassment 42 U.S.C. Sect. 1681, et seq


A student or teacher who feels that one of these statutes passed by the United States Congress has been violated by state action may bring an action in a federal court after exhausting the applicable administrative remedies.

The Executive Branch of Government.

The executive branch of the federal government enforces the laws that are enacted by the Congress. The head of this branch of government is the President of the United States. There are various departments in the executive branch of the federal government that have an effect upon public education.

The U. S. Secretary of Education, who is appointed by the President with the advice and consent of the U.S. Senate, is the head of the U.S. Department of Education (DOE) ,which is a cabinet-level administrative agency created in 1979 that administers over 200 federal programs and collects and disseminates educational statistics. A full description of the DOE, its responsibilities and functions is located on its website. The Office of Civil Rights (OCR), which is located within the DOE, enforces five federal statutes prohibiting discrimination in educational activities and programs receiving federal financial assistance.

 Title VI of the Civil Rights Act of 1964
 Title IX of the Educational Amendments of 1972
 Section 504 of the Rehabilitation Act of 1973
 Age Discrimination Act of 1975
 Title II of the Americans with Disabilities Act of 1990


The OCR conducts compliance reviews, which are OCR-initiated cases, and provides technical assistance to aid institutions to achieve voluntary compliance with the civil rights laws enforced by OCR. A primary responsibility of OCR is resolving complaints concerning discrimination. A student or teacher who feels that one of these statutes enforced by OCR has been violated by a public school may file a complaint with the OCR following the directions provided at the website. There is an administrative process which has been established to resolve such complaints. After exhausting this administrative remedy, the student or teacher may bring an action in a federal court.

Independent Administrative Agencies

Administrative agencies, most of which were created during the "New Deal" of the 1930's and thereafter, are sometimes referred to as the fourth branch of government. These agencies fall under the executive branch of government. They are created by the Congress to administer laws passed by the Congress. They are staffed by both political appointees and career civil servants, many of whom are attorneys. These agencies write regulations associated with laws passed by Congress. When a statute is enacted, the administrative agency charged with its enforcement is given the power to write regulations that give further substance to the intent of the legislation. Information concerning the administrative agencies is located in 5 U.S.C. Sect. 500 et seq. The rule making process begins with publication on the proposed rule in the Federal Register (Fed. Reg.) and ends with the publication of the rule in the Code of Federal Regulations (C.F.R.). The administrative agencies then enforce the laws under their jurisdiction by conducting compliance reviews and hearing complaints. There are administrative remedies that have been established to resolve complaints. Generally, these administrative remedies first must be "exhausted" before a complaint can be filed in a federal court. There are various administrative agencies that affect public education, including the Environmental Protection Agency (EPA), the Equal Employment Opportunity Commission (EEOC), and the Occupational Safety and Health Administration (OSHA).

When Congress passed The Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC) was established to administer Title VII of this Act. The EEOC enforces the principal federal statutes that prohibit discrimination in employment.

 Title VII of the Civil Rights Act of 1964
 The Age Discrimination in Employment Act of 1967 (ADEA), as amended
 The Equal Pay Act of 1963
 Title I of the Americans with Disabilities Act of 1990 (ADA)
 Civil Rights Act of 199l
 Section 501 of the Rehabilition Act of 1973


The EEOC drafts and enforces regulations, litigates to recover damages for the victims of discrimination, and investigates complaints concerning employment discrimination. A teacher or other employee of a public school who feels that one of these statutes enforced by the EEOC has been violated may file a complaint with the EEOC following the directions provided at the website. An administrative process has been established to resolve such complaints. After exhausting this administrative remedy, the teacher or employee may bring an action in a federal court.

The Judicial Branch of Government

The federal courts system has three levels. The first is the federal district courts. The second is the circuit courts of appeal, of which there are eleven circuits plus the federal and D.C. circuits. The highest level is the Supreme Court. The function of the judicial branch is to interpret the law.

The court of original jurisdiction is the federal district court. If a student or teacher in central Pennsylvania desired to bring a suit against a school district, s/he would have to have a statutory or constitutional reason to bring the action. A constitutional ground would be the First Amendment to the U.S. Constitution if speech, assembly or religion was involved; a statutory ground could be the EAA or Title VII. Depending upon the action, the applicable administrative remedies ordinarily would have to be exhausted before the court would hear the suit. The suit would be heard in the Federal District Court for the Middle District of Pennsylvania in Williamsport or Scranton or Harrisburg. Witnesses could be called, testimony taken, and witnesses cross examined. The court would issue a ruling, setting forth reasons based upon law. The opinion could be published or unpublished.

The decision of the district court can be appealed to the circuit court of appeals. In Pennsylvania, the appeal would be to the U.S. Court of Appeals for the Third Circuit, which has jurisdiction over Delaware, New Jersey, Pennsylvania and Puerto Rico. The court of appeals could affirm (uphold) or reverse (overturn) the decision of the district court. It could also remand (send back) to the district court with instructions. The court will issue an opinion, setting forth reasons based upon law. The decision of the Third Circuit Court of Appeals serves as mandatory precedent for courts located in the jurisdiction of the court--i.e. courts in Delaware, New Jersey, Pennsylvania and Puerto Rico. It could be used as a precedent by a court in another jurisdiction, New York or Ohio, for example. However, since these states are in the second circuit (New York) and sixth circuit (Ohio), the ruling of the third circuit would not be a binding precedent. Administrators of public schools in Pennsylvania should be familiar with the Third Circuit opinions that deal with public schools because school district policies must conform to these decisions.

A decision of a circuit court of appeals may be appealed to the United States Supreme Court. Actually, a decision of a federal district court can be appealed directly to the Supreme Court but such an appeal is rarely successful. The party who desires to appeal must request a writ of certiorari. If four of the nine justices vote to grant certiorari, the case is heard by the Supreme Court. The Court hears very few cases, usually choosing only those that embody important issues. If the court denies certiorari, this has the effect of allowing the decision of the court below to remain in effect so that only the jurisdiction of that court is affected by the decision. After accepting a case and hearing oral arguments, the Court will issue an opinion, setting forth reasons based on law. These opinions are organized in a judicial citation that can be used to locate the text of the decision. This citation consists of the name of the case, the volume of the reporter in which case is printed and the page at which the beginning of the case may be found, usually followed by the date of the decision in parentheses: Brown v. Board of Education, 347 U.S. 483 (1954). The text of the Brown I decision is located in volume 347 of United States Reports, beginning on page 483. The decision of the Supreme Court is mandatory precedent for all courts in the United States. Administrators in all public schools should be familiar with Supreme Court opinions that deal with public schools because school district policies must conform to these decisions.

Supreme Court Decisions Affecting Public Education

Supreme Court decisions have many effects upon public schools. The Court decides if a statute is constitutional. In Board of Education of Westside Community School District v. Mergens, 496 U.S. 226 (1990), the Court ruled that the EAA did not violate the Establishment Clause of the First Amendment. The court sometimes declares that a law passed by the Congress that affects public schools is unconstitutional. This was the case in U.S. v. Lopez, 514 U.S. 549 (1995), when The Gun-Free School Zones Act of 1990 was declared unconstitutional. Usually when the Court decides an issue, that decision will serve as a precedent for many years, but this is not always the case. In Minersville School District v. Gobitis, 310 U.S. 586 (1940), the Court held that students who held religious objections could be compelled by a Pennsylvania statute to recite the pledge of allegiance, but three years later in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), the Court held that such a compulsion violated the First Amendment. Some of the major cases decided by the Court that affect public education are discussed below.

Supreme Court Decisions Concerning Religious Issues

The Supreme Court has decided many cases concerning First Amendment religion issues. Most of these cases have concerned the Establishment Clause rather than the Free Exercise Clause. Although these two clauses are difficult to separate in practice, the basic difference is that the Free Exercise Clause prohibits the government from interfering with the free exercise of religion while the Establishment Clause prohibits the government from establishing a religion. The Supreme Court, using the Fourteenth Amendment as an "umbrella", has applied these two clauses to state action, which includes the actions of state legislatures and other state officials, including school board members. As a result, both state statutes and school board policies, as well as the actions of administrators and teachers must conform to these two clauses.

Although many different questions have been raised concerning the Establishment Clause, there are three major state actions concerning public education that raise establishment clause questions: a state passes a statute that gives financial or other aid to nonsecular nonpublic schools; a state passes a statute that concerns prayer or the reading of religious texts as a part of opening exercises or school-sponsored events; and, a state passes a statute that mandates that something be taught or not taught in the curriculum. Representative Establishment Clause Cases dealing with these issues are presented in the table below.

 Lemon v Kurtzman, 403. U.S. 602 (1971)  PA statute gave aid to parochial schools
 Sloan v. Lemon, 413 U.S. 825 (1973)  PA statute provided reimbursement to parents for part of nonpublic school tuition
 Meek v. Pittinger, 421 U.S. 349 (1975)  PA statute created new program after Lemon I (1971) to provide aid to nonpublic schools, focusing on textbooks, classroom equipment and "auxiliary services"
 Engel v. Vitale, 370 U.S. 421 (1962)  NY State Board of Regents composed a prayer and recommended it be used in opening exercises
 Abington School District v. Schempp, 374 U.S. 203 (1963)  PA statute required that verses...." from the Holy Bible be read, without comment, at the opening of each public school on each school day."
 Stone v. Graham, 449 U.S. 39 (1981)  KY statute required posting of the Ten Commandments on the wall of each public classroom in the state
 Wallace v. Jaffree, 472 U.S. 38 (1985)  AL statutes allowed a period of silence for "meditation or voluntary prayer" and teacher led nonsectarian prayer
 Epperson v. Arkansas, 393 U.S. 97 (1968)  AR statute prohibited teaching of Darwinian theory in state-supported schools
 Edwards v. Aguillard, 482 U.S. 578 (1987)  LA statute required instruction in creation science when evolution was taught in the public schools


In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court first articulated a three-part test for use in Establishment Clause cases. This test has been used ever since in most cases involving this clause. The three parts, or prongs, of this test are: (1) The statute, rule, regulation or policy must have a secular intent; (2) The statute, rule, regulation or policy must have a neutral effect--i.e. it must neither advance nor inhibit religion; and (3) The enforcement of the statute, rule, regulation or policy must not excessively entangle the state with religion. All three parts of this test must be passed for a statute, rule, regulation or policy to be constitutional. This test is often referred to as the Lemon test.

Supreme Court Decisions Concerning Student Issues

The Supreme Court has decided several cases that have affected students attending public schools. In many constitutional cases, the Court often uses a balancing test in which it balances the interest(s) of the student against the interest(s) of the state to reach a decision. For instance, in Tinker the Court balanced the interest of the students as citizens to express their feelings on a matter of public concern against the interest of the state in maintaining an environment that was conducive to learning and the rights of other students. In the table below seven cases are presented in which the Court has decided constitutional issues concerning speech, due process, corporal punishment, search and liability.

 Tinker v. Des Moines Community School District, 393 U.S. 503 (1969)  Speech  First Amendment
 Bethel School District v. Fraser, 478 U.S. 675 (1986)  Speech  First Amendment
 Hazelwood School District v. Kuhlmeier, 484 U.S. 261 (1988)  Speech  First Amendment
 Goss v. Lopez, 419 U.S. 565 (1975) Due Process  Fourteenth Amendment
 Ingraham v. Wright, 430 U.S. 651 (1977)

 Corporal Punishment

Due Process for corporal punishment

Eighth Amendment

Fourteenth Amendment

 New Jersey v. T.L.O. , 469 U.S. 235 (1985)  Search  Fourth Amendment
 Veronia School District 47J v. Acton, 515 U.S. 646 (1995)  Drug Testing  Fourth Amendment
 Carey v. Piphus, 435 U.S. 247 (1978)  Damages for violations of constitutional rights  Section 1983 of the Civil Rights Act of 1871


In Tinker, the Court stated that school officials could not prohibit student speech simply because they did not agree with it. Students have a constitutional right to freedom of speech, which must be respected by schools so students have a right to speak on matters of public concern within the confines of the school. However, the State has the right to insure that there is an orderly environment within the school so that the basic processes of education may occur without disruption so student speech that "materially and substantially" interferes with the educational process or interferes with the rights of other students may be prohibited and punished. Tinker concerned symbolic speech, black arm bands to protest the Vietnam War, but was applied to "pure speech" in other cases. In Fraser, the Court made clear that speech that interferes with the rights of other students to learn or that is lewd or indecent can be prohibited and punished by a school district because one of the long-standing purposes of schooling has been socialization in the "habits and manners of civility". The school had a rule prohibiting "...the use of obscene, profane language or gestures" and Fraser's speech had been offensive to members of the audience. Hazelwood concerned the censorship of articles in a school newspaper by the principal. The Court upheld the censorship because the paper was published as a part of a high school journalism course, and a review procedure had been established by school policy. Because the school district had not created a public forum or open form but had tied the newspaper to the curriculum through the journalism course, there was no constitutional prohibition or prior review or censorship.

Goss v Lopez concerned the question of due process rights of students who were suspended. During a period of unrest a number of Ohio students were suspended in accordance with Ohio school law without being given a hearing prior to the suspensions. The Court determined that the students had a property interest in a public education, which had been established by an Ohio statute, and a liberty interest in their reputations and that this entitled them to some due process before they could be suspended, which led the Court to state that for a suspension of ten days or less a student must be given notice of the charges and an opportunity to respond to them. For longer periods of exclusion, more due process procedures must be provided.

Ingraham v. Wright concerned corporal punishment. where the Court found that a Florida statute permitting the use of corporal punishment did not violate the Eighth Amendment to the U.S. Constitution and that there was no requirement under the Fourteenth Amendment to provide due process before the administration of corporal punishment. The Court stated that the intent of the Eighth Amendment was to protect those who were incarcerated and that other legal remedies existed to protect students because the students returned to their homes after school and their parents and/or the state could take various legal action. In Pennsylvania, for example, a student who felt that s/he had been abused through the use of corporal punishment could do any or all of the following: file a complaint concerning child abuse against the teacher; make a complaint against the teacher to the school administration seeking the dismissal of the teacher of charges such as cruelty, intemperance or incompetence; file a criminal complaint with the police against the teacher claiming assault and battery; file a civil tort action against the teacher claiming assault and battery.

In T.L.O., the Court decided that searches by school personnel were subject to the Fourth Amendment but that the standard for the search was less than that for police searches, which require probable cause and a warrant. School searches by school personnel only have to meet a reasonableness standard. At the inception of the search, the school official must have a reasonable expectation that a law or a school rule has been broken. The search must also be reasonable in its scope. Prior to T.L.O. some circuits had held that a search by school personnel was a state search while other circuits had held that it was not because of the in loco parentis doctrine. T.L.O. established that searches conducted by school officials were searches by the state and thus covered by the Fourth Amendment.

In Acton, the Court held that students who wished to participate in athletics must give a urine sample to be tested for drugs. If a student refused to give a sample, the student could not participate in athletics. Requiring a urine sample is a search so the Fourth Amendment is involved. Since Acton there have been several cases decided by circuit courts dealing with issues such as required urine tests as a condition for participation in non-athletic extracurricular activities and driving a car to school, and requiring students to pass through metal detectors upon entering schools.

Carey v. Piphus placed a very low limit on the damages that may be awarded to a student if a school violates his/her constitutional rights.


Supreme Court Decisions Concerning Teacher Issues

The Court has decided several cases concerning the constitutional rights of teachers. The five cases presented in the table below all deal with speech. In deciding such cases, the Court often uses a balancing test in which it balances the interests of the teacher against the interests of the state to reach a decision. For instance, in Pickering the Court balanced the right of the teacher as a citizen to write a letter to the newspaper (a public forum) to express his opinion on a bond issue which he opposed and which was supported by the school board (a matter of public concern) against the interest of the school district in maintaining the school system.

 Pickering v. Board of Education, 393 U.S. 563 (1968)  SPEECH: matter of public concern/public forum  First Amendment
 Mount Healthy City School District v. Doyle, 429 U.S. 274 (1977)  SPEECH: matter of public concern/public forum/other incidents  First Amendment
 Givhan v. Western Line Consolidated School District, 493 U.S. 410 (1978)  SPEECH: matter of public concern/private situation  First Amendment
 Connick v. Myers, 461 U.S. 138 (1983)  SPEECH: personal rather than public matter/nonpublic forum  First Amendment
 Keyishian v. Board of Regents, 385 U.S. 589 (1967)  SPEECH AND ASSOCIATION: loyalty oath/vagueness and over breadth  First Amendment


In Pickering, the Court found that the teacher's speech could not be punished because he had a constitutional right to express his opinions as a citizen. Thus, teachers have a right to express their opinions on public matters in public fora so long as it does not adversely affect their performance in school in their working relationships with other school personnel or students. In Doyle, the teacher was dismissed after he made comments about a new dress code in a call to a radio station. Both the district and court of appeals found for the teacher on the basis of Tinker, but the Supreme Court reversed because there was other credible evidence to support Doyle's dismissal. Although the radio incident (comments on a matter of public concern in a public forum) involved protected speech, the "preponderance of the evidence" in terms of other incidents supported dismissal. Givhan concerned a teacher who was dismissed after she confronted the principal in his office on a matter of public concern. The Court decided that although the speech did not occur in a public forum, it was still protected because it concerned a public matter. Connick v. Myers was not a public education case, but its findings are applicable to the public school. In this case, the Court stated that speech on a personal matter in a nonpublic forum was not constitutionally protected. In the last case, Keyishian, the Court invalidated a New York loyalty oath because of vagueness and over breadth.

The Court has decided several cases dealing with the due process rights of teachers. The four cases in the table below deal with due process. These decisions provide constitutional parameters within which school boards and administrators must operate.

 Board of Regents v. Roth, 408 U.S. 564 (1972)  DUE PROCESS: liberty/property interest  Fourteenth Amendment
 Perry v. Sindermann ,408 U.S. 593 (1972)  DUE PROCESS: liberty/property interest  Fourteenth Amendment
 Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Association, 426 U.S. 482 (1976)  DUE PROCESS: impartial decision-maker  Fourteenth Amendment
 Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)  DUE PROCESS: property rights/pretermination hearing  Fourteenth Amendment


In Roth, the Supreme Court discussed liberty and property interests and their application to state-supported higher education, finding that a non-tenured college faculty member had no property interests beyond those in his yearly contracts. The property interest was in expectation of employment and the liberty interest was in reputation. In public schools, this means that a probationary or non-tenured teacher has no Fourteenth Amendment property right beyond the term of his/her contract. On the other hand, a tenured teacher has a different property right because tenure, which is established by state statute, gives an expectation of employment into the future. In Sindermann, decided the same time as Roth, the Court found that a property interest could be established in the absence of tenure depending upon expectations created by the state. In this case, where there was nor formal tenure system for junior college faculty members, various statements by state officials had indicated that untenured faculty members had property interests. Because of this "de facto tenure", the faculty member, who had been employed for many years but did not have formal tenure, had a property interest that entitled him to due process in terms of a hearing to established the reason for the non renewal of his contract. State actions establish property interests that, once created, require that due process procedures be followed before a property right can be denied. Hortonville, which is also a labor relations case, concerned Wisconsin teachers who were dismissed for participating in an illegal strike. The school board that dismissed the teachers was the same board that had been negotiating with the teachers prior to the strike. The Court found that the school board was an impartial decision maker and that its dismissal of the teachers did not violate the due process rights of the teachers, which required a hearing before an impartial tribunal. Finally, in Loudermill the Court found that due process requires a pre-termination hearing if a property or liberty right is involved and that a post-termination hearing is not sufficient.

Supreme Court Decisions Concerning School District Liability

Two recent Supreme Court decisions concern school district liability for sexual harassment. Both of these decisions concerned Title IX of the Educational Amendments of 1972, which requires an enforcement mechanism. In both cases, rather severe harassment had occurred. In Gebser, a female student had engaged in a sexual relationship with a teacher. After learning of the relationship, the school district dismissed the teacher and a state agency revoked his teaching license. The student sued the school district for monetary damages. In Davis, a female student was continually harassed by a male student. Although both the girl and her mother complained to a teacher about the harassment, the teacher did not immediately notify the principal. Even after the harasser was charged with sexual battery for his actions, school officials took no action against him.

 Gebser v. Lago Vista Indept. Sch. Dist., 524 U.S. 274 (1998)  Teacher/student sexual relationship  Title IX of the Educational Amendments of 1972
 Davis v. Monroe County Board of Educ., ___U.S.___ (1999)  Peer sexual harassment  Title IX of the Educational Amendments of 1972


In Gebser, the Court determined that damages should not be awarded unless the school official who had the authority to deal with the sexual discrimination and who had knowledge of the discrimination, failed to act in a fashion that indicated deliberate indifference to the discrimination. The failure of the school district to develop an adequate grievance procedure for harassment claims was not sufficient to establish deliberate indifference. In Davis, the Court found that school districts may be liable for deliberate indifference to peer sexual harassment if school officials have knowledge of the harassment and have disciplinary authority over the harasser. The harassment must be severe, offensive and continuing to be covered by Title IX.


An Example Of How The Three Branches Interact

In 1972, the Congress passed Title IX of the Educational Amendments, which amended the Elementary And Secondary Education Act of 1965. Enforcement of Title IX was given to the DOE, which drafted regulations that required educational institutions that were recipients of federal financial assistance to fill out compliance forms issued by the department. OCR also issued an interpretation that if any part of an institution received federal financial assistance, then all parts of that institution were covered by Title IX. Grove City College, a private institution whose students received federal financial aid, refused to execute the compliance assurances and DOE prevailed in an administrative hearing, after which Grove City College sued DOE in federal district court where the decision of the court was in favor of Grove City College. DOE appealed to the Third Circuit Court of Appeals, which determined that the college was a recipient of federal aid and was, therefore, required to execute a compliance form. If the college did not execute the form, the DOE could terminate federal financial aid even without evidence of any sex discrimination. Grove City College appealed to the Supreme Court. The Supreme Court rejected the DOE contention that all parts of the institution were covered by Title IX, but found that, since students received federal financial assistance in the form of Basic Educational Opportunity Grants, Grove City had to certify compliance with Title IX in regards to its admissions department. Grove City College refused to accept federal financial assistance and thus was no longer subject to Title IX because it was no longer a recipient of federal funding. Congress was dissatisfied with the Supreme Court decision concerning the limitation to only those parts of an institution that received direct aid so it passed the Civil Rights Restoration Act of 1988, which reinstated the application of four civil rights act to an entire institution if any of its programs received federal aid. These civil rights acts were Title VI of the Civil Rights Act of 1964 (discrimination on the basis of race, color or national origin), Title IX of the Educational Amendments of 1972 (sex discrimination), Section 504 of the Rehabilitation Act of 1973 (discrimination on the basis of handicap), and the Age Discrimination Employment Act. The effect is that one dollar of federal aid to a public school subjects all the programs of that school to these civil rights acts.

Implications For Administrators, Teachers and Students

Some of the major implications for public education of the material presented above is presented in the following sections. What appears below is supported by the preceding material as well as other material that has not been discussed. The major implications are presented in three sections.

School Districts and Administrators

School boards have the authority, which is given by state statutory authority, to establish policies that govern the behavior of teachers and students, but such policies must conform to the U.S. Constitution, applicable federal statutes, and the rules and regulations of federal administrative agencies.

School boards and administrators have a duty to follow the mandates of the U.S. Constitution as interpreted by the decisions of the U.S. Supreme Court. Their official actions are state actions, which are covered by the Fourteenth Amendment that serves as an "umbrella" for the other amendments.

School boards and administrators can be held liable for their actions under Section 1984 of the Civil Rights Act of 1871, which provides the basis for a constitutional tort action that can lead to monetary damages being assessed for the denial of a constitutional right of a teacher or student.


Teachers have constitutional rights, which must be respected by school boards and administrators. Teachers have legitimate expectations that these rights will be respected and not abridged.

The right of out-of-school speech concerning a matter of public concern, which occurs in a public forum, is quite broad. Speech that occurs within the school can be limited and controlled if it interferes with the operation of the school and the working relationships with other school employees and students.

Both tenured and untenured teachers have liberty and property interests that must be respected. The due process procedures for the denial of a liberty or property right for tenured teachers are more extensive than for untenured teachers.

Teachers have expectations of privacy but these are different in the school building or on-campus from those they possess as citizens off the school premises. For a non-police search on campus, it appears that, for some circuits at least, a reasonableness standard is all that must be met. Also, computers that are used by the teacher but owned by the state are state property and can be "searched" by the state without the teacher's permission.

Teachers are "state actors" when they act in relation to students so their actions are "under color of the State" and are covered by the U.S. Constitution. Therefore, a teacher in a public school can violate a provision of the constitution such as the Establishment Clause. As a state actor, a teacher is also subject to a suit under Section 1983 of the Civil Rights Act of 1871.

Teachers have statutory rights under federal statutes and agency rules and regulations that may not be violated by school board policies or administrative actions. If these rights have been violated, teachers must exhaust the applicable administrative remedies before initiating court proceedings.

Teachers who believe that a constitutionally protected right has been violated by the action of the school district may bring an action against the school board and administrators under Section 1983 of the Civil Rights Act of 1871. If the teacher prevails, the teacher may be awarded monetary damages that could be extensive.


Students have a duty to obey federal and state statutes and legally enacted rules and regulations of state agencies, including school boards.

Students have constitutional rights that must be respected by the public school and its employees. Students have a legitimate expectation that these rights will not be abridged by actions by school boards, administrators or teachers.

The rights of school students in school are not "coextensive" with the rights adults outside the school.

The rights of students "grow" as the student matures and progresses through school. There may be academic freedom rights for seniors in high school but not for elementary school students.

If a student is going to be deprived of a liberty or property right through suspension or expulsion (but not through corporal punishment), the student is entitled to due process of law under the Fourteenth Amendment. As a general rule: the greater the deprivation of liberty or property, the greater the process that is due prior to the deprivation.

Students have an expectation of privacy but this is different from that of citizens outside the school. School searches have a different standard than that for police searches.

Since the Supreme Court has not ruled on all possible issues affecting students in public schools, student constitutional rights may differ from circuit to circuit because of different rulings in different circuits. This is true of dress and grooming. Students should check the case law for the circuit that has jurisdiction over the state in which the school that they attend is located. Pennsylvania schools are in the jurisdiction of the Third Circuit Court of Appeals.

In exercising constitutionally protected rights, students may not disrupt school operations or interfere with the rights of other students or behave in a lewd fashion with is objectionable to school staff or peers.

Students have statutory rights under federal statutes and agency rules and regulations that may not be violated by school board policies or administrative actions. If these rights have been violated, students must exhaust the applicable administrative remedies before initiating court proceedings.

Students who believe that a constitutionally protected right has been violated by the action of the school district may bring an action against the school board, administrators and teachers under Section 1983 of the Civil Rights Act of 1871. If the student prevails, the student many be awarded monetary damages but such damages are usually nominal.

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