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2013-2014 School Law for Future Teachers
Transcript of 2013-2014 School Law for Future Teachers
For Future Teachers
FERPA and FOIA
Teacher Licensure, TESS, and Teacher Fair Dismissal Act
Individual Issues and Rights
Sexual Harassment and Bullying
FERPA is a federal law that sets out basic privacy requirements for
personally identifiable information
contained in education records created or maintained by schools.
Who has FERPA rights?
Student GPAs and transcripts
Final course grades
Financial aid records
Academic counseling records
Student health records
How FERPA Works
Personally identifiable information
within education records cannot be disclosed unless:
Prior written consent,
Directory information, or
An exception to the general rule
Eligible Students--students 18 or older
Parents of Students
is anyone who is currently attending a school or who has attended a school AND about whom the school maintains education records
Parents or eligible students have the right to review the student's education records, and request that a school correct records which they believe to be misleading or inaccurate, if applicable.
Schools must have written permission from the parent or eligible student to release any information from a student's education record.
are records that are directly related to a student and maintained by an educational agency or institution or by anyone acting for an educational agency or institution.
Arkansas Public School Resource Center
1401 W. Capitol Ave., Suite 315
Little Rock, Arkansas 72201
What are public records?
What about peer grading?
Email and Texts
What do you do if you receive a FOIA request?
Notice of Access to Student by Law Enforcement
FOIA applies to public meetings and public records
FOIA follows FERPA
If all or part of the records are covered under FERPA, then they also cannot be disclosed under FOIA.
Owasso Independent School Dist. No. I-011 v. Falvo
The Supreme Court decided that
(students grading other students' assignments) does not violate FERPA.
Grades on student papers are not
until the teacher has recorded them.
Peer-graded items are not
because student graders only handle the items for a few moments.
The Court stated that each student grader, by grading assignments, did not constitute a person acting for an educational institution within FERPA.
Peer grading may be problematic for reasons other than FERPA
Keep in Mind:
in any form
which are required by law to be kept as a record of the performance (or lack thereof) of official functions of a public official or employee, public agency, or any other agency receiving public funding.
All records maintained in public offices or by public employees within the scope of their job are assumed to be public records.
In Any Form
Can someone access my personal email, work email, school phone text messages, or personal phone text messages through FOIA?
Avoid using your personal phone or email for work business
Talk to an administrator
If you are tasked with retrieving records and sending them to an administrator, do so
The law says FOIA requests must be answered
Failure to do so can result in some pretty steep penalties. Your school could be sued.
Anything you couldn't disclose under FERPA (FOIA Follows FERPA)
Personnel records, if that disclosure would constitute a clearly unwarranted invasion of personal privacy
Home addresses of non-elected public employees contained in employer records, except that the keeper of the records must verify an employee's city or county of residence or address on record upon request.
The principal of a school, or designated person in the principal’s absence, must make a reasonable, good faith effort to notify a student's parent or legal guardian, if the student is under eighteen, if the school or school district:
Makes a report to any law enforcement agency concerning student misconduct;
Grants law enforcement other than a school resource officer acting in the normal course of assigned duties access to a student;
Knows that a student has been taken into custody by law enforcement personnel during the school day or while under school supervision.
When the parent is suspected of child maltreatment and the child is being interviewed by law enforcement about those allegations, the parent must not be notified.
What happens in years without an evaluation?
How to Lose Your License
List of Offenses in A.C.A. § 6-17-410
Central Registry Checks
Criminal Background Checks
Pre-Licensure Waiver Hearings
Teacher Personnel File
Notice of Termination
In the years when a summary evaluation is not required for a teacher, the teacher will focus on the professional learning plan as approved by his or her evaluator.
In the two years an evaluation is not required, a district may conduct a less intensive evaluation than the TESS evaluation.
In 2013-2014, ADE will implement a one year pilot using the Teacher Excellence and Support System in selected districts to obtain feedback on the model and make revisions to rules
In 2014-2015, districts will implement the Teachers Excellence and Support System for all teachers employed under rules adopted by State Board of Education.
Beginning in 2014-2015, TESS evaluations will be done annually for novice teachers, probationary teachers, or teachers who successfully completed intensive support status within the current year or previous year.
All other teachers will be evaluated one time every three school years.
The Arkansas Department of Education is required to provide more than one opportunity for training.
Grounds for revocation of teaching license:
Plea of guilty or no contest to being found guilty of any crime listed in Ark. Code Ann. § 6-17-410, as discussed in a moment. Includes any expunged or pardoned conviction
Violation of secure testing regulations and confidentiality.
A true report in the Child Maltreatment Central Registry.
Murder in the first degree.
Murder in the second degree.
Battery in the first degree.
Battery in the second degree.
Terroristic threatening in the first degree.
Sexual assault in the first degree, second degree, third degree, and fourth degree.
Distribution to minors
Any felony in violation of the Uniform Controlled Substances Act
Permitting abuse of a child (You’re a mandated reporter).
Engaging children in sexually explicit conduct for use in visual or print media, transportation of minors for prohibited sexual conduct, employing or consenting to the use of a child in a sexual performance, or producing, directing, or promoting a sexual performance by a child.
Sexual indecency with a child
Endangering the welfare of a minor in the first degree
Pandering or possessing visual or print medium depicting sexually explicit conduct involving a child
False imprisonment in the first degree
Permanent detention or restraint.
Assault in the first degree.
Public sexual indecency.
Endangering the welfare of a minor in the second degree.
Criminal attempt, criminal solicitation, or criminal conspiracy to commit any of the offenses listed in this subsection.
Computer child pornography.
Computer exploitation of a child in the first degree.
Breaking or entering.
Any felony not listed and involving physical or sexual injury, mistreatment, or abuse against another.
Crimes of a sexual nature
Endangering or allowing the endangerment of children
Illegal Physical Restraints
Assorted other felonies
Rule of Thumb:
Avoid breaking the law
Criminal conviction does not have to be related to your role as teacher to serve as basis for revocation of your license.
Background checks will be performed at every licensure and every license renewal.
Any unlicensed person who is disqualified may apply for a waiver by submitting a request for hearing, proof of acceptance or enrollment in a teacher preparatory program, and a written recommendation from that teacher preparatory program.
If the State Board of Education approves the waiver after a hearing the future teacher may be given a license if he or she successfully completes the preparatory program and all other requirements for licensure, or may gain a waiver to work unlicensed as a student teacher.
The ADE is required by law to do a child maltreatment central registry check through the Department of Human Services for first-time licensure applicants and first license renewal.
Districts may also request checks for new hires who are licensed.
If the check reveals a “true report,” the applicant’s license will be denied and a current certified employee will have his/her license revoked or non-renewed.
The applicant does have a right of appeal.
Required for all new, out of state, renewals, and reinstatement of expired licenses, and for changing to a new school for all certified personnel.
Background checks are required for non-certified personnel too.
Licenses will be denied, revoked, or non-renewed if any conviction can be found in a criminal background check.
The school district must maintain a personnel file for each teacher which must be available to the teacher for inspection and copying at the teacher's expense during normal office hours.
The teacher may submit a written response to any of the material contained therein, which must be included in the file.
Teacher contracts are with the Board.
Therefore, the administration of a school does not terminate teachers, but instead recommends a contract to the Board for termination.
The recommendation is usually accepted. Hearings are before the Board for this reason.
Every contract between a teacher and the board of a school district must be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the next school year
By May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher's contract not be renewed;
During the period of the contract or within ten (10) calendar days after the end of the school year, the teacher shall send by certified or registered mail his or her resignation as a teacher; or
The contract is replaced by another contract between the parties.
A notice of nonrenewal shall be delivered in person to the teacher or mailed by registered or certified mail to the teacher at the teacher's residence address as reflected in the teacher's personnel file.
The notice of recommended nonrenewal of a teacher shall include a statement of the reasons for the recommendation, setting forth the reasons in separately numbered paragraphs so that a reasonable teacher can prepare a defense.
From the date a teacher is issued a new contract, the district must allow thirty (30) days for the teacher to read, sign, and return the contract.
A teacher has the right to
rescind any signed contract no later than ten (10) days after the end of the school year.
You may end the contract with or without the district’s permission during this time period, but after that ten day period, the school district must agree to let you out of your contract.
A teacher can only be terminated during the term of any contract:
when there is a reduction in force (RIF) created by district-wide reduction in certified staff,
for incompetent performance,
for conduct which materially interferes with the continued performance of the teacher's duties,
for repeated or material neglect of duty, or
for other just and reasonable cause.
The superintendent must notify the teacher of the termination recommendation.
The notice must include a statement of the grounds for the recommendation of termination, setting forth the grounds in separately numbered paragraphs so that a reasonable teacher can prepare a defense.
The notice shall be delivered in person to the teacher or sent by registered or certified mail to the teacher at the teacher's residence address as reflected in the teacher's personnel file.
Looks Like This:
Reasons for termination
Right to request a hearing and
deadline to do so in writing.
Delivered by Certified Mail
or Hand Delivered
Like the Non-Renewal Letter!
Whenever a superintendent has reason to believe that cause exists for the termination of a teacher and that immediate suspension of the teacher is necessary, the superintendent may suspend the teacher without notice or a hearing.
However, the superintendent MUST notify the teacher in writing within two (2) school days of the suspension.
The notice looks like the notices for termination and non-renewal.
If sufficient grounds for termination or suspension are found, the board of directors may terminate the teacher or continue the suspension for a specific , stated time period.
The teacher’s salary is suspended during this time and remains suspended for as long as the suspension of the teacher lasts.
If the teacher is then found to be innocent of the charge, the teacher is reinstated and paid for the suspension leave time as though he or she worked those days.
Upon receiving a request for a hearing, the board must grant
which will take place at a time agreed upon in writing by the parties. If a time can't be agreed on, the hearing must be held between 5 and 20 calendar days after the written request has been received by the board.
The hearing must be
unless the teacher or the board requests that it be
. If the hearing is public, the parent/guardian of any student under 18 years of age who offers testimony may choose to have the student's testimony offered in private;
The teacher and the board of directors may be represented by
of their choosing;
If the teacher requests it in writing at least 24 hours before the hearing, the board will make
of the hearing
at its own expense and must give a transcript to the teacher
at no cost to the teacher
cannot consider at the hearing any new reasons
which were not specified in the notices provided.
Your rights are in purple
The Board's decision with regard to non-renewal of a probationary teacher is
The only remedy for any non-probationary teacher who opposes the decision made by the board of directors is an appeal to the circuit court of the county in which the school district is located, within seventy-five (75) days of the date of written notice of the action of the board of directors.
It means you have to file suit in court.
After any hearing granted to a teacher by this subchapter, the board of directors, by majority vote, will make specific written conclusions with regard to the truth of each reason given the teacher in support of the recommended termination or nonrenewal.
Any nonrenewal, termination, suspension, or other disciplinary action of a teacher by a school district shall be void unless the school district substantially complies with all provisions of this section of the law and the school district's applicable personnel policies.
This means if the district doesn’t follow the law and its policies at least substantially, the teacher’s termination, suspension, or nonrenewal will end and the teacher will be reinstated .
Suspected Child Abuse
Personnel Rights and Issues
What if the non-custodial parent wants a copy of the child's school records?
Suspected Child Abuse
Juvenile Safety Plans
Duty Free Lunch
Teacher Freedom of Religion
Student Freedom of Religion
Offenses Against Teachers
Leave of Absence
What if the non-custodial parent comes to pick up the child?
Personnel policies are often incorporated into the teacher contract. You are entitled to rely on them as though they are written in your contract.
Policies are developed by policy committees, with teacher representation, in a traditional public schools. Charter schools and private schools may be different.
All teacher discipline must be in accordance with state law and the district’s policies
Charter schools and private schools may be different.
If you are in a meeting that is disciplinary in nature or becomes disciplinary in tone, if you are a
traditional public school employee
, you have a right to a witness of your choosing.
Even if you aren’t a traditional public school employee, you may request a witness.
If you are placed on an improvement plan as a result of a disciplinary meeting, do not fight the improvement plan. Focus on following it perfectly.
It never hurts to ask!
Licensed personnel may obtain up to 12 hours of professional development through online programs which are:
Approved by ADE, and
Related to the district’s comprehensive school improvement plan OR the teacher’s professional growth plan
Teachers may make up credits missed because of illness during the current or succeeding year and these credits may be obtained through online programs.
Each district must provide at least a 30-minute uninterrupted duty-free lunch each day for each certified person.
Otherwise, the certified person must be compensated at his or her hourly rate of pay.
Juvenile safety plans are court orders applying to juvenile sex offenders.
The superintendent may verbally communicate the plan to the school employee primarily responsible for the student’s learning environment.
Employee must sign a confidentiality statement.
Safety plan is protected information under FERPA and
be communicated to any institution of higher ed, vo-tech, or any past, present, or future employer.
Any student shall have the right to pray at any time, provided that it does not interfere with instruction.
No school personnel shall lead prayer.
A law enacted this year requires a
period of silence
at the beginning of each school day (1 minute) in which students may reflect, pray, or engage in silent activity.
The teacher or school employee is required to ensure that all students remain silent and do not interfere with other students during that period.
Any teacher may wear the clothing of any established and recognized religion in the public schools and institutions of this state.
The language “established and recognized religion” would likely be unconstitutional today.
Arkansas Code Annotated § 5-2-605 allows the teacher to use
physical force upon the minor when and to the extent reasonably necessary to maintain discipline or to promote the welfare of the minor.
The use of physical force against another, resulting in harmful or offensive contact.
What is reasonable & appropriate?
It will depend on the circumstances. The more serious the threat, the more force can be justified. You wouldn't tackle a student for chewing gum, but you might be justified in physically restraining a student who is attacking another student.
Rule of Thumb:
Avoid physical contact with students unless necessary.
A person commits battery in the second degree if the person knowingly, without legal justification, causes physical injury to a person he or she knows to be a teacher or other school employee while acting in the course of employment.
A person commits the offense of terroristic threatening in the first degree if with the purpose of terrorizing another person, the person threatens to cause physical injury or property damage to a teacher or other school employee acting in the line of duty.
Battery in the Second Degree:
Arkansas law provides a leave of absence for personal injury from assault or other violent criminal act whenever a schoolteacher is absent from his or her duties in a public school as a result of personal injury caused by either an assault or a criminal act committed against the teacher in the course of his or her employment, the teacher must be granted a leave of absence from school with full pay for
up to one (1) year
from the date of the injury.
Teachers who suffer personal injury while intervening in student fights, restraining a student or protecting a student from harm must be considered to be injured as a result of an assault or a criminal act.
Teachers, school officials and school counselors must
notify the child abuse hotline if they have reasonable cause to suspect that a child has been subjected to child maltreatment or observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment.
What if a child's family sues me for notifying the hotline?
“Any person or agency required to participate and acting in good faith in making notification, the taking of a photograph or radiological test, or the removal of a child while exercising protective services shall be
immune to suit and to liability
, both civil and criminal.“ A.C.A. § 12-18-107(a)
It means they can try to sue you, but they'll lose because you are protected against a lawsuit as long as you were acting in good faith.
1) Honesty in belief or purpose
2) Faithfulness to your duty or obligation
Ask for one. Orders for paternity, custody, child support, visitation, or divorce will contain information about whether the parent who doesn't have custody of the child can pick up the child from school. It will also have a visitation schedule.
ends a person's right to be a parent.
Usually, allowing the non-custodial parent visitation isn't a problem. They have the same rights as the custodial parent with parent lunches, parent-teacher meetings, FERPA, and any other parent rights
there is an order
Is there a Court Order?
It is important to remember that just because one parent does not want the other parent to visit or take the child, does not mean that the other parent does not have the right to visit or take the child.
When in doubt, ask for a court order.
Communication is key. Talk to both parents, and do so early in the school year. This will help you keep out of the middle of hostile feelings between parents. You are an educator, not a referee.
Unless and until you see proof (court orders) showing otherwise, one parent's "rights" concerning the child are the same as the other parent's.
Orders look like this:
Says custody, termination, visitation, divorce, or guardianship
File stamp or court seal mark
Name of child
Instructions, rules, and orders
Both custodial and non-custodial parents are allowed to establish a schedule of prearranged days and times with the principal for one parent to take the child to school and the other to pick the child up.
But Arkansas law prohibits both parents (custodial and non-custodial) from transferring the child from one parent to another on school
grounds while school is in session.
Let the parent have the records! The Family Educational Rights and Privacy Act (FERPA) gives either a parent or legal guardian equal rights to review an education record unless there is evidence of a court order or law revoking these rights.
FERPA does not distinguish between
a custodial and a non-custodial parent.
The parent with primary custody is called the custodial parent. It's the parent the child lives with most of the time.
What is Sexual Harassment?
Types of Sexual Harassment
Sexual Harassment of Students
Examples of Sexual Conduct
Title IX Hostile Educational Environment
Must the sexual conduct be unwelcome?
Are gay and lesbian students protected from sexual harassment?
When do I search a student?
More on Searches
It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.
Submission to such conduct (1) is made a term or condition of employment or (2) forms a basis for employment decisions affecting that individual.
Conduct has purpose or effect of (1) unreasonably interfering with work performance or (2) creating an intimidating, hostile, or offensive environment.
Quid Pro Quo:
Means "This for That"
Sexual harassment is conduct that is sexual in nature, unwelcome, and denies or limits a student’s ability to participate in or benefit from a school’s education program.
Sexual harassment can take different forms depending on the harasser and the nature of the harassment. The conduct can be carried out by school employees, other students, non-employee third parties, such as a visiting speaker.
Both male and female students can be victims of sexual harassment, and the harasser and the victim can be of the same sex.
Student was subject to unwelcome sexual harassment;
Harassment was based on sex;
School had actual knowledge of sexual harassment;
Sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive student of access to educational opportunities or benefits provided by school;
School was deliberately indifferent to harassment; &
School had control over both harasser and context
in which harassment occurred.
The parts of a legal cause for suit (called a
cause of action
) that must be proven in order to show the accused person is guilty of that act.
elements must be present
Making sexual propositions
Pressuring students for sexual favors.
Touching of a sexual nature.
Writing graffiti of a sexual nature.
Displaying or distributing sexually explicit drawings, pictures, or written materials.
Performing sexual gestures or touching oneself sexually in front of others.
Telling sexual or dirty jokes.
Spreading sexual rumors or rating other students as to sexual activity or performance.
Circulating or showing e-mails or Web sites of a sexual
Conduct is considered unwelcome if the student did not request or invite it and considered the conduct to be undesirable or offensive.
The age of the student, the nature of the conduct, and other relevant factors affect whether a student was capable of welcoming the sexual conduct.
A student’s submission to the conduct or failure to complain does not always mean that
the conduct was welcome.
Title IX prohibits harassing conduct that is of a sexual nature if it is unwelcome and denies or limits a student’s ability to participate in or benefit from a school’s program, regardless of whether the harassment is aimed at gay or lesbian students or is perpetrated by individuals of the same or opposite sex.
Title IX does not address discrimination or
other issues related to sexual orientation.
Bullying means the intentional harassment, intimidation, humiliation, ridicule, defamation, or threat of violence by a student against another student or public school employee by a written, verbal, electronic, or physical act that may address an attribute of the other student, public school employee, or person with whom the other student or public school employee is associated and that causes or creates actual or reasonably foreseeable:
Physical harm to a public school employee or student or damage to the public school employee’s or student’s property;
Substantial interference with a student’s education or with a public school employee’s role in education;
Hostile educational environment for 1 or more students or public school employees due to the severity, persistence, or pervasiveness of the act; or
Substantial disruption of the orderly operation of the school
or educational environment.
means an actual or perceived personal characteristic including without limitation race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identify, physical appearance, health condition, or sexual orientation.
Bullying of a public school student or a public school employee is prohibited.
Ark. Code Ann. § 5-71-217 makes the offense of
a Class B misdemeanor (which is punishable by a fine of up to $1,000.00 and/or imprisonment for up to 90 days).
A person commits the offense of
He or she transmits, sends, or posts a communication by electronic means with the purpose to frighten, coerce, intimidate, threaten, abuse, harass, or alarm another person; and
The transmission was in furtherance of severe, repeated, or hostile behavior toward the other person.
An electronic act means any communication or image transmitted by an electronic device (telephone, wireless phone or other wireless communications device, computer, or pager).
The “electronic act” can occur or originate anywhere (i.e., student’s home computer).
“Bullying fosters a climate of fear and disrespect that can seriously impair the physical and psychological health of its victims and create conditions that negatively affect learning, thereby undermining the ability of students to achieve their full potential.”
Excerpt from USDOE “Dear Colleague” letter dated October 26, 2010:
Why is it important?
How do you handle it?
Is it child maltreatment under Ark. Code Ann. §§ 12-18-402 (bullying) or 12-18-308 (cyberbullying)?
Mandated reporter requirements?
Title VII or Title IX sexual harassment issues?
Written policies required
= up to 10 days
is longer than 10 days
Student has right to appeal to School Board
One year expulsion is required where a firearm or weapon is involved
This requirement may be waived or altered at the superintendent’s discretion.
Different standards apply to Special Education students
Students are protected by 4th Amendment right to be free from unreasonable searches, BUT there are MANY exceptions:
Lockers - students should be informed that lockers may be searched at any time
Search of person must be based on
(you must be able to articulate what caused your suspicion to another person clearly), with adult witness present, and must be done by personnel of the same sex as the student,
and not be excessively intrusive.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Drug screens must be random, except where students are involved in sports or extracurricular activities.
Parent notification must be used whenever possible.
The U.S. Supreme Court case,
New Jersey v T.L.O
, makes public school administrators “state actors,” for the purposes of the Fourth Amendment. This means administrators fall under the Fourth Amendment, in the same way police officers do, and may not perform unreasonable searches and seizures.
A New Jersey high school student was accused of violating school rules by smoking in the bathroom, leading an assistant principal to search her purse for cigarettes. The vice principal discovered marijuana and other items that implicated the student in dealing marijuana. The student tried to have the evidence from her purse suppressed, contending that mere possession of cigarettes was not a violation of school rules; therefore, a desire for evidence of smoking in the restroom did not justify the search. The Supreme Court decided that the search did not violate the Constitution and established more lenient standards for reasonableness in school searches.
New Jersey v. T.L.O.
Student is underage, so initials were used.
After you have involved your administrator. You should never make this decision on your own.
A student search should be initiated only if you have reasonable grounds to believe that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.
The search should be restricted to those areas where the suggested contraband may be found.
The younger the student, the more conservative you should be about the search.
You should always involve an administrator in the decision making process first.
You probably wouldn't find a shotgun inside a student's wallet, for example
The search must be reasonable also in light of what you're looking for. It would be inappropriate to conduct a very invasive physical search for a stick of gum.