Chapter 14. Legal IssuesSurrounding Assessment

“Stone walls do not a prison make,

Nor iron bars a cage . . .”

-- Richard Lovelace

Topics

Three Types of LawsStatutory Law (the “feds”)Administrative Law (the “regs”)Case Law (here comes the “judge”)

Major Federal LawsUSC, CFR, PL

The CourtsCase LawConsent Decrees

Three Types of Laws

Statutory law, legislation Passed by a legislative body

Administrative law, regulations (regs) Developed by a government agency

Case law Based on court decisions

Basic Terminology

Most of our attention is on federal laws United States Code, statutory law passed by

Congress, U.S.C. in the title Code of Federal Regulations, administrative

law, C.F.R. in the title Public Law, law passed by Congress, P.L. in

title with year and order passed (P.L. 94-142)

Useful sources : see next slide

Useful Sources of Information

For the full text of United States Laws (codes), go to: http://uscode.house.gov/usc.htm

For the full text of United States Regulations, go to: http://www.access.gpo.gov/nara/cfr/

For Individuals with Disabilities Education Act, go to: http://www.ed.gov/offices/OSERS/IDEA/

For No Child Left Behind Act of 2001, go to: http://www.ed.gov/nclb

Why So Confusing?

Ways of referring to a law By USC, PL, CFR, full title, or acronym

Frequent amendments, revisions

Cross referencing not exact between laws and “regs”

Court interpretations

Let’s Start at the Very Beginning . . .

The Reserve Clause . . .Control of education as a state’s right

The Tenth Amendment (Amendment X) of the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791. The 10th Amendment states that powers not granted to the National government nor prohibited to the states are reserved to the states and to the people.

So, control of education falls to each individual state . . . Thus, we have 50 sets of state laws.

But, hold on, in 1868 enter the . . .

14th Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added.]

Major Federal Laws: Overview

Civil Rights Acts1964, 1991

Main thrust: employment; use of tests (and other criteria) for job selection

Some application to educational assessment, e.g., for graduation tests

Equal Employment Opportunity Commission (EEOC) “Guidelines” - Good example of administrative “regs”

ESEA

Elementary and Secondary Education Act (1965) Major increase in federal

presence Requirements to

evaluate new programs Emergence of

accountability

President Lyndon B. Johnson, with his childhood schoolteacher, Ms. Kate Deadrich Loney, prepares to sign ESEA into law.

Lyndon Johnson – School Teacherquoted from TIME May 21, 1965 . . .

“Johnson was a small town boy. After working at various casual labor jobs for a few years after high school, Lyndon decided that ‘I'd rather use my head than my back to earn a living.’ He chose Southwest Texas State Teachers College in San Marcos because ‘it was nearest my home, I could get in, and it was most economical.’

Tired of the financial squeeze after his sophomore year, Lyndon brashly applied for a teaching job in the obscure town of Cotulla, between San Antonio and Laredo. He was named principal of a new red brick Mexican-American school, charged at the age of 20 with directing five teachers. Those nine months in a county where the Mexican kids lived in waterless, crumbling shacks and the median education of Mexican adults is still a mere 1.4 years proved the most rewarding of Lyndon's school years. Young Lyndon insisted upon respect from his pupils. He taught fifth, sixth and seventh grades. He ordered his teachers to supervise organized play at lunchtime and they went on strike, but his board backed him up. He joined eagerly in the kids' play, spent much of his salary for playground equipment, often tackled the boys on the gravel football field. By such tactics, Lyndon earned the kids' respect—and their affection as well. Lyndon got his bachelor of science degree with a government major in August 1930, became an instructor in public speaking at Sam Houston High in Houston the next month. He fascinated his speech classes with his personal, pointed anecdotes, loved to throw out a single word and demand that his students ad-lib a speech about it. Once the word "string" stumped the class—but Lyndon promptly talked 15 minutes on the topic. On the side, Lyndon taught Houston's first Dale Carnegie course for businessmen. His teaching career ended in 1932, when he turned to politics. “

‘The basis of our whole future as a nation and a civilized society depends on our ability to give every child all the education that he can take.’ –LBJ

ADA. . . Preceded byRehab Act of 1973

The Americans with Disabilities Act (1990)

First thrust: architectural barriers

Concept of “accommodations”

Application to assessment procedures

What will “level the playing field”?

Current practices for testing

IDEA

Individuals with Disabilities Education Act

Historical tracePL 94-142 in ’75 IDEA in ’90, ’97 IDEA 2004

Provisions related to assessmentFAPE (free and appropriate education ; what’s “appropriate”?)The IEPLeast restrictive environment, mainstreaming, inclusion

NCLB

NoChildLeftBehindAct (2002) Historical trace

Technically a revision of ESEA of 1965 Nation at Risk, Goals 2000

Strong bipartisan support The goal: “proficiency” for all students Adopts Standards Based Education (SBE) approach

FERPA

Family Educational Rights and Privacy Act (1974)[aka Buckley Amendment]

Right to access to information about self (or child)

Restrictions on release of information to others

The Courts

Someone sues A particular entity A particular

School District A particular

teacher

Background on procedures Xxx v. Yyy Type of court

The Courts (cont.)

Consent Decrees Another way in which

courts work

Exploring Court Cases For court cases, access

the LexisNexis database.

Practical Advice

1. Know your school’s source for legal expertise.

2. Don’t over-generalize from single court cases.

3. Be aware of “regs” as well as laws.

Terms/Concepts to Review andStudy on Your Own (1)

accommodation ADA (Americans with Disabilities Act) administrative law case law consent decree CFR (Code of Federal Regulations) equal protection clause ESEA (Elementary and Secondary Education Act)

Terms/Concepts to Review andStudy on Your Own (2)

FAPE (free and appropriate education) FERPA (Family Education Rights and Privacy Act) IDEA (Individuals with Disabilities in Education) NCLB (No Child Left Behind) PL (public law) Regulations (regs) statutory law USC (United States Code)