CALIFORNIA SCHOOL LAW

By FRANK KEMERER, PETER SANSOM

Stanford University Press

Copyright © 2013 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
ISBN: 978-0-8047-8515-0

Contents

Tables and Figures…………………………………………………xivAbbreviations……………………………………………………..xviPreface…………………………………………………………..xixChapter 1 Law and the California Schooling System……………………..1Chapter 2 Attendance, Instruction, and Assessment……………………..47Chapter 3 Equity, Adequacy, and School Finance………………………..96Chapter 4 Unions and Collective Bargaining……………………………133Chapter 5 Employment……………………………………………….169Chapter 6 Rights of Expression………………………………………213Chapter 7 The School and Religion……………………………………253Chapter 8 Students with Disabilities…………………………………291Chapter 9 Student Discipline………………………………………..338Chapter 10 Public Access, Privacy, and Student Search and Seizure……….381Chapter 11 Race and Gender Discrimination…………………………….418Chapter 12 Legal Liability………………………………………….451Appendix A: Glossary of Legal Terminology…………………………….491Appendix B: Finding and Reading Statutes and Judicial Decisions…………499Appendix C: References……………………………………………..504List of Cases……………………………………………………..507Index…………………………………………………………….527

CHAPTER 1

LAW AND THE CALIFORNIASCHOOLING SYSTEM

School law is a complex subject. The extensiveness of the California schoolingsystem adds to its complexity. California elementary and secondary schools enrollover 6.7 million students. Traditional public schools enroll about 90 percent ofthem, with another 380,000 enrolled in charter schools. Some 500,000 studentsattend private schools enrolling twenty-five or more students. It is estimated thatwell over 100,000 students attend very small private schools or are homeschooled.The California public school system encompasses 1,037 school districts of varioustypes. There are some 9,800 traditional public schools, 1,000 charter schools,and 3,000 private schools. About 40 percent of the total state budget is devoted topublic schooling.

The law that governs this vast system emanates from several sources and has becomeextensive over time. Laws enacted by the California Legislature pertaining toprecollegiate education alone constitute some 1,680 single-spaced, double-columnpages of small print in the commonly used desktop edition of the California EducationCode. Because the provisions of the Education Code have been enactedin piecemeal fashion over the years, they are difficult to find and often overlap.As early as 1922, a California court recognized the complexity of the EducationCode: “At the outset it may be observed that any attempt to apply literally all thevarious provisions of the school law would lead to hopeless confusion” (Horton v.Whipple, p. 190).

Interplay among the various sources of school law adds to the complexity. Tocite one example, California voters approved Proposition 187 in 1994, curtailingpublic social services and benefits for illegal aliens. Among other things, the propositionadded Section 48215 to the California Education Code, excluding illegalalien children from California public schooling. However, a year later, a federaldistrict court ruled that the exclusion was unconstitutional. To the uninformed, itmay seem strange that a single federal judge could thwart the wishes of a majorityof the electorate and their representatives.

Our purpose in this introductory chapter is to identify the sources of Californiaschool law, the major players, and the structure of the system. We also will reviewthe rights and responsibilities of parents, the role of private schools, and the effortsto expand schooling options through charter schools and voucher proposals. Oncewe have an understanding of the legal framework within which California publicand private schools operate, we are in a good position to explore the influence ofthe law in their day-to-day operation in the remainder of the book.

WHAT COMPRISES SCHOOL LAW?

School law essentially is a combination of constitutional, statutory, administrative,contract, and judicial law. In this section, we identify each type of law anddescribe how they relate to one another. We have developed a flowchart to accompanythe discussion (see Figure 1.1). Readers will find it useful to refer to thechart periodically.

Constitutional Law

Constitutional law is the highest form of law because it sets forth basic principlesof governance. Constitutional law has two sources, federal and state. The federalConstitution is an important source of school law for two reasons. First, it reservesto states the responsibility to establish and operate a schooling system. Article I,Section 8 of the U.S. Constitution lists the powers given to Congress; Article I,Section 10 lists powers prohibited to the states. Because education is in neither list,it becomes a state responsibility under the Tenth Amendment to the U.S. Constitution,which provides that all powers not specifically delegated to Congress orprohibited to the states are left to the latter. The federal Constitution is also an importantsource of individual rights. The Bill of Rights lists such fundamental rightsas freedom of speech, the free exercise of religion, and the right to be free fromunreasonable searches and seizures. It was a condition of state ratification of theConstitution in 1789 that the Bill of Rights was added to protect these fundamentalrights from hostile action by Congress. The purpose of the Bill of Rights was wellstated by Justice Robert Jackson in a 1943 ruling preventing the state from compellingall students to salute the flag. He wrote, “The very purpose of a Bill of Rightswas to withdraw certain subjects from the vicissitudes of political controversy, toplace them beyond the reach of majorities and officials and to establish them aslegal principles to be applied by the courts” (West Virginia State Board v. Barnette,p. 638).

The due process clause of the Fourteenth Amendment extends nearly all of theoriginal Bill of Rights protections to persons in the state setting, and many of themnow apply to public school employees and students. The due process clause reads,”nor shall any State deprive any person of life, liberty, or property, without due processof law.” Not only has the U.S. Supreme Court construed the word liberty in thisclause to protect persons from state governmental intrusion on their constitutionalrights, the Court also has ruled that these rights cannot be taken away without “dueprocess of law.” As we shall see in later chapters, both educator contract terminationand the disciplinary removal of students from public school must be done incompliance with the due process clause.

The Fourteenth Amendment also provides that no state shall “deny to any personwithin its jurisdiction the equal protection of the laws.” Beginning in 1954 withthe famous Brown v. Board of Education desegregation case, the equal protectionclause has figured prominently in efforts to integrate schools and, for a time, to assureequalized funding as well. When the U.S. Supreme Court backed away frombecoming involved in equalization of school finance, state courts took over. Bothof these matters are discussed in detail in subsequent chapters.

Although public school districts and charter schools are included within theambit of the Fourteenth Amendment, private schools are not. This is because theamendment is phrased in terms of “states.” It requires some semblance of stateaction for the amendment to apply. Because private schools are not part of thestate, they do not have to observe the constitutional rights of their constituents.The relationship between the private school and parents, teachers, and studentsis essentially contractual in nature, just as is true of a private corporation and itsemployees. At the same time, private schools are subject to other types of law thatlimit their autonomy. We will discuss how this is so later in the chapter.

When there is a conflict between state and federal law, federal law prevails asa general rule. This is the thrust of Article VI, Section 2 of the U.S. Constitution,which states:

This Constitution, and the laws of the United States which shall be made in pursuancethereof; and all treaties made, or which shall be made, under the authorityof the United States, shall be the supreme law of the land; and the judges in everystate shall be bound thereby, any thing in the constitution or laws of any state tothe contrary notwithstanding.

This provision is known as the federal supremacy clause. The complicated legalquestion of when a state law may survive a supremacy clause challenge is beyondthe scope of our discussion. The supremacy clause figured prominently in the1995 federal district court decision striking down the portion of Proposition 187excluding illegal aliens from California public schools. The U.S. Supreme Courthad ruled in 1982 that the exclusion of undocumented immigrant children fromtuition-free public schooling violates the equal protection clause of the FourteenthAmendment (Plyler v. Doe). Based on the federal supremacy clause, the federaljudge in LULAC v. Wilson declared such exclusion by California’s Proposition 187unconstitutional. Later, most of the other provisions of the proposition were supplantedby federal law.

While the Tenth Amendment leaves education to the states, it does not specifythat the state has to set up a schooling system. In fact, the amendment merelyreads, “The powers not delegated to the United States by the Constitution, nor prohibitedby it to the States, are reserved to the States respectively, or to the people.”Picking up where the federal constitution leaves off, Article IX, Section 1 of theCalifornia Constitution states: “A general diffusion of knowledge and intelligencebeing essential to the preservation of the rights and liberties of the people, theLegislature shall encourage by all suitable means the promotion of intellectual,scientific, moral, and agricultural improvement.” Article IX, Section 5 specifies,”The Legislature shall provide for a system of common schools by which a freeschool shall be kept up and supported in each district….” Article XVI, Section 8(a) specifies, “From all state revenues there shall first be set apart the moneys to beapplied by the State for support of the public school system and public institutionsof higher education.” Taken together, these provisions not only require the CaliforniaLegislature to provide for a public school system, they also make a student’sentitlement to education a fundamental right. This determination was essential tothe California Supreme Court’s ruling in 1976 in Serrano v. Priest that expendituresacross districts must be equalized, a matter addressed in some detail in Chapter 3.

The California Constitution also is an important source of individual rights.For example, California courts have held that the entitlement to free speech forstudents is greater under the California Constitution than under the First Amendmentto the U.S. Constitution. Article I, Section 2, subdivision (a) of the CaliforniaConstitution reads, “Every person may freely speak, write and publish hisor her sentiments on all subjects, being responsible for the abuse of this right. Alaw may not restrain or abridge liberty of speech or press.” In 1979 the CaliforniaSupreme Court ruled that this provision protects the right of high school studentsto circulate a petition in a private shopping center (PruneYard Shopping Center v.Robins), a decision it affirmed in 2007 when it struck down a shopping mall banon all forms of speech urging customers to boycott a store (Fashion Valley Mall v.National Labor Relations Board). In the eyes of the court, the shopping center isthe equivalent of a public forum where people exchange views. The U.S. SupremeCourt earlier had ruled that the free speech clause of the First Amendment to theU.S. Constitution does not apply within the confines of a private shopping center(Hudgens v. National Labor Relations Board, 1976).

While federal law is supreme over state law when there is a conflict betweenthem, the U.S. Supreme Court has recognized that state constitutions and laws canbe more protective of civil liberties than the U.S. Constitution but not less so. Justas the California Constitution is more protective of free speech than its federalcounterpart is, so too is it more protective of privacy. For example, in cases involvingteacher lifestyle choices, a portion of Article I of the California Constitutionhas surfaced, providing that among the inalienable rights enjoyed by Californiansis the right of “obtaining safety, happiness, and privacy.”

Statutory Law

A “statute” is a law made by a legislative body. Both the statutes enacted by Congressand those passed by the state legislature have significant influence over theoperation of California schools. Congress has enacted numerous laws affectingeducation. A synopsis of some of the most important is provided in Table 1.1.

Because Congress does not have direct authority over education, most—but notall—of the statutes it has enacted are pursuant to its spending authority. The firstprovision of Article I, Section 8 of the U.S. Constitution is that Congress has theauthority to collect taxes and provide for “the general welfare of the United States.”Congress uses this power to provide conditional monetary grants to states, tradingfederal dollars for state compliance with Congress’s political agenda. For example,a school district could lose federal funding if it condoned the release of personallyidentifiable information about students or their families without complying withthe provisions of the federal Family Educational Rights and Privacy Act.

Some federal statutes affect both public and private educational institutionsregardless of whether they receive federal funding. These statutes are enacted pursuantto Congress’s authority to enact laws affecting interstate commerce underanother provision of Article I, Section 8. Recently, Congress has been less inclinedto enact laws under the interstate commerce clause, in part because doing so limitsthe autonomy of states and in part because the U.S. Supreme Court has been moreprotective of the concept of federalism—the division of power between the centralgovernment and states. Nevertheless, as noted in Table 1.1, some very importantfederal statutes that are based on Congress’s power under the interstate commerceclause remain and have significant influence over the operation of both public andprivate schools. Included among them are Title VII of the 1964 Civil Rights Act,which, with few exceptions, prohibits discrimination on the basis of race, color,religion, sex, or national origin in both public and private employment, and theAmericans with Disabilities Act, which does the same for persons with disabilities.

Another important federal statute included in the table is a civil rights lawknown as 42 United States Code Section 1983. Enacted after the Civil War, thislaw was designed to enforce the provisions of the Fourteenth Amendment by enablingpersons to file lawsuits in federal court involving alleged violations of federalrights. This was Congress’s effort to provide meaningful relief to victims ofdiscrimination because state courts had not proven up to the task. Known generallyas “Section 1983,” the statute provides that

Every person who, under color of any statute, ordinance, regulation, custom, orusage, of any State or Territory … subjects, or causes to be subjected, any citizenof the United States or other person within the jurisdiction thereof to the deprivationof any rights, privileges, or immunities secured by the Constitution andlaws, shall be liable to the party injured in an action at law, suit in equity, or otherproper proceeding for redress [in federal court]….

Discussed at some length in Chapter 12, Section 1983 is the primary means bywhich claims involving deprivation of constitutional rights such as free speech andfree exercise of religion by municipalities and public employees are taken directlyto federal court. While school personnel in California public school can be suedindividually under this statute, school districts in the state are not subject to suitbecause they are viewed to be part of the state, and the state itself is immune underthe provisions of the Eleventh Amendment. The same may be true of charterschools.

The California Legislature has enacted a vast number of statutes involving educationin response to the California Constitution’s educational mandate that it doso. And because the legislature is in session every year, new statutes are constantlybeing added and old statutes revised or repealed. State statutory law reaches deeplyinto the operations of public schools and, in some cases, private schools as well.For example, the legislature has decreed that every public and private school shallassure that every restroom is to be cleaned regularly, be fully operational, andstocked at all times with toilet paper, soap, and paper towels or functional handdriers (Educ. Code § 35292.5).

Most of the statutes affecting education are grouped together in the CaliforniaEducation Code. The code establishes the structure of the system and detailsits operation. Provisions of the Education Code will be a major focus in ensuingchapters and can be found in their entirety on the California Department of Education(CDE) website at www.cde.ca.gov. Other important state laws also affecteducation. A case in point is the section of the California Government Code settingforth the Educational Employment Relations Act (EERA)—also known as theRodda Act after its sponsor. EERA provisions spell out how collective bargaining isto be conducted in public schools. It will be explored in some detail in Chapter 4.

Administrative Law

When legislatures enact statutes, they cannot possibly write them specificallyenough to give them operational value. This is where administrative law comes in.Administrative law is the body of law developed by administrative agencies underthe authority of the legislature to carry out their statutory responsibilities. Congresshas given federal agencies like the U.S. Department of Education the authorityto develop administrative regulations implementing various federal statutes.For example, the department’s Office for Civil Rights has developed regulationsfor determining how Title IX of the 1972 Education Amendments is to apply tocurricular and extracurricular activities so as to assure gender equity. Likewise,extensive regulations have been developed by the department’s Office of SpecialEducation and Rehabilitation Services (OSERS) to implement the terms of theIndividuals with Disabilities Education Act. Every school attorney and school administratoris familiar with federal “regs” that specify how the terms of federalstatutes are to be implemented.
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