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CHAPTER 9: Legal Aspects of Education
due process clause A formalized
legal procedure with specific and detailed rules and principles designed to protect the rights of individuals.
equal protection clause A Fourteenth Amendment statement that government shall not deny any person the equal protection of the law.
Court cases involving the Fourteenth Amendment often focus on the section declaring that no state shall “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 law.” The first part of this passage is known as the due process clause. The second part is known as the equal protection clause. Fourteenth Amendment cases have addressed the issue of school desegregation as well as the suspension and expulsion of students. Litigants citing the Fourteenth Amendment must show that a “liberty” or a “property” interest is a major element in the case. A liberty interest is involved if “a person’s good name, reputation, honor, or integrity is at stake.” A property interest might arise from legal guarantees granted to tenured employees; for instance, teachers beyond the probationary period have a property interest in continued employment. Similarly, students have a property interest in their education. If either a liberty or a property interest is claimed, a school district must provide due process (guaranteeing a fair and impartial hearing and the opportunity to present evidence) to the people involved. The rest of this chapter will explore the use of these and other legal concepts in actual school settings.
9-2 Teachers’ Rights and Responsibilities As pointed out in Chapter 2, The Teaching Profession, teachers historically were vulnerable to dismissal by local boards of education for virtually any reason and without recourse. Collective negotiation statutes, tenure laws, mandatory due-process procedures, and other legal measures have been established to curb such abuses and to guarantee teachers certain rights. Along with rights come responsibilities, and many of these, too, have been written into law.
9-2a Testing and Investigation of Applicants for Certification or Employment Almost everywhere in the United States, individuals who want to teach in grades K–12 must possess teaching certificates, which are usually granted by the state. In recent years, many states have passed legislation requiring thorough background checks of prospective teachers, and some extend this requirement to currently employed teachers seeking recertification. For example, New York and Texas now require that all candidates for certification be fingerprinted as part of a check for criminal histories. Several school districts have initiated drug testing of teacher applicants. In addition, some states electronically share background information about candidates for government positions. Prospective teachers should be careful about what they post online because many districts are examining sites such as Twitter, Instagram, and Facebook for information about job applicants.3 These trends have been fueled by two complementary developments. One consideration is that technology has made it more feasible to use fingerprints and other information sources in checking with local, state, and federal law enforcement agencies. The other is that the public has become increasingly concerned about dangers posed by child molesters and potential school employees with other criminal records. As described in Chapter 1, Motivation, Preparation, and Conditions for the Entering Teacher, in addition to background checks, states require that prospective teachers pass one or more competency tests for certification. In some cases, current teachers
3 “Texas Now Requiring Fingerprints from School Employees,” American School Board Journal (March 2008), p. 10; and Jonathan Shorman, “Legislation Requires Fingerprints Every Five Years for School Workers,” The Topeka Capital-Journal, March 18, 2015, available at www.cjonline .com.
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