The network of education law is woven of constitutional provision, statutes, regulations, policies, and common law.

The constitution both legitimates and limits the actions of the government. Tenth Amendment limits the federal role in governing education: 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. The tenth amendment is the basic poser to control education devolves upon the states. However, the U.S. constitution does not require the states to exercise this power. State constitutions may extend individual rights beyond those protected by the U.S. Constitution, but they may not contradict the U.S. constriction or permit government practices that it prohibits. No state education law, school district policy, or public school practice may be inconsistent with any article or amendment to the Constitution. First Amendment guarantees of freedom or speech and freedom of religion, Fourth Amendment protection against unreasonable search and seizure Fourteenth Amendment requires that states not violate their citizens rights to due process and equal protection of the laws. Constitutions Adopted by the people State and federal statutes Adopted by the legislatures The U.S. Congress and state legislatures execute their powers and duties through the enactment of statutes. Most state legislatures have enacted statutes that: 1. Dictate who may and who must attend school 2. Create local public school districts and boards and the means for their alteration and dissolution. 3. Designate the qualification for public school teachers and educational administrators. 4. Prescribe the curriculum that the public schools must offer. 5. Establish minimum requirements for high school graduation. 6. Create a system for raising and distributing funds for education. 7. Establish certain limited powers for schools to discipline students and employees 8. Fix the selection process, duties, powers, and limitations of local boards of education. 9. Regulative certain aspects of the program of private schools. 10. Delegate authority to regulate and oversee certain aspects of education to state agencies and officers. Two most significant federal statutes in terms of their effects on the programs of local public schools are the Individual with Disabilities Exudation Act and No Child Left Behind Act Regulations Adopted by agencies A regulation must meet three requirements: 1. It must have been adopted according to a procedure prescribed in a statute, 2. Its substance must be consistent with the statute the regulation is intended to implement, 3. And the statute itself must be constitutional Common Law created by courts In common law cases, courts invent the relevant legal rules and apply them to the case at hand. By contrast, in constitutional and statutory cases, the court is only interpreting and applying a law created by another authority. Two main branches: 1. Civil branch a. Contracts Contract law establishes the conditions under which and exchange of promises creates binding obligations. 1

b. Torts Tort law deals with a variety of matters including negligent behavior that results in an injury, intentional injuries, libel and slander, and injuries resulting from defects in buildings or land. 2. Criminal (mostly superseded by statutes) School Board Policies may issue their own rules and regulations All of their enactments must conform to the limitations of relevant constitutional provisions, statutes, regulations, and common law. Courts and Educational Law Three overlapping functions: 1. Courts resolve conflicts by apply constitutional provisions, legislation, and regulations to specific situation. 2. Courts rule on the constitutional validity of statutes, policies, and actions. 3. Courts provide the official interpretation of the federal and state constitutions, statutes, regulations, and common law. Decisions render by the courts form a body of law know as case law. Cases are studied to find out who prevailed in a particular legal dispute and to learn why. Precedents Decisions in prior cases similar to the one under consideration and referred to a. Mandatory precedent If a precedent comes from a court with jurisdiction in the area of a current dispute is called a mandatory precedent. binds law and actions of government in a particular area of jurisdiction b. Persuasive precedent If it comes from a different area of jurisdiction is called persuasive precedent. show how courts in other jurisdictions view particular questions. Judicial System federal and state courts. Both systems are organized into 3 levels: 1. Trail courts 2. Intermediate courts of appeal 3. And one (in some states, two) highest court In most instances, case can only be initiated by someone with a direct stake in the outcome of the dispute. Such an individual is said to have standing. Federal Courts deals almost exclusively with cases involving federal constitutional or statutory issues. 1. 95 federal trail courts called district courts each state has at least one federal district court and heavily populated states have several. a. Primary function is to apply law as found in the constitution, federal statutes, and relevant higher court precedent. 2. Circuit courts of appeals 13 federal circuit courts eleven with jurisdiction over a group of states, one for DC, and one consisting of 3 specialized federal courts. a. Sole function is to review the records of lower courts to determine if errors of law have been committed. b. If an appellate court decides that an error of law has been made, it has 2 basic options: 1) To declare a new final judgment or 2) To remand the case for retrial buy the lower court in accordance with the appellate courts new ruling. 3. Supreme Court highest federal court hears appeals from the federal circuit courts and from any of the state highest courts in cases involving issues of federal law. a. Majority opinion 9 members leaving 5 as the majority 1) Dissenting opinions may be issued if a justice disagrees. 2

2) Concurring opinions justices agreeing with the outcome but disagreeing with the rationale may issue separate, non binding, concurring opinions. 3) Plurality opinion when there is no majority agreement on the rationale for a decision the outcome of the case is still decided by majority vote. There may be a plurality opinion supported by a majority of the justices on the winning side and one or more concurring and dissenting opinions. 4. State Court State courts hear cases involving state constitutional law, state statutes, and common law and may also hear cases involving federal issues. Many education cases are decided in state courts because they raise no federal legal questions. a. State judiciaries mirror the federal system: trial courts, intermediate appellate courts, and usually a single highest court. Elements of a judicial decision trial courts sometimes, intermediate courts often and highest courts usually conclude their proceeding s by issuing a written opinion. 1. Standard opinion contains: a. The case name 1) Named for the adversaries or parties to the case 2) Person who brings the suit is the plaintiff or sometimes the complainant 3) The person or governmental unit against whom the suit is brought is the defendant or respondent 4) Name is Plaintiff v. Defendant 5) If the case is appealed the initiator of the appeal ( the loser of the previous round) is called the appellant or the petitioner and the other party, the appellee or respondent. Listed as the appellant first v. appellee second b. A review of the facts c. A restatement of the claims and arguments of both sides d. A review of the cases procedural history e. A statement of the issue(s) f. A ruling on the issue(s) g. A justification for each ruling 1) Rulings are referred to as holdings, findings, or conclusions of law 2) Rulings interpreting a constitutional provision or other law may provide principles, rules, standards, or doctrine to guide the application of the law in related situations h. The disposition 1) One common pitfall is to confuse the holdings of a court with the dicta that surround it. Dicta, which may be defined as side comments, are parts of an opinion not necessary to the outcome. Legal citations Keyishian v. Board of Regents, Name of case, 385 Vol. U.S. 589 Case Reporter Page (1967) (Year Decided)

Cert. denied means denied certiorari meaning the Supreme Court refused to review the case Affd means affirmed Revd means reversed is a section number instead of a page number

Compulsory Education Laws

By the end of the 19th century, when most states passed their first enforceable compulsory education laws, required school attendance was viewed a s way both to promote democracy and to protect both children and adult jobs buy limiting child labor. More recent arguments tend to focus on the notion that education is a prerequisite to productive participation in the modern economy . Pierce v. Society of Sisters 1925 (Pierce Compromise) Private schools can regulate to make sure compulsory education takes place. The Compulsory Education Act of 1922 required parents or guardians to send children between the ages of eight and sixteen to public school in the district where the children resided. The Society of Sisters was an Oregon corporation which facilitated care for orphans, educated youths, and established and maintained academies or schools. This case was decided together with Society of Sisters v. Hill Military Academy. Did the Act violate the liberty of parents to direct the education of their children? Yes. The unanimous Court held that "the fundamental liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." The Supreme Court did, however, indicate that the State has the power to require children to attend some school and the power to regulate schools to ensure that they are doing a good job at education. In this way, the Court affirmed the interest government has in socializing the young to citizenship, but denies nevertheless that the State has a monopoly in this project. Meyer v. Nebraska (pg. 35) under this doctrine the courts thought it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. Nebraska, along with other states, prohibited the teaching of modern foreign languages to grade school children. Meyer, who taught German in a Lutheran school, was convicted under this law. Does the Nebraska statute violate the Fourteenth Amendment's Due Process clause? Yes, the Nebraska law is unconstitutional. Nebraska violated the liberty protected by due process of the Fourteenth Amendment. Liberty means more than freedom from bodily restraint. State regulation of liberty must be reasonably related to a proper state objective. The legislature's view of reasonableness was subject to supervision by the courts. The legislative purpose of the law was to promote assimilation and civic development. But these purposes were not adequate to justify interfering with Meyer's liberty to teach or the liberty of parents to employ him during a "time of peace and domestic tranquility." The Pierce Court based its decision on the Due Process Clause of the Fourteenth Amendment. The clause prohibits state actions that deprive any person of life, liberty, or property without due process of law. Wisconsin v. Yoder 1972 Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons? In a 6to-1 decision, the Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade. The Court found that the values and programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law. Age Requirements KG must be age 5; 1st grade must be age 6 until the age of 21.

Health-related requirements Parents have argued that mandatory immunization is a violation of their right to free exercise of religion, but the courts have uniformly held that the states interest in preventing communicable disease is compelling and overrides the parents interest. Some states permit parents to claim religious exemptions. Schools may exclude non-immunized children from school if an outbreak occurs. Lewis v. Sobel a student whose parents religious convictions are to the contrary may be excluded from the immunization requirement be applied in the case of a family whose non-mainstream spiritual beliefs cause them to reject preventive medicine. The court ordered the students admission to school and awarded damages for emotional distress. Residency Requirements (pg. 32) Parents sometimes wish to transfer their children out of their home district for educational, philosophical, social, or other reasons. Martinez v. Bynum A Texas law permitted public school districts to deny tuition-free admission to minors living apart from their parents if their primary purpose of living in the district was to attend school free of charge. Roberto Morales left his family in Mexico to live with his sister, Oralia Martinez, in Texas. When the school district denied Morales' application for free admission, Martinez challenged the law in court. Did the Texas law violate the Equal Protection Clause of the Fourteenth Amendment? No. In an 8-to-1 decision, the Court held that the Constitution permitted states to restrict eligibility for tuition-free education to bona-fide residents. The Court found that the Texas requirement was "far more generous" than traditional residency requirements, since it extended benefits to many children even if they did not intend to remain in a school district indefinitely. No violation of the Equal Protection Clause was found. McKinney Homeless Assistance Act of 1988 - This Act provides federal assistance to the states to deal with the homeless and requires the states to take steps to assure homeless children a free public education. In the absence of a specific statute or regulation governing the residency of homeless children, residency should be considered the place where the child generally lives. School Assignment with in Districts (pg. 34) School boards are required to provide an education to children residing in the district or participating in a legally sanctioned transfer program. School boards may assign their students to any school or program they choose with the constraint of not assigning on the basis of race or other criteria in violation of the Equal Protection Clause of the 14th Amendment or federal civil rights states. There is no constitutional requirement that students be given a choice among a districts schools. Government Regulation of Private and Home Schools After World War I, a number of states passed laws designed to promote the goal of socializing or, as it is often called, Americanizing. Meyer v. Nebraska (see above) Ohio - State v. Whisner 1976 the regulations imposed strict standards on almost every facet of private school operation including, as the court noted, the content of the curriculum, the manner in which it is taught, the persons who teach it, the physical layout of the building, the hours of instruction and the educational policies intended to be achieved Whisner shows that the Constitution does place limitations on the states power to regulate the program of private religious schools. Regulations that are arbitrary or unnecessary to the achievement of the states legitimate educational goals may not be enforced. However, the opinion should not be understood to prohibit all state regulations that a private school objects to on religious grounds. In fact, although the Whisner plaintiffs prevailed, most religion-based attacks on state regulation of private schools have been unsuccessful. Sheridan Road Baptist Church v. Department of Education - Although most states place no specific requirements on private school teachers or require only that they be qualified or hold a bachelors degree, a 5

minority of states insist that private school teachers hold certification. A church school objected on free exercise grounds to Michigans requirement of certification for its teachers. Teachers had to obtain a bachelors degree from an approved university in Michigan. Because the states interest in assuring that all students be taught by qualified teachers outweighed the potential minor burden on the parents religious freedom, the certification requirement was upheld. Federal Regulation of Private Schools Runyon v. McCrary -, The Supreme Court ruled that Section 1981 prohibits private schools from denying admission on the basis of race. Private schools that engage in racial discrimination in any of their policies or practices may also lose their tax exempt status even if the discrimination is based on religious belief. In addition, if a private school receives federal money, it is subject to Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race by programs receiving federal financial assistance. Home schooling The Supreme Court has not addressed the question of whether a state constitutionally may prohibit homeschooling. State v. Eddington (pg 43) A New Mexico court allowed the state to ban homeschooling to promote the goal of ensuring that children were brought into contact with people in addition to their parents so that they might be exposed to at least one set (additional) set of attitudes, values, morals, lifestyles and intellectual abilities. Regardless of whether homeschooling constitutionally may or may not be abolished, all sates have chosen to permit it. Four categories of home school regulations ( pg 44): 1. Instructor qualification requirements 2. Pupil assessment requirements 3. Visitation requirements 4. Programmatic requirements Parents of private and homeschooled pupils sometimes wish to have their children participate in some public school courses or extracurricular activities. In the absence of a State statute requiring participation, parents have no legal right to insist that their children be allowed to participate in public school programs in which they are not enrolled or to partially enroll in other to participate in selected courses or activities. Some school boards may adopt a polo8icy of allowing private or homeschooled students to enroll part-time for particular courses or activities, but the district will usually not receive state ad for such pupils. Everson v. Board of Education - A New Jersey law allowed reimbursements of money to parents who sent their children to school on buses operated by the public transportation system. Children who attended Catholic schools also qualified for this transportation subsidy. Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment? No. A divided Court held that the law did not violate the Constitution. After detailing the history and importance of the Establishment Clause, Justice Black argued that services like bussing and police and fire protection for parochial schools are "separate and so indisputably marked off from the religious function" that for the state to provide them would not violate the First Amendment. The law did not pay money to parochial schools, nor did it support them directly in anyway. It was simply a law enacted as a "general program" to assist parents of all religions with getting their children to school. Zorach v. Clauson In the aftermath of the Supreme Court's decision in McCollum v. Board of Education, New York City began a program in which students in public schools could be dismissed from classroom 6

activities for certain periods to participate in religious instruction elsewhere. In McCollum, the Court disallowed an Illinois program in which representatives of religious groups came to public schools and taught classes during the school day. New York's "released time" program was upheld by the New York Court of Appeals. Did the New York program violate the Establishment Clause of the First Amendment? In a 6-to-3 decision, the Court held that the "released time" program neither constituted the establishment of religion nor interfered with the free exercise of religion. The Court noted that public facilities were not being used for the purpose of religious instruction and that "no student was forced to go to the religious classroom." Writing for the majority, Justice Douglas argued that there was "no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence." Board of Education v. Allen in 1968 - A group of New York school boards sued the state's Commissioner of Education claiming that the Education Law violated both the First and Fourteenth Amendments. The Law required the state to provide textbooks to all school children in grades seven through twelve regardless of whether they attended public or private schools. The Court upheld the constitutionality of the New York Education Law because it furthered a secular end. Lemon v. Kurtzman 1971 (pg 48) This case was heard concurrently with two others, Early v. DiCenso (1971) and Robinson v. DiCenso (1971). The cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to nonpublic schools. The Rhode Island statute provided direct supplemental salary payments to teachers in nonpublic elementary schools. Each statute made aid available to "church-related educational institutions." Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church-related educational institutions"? Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. Lemon Test (pg 48) holds that a government policy or practice violates the Establishment Clause if: a. its purpose is to endorse or disapprove of religion b. its primary effect is to aid or inhibit religion, or c. it either creates excessive administrative entanglement between church and state or is conducive to religiously based political divisiveness. Aguilar v. Felton 1985 - Part of Title I of the Elementary and Secondary Education Act of 1965 authorized local institutions to receive funds to assist educationally deprived children from low-income families. Since 1966, New York City had used portions of its Title I funding to pay salaries of employees who teach in parochial schools. Did New York City's decision to use Title I funds to pay salaries of parochial school teachers violate the Establishment Clause of the First Amendment? Yes. Even though the Court acknowledged that the efforts of the City of New York were well-intentioned, it found that the funding practices violated the Constitution. As part of New York's program, teachers were directed to avoid involvement in religious materials and activities in their classrooms. This, as well as the actions of school administrators and field supervisors who monitored classroom activities for religious content, posed constitutional problems for the majority. Involving agents of the city in extensive monitoring increased the potential for "divisiveness along religious lines" and violated the intent of the Establishment Clause which is to prevent the intrusion of church and state on each other's respective domain. 7

Neutrality doctrine holds that it is permissible for a church or other religious organization such as a parochial school to receive assistance from a government program as long as the program is religiously neutral. The assistance must not be defined by religion and be available to all or nonreligious criteria. Mueller v. Allen 1983 - A Minnesota law allowed taxpayers to deduct from their state income tax expenses incurred in providing tuition, textbooks, and transportation for their children's elementary or secondary school education. Parents who sent their children to parochial school also qualified for the deductions. Did the law violate the Establishment Clause of the First Amendment? No. The Court held that the law did not have "the primary effect of advancing the sectarian aims of the non-public schools," nor did it "excessively entangle" the state in religion. Most importantly, argued Justice Rehnquist, the deductions were available to all parents; in effect, Minnesota did not "confer any imprimatur of state approval" on religious schools. Thus, the law passed the Court's three-pronged test announced in Lemon v. Kurtzman (1971) used to evaluate claims regarding the Establishment Clause. Mitchell v. Helms 2000 - Chapter 2 of the Education Consolidation and Improvement Act of 1981 provides for the allocation of funds for educational materials and equipment, including library materials and computer software and hardware, to public and private elementary and secondary schools to implement "secular, neutral, and nonideological" programs. In Jefferson Parish, Louisiana, about 30% of Chapter 2 funds are allocated for private schools, most of which are Catholic or otherwise religiously affiliated. Mary Helms and other public school parents file suit alleging that Chapter 2, as applied in Jefferson Parish, violated the First Amendment's Establishment Clause. The District Court initially agreed, finding that Chapter 2 had the primary effect of advancing religion because the materials and equipment loaned to the Catholic schools were direct aid and that the schools were pervasively sectarian. However, after the presiding judge who made the initial ruling retired, the case was reviewed by a new judge, who reversed that decision. Thereafter, based on different precedent, the court upheld Chapter 2. In reversing, the Court of Appeals held Chapter 2 unconstitutional. Does Chapter 2 of the Education Consolidation and Improvement Act of 1981 violate the Establishment Clause of the First Amendment? No. In a 6-3 plurality decision delivered by Justice Clarence Thomas, the Court held that that Chapter 2, as applied in Jefferson Parish, is not a law respecting an establishment of religion simply because many of the private schools receiving Chapter 2 aid in the parish are religiously affiliated. Turning to neutrality to distinguish between indoctrination attributable to the State and that which is not, Justice Thomas wrote for the Court, "[i]f the religious, irreligious, and are religious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government." Educational Vouchers and the Establishment Clause Zelman V. Simmons-Harris - Ohio's Pilot Project Scholarship Program provides tuition aid in the form of vouchers for certain students in the Cleveland City School District to attend participating public or private schools of their parent's choosing. Both religious and nonreligious schools in the district may participate. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. In the 1999-2000 school year 82 percent of the participating private schools had a religious affiliation and 96 percent of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students were from families at or below the poverty line. A group of Ohio taxpayers sought to enjoin the program on the ground that it violated the Establishment Clause. The District Court granted them summary judgment, and the Court of Appeals affirmed. Does Ohio's school voucher program violate the Establishment Clause? No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the program does not violate the Establishment Clause. The Court reasoned that, because Ohio's program is part of Ohio's general undertaking to provide educational opportunities to children, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients and the incidental advancement of a religious mission, or any perceived endorsement, is reasonably attributable to the individual aid recipients not the government. Chief Justice 8

Rehnquist wrote that the "Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice."

Curriculum
Control of the Public School Program The primary legal authority for specifying the curriculum of the public schools rests with the state legislatures. The state legislature may, if it wishes, prescribe the basic course of study down to the last detail, select all books and materials, determine graduation requirements, prescribe standardized testing requirements, and even establish the methods of instruction. Minimum standards (pg 63) The Supreme Court has suggested, but not officially ruled, that the provision of a minimally adequate education to some students but not others violates the Equal Protection Clause of the 14th Amendment. Limiting Local Options In many states, statutes specifically prohibit certain subjects or topics communism. Federal and state court rulings also restrict school programs, particularly in the area of religious instruction. Establish graduation requirements Some statutes and regulations typically establish minimum credit requirements for graduation. Some states require a minimum competency exam in order to graduate. Determining course content State legislatures occasionally create specific course content requirements. Within the constraining boundaries, the local school boards and their employees are left with deciding the remaining details. Selecting methods of instruction Other than specifying that the language of instruction be English, State law typically has little to say about methods of instruction. It is left to local school board discretion. Choosing materials More the half the states have some form of statewide textbook adoption. In others it is left to the local school boards. Determining the political and cultural perspective of courses State legislation may affect the perspectives of the curriculum by excluding certain courses and topics and requiring others. Many would argue that local control of education exists to permit communities to promote their own values in their schools. Creating pupil classification systems State statutes and regulations provide for classification of pupils by age and grade level and establish complex systems for classifying pupils in need of nonstandard educational programs. Local districts retain the basic authority to establish pupil classification schemes for purposes of tracking and ability grouping, but the constitution and anti discrimination statutes set significant limitations. Exempting students from courses It is not uncommon for state laws to excuse students from courses if they or their parents object on religious grounds. Statutory limitations on school board control of curriculum A mostly older, but valid , body of case law involves the claim that a local school board lacks the state-delegated authority to implement a particular course or program. Schools have prevailed in almost all these cases to add courses. In some states Kansas give parents the right to have their children excused from sex education classes. Objections to religious observances in public schools The past 50 years have seen almost no constitutional litigation challenging the right of states or schools to teach the basic subjects. The most common constitutional 9

objection raised against a school program is that it fails to respect the wall of separation between church and state. Engel v. Vitale 1962 - The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country." Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment? Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies. Despite the passage of time, the decision is still unpopular with a majority of Americans. School District of Abington Township v. Schempp 1963 (pg 68)- The Abington case concerns Bible-reading in Pennsylvania public schools. At the beginning of the school day, students who attended public schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all Abington Township students to recite the Lord's Prayer. Students could be excluded from these exercises by a written note from their parents to the school. In a related case -- Murray v. Curlett -- a Baltimore statute required Bible-reading or the recitation of the Lord's Prayer at open exercises in public schools. Murray and his mother, professed atheists -- challenged the prayer requirement. Did the Pennsylvania law and Abington's policy, requiring public school students to participate in classroom religious exercises, violate the religious freedom of students as protected by the First and Fourteenth Amendments? The Court found such a violation. The required activities encroached on both the Free Exercise Clause and the Establishment Clause of the First Amendment since the readings and recitations were essentially religious ceremonies and were "intended by the State to be so." Furthermore, argued Justice Clark, the ability of a parent to excuse a child from these ceremonies by a written note was irrelevant since it did not prevent the school's actions from violating the Establishment Clause. Florey v. Sioux Falls School District 49-5 1980 In response to complaints that public school Christmas assemblies in 1977 and prior years constituted religious exercises, the School Board of Sioux Falls, South Dakota, set up a citizens committee to student the relationship between church and state as applied to school functions. The school board created a policy and appellants brought suit for declaratory and injunctive relief, alleging that the policy statement and the rules adopted but the School board violate the Establishment and Free Exercise Clause of the First Amendment and the policy and rules are unconditional both on their face and the lemon test. (pg 81) The district court found that much of the art, literature and music associated with traditional holidays, particularly Christmas, has acquired a significance which is no longer confined to the religious sphere off life. It has become integrated into our national culture and heritage. Further more, the rules guarantee that all material used has secular or cultural significance: Only holidays with both religious and secular bases may be observed; music, art, literature and drama may be included in the curriculum only if presented in a prudent and objective manner and only as a part of the cultural and religious heritage of the holiday; and religious symbol may be used only as a teaching aid or resource and only if they are displayed as a part of the cultural and religious heritage of the holiday and are temporary in nature. Religious and moral objections to course content and materials Epperson v. Arkansas 1968 - Appellant Epperson, an Arkansas public school teacher, brought this action for declaratory and injunctive relief challenging the constitutionality of Arkansas' "anti-evolution" statute. That statute makes it unlawful for a teacher in any state-supported school or university to teach or to use a textbook 10

that teaches "that mankind ascended or descended from a lower order of animals." The State Chancery Court held the statute an abridgment of free speech violating the First and Fourteenth Amendments. The State Supreme Court, expressing no opinion as to whether the statute prohibits "explanation" of the theory or only teaching that the theory is true, reversed the Chancery Court. In a two-sentence opinion it sustained the statute as within the State's power to specify the public school curriculum. Held: The statute violates the Fourteenth Amendment, which embraces the First Amendment's prohibition of state laws respecting an establishment of religion. Smith v. Board of School Commissioners of Mobile County 1987 (pg 88)- At least half of the original trial dealt with textbooks and, though this was not an issue on appeal, it was an issue squarely presented to the Court. One of the positions the original 624 intervenors, now plaintiffs, took was that humanism is being advanced in the textbooks. It is a religion and therefore should be excluded as have other religious beliefs. In this case the plaintiffs draw a distinction between tenets of faith and facts about religion. Tenets of faith consist of dogma, doctrine and belief and are prohibited from being advanced in the public school classroom. Facts about religion are not. The plaintiffs concede that tenets of faith, dogma and doctrine cannot be advanced in the public school room, but they believe that this restriction should be equally applied to all such. Humanism being such a religion, it should be excluded. Another area of contention deals with the inhibition of religion. The plaintiffs contend that when tenets of only one faith are advanced it inhibits other religions. When facts about a religion are regularly censored or excluded from textbooks, that equally inhibits that religion. Inhibition of religion can result by statements contained in textbooks that are contrary to the positions of other religions. The plaintiffs contend that they can demonstrate that the textbooks leave out all meaningful discussion of the part that Christianity and Judaism have played in the history of the United States, and when you do this you relegate these religions to a position of insignificance. On the contrary, the textbooks do teach secular humanism, which is a religion, and this emphasizes its importance, all to the detriment of theistic religions. The plaintiffs go on to say that they are not asking that their beliefs be imposed upon anyone, just the opposite. Taxpayers, including themselves, should not be forced to support a system that works against their efforts to pass on their faith to their children. Virgil v. School Board of Columbia County 1989 (pg 100) - A public high school discontinued use of a textbook for a humanities course after receiving a parental complaint. The parent objected to an English translation of the Greek dramatist Aristophanes Lysistrata and to English poet Geoffrey Millers The Millers Tale. The parent believed that the two works of art were too vulgar. Several other parents then sued, saying the removal of the textbook violated the First Amendment. Issue: Whether school officials may remove a book from the curriculum because of its vulgarity and explicit sexual references. In a 3-0 decision, an Eleventh Circuit panel held that school officials can remove books from the curriculum if they believe they are too vulgar for students.

Federal statutory restriction on school programs NCLB (pg 105) Schools must: 1. Adopt challenging academic content standards: andchallenging student academic achievement standards 2. Establish AYP objectives 3. Administer tests aligned with the states standards annually 4. Issue various report detailing the assessment results. 5. Continue to participate in the biennial national Assessment of Education Progress of reading and math for students in the 4th and 8th grades. Parents have legal right to receive information concerning the qualifications of their childrens teachers if they request it. Schools that fail AYP for 2 consecutive years must be identified as needing improvement. 11

The Copyright Act of 1976 (pg 109) - The Act states that the fair use of a copyrighted workfor purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use) , scholarship, or research is not an infringement of copyright. Four factors are considered. 1. The purpose of the use. 2. The nature of the copyrighted work 3. The amount and substantiality of the portion used 4. The effect of the use upon the potential market for or value of the copyrighted material. The Equal Access Act (EAA) 1984 It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or opportunity to, or discriminate against, and students who such to conduct a meeting with in that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings. The Hatch Amendment also known as the Protection of Pupils Rights Act Two parts: 1. All instructional materials used buy schools in connection with research or experimentation be available for parental inspection. 2. Prohibits subjecting any student to psychiatric or psychological testing or treatment when the primary purpose is to obtain information concerning such matters as political affiliation: psychological problems; sexual behavior or attitudes; or illegal, antisocial, self-incriminating, or demeaning behavior.

Student Free Speech Rights

Courts have realized that fro most purposes it is more appropriate to view the school as an arm of the state rather than as a substitute parent. Freedom of Expression (pg 116) Congress shall make no law abridging the freedom of speech, or the press, or the right of the people peaceably to assemble, and to petition the Government for redress of grievances. These limitations apply to the actions of state government by virtue of the Due Process Clause of the 14 Amendment. Definition of Speech (pg 117) Some courts have accepted the contention that a students hairstyle is speech, but others have disagreed. Categories of speech (pg 118) Obscenity 3 conditions 1. Taken as a whole it appeals to prurient interests, 2. The publication depicts or describes in a patently offensive way sexual conduct specifically defined in state law 3. taken as a whole, the work lacks serious literary, artistic, political, or scientific value. Threat intent to harm Defamation a 3rd party subjects a person to contempt, ridicule or harm Regulation of Protected Speech In order to justify prohibiting disfavored content, government must prove that the regulation was necessary to achieve a compelling state purpose of interest and narrowly drawn to achieve that end. Content-neutral regulations are permissible if the regulation furthers an important or substantial governmental interest and if the incidental restriction of speech is no greater than is essential to further that interest. Hecklers veto- audience threatens violence toward the speaker. A hostile audience may negate the right to speak freely. This issue is unsettled 12

Government property parks are stringently protected School Boards may impose time limits and is reasonable and not an effort to suppress expression merely because public officials oppose the speakers view. Restriction of speech occurring on government property must meet four criteria: 1) the regulation must be content neutral (i.e. not based on the subject matter or content of the speech) 2) the regulation must serve a significant governmental purpose 3) the regulation must be narrowly tailored (i.e. not substantially broader than necessary to achieve its purpose) 4) the regulation must leave ample alternative means to reach the target audience. Three types of student speech (depends primarily on where and when it occurs and who initiates it.) 1) Students private speech 2) speech is part of school program 3) speech outside school control
Independent Student Speech West Virginia State Board of Education v. Barnette 1943 - As part of instituting a required curriculum teaching American values, the state of West Virginia forced students and teachers to participate in saluting the flag. Failure to comply with this resulted in expulsion and the student was considered illegally absent until readmitted. A group of Jehovah's Witnesses refused to salute the flag because it represented a graven image that was not to be recognized. In an 8-1 decision, the Court ruled that the school district violated the rights of students by forcing them to salute the American flag. The refusal of the students to say the pledge did not infringe on the rights of other students. The flag salute required students to declare a belief that was contrary to their faiths. The state did not claim that a clear and present danger would be created if the students remained passive during the pledge. Unlike the decision in Gobitis, this Court does not believe that allowing an individual's rights to be supported over government authority is a sign of a weak government. "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities." Finally, compulsion is not a legitimate means for creating national unity. Significance - This decision directly reversed the Court's earlier decision in Gobitis. In this case, the Court saw the forced salute as compelling the students to assert a belief contrary to their faiths. The minimal harm created by lack of compliance is not great enough to dismiss the rights of the students to exercise their religions

Tinker v. Des Moines Independent School District 1969 -John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of Des Moins' school districts resolved that all students wearing armbands be asked to remove them or face suspension. When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day. Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections? The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits. The principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline. Students do not leave their right to freedom of speech at the schoolhouse gate.

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Tinker Test says that school officials may only prohibit student speech that causes, or reasonably could be expected to cause, material and substantial disruption of the schools operations or that invades the rights of others. Terminiello v. Chicago 1949 - Father Arthur Terminiello, in an auditorium in Chicago, delivered a vitriolic speech in which he criticized various political and racial groups and viciously condemned the protesting crowd that had gathered outside the auditorium. Policemen assigned to the event were unable to prevent several disturbances by the "angry and turbulent" crowd. The police arrested Terminiello for "breach of the peace." He was then tried and convicted for his central role in inciting a riot. Did the Chicago ordinance violate Terminiello's right of free expression guaranteed by the First Amendment? In a 5-to-4 decision, the Court held that the "breach of the peace" ordinance unconstitutionally infringed upon the freedom of speech. Noting that "[t]he vitality of civil and political institutions in our society depends on free discussion," the Court held that speech could be restricted only in the event that it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Justice Douglas wrote that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Melton v. Young 1972 - A high school in Chattanooga, Tennessee prohibited the use of the Confederate flag and discontinued the playing of Dixie as the school pep song because of racial tensions. The school dress code also prohibited the wearing of "provocative symbols on clothing." The board of education specifically designated the Confederate flag as such a provocative symbol. When a high school student was suspended for wearing a jacket with an emblem of the Confederate flag, he sued, claiming a violation of his First Amendment rights. A district court determined that the schools dress code policy was unconstitutionally vague but still upheld the suspension as valid. The student appealed. Whether school officials could suspend a student for wearing Confederate flag clothing to school when racial tensions existed at the school the previous year. By a 21 vote, a panel of the Sixth Circuit held that the school could reasonably forecast that the wearing of Confederate flag clothing would cause a substantial disruption at the school. The school could reasonably forecast substantial disruption because of the history of recent racial tension at the school. Racial tensions had led to a fight at a football game and had led school officials to close school on two occasions the previous school year. Because of the "tense racial situation," the school officials were justified in suspending the student for wearing Confederate flag clothing. "This is a troubling case; on the one hand we are faced with the exercise of the fundamental constitutional right to freedom of speech, and on the other with the oft conflicting, but equally important, need to maintain decorum in our public schools so that the learning process may be carried out in an orderly manner." (Judge Damon Keith) Dissent - The lower court ruled that the school dress code policy prohibiting "provocative symbols" was unconstitutional. If that policy is unconstitutional, "it cannot be validly applied" to the student in this case. (Judge William E. Miller) LaVine v. Blaine School District -When school officials can reasonably forecast that a students speech indicates a likelihood of violent disruption, they may punish the speaker to the extent necessary to prevent the violence. A high school student, troubled by a recent rash of school shootings, wrote a poem, entitled "Last Words," depicting the feelings a student has after killing several classmates. The student handed the poem in to his English teacher who had said she would be happy to review his written work. The teacher became alarmed after reading the poem, and contacted the school's counselor. The student had previously told this counselor about having suicidal feelings. The counselor also knew that the student had a fight with his father and had recently broken up with his girlfriend. Based on the content of the poem and these other circumstances, the school officials expelled the student on an emergency basis. The student was eventually allowed to return to school after a psychologist cleared him. The student then sued, claiming that the school officials violated his First Amendment rights. A federal district court agreed with the student. The school appealed to the Ninth U.S. Circuit Court of Appeals. Whether school officials violated the First Amendment when they expelled a student for writing a poem that depicted violence 14

from a first-person perspective. In a 3-0 decision, a Ninth Circuit panel held that school officials did not violate the First Amendment because they had reasonably forecasted a "potential for substantial disruption." Reasoning: Schools have a duty to prevent violence to students. "Tinker does not require school officials to wait until disruption actually occurs before they may act," the panel wrote. "In applying Tinker, we look to the totality of the relevant facts." Given the totality of the circumstances, including the "backdrop of actual school shootings," school officials could have reasonably believed that there would be substantial disruption of school activities. "Even in its most mild interpretation, the poem appears to be a 'cry for help' from a troubled teenager contemplating suicide," the court wrote. Majority: "We review, however, with deference, schools' decisions in connection with the safety of their students even when freedom of expression is involved." (Judge Raymond C. Fisher) Commercial speech schools may prohibit the on-campus distribution of advertisements for cigarettes, liquor, and other substances that may not be sold to minors Religious speech by students can pose a tricky problem for school officials. Students may discuss their religious views among themselves during their free time. Thompson v. Waynesboro Area School District the court found in favor of students who had been prohibited from distributing in their schools hallways religious literature written by an outside group. School argued they had a right to protect other students from receiving religious literature possibly in opposition to their own beliefs and to avoid the appearance that the school endorsed the religious viewpoint of the literature. The court concluded on the basis of testimony by the schools principal that the restrictionswere at least to some extent content based in violation of the students freedom of speech. The school had permitted the distribution of other types of literature even if written by outside groups and the students time, place, and manner of distribution had been nondisruptive. After Lemon test the court further declared that t\allowing distribution of religious literature would not violate the Establishment Clause. Thompson follows Tinker in authorizing reasonable time, place, and manner regulations of speech. Time, place, and manner regulations are like traffic rules: not designed to impede the activity they regulate but only to ensure and orderly use of crowded spaces. Regulations are legitimate for allocating a given space to competing uses but shouldnt be used as a subterfuge to censor speech activities because of their content. School officials may limit student rallies and demonstrations to specific locations an times to ensure the orderly use of school facilities but not to prevent expressions of disagreement with school district or government policy. Did the principal's deletion of the articles violate the students' rights under the First Amendment? School Uniforms (pg 134) Uniform policies served the important purposes of promoting decorum, decreasing tensions, reducing gang-related activity, reducing discipline problems, and reducing the likelihood that students would be able to bring weapons to school concealed in their clothing. School Sponsored Speech Hazelwood School District v. Kuhlmeier -1988 (pg 135)- The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court. Did the principal's deletion of the articles violate the students' rights under the First Amendment? No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of Principal Reynolds, the Court held, met this test. 15

Bethel School District No. 403 v. Fraser - 1986 - At a school assembly of approximately 600 high school students, Matthew Fraser made a speech nominating a fellow student for elective office. In his speech, Fraser used what some observers believed was a graphic sexual metaphor to promote the candidacy of his friend. As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct which "substantially interferes with the educational process . . . including the use of obscene, profane language or gestures." Fraser was suspended from school for two days. Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly? No. The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education." Off-Campus Speech - When student speech is directly detrimental to a schools ability to perform its educational function, punishment may be allowed. Thomas v. Board of Education 1979 Donna Thomas, John Tiedeman, David Jones, and Richard Williams, all students in the Granville Junior-Senior High School conceived a plan in November 1978 to produce a satirical publication addressed to the school community. As their project evolved in succeeding months, the students decided to emulate National Lampoon, a well 0-known publication specializing in sexual satire. After soliciting topics from their fellow students, the editors drafted articles pasquinade g school lunches, cheerleaders, classmates and teachers. Articles on masturbation and prostitution as well as puzzles and a cartoon were also prepared. At most, it appears that only an occasional article was composed or typed with in the school bu8ilding, always after classes. The publication entitled Hard Times was produced off campus and sold. The administration monitored the school for disruption. A BOE member got hold of the publication and the administration contacted the four main students parents and asked them to attend the BOE meeting. Discipline was imposed. Ruling: The First Amendment forbids public school administrators and teachers from regulating the material to which a child is exposed after he leaves school each afternoon.

Freedom of Association and Use of School Facilities Dixon v. Beresh the court found unconstitutional a principals refusal to grant recognition as a school organization to a student organized Young Socialist Alliance: . The principal was acting under a board of education policy forbidding recognition of any group advocating controversial ideas or stressing one side of issues. The court reasoned that the effect of the policy was to suppress the expression of ideas and that there was no legitimate forecast of material and substantial disruption as required by Tinker.

Use of school facilities by outside groups (pg 151) once district voluntarily made its facilities available for use by after-hours groups, it could not enforce rules designed to exclude expression of specific points of view. Equal access for groups. Schools may bar student organizations that discriminate on the basis of race or gender. Lambs Chapel v. Center Moriches Union Free School District (1993) New York had a law that prevented school boards from allowing schools to be used after hours for religious activities. Lamb's Chapel, an evangelical group, twice was refused its requests for use of a public school's facilities. They wanted to use the school to show films from a religious-oriented series concerning family values and child rearing. Both district and appellate courts ruled in favor of the school district, calling the school a 'limited public forum' that need not be available to everyone. The Supreme Court ruled unanimously to reject the school district's decision to refuse 16

to allow school property to be used for religious activities. The critical point is whether the school's decision to refuse the religious group's request was neutral. Because the topic of the films served a social or civic purpose and would be allowed to be shown by a non-religious group, the rejection of the Lamb's Chapel request was not neutral. In an earlier ruling (Cornelius), the Court stated that "although a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum...or if he is not a member of the class of speakers for whose special benefit the forum was created...the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject". To refuse the forum to the religious group favors some viewpoints at the disadvantage of others. The Establishment Clause would not have been violated because the film would have been shown after hours and would have been open to the public. The circumstances behind the usage of schools for religious purposes is critical when assessing whether allowing such an activity would create an excessive entanglement. Furthermore, the viewpoint itself, rather than the group presenting it is significant. Because the message itself was appropriate for presentation, the school district could not discriminate against it on account of its messenger. Good News Club v. Milford Central School (2001) Under New York law, Milford Central School policy authorizes district residents to use its building after school for certain activities. Stephen and Darleen Fournier were district residents eligible to use the school's facilities. They sought approval of their proposed use and sponsorship of the Good News Club, a private Christian organization for children. The Fourniers submitted a request to hold the Club's weekly afterschool meetings at the school. Milford denied the request reasoning that the proposed use, including singing songs, hearing Bible lessons, memorizing scripture, and praying, was the equivalent of religious worship prohibited by the community use policy. The Club filed suit alleging that the denial violated its free speech rights under the First and Fourteenth Amendments. Ultimately, the District Court granted Milford summary judgment. In affirming, the Court of Appeals held that because the subject matter of the Club's was "quintessentially religious", and the activities "fall outside the bounds of pure 'moral and character development,'" Milford's policy of excluding the Club's meetings was constitutional subject discrimination, not unconstitutional viewpoint discrimination. Did Milford Central School violate the First Amendment free speech rights of the Good News Club when it excluded the Club from meeting after hours at the school? If a violation occurred, was it justified by Milford's concern that permitting the Club's activities would violate the Establishment Clause? Yes and no. In a 6-3 opinion delivered by Justice Clarence Thomas, the Court held that "Milford's restriction violates the Club's free speech rights and that no Establishment Clause concern justifies that violation." "When Milford denied the Good News Club access to the school's limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment," wrote Justice Thomas. Neither access to school facilities nor the fee charged may be based on the viewpoint of the group requesting use

School facilities generally available to civic and political groups may not be denied to groups seeking to convert members of the audience. Districts are permitted to allocate facilities on a first-come, first-served basis. Searcey v. Harris (1989)suggests that a school that makes its facilities available to military recruiters will also be constitutionally required to make its facilities equally available to groups that oppose military service.

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Student Discipline
When the atmosphere of the school leads students to feels unsafe, learning decreases, thereby further emphasizing the need to maintain an orderly atmosphere. (pg 157) The Making of Rules Neuhaus v. Frederico (1973) The litigation concerns the validity of a student hair code adopted by the Board of Education of the Seiling Public School District. Plaintiffs are four male students of the district (one each from the high school and junior high, and two from the elementary school) who were threatened with imminent suspension by their respective principals, if , within five days, they failed to cut their hair so that the length conformed to that required by the code. The school Board acted outside the scope of its statutory authority in adopting the rule. In so holding, we are not unsympathetic with the enormous task that school administrators face in trying to educate our children, many of whom are unwilling scholars and are not well behaved. Certainly, the school board is empowered to adopt and enforce those rules which are necessary to create and preserve a proper atmosphere for learning to take place, just as they have the authority to pass rules which insure the safety of students and preservation of school property. This rule does not rise to the standard and is essentially nothing more than a governmental declaration of fashion and style. We cannot sanction exclusion from the educational system for failure to conform to this dictate. Vague rules violate the Due Process Clause of the Fourteenth Amendment because, like no rules at all , they fail to provide adequate notice of what is impermissible and they invite uneven, biased, and variable application. Alex v. Allen (1976) (pg161) Courts disagreed with students who claimed that rules against flagrant disrespect of teachers, loitering in the heavy areas of traffic rowdy behavior or running in the hallswhich is disruptive to class were impermissibly vague. The Alex court also rejected the claim that the challenged rules were overbroad. An overbroad rule does more that necessary to achieve the desired ends and in so doing infringes on constitutionally protected rights.

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