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Stanford University Press
California School Law: Third Edition / Edition 3

California School Law: Third Edition / Edition 3

by Frank Kemerer, Peter Sansom
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Product Details

ISBN-13: 9780804785150
Publisher: Stanford University Press
Publication date: 10/02/2013
Edition description: New Edition
Pages: 592
Sales rank: 333,793
Product dimensions: 6.00(w) x 8.90(h) x 1.20(d)

About the Author

Frank Kemerer teaches education law at the University of San Diego as a Professor-in-Residence. He has been researching and teaching education law for over thirty-five years at universities in New York, Texas, and California. Included among his books are the legal text Constitutional Rights and Student Life (West Publishing Company 1979), School Choice and Social Controversy (Brookings Institution Press 1999), School Choice Tradeoffs (University of Texas Press 2002), and The Educators' Guide to Texas School Law (University of Texas Press 2010, seventh edition). Professor Kemerer received his Ph.D. in educational administration and policy analysis from Stanford University with a law minor from Stanford Law School in 1975. He also received his AB and MA from Stanford and served as a researcher at the Center for Educational Research at Stanford.

Peter Sansom is a partner with Sansom Willis Arrowsmith LLP, an education law firm in California. His primary area of practice is representing school districts regarding issues under Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act. He has successfully represented school districts in administrative due process hearings, federal district courts, and before the United States Court of Appeals for the Ninth Circuit. He stresses preventive legal advice and is a frequent presenter on a wide range of topics relevant to special education law. He also has authored articles on student discipline and a publication regarding the California Tort Claims Act. He received his law degree from the University of San Diego.

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Stanford University Press

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



School law is a complex subject. The extensiveness of the California schooling system adds to its complexity. California elementary and secondary schools enroll over 6.7 million students. Traditional public schools enroll about 90 percent of them, with another 380,000 enrolled in charter schools. Some 500,000 students attend private schools enrolling twenty-five or more students. It is estimated that well over 100,000 students attend very small private schools or are homeschooled. The California public school system encompasses 1,037 school districts of various types. 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 to public schooling.

The law that governs this vast system emanates from several sources and has become extensive over time. Laws enacted by the California Legislature pertaining to precollegiate education alone constitute some 1,680 single-spaced, double-column pages of small print in the commonly used desktop edition of the California Education Code. Because the provisions of the Education Code have been enacted in 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 Education Code: "At the outset it may be observed that any attempt to apply literally all the various 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. To cite one example, California voters approved Proposition 187 in 1994, curtailing public social services and benefits for illegal aliens. Among other things, the proposition added Section 48215 to the California Education Code, excluding illegal alien children from California public schooling. However, a year later, a federal district court ruled that the exclusion was unconstitutional. To the uninformed, it may seem strange that a single federal judge could thwart the wishes of a majority of the electorate and their representatives.

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


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

Constitutional Law

Constitutional law is the highest form of law because it sets forth basic principles of governance. Constitutional law has two sources, federal and state. The federal Constitution is an important source of school law for two reasons. First, it reserves to 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 or prohibited to the states are left to the latter. The federal Constitution is also an important source of individual rights. The Bill of Rights lists such fundamental rights as freedom of speech, the free exercise of religion, and the right to be free from unreasonable searches and seizures. It was a condition of state ratification of the Constitution in 1789 that the Bill of Rights was added to protect these fundamental rights from hostile action by Congress. The purpose of the Bill of Rights was well stated by Justice Robert Jackson in a 1943 ruling preventing the state from compelling all students to salute the flag. He wrote, "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal 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 the original Bill of Rights protections to persons in the state setting, and many of them now 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 process of law." Not only has the U.S. Supreme Court construed the word liberty in this clause to protect persons from state governmental intrusion on their constitutional rights, the Court also has ruled that these rights cannot be taken away without "due process of law." As we shall see in later chapters, both educator contract termination and the disciplinary removal of students from public school must be done in compliance with the due process clause.

The Fourteenth Amendment also provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Beginning in 1954 with the famous Brown v. Board of Education desegregation case, the equal protection clause has figured prominently in efforts to integrate schools and, for a time, to assure equalized funding as well. When the U.S. Supreme Court backed away from becoming involved in equalization of school finance, state courts took over. Both of these matters are discussed in detail in subsequent chapters.

Although public school districts and charter schools are included within the ambit of the Fourteenth Amendment, private schools are not. This is because the amendment is phrased in terms of "states." It requires some semblance of state action for the amendment to apply. Because private schools are not part of the state, they do not have to observe the constitutional rights of their constituents. The relationship between the private school and parents, teachers, and students is essentially contractual in nature, just as is true of a private corporation and its employees. At the same time, private schools are subject to other types of law that limit 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 as a 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 pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

This provision is known as the federal supremacy clause. The complicated legal question of when a state law may survive a supremacy clause challenge is beyond the scope of our discussion. The supremacy clause figured prominently in the 1995 federal district court decision striking down the portion of Proposition 187 excluding illegal aliens from California public schools. The U.S. Supreme Court had ruled in 1982 that the exclusion of undocumented immigrant children from tuition-free public schooling violates the equal protection clause of the Fourteenth Amendment (Plyler v. Doe). Based on the federal supremacy clause, the federal judge in LULAC v. Wilson declared such exclusion by California's Proposition 187 unconstitutional. Later, most of the other provisions of the proposition were supplanted by federal law.

While the Tenth Amendment leaves education to the states, it does not specify that the state has to set up a schooling system. In fact, the amendment merely reads, "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." Picking up where the federal constitution leaves off, Article IX, Section 1 of the California Constitution states: "A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature 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 free school 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 be applied by the State for support of the public school system and public institutions of higher education." Taken together, these provisions not only require the California Legislature to provide for a public school system, they also make a student's entitlement to education a fundamental right. This determination was essential to the California Supreme Court's ruling in 1976 in Serrano v. Priest that expenditures across 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 for students is greater under the California Constitution than under the First Amendment to the U.S. Constitution. Article I, Section 2, subdivision (a) of the California Constitution reads, "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." In 1979 the California Supreme Court ruled that this provision protects the right of high school students to 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 ban on 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 is the equivalent of a public forum where people exchange views. The U.S. Supreme Court earlier had ruled that the free speech clause of the First Amendment to the U.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 between them, the U.S. Supreme Court has recognized that state constitutions and laws can be more protective of civil liberties than the U.S. Constitution but not less so. Just as the California Constitution is more protective of free speech than its federal counterpart is, so too is it more protective of privacy. For example, in cases involving teacher lifestyle choices, a portion of Article I of the California Constitution has surfaced, providing that among the inalienable rights enjoyed by Californians is 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 Congress and those passed by the state legislature have significant influence over the operation of California schools. Congress has enacted numerous laws affecting education. 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 not all—of the statutes it has enacted are pursuant to its spending authority. The first provision of Article I, Section 8 of the U.S. Constitution is that Congress has the authority to collect taxes and provide for "the general welfare of the United States." Congress uses this power to provide conditional monetary grants to states, trading federal dollars for state compliance with Congress's political agenda. For example, a school district could lose federal funding if it condoned the release of personally identifiable information about students or their families without complying with the provisions of the federal Family Educational Rights and Privacy Act.

Some federal statutes affect both public and private educational institutions regardless of whether they receive federal funding. These statutes are enacted pursuant to Congress's authority to enact laws affecting interstate commerce under another provision of Article I, Section 8. Recently, Congress has been less inclined to enact laws under the interstate commerce clause, in part because doing so limits the autonomy of states and in part because the U.S. Supreme Court has been more protective of the concept of federalism—the division of power between the central government and states. Nevertheless, as noted in Table 1.1, some very important federal statutes that are based on Congress's power under the interstate commerce clause remain and have significant influence over the operation of both public and private 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 the Americans with Disabilities Act, which does the same for persons with disabilities.

Another important federal statute included in the table is a civil rights law known as 42 United States Code Section 1983. Enacted after the Civil War, this law was designed to enforce the provisions of the Fourteenth Amendment by enabling persons to file lawsuits in federal court involving alleged violations of federal rights. This was Congress's effort to provide meaningful relief to victims of discrimination because state courts had not proven up to the task. Known generally as "Section 1983," the statute provides that

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

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

The California Legislature has enacted a vast number of statutes involving education in response to the California Constitution's educational mandate that it do so. And because the legislature is in session every year, new statutes are constantly being added and old statutes revised or repealed. State statutory law reaches deeply into 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 shall assure that every restroom is to be cleaned regularly, be fully operational, and stocked at all times with toilet paper, soap, and paper towels or functional hand driers (Educ. Code § 35292.5).

Most of the statutes affecting education are grouped together in the California Education Code. The code establishes the structure of the system and details its operation. Provisions of the Education Code will be a major focus in ensuing chapters and can be found in their entirety on the California Department of Education (CDE) website at Other important state laws also affect education. A case in point is the section of the California Government Code setting forth the Educational Employment Relations Act (EERA)—also known as the Rodda Act after its sponsor. EERA provisions spell out how collective bargaining is to 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 specifically enough to give them operational value. This is where administrative law comes in. Administrative law is the body of law developed by administrative agencies under the authority of the legislature to carry out their statutory responsibilities. Congress has given federal agencies like the U.S. Department of Education the authority to develop administrative regulations implementing various federal statutes. For example, the department's Office for Civil Rights has developed regulations for determining how Title IX of the 1972 Education Amendments is to apply to curricular and extracurricular activities so as to assure gender equity. Likewise, extensive regulations have been developed by the department's Office of Special Education and Rehabilitation Services (OSERS) to implement the terms of the Individuals with Disabilities Education Act. Every school attorney and school administrator is familiar with federal "regs" that specify how the terms of federal statutes are to be implemented.

Excerpted from CALIFORNIA SCHOOL LAW by FRANK KEMERER, PETER SANSOM. Copyright © 2013 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Stanford University Press.
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Table of Contents


Tables and Figures....................     xiv     

Abbreviations....................     xvi     

Preface....................     xix     

Chapter 1 Law and the California Schooling System....................     1     

Chapter 2 Attendance, Instruction, and Assessment....................     47     

Chapter 3 Equity, Adequacy, and School Finance....................     96     

Chapter 4 Unions and Collective Bargaining....................     133     

Chapter 5 Employment....................     169     

Chapter 6 Rights of Expression....................     213     

Chapter 7 The School and Religion....................     253     

Chapter 8 Students with Disabilities....................     291     

Chapter 9 Student Discipline....................     338     

Chapter 10 Public Access, Privacy, and Student Search and Seizure..........     381     

Chapter 11 Race and Gender Discrimination....................     418     

Chapter 12 Legal Liability....................     451     

Appendix A: Glossary of Legal Terminology....................     491     

Appendix B: Finding and Reading Statutes and Judicial Decisions............     499     

Appendix C: References....................     504     

List of Cases....................     507     

Index....................     527     

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