THE LEGAL FRAMEWORK OF PUBLIC EDUCATION Dr. Leonard Elovitz Kean University

THE LEGAL FRAMEWORK OF

PUBLIC EDUCATION

Dr. Leonard ElovitzKean University

COMMON LAW

CASE LAW

1. LAW- A BINDING RULE OF ACTION ESTABLISHED BY AN AUTHORITY

2. COURT DECISIONS

3. NOT LEGISLATED

4. DISCOVERED LAW

ORIGINAL LAW IN USA

1. ENGLISH COMMON LAW

2. DOCTRINE OF "STARE DECISIS"

C. GREATEST PART OF LAW INCLUDING EDUCATION

II. FEDERAL CONSTITUTION

NO MENTION OF EDUCATION

10TH AMENDMENT

“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.”

Branches of Government

FEDERAL COURTS

INVOLVED MAINLY IN THE PROTECTION OF INHERENT RIGHTS OF INDIVIDUALS

FIRST AMENDMENT – “CONGRESS SHALL MAKE NO LAWS RESPECTING AN ESTABLISHMENT OF RELIGION OR PROHIBITING THE FREE EXERCISE THEREOF; OR ABRIDGING THE FREEDOM OF SPEECH OR OF THE PRESS; OR OF THE RIGHT OF THE PEOPLE TO PEACEABLY ASSEMBLE AND TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES.

TYPES OF SCHOOL CASES

1) THE USE OF PUBLIC FUNDS FOR NON-PUBLIC

SCHOOLS OR STUDENTS

2) THE REGULATION OF PROCEDURES IN PUBLIC SCHOOLS WHICH ARE OBJECTED TO ON RELIGIOUS GROUNDS.

3) FREEDOM OF SPEECH

4) RIGHTS OF ASSEMBLY

5) RIGHTS OF PETITION

5TH AMENDMENT

PROVIDES THAT NO PERSON SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF

14TH AMENDMENT

“ NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE U.S.; NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS.”

IMPORTANT CONCEPTS

1. DUE PROCESS

2. EQUAL PROTECTION

TYPES OF CASES

1. FLAG SALUTES

2. RIGHTS OF PARENTS

3. RACIAL SEGREGATION

4. TEACHER DISMISSAL

5. PUPIL DISCIPLINE

6. SCHOOL FUNDING

Article I Section 8

“The Congress shall have the power to lay and collect taxes … to pay debts and provide for the general welfare of the United States”

Article I Section 10

Guarantees the sanctity of contracts

FEDERAL LEGISLATION

PROVIDES FUNDS - ESEA, TITLE I, ETC.

CAUSES CHANGE

P.L. 504 – ACCESS OF HANDICAPPED

P.L. 94 – 142 EDUCATION OF HANDICAPPED

NCLB - NO CHILD LEFT BEHIND

PROVIDES PROTECTION - CIVIL RIGHTS ACTS

EFFECT OF BREAKING LAWS - LOSS OF FUNDING

EXECUTIVE BRANCH

Department of Education

Cabinet Level

Secretary Arne Duncan

Functions

Formulate federal funding programs

Enforce federal educational laws

State of New Jersey

N.J. CONSTITUTION SINCE 1875 CONTAINS CLAUSE –

“ THE LEGISLATURE SHALL PROVIDE FOR A THOROUGH AND EFFICIENT SYSTEM OF FREE PUBLIC SCHOOLS FOR ALL

CHILDREN IN THE STATE BETWEEN THE AGES OF FIVE AND EIGHTEEN YEARS.”

Governor

Appoints the members of the State Board And the Commissioner

Governor Chris Christie

STATE LEGISLATION – NJ

TITLE 18A – OPERATION OF EDUCATION

PROVIDES FOR ESTABLISHMENT OF DEPT. OF EDUCATION

ESTABLISHES FUNDING –

School Funding Reform Act (SFRA)

2008

NJ DEPARTMENT OF EDUCATION

STATE BOARD OF ED.1. 13 MEMBERS

2. CITIZENS OF THE STATE

3. 5 YR. RESIDENCE

4. AT LEAST 3 WOMEN

5. NO MORE THAN 1 PER COUNTY

APPOINTED BY GOVERNOR WITH ADVICE AND CONSENT OF THE SENATE

6 YEAR OVERLAPPING TERMS

NO COMPENSATION

RULES AND REGS. – TITLE VI – ADMINISTRATIVE CODE

Mark W. Biedron President

NJ DEPARTMENT OF EDUCATION

COMMISSIONER OF EDUCATION1. APPOINTED BY GOVERNOR WITH A&C OF

the SENATE

2. 4 YR TERM WITH GOVERNOR

3. CHIEF EDUCATION OFFICER OF THE STATE

4. A JUDGE IN DISPUTES CAN BE OVERRULED

BY STATE BOARD

David C. Hespe

LOCAL BOARD OF EDUCATION

MEMBERS

1. U. S. CITIZENS

2. ONE YEAR RESIDENCE

3. READ & WRITE

4. REGISTERED VOTER

5. NO COMPENSATION

6. MAKE POLICY

7. EMPLOY SUPERINTENDENT

SUPERINTENDENTOF SCHOOLS

1. ADMINISTERS DISTRICT CONSISTENT WITH POLICY

2. CHIEF EXECUTIVE OFFICER OF SCHOOL DISTRICT

3. EDUCATIONAL LEADER

ORGANIZATION AND OPERATION OF COURTS

A. FUNCTION OF COURTS – RESOLVE CONFLICTS

B. JURISDICTION – FEDERAL

1. CONSTITUTIONAL QUESTIONS

2. FEDERAL STATUTES

3. DIVERSITY OF STATE RESIDENCE OF LITIGANTS

4. CASES ON ACTS OF CONGRESS – I.E. CIVIL RIGHTS ACT

C. STATE - NJ

1. PETITION TO COMMISSIONER HEARD BY ALJ

a. IS DISPUTED LOCAL DECISION IMPROPER AS A MATTER OF LAW

b. IS THE EVIDENCE AVAILABLE SUFFICIENT TO SUSTAIN THE FACTUAL CONCLUSIONS ORB TO FIND NEW CONCLUSIONS OF FACT

c. WAS THE EXERCISE OF LOCAL DISCRETION ARBITRARY, UNREASONABLE, OR CAPRICIOUS

2. ALJ RECOMMENDS DECISION TO COMMISSIONER

NJ Cont.

3. COMMISSIONER HAS 45 DAYS TO ADOPT, REJECT OR MODIFY

4. APPEALS TO STATE BOE WITHIN 30 DAYS

5. APPEALS TO SUPERIOR COURT

6. STATE SUPREME COURT – LIMITED RIGHT TO APPEAL

7. US SUPREME COURT – EXTREMELY LIMITED RIGHT TO APPEAL