News: Rights Watch
ESEA Extends Federal Reach in Schools

New legislation will affect every classroom and school employee in the country on issues from school prayer to parental rights to student discipline.

Signed by President Bush on January 8, the No Child Left Behind Act (also known as the reauthorization of the Elementary and Secondary Education Act, ESEA) contains numerous provisions of special interest to NEA members.

Contained in this 1,080-page statute are new provisions that have the potential to extend federal control into the classroom in an unprecedented way.

While the full extent of the educational changes effected by the law may not be known until fully implemented, there's reason to be alert to some provisions.

• School Prayer. This fall, the Department of Education must publish a guidance defining "constitutionally protected school prayer." The guidance has to be approved by the Justice Department and updated every two years.

  By October 1 each year, every school district must certify in writing to its state education department that it does not "prevent" or "deny" "constitutionally protected prayer in public schools," as defined by the Education Department guidance.

  By November 1 each year, every state education department must send the Education Department the names of school districts that failed to file the certificate or that were accused of denying any person the right to engage in constitutionally protected school prayer.

  The Secretary of Education is given the power to investigate such charges and to enforce the law, presumably by cutting off federal funds.

• Parental Rights. The new statute gives parents the right to inspect "any instructional material" used in their children's classes, except tests or academic assessments.

  Parents also are guaranteed the right to review any student survey that asks about political or religious beliefs, mental problems, illegal or anti-social behavior, or sexual attitudes. And they can have their children "opt out" of any such survey and any non-emergency physical examination.

  School districts are required to adopt written policies spelling out these rights and to give parents notice each year about the policies and the dates of any surveys or physical examinations.

  Significantly, an amendment to the Safe and Drug-Free Schools and Community Act also grants parents the right to remove their children from any federally funded drug and violence prevention program, including such programs that deal with "sexual harassment and abuse" and "victimization associated with prejudice and intolerance."

• Student Discipline. One part of the new legislation, called the "Paul D. Coverdell Teacher Protection Act of 2001," purports to protect teachers from frivolous lawsuits filed by students and their parents in discipline cases.

  In fact, the statute is so narrowly drawn and rife with exceptions, that--in practical terms--it affords very little real legal protection.

  Specifically, the new law says that K-12 school employees (including education support professionals) can't be sued for hurting a student if the injury occurred while the employee was engaged in "efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school."

  Importantly, this protection is not available if the employee's actions don't fully comply with federal, state, or local laws or where the employee engaged in "willful or reckless misconduct," "gross negligence," or "flagrant indifference to the rights or safety" of the student.

  This means that a plaintiff's attorney can claim that the employee was "reckless'' or violated the student's constitutional or civil rights.

  More importantly, the law affords employees no protection in the much larger category of cases where students are injured outside of the disciplinary context.

  The statute would not apply, for example, where the student is hurt in a playground accident, during a chemistry lab experiment, or in shop class, and sues the teacher for negligent supervision.

  That's one good reason to maintain NEA membership. Members are covered for these kinds of lawsuits by NEA's Educators Employment Liability Insurance Program, which will pay up to $1 million in damages plus attorneys' fees.

  In an interesting footnote to the legislative history, Senator Mitch McConnell from Kentucky urged his colleagues to vote for the bill precisely because "the teachers unions" promote their liability insurance "as a key reason for joining their union," specifically citing literature from NEA affiliates in Texas, Missouri, and Maine.

• Boy Scouts. If a school allows outside groups to use its facilities for after school meetings, then it must allow the Boy Scouts to use its facilities for such meetings, even if the school objects to the Scouts' discriminatory membership policy.

  Another provision in the law, however, makes clear that schools still are free not to sponsor Scout troops if they so choose.

• Funding Options. Finally, the legislation permits--but does not require--state and local school districts to spend federal funds on a number of activities, including: student drug testing, criminal record checks of school employees (regardless of date hired), merit pay, tenure reform, and teacher testing.

--Michael D. Simpson
NEA Office of General Counsel

Supreme Court To Hear Student Drug Testing

Can schools require students to submit to random drug tests in order to participate in extracurricular activities? That's the important question the Supreme Court will answer later this year in Earls v. Board of Education of Tecumseh (Oklahoma) Public School District.

Students covered by the policy include those who want to belong to the Future Farmers of America, Future Homemakers of America, band, choir, the Academic Team, and cheerleading squad, as well as all sports teams.

Students are selected at random, called out of class, and directed to a bathroom where they must provide a urine sample. Teachers serve as test monitors, waiting outside the bathroom stall while the student urinates and then pouring the urine sample into two bottles. Together, the teacher and student seal the bottles for transport to the testing lab.

Last year, the Tenth Circuit Court of Appeals ruled that the drug testing program violates students' rights under the Fourth Amendment to be free from warrantless searches. A school district, the court said, cannot impose a "random suspicionless drug testing policy" unless the district can show that there is "some identifiable drug abuse problem" among the students to be tested. In this Oklahoma school district, there was no evidence of any such drug problem, the court held.

While courts in Colorado, Pennsylvania, and Texas also have struck down similar student drug testing policies, the U.S. Court of Appeals for the Seventh Circuit has upheld a comparable Indiana school district policy.

The High Court will hear oral arguments in the Earls case later this spring and likely announce its decision by the end of June.

--Michael D. Simpson
NEA Office of General Counsel