Ethics and Law for School Psychologists. Susan Jacob
probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment 9
Powers Retained by the People
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment 10
Powers Retained by the States and the People
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.
Amendment 14
Civil Rights
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.
The 10th Amendment
The Constitution does not specifically refer to education as a duty of the federal government. Under the 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.” Thus, under the 10th Amendment, state governments have assumed the duty to educate, the power to tax citizens of the state to finance education, and the power to compel school attendance.
Both federal and state governments have an interest in an “educated citizenry,” as educated citizens are more capable of self-government and of making a positive contribution to community life (Hubsch, 1989). Most states delegate much of the authority for the management of public schools to local school boards. Public schools consequently are considered to be an arm of the government (Russo, 2018). Thus, when school boards, principals, teachers, and school psychologists make decisions in their official roles, their actions are seen as actions by the state. A public education is considered to be an entitlement given by the state to its citizens under state constitutional or statutory law. On the basis of state law, all children within a state have a legitimate claim of entitlement to a public education. This right to a public education given by state law is considered to be a property right.
The 14th Amendment
As noted, the Bill of Rights was passed to ensure a clearer balance of power between the federal government and the states and to safeguard the rights of individual citizens. The 14th Amendment was created to prevent state governments from trespassing on the rights of individual citizens: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … without due process of law.”
The Bill of Rights have been incorporated by the 14th Amendment to apply to states as well as the federal government, including public schools.
Because education is a duty left to the states, the courts have long held the position that “judicial interposition in the operation of the public school system requires care and restraint” (Epperson v. State of Arkansas, 1968). As the Supreme Court stated in Epperson,1 “By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values” (p. 104).
The 1950s, 1960s, and 1970s were decades of increasing federal court involvement in school-related issues, however, because of school actions that violated the constitutional rights of students and their parents. Two aspects of the 14th Amendment have been extremely important in decisions regarding schools: the equal protection clause and the requirement for procedural due process .
Equal Protection Clause
The equal protection clause provides that no state shall “deny any person within its jurisdiction the equal protection of the laws.” Beginning in the years of the Warren Court (1953–1969), this clause has been interpreted to mean that a state may not make a free public education available to some children but not to others in the state and that the state must provide equal educational opportunity to all citizens within its jurisdiction. In the 1954 landmark Supreme Court ruling Brown v. Board of Education, the Court made it clear that each state must provide equal educational opportunity to all children in its jurisdiction regardless of race. The Court ruled that the assignment of Black children to separate public schools is a denial of equal protection under the 14th Amendment of the Constitution. In two important subsequent cases, Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania (1971, 1972) and Mills v. Board of Education of District of Columbia (1972), the courts ruled that exclusion of children with handicaps2 from public school education is a denial of equal protection.
In the years since Brown, the courts have sent an unwavering message to the states that they have a duty to provide equal educational opportunities to all children regardless of race, color, national origin, immigration status, native language, sex, and disability under the 14th Amendment. The 14th Amendment equal protection clause also protects the school access rights of pregnant and married students.
Due Process
The 14th Amendment also provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” Courts have identified two aspects of due process: substantive and procedural. Substantive due process applies to the content of a law. A state may not pass a law that deprives citizens of life, liberty, or property if the law is not related to a legitimate governmental purpose; arbitrary and capricious laws that impact on citizens’ rights will be ruled unconstitutional. In the public schools, substantive due process has been interpreted to mean that school rules restricting student rights must be reasonably related to the purpose of schooling (see the discussion of Tinker v. Des Moines Independent Community School District [1969] later in this chapter).
Procedural due process means that a state may not take away life, a liberty interest, or a property right without some sort of procedural fairness to safeguard citizens from unfair or wrongful infringement of rights by the government (Reschly & Bersoff, 1999). The requirement for procedural due process applies only to the infringement or deprivation of a liberty or property interest protected by the 14th Amendment; citizens are guaranteed procedural due process only if a substantive liberty or property interest is affected. The specific liberty and property interests protected under the umbrella of the 14th Amendment have been identified in court interpretations of the scope of substantive rights. In Goss v. Lopez (1975), the Supreme Court held that education is a property right protected by the 14th Amendment.
Procedural due process “is a flexible concept whose precise contours change relative to the nature and gravity of the interest infringed” (Bersoff & Prasse, 1978, p. 402). Notice (being told what action the state proposes to take and the reason for that action) and the opportunity to be heard are basic components of due process when state action may deprive a citizen of a liberty or property interest. Under the due process clause of the 14th Amendment, schools may not suspend or expel children from school (and therefore deprive them of their property interest) without some sort of fair, impartial due process procedures. The due process procedures required for school suspension or expulsion generally do not have to be complex or elaborate but must include notice and the opportunity to be heard (Goss v. Lopez, 1975). (The suspension or expulsion of students with disabilities for more than 10 days requires more formal procedures because of the protections afforded students with disabilities under statutory law. See Chapter