Ethics and Law for School Psychologists. Susan Jacob
the Trump administration. Guidance issued in 2017 stated that transgender students will continue to have protections from discrimination and harassment, but that they will no longer have a right under Title IX to access to public facilities (e.g., restrooms and locker rooms) based on their gender identity rather than their assigned sex at birth (Battle & Wheeler, 2017). In 2021, citing the Bostock v. Clayton County (2020) Supreme Court decision, U.S. DOE OCR issued an updated interpretation of Title IX, reaffirming that the law applies to discrimination based on gender identity as well as sexual orientation, with exceptions for schools controlled by religious organizations where compliance would not be consistent with religious tenets (Goldberg, 2021, June 16). As of June 2021, the issues of whether transgender students must be allowed to access public facilities or play school sports based on their gender identity rather than their sex assigned at birth had not been explicitly considered by the U.S. Supreme Court or DOE. (See Chapter 9.)
Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act of 1973 (Pub. L. No. 93–112) specifically prohibits discrimination against any otherwise qualified individual solely on the basis of a handicapping condition in any program or activity receiving federal financial assistance. Section 504 is discussed in Chapter 5.
Americans with Disabilities Act of 1990
The Americans with Disabilities Act of 1990 ([ADA], Pub. L. No. 101–336) is considered to be the most significant federal law ensuring the civil rights of all individuals with disabilities. It was amended by the Americans with Disabilities Act Amendments of 2008 (Pub. L. No. 110–325). The ADA guarantees equal opportunity in employment, public accommodation, transportation, state and local government services, and telecommunications to individuals with disabilities. Title II, Subtitle A, is the portion of the law most pertinent to public schools (see Chapter 5).
Civil Rights Act of 1871
School personnel also should be familiar with Section 1983 of the Civil Rights Act of 1871. This statute was passed following the Civil War as a reaction to the mistreatment of Blacks, and it originally was known as the “Ku Klux Klan Act” Under Section 1983, any person whose constitutional rights (or rights under federal law) have been violated by a government (school) official may sue for damages in federal court, and the official may be held liable for damages (see the section “Lawsuits Against Schools and School Psychologists,” later in this chapter).
Rules and Regulations
When federal legislation is enacted, an executive agency is charged with the responsibility for developing rules and regulations implementing the law. For example, rules and regulations implementing IDEA and FERPA are issued by the U.S. DOE. For all intents and purposes, rules and regulations have the same impact as actual legislation. School psychologists need to be familiar with both the statute itself and the regulations implementing the law. Federal statutes are compiled and published in the United States Code (U.S.C.). Rules and regulations implementing a law first appear in a daily publication called the Federal Register (FR) and subsequently are published in the Code of Federal Regulations (CFR). The Code of Federal Regulations has 50 titles, and each volume is updated once each calendar year. The Electronic Code of Federal Regulations (e-CFR) can be accessed on the Internet at www.govinfo.gov. The e-CFR is updated daily, but it is not considered to be the “official” legal edition of federal regulations. The U.S. DOE Web site also has links to statutes and regulations pertinent to education (http://www.ed.gov). Citations for important federal statutes are provided in Appendix D at the back of this book.
State Education Laws
As Hubsch (1989) noted, the majority of public school statutory law is enacted at the state level. School psychologists must become familiar with the laws pertinent to the delivery of school psychological services in the state where they are employed, in addition to federal statutes and regulations. State laws affecting education typically can be found at a state’s department of education website.
CASE LAW
A third source of law is case law. Case law, or common law, is law that emerges from court decisions (Russo, 2018). The common law system can be traced back to medieval England. At that time, it was widely accepted that there were “laws of nature” to guide solutions to problems if those laws could be discovered. Legal scholars studied past court decisions for the purpose of discovering those “natural laws.” The rules and principles that judges customarily followed in making decisions were identified and, at times, articulated in case decisions, and judges tended to base new decisions on those earlier legal precedents. Common law is thus discovered law rather than enacted law (Russo, 2018, p. 1). Many aspects of public school law today are based on common law rather than enacted law, as Russo pointed out. For example, the courts generally have upheld a teacher’s right to use corporal punishment to discipline students where no state laws or school board policies prohibit its use. Acceptance of the use of corporal punishment in the schools by courts has a long history in case law (see Chapter 9).
In the United States, the federal court system has three tiers or layers; most state court systems also have three tiers or layers. As H. R. Turnbull and Turnbull (2000, p. 6) observed, “Why a case may be tried in one court, appealed or reviewed by another, and finally disposed of by yet another is a matter of great complexity.” A brief discussion of the state and federal court systems follows.
State court systems vary in organization and complexity. Cases filed in the lowest court may be appealed to an intermediate-level court, if a state has one. Decisions then may be appealed to the supreme court of the state, the “court of last resort” (Russo, 2018). The U.S. Supreme Court may review cases from a state court if a question of federal law is involved. Within the federal system, at the lowest level are the trial courts, called district courts. Nearly 100 federal district courts exist. At the intermediate level are 11 numbered federal circuits or geographical areas and the District of Columbia. Each court at this level is called a circuit court of appeals. These courts hear appeals from the district courts. They decide issues of law, not fact. The highest court in the federal system is the U.S. Supreme Court. A person who loses a case in a federal court of appeals or the highest state court may submit a written petition requesting the Supreme Court to review the case. The Supreme Court agrees to review a case by granting a writ of certiorari (an order calling up a case from a lower court for review). However, the Supreme Court selects only those cases it considers most important to review, and consequently, only a small percentage of the requests for review are granted.
The federal court system decides both civil and criminal cases. Criminal cases involve crimes prosecuted by the government, not private citizens (e.g., murder, theft, and assault). Civil cases are lawsuits brought by private parties. Federal courts rule only on cases that involve federal constitutional or statutory law or cases that involve parties from two different states. The U.S. Supreme Court has the final authority in interpreting the U.S. Constitution and federal statutes. State courts also decide both civil and criminal cases. State courts rule on cases involving state and statutory law, but also may rule on cases involving the federal Constitution and statutory laws.
The role of the courts is to resolve disputes involving citizens, organizations, and the government. Courts also decide the guilt or innocence of those accused of crimes. In education, most disputes are decided in civil court. Courts decide conflicts by applying law to a given set of facts and interpreting the meaning of the law in that context. It is the function of courts to say what the Constitution or statute means in a given