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JSL Vol 22-N6

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The Journal of School Leadership is broadening the conversation about schools and leadership and is currently accepting manuscripts. We welcome manuscripts based on cutting-edge research from a wide variety of theoretical perspectives and methodological orientations. The editorial team is particularly interested in working with international authors, authors from traditionally marginalized populations, and in work that is relevant to practitioners around the world. Growing numbers of educators and professors look to the six bimonthly issues to: deal with problems directly related to contemporary school leadership practice teach courses on school leadership and policy use as a quality reference in writing articles about school leadership and improvement.

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Guest Editors’ Note: From the Courtroom to the Schoolhouse—Recent Advancements in School Law and Implications for Leadership

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Guest Editors

Mark A. Gooden

Laura McNeal

This issue of Journal of School Leadership is devoted to advancing our knowledge of recent advancements in school law and the implications for effective school leadership. As a result of the increased pace and scope of federal intervention in school reform, education laws and policies have become a more prominent fixture in the educational milieu through constitutional, statutory, regulatory, and judicial mandates. Several national frameworks for school leaders, such as the Interstate School Leaders Licensure Consortium’s standards for school leaders (Council of Chief State School Officers, 2008), acknowledge that a school leader should “promote the success of all students by understanding, responding to, and influencing the larger political, social, economic, legal and cultural context” in which schools currently reside. While these policy standards are meant to inform policymakers as they prepare legislation relative to principal preparation, there are standards that attempt to guide leaders who are practicing administration. These are the Educational Leadership Constituent Council standards, and they were recently revised to include knowledge and performance measures. However, it is important to note that there is also a gap in two areas when it comes to implementation. To serve in a school administrative capacity, it is imperative that school leaders stay abreast of recent developments in the law that directly affect their schooling practices to ensure that students’ constitutional rights are protected and to reduce risk of personal, school, and/or district liability. As the current K–12 landscape becomes increasingly complex, school leaders are confronted with new, emerging legal questions: Can students be disciplined for off-campus online speech? Under what circumstances can school administrators be held liable for peer sexual harassment? Can school administrators ban students from wearing T-shirts that express religious objections to homosexuality?

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The Legal Aspects of Bullying and Harassment of Students With Disabilities: School Leaders’ Legal Obligations

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SUZANNE ECKES

JESULON GIBBS

ABSTRACT: Research demonstrates that students with disabilities are harassed more than their nondisabled peers. Students with disabilities who have been severely harassed have argued that they are not receiving a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE) as required by Individuals with Disabilities Education Act (IDEA). A school district’s failure to respond to known acts of harassment could result in district liability. In addition to IDEA, Title II of the American’s with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) also prohibit school districts from discriminating against students with disabilities.

Employing traditional legal research methods, this paper examines the legal issues surrounding the bullying and harassment of students with disabilities. Legal cases involving disability-based harassment under the IDEA, the ADA, and Section 504 will be coded to determine implications for schools leaders. It is hoped that school leaders will gain a better perspective on disability law and their school’s antibullying/harassment policy in order to minimize litigation and more importantly to provide a socially just public schooling environment for all students.

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Differentiated Jurisprudence? Examining Students’ Fourth Amendment Court Decisions by Region of Country

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MARIO S. TORRES JR.

ABSTRACT: This study examined federal and state court decisions related to student Fourth Amendment rights following the New Jersey v. T.L.O. ruling in 1985. There has been minimal research in judicial treatment of students’ Fourth Amendment rights across regions of the country and less to what extent regional rulings implicitly or explicitly transmit cues about acceptable administrative behavior. From data gathered from case law and the National Center for Education Statistics, the analysis examined the link between the characteristics of the school where the search occurred, aspects related to the search of the student, and the outcome of the case by national region. Catagorical analyses revealed a considerable regional effect associated with highly discretionary elements of Fourth Amendment law. Findings of note suggest a greater likelihood of students losing in court within urban contexts and considerable discrepancies in rulings between national regions with respect to search intrusiveness and the severity of the offense. Implications for legal decision-making and implementation are discussed.

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Teacher Unions and No Child Left Behind Reconstitution: The Calm Before the Storm

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LAURA MCNEAL

ABSTRACT: This article examines the intersection of teacher unions, school reform and the No Child Left Behind Act. Specifically, this article highlights the legal challenges that school leaders are likely to experience as they attempt to implement No Child Left Behind Act’s reconstitution mandates in failing schools, while not infringing on teachers’ legal rights. There is also a discussion of the discriminatory impact of NCLB reconstitution mandates on teachers of color and the legal and policy implications.

As a general rule, most teacher contracts and collective bargaining agreements include guaranteed employment for teachers with tenure, and some include protections for employment at particular locations. Teacher contracts and collective bargaining agreements also may include seniority rules, which guarantee those teachers with the most experience their choice of school sites. As such, any plan that forces a tenured teacher with seniority to lose his or her job at a particular school site, even while retaining employment within the district, potentially violates that teacher’s contractual or collective bargaining rights. The reconstitution mandates of No Child Left Behind (NCLB; 2002) present this very challenge. Under the act, persistently failing schools are subject to a series of corrective options, one of which is reconstitution, which requires failing schools to remove school staffs that are deemed relevant to the school’s failure (Judson, Schwartz, Allen, & Miel, 2008). Thus, school district efforts to implement NCLB reconstitution measures that trigger the firing and replacement of all or most of school staff, without infringing on teachers’ employment rights, are problematic. The act does not contain any authority that can render moot previously negotiated contractual tenure and seniority rights. To the contrary, it specifically states that “nothing in this section shall be construed to alter or otherwise affect the rights, remedies, and procedures afforded school or school district employees under Federal, State, or local laws.” As such, one could pose the argument that existing contracts and collective bargaining agreements could supersede NCLB, which poses serious concerns regarding the enforceability of the act and the possible impact on school district compliance with NCLB reconstitution measures (Milne, 2002).

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An Examination of Ohio Principals’ Attitudes Toward Technology and First Amendment Law: Implications for Leadership

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MARK A. GOODEN

ABSTRACT: Principals have acknowledged the challenges with remaining current on issues in the law. A unique challenge for principals is the intersection of students’ First Amendment rights in the school context and the legal issues surrounding student-created webpages. Using a randomly selected sample of Ohio high school secondary principals, I investigated administrators’ attitudes concerning the scope of their authority in regulating student Internet expression (i.e., webpages). In this study, attitudes are defined as a predisposition to respond to a social object, such as a person, group, idea, physical object, and so on, in particular situations. The results revealed that principals’ attitudes were significantly affected by the place where the student’s webpage was created (on campus or off campus) but not by the presence or absence of a material disruption.

Principals have acknowledged the challenges with remaining current on issues in the law and have noted that there are serious barriers to fulfilling this task given the growing demands of the principalship. For example, recent realities include heightened attention to accountability, an increased need to be an effective instructional leader and competent manager, and ultimately setting the direction and tone for the school (Leithwood, Louis, Anderson, & Wahlstrom, 2004). Consequently, their learning more school law gets lost among the many other demands of the position, at least until the threat of adversarial legal action arises. Incidentally, it is at this point that principals then question what to do about a legal issue and understand the need to proceed cautiously. So, principals are busily rushed to get as much as they can from professional organizations and colleagues, who often know as much or less about the law (Conn, 2001; Conn, Price, & Zirkel, 2001; Gooden, 2001; Pauken, 1997).

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Expression and Association Rights of School Employees in Electronic Environments

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JUSTIN M. BATHON

ABSTRACT: Many of the recent legal decisions regarding public employee expression, particularly in electronic environments, run counter to the culture being facilitated by the Internet. This article uses a legal analysis to examine recent decisions and then considers those legal positions within the context of digital expression.

Changes in communication technology have affected all aspects of society, including school employees. Specifically, the way that information is published has changed dramatically. Much of the traditional expression occurs, is heard by relatively few people, and then goes away. Even if it occurs in writing, it only really exists on a few sheets of paper while it stays within view. The publication of this nonelectronic speech is typically brief and limited in scope. The Internet, though, has turned this formula on its head. Electronic, public employee expression is published immediately to the entire world, and it does not dissipate. It exists for a long time and can be accessed by everyone. Speech that had been sound waves in the air or symbols scratched on some degradable physical tissue becomes 1’s and 0’s, infinitely accessible and replicable without geographic restraint. Given that there are over 3 million public school teachers in the United States (National Center for Education Statistics, 2006) creating thousands of 1’s and 0’s each day, the potential for some of those bits of information to run afoul of the law of public employee expression is vast. This radical change in the scope of publication stretches the public employee speech analysis to its breaking point. These standards have developed over decades of employee speech cases that were assumed to normally be both brief and limited in scope. In particular, the public employee speech standards that have developed as a result of Garcetti v. Ceballos (2006) run counter to this monumental shift in the power of individual publishing on the web, which has implications on the amount of innovation and creativity emerging from the schools.

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High-Stakes Decisions: The Legal Landscape of High School Exit Exams and the Implications for Schools and Leaders

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JENNIFER JELLISON HOLME

JULIAN VASQUEZ HEILIG

ABSTRACT: High school exit exam requirements are affecting a growing number of U.S. students—particularly low-income students and students of color. This article examines the policy and legal landscape of exit testing policy to shed light on some of the key issues facing local school leaders charged with implementing these policies. The article first analyzes federal and state court cases related to exit testing and examines the conditions under which courts have permitted and bounded their use. It then discuses the broader legal and legislative environment that has affected leaders’ ability to respond to exit testing requirements. The article concludes with implications of high-stakes exit testing and policy considerations for local leaders as well as state policymakers.

Across the United States, an increasing majority of students are being required to pass exit exams to receive a high school diploma. As of the 2009–2010 academic year, the 28 states that had enacted exit examination requirements enrolled 74% of the public school students in the United States (Center on Education Policy [CEP], 2010, p. 1). These states enrolled 83% of the nation’s minority students, 78% of low-income students, and 84% of the nation’s English-language learners (ELLs).

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