1. + EA 742 Oakland University Summer VII Session – Class #1 Wednesday, July 1, 2015 Kevin T. Sutton, Instructor

2. + Introductions and Course Overview EA 742 – Education Law Oakland University

3. + Introductions Instructor – Kevin T. Sutton Attorney, Lusk & Albertson Represent Public School Districts, Charter Schools, Municipalities Practice Areas/Specialties Personal Information Instructional Style Contact [kevin.t.sutton@gmail.com; 734.377.7400] Student Information Name, District, Position What you hope to get from this class

4. + Course Overview Syllabus Course Schedule / Locations Topics to be Covered Grading Assignments Eating My hope for what you get out of this class … Questions?

5. + Sources of School Law EA 742 – Education Law Oakland University

6. + Sources of School Law Constitution (federal and state) Bill of Rights Federal Statutes State Statutes Federal and State Courts Administrative Agencies Board of Education

7. + Federal Constitution/Bill of Rights Constitution applies only to the government (i.e., not private or parochial schools) Supreme law of the land Structured in two parts: 1) framework of government; 2) guarantee of rights Bill of Rights has largest effect on schools

8. + Bill of Rights First Amendment Religion, Speech and Assembly Fourth Amendment Unreasonable Search and Seizure Tenth Amendment Sovereignty of the states Public education is a state issue Fourteenth Amendment Guarantees within the Bill of Rights applies to the states

9. + Michigan Constitution and Statutes Michigan Constitution (and laws passed as a result) guarantee the right to public education in school district of residency Govern most aspects of public education Funding Student discipline or attendance issues (i.e., school of choice, etc.) Teacher Tenure Pensions Immunity Etc.

10. + Federal Statutes Govern education through funding Examples include IDEA, Section 504, NCLB Anti-Discrimination Laws in employment, education, and access Examples include Title VII of the Civil Rights Act of 1964 (employment or education based on suspect classification), Title IX of the Education Amendments of 1972 (gender and education), or the Americans with Disabilities Act (disability discrimination through education or access to public buildings).

11. + State and Federal Case Law Arise out of appellate court decisions Interpret statutes and constitutional provisions or the application or implementation of statutes or constitutional provisions. Binding authority on those lower courts within the same jurisdiction.

12. + Example of Court Jurisdictions

13. + Reading a Court Opinion Terms you may hear: Common Law – Body of law or legal principles that develops over time through judicial decisions. Stare Decisis – Pattern of following precedent of past decisions of the court Not all opinions or decisions are binding on a court Summary Judgment or Summary Disposition – The dismissal of a case without a hearing/trial Motion – A request of a court to make a decision or order Dissent or Concurrence – Opinion of a judge (or member of a commission) disagreeing or agreeing (usually for a different reason) with the majority

14. + Reading a Court Opinion Citations – Smith v. Jones, 123 U.S. 427 (2013) Parties, recorder information (year) Format of opinions Facts Procedure Standard of Review Legal Analysis

15. + Administrative Agencies Part of the executive branch of government However, often take form of all three branches Generally given authority to regulate/enforce/adjudicate pursuant to specific statutes or acts Examples Federal: Family Policy Compliance Office (FPCO) – FERPA; Equal Employment Opportunity Commission (EEOC) – Title VII, ADA, ADEA; Office of Civil Rights (OCR) – IDEA State: Michigan Employment Relations Commission (MERC) – PERA; State Tenure Commission (STC) – TTA; Michigan Compensation Appellate Commission (MCAC) – ESA; Michigan Department of Civil Rights (MDCR) – ELCRA

16. + One Last Thing Great research tools for this class: Google Scholar – scholar.google.com MDE ADLAW (Michigan Department of Education’s Office of Administrative Law’s Opinions) - http://web1mdcs.state.mi.us/NXT/gateway.dll?f=templates&fn=d efault.htm&vid=mdoeal:public http://web1mdcs.state.mi.us/NXT/gateway.dll?f=templates&fn=d efault.htm&vid=mdoeal:public Yes, believe it or not, that is a real web address for a governmental agency!

17. + Student and Staff Discipline Properly Enforcing Discipline Without Running Afoul of Student or Staff Rights

18. + What is Student Discipline?

19. + The Michigan Legislature has given school districts the authority to discipline students, including the power to order suspension or expulsion. MCL 380.1311 School District’s Right to Discipline

20. + Courts have stated that the power to maintain order and discipline in a school is subject only to the restriction of reasonableness. Davis v Ann Arbor Schools, (1970) Arbitrary and Capricious Standard: Disparate Treatment – treating similarly situated students differently Must have rational basis for difference.

21. + Student Discipline Considerations Two Primary Types of Issues to Consider with Student Discipline: Legal Issues Constitutional Issues Statutory Issues District Policy Issues

22. + Constitutional Issues Procedural Due Process - 5th Amendment Search & Seizure - 4th Amendment Also …. Freedom of Speech - 1st Amendment Freedom of Religion - 1st Amendment

23. + Goss v Lopez, U.S. Supreme Court (1975) A student has a “property interest” in a public education. Due process is required before that right may be taken away. Basic Tenants of Due Process Notice of “charges” Opportunity to be heard Due Process

24. + Central Question: How Much Due Process is Enough? Due Process (cont.)

25. + Suspensions of 10 days or less REQUIRE: Oral or written notice of charges Explanation of evidence An opportunity to present student side of story

26. + Due Process (cont.) Suspensions of 10 days or less DO NOT REQUIRE: A student to secure counsel Allowing the confrontation of witnesses Allowing the calling of witnesses on the student’s behalf

27. + Suspensions of more than 10 days and expulsions Require more formal procedures (Goss) Must be notified of charges in writing Generally understood to include right to secure counsel, confront witnesses/evidence and to call witnesses on the student’s behalf Due Process (cont.)

28. + Student statements Prior to disciplinary hearing No need to give statements to student or allow student to question and confront students that submitted statements At time of disciplinary hearing Student should be provided with redacted copies of all statements used in determination to issue discipline Due Process (cont.)

29. + One last note on due process There is no property interest in extra-curricular activities. Therefore, cannot violate due process of student by suspending them from extra-curricular activities. Due Process (cont.)

30. + USE IT! Applying the levels and types of discipline stated in the Code of Conduct eliminates potential arguments of disparate treatment, favoritism, or arbitrary and capricious actions. Allows you to easily justify decision to parents, administrators or others. Student Code of Conduct

31. + Statutory Issues Mandatory Discipline Mandatory Discipline Categories Dangerous Weapons Criminal Sexual Conduct Felony Arson Assaults - Adults and Students Verbal Assaults and Bomb Threats

32. + Student Discipline Hearing Superintendent or Designee – Hearing Officer Opportunity to be heard Can be represented District case presented by lead administrator Recorded? Taken under advisement

33. + Reinstatement

34. + Staff Discipline Enforcing Discipline Without Running Afoul of the Employee’s Rights

35. + Employee Rights in Discipline Context How do you get to this point? Loudermill Rights Weingarten Rights Also … Rights under Teacher’s Tenure Act Public Employee Relations Act (PERA)

36. + Loudermill Rights “The employee is entitled to oral or written notice of the charges against him (or her), an explanation of the employer’s evidence, and an opportunity to present his (or her) side of the story” Employer has an obligation to inform the employee of his/her Loudermill Rights The employee has the right to speak or not to speak at the Loudermill (or “pre-disciplinary”) hearing. Also, the employee has a right to union representation, and the union representative may speak on behalf of the employee If the employee chooses not to attend the Loudermill (or “pre- disciplinary”) hearing, the employer may proceed with discipline

37. + An Employee’s Weingarten Rights “An employee is entitled to have a representative present at an investigatory interview by an employer if the employee reasonably believes that disciplinary action might result.”

38. + Weingarten Rights Do Employees Have to Ask For a Weingarten Rep? Informing Employee of Predetermined Discipline Does the Weingarten Rep Have To Be a Union Steward? What If the Employee’s Chosen Rep is Unavailable? The Role of the Weingarten Rep An Employer Has Three Choices When An Employee Invokes His Weingarten Rights CBA Terms and Weingarten Rights

39. + Teacher’s Tenure Act Recognized property interest in employment Major modifications recently Transition from “Just & Reasonable Cause” to “Arbitrary and Capricious” Can discipline up to 15 days without TTA implications Process Trends Composition of State Tenure Commission

40. + Labor Arbitration Post-Discipline Process Grievance Procedure articulated in CBA Final step typically arbitration AAA or private arbitrator Overview of arbitration hearing Appeal?

41. + PERA Michigan Public Employment Relations Act Initially passed in 1947 Allowed public-sector employees for the first time to organize and enter into collective bargaining agreements Recent changes Remains the principal statute governing disputes involving public-sector labor organizations and government employers, including Michigan public school districts