What Educators Need to Know

Educators, both teachers and administrators, must understand that schools are products of law. Within this general idea, there are three types of rules that educators must concern themselves with: Laws, Policies, and Common Law, the guidelines that result from court cases.

• What is a law?
• What is a policy?
• What role do the courts play in the field of education?
• What general guidelines related to law, policy and common law should school administrators keep in mind in their day to day existence?

What is a law? Who makes laws that govern schools? How is a law created?

A law is the result of a constitutional process. School laws are enacted by either the Federal Government in Washington, D.C. or by a state government in a state capital. As a result, the laws governing schools in Illinois come from Washington, D.C. and Springfield, Illinois. Most school laws are passed by the states. As a result, laws can, and sometimes do, vary greatly from state to state. The Federal Government has become more and more active in passing school law during the last 40 years.

The constitutional process which a proposed law, or bill, must go through before it can become a law is fairly simple. This process is basically the same around the country, and even in many other countries that have mirrored the United States' system of government. A bill must be proposed by a representative or senator to their respective legislative body.

If that body votes to pass the bill (with a simple majority needed for passage), the bill moves to the other chamber of the legislature for a vote. The second legislative body votes on the bill, and if it passes through this body as well, it moves to the chief executive, the President or Governor. The chief executive can either sign the bill, making it a law, or they have the power to veto or reject it.

If the bill is rejected, there is a process that allows the legislature to override the veto and still make the bill a law. The vote to override a veto requires a higher threshold of support, usually a two-thirds majority. In reality, the processes used by various legislatures to move bills toward laws are much more complex due to layers of committees and detailed procedural rules.

In Illinois, the majority of laws that govern public education are located in Chapter 105 of the Illinois Compiled Statutes. This information can be found at local libraries, on-line, or in the Illinois School Code, published by the Illinois Association of School Boards. This is an invaluable resource for all school administrators. It is also important that teachers are familiar with the actual content of the laws.

What is a policy?

A policy is a rule like a law, but is NOT itself a law. This does not mean, though, that it is not important. Many policies are as important as laws, even though policy is not the result of a legislative policies. Policies are created to clarify or specify a law that has been passed by a legislature and approved by a chief executive.

Often times, the difference between a law and policy that has been created by the U.S. or a State Department of Education is not very clear to principals and teachers. That is understandable since, oftentimes, the policy has the effect of law. School policies originate, primarily from the: U.S. Department of Education, State Departments of Education (in Illinois, the Illinois State Board of Education), Local School Boards, District Administrators, and Schools, themselves.

Policies at the district level, created by the school board, district administrators, or the building staff, generally focus on greater details or specific procedures. It is the policies that emphasize specific procedures that warrant the greatest understanding by teachers and administrators. Schools and school districts generally set their own policies within the guidelines of laws.

It is very important that these policies are laid out in detail and understood by all staff members so as not to violate the right to procedural due process of students or staff. A violation of procedural due process is a trap that schools regularly fall into in spite of the fact that the schools or districts have, often times, created the policy that they have violated.

What role do the courts play in the field of education?

The task of the courts in the United States is to interpret the laws created by the other branches of government. This interpretation requires courts to consider how specific laws relate to specific cases and what the law was originally intended to mean. There are two systems of courts throughout the country. First, there are the Federal Courts, with the U.S. Supreme Court being the pinnacle of this court system. Second, there are State Courts. Illinois has its own court system with the Illinois State Supreme Court as its top executor of justice.

Since school law, like most other kinds of law at this point in American history, includes both Federal and State Law, cases related to school law are heard in both the Federal and State Court Systems. This is where the legal concept of jurisdiction becomes important. A court decision only is binding in the area over which the court has jurisdiction, or the power to speak on legal matters. For example, the decisions of state courts in Indiana are not binding on schools in Illinois. On the other hand, Illinois and Indiana are in the same Federal Court District. This means that decisions by these courts are binding on schools in both states regardless of which state the case originated. The only court with the power to make decisions that are binding on laws and court decisions throughout the country is the U.S. Supreme Court.

The results of court decisions become the basis for common law. Common law is not law that was passed through legislative channels, but it is the interpretation of such laws by the courts. Other courts, and practitioners in the field like principals and teachers, must use common law to help determine what the law really is in a particular situation. Journals like the Illinois School Law Quarterly can help teachers and administrators keep abreast of the latest developments in the ever-changing world of common law.

What are some general guidelines related to law, policy, and common law that school administrators should keep in mind in their day-to-day existence?

School personnel are expected to know, understand, and follow all of the laws, policies, and common law that governs their particular school. This is can be an overwhelming task considering all of the other responsibilities of teachers and administrators-such as educating students. How, then, can school personnel stay on top of all of this?

First, it is important that schools have well-written student and staff handbooks. These handbooks should lay out the details of specific policies, especially those related to discipline. Additionally, everyone must receive the appropriate handbook, and schools should require parents and students to acknowledge that the handbooks have been read and understood.

In keeping with this theme, schools must maintain open lines of communication with parents, individually and as a group. This is not only good instructional practice, but it is wise legal practice as well. The goal of law is to set guidelines so that problems can be avoided. Consistent and open communication is crucial to create an environment in which problems can be understood and solved before they lead to legal battles. Open communication also implies that parents will know and understand their rights. This means that schools should provide interpreters for those parents that do not speak English and that the school help parents understand their rights.

Communication is also critical within the school district organization. When teachers encounter a situation which they are legally unsure about, they should communicate with the administrators in their building. When administrators are unsure about how to handle a specific situation, they should communicate with appropriate officials in the district office. Finally, the district office must be able to recognize when the school district's lawyer should be called to provid advice in response to a such legally ambiguous situations. The goal of school personnel is to use knowledge of law, policy, and common law to solve problems so that schools and parents can focus on their primary task of educating children.