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Chapter 2

Law and School Psychology:

An Introduction

Jacob, Decker, & Hartshorne

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School-Based Practice:Special Considerations

• Unlike private practitioners, school psychologists employed by the public schools function as an extension of the state government’s authority (power) to educate.

• When school psychologists employed by a school board make decisions in their official roles, such acts are seen as actions by state government. In legal parlance, school-based psychologists are state actors.

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Some Differences between School-based and Private Practice

• As state actors, public school-based practitioners must know and respect the legal rights of parents and students. Violation of their legal rights can result in a lawsuit against the district and practitioner.

• Public school employees have a legal obligation to protect all students from reasonably foreseeable risk of harm.

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Three Sources of Public School Law in the U.S. Legal

System

• U.S. Constitution• Statutes and Regulations• Case Law

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Legal Foundations of School-Based Practice

• No fundamental right to an education under the U.S. Constitution.

• Under the 10th, the duty to educate children and the authority (power) to do so rests with state governments.

• Public education is an “entitlement” given by state government to its citizens.

• Also considered to be a “property right” protected by the U.S. Constitution.

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U.S. Constitution• 14th Amendment: equal protection clause

and due process clause prevent state government (public schools) from trespassing on rights of individual citizens.

• Because education is a duty left to the states, the federal courts are reluctant to intervene in disputes involving the public schools unless the actions of the school violate fundamental Constitutional rights.

• 1st and 4th Amendments: important source of fundamental rights.

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The U.S. Constitution: Selected Amendments

Amendment 1

Freedom of Religion, Speech, and the Press; Rights of Assembly and Petition

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment 4

Search and Arrest Warrants

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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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 law.

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Two Types of Federal Legislation

Civil Rights Legislation

Section 504 of the Rehabilitation Act of 1973

Americans with Disabilities Act of 1990 (ADA) as amended in 2008 (ADAA)

Federal Education Law

The Education of All Handicapped Children Act of 1975 (P.L. 94-142), renamed the Individuals with Disabilities Education Act (IDEA) in 1990

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FEDERAL EDUCATION LEGISLATION

• Elementary and Secondary Education Act of 1965 (ESEA). (Now under revision, called the No Child Left Behind Act under the Bush administration).

• Education of the Handicapped Act (P.L. 94-142), now the Individuals with Disabilities Education Improvement Act of 2004 (IDEA)

• Family Educational Rights and Privacy Act (FERPA).

• The Protection of Pupil Rights Act

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FEDERAL ANTIDISCRIMINATION LEGISLATION

• The Rehabilitation Act of 1973 (Section 504)

• Americans with Disabilities Act of 1990 (ADA) as amended in 2008

• Civil Rights Act of 1871 (Section 1983)

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Case Law• Case law or common law emerges from court

decisions. Considered “discovered” law.• Federal court system has 3 tiers; state court

systems usually have 3 tiers.• Federal courts rule only on cases that involve

federal constitutional or statutory law, or cases that involve parties from two different states.

• State courts rule on cases involving state constitutional and statutory law, but also may rule on cases involving the federal constitution and statutory laws.

• The decisions of the courts are binding only within their jurisdictions.

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Civil Liability

Civil liability, simply stated, means that one can be sued for a acting wrongly toward another or for failing to act when there was a recognized duty to do so. Civil liability rests within the basic framework of the law of tort. A tort is a civil (not criminal) wrong that does not involve contracts.

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In general, in tort cases the court considers

four questions: • Did injury occur? Injury means a wrong

or damage done to the student’s person, rights, reputation, or property.

• Did the school owe a duty in law to the student?

• Was there a breach of duty, that is, did the school fail to do what it should have done? A tort can arise when an improper act, or failure to act, causes injury to the student.

• Is there a promixate cause relationship (a foreseeable chain of events or causal) between the injury and the breach of duty?

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Lawsuits Against Schools Under State Laws

• Historically, governments followed the doctrine of sovereign immunity: the King (state) can do no wrong, you can’t sue the king.

• Exceptions to the doctrine of sovereign immunity have emerged and vary from state to state. Often parents can sue a school for money damages up to the limits of the district’s liability insurance (indemnification).

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Lawsuits against schools Under State Law (Cont.)

• As state actors and district employees, school-based school psychologists have legal duty to protect pupils from reasonably foreseeable risk of harm. Duty extends to all students. Schools are not held liable when spontaneous, unforeseeable acts by students result in injury.

• Most lawsuits involve physical injury to student and often involve failure to supervise.

• Instructional malpractice suits have typically failed.

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Lawsuits under Federal Law

• Federal anti-discrimination laws such as Section 504, ADA, and Title IX of the Education Amendments of 1972 allow parents to sue a school district for violation of their child’s rights under those laws. Court can order school to comply with law and award monetary damages.

• Lawsuits under special education law (IDEA) are discussed in Chapter 4 and allow parents to recover attorney fees if they prevail.

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Lawsuits under Federal Law (cont.)

Under Section 1983 of the Civil Rights Act of 1871, 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 the actual damages.

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Section 1983 (Cont.)• School officials may have qualified immunity from

Section 1983 lawsuits. The standard for qualified immunity applicable to government (school) officials is as follows: "[G]overnment officials performing discretionary functions are shielded from liability for civil damages unless their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known" (Harlow v. Fitzgerald, 1982, p. 2738).

• School personnel generally will not be held liable in Section 1983 lawsuits as long as they are "acting clearly within the scope of their authority for the betterment of those they serve” (e.g., Landstrom v. Illinois Department of Children and Family Services, 1990)

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Credentialing for School-Based Practice

• State matter; usually State Department of Education (SDE) issues a certificate or license for school-based practice.

• Variation across states; need to check the state where you wish to practice.

• In most states, an SDE school psychologist certificate or license does not allow you to private practice.

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Credentialing for Private Practice

• Licensure acts typically regulate the private practice of psychology.

• Licenses are usually issued by a state psychology board.

• Currently only about 11 states license school psychologists for private practice at the subdoctoral level

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NCSP• The National School Psychology

Certification System allows school psychologists who complete training consistent with NASP standards, achieve a passing score on the National School Psychology Examination, and meet continuing education requirements, to be identified as a Nationally Certified School Psychologist or NCSP.

• The NCSP title alone does not authorize a school psychologist to render services.

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Professional Malpractice• Professional malpractice suits are filed against

individual practitioners under state statutory and common law.

• Professional malpractice occurs when there is harm to a client in the context of a psychologist-client professional relationship, and it is determined that the harm was caused by departure from acceptable professional standards of care.

• When a professional-client relationship exists, and the psychologist is acting in a professional capacity, he or she expected to provide “due care,” or a level of care that is standard in the profession.

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Professional Malpractice (Cont.)To succeed in a malpractice claim, the plaintiff must

prove: • a professional relationship was formed between

the psychologist and plaintiff so that the psychologist owed a legal duty of care to the plaintiff.

• the duty of care was breached, that is, there is a standard of care and the practitioner breached that standard,

• the client suffered harm or injury, and • the practitioner’s breach of duty to practice

within the standard of care was the proximate cause of the client’s injury; that is, the injury was a reasonably foreseeable consequence of the breach