Compendium

Notebook
Lauren Roche
University of New England
EDU-702 Fall 2015-A2
Dr. Steven Klein
December 16, 2015

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Part I: Legal Framework .

p. 3

Part II: Tort Liability

p. 5

Part III: Church and State .

p. 8

Part IV: Student Classification .

p. 9

Part V: Children with Exceptionalities

p. 10

Part VI: Students Rights .

p. 12

Part VII: Teachers Rights .

p. 16

p. 18

PART VIII: Terms and Conditions of Employment

L. Roche, p. 2

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L. Roche, p. 3

PART I: MAINE LEGAL FRAMEWORK

1. Maine Educational Statutes

Maine educational statutes are based on the Constitution of The State of Maine, which includes two

sections regarding education in the First Part of Article VIII. The first section states that legislature requires towns
to provide a public school opportunity for its residents at their own expense, and explains that legislature may be
involved in the endowment of academies, universities, and seminaries. The second section addresses authorization
by the legislature for student loans to be granted to Maine students seeking higher education.

Of Maines Statutes, Title 20 and Title 20-A respond specifically to education. Title 20 is divided into six

main categories (or Parts) of educational statutes, which contain a number of different chapters housing specific
and relevant statutes. The categories are: Administration and Organization; Public Schools; Teachers; Advanced
and Special Education; Education and Rehabilitation of Disabled, Handicapped, Gifted and Talented Persons; and
Financing and School Property. Title 20-A is divided in the same manner, but into ten main categories: General
Provisions; School Organization; Elementary and Secondary Education; Specific Education Programs; Post-
Secondary Education; Teachers; School Finance; Rehabilitation Services; Learning Technology; and Interstate
Compact on Educational Opportunity for Military Children.

2. The Maine State Board of Education

The nine members of the Maine State Board of Education are appointed by the Governor. When they are

appointed, four must live in the First Congressional District, four must live in the Second Congressional District, and
one can live in either Congressional District. The five-year terms that each board member serves are staggered.
The board is responsible for electing the head of the board the Chair as well as a Vice Chair every year. Also on
the board, but without voting privileges, two student members appointed by the Governor. These students will
serve two-year terms, starting their first term when they are a high school junior. One student must live in the First
Congressional District, and the other must live in the Second Congressional District. The members of the State
Board of Education also serve on outside boards, commissions, and other bodies within education. The State Board
of Education also has four standing committees responsible for conducting various aspects of the Boards business.
Members of the board are appointed to each committee by the Board Chair.

3. Maine State Court System

The Maine Court System is responsible for protecting citizen rights and upholding citizen responsibilities

according to law. The courts that make up the system resolve civil and criminal complaints and disputes, and are
also responsible for providing official approval of matters that are not in dispute, such as adoptions and name
changes. Lesser criminal offenses, civil actions, and family law matters are likely to be tried without a jury in one of
Maines District Courts with one of 36 judges. Small claims court is a session of the District Court, which involves
informal proceedings, often without attorneys, in matters that involve less than $6,000. Defendants in District

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Court hearings wishing for a jury trial may appeal to the Superior Court. Appeals in District Court Decisions may
also be made directly to the Supreme Judicial Court, except for small claims, forcible entry, and detainer cases.

Maine Superior Courts are the only courts that use juries and hear almost all civil and criminal matters

(except for family matters, juvenile cases, and civil violations). There is one Superior Court in each of Maines 16
counties, and court is held by one of 17 justices. Any appeal of a Superior Court decision may be taken to the
Supreme Judicial Court, which is located in Portland. The court has seven justices and one Chief Justice, who is the
head of the judicial branch. Decisions made by the Supreme Judicial Court justices are final.

4. U.S. Circuit Court of Appeals for the First Circuit

th

Since March 30 , 1820, Maine has been included in the U.S. Circuit Court of Appeals for the First Circuit,

along with four other districts: Massachusetts, New Hampshire, Puerto Rico, and Rhode Island. The Court is
located in Boston, Massachusetts and hears appeals from the five districts. Maine has had three authorized
judgeships in the Court since 1990.

5. Any major state court cases or cases settled within the First Circuit Court that contested federal, state, or local
control of education.

I searched for such cases on four different occasions, certainly over an hour in length, but I was

determined to find something to fit the criteria. The most promising compilations of education-related Circuit
Court cases came from Wrightslaw.com, which included cases from other courts as well. The site contains
important cases regarding Special Education, an area in education I believe is prone to legal involvement; thus, I
felt I would be successful here. However, the site is not specific to one Court of Appeals and it is necessary to click
on each individual case to determine which state it is specific, too. Unfortunately, I did not find a Maine case in the
Courts of Appeals section.

I also found a promising site, JustiaLaw, which seems to be a go-to site for everything law: information

about every legal practice area, court system, law, lawyer and practice, etc. I navigated to First Circuit U.S. Court of
Appeals Case Law where I could browse opinions on cases from the Court from as far back as 1917. While I had
the same issues as I did with the Wrightslaw.com site (I couldnt easily distinguish cases from Maine), this site
contained non-education-related cases, as well, which made the search much more difficult. Using keywords to
search, such as Maine, school, and education, I came across cases from the First Circuit, but none for Maine.
I shared a few of these cases in EDU 702s Starbucks, hoping others might be able to use them in their
compendium.

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PART II: TORTE LIABILITY

1. Maine Statutes with Respect to Corporal Punishment, Seclusion, and Restraint

Corporal Punishment - Maines statutes around corporal punishment can be found within the civil and

criminal statutes that Maine.gov has compiled under Abuse and Neglect of Children, with other laws intended to
protect children from the mistreatment of adults. According to Title 17-A, sec. 106(2), school personnel are not
permitted to use corporal punishment.

Seclusion & Restraint Rule Chapter 33 governs physical restraint and seclusion (accessible through the

DOE website as a word document). Maines DOE has a compilation of resources around restraints and seclusions
including training, the amended law that was put in effect in April of 2013, incident report forms, and resources
and materials about the topics. There is some useful RTF files accessible here including:

Rule Chapter 33 Timelines/Requirements that provides the guidelines to how many people
need to be present in both scenarios and what their roles are.

Non-Regulatory Guidance, which is a document designed by the DOE to help schools, parents,
students, and the public, understand the limitations and requirements related to the use of
restraints and seclusions as they are defined by the state. This file also provides clarification
types of intervention that are/not considered to be physical restraint and seclusion under Rule
Chapter 33, and actions that are prohibited under the rule. Key terms from the Rule are also
defined: Incident, risk of injury or harm, physical escort, physical restraint, seclusion, serious
bodily injury, and timeout.

2. Maine Statutes Relating to Concussions

The Maine DOE has a site specific to concussion management with resources for families and students,

coaches and athletic administrators, teachers and administrators, and healthcare professionals.

The Maine DOE has created a Concussion Model Policy for school districts to reference as they create

their own policies and procedures around concussion prevention and management. Most importantly, the policy
includes segments on training of school staff, expectations of students and parents, and the management of the
concussion and other head injuries.

In May, 2012, Governor Paul LePage approved an act (An Act to Direct the Commissioner of Education To

Adopt a Model Policy Regarding Management of Head Injuries in School Activities and Athletics) requiring school
administrative units to have a concussion policy and protocols for managing reported concussive head injuries in
the school setting. There is also an expectation within this act recommending that school staff be made aware of
the laws requirements and the recommended policy for all schools.

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3. Maine Statutes Relating to Bullying

General information about Maine state bullying laws and policies can be found at stopbullying.gov.

In May of 2012, Governor Paul LePage passed a law, PL 659 An Act to Prohibit Bullying and Cyberbullying in
Schools, making it mandatory for school staff to be made aware of the requirements and recommended
procedures for handling bullying and cyber-bullying in schools per state law (Title 20-A, 6554).
Maine laws covering bullying include:

Title 20-A, 254, which details the educational duties of the commissioner, including:

254.11 - the development of statewide standards for responsible and ethical student behavior.
The standards developed with input from educators, administrators, parents, students and
community members must require annual reporting of incidents of violent and harmful
behavior by or against students to the department by school administrative units. It is also
expected that the department will provide forms for reporting; and

254.11A - the commissioner will develop a model policy to address bullying and cyber-bullying
for schools to use pursuant to section 6554. It is expected that a copy of the model policy is
provided to each school in the state and posted on the publicly accessible portion of the
department's website. The commissioner will also create a procedure for schools to report
substantiated incidents of bullying and cyber-bullying to the department and update or revise
the model policy with revisions being distributed to schools and posted on the website.

Title 20-A, 1001, which details the duties of school boards, including:

1001.15 which explains that school boards must adopt a student code of conduct with input
from educators, administrators, parents, students and community members. The student code
of conduct should be consistent with the statewide standards for student behavior developed
under 254.11; and

1001.15A which states that school boards must consider district-wide disciplinary policies
when revising consequences for any violation of the student code of conduct pursuant of
1001.15(C). School boards must consider policies that (a) focus on positive interventions and
expectations and avoid focusing exclusively on unacceptable student behavior and (b) focus on
positive and restorative interventions that are consistent with evidence-based practices rather
than set punishments for specific behavior and avoid so-called zero-tolerance practices unless
specifically required by federal or state laws, rules or regulations.

Title 20-A, 6553, which prohibits the act of hazing and requires school boards to incorporate such
expectations within their policies, make known the penalties for violating the law, and distribute copies of
the adopted policies and penalties to all students within the district. The law also gives responsibility for
administering the policy to the superintendent.

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Title 20-A, 6554, which prohibits bullying behavior in schools. The law clearly states that All students
have the right to attend public schools that are safe, secure and peaceful environments, and the
Legislature identifies bullying and cyber-bulling as negatively impacting the school environment and
student learning and well-being. The law defines bullying, cyber-bullying, retaliation, and school
grounds. The law also identifies the appropriate process of adopting a policy, distribution of the policy,
and application of the policy, as well as the superintendents role in the above.

The Maine DOE has provided a state model policy for school boards to refer to when developing their
policy. The model policy identifies what behaviors are prohibited, definitions for bullying and cyber-
bullying, who the policy applies to and how it is applied, who can report behavior that is in violation of the
policy and how to report it, how schools will respond to the behavior or reports of the behavior, and
what the school board and superintendents roles are.

4. Comparative or Contributory Negligence as a Defense in Maine? Immunity Safeguards for School Personnel in
Maine?

Maine uses a modified comparative negligence system, as outlined in Title 14, 156. This means that each

party is held responsible for damages in proportion to their own percentage of fault, which is determined by a
judge or jury and what it thought to be just and equitable considering the plaintiffs own actions. If a plaintiffs
negligence reaches a certain percentage (in Maine, the percentage bar is 50%), the plaintiff cannot recover any
damages. Damages attributed to the defendant will be reduced by the plaintiffs negligence.

Title 20-A, 4009 on Civil Liberty states that when it comes to reasonable force, teachers may not be held

civilly liable if they are controlling disturbing behavior or removing a person from the scene of a disturbance. They
may, however, be liable if there is intentional or reckless use of force creating a substantial risk of death, serious
bodily injury, or extraordinary pain. Again, unless a teacher is reckless or there is gross negligence, a teacher may
not be liable for a students injuries as a result of receiving emergency by the teacher.

5. Other Items

In 2014, a former Brunswick Junior High School student, who claimed he was physically and sexually

assaulted and discriminated against based on his sex and sexual orientation, filed a lawsuit in federal court
claiming his civil rights were violated. The Maine Human Rights Commission, which in June 2014 voted to uphold
its investigators report substantiating the complaints, joined the suit as a plaintiff to ensure that Brunswick has in
place effective measures to prevent a hostile education environment based on sex and sexual orientation,
according to court documents. The Commissions plan to join suit appears to a precedent-setting move. The suit
named the Brunswick School Department, town of Brunswick and Brunswick Junior High School Principal Walter
Wallace as defendants. As of July 2015, settlement discussions that began in January of 2015 had not been
successful.

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PART III CHURCH & STATE

L. Roche, p. 8

1. State laws that relate to a moment of prayer OR meditation on the books or any other statute that addresses
religion on the schools.

Maine law, Title 20-A, 4805.2, allows for a period of silence may be observed at the beginning of the first

class of each day in all grades and in all public schools. The law states that the teacher in the class will announce
the period of silence will be observed for reflection or meditation and that no activities should occur during that
time.

2. State law relating to tax vouchers being used at any school including religious schools.

Any student who does not live in a district that does not operate any public schools, or does not contract

with schools of another district, is eligible for a voucher that is equal to the statewide average per-pupil allocation.
These standards are defined by Title 20-A, Chapter 117, Subchapter 2: Approval for the receipt of public funds by
private schools 2951 - 2955).

3. Does Maine have a Blaine Amendment?

The Blaine Amendments are provisions in state constitutions that restrict the use of public funds to

support private religious schools. Maine does not have any Blaine Amendments within its constitution, which
means there are no prohibitions on public funding of parental choice programs. This makes available tax credits
and voucher programs as school choice are available providing tax credit and voucher programs as school choice
options for Maine.

4. Any state court cases or cases settled within the First Circuit Court that contested church/state issues?

In Anderson et al. v. Town of Durham et al. (2006), the Maine Supreme Court upheld a Cumberland

County Superior Court ruling in favor of the State of Maine and parents opposed to public funding of religious
education. The court decision stated that excessive entanglement between religion and state would occur if
funding for a religious school were allowed. The court also stated that allowing such funding would raise concerns
about maintaining diversity within the public schools, and avoiding involvement in discrimination in admissions
and hiring by religious schools.

5. Other items that were found.

Title 20, 1224 allows for students to be released for up to one hour per week for moral instruction or

religious observance at their place of worship.

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PART IV STUDENT CLASSIFICATION

1. State statues or the part of the state constitution that looks at equity of opportunity in education, which
includes school financing.

Title 20-A Chapter 606-B is the Maine statute known as the Essential Programs and Services Funding Act.

The model is cost driving, not expenditure driven, providing a basis for adequacy and greater equity in school
funding. The EPS has been established to insure that all Maine schools have the fundamental programs and
resources for all students to have an equitable opportunity to meet the standards of the 8 content standard
subject areas.

2. State statutes that provide guidelines for working with ESL children, illegal immigrants, homeless children,
gender or any other designated group (not including children with disabilitiesthis will be covered in Module 5)

Title 20-A, 4701 states that Maine schools may provide instruction in a language other than English if a

school is building proficiency in both English and a second language or if transitional instruction using bilingual
techniques with students of limited English proficiency is necessary. In the event that it is the latter, Exception 2 of
the statute requires Maine school districts to
1)

Create a Lau Plan (from Lau v. Nichols, 414 U.S. 563 (1974), the U.S. Supreme Court stated that
school systems must take action to see that limited English proficient national origin minority
students are able to benefit from an education instructed in English), which will include the legal
foundation for service, student assessments, an instructional plan, parental involvement, qualified
personnel, a coordination plan, a budget, adjunct services, and other possible considerations;

2)

Identify English Learners and screen for services;

3)

Develop and provide a program of services to meet the academic and English language proficiency
needs to the English Learner;

4)

Administer all required State assessments to measure student progress; and

5)

Continue to assess the program of services and modify when needed.

The Fourteenth Amendment prohibits Maine (and all states) from denying a free public education to

undocumented immigrant children regardless of their immigrant status, as ruled by the Supreme Court in Plyler v.
Doe (1981). As such, illegal immigrants would be entitled to the aforementioned guidelines for education to
English Learners under Title 20-A, 4701.

Maine schools are required to follow the provisions entitled to homeless students under the federal

McKinney-Vento Homeless Assistance Act. The purpose of the act is to minimize the disruptions to a youths access
to education as a result of being homeless by guaranteeing the student the right to a free, appropriate, public
education where said student has been attending, regardless of whether or not residency requirements are being

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met, or whether the typical documents and immunizations for enrollment can be provided. Homeless students are
also guaranteed the transportation they need to attend school under McKinney-Vento.

Maines anti-discrimination laws within Title 5, 4602 protect students from discrimination based on sex,

physical or mental disability, national origin or race, and sexual orientation in any academic, extracurricular,
athletic, research, occupational training or other program or activity. It also protects students during the
admissions process and in obtaining financial aid.

3. State court cases or cases settled within your Circuit Court that have involved desegregation issues or other
student classification issues?

I was not able to come across a case regarding desegregation issues or other student classification issues

in Maine. Many searches left me with the requirement to log in to view case summaries if they were not cases that
were being references by sources other than court filing databases. This was very frustrating!

4. Does your state protect for sexual orientation?

Title 5, 4602.4 states that, on the basis of sexual orientation, it is discriminatory and unlawful for a

student to be denied the opportunity to participate in, or the benefits of, any academic, extracurricular, research,
occupational training or other program or activity, including equal opportunity of participation in athletic programs
based on sexual orientation. The Act also states that it is unlawful education discrimination to deny any person
admission to an institution or program or fail to provide equal access to information about an institution or
program, or to deny financial assistance availability and opportunity when it is based on a persons sexual
orientation. The protections within this act do not apply to any educational facility owned, controlled, or operated
by a bona fide religious corporation, association, or society.


PART V CHILDREN WITH EXCEPTIONALITIES

1. State statutes that provide guidelines for working with children of exceptionality including all disabilities as
identified in state law and gifted and talented, if addressed.

Maine must have policies, procedures, and effective implementation of practices that are aligned with

and support the implementation of the federal law, IDEA (Individuals with Disabilities Education Act). IDEA was put
in place to ensure that children with disabilities are identified for timely evaluation, and if it is determined that
they are eligible, they are provided with appropriate services in the lease restrictive environment. Part 4 of Maine
Statute 20-A pertains to Special Education Programs and contains laws consistent with IDEA regulations. Within
Part 4 are special education program general provisions (Chapter 301: 7001-7007), as well as protections required
for children with disabilities (Chapter 303: 7201-7302) and through the Maine Educational Center for the Deaf and

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Hard of Hearing and the Governor Baxter School for the Deaf (Chapter 304: 7401-7412), rules around such
programming in private and public schools (Chapter 305: 7501-7504), and statutes relevant to gifted and talented
programs (Chapter 311: 8101-8105).

The discipline of students with disabilities must be consistent with the federal requirements of Section

1415(k) of IDEA. Title 20-A, 1001.9-B states that school boards have the right to sanction a child with a disability
for misconduct that violates school rules. A suspension may be instituted for up to 10 days, individually or
cumulatively, and if the suspension is less than 10 days, there is no requirement to provide a tutor, transportation
or any other aspect of the student's special education program. 1001.9-D of Title 20-A states that parents are not
required to pay for professional services determined by the superintendent to be necessary to establish a
students readiness to return to school from an expulsion if the student has a disability, or if the school did not
have knowledge that the student had a disability prior to enforcing disciplinary measures.

2. Any state court cases or cases settled within your Circuit Court that impact the structure of special education
and its delivery in your state (there could be a plethora of cases so focus only on those that seem to have a big
impact)

School Union No. 37 v. United National Insurance Company (2010) held in the District Court of Maine, in

Bangor, demonstrates how insurance coverage and diligence can impact a districts special education expenditure.
A Maine school district won over $73,000 from its insurance carrier for attorneys fees incurred defending against
an Individuals with Disabilities Education Act (IDEA) due process case. Parents who were seeking to be
reimbursed for the expenses accrued by their sons private school brought the case to the First Appeals Court
where it was concluded that the IDEA remedy of reimbursement was within the insurance policys ambiguous
reference to monetary damages, and therefore was covered. IDEA remedies do not include awards of monetary
damages, but the court, relying on U.S. Supreme Court precedent, observed that reimbursement to parents is the
belated payment of expenses the district would have borne had it provided a free appropriate public education
(FAPE) to the student. The policy permitted other types of reimbursements and did not expressly exclude IDEA
claims.

3. HOUSSE standards for special education teachers

Special education teachers teaching multiple subjects must demonstrate competence in all the core

academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or
secondary school teacher who is not new to the profession, which may be assessed by a single, High Objective
Uniform State Standard (HOUSSE) evaluation. Maines HOUSSE rubrics are divided into three parts, one each for
elementary, middle school, and high school specialists. Each part evaluates and gathers details regarding a
teachers: college level coursework in the content area and content assessments; professional development

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activities related to the content; service to the content area; and presentations, and awards, recognition, and
scholarship in the content area.


PART VI STUDENTS RIGHTS

1. Students rights involving school attendance (compulsory age mandates), online K-12 education, oversight of
home schooling, charter schools, user fees, confidentiality of HIV, health concerns with attendance (e.g.,
vaccinations needed), student records, school curriculum requirements (testing, for instance), etc.

Maine law requires students who are 7 years old or older and under 17 years old to attend a public day

school during the time it is in session. This is noted in Title 20-A, 5001-A on compulsory attendance. In this same
section, exemptions to school attendance are outlined, as well as what constitutes an excusable absence, and what
adult responsibilities are around student attendance. If a student has completed the sixth grade and has the
equivalent of ten full days of unexcused absences, or seven consecutive school days of unexcused absences during
the school year, the student it considered truant. A truant student is also one who is at least seven years old, has
not completed the sixth grade and has the equivalent of seven full days of unexcused absences or five consecutive
days of unexcused absences during a school year. If a student is determined to be truant, procedures to be
followed by the school are outlined in Title 20-A, 5051-A, including written notices, referrals, and reports. Parents
have a civil duty to send their children to school. If a parent has control of a student who is truant, that parent is
primarily responsible for the truancy and is subject to a fine for committing a civil violation.

Acceptable alternatives to attending public day school are provided within paragraph (3). Home

instruction is allowable so long as it complies with subparagraph (4) that requires a written notice of intent to
home school by the parent(s), a notice of intention each year if the program will continue in combination with one
form of annual assessment of the student's academic progress (there are four options provided), and the intent to
reenroll the student in day school if the home schooling program ceases. Online educational programs are also
means to an education sought out by many Maine students. In order for an online program to be an appropriate
alternative, it must have gained the approval of the school department in consultation of the state board, and met
the requirements outlined in 19153 of Title 20-A.

Chapter 12 of Title 20-A provides the statutes on Public Charter Schools in Maine. The operation of

charter schools is outlined in section 2412 of Title 20-A and states that public charter schools are subject to all
federal laws and authorities, as well as local laws and the charter contract. Funding for charter schools is detailed
in section 2413 and section 2413-A of Title 20-A, stressing the requirement of an exact student count at each
charter school so that state allocated funds per student are granted to the appropriate school. Also provided
within the chapter are statutes regarding charter school proposals, applications, contracts, oversight, and roles.

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Subchapter 1 of Chapter 221 within Title 20-A provides Maines statutes on student records including the

dissemination of information, parental access to information, and student attendance records. When students
transfer from one school to another, their educational records must follow. The transfer of educational records is
regulated by 6001-B, of Title 20-A, and will be passed from school unit to another when the superintendent of the
receiving school has made a written request to the sending school. The exception to this is in regards to
confidential health records which includes those concerning a students HIV infection status and test results,
alcohol and other drug abuse treatment, health care and treatment, and/or mental health treatment. These
records will only be transferred when the superintendent of the sending school receives the authorization or
consent necessary for the dissemination such records.

Per Title 20-A, 6355, a students enrollment and attendance in a school may not be permitted without a

certification of immunization or immunity against each disease (as directed under 6354) unless there is written
assurance that the immunization ill be completed within 90 days, a medical exemption based on a notice that a
physician finds the vaccination medically inadvisable, or if there is a sincere philosophical or religious exemption
provided in writing by the students parent(s) or guardian(s).

Statutes in Maine regarding school curriculum are organized within Chapter 207-A of Title 20-A.

Elementary and junior high schools or middle school courses of study are within Subchapter 2, which state that the
basic courses of study must provide a foundation for students in English language arts, health education and
physical education, mathematics, science and technology, social studies, visual and performing arts, and world
languages. Secondary school curriculum regulations are within Subchapter 3. Essentially, a high school must
provide a comprehensive program of instruction for at least two years, and provide a structure so that students
have the opportunity to achieve the parameters of essential instruction and graduation requirements (4721).
Current standards that must be met by students in order to receive a diploma are laid out in 4722 and are
st

effective until July 1 , 2020. All students must satisfactorily complete four years of English, two years of social
studies and history (including American history, government, civics and personal finance), two years of math, two
years of science (including at least one year with a laboratory component), and one year of fine arts (which may
include art, music, forensics, or drama). In all cases, the curriculum must be within the parameters for essential
instruction and graduation requirements as required by 6209, which states that the state board must implement
a comprehensive, statewide system of learning results. Maine Learning Results for each of the eight content areas
are available for viewing from the Maine Department of Education site.

2. Any state statutes relating to students rights involving free speech (including a schools ability to censor),
confidentiality of records, dress code

Maine does not have a specific law referencing the freedom of speech given to students; however, as was

determined in Tinker v. Des Moines Independent Community School District (1968), students do not leave their
constitutional rights to freedom of speech or expression when they enter school, and thus, are protected by the

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First Amendment of the U.S. Constitution to Freedom of Speech. The Supreme Court indicated in the Tinker case
that courts should balance speech with the authority of the school, by applying the Tinker Test. The first two
questions test whether the conduct can be identified as speech. If either of the first two questions is answered
yes, then four additional questions must be asked. If any of the remaining questions are answered yes, the
students expression could be limited.

Tinker Test

(1) Does the conduct constitute expression at all?

(2) Is it meant to communicate an idea?
(3) Is the speech defamatory, obscene, vulgar or lewd?
(4) Did the speech cause disruption (cannot be based on fear of disturbance)?
(5) Is the schools rule (that caused the students speech to be curtailed) uniformly applied, or is there
evidence of viewpoint discrimination?
(6) Is the schools action related to legitimate pedagogical (meaning school or educational) concerns?

It is federal and state laws that govern the dissemination of education records and personally identifiable

information about students in public schools, private schools approved by the department, or receiving a home-
school education. The United States Family Educational Rights and Privacy Act of 1974 (FERPA) protects the privacy
of student education records and applies to all schools that receive federal funding. Through FERPA, parents have
certain rights to their childs education records until their child turns 18 or attends a school beyond the high school
level. In addition to FERPA, Individuals with Disabilities Education Act (IDEA) regulations provide additional
protections tailored to special confidentiality concerns for children with disabilities and their families. Public
agencies must inform parents of children with disabilities when information is no longer needed and, except for
certain permanent record information, that information must be destroyed at the request of the parents. FERPA
and IDEA Confidentiality Provisions can be referenced from the U.S. Department of Education.

School boards have the duty of as stated in Title 20-A, 1001.15 to adopt a student code of conduct,

identifying what an acceptable student behavior is and what the process for disciplining a violation of that code
would be. Student behavior, including student dress, is measured against such codes of conduct. Schools must be
mindful of students constitutional rights when addressing a dress code violation. Freedom of expression includes
student appearance, involving hair and dress, and warrants the use of the Tinker Test so long as students are
alleging that their right to free speech is being violated. If this is not the case, Courts will looks for reasonableness
of the schools grooming policy related to safety and order.

3. Discipline, research your states statute relating to suspension, expulsion and any other disciplinary measure
(like truancy or search and seizure, zero tolerance)

Title 20-A, 1001.15-A provides guidelines for schools when disciplining students in violation of the

student code of conduct. Positive and restorative interventions are encouraged to teach students prosocial

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alternatives to their behavior(s). Unless federal or state laws, rules or regulations require zero-tolerance practices,
schools are requested to avoid such practices.

If, however, a students behavior is in excessive violation of school conduct and the school is looking to

expel, following a proper investigation of the students behavior, a process must be followed with due process
provisions outlined in 1001.8-A. Before an expulsion hearing, a written notice must be sent to the parents
notifying them of the date, time, and location of the hearing; a description of the incident(s) that led to the
hearing; their right to review school records prior to the hearing; a description of the hearing process; and an
explanation of the consequences of an expulsion. At the hearing, the student may present and cross-examine
witnesses (all of whom must be sworn in by the chair of the hearing) and bring a legal representative. If a student
is expelled or suspended, per 1001.9, it may be a result of: disobedient or deliberately disorderly conduct;
infractions of violence; the possession of a firearm or dangerous weapon on school property; of the possession,
furnishing, or trafficking of illegal drugs. If it is determined at the hearing that the behavior is not likely to recur,
the student may be return to school following suspension. If a student is expelled, the school board can extend
that expulsion through the current school year, or for a specified period of time with a reentry plan that specified
conditions of re-admittance.

Article 1, Section 5 of the Maine Constitution protects students from unreasonable searches and seizures;

however, it is acceptable practice for schools to conduct searches if there is reasonable suspicion as was decided in
New Jersey v. T.L.O. (1985).

4. Any state court cases or cases settled within your Circuit Court that involved student rights such as freedom
of speech, dress, discipline including search and seizure?

Doran v. Contoocook Valley School District (2009) claimed that a dog sniffing lockers, backpacks and

around the New Hampshire school falls under the doctrine of public smells and is not considered an
unreasonable search when a mother claimed her son was wrongly searched and it was done in violation of his
Fourth Amendment rights. The mother lost the case. Had the dog sniffed the student, the act would have been
considered a search without reasonable suspicion.

5. Other items that were found

Article I of the Maine Constitution is a declaration of rights for the citizens of Maine. Sections of the article

that are frequently connected to consideration of students rights are: section 3, which provides religious freedom,
section 4, which provides freedom of speech and publication; section 5, which prohibits unreasonable searches;
and section 6, which identifies the rights of accused persons and their right to due process.

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PART VII TEACHERS RIGHTS

1. Tenure - how is it defined in your state? Do your non-tenure teachers have any due process rights?

Maine does not have tenure laws. Instead the state provides for a two-year probationary period for all

teachers, during which time school administrators are responsible to train and mentor new teachers. At the end of
the probationary period, if it is determined by the school administrators that the teachers are worthy of retention,
they are offered a contract for one or more years. If, however, it is determined that the new teachers are not
worthy of retention, those teachers do not receive a contract. Those teachers also have a right to due process. If
th

their notification of nonrenewal is not made before May 15 , the teacher may file a complaint with the
educational commissioner, who, upon finding that this notification was not done in by the appropriate time, will
require the school to pay forfeiture to the teacher. These provisions regarding the nomination and election of
teachers are identified in Title 20-A, 13201.

To protect the quality and consistency of student instruction, the law provides safeguards against

unwarranted dismissal of teachers. If a teachers contract is not to be renewed, the teacher must receive written
notification 6 months prior to non-renewal. Just cause for such dismissal or non-renewal may follow protocol in
accordance with Title 26, 964-A. When changes in local conditions warrant the elimination of the teaching
position for which the contract was made, the school board has the right to terminate a teachers contract, so long
as due notice of 90 days has been granted. The order of layoff and recall is a negotiable item in accordance with
the guidelines covered in Title 20-A, 13201. In any negotiated agreement, the criteria negotiated by the school
board and the bargaining agent to establish the order of layoff and recall must include the teacher's effectiveness
rating (as required by Title 20-A, 13703) as a factor and may also include, but may not be limited to, seniority.

2. State law on whistle-blowing?

The Maine Department of Labor offers protection to employees who report or refuse to commit illegal

acts through the Whistleblowers Protection Act (Title 5-B, 833). The law states that it is illegal for an employer to
dismiss, threaten, retaliate, or treat an employee differently because the employee: reported a violation of a state
or federal law; is a healthcare worker who reported a medical error; reported something that risked someones
health or safety; refused to do something that would endanger his/her life or someone elses life and asked the
employer to correct it; or have been involved in an investigation or hearing held by the government. The law
protects employees who have told their employer about a problem and allowed the employer reasonable time to
correct the problem, and employees who have good reason to believe their employer will not correct the problem.

3. Child abuse and neglect law

The Child and Family Services and Child Protections Act, Title 22, 4003, requires the healthy and safety of

children to be the highest concern, and even if a familys integrity may be jeopardized, the right of children to be

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protected from abuse and neglect is not to be ignored, which may require removal from the home and placement
in a foster home or institutional living. Maine law (Title 22, 4011-A) requires certain people to report suspected
child abuse, neglect, or exploitation. Among those mandated to report such cases are school teachers, guidance
counselors, nurses, social workers, psychologists, speech and occupational therapists, school resource officers, and
bus drivers. If the crime is being committed by a non-relative or a death is involved, the district attorneys office
must be notified. If a staff member is committing the crime, the head of the school or district must be notified and
from there, the district attorneys office shall be notified. In all cases, the Department of Health and Human
Services will be notified.

4. State textbook selection guidelines?

Title 20-A, 1001(10-A) grants school boards the duty of adopting a policy to govern the selection of

educational materials, such as textbooks, and the opportunity and expectation to approve such materials. Title 30-
A. 5724.6 states that a municipality may raise or appropriate funds for the purchase of secular textbooks which
have been approved by the school committee or board of directors for use in public schools in the municipality or
district and to loan those textbooks to student or to the parents of students attending nonpublic elementary and
secondary schools.

5. Are there specific statutes that relate to protections against employee discrimination (may be covered in
Module 4, but this is employee not student)

Article I of the Maine Constitution is a declaration of rights for the citizens of Maine. Section 6 of the

article provides teachers the right to due process, equal protection of the laws, and civil rights and the expectation
of non-discrimination. In addition to discrimination protections within the educational setting set forth in Title 5,
4602, Title 5, 4572 deems it unlawful for an employer to discriminate against any applicant for employment
because of race or color, sex, sexual orientation, physical or mental disability, religion, age, ancestry or national
origin. It also states that it is unlawful for an employer to discriminate against any qualified applicant with a
disability.

6. Any state court cases or cases settled within your Circuit Court involving teacher rights?

Barbara Wytrwal v. Saco School Board (1995) involved a former special education teacher who sued the

then-Superintendent of Schools, the Saco School Board, and the City of Saco for retaliatory nonrenewal of her
employment contract under the Civil Rights Act (42 U.S.C. 1983, the Maine Whistleblowers' Protection Act, (26
M.R.S.A. 833.1), and a common law theory of intentional infliction of emotional distress. Following a bench trial,
the district court denied all of the appellant's claims. The First Circuit Court of Appeals upheld the decision.

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PART VIII TERMS AND CONDITIONS OF EMPLOYMENT

1. Licensure/certification requirements for teachers and administrators.

Chapter 502 of Title 20-A provides all of the states regulations on the certification of educational

personnel, including the requirements to hold each type of teaching certificate; i.e. administrator certificate,
teacher endorsement, educational specialist certificate, middle level endorsement, adult education endorsement,
or career and technical endorsement. Teachers in any public elementary or secondary school or any private school
receiving basic approval under 2901 in Maine must be certified as mandated by Title 20-A, 13003. The only
exception to this rule is for approved private schools under 2901. The Maine Department of Education
Certification Office administers the rules of the State Board of Education relating to the issuing of credentials to
teachers employed in or under contract with public and approved private schools. Initial credentialing instructions
must be followed with specific requirements being met depending on the level of certificate being sought. For the
renewal of certification, the Certification Office will send applications automatically to teachers when their
certification is up for renewal.
2. Hiring and appointment laws/regulations.

Title 5, 4576 regards the expectation that there is gender equity in the hiring of school administrators.

3. What is cause for termination of a teacher?

Once again, the due process clause of the Fourteenth Amendment provides that no state may "deprive

any person of life, liberty, or property, without due process of law."

However, a certified teacher may be dismissed by a school board if after investigation, due notice of a hearing,
and a hearing it is determined that the teacher is unfit to teach or is unprofitable to the school. The teacher must
be provided a certificate of dismissal and the reasons for the dismissal. Title 5, 13202, mandates these policies.
Reasons for a teachers dismissal may include immoral conduct, incompetence, neglect of duty (as long as it can be
proved a duty exists), substantial noncompliance with school laws, conviction of a crime, insubordination and
fraud or misrepresentation.

4. Personnel evaluation and record-keeping.

Title 20-A, 13802 provides regulation for teacher and principal evaluation models. It is the State

Department of Education that will provide models with multiple measures for evaluation of professional
performance of teachers and principals employed within the state. School administrative units are also permitted
to develop and adopt their own models for teacher and principal evaluation. Each school administrative unit within
Maine must select and incorporate one or more of the models proposed by the state for the evaluation of the
professional performance of a teacher or principal.

Title 20-A, 13004.2 requires the department of education to keep transcripts, recommendations, and

other documents submitted for certification to maintain confidentiality except to school boards, superintendents,

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and the individual to whom they apply. 6101 regulates what information may be kept in a teachers personal file,
who maintains the file, and who has access to the file. Per 6102, an employee may review his/her personal file
maintained within his/her school where the files are kept and during school hours. These files may include, at
least, formal or informal evaluations and reports relating to the employee's character, credit, work habits,
compensation and benefits.

5. Union and collective bargaining regulations that could include delineation of the powers of teachers unions,
time-frame for the process, what can and cannot be negotiated.

Title 20-A, 1464 identifies the states expectations around collective bargaining. When school units are

merging to become one collective bargaining unit, the longest withstanding contract is honored unless mutually
agreed upon. If the contract is not mutually agreed upon, then a common expiration date must be created, which
will be determined by the longest contract. This date is when the collective bargaining unit is complete in its
formation. All contracts and wages will be honored.

Collective bargaining is used by employees to help negotiate contracts and usually begins when

employees join a union and elect representatives. Employees who are part of the collective bargaining process
must meet at reasonable times. If negotiations include monetary increases then the bargaining agent must serve
written notice requesting collective bargaining at least 120 days before the conclusion of the current fiscal
operating budget. In the Maine teachers can negotiate wages, hours, working conditions, and contract grievance
arbitration. Contracts cannot be negotiated for a lifespan greater than three years. Maine teachers cannot
negotiate educational policies, which cannot address wages, hours, working conditions, and contract grievance
arbitration.

6. Other items.

In the City of Biddeford Board of Education v. Biddeford Teachers Association (1973), the Maine Supreme

Court looked at which topics are suitable for inclusion in collective bargaining agreement and which are not (and
whats in between). The court determined that mandatory topics of negotiations include: attendance of teachers
when students are not present, non-teaching duties, and sick leave banks. The court determined the following
topics to be illegal to negotiation (and/or include in collective bargaining agreements): scheduling of school
vacations, beginning and ending of school year when students are involved; length of work day/work year; and
class size.

Statement of Academic Honesty: I have read and understand that plagiarism policy as outlined in the Student Plagiarism
and Academic Misconduct document relating to the Honesty/Cheating Policy. By attaching this statement to the title page
of my paper, I certify that the work submitted is my original work developed specifically for this course and to the MSED
program. If it is found that cheating and/or plagiarism did take place in the writing of this paper, I acknowledge the possible
consequences of the act/s, which could include expulsion from the University of New England.