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Published in Print: June 11, 2003, as Law Update

Law Update

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Court Nixes Public School Rule For Administrators' Children

Public school educators who send their children to private schools are sometimes criticized for failing to show confidence in their school districts. But what happens when a district tries to enforce a policy requiring its administrators to enroll their children in public schools?

Such policies run smack into the constitutional right of parents to choose private education for their children, a federal appeals court has ruled.

Karen Jo Barrow was a classroom teacher in the 5,300-student Greenville, Texas, district in 1998 when she learned of an opening for a middle school assistant principal. She expressed interest in the opening, but the superintendent, Herman Smith, told her the district had a rule requiring that administrators' children attend public schools. Ms. Barrow refused to move her children from their private school and thus was not considered for the promotion.

She sued the superintendent and the school district in federal district court, arguing that the policy violated her constitutional rights to select a private and religious education and to direct the upbringing of her children. The district court ruled against her. But in a June 2 opinion, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit ruled unanimously for Ms. Barrow.

The New Orleans-based court held that there are well-established rights of parents to direct the upbringing of their children, as found by the U.S. Supreme Court in Meyer v. Nebraska (1923), and to choose a private education for them, as the high court held in Pierce v. Society of Sisters (1925).

The appellate court also noted past 5th Circuit cases that had rejected district requirements of public school enrollment even when employees had enrolled their children in private, all-white academies. In the Greenville case, the 5th Circuit panel said that "public school employees like Barrow have a protected right to educate their children in a private school."

The court said the superintendent "may be correct that the public tends to be more attuned to the personal educational decisions of the school district's administrative employees than of its other employees."

But Mr. Smith failed to present any evidence that private school attendance for Ms. Barrow's children would impair district operations, the court added.

Privacy in Drug Testing

The courts have devoted much attention to whether public schools have the authority to test students for drugs. Somewhat less consideration has been paid to the manner of conducting the tests.

A Pennsylvania couple recently challenged a drug test of their son based on how it was carried out. They alleged constitutional flaws in the way a school security officer coaxed their son into producing a urine sample by, among other actions, splashing water on his neck.

The case involved Chad Rinker, a student at Stroudsburg Area Junior High School who was suspected of possessing marijuana on his school bus in February 2001. The school is part of the 5,200-student Stroudsburg Area School District.

An assistant principal and the security officer, Charles Middaugh, searched Mr. Rinker's clothing, bookbag, and locker, but did not turn up any illegal drugs. The school nurse checked the boy's vital signs and said he looked "stoned," according to court documents.

The assistant principal then asked Mr. Rinker to provide a urine sample.

While the boy stood at a toilet, the security officer stood behind him. Mr. Rinker could not produce a sample. Mr. Middaugh then ran the faucets and splashed water on the student's neck, according to the family's lawsuit. The boy eventually produced a urine sample, which ended up testing negative for marijuana or any other drugs. In the meantime, Mr. Rinker was suspended for 10 days, and his parents enrolled him in a private school because the district threatened to expel him.

The boy's parents, Thomas and Michelle Rinker, sued the school district in U.S. District Court in Scranton, Pa. They alleged, among other complaints, that the school's way of collecting a urine sample from the student was unreasonable under the Fourth Amendment.

U.S. District Judge James M. Munley ruled on May 13 that there was nothing unreasonable about the school security officer's efforts to prod Mr. Rinker into producing a urine sample. Having the boy drink water and running the faucets were efforts "to speed the process along" and were not "highly intrusive," the judge said.

Splashing water on the boy's neck "was certainly unnecessary, but it does not rise to the level of a Fourth Amendment violation," Judge Munley added. "It did not intrude on the essential level of privacy found in a public bathroom."

The Bounds of Nepotism

When Kentucky lawmakers passed a wide-reaching education reform measure in 1990, a much- debated provision restricted nepotism in school districts. The view was that such hiring practices, particularly in small, rural districts, were a barrier to school improvement.

The Kentucky Supreme Court in 1992 upheld the provision, which bars a resident from serving on a school board if he or she has a relative employed by the district. Relatives, under the statute's definitions, include a father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law, or daughter-in-law.

A new challenge to the nepotism provision is making greater headway in the Kentucky state courts.

Greg Crutchfield was elected to the 2,163-student Garrard County district's board in 2000. But in 2001, the state sought his ouster under the nepotism provision because his uncle is a bus driver for the district.

Mr. Crutchfield attacked the law as a violation of the 14th Amendment's equal- protection clause because it covers aunts and uncles but not nephews and nieces. Both a state trial court and a panel of the Kentucky Court of Appeals accepted his arguments.

"We are unable to discern the rational basis for the difference in treatment or classification of aunt/uncle and niece/nephew," because such relations "are within the same degree of kinship," the court said in a May 30 opinion. The court severed aunts and uncles from the nepotism prohibition, meaning Mr. Crutchfield gets to stay on the school board.

—Mark Walsh

Vol. 22, Issue 40, Page 9

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