The Legal Context of Nonpublic Schools

1. It is essential that school leaders be informed of the aspects of law applicable to nonpublic schools. It is also advisable for them to at least be aware of the structures of the law that relate to the public school operation as a reference point for the legal aspects of administering a nonpublic school. In general, to protect the resources of the institution, it is essential for institutional leaders to be aware of, and knowledgeable about, the law as it affects nonpublic schools.

2. The administrator of a nonpublic school must have knowledge of the responsibilities of the school to its clients, its employees, and to the public. Conversely, he/she also needs to be aware of the rights of the school as a legal entity.

3. The administrator of any school must know when to seek legal help. Sometimes it is a good idea for a school to have a specified attorney. Given the expense involved, it is not always necessary for an attorney to be on retainer, although this might be advisable for larger schools or school systems. Each school should at least have an attorney who is aware of the general operation of the school and who advises on various legal situations of the school. In such a case, it is important for the administrator of the school to know how to assist the attorney. Being aware of the various aspects of law can aid in this matter and result in the attorney doing the best work in support of the school.

4. It is frequently necessary for school administrators to practice preventive administration. In other words, they may need to take special care to keep from being sued or from being overly restricted by various regulatory agencies. Thus, the administrator can best protect the resources of the institution, which usually are quite limited.

5. A knowledge of school law can release an administrator’s defensive behavior and decrease fear of possible restrictive actions of state and local agencies. Administrators who are not knowledgeable about the law are susceptible to the frequent statement, "O you can’t do that. It’s against the law." Knowing what is and is not against the law and what is not restricted by statutory and agency requirements can provide a much greater level of flexibility in the administration of the local school and, thereby, make it more effective in achieving its educational goals.

 

Legal Organization of the School

1. Every nonpublic school should have a charter and constitution, or bylaws, which indicate both the ownership of the school (both real and personal property) and the mechanism for controlling the operation of the school.

2. Most schools have an operating board of several members. In some cases, these are self-perpetuating bodies; that is, when one person dies or resigns, the remaining members appoint a successor. In other cases, a larger constituent group appoints board members. Some boards have a specific term of office for members; in others the appointment is for life.

3. Every operating board should have officers with clearly delineated responsibilities. It is especially important to have a secretary who keeps careful minutes of the policies adopted and actions taken. The school administrator must act within the actions taken. Therefore, he/she should have copy of the minutes. The school administrator is frequently in the best position to ensure the safekeeping of board minutes. In some schools the administrator is a voting member of the board. In others, the administrator is not a member but functions as an assistant to the board.

4. There should be provision for dissolution of the school organization.

5. In many organizations, the governing body looks to the school administrator for leadership in the overall program of the institution. She/he can best give this leadership when knowledgeable regarding matters of control of the organization. It is, therefore, incumbent upon the school administration to be well acquainted with the charter or constitution of the school as well as state law which affects the organization and control of the school.

Compulsory School Attendance

1. Every administrator must know compulsory school-attendance law. An effective administrator will ensure that her school is in full compliance with the law.

2. Parents who wish to home-school their children sometimes request assistance and counsel from a nonpublic school. It may be advantageous to the school to cooperate with home-schooling parents as part of a marketing strategy, hoping the students will eventually enroll in school. Areas of cooperation between home schoolers and the school may include field trips, computer studies, music, and other activities. However, parents must still make their own arrangements with public officials to meet the state’s compulsory-attendance law.

3. When private schools cooperate with home-school parents by including their children in school activities, they need to be aware of the liabilities assumed by the school under the tort laws of the state. It may be necessary for the school to carry additional insurance to cover any accident or injury to such children.

Most administrators of nonpublic schools desire to maintain their independence from government agencies. Freedom for over-regulation by government is, to some degree, responsible for the success of nonpublic schools in providing a superior education at a cost considerably lower than public schools. However, it is well settled that the state has a right to regulate nonpublic schools if it so desires.

1. The school administrator should encourage the school’s governing board to develop a general philosophy regarding acceptance of financial and other aid from various levels of government. This can guide in policy development, which is used by the administrator to determine acceptance or rejection of a specific aid.

2. It is usually best to clarify the governing board’s philosophy and develop policy on this matter prior to considering a specific governmental program. This may remove some of the intensity from the discussion and result in more support for the resulting policy.

3. The administrator should have continuing contacts with state-level organizations of private schools, to exchange information on what types of aid and/or programs are available.

4. The administrator should also keep contact with the local educational agencies regarding aid that is available to the nonpublic school.

5. All programs of government assistance have certain restrictions. The school administrator must be knowledgeable of these restrictions and exercise great care to see that the school operates within them.

1. The school administrator is responsible for protecting all of the school’s assets, including its property. To best carry out his function, he must know what property the school owns and what conditions or restrictions apply to it. It may be necessary to have the school’s property surveyed to determine the exact boundaries. Vigilance is necessary to prevent encroachment by neighbors.

2. When property has been donated, the instrument transferring title should be reviewed to determine whether any conditions have been placed upon its use. When a school accepts donated property, its governing board must carefully review the conditions placed upon it to determine whether they are consistent with the long-range operation of the school. If the conditions are inconsistent with the objectives of the school, accepting the donated property might not be in the best interest of the school. For example, if donated property carries a condition that the school can accept only white boys, it may not be in the best interest of the school to accept it.

3. Zoning ordinances and building codes can be restrictive factors in building, enlarging, or remodeling school buildings. Before nay such projects are begun, an administrator should carefully research all such regulations. In remodeling old buildings, some municipalities require that the entire building be brought into compliance with the existing codes. Other factors to be considered may be regulation such as Persons with Disabilities Act.

4. In building a new school, it is wise to research all applicable regulations before even purchasing the land. Knowing the restrictions can save costly surprises at a later date.

5. All nonprofit organizations should have provisions within their charters for the distribution of real and personal property in the event of the dissolution of the corporation. Such provision allows the institution to decide who gets the property rather than relying upon the operation of the law.

1. The school administrator, as agent of the school, must be aware of the contractual obligations of the school. His/her actions can result in binding the school to contractual responsibilities.

2. It should be clearly stated as to who can act as agent of the school in matters of contract. All purchases should be made by purchase order, with an authorized signature. As far as is practical, vendors should be notified of this limitation.

3. As much as possible, all contacts should be in writing. This eliminates misunderstandings as to the terms involved. Copies should be kept in the school files.

4. While reasonable people may disagree as to what a substantial sum of money is or what is a long-term obligation, it is usually best to seek legal review of any contract involving either of these two situations.

1. The school administrator must know the specifics of any given contract as well as the genera employment policy of the organization.

2. The administrator must adhere to employment procedures in every detail. In both public and nonpublic schools, cases in which the courts rule against he schools in employment disputes often involve procedural errors by an administrator rather than substantive issues.

3. Employees must be made aware of all rules and regulations that affect their continued employment.

4. The administrator should do everything possible to help the employee comply with employment policies.

5. In any situation which might involve discipline or termination of an employee, the administrator should keep detailed documentation.

6. While employees in nonpublic schools do not have the constitutional right to due process, it is in the best interest of a school to provide at least the rudiments of fairness in procedures involving discipline.

1. The school catalogue and the application blank form the contract between the school and parent. The administrator must ensure that the school is able to provide all services it promises; there is a temptation to enhance the appearance of the school program for public relations purposes. This should be resisted.

2. Be sure the parents’ signature is on the application form. If the student is under 18 years of age, his/her signature is not sufficient to form a binding contract.

3. Few schools still contract for a full year’s tuition which requires full payment in case of a student’s expulsion or withdrawal before the end of the school term. Most schools will refund a proportion of the payment in such an event. The basis for a proportional payment must be clearly identified in the school bulletin.

Student Discipline

1. Rules and regulations for student behavior should be as specific as possible and made available to students and parents before school starts. A good policy would also be to ask parents to sign a form indicating that they have read, understanding, and accept the school’s disciplinary policies.

2. A school should have a procedure, preferably in writing, for dealing with student discipline. It should provide basic fairness to the student, such as allowing him to tell his side of the story.

3. The administrator should keep written records of disciplinary actions to document that basic fairness did prevail.

4. It is clearly the better practice in student discipline to prohibit corporal punishment in the nonpublic schools. If sound educational policy is insufficient to dissuade educators from engaging in corporal punishment, then perhaps the realization that civil and criminal penalties may arise out of such actions will dissuade them. Any school personnel who violate a school’s policy against corporal punishment may be individually liable.

Torts

1. The school should have a written policy regarding the supervision of children. That policy should include the number of adult supervisors required for each type of activity, whom they report to, and what they are responsible for. In addition, the administrator should post a schedule of specific supervisory responsibilities listing the adult name, place of supervision, and time period involved.

2. Someone must be assigned to supervise the supervisors. The administrator in charge makes sure that assigned personnel are present for duty, that substitutes are assigned to replace absent personnel, and that all policies are followed.

3. The school has a responsibility to maintain its facilities in a safe condition. To make sure this is so, the administrator should make a periodic inspection of the grounds, all buildings, and any equipment to which the children have access. A checklist record of such inspections might prove useful in case of charges of negligence.

4. Teachers and administrators have a duty to instruct students regarding safety on the school grounds. This includes warning of any safety hazards that exist, as well as afe behavior while at school. Safety rules such "Don’t run in the hallways" should be strictly enforced.

5. Instruction in proper use of equipment is essential. For hazardous equipment, such as power tools in shop classes, there should be a written record of safety instruction. Some schools require students to pass a written test before they can use power tools. Such a test provides good documentation that the school has carried out its duty.

6. Activities such as physical education require great care to prevent accidents. Proper instruction is essential. Students should not be allowed to participate in activities for which they are not prepared. For example, beginning gymnastics students should not attempt advanced maneuvers. A check sheet of skills provides good documentation of proper instruction.

7. Field trips are a special concern for the careful administrator. All trips should be well organized and carefully planned in advance. The rule of thumb for adult supervision is "more is better." It is usually best if parents provide a written consent for their child to go on an off-campus trip.

8. Transportation on field trips is sometimes a problem if a school does not own a bus. The best method is a school bus with a trained, licensed driver. If parents drive, the administrator must ascertain the safety record of the driver and the condition of the automobile. Many schools require drivers to carry the maximum liability insurance.

9. Good record keeping is essential. If an accident takes place at the school or a t a school sponsored event, any person involved should fill out an accident report as soon as possible. In addition, the administrator or person designated as safety coordinator should investigate the accident to determine the causes and what can be done to prevent a future occurrence.