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Last updated on April 23, 2014 at 21:24 EDT

A CDC Review of School Laws and Policies Concerning Child and Adolescent Health

February 18, 2008

By Anonymous

Foreword Well-designed and effectively implemented school health policies and programs can improve students’ health-related behaviors and outcomes, as well as their educational outcomes. Health promotion programs in the school setting are guided and constrained by myriad federal, state, and local laws and policies. Knowledge and understanding of the legal and policy framework in which school health programs must operate are essential to efforts to maximize the impact of these programs on health and educational outcomes.

The Centers for Disease Control and Prevention is pleased to present A CDC Review of School Laws and Policies Concerning Child and Adolescent Health. This report is the first of its kind to describe the breadth of health-related laws and policies under which schools operate. The report is framed around the eight interactive components of a coordinated school health program: health education, physical education, health services, nutrition services, mental health and social services, healthy and safe school environment, health promotion for staff, and family and community involvement. Although it provides an overview of the legal context under which school health programs operate, it is not an exhaustive examination of all federal, state, and local laws and policies related to these programs. This report should inspire education and public health officials, together, to learn more about the laws and policies that might already be in place, while giving them a better understanding of how they can use laws and policies to improve the health, safety, and academic performance of young people in schools.

JANET L. COLLINS, PhD

Director

National Center for Chronic Disease Prevention and Health Promotion

Centers for Disease Control and Prevention

RICHARD A. GOODMAN, MD, JD, MPH

Codirector

Public Health Law Program

Centers for Disease Control and Prevention

ANTHONY D. MOULTON, PhD

Codirector

Public Health Law Program

Centers for Disease Control and Prevention

Acknowledgments

The Centers for Disease Control and Prevention’s (CDC) National Center for Chronic Disease Prevention and Health Promotion, Division of Adolescent and School Health, and the CDC’s Public Health Law Program, Office of Chief of Public Health Practice, would like to acknowledge the report authors and a host of important partners representing education and public health perspectives.

The following persons at the Centers for Law and the Public’s Health: A Collaborative at Johns Hopkins and Georgetown Universities researched and drafted this report: James G. Hodge, Jr., JD, LLM, Center Executive Director and Associate Professor, Johns Hopkins Bloomberg School of Public Health; Julie Samia Mair, JD, MPH, former Center Scholar and Assistant Scientist, Johns Hopkins Bloomberg School of Public Health; and Lance A. Gable, JD, MPH, Center Scholar and Assistant Professor of Law, Wayne State University School of Law. Additional Center colleagues deserve recognition: Jessica O’Connell, JD, MPH, Stephanie Calves, JD, MPH, Dhrubajyoti Bhattacharya, JD, MPH, Katerina Horska, and George Wakefield.

The following partners provided valuable comments and contributions on an initial outline and drafts of this report:

American Academy of Pediatrics

American Association for Health Education

American Association of School Administrators

American Nurses Foundation

American Public Health Association

American School Health Association

Association of Maternal and Child Health Programs

Association of State and Territorial Health Officials

Council of Chief State School Officers

Council of State Governments

Directors of Health Promotion and Education

National Alliance of State and Territorial AIDS Directors

National Assembly on School-Based Health Care

National Association of County and City Health Officials

National Association of School Nurses

National Association of State Boards of Education

National Coalition of STD Directors

National Conference of State Legislatures

National Environmental Health Association

National Middle School Association

National School Boards Association (including the Council of School Attorneys)

Society of State Directors of Health, Physical Education, and Recreation.

Many colleagues at the CDC also deserve recognition. They include staff from the National Center for Injury Prevention and Control; the National Immunization Program; the National Center on Birth Defects and Developmental Disabilities; National Center for Chronic Disease Prevention and Health Promotion; Office of General Counsel; National Center for Environmental Health; National Center for HIV, Hepatitis, STD and TB Prevention; Coordinating Center for Infectious Disease; and Office of the Chief Science Officer.

Executive Summary

Protecting the health and safety of children and adolescents in schools (defined for the purposes of this report to include public educational institutions for children and adolescents in grades K- 12) is an important part of any comprehensive education and public health plan. Through a coordinated school health program (CSHP) offering courses, services, policies, and programs designed to meet the health and safety needs of K-12 students, schools can “provide a critical facility in which many agencies might work together to maintain the well-being of young people.”1

Laws and policies are important tools that can be used to improve the health and safety of children and adolescents in schools. Although some laws and policies might set limitations on health programs, laws and policies can provide education and public health leaders with valuable tools to promote programs and strategies that foster an environment in which children and adolescents can thrive and learn. Other agencies (such as environmental, zoning, food safety, mental health, justice, and law enforcement agencies) also may have legal tools that can be used to promote the health and safety of children and adolescents in schools. To date, however, no one has systematically identified the full range of relevant legal authorities pertinent to schools that may help shape the health of children and adolescents.

This report attempts to fill that gap by giving educators and public health professionals new access to information on laws and policies (as of April 2007) concerning the health of children and adolescents in schools. It is intended to help practitioners and policymakers in public health and education at the federal, state, and local levels enhance their knowledge of relevant laws and policies. This report does not attempt to document or tabulate each of the many and varied laws of all states. Nor does it attempt to provide an indepth analysis of any particular federal, state, or local law or policy- Furthermore, the report does not recommend adoption of any particular law or policy or purport in any way to convey legal advice. Instead, the report provides an overview of the legal and policy landscape and should encourage readers to consider the potential for law and policy to contribute to students’ health and safety. This potential may be best realized through partnerships between public health agencies, schools, and other organizations with complementary goals and policies. The target audiences are those federal, state, and local public health and education practitioners and policymakers who are dedicated to advancing the well-being of children and adolescents in school settings. Although the information in this report provides a useful introduction, readers should also consult with legal counsel and other experts who have in-depth understanding of the legal tools and policies relevant to a given community, state, or other jurisdiction.

The framework for this legal review is based on the eight- component model of school health programs introduced in 1987 by Allensworth and Kolbe.2 This CSHP model has been embraced by state education agencies (SEAs) and local education agencies (LEAs) nationwide, supported by many national nongovernmental organizations that work in education and health, and championed by many as a means for advancing school health policies, instruction, and services for students and staff. CDC has advanced the implementation of this model through its funding to SEAs and uses the model’s eight components as an organizing framework for its school health guidelines, surveillance systems, and recommendations for promising practices.

A CSHP is a planned, organized, and comprehensive set of courses, services, policies, and programs designed to meet the health and safety needs of students in grades K-12 and of school staff. All the eight components contribute to the health and well-being of students and are present to some extent in most schools. A successful and well-coordinated school health program is characterized by administrators, teachers, other professional staff, and school board members who view health protection and promotion as an essential part of the school’s mission; a school health council composed of school, family, and community representatives to ensure a planning process for continuous health improvement; a school health coordinator responsible for organizing and managing the school health program; and school staff members who help plan and implement a full array of school health courses, services, policies, and programs.3 Each of the eight components of the CSHP model is described below:4 1. Health Education: A planned, sequential K-12 curriculum that addresses the physical, mental, emotional, and social dimensions of health. The curriculum is designed to motivate and assist students to maintain and improve their health, prevent disease, and reduce health-related risk behaviors. It allows students to develop and demonstrate increasingly sophisticated health-related knowledge, attitudes, skills, and practices. The comprehensive health education curriculum includes a variety of topics such as personal health, family health, community health, consumer health, environmental health, sexuality education, mental and emotional health, injury prevention and safety, nutrition, prevention and control of disease, and substance use and abuse. Qualified trained teachers provide health education.

2. Physical Education: A planned, sequential K-12 curriculum that provides cognitive content and learning experiences in a variety of activity areas such as basic movement skills; physical fitness; rhythms and dance; games; team, dual, and individual sports; tumbling and gymnastics; and aquatics. Quality physical education should promote, through a variety of planned physical activities, each student’s optimum physical, mental, emotional, and social development and should promote activities and sports that all students enjoy and can pursue throughout their lives. Qualified, trained teachers teach physical activity.

3. Health Services: Services provided for students to appraise, protect, and promote health. These services are designed to ensure access or referral to primary health care services or both, foster appropriate use of primary health care services, prevent and control communicable disease and other health problems, provide emergency care for illness or injury, promote and provide optimum sanitary conditions for a safe school facility and school environment, and provide educational and counseling opportunities for promoting and maintaining individual, family, and community health. Qualified professionals such as physicians, nurses, dentists, health educators, and other allied health personnel provide these services.

4. Nutrition Services: Access to a variety of nutritious and appealing meals that accommodate the health and nutrition needs of all students. School nutrition programs reflect the US Dietary Guidelines for Americans and other criteria to achieve nutrition integrity. The school nutrition services offer students a learning laboratory for classroom nutrition and health education and serve as a resource for linkages with nutrition-related community services. Qualified child nutrition professionals provide these services.

5. Mental Health and Social Services: Services provided to improve students’ mental, emotional, and social health. These services include individual and group assessments, interventions, and referrals. Organizational assessment and consultation skills of counselors and psychologists contribute not only to the health of the students but also to the health of the school environment. Professionals such as certified school counselors, psychologists, and social workers provide these services.

6. Healthy and Safe School Environment: The physical and aesthetic surroundings and the psychosocial climate and culture of the school. Factors that influence the physical environment include the school building and the area surrounding it, any biological or chemical agents that are detrimental to health, and physical conditions such as temperature, noise, and lighting. The psychological environment includes the physical, emotional, and social conditions that affect the well-being of students and staff.

7. Health Promotion for Staff: Opportunities for school staff to improve their health status through activities such as health assessments, health education, and health-related fitness activities. These opportunities encourage school staff to pursue a healthy lifestyle that contributes to their improved health status, improved morale, and a greater personal commitment to the school’s overall coordinated health program. This personal commitment often transfers into greater commitment to the health of students and creates positive role modeling. Health promotion activities have improved productivity, decreased absenteeism, and reduced health insurance costs.

8. Family and Community Involvement: An integrated school, parent, and community approach for enhancing the health and well- being of students. School health advisory councils, coalitions, and broadly based constituencies for school health can build support for school health program efforts. Schools actively solicit parent involvement and engage community resources and services to respond more effectively to the health-related needs of students.

The report begins with a brief overview of the role of laws in schools (see section II). The legal framework for education includes a complex network of federal, state, and local laws and regulations. Constitutional principles are central to this framework. They may affirm a right to education (at least at the state level) and other rights (eg, freedom of speech, bodily integrity, and informational privacy) that must be coupled with legitimate governmental interests in providing safe and healthy schools. Structural constitutional principles (eg, separation of powers and federalism) guide distributions of power among the three branches of government in the United States and define the roles of federal, state, and local governments in regulating education and its environment. Section II also briefly discusses key federal and state statutory laws concerning issues of discrimination, disability rights, privacy, and educational programs, as well as concepts of civil liability and immunity for the acts of governmental agents in school settings.

Building on this overview, section HI describes the legal framework for each component of the CSHP. Each section begins with a brief description of the core component. The intent of each section is to provide a review of how relevant laws and policies can influence the health of children and adolescents. Considerable detail may be provided for some key federal or state laws or programs. In other cases, summary statements of the effect of laws are set forth. As noted above, while specific examples of various state or local laws are featured in each section, comprehensive tables of laws are not included (though they may be referenced from other sources in the notes). Some sections feature discussions of findings from the School Health Policies and Programs Study 2006- which assessed school health policies and programs in grades K-12 at the state, district, and school levels5-or other relevant studies. Also, some portions of this report refer to data that predate the enactment of the federal No Child Left Behind Act (NCLB).

The subject matter contained within section III is diverse. Health Education (section III.A), for example, discusses legal requirements to provide health education to students, federal incentives that shape health education (eg, team nutrition networks, abstinence, and alcohol prevention education), and the role of National Health Education Standards. Physical Education and Activity (section III.B) addresses similar themes concerning physical education requirements, including the impart of the NCLB and the Carol M. White Physical Education Program (PEP). Legal requirements to provide health services to students are the focus of Health Services (section III.C). Testing, screening, and treatment for health conditions in schools are explored, as well as issues concerning parental and student consent requirements, the use of identifiable health data, and the financing of school health services under the law.

The focus of Nutrition Services (section III.D) is on the laws and policies underlying the provision of nutrition services to students in school. Federal, state, and local nutrition requirements are examined. Significant discussion centers on legal restrictions surrounding the sale and distribution of alternative foods (as part of school nutrition services), food and beverage advertising in schools, and zoning as a legal tool to limit student access to off- campus fast food. Mental Health and Social Services (section III.E) looks closely at the legal requirements to provide counseling, psychological, and social services to students, including standards for provision of such services by staff.

Healthy and Safe School Environment (section III.F) covers a wide range of laws and policies that govern schools. This section first discusses a series of tools for assessing a healthy school environment. It then explores health-related laws and policies that relate to the physical school environment (eg, asbestos, indoor radon, pesticides, lead contamination, unintentional injuries, and school bus and pedestrian safety). Additional areas of legal concern include violence in or around school grounds, substance abuse, and emergencies.

The role of law in protecting the health of school staff (eg, teachers, administrators, and custodians) is addressed in Health Promotion for Staff (section III.G). Testing, screening, and examinations of staff for health conditions related to their positions are driven by legal requirements. Also discussed are health promotion activities authorized or available for public school staff, such as wellness programs, Employee Assistance Programs (EAPs), and health insurance benefits. Finally, in Family and Community Involvement (section III.H), various legal requirements to facilitate family and community involvement in school health are presented. This includes a look at how school health councils and coalitions have led to greater opportunities for incorporating families and communities in setting school health policies. Many legal and policy themes emerge from this review, including the following:

* Integration of public health and education services. Multiple examples in law and policy documented in this report demonstrate the close ties between public health and education services in many jurisdictions. School authorities are routinely asked to assist in public health programs; public health officials are expected to protect the health of children in school environments. These respective requirements can lead to legal complications in some cases (eg, sharing identifiable health data in education records pursuant to Family Educational Rights and Privacy Art and the Health Insurance Portability and Accountability Art of 1996 Privacy Rule). However, they can also lead to tremendous opportunities for accomplishing significant improvements in child and adolescent health.

* Division of responsibilities. Despite many examples of attempts to integrate public health and education services through law and policy, there remains considerable division of responsibilities among many governmental and private sector entities for the health of children and adolescents in schools. In many cases, these divisions are furthered by laws or policies that assign to one entity (eg, the state public health authority or the local superintendent of schools) the primary task of accomplishing stated health goals. Assigning responsibility to one entity without a concomitant duty to work closely with other entities or persons, however, can lead to difficulties. When laws fail to reflect the need for accountability coupled with collaboration, improvements in child and adolescent health may not be fully realized. Laws at every level of government may be improved by specifically incorporating requirements for collaboration across multiple sectors. In support of local educational agencies’ efforts to develop enhanced emergency response and crisis management plans, the federal Safe and Drug- Free Schools and Communities Act, for example, requires that plans address coordination with local law enforcement, public safety, public health, and mental health agencies.

* National primacy. Federal laws and policies governing student health may take primacy over state and local laws; however, in the absence of federal laws or policies, opportunities exist for the development of state or local laws and policies that promote child health and academic achievement. In many ways, federal laws defer to state and local governmental discretion. For example, federal grant programs like the PEP are implemented through state or local laws that distribute resources consistent with state and local priorities. In this way, national health objectives can support efforts to protect and enhance students’ health.

* State and local innovation. State and local officials demonstrate in multiple ways their creativity in shaping legal and policy tools for better student health. Many state and local laws apply to areas of child and adolescent health in schools where federal laws or programs may not apply. Thus, for example, while the federal government does not attempt to regulate the placement of fast-food outlets near local schools, the City of Detroit has ordained that no such restaurants be located within 500 feet of an elementary school. Protecting children and adolescents from skin cancer is an important priority in California. This led the state to pass its “sun safety” bill requiring every school to allow the outdoor use of sun protective clothing or sunscreen during school without a physician’s note or prescription. Vermont features a legal provision requiring the construction of schools that can be used as emergency shelters. These and other examples demonstrate the capacity of state and local public health and education leaders to improve child and adolescent health through innovative laws focused on school populations or environments.

As illustrated through these legal themes, education and public health officials, their legal counsel, and partners from other relevant agencies (eg, environment, zoning, food safety, mental health, justice, and law enforcement agencies) can benefit from a greater understanding of the contribution laws and policies can make to improve health for children and adolescents in the school setting. Legal and policy tools may help refine schools’ role in protecting the health of children and adolescents in school environments, motivating them to choose healthy behaviors through policies that encourage improved health and safety, and safeguarding them from multifarious health threats.

I. INTRODUCTION

Protecting the health and safety of children and adolescents in schools (defined for the purposes of this report to include public educational institutions for children and adolescents in grades K- 12) is an important part of any comprehensive education and public health plan. Yet through a coordinated school health program (CSHP) offering courses, services, policies, and programs designed to meet the health and safety needs of K-12 students, schools can “provide a critical facility in which many agencies might work together to maintain the well-being of young people.”6

Laws and policies are important tools that can be used to improve the health and safety of children and adolescents in schools. Although some laws and policies might set limitations on health programs, laws and policies can provide education and public health leaders with valuable tools to promote programs and strategies that foster an environment where children and adolescents can thrive and learn. Other agencies (eg, environment, zoning, food safety, mental health, justice, and law enforcement agencies) also may have legal tools that can be used to promote the health and safety of children and adolescents in schools. The US Department of Education (ED) also serves a vital role by ensuring equal access to education and promoting educational excellence. Nonetheless, ED is precluded by statute to exercise direction, supervision, or control over schools and their curricula.7 Consequently, it is imperative to explore the various legal avenues through which state and local officials may achieve key policy objectives. To date, no one has systematically identified the full range of relevant legal authorities pertinent to schools that may help shape the health of children and adolescents.

This report attempts to fill that gap by providing information on laws and policies concerning the health of children and adolescents in schools. It is intended to help practitioners and policymakers in public health and education at the federal, state, and local levels enhance their knowledge of relevant laws and policies. This report does not attempt to document or tabulate the many and varied laws of all states. Nor does it attempt to provide an in-depth analysis of any particular federal, state, or local law or policy. Furthermore, the report does not recommend adoption of any particular law or policy or purport, in any way, to convey legal advice. Instead, the report provides an overview of the legal and policy landscape and should encourage readers to consider the potential for law and policy to contribute to students’ health and safety. This potential may be best realized through partnerships between public health agencies, schools, and other organizations with complementary goals and policies. The target audiences are those federal, state, and local public health and education practitioners and policymakers who are dedicated to advancing the well-being of children and adolescents in school settings. Although the information in this report provides a useful introduction, readers should consult with legal counsel and other experts who have in-depth understanding of the legal tools and policies relevant to a given community, state, or other jurisdiction.

The framework for this legal review is based on the eight- component model of school health programs that was introduced in 1987 by Allensworth and Kolbe.8 This CSHP model has been embraced by state and local education and health agencies nationwide, supported by many national nongovernmental organizations that work in education and health, and championed by many as a means for advancing school health policies, instruction, and services for students and staff.

A CSHP is a planned, organized, and comprehensive set of courses, services, policies, and programs designed to meet the health and safety needs of students in grades K-12 and school staff. All the eight components contribute to the health and well-being of students and exist to some extent in most schools. A successful and well- coordinated school health program is characterized by the presence of administrators, teachers, other professional staff, and school board members who view health protection and promotion as an essential part of the school’s mission; a school health council composed of school, family, and community representatives to ensure a planning process for continuous health improvement; a school health coordinator responsible for organizing and managing the school health program; and school staff members who help plan and implement a full array of school health courses, services, policies, and programs.9 CDC has advanced the implementation of this model through its funding to state education agencies (SEAs) and uses the model’s eight components as an organizing framework for its school health guidelines, surveillance systems, and recommendations for promising practices. These components are (1) health education, (2) physical education, (3) health services, (4) nutrition services, (5) mental health and social services, (6) healthy and safe school environment, (7) health promotion for staff, and (8) family and community involvement. This report begins with a brief overview of the role of law in schools (see section II). The legal framework for education includes a complex network of federal, state, and local laws and regulations. Constitutional principles are central to this framework. They may affirm a right to education (at least at the state level) and other rights (eg, freedom of speech, bodily integrity, and informational privacy) that must be coupled with legitimate governmental interests in providing safe and healthy schools. Structural constitutional principles (eg, separation of powers and federalism) govern distributions of power among the three branches of government in the United States and define the roles of federal, state, and local governments in regulating education and its environment. section II also briefly discusses key federal and state statutory laws concerning issues of discrimination, privacy, and educational programs, as well as concepts of civil liability and immunity for the arts of governmental agents in school settings.

This discussion helps provide the context for a review of policies and statutory, regulatory, and judicial laws at all levels of government within each of the eight components of a CSHP. Each section begins with a brief description of the component that helps frame the discussion of a host of relevant federal, state, and local laws. It then delves into how relevant laws influence the health of children and adolescents. Details of specific federal or state laws or programs may be provided. In other cases, summary statements of the effect of laws are set forth.

II. BRIEF OVERVIEW OF THE ROLE OF LAW IN SCHOOLS

Section II begins with an examination of the laws and policies at each level of government (federal, state, and local) concerning public education. It then reviews the limitations on state power to govern education, including a review of (1) religious influences on public schools, (2) constitutional limits on instructional programs, and (3) student privacy. A number of principles that limit school- based discrimination (eg, equal protection) are addressed thereafter, followed by a discussion of civil liability and immunity. Together, these subsections provide an overview of the role of law in schools and address a number of questions that arise in connection therewith, including: (1) What roles do federal, state, and local laws generally play in determining school policies? (2) What are the precise limits on state power to govern education, and what factors influence school programs and curriculum? and (3) What laws and legal principles limit potential school-based discrimination and afford protection to vulnerable children?

A. The Role of Federal, State, and Local Laws in Public Education

The nation’s educational system features a complex array of public, private, and religious entities that operate schools of varying design, grade levels, populations, and quality. Public schools are the predominant component of the US educational system. There are more than 96,000 public schools in the United States responsible for educating 48 million students annually.10 Eighty- eight percent of US school-aged children are enrolled in public schools.11 Among US children and adolescents in school, 98% are enrolled in schools that offer comprehensive educational programs and services. The remaining 2% attend alternative schools focusing on special or vocational education or other alternative programs.12 The nation’s children and adolescents, schoolteachers, and other staff collectively spend millions of hours in school settings each year involved in not only education but also extracurricular activities, special meetings, and other community events. Accordingly, the school setting and the laws and regulations governing the public education process have an important impart on child and adolescent health as well as the health of school staff. This section provides some important background about the role of law in the school environment as a pretext for the remainder of the report that looks closely at specific health-related laws and policies affecting public schools.

1. Federal Government

Although the right to education is explicitly provided in every state’s constitution,13 there is no explicit federally guaranteed right to education within the US Constitution.14 Federal constitutional protection of the right to education occurs through the application of the Fourteenth Amendment’s guarantees of due process and equal protection to ensure that state educational laws are applied fairly and without discrimination.

Historically, the federal government has been active in using its limited powers over educational policy to protect and advance the educational rights of children. Early participation of the federal government in the provision of public education involved the issuance of land grants to establish educational institutions during the late 18th and 19th centuries and requirements that states have educational provisions in their laws.15

Although the US Constitution does not specifically address education, it bestows on states the principal authority to regulate education. Under the Tenth Amendment, powers not delegated to the federal government by the Constitution are reserved to the states or the people. The Tenth Amendment and underlying principles of federalism (ie, dividing powers between a central government and political subdivisions) accordingly reserve to the states the power to establish, operate, and regulate systems of public education, provided that state actions do not violate any constitutional guarantees.16

The federal government collaborates with state and local governments to improve the public education system. Among its delegated powers via the Constitution, the federal government has the power to regulate interstate commerce,17 as well as to tax and spend.18 Education is considered fundamental to commerce among the states because of the importance of knowledge and literacy to the development of commercial activity and scientific advancement.19 Through its interstate commerce power, Congress may, for example, regulate the distribution of illicit drugs near schools in the interest of protecting children and adolescents.20 Federal power to regulate commerce is limited. It is consistently balanced against competing sovereign interests of states through principles of federalism and separation of powers. Several examples of this balance at work are discussed in section III.

Federal agencies, including ED, frequently use their spending power to influence or establish educational policies by conditioning the receipt of federal funds on the fulfillment of certain education policies.21 For example, the No Child Left Behind Act (NCLB) was passed in 2001 to reauthorize the federal Elementary and Secondary Education Art (ESEA) of 196522 and tie federal funds to the implementation of policies outlined in the ESEA. The purpose of the NCLB is to “ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and State academic assessments” by:

1. “Ensuring that high-quality academic assessments, accountability systems, teacher preparation and training, curriculum, and instructional materials are aligned with challenging State academic standards.

2. Meeting the educational needs of low-achieving children in high-poverty schools, limited English proficient children, migrant children, children with disabilities, Indian children, neglected or delinquent children, and young children in need of reading assistance.

3. Closing the achievement gap between high- and low-performing children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and advantaged peers.

4. Holding schools, local educational agencies, and states accountable for improving the academic achievement of all students.

5. Identifying and improving low-performing schools that have failed to provide a high-quality education to their students.

6. Distributing and targeting resources to make a difference in local educational agencies and schools where needs are greatest.

7. Improving and strengthening accountability, teaching, and learning by using state assessment systems designed to ensure that students are meeting challenging state academic achievement and content standards and increasing achievement overall, especially for disadvantaged students.

8. Providing greater decision-making authority and flexibility to schools and teachers in exchange for greater responsibility for student performance.

9. Providing children an enriched and accelerated educational program, including the use of schoolwide programs or additional services that increase the amount and quality of instructional time.

10. Promoting school-wide reform and ensuring the access of children to effective, scientifically based instructional strategies and challenging academic content.

11. Significantly elevating the quality of instruction by providing staff in participating schools with substantial opportunities for professional development.

12. Coordinating services with other educational services, and, where feasible, with other agencies providing services to youth, children, and families.

13. Affording parents substantial and meaningful opportunities to participate in their children’s education.”23

The NCLB requires each state to develop academic standards, establish a system for assessing whether those standards have been met, and implement a single, statewide accountability system to ensure that local educational agencies and public elementary and secondary schools make “adequate yearly progress.”24 States must develop academic standards for all public elementary and secondary students for mathematics, reading or language arts, and science. These subjects are emphasized as the primary means of determining the yearly performance of state and local educational agencies and their schools.25 Schools that fail to make adequate yearly progress are subjected to assistance and corrective action.26 For example, if a school fails to make adequate yearly progress for two consecutive years, parents may transfer children to another public school (or public charter school) that is performing at a higher level.27 To effectuate the NCLB, Congress grants funds to SEAs and LEAs. Receipt of these funds is contingent on the implementation of policies focused on improving literacy; educating migratory children; meeting the needs of neglected, delinquent, and at-risk youth; engaging in comprehensive school reform; establishing advanced placement programs; preventing adolescents from dropping out of school; and generally improving schools.28 The grant-making and accountability components of the NCLB are designed to bring about reform in schools in high-poverty areas and promote access to scientifically based and challenging instructional methods and content.29 The NCLB thus seeks to improve school performance by encouraging public schools to (1) adopt challenging academic content and achievement standards, (2) establish yearly progress objectives for all students,30 and (3) administer tests to measure the achievement of the educational goals and to make reports regarding the results.31 States do not have to accept the conditions attached to federal grants. In practice, however, federal funds are rarely turned down. Although the NCLB provides standards to improve overall school performance, it does not address a number of issues that affect the quality of education received by many children (see section III.C, infra, concerning Equal Protection and Other Principles Limiting School-Based Discrimination).

ED has principal responsibility for implementing federal educational policies and programs. It was formed with the intended purpose of supplementing the efforts of SEAs and LEAs to improve the quality of education.32 ED is also responsible for managing federal education funds to states and localities. It provides approximately $38 billion to states and school districts (mostly through formula- based grant programs).33 Through its Office of Elementary and Secondary Education, ED conducts independent research and evaluations to assess the quality of state-based education and to improve educational programs. It is also responsible for enforcing antidiscrimination protections and ensuring equal access to education.34

Other federal agencies also engage in activities affecting school environments. For example, the CDC, as part of the US Department of Health and Human Services (DHHS), assists states in the implementation and evaluation of school health programs designed to prevent health risks for children, adolescents, and young adults.35 The US Environmental Protection Agency’s (EPA) Healthy School Environments initiative focuses on preventing and resolving environmental health issues in schools. One of the EPA’s most important tasks in this regard is to provide school districts with resources to assess the physical condition of school buildings and other facilities.36 This includes assessments of chemical use and management, building design, construction and renovation, waste, water, safety and preparedness issues, and indoor and outdoor air quality.37 (See Section III.F for additional information.)

Other federal agencies also are involved in regulating various aspects of schools and public health. For example, the US Department of Agriculture (USDA) oversees the National School Lunch Program (NSLP) administered federally by the Food and Nutrition Service in cooperation with SEAs. Participating schools receive cash subsidies from the USDA for each meal they serve. The federal Office for Civil Rights implements a number of statutes, including Title VI of the Civil Rights Art that prohibits discrimination on the grounds of race, color, or national origin in denying the benefits afforded under any program receiving federal financial assistance from the ED. The US Department of Justice’s (DOJ) Office of Community Oriented Policing Services (COPS) has several schoolbased programs including COPS in Schools, SchoolBased Partnerships, and the Safe Schools Initiative. In fiscal year 2002, DOJ established the Secure Our Schools program to provide schools in more than 187 jurisdictions with $15 million to address the security needs of children and adolescents on school grounds. The Department of Defense manages schools on military bases domestically and overseas and the Department of the Interior manages a national education system for American Indian children and adults.

2. State Governments

The states’ powers to regulate public education emanate from their police powers and the doctrine of parens patriae reserved via the Tenth Amendment of the US Constitution. State police power is an essential component of state sovereignty. It is defined as the state’s power to art in the interest of protecting the health, safety, and general welfare of the populace.38 This includes the power to establish and operate educational systems.

Massachusetts was the first state to pass a compulsory education law in 1852. It required schooling for children ages 8-14 for at least 12 weeks per year. Many additional states followed suit in ensuing years with similar compulsory education laws.39 Implementation of these laws was initially difficult, given limitations on access to educational resources and social constraints. By the 1920s, compulsory education was generally accepted.40 Today, all states require children of specific ages (usually 6-16) to receive some form of educational instruction.41

The legal authority to compel school attendance is rooted in the common law doctrine of parens patriae. Under this doctrine, the state is considered a parent to all its citizens, especially vulnerable persons such as children and other wards of the state, and thus has a responsibility to provide for an individual’s welfare.42 Although parents have significant discretion regarding how they raise their children (consistent with constitutional principles of liberty), the doctrine of parens patriae allows the state to interfere to protect the welfare of children. State- sanctioned actions pursuant to the parens patriae power include compelling school attendance to provide for the education and social welfare of children.43

Specific state education regulations derive from multiple sources of law. First, all states establish the right to an education in their constitutions.44 Thus, state governments control considerable parts of public educational systems. State legislatures are responsible for establishing a system of uniform public education,45 including setting minimum curriculum and educational requirements for students.46 In this context, a curriculum constitutes a written course of study that generally describes students’ behavioral expectations and learning objectives for a particular subject area at a certain grade level.

State executive agencies also have significant powers (usually delegated via statute) concerning public education systems. Generally, state agencies (eg, state education departments or boards of education) are responsible for implementing relevant state laws and overseeing the administration of public education systems. All states have state school regulatory agencies and boards that regulate the conduct of education in the state through minimum accreditation standards by which local school districts must abide.47

3. Local Governments

Although state governments retain full and complete jurisdiction over the provision of public education, most states delegate certain powers over the regulation of schools to local school districts. All states have local school boards that are responsible for the administration of public schools.48 Nationwide, there are more than 14,500 local school districts.49 Generally, school board officials are either appointed by local government officials or elected by popular vote. School board members are limited in their ability to act independently, as decisions are typically made by generating or determining the consensus of the entire board.

The scope of power of local school boards varies from state to state depending on the extent of state delegation. In states with a deeply rooted tradition of local control over education, such as Colorado, local boards have more latitude in making pedagogical decisions about schools. In states with more centralized educational systems, such as Florida, local school boards are subject to state legislative directives regarding schools. Local school boards generally are permitted to act with some discretion within the limits of their delegated powers, which may include the ability to determine the specifics of the curriculum, raise revenue for the purpose of maintaining schools, and hire personnel.50 Localities may also administer related school services including the operation of a cafeteria,51 establishment of school health inspection departments,52 implementation of school athletic activities and sports teams, and provision of guidance counseling. Concerning curriculum, the state may set minimum standards regarding subjects to be taught; however, localities typically determine the instructional methods and materials.

B. Limitations on State Power to Govern Education

Although states generally have broad power to regulate schools, they exercise their power within certain limits. The US Constitution provides individuals with rights that cannot be abridged by state education requirements. For example, the First Amendment protects the free exercise of religion. The Fourteenth Amendment provides individuals with substantive and procedural due process protections. Furthermore, federal privacy laws restrict access to certain data about students. These and other restrictions set boundaries on states’ educational and school policies that influence student health. 1. Religious Influences on Public Schools

The state’s power to compel education is limited by the First and Fourteenth Amendments of the US Constitution. The First Amendment provides that “Congress shall make no law respecting an establishment of religion [the Establishment Clause] or prohibiting the free exercise thereof [the Free Exercise Clause].” The Establishment Clause primarily prohibits the government from taking action that advances religion. Thus, public schools may not teach religious doctrine. Conversely, the Free Exercise Clause focuses on governmental actions that dampen or infringe the practice of religion. State compulsory education laws, therefore, may not interfere with individuals’ rights to practice religious beliefs or rituals or parents’ abilities to determine the religious upbringing of their children.53 Inevitable trade-offs surface in governments’ attempts to respect religious freedoms without supporting specific religious beliefs. As discussed later, for example, schools must respect an individual’s choice to refrain from school vaccination requirements based on religious beliefs despite the potential impact on student health.

For public educational policy to withstand scrutiny under the Establishment Clause, the US Supreme Court held in 1971 in Lemon v Kurtzman that a policy must have a secular purpose, have a primary effect which neither advances nor impedes religion, and avoid excessive government entanglement with religion.54 Subsequent cases have marginalized these rules, seeking more general standards of neutrality toward religion.55 The Establishment Clause has been used to prohibit various religious activities in schools, including coerced prayer in the classroom56 and recitation of the Pledge of Allegiance.57 The NCLB imposes new administrative obligations on schools regarding prayer. To qualify for NCLB funding, local educational agencies must certify that they do not have any policies that prevent or deny participation in “constitutionally protected prayer in public elementary schools and secondary schools.”58

2. Constitutional Limits on Instructional Programs

Modern public school systems are built on a model of academic freedom that derives from recognizing institutional autonomy.59 States may determine appropriate subjects for the classroom, designate the grades (K-12) in which these subjects are taught, and use a textbook adoption process to decide which textbooks can be used by teachers in public schools. Local school boards may supplement the curriculum, provided that state minimum standards are met.60 Although some states and many districts determine the main course materials (curricula or textbooks), teachers retain significant latitude within the defined curriculum concerning their teaching methods, presentation of ideas, setting of course assignments, and selection of course materials. Yet, even within this academic model, statebased curricula are limited by federal and state constitutional guarantees.

The principle of substantive due process applies in public schools to protect the rights of students and their families and ensure fairness and justice in the education process. Constitutional due process norms regard the right to education as a fundamental component of an individual’s liberty interests, which entitles individuals to various protections from infringements of these rights under the Fourteenth Amendment (no state shall “deprive any person of life, liberty, or property, without due process of law”).61 In 2000, the US Supreme Court in Troxel v Granville reaffirmed that under the substantive due process clause, parents have a liberty interest in the “care, custody, and control of their children.”62 In its opinion, the Supreme Court cited two prior Supreme Court cases that addressed this right in the context of education.

In Meyer v Nebraska (1923), the Supreme Court found unconstitutional a Nebraska statute which made it a crime to teach a foreign language in schools until after eighth grade or to teach any subject in any language other than English, stating that parents had the power “to control the education of their own child.”63 In the second case, Pierce v Society of Sisters (1925), the Court invalidated an Oregon statute requiring parents to send their children (between the ages of 8 and 16) to public school or face criminal prosecution. The Court held that the law “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control”64 and thus allowed parents to send their children to private school.

Parents have argued to courts that Meyer and Pierce give them the right to decide what topics can be taught to their children in school. Courts have rejected this claim distinguishing between the right of parents to decide where to send their child to school and the right of schools to decide upon the actual curriculum. Parental freedoms do not encompass “a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children. … “65 For example, in one particularly strong decision, the Ninth Circuit Court of Appeals held that a parent’s right to control a child’s education “does not extend beyond the threshold of the school door.”66 This decision, which involved a specific challenge to a school’s health curriculum, provides strong support for school health education programs. Of course, instructional methods or materials that conflict with constitutional norms are not tolerated. Thus, a school system that condones discriminatory teachings related to protected classes (eg, ethnic or religious groups) may be required to change its curriculum to avoid unwarranted infringements of rights under the First Amendment establishment and free speech clauses and the Fourteenth Amendment due process (and equal protection) clauses.

Procedural due process safeguards protect public school students from unjust denials of access to public education. They include a plethora of procedural rights including proper notice of particular violations, opportunities to be heard, and potential hearing and appellate rights. For example, in the case of a student who has violated a code of conduct, the school must afford the student a hearing and give the student proper notice before proceeding with a suspension or an expulsion.67 Laws vary across the states concerning the precise requirements and procedures governing suspension and expulsion.

The First Amendment protects individuals’ interest in freedom of speech and religion. In doing so, it limits schools’ design and delivery of instructional curricula. For example, the Establishment and Free Exercise Clauses preclude states from barring public school instruction on certain issues because of an alleged conflict with religious views. Public schools cannot bar education on evolution68 or compel education on creationism69 for religious reasons. A 2005 federal court decision in Pennsylvania struck down a school board policy requiring teachers to make students aware of theories regarding the origin of life other than evolution and to read a statement specifically mentioning intelligent design as an alternate theory.70 The court held that the policy was unconstitutional under the Establishment Clause because the policy constituted an establishment of religion by endorsing intelligent design, which the court interpreted to be an extension of creationism.

In Hazelwood v Kuhlmeier,71 the US Supreme Court in 1988 held that a public school and its principal did not violate the First Amendment in directing a student newspaper to withhold two articles regarding students’ pregnancy experiences and the impact of divorce. The Court found that the newspaper was not a forum for public expression and that educators are entitled to exercise some control over school-sponsored publications, as long as controls are reasonably related to legitimate pedagogical concerns.

The First Amendment also protects freedom of speech in support of teachers’ academic freedoms of inquiry, research, teaching, and extramural utterances and actions.72 The classroom is a marketplace for the robust exchange of ideas. Students should be able to speak freely and open their minds to new and provocative ideas.73 However, school board decisions reflecting the “legitimate and substantial community interest in promoting respect for authority and traditional values, be they social, moral or political”74 may still result in censorship of some teachings. Provided school authorities do not engage in flagrant abuses of discretion in making determinations regarding instructional curricula, First Amendment protections are not infringed.

Although the principle of academic freedom is important in protecting students’ rights to learn and teachers’ educational practices, teachers are not permitted to transform the prescribed curriculum into something other than what the school intends it to be,75 especially in public schools where state and local school boards exercise a great deal of oversight over the curriculum. Public school teachers do not have broad latitude to teach outside the prescribed curriculum. For example, they may lack authority to assign texts from outside the standard curriculum or to choose their own classroom management techniques or pedagogical methods.76 Academic freedom does not protect a teacher from limitations imposed by school policy on the nature of biological and sexual education provided to students.77

3. Student Privacy

The educational process necessarily involves the collection of a great deal of student data, including information regarding students’ identities, test scores, grades, attendance, and extracurricular activities. During the course of providing health or special education services to students, schools also may collect health information (eg, personal health indicators and immunization records) about students. Described below are three federal laws that govern privacy protections of students’ personal information: the Family Educational Rights and Privacy Art (FERPA),78 the Health Insurance Portability and Accountability Art (HIPAA) Privacy Rule,79 and the Protection of Pupil Rights Amendment (PPRA).80 FERPA, which applies to any school receiving funds from an applicable ED program, recognizes the importance of the individual student’s and/or parent’s right to control access to or disclosure of her educational records. Protected educational records include any identifiable information directly related to the student that is maintained by the school. For minor students, educational records covered by the statute include health records maintained by the school. The statute conditions the receipt of federal educational funds on the adoption of policies that allow parents or students (once they have reached the age of 18 or have begun postsecondary education) the right to access the student’s own educational records and requires their consent prior to permitting disclosure of the records. Where a school employs an outside entity (eg, a clinic) to deliver health services, the health records will be covered under FERPA. Even if the clinic is not on school grounds, access to a student’s personal identifiable health information may be predicated on parental consent. Consent is not required, however, when the information is disclosed to individuals or entities including, but not limited to, (1) school officials with a legitimate educational interest, (2) other school districts pursuant to a student transfer, (3) the authorized representative of state educational authorities, (4) state or local authorities regarding financial aid, (5) an accrediting body,81 or (6) in emergencies, health information about a student to the appropriate persons to protect the health and safety of that student and other students and staff. Parents and students also have the right to request that the school corrects the records if they believe them to be inaccurate; if the school refuses to do so, the parent or student can request a formal hearing.

The HIPAA Privacy Rule represents the first national standard for health information privacy protections.82 It provides comprehensive privacy protections of identifiable health data for most individuals seeking health care or health insurance in the United States. It restricts the use and disclosure of protected health information (PHI) without the consent of the individual. The rule specifically applies to PHI used or disclosed by covered entities. Covered entities include health plans (eg, health insurance companies, managed care entities, and specified government health programs), health care clearinghouses (eg, billing services, repricing companies, or community health information systems that process health data), and health care providers (eg, doctors, hospitals, and clinics) that conduct certain administrative and financial transactions electronically.83

Schools that operate health centers (ie, schoolbased health centers [SBHCs]) that deliver health care services directly to students may be considered health care providers, or as engaging in “covered functions,” so as to implicate Privacy Rule protections for the resulting health data. Other health care providers who provide health services to students in schools may have to adhere to HIPAA Privacy Rule requirements. However, confusion may arise over whether FERPA applies to the health data as part of the student’s education record. The HIPAA Privacy Rule specifically excludes education records covered under FERPA from its protections. The distinguishing point is whether the health data produced are considered part of the student’s education record. If so, FERPA (and not HIPAA Privacy Rule) would apply. Many SBHCs may be considered distinct or detached from the educational institution. Health data arising from the provision of health care to students through these centers or other non-education-based providers would not be part of the student’s education record. As a result, the data may be protected via the HIPAA Privacy Rule.84

According to ED, PPRA applies to the programs and activities of an SEA, LEA, or other recipient of funds under any program funded by the department. It governs the administration to students of a survey, analysis, or evaluation that concerns one or more of the following eight protected areas:

1. Political affiliations or beliefs of the student or the student’s parent.

2. Mental or psychological problems of the student or the student’s family.

3. Sex behavior or attitudes.

4. Illegal, antisocial, self-incriminating, or demeaning behavior.

5. Critical appraisals of other individuals with whom respondents have close family relationships.

6. Legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers.

7. Religious practices, affiliations, or beliefs of the student or student’s parent.

8. Income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program).

PPRA also concerns marketing surveys and other areas of student privacy, parental access to information, and the administration of certain physical examinations to minors. The rights under PPRA transfer from the parents to a student who is 18 years old or an emancipated minor under state law.

LEAs must provide parents and eligible students effective notice of their rights under PPRA. The notice must explain that an LEA is required to obtain prior written consent from parents before students are required to submit to a survey that concerns one or more of the eight protected areas listed above if the survey