© Walsh Anderson 2012 - ACET

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© Walsh Anderson 2012 - ACET

HOW THE LAWYERS

TOOK OVER EDUCATION

Jim Walsh

PERSONAL REFLECTIONS

I attended Catholic school for 13 years—first

grade through first year of college.

Very little law applies to Catholic schools.

U.S. Constitution does not apply.

Catholic school is an institution based on TRUST—

not law.

We have learned that there are pros and cons to

trust-based institutions.

PUBLIC EDUCATION: THE EARLY, EARLY DAYS

In colonial days, private schooling was the norm.

Thomas Jefferson called for a system of public

schooling for 20 young boys who could not afford

private schooling.

He advocated this plan by saying that it would

enable them to “rake from the rubbish” 20

promising scholars.

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EDUCATION, MORALITY AND RELIGION

From the beginning in America, education was

considered a moral enterprise, designed to

inculcate virtue as well as academic achievement.

In the early days a “moral enterprise” was also a

religious enterprise.

Public schools were overtly Christian and

Protestant. So was America.

HORACE MANN

In the 19 th Century, public education became

compulsory.

The emphasis on morality continued. Horace

Mann called for school board members to be

“sentinels” who should ensure that every teacher

is “clothed in garments of virtue.”

DIVERSITY

In the late 19 th and early 20 th Centuries, America

got considerably more diverse.

Some groups (most notably, Catholics) set up their

own system of education.

But many others crowded into public schools.

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AND NOW….

Diversity has continued to increase exponentially.

The leadership of Texas public schools continues to

be overwhelmingly mainstream Christian in

religion, and conservative in values.

But the population is very diverse in religion and

values.

THE LAW COMES TO THE PARTY

The first school law case I read: West Virginia State

Board of Education v. Barnette (1943).

Court rules that school cannot require Jehovah’s

Witnesses to recite the Pledge of Allegiance.

The message: Freedom of speech and of religion

will sometimes trump widely held values.

SCHOOL PRAYER

• In 1962, the Supreme Court struck down a state

law requiring the recitation of a prayer written by

the NY Board of Regents.

• In 1963, the Court struck down a Pennsylvania

practice of reading from the Bible and reciting the

Lord’s Prayer over the P.A.

• The message: public school is not a Protestant

Christian institution to which others are invited.

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RELIGIOUS VALUES: MORAL VALUES

These cases made it clear that the Constitution

prohibits public schools from promoting religious

practices and beliefs.

They do not prohibit public schools from

promoting moral values and the beliefs and habits

that underlie those values.

DOWN WITH TRUST: UP WITH LAW

Tinker v. Des Moines—kids acquire 1st

Amendment rights in school.

New Jersey v. T.L.O.—kids acquire 4 th Amendment

rights in school.

Goss v. Lopez—kids acquire the right to due

process, 14 th Amendment rights in school.

The notion that educators can be trusted to do

the right thing slowly erodes.

HERE COMES THE JUDGE

When relationships are based on law rather than

trust, the legal profession is playing on its home

court.

There were no “school lawyers” in the 1950s.

Now we have the Council of School Attorneys, the

School Law Section of the State Bar and numerous

conferences and publications aimed at school

lawyers.

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SPECIAL ED

Our special ed laws epitomize the movement from

trust-based education to law-based education.

Every aspect of special education is constrained by

legal requirements, process and paperwork.

Schools are held accountable through a legal

system of dispute resolution.

WHAT WE NEED IS BALANCE

A system that is based entirely on trust will

facilitate abuse of that trust. It will work well for

some, but not for all.

A system that is based entirely on law will lead to

paralysis, conflict, and resources spent on legal

disputes rather than education.

We need a sensible balance.

BALANCE: A GOOD EXAMPLE

We used to have a trust-based system of

protecting kids from educators who would sexually

abuse them.

It didn’t work so well.

We’ve put some sensible laws in place.

Problems persist, but we have made progress.

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THE BIG CHALLENGE

How do we maintain the notion that education is a

MORAL enterprise without making it a

RELIGIOUS enterprise?

My modest suggestions for this are on the next

slide!

WHAT THE COURTS HAVE NOT SAID

Not a single court case has struck down a school

district’s efforts to inculcate positive values, healthy

habits and strong character for students. Not one.

Schools CAN cultivate virtue.

Virtue is a MORAL term—not a religious one.

WHAT ABOUT POLICY?

What do you think of this?

“The following major ethical principles form a

philosophical judgment and define the moral duties

and virtues implicit in ethical behavior. The District is

committed to the principles of:”

See Next Slide!!

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10 PRINCIPLES

Honesty

Promise keeping

Fairness

others

Respect for others

Pursuit of excellence

Integrity

Loyalty

Caring/concern for

Law abidance/civic duty

Accountability

Leander ISD Policy AE Local

IT STARTS WITH YOU

‣But if you want to cultivate virtue in the kids, you

have to demonstrate it yourself.

‣You should be “CLOTHED IN GARMENTS OF

VIRTUE.”

‣Horace Mann was right.

CONTACT

Jim Walsh

Walsh, Anderson, Gallegos, Green and Treviño, P.C.

P.O. Box 2156

Austin, Texas 78768

Phone: (512) 454-6864

Fax: (512) 467-9318

Email: jwalsh@wabsa.com

Web: www.WalshAnderson.com

Twitter: http://twitter.com/JWalshtxlawdawg

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The information in this handout was created by

Walsh, Anderson, Gallegos, Green and Treviño, P.C. It

is intended to be used for general information only

and is not to be considered specific legal advice. If

specific legal advice is sought, consult an attorney.

© Walsh Anderson 2012 8

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