this section were adapted from Dailor and Jacob (2010).3 3 For information about the history of the APA’s Division 16 and NASP, see Fagan and Wise (2007) and Song et al. (2019).
4 4 The 2020 Principles for Professional Ethics is available on NASP’s website (http://www.nasponline.org). The web version features bookmarks that make it possible to advance to a particular section by clicking on the relevant bookmark.
5 5 The web version of NASP’s ethics code and the print version have the same pagination.
6 6 A version of this list also appears in Jacob et al. (2021).
7 7 See the APA’s guidelines to assist psychologists in providing multiculturally competent services (2017a) and NASP’s research-based position statement on Safe and Supportive Schools for LGBTQ+ Youth (2017a).
8 8 As used by NASP (2017b), the acronym LGBTQ+ is intended to be inclusive of students of diverse sexual orientations, gender identities, and/or gender expressions.
9 9 Some material on decision making also appears in Jacob et al. (2021).
Chapter 2 LAW AND SCHOOL PSYCHOLOGY: AN INTRODUCTION
As noted in Chapter 1, codes of ethics are one source of quality control in the provision of school psychological services. This chapter explores two other mechanisms of quality assurance: public school law and the credentialing of school psychologists. We also further explore the legal implications of school-based practice. In this book, the term school-based practice means that the school psychologist is an employee of the schools, whether full-time, part-time, or on a per-case or consultative basis. In contrast, the term private practice refers to situations in which a school psychologist enters into an agreement with a client rather than an educational agency to provide services, and the fee for services is the responsibility of the client or their representative (NASP, 2020, Definition of Terms As Used in the Principles for Professional Ethics, p. 41).
In this chapter, the reader will learn that in the United States, state governments, rather than the federal government, have assumed the duty to educate children and the power to do so. This authority to educate children and ensure student safety is further delegated by state governments to school boards. When principals, teachers, and school psychologists employed by a school board make decisions in their official roles, such acts are seen as an extension of the authority of state government; in legal parlance, school-based practitioners are considered to be state actors (Russo, 2018; Wells, 2004).
In our discussions with school psychologists, we have found that the subtle but important differences between school-based practice and private practice (or employment in other nonschool settings) often are misunderstood. Under the U.S. Constitution and federal and state statutory law, students and their parents have many legal rights in our public schools. School-based practitioners, as state actors, must know and respect those legal rights. Furthermore, as employees of a school board, school-based practitioners have a legal obligation to protect all students from reasonably foreseeable risk of harm. This duty extends to all students, not just clients (Russo, 2018).
THE U.S. CONSTITUTION
The three basic sources of public school law are the U.S. Constitution, statutes and regulations, and case law. The U.S. Constitution is the supreme law of the land. All statutes enacted by the U.S. Congress, state and local governments, and even boards of education are subject to the provisions of the Constitution (Russo, 2018). The original Constitution outlined the duties and powers of the federal government. Concern that the Constitution provided the foundation for a federal government that was too powerful led to the passage in 1791 of 10 amendments to the Constitution, the Bill of Rights. The Bill of Rights was created to provide a more distinct balance of power between the federal government and the states and to safeguard the rights of individual citizens. The remaining amendments, 11th through 26th, were adopted between 1795 and 1971.
No fundamental right to an education is guaranteed to citizens in the Constitution; however, the right to a public school education falls within the penumbra of the Constitution (see San Antonio Independent School District v. Rodriguez, 1973). As will be seen, the Constitution has been the foundation for many decisions affecting public school education, including the right to equal educational opportunity, student rights in the school setting, and church–state–school relationships. Portions of the Constitution most pertinent to education law are shown in Exhibit 2.1. The 10th, 14th, First, and Fourth Amendments are discussed next.
Exhibit 2.1 The U.S. Constitution: Selected Amendments
Amendment 1
Freedom of Religion, Speech, and the Press; Rights of Assembly and Petition
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Amendment 4
Search and Arrest Warrants
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment 9
Powers Retained by the People
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment 10
Powers Retained by the States and the People
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Amendment 14
Civil Rights
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The
