Abstract and Keywords
To help their clients and to further the goal of “challeng[ing] social injustice,” all social work practitioners must be aware of students’ rights. Though school law is largely regulated by states, there are some overarching federal laws and Constitutional provisions that provide rights to all students. This article includes a review of the major federal laws and cases that affect students’ rights.
Keywords: student, school social work, education policy, FERPA, Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, Americans with Disabilities Act, First Amendment rights
To address social injustice and advocate for clients, some knowledge of students’ rights may be helpful for all social workers. Social workers have a variety of roles including therapist, administrator, legislator, and advocate. For those who function as therapists, many work in and with schools. It is important for these social workers to be aware of students’ rights. Depending on an administrator’s role, he or she may also need to be aware of students’ rights to better run his or her agency. Even social workers who do not directly work with schools or children may have clients who have children or may be attending school themselves. To help their clients and to further the goal of “challeng[ing] social injustice” (National Association of Social Workers, 2016), all social work practitioners must be aware of students’ rights.
Though school law is largely regulated by states, there are some overarching federal laws and constitutional provisions that provide rights to all students. Because it is impossible to provide an overview of the law in all 50 states, this section focuses primarily on student rights, which have been granted as a result of federal law. Law is often interpreted by the courts. The highest court in the United States is the Supreme Court, and its law is the supreme law of the land. In other words, it applies throughout the United States. Federal circuit courts are lower courts and each applies to a portion of the states in the United States. In this article, most of the court decisions that are included are Supreme Court decisions. In instances where there have been no Supreme Court decisions, there will be some discussion of lower court cases.
States may have provisions that provide further rights, and it is important for social workers and others who work with schools to further examine their own state’s laws. As a result of federal protections, students have some basic civil rights that are supposed to be protected in schools. These rights range from the right to some procedural due process when being suspended or expelled from school, the right to access student records, the separation of church and state, the students’ right to be free from unreasonable search and seizure at school, freedom of assembly, the right to have their documents kept confidential, and freedom of speech, to the rights of disabled students to receive a free, appropriate public education in the least restrictive environment. None of these rights are unlimited. This article provides an explanation of basic student rights as well as their limits based on existing federal law. There is also be an explanation of the importance of these rights for social workers. The article is divided into three sections: first amendment rights, disability rights, and other federal statutory protections. The section called “Other Federal Statutory Protections” includes a discussion on access to records (Federal Education Reporting and Privacy Act, 1974) and protections related to gender based discrimination (Title IX of the Education Amendments Act, 1972). Following the discussion of federal laws, there is a brief discussion of students’ right to consent to treatment. This is primarily governed by state law.
First Amendment Rights: Freedom of Speech, Religion, and Assembly
A student’s right to freedom of speech is not unlimited. Though students have the right to participate in political speech, they are not allowed to be “vulgar and offensive” (Bethel School District No. 43 v. Fraser, 1986). The right to engage in political speech was protected by the Supreme Court (Tinker v. Des Moines School District, 1969) in 1969, in a case where the Des Moines School District developed a policy after it learned that students were planning to wear arm bands to school in support of the anti-Vietnam War movement. The Supreme Court held that this behavior constituted a form of speech and was not disruptive to the schools and, as such, must be allowed. Other types of speech that violate school policy have not been protected. For example, when a student was suspended for making a “vulgar and offensive” speech (Bethel School District v. Fraser, 1986), the Supreme Court held that the punishment was indeed appropriate because the behavior had no value and was disruptive in nature. Students have also been limited from making speeches that were seen as condoning drug use in violation of school policy (Morse v. Frederick, 2007). In addition, school officials have been permitted to limit speech in school sponsored publications (Hazelwood v. Kuhlmeier, 1988) even if the type of speech might be considered political speech. Though this case did not overrule Tinker v. Des Moines (1969), several of the dissenting judges noted its inconsistency.
Based on the Supreme Court’s interpretation of freedom of speech in schools, a student’s right to freedom of speech is actually quite limited. If the student makes a public speech and the topic of the speech is political, current law would suggest that the student cannot be punished for the content of the speech. However, if the school has a requirement that the student allow the speech to be reviewed and approved by school personnel before making it, and if the student gives an unapproved version of the speech, it is quite likely that the student could be disciplined for violating the school’s rules or prevented from making a speech with unapproved political content. After all, if a school newspaper can limit the content of what students write, it seems likely that school governing bodies could limit the content of a student speech in a school sponsored event. Though students’ right to freedom of speech is limited, non-disruptive political speech is presumably still protected by the 1st Amendment.
Though social workers cannot practice law, they can raise the question about the appropriateness of the punishment if it interferes with a students’ right to free speech. In instances where students are working with social workers and have been disciplined for inappropriate speech, it may be worthwhile for a social worker to consult an attorney if he or she feels that a student’s constitutional rights have been violated. Realistically speaking, the family of the child or adult student being disciplined may not be able to afford an attorney. Social workers can help connect clients to not-for-profit legal services agencies that may provide pro bono representation (fee) or provide services to students on a sliding scale.
Religion in Schools
The issues relating to religion in schools come from two different 1st Amendment constitutional rights. The first constitutional right that has been addressed in relation to schools is the separation of church and state, and it applies solely to religious groups. The second constitutional right that affects religion in schools, freedom of assembly, applies to religious groups as well as to other types of groups seeking to meet on school grounds. Though on first glance, it might seem like there is a conflict between these two constitutional rights, the Supreme Court has decided otherwise.
Separation of church and state: The Establishment Clause of the 1st Amendment. Students have the right to be free from religious indoctrination in public schools during school hours. The Establishment Clause of the Constitution in the 1st Amendment states, “Congress shall make no laws respecting the establishment of religion.” This clause has been interpreted to limit the role that religion can play in public education. The first court cases dealing with religion in schools were heard in the 1940s. In McCollum v. Board of Education of District 71 (1948), the Supreme Court held that public schools could not provide religious instruction. In the 1960s, the Supreme Court held that prayer in schools, even non-denominational prayer, was prohibited because it amounted to government sponsorship of religion (Abington School District v. Schmepp & Murray v. Curtett, 1963; Engel v. Vitale, 1962; Lee v. Weisman, 1992). More recently, the Supreme Court has also held that pre-game prayer in school-sponsored athletic events is unconstitutional (Santa Fe Independent School District v. Doe, 2000). In other words, students have a right not to be exposed to prayer in schools. This may be particularly important for social workers, who are employed in schools to understand, as they may be in a position to help their administration become aware of and comply with the law.
Students who do not attend public schools are also granted certain rights with regard to religion. In 1968, in the case, Board of Education v. Allen, the Supreme Court held that the State of New York could loan textbooks at no cost to both public and private schools students. Even though the majority of private school students who were getting the texts were attending parochial school, the judges on the court held that this practice did not specifically preference them and therefore, did not violate the Establishment Clause. In the 1970s, as a response to a case in Rhode Island where the State was subsidizing teachers who were teaching public school courses in Catholic schools, the Supreme Court established a test to help determine if government activities violate the establishment clause (Lemon v. Kurtzman, 1971). The test requires that “the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; … [and] the statute must not foster an excessive entanglement with religion.” In Agostini v. Felton (1997), the Supreme Court held that sending public school teachers into religious schools to provide remediation to disadvantaged children did not entail “excessive entanglement with religion.” In other words, students who attend parochial schools may be entitled to some publicly funded educational services depending on state law. This was further upheld in Mitchell v. Helms (2000), which enabled private and parochial schools to use public educational benefits for non-religious purposes, and in Zelman v. Simmons-Harris (2002), which allowed the State of Ohio to provide vouchers to students to attend private and parochial schools. Taken together, the holding of these cases mean that economically disadvantaged students who are attending parochial schools may be entitled to some educational services at public expense and that state aid may be provided to parochial schools so long as the government is not technically supporting religion; that is, the state provision is neutrally applied to all students. In other words, states have great leeway in passing legislation to support the education of students in private schools as long as they are not explicitly supporting religious education or the teachers at religious schools.
Social workers who work with children and families should be aware of state law around the support of education. For example, some states provide publically funded bus service to private and parochial schools (New York State Department of Transportation, n.d.). Others provide vouchers that can help low income families who wish to educate their children in private or parochial schools access to these schools (Zelman v. Simmons-Harris, 2002). If providing services to such families, it is important to be aware of the state law and the ways in which it may be used to help families and children.
Freedom of Assembly
Though school sponsored events cannot involve prayer, student religious groups may meet in public schools after hours if other types of groups are allowed to use the space. Several cases have explored the rights of students to use school space for meetings. In 1984, the Equal Access Act (20 USC 4071-4074) was passed, which requires that schools receiving federal money, and that allow any student-led groups to meet on campus outside of school hours, must allow religious groups to meet. This law was upheld by the Supreme Court in 1990 (Westside Community Schools v. Mergens). Further, another case upheld the rights of community groups to use public school facilities after hours if secular groups are permitted to use the space (Good News Club, et. al. v. Milford Central School District, 2001).
School Discipline and Procedural Protections Before Suspensions and Expulsions
If a student is suspended or expelled from school, he or she has the right to some procedural protections. In the case of Goss v. Lopez (1975), many students were suspended from school as a result of major unrest in the Columbus Ohio public schools. Though the State of Ohio argued that this was not a federal issue, and Ohio law did not provide for a hearing for suspensions of up to 10 days, the Supreme Court found that education was a property right and thus protected by the 14th Amendments provision that “no state shall deprive any person of life, liberty, or property without due process of law.” The court held:
Due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his version. Generally, notice and hearing should precede the student’s removal from school, since the hearing may almost immediately follow the misconduct, but if prior notice and hearing are not feasible, as where the student’s presence endangers persons or property or threatens disruption of the academic process, thus justifying immediate removal from school, the necessary notice and hearing should follow as soon as practicable. (Goss v. Lopez, 419 U.S. 565, 419 U.S. 577–584)
This suggests that students who are suspended or expelled for more than 10 days would be entitled to a formal hearing. As a result, most school districts have policies that require students who are suspended or expelled for 10 or more days to be provided with hearings before school district personnel. If working with a family who is going through this process, it is important for the social worker to understand the policy in the child’s school district to help the family through the process.
According to federal law, states and local school districts may still engage in corporal punishment. However, thirty-one states have outlawed it (Anderson, 2015; Office of Civil Rights, 2012). In Ingraham v. Wright (1977), the use of corporal punishment in schools was upheld with the caveat that, to the extent that a student is injured, the teacher can be held criminally and civilly liable. The Supreme Court further held that when corporal punishment was being used, students must be given prior notice and afforded opportunity to be heard prior to the punishment, but that they need not be afforded a full hearing. Nineteen states still allow corporal punishment in schools. It is important for social workers to be aware of the law in their state and the limitations of the law. If children are injured, teachers can potentially be held liable (Ingraham v. Wright, 1977).
Unreasonable Search and Seizure
Student privacy rights in schools are also limited. The first case to address the privacy rights of students was New Jersey v. TLO (1985). In this case, a 14-year-old girl was found smoking cigarettes at school in violation of the school rules. The Assistant Principal took her purse and began to look through it, finding cigarettes, rolling papers, and documents that implicated her in dealing marijuana. She was reported to the police. At her juvenile court hearing, she claimed that the evidence that implicated her was unlawfully acquired because it was the result of an unreasonable search and seizure by a government official, the assistant principal. Though the Supreme Court held that searches by public school officials operate as representatives of the state and therefore, students should be afforded 14th Amendment protections, the Court held that the search of TLO’s purse was reasonable and therefore, the evidence could be used against her in juvenile court. The Court further held that school officials do not need a warrant nor probable cause to search a student’s belongings as long as they have a reasonable suspicion that the student is in violation of the school’s policy.
More recently, in Safford Unified School District v. April Reading (2009), April Reading, a student who was suspected of having-over the-counter pain relievers in her bags, had her bags and locker checked and was then asked to hold out her underpants, effectively being strip searched. The Supreme Court held that while a search of her bags may have been reasonable, since they had no reason to believe that she would be carrying painkillers in her underpants, the strip search was not reasonable. In other words, student searches must be reasonable. Nonetheless, the nurse, principal, and assistant principal were not held liable as a result of something called qualified immunity, which was afforded to them as a result of state law. In other words, the judge determined that their misunderstanding about the limits of a “reasonable” search were reasonable. State employees often receive qualified immunity for harm they cause as a result of their employment and cannot be liable unless it was demonstrated that they behaved unreasonably or out of line with the expectations for someone in the job (Alexander, 2003). This means that, though students have a right to be free from unreasonable search and seizure, teachers and administrators who violate the policy may not always be punished or disciplined if their behavior is perceived as a reasonable understanding of the law, which ultimately weakens the students’ rights.
Though without reasonable cause, students generally cannot be forced to participate in drug testing, schools and districts can develop policies that require drug testing for students who wish to participate in after school athletic activities and other school related extracurricular activities. In both Veronia School District v. Acton (1995) and Board of Education of Independent School District 92 of Pottawatomie County v. Lindsay Earls (2002), the Supreme Court held that a student’s privacy interest was diminished by their desire to participate in extracurricular activities, and further, the policy of mandatory urine tests for students was both “minimally intrusive” and presumed to be “an effective way to reduce drug use.” Therefore, mandatory urine tests for students wishing to participate in extracurricular activities are not considered unreasonable searches.
Special Education Law: The Rights of Students with Disabilities in Schools
Social workers often work with children who are identified or should be identified as children with disabilities in schools. As a result, it is important for social workers who work with families and children to be aware of the rights that children with disabilities have in schools. Being identified as a student with a disability may provide children with some additional protections, or “rights,” in their schools. In the next section, special education law is discussed.
Beginning with early education (prior to kindergarten), federal law provides children who have disabilities with the right to access educational services as well as the right to have their disabilities identified (Individuals with Disabilities Education Act, 2004; Section 504 of the Rehabilitation Act of 1973). People with disabilities continue to be afforded the right to access educational services without discrimination through college and into graduate school (Section 504 of the Americans with Disabilities Act, 1990).
Sec 504 of the Rehabilitation Act of 1973 was the first law to provide an affirmative right for people with disabilities to not experience discrimination in schools. Because this law extends to all organizations that receive federal dollars, it provides rights to people in all publically funded schools as well as colleges and universities that receive federal student loans or other federal money. It was followed by the Americans with Disabilities Act (ADA, 1990), which expanded upon the rights afforded under Section 504 of the Rehabilitation Act, and applies to almost all educational institutions, even those not receiving federal dollars. However, Section 307 of the ADA (1990) specifically excludes religious organizations and any entities run by religious organizations, including parochial schools, from compliance. Therefore, students with disabilities who attend schools that receive federal funding have a right to not experience discrimination based on their disability. This is not necessarily the case if a disabled child attends an educational institution run by religious organizations. However, as noted in the section above on the Establishment Clause, religious schools may be able to avail themselves of public money to help support the education of children with disabilities depending on state law.
The Individuals with Disabilities Education Act (IDEA, 2004) was originally passed as the Education for All Handicapped Children’s Act in 1975. It provides federal funding for the identification of disabilities as well as funding for early education, and it contributes to the funding of services for children with special needs in elementary and secondary education. It does not apply at the college or graduate school level. Part C applies to children ages 0–2, and Part B applies to children from ages 3–21 who are attending preschool, or elementary and secondary school.
A child may qualify as a child with a disability under the IDEA if he or she is found to have one of the following conditions: autism, deaf-blindness, deafness, emotional disturbance, hearing impairment, mental retardation, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, or a visual impairment including blindness. The classification, “other health impaired” includes something that results in “limited alertness with respect to the educational environment that (i) is due to a chronic or acute condition such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition … and (ii) adversely affects a child’s educational performance” [IDEA, 2004, 34 CFR 300(A)300.8(c)(9)]. A specific learning disability includes disorders that affect “one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, spell, or to do mathematical calculations” [IDEA, 2004, 34 CFR 300(A)300.8(c)(10)].
The IDEA requires states to provide children with disabilities with a “free, appropriate public education,” (FAPE) in the “least restrictive environment” possible. To ensure that children with disabilities receive the educational rights to which they are entitled, the IDEA has a number of requirements that states and school districts must follow. The first requirement is that states actively seek out and identify children with disabilities “including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services … and [states must develop] (ii) A practical method … to determine which children are currently receiving needed special education and related services” [IDEA, 2004, CFR 300.111 Part B (a)(1) (i–ii) Child Find)]. This provision is called Child Find and is done differently in each of the states, though each state must have a federally approved plan to identify children with disabilities. Parents may also request that their child be evaluated to determine if he or she is eligible for services. In general, an evaluation must be conducted within 60 days of the time that a parent requests it in writing and/or consents to have it done. Parents also have a right to request an independent educational evaluation if they disagree with the results of the evaluation conducted by their child’s school (IDEA, 2004).
As a result of the IDEA, students in elementary and secondary schools also have a right to receive a free, appropriate public education (FAPE). The limits to the term, FAPE, were largely defined in 1982 by the Supreme Court in Board of Education of Hendrick Hudson School District v. Rowley. In this case, the Supreme Court held that Amy Rowley, a deaf student, was not entitled to a sign interpreter because the majority of Supreme Court judges found that she was able to get enough of the course content from lip reading. The Judges held that a FAPE was one that was “reasonably calculated to enable a child to receive meaningful educational benefit” (pp. 206–207) and that Congress had not intended “the furnishing of every special education service necessary to maximize each handicapped child’s potential” (p.199). This definition gives parents the right to challenge a school district if the education they are providing is grossly inadequate but leaves significant leverage for the schools and districts to determine, essentially, what services are good enough. The term meaningful has been further interpreted by the circuit courts with differing guidelines (Palley, 2003). Some, finding it to mean “more than minimal achievement or passing the child from grade to grade” (Hall v. Vance, 4th Cir., 1985) (Polk v. Susquehanna Intermediate Unit 161, 3rd Cir., 1988), while another citing Rowley noted that “when a handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one of the important factors in determining educational benefit” (Rowley, p. 207, in Mrs. B. v. Milford Board of Education, 2nd Cir., 1997). The 2nd Circuit found that, despite clearly documented emotional problems, a student with superior academic performance was not entitled to special education services because his ability to progress academically precluded eligibility for special education services. In this case, the 2nd Circuit opinion further noted that the failure of IDEA and federal regulations to define “adverse effects of special education” basically left it to the states to determine what that meant (J.D. v. Pawlett School District, 2000). The 8th Circuit court found that “The statute only requires that a public school provide sufficient specialized services so that the student benefits from his education” (Fort Zumwalt School District v. Clynes, 1997, p. 612). In other words, students’ rights to receive a free, appropriate education vary based on the state and circuit court district in which they live. Though schools and school districts are required to provide all students with special needs with a free, appropriate public education, the interpretation of what that is varies among federal circuits and likely even within states. In no case does it include services designed to help a student reach his or her potential. It is incumbent upon social workers who work in or with schools to familiarize themselves with the limits of these rights for students within their state and districts.
Schools are required to provide any service that a student might need to ensure that he or she receives a FAPE with the exclusion of medical services. Medical services have basically been defined as services provided by a physician. In two different court cases, the Supreme Court Justices held that the nursing services that students needed for catheterization should be funded under the IDEA, since without those services students could not receive a FAPE (Irving v. Tatro, 1984, Cedar Rapids School District v. Garret F., 1999). In other words, if a student needs one-to-one nursing support to attend school, even if it is expensive, public schools are legally obligated to pay for that support. As a child’s advocate, it is helpful for a social worker to be aware of this right.
If a school district determines that a child is eligible for special education services, then an Individual Education Program (IEP) must be developed for the child. An IEP identifies a student’s needs as well as what services will be provided to the student, who will provide the services, how the services will be provided, how often the services will be provided, where the services will be provided, and the extent to which the services can be provided with non-disabled peers; and it establishes measurable goals to examine the effectiveness of the service delivery. It also identifies any accommodations that the student needs as well as any related services, such as speech-language pathology, social work, or physical therapy that a student might need to ensure that he or she is receiving a FAPE. Once a student is 16, their IEP must also include transition goals based on “age appropriate transition assessments related to training, education and employment; and where appropriate, independent living skills; and transition services needed to assist the child in reaching those goals” [34 CFR 300.320(b)(20 USC 1414(d)(1)(A)(i)(VIII)(aa) and (bb)].
Under the IDEA, children have a right to receive their education in the least restrictive environment. There is a general presumption in the law that all children should, if possible be educated in a regular classroom. However, there is no true consensus regarding how to determine when a regular classroom is not acceptable, and this issue has often been the source of litigation (Palley, 2004; Rome, 2013). Furthermore, the Supreme Court has never taken a case that would require the interpretation of this term. Therefore, there is tremendous variation between the circuits regarding what to consider in making the determination as to what constitutes the least restrictive environment (LRE). For example, the 6th and 9th circuits have both developed tests for determining if a child is being educated in the LRE, and the things that each circuit considers vary tremendously (Palley, 2004). In the 6th Circuit, there is a strong presumption that children should be educated with their non-disabled peers. “[I]n a case where the segregated facility is considered superior … [one must consider] whether the services that make the segregated setting superior could be feasibly provided in a nonsegregated setting. If they can, the placement in the segregated setting would be inappropriate under the Act” (Roncker v. Walter, 1983, p. 1065). In the 9th Circuit, on the other hand, the court established a four-part test to make the determination. This test requires schools to consider (a) the benefits in a regular education setting to those in a segregated setting, (b) the benefits a student receives from nonacademic interactions in a regular class setting, (c) the impact of the student’s presence on the other students in the regular education setting, and (d) the costs associated with the student’s placement (Sacremento v. Rachel, 1994). One noticeable difference between these two tests is that, in the 9th Circuit, the schools and districts can consider the cost of the student’s placement. Also, in the 9th Circuit, the decision about student placement must also carefully consider the education of other children in the class. This is not required in the 6th Circuit. Again, student rights’ vary depending on where the student resides. As a result, it is important for social workers working with children in schools to familiarize themselves with their local laws as well as the policies of the school districts where they or their clients live. They should also be aware of parent advocacy groups that they may be able to use to link up with parents who cannot afford to hire attorneys. Lastly, as noted earlier, social workers may refer clients to lawyers or legal services agencies when they feel that their clients’ rights may have been violated.
Discipline and Children with Disabilities
As noted earlier in the discussion of procedural rights, in Goss v. Lopez (1975), the Supreme Court majority opinion determined that all children have a right to notice and the opportunity to explain the situation when they are faced with a suspension of up to 10 days. The justices suggested that, in instances when children are suspended for more than 10 days or expelled, they may have greater procedural rights, though they left these rights somewhat vaguely defined. In 1997, the IDEA codified these rights for children with disabilities and noted that if a child with a disability was suspended or expelled for 10 or more days, they were entitled to a meeting to determine if the behavior that caused the suspension was a manifestation of the student’s disability.
In 1988, in the case of Honig v. Doe, the Supreme Court created something that is referred to as the “stay put” provision. This provision considered a suspension of 10 or more days to be a change in educational placement for a student with a disability and, as such, a parent could challenge the placement change, and the student placement could not be changed until after a hearing. In 1997, the IDEA was amended to note that if a student with a disability was suspended for 10 or more days, the school must hold a meeting, called a manifestation determination meeting, to determine if the behavior that caused the suspension was a manifestation of the student’s disability. They must also conduct a functional behavioral assessment to help make that determination and discuss it at the meeting. The 1997 IDEA also clarified that if a student with a disability was suspended for 10 or more days for any reason, the school district had to continue to provide educational services to the student outside of school. Unless provided by state law or school district policy, children who are not identified as students with disabilities are not necessarily entitled to continue to receive educational services under these circumstances. Again, it is important for social workers who are working in an advocacy role to be aware of the rights that a student may have, given that they vary depending on state law and school district policy.
In 1997, the IDEA added a provision that a student could be moved from his or her educational placement for 45 days if s(he) had brought a weapon or illegal drugs to school, and in 2004, that provision was expanded to include “or has inflicted seriously bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or LEA” (34 CFR 300.530(g)(1)–(3), 20USC 1415(k)(1)(g)(i)–(iii). In other words, if a student with a disability misbehaves, he or she cannot be suspended or expelled for more than 10 days without holding a meeting to determine if the misbehavior was related to the disability and if there is something else the school should be doing to address the student’s disabling condition. If the behavior was determined not to be a manifestation of the student’s disability, he or she may be disciplined in the same manner as any other student would be. However, if the student is violent, brings a weapon or drugs, the student can be moved from his or her educational placement for up to 45 days while this determination is being made. In no instance should the child be left without educational services for more than 10 days. If a student is not identified as a student with a disability, his or her placement may be changed, and he or she may be suspended or expelled as allowed by relevant state law or school district policy.
Other Federal Statutory Protections
Access to Student Records
Students have a right to access their own educational records, and their educational records cannot be shared with others unless there is a legitimate reason for the school to share them. The Federal Education Reporting and Privacy Act (FERPA, 1974) provides parents of minors (under 18) or adult students (those over 18) with the right to access and inspect their educational records. It applies to all educational institutions that receive federal funding either directly or through grants and to all students who attend such institutions. Therefore, it applies to public schools, charter schools, colleges, and universities. Parents or adult students can also request that the schools correct errors in student records. If a school declines to change the records because they disagree with the parents or adult student, the parents or student may request a hearing to determine the veracity of the records. Whether or not there is a hearing, families or students have the ability to add a statement of clarification to the record.
FERPA also requires that, in some circumstances, parents or eligible students provide written authorization before educational records are shared with other people or institutions. Educational records specifically exclude records in the sole possession of person who wrote them, records from school law enforcement personnel, records relating to school employees, and records of students 18 or older who are attending post-secondary schools and that are made by “a physician, a psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity; [or records] ii) made, maintained or used only in connection with treatment of the student; and (iii) disclosed only to individuals providing the treatment … treatment does not include remedial education” [FERPA, 20 USC 1232g(d); 34 CFR Part 99 Subpart A), 2016].
According to FERPA, student educational records can be shared with other school officials for many reasons, including any school official who has a legitimate educational interest in viewing the records, other schools when a student is transferring, state or federal officials who are auditing or evaluating the school, organizations conducting research on behalf of the school, for financial aid reasons, with accrediting organizations, to comply with a court or other judicial order, with appropriate officials in health and safety emergencies, and with the juvenile justice system if required by state law. This essentially means in most instances, where a student’s educational records are being shared for legitimate reasons, there is no need to get written consent from the parent/student. As a result, FERPA basically provides students and their legal guardians with access to their educational records. It does not really protect others from gaining such access unless they have no legitimate reason to do so. If FERPA is violated, neither the person whose rights were violated nor their legal guardians can sue based on the violation. However, they can file a complaint with the U.S. Department of Education, and educational institutions that are out of compliance with FERPA risk losing their federal money (FERPA, 1974).
Title IX of the Educational Amendments of 1972 to the Civil Rights Act of 1964 provides all students in educational settings that receive federal money from the Federal Department of Education with the right to be free from discrimination based on gender. This now explicitly includes pregnancy (Office of Civil Rights, 2015). All universities and colleges who receive federal money must not only have Title IX policies but must also have a Title IX officer. Part of this person’s job is to make faculty, staff, and students aware of their Title IX rights. Further, employees and students should be able to contact this person if they believe that they have been subjected to gender discrimination or sexual harassment. If someone, either a student or employee, believes that they have been a victim of such gender based discrimination, they can also file a complaint with the Office of Civil Rights, the agency designated to investigate and resolve such complaints. In 1979, the Supreme Court found that Title IX included an implied right to private action (Cannon v. University of Chicago, 441 US 677). This means that people who experience any gender-based discrimination have the right to sue. In the 1970s, this provision was used primarily to increase access to athletics for women in high schools and colleges (Mason & Younger, 2014). More recently, it has been used to address sexual harassment in schools. In 1992, the Supreme Court held that a student could sue and receive monetary damages as a result of sexual harassment by a teacher (Franklin v. Gwinnet County Publc Schools, 1992). They also found a school liable for an instance of student-on-student harassment when the school was aware of the harassment and the harassment was determined to be so severe that it interfered with a student’s learning environment. More recently, the Office of Civil Rights has investigated universities and colleges for covering up or not appropriately addressing sexual violence (Office of Civil Rights, 2014a). They have also clearly indicated that protection for transgender students is included in Title IX (Office of Civil Rights, 2014b).
In 2014, the U.S. Department of Education (2014b) issued guidance about Title IX. It states that Title IX protects all students from sexual violence and that an educational institution has an obligation to investigate if it becomes aware of the allegation of sexual violence, regardless of the gender of the perpetrator and/or victim, thereby specifically including transgender students. All institutions must develop procedures to determine how they will address allegations of sexual victimization. A recent example of a student complaint was filed with the OCR in 2014 (Department of Education Investigation of Township High School District 211, Palantine, Docket ILL 05-14-1055) by a transgender student in Illinois. The student had been discriminated against because she was forbidden to use the girls’ locker room despite her identity as a girl. In response to the complaint, the district installed privacy curtains in the girls’ locker room and required the girl to use the curtains in a manner that made use of the privacy curtains stigmatizing. When the district was threatened with the loss of federal funds, they agreed to provide the student with access to the girls’ locker room and to provide private changing stations for anyone seeking to use them. This sets some precedent as to how transgender students should be treated in schools. If a social worker was aware of the difficulty that a student was having as a result of his or her transgender status, the social worker could tell the student or his or her parents about their rights under Title IX and help the student advocate for changes in school policy.
Title IX rights can be incredibly important for students who have been either sexually victimized or who are struggling with discrimination as a result of their gender or sexual identity. Many of these people see social workers to help them deal with the challenges they face both internally and as a result of their environmental context. Making them aware of their rights under Title IX can provide them with an avenue to be empowered and the ability to limit the ways in which people can experience gender based discrimination.
Minors’ Rights to Access Health Care and Substance Abuse Treatment Without Parental Consent
In each state, there are laws that govern a minor’s ability to consent to health care treatment. According to the Health Insurance Portability and Accountability Act (HIPAA, 45 CFR 164.502(g)(3)(i), (1996), if a minor can legally consent to treatment based on state law, or if a legal guardian has agreed to confidentiality then, the minor’s rights to confidentiality of their medical records are protected in accordance with HIPAA. HIPAA requires that health records be kept confidential and may only be shared with the consent of the patient, other than to access insurance payments or to comply with applicable state and federal laws related to public health and safety.
State laws that provide minors with the ability to consent to treatment are based on either the status of the individual seeking treatment—do they live with their parents, are they married, pregnant, or parenting—or the condition for which they are seeking care. Based upon common law, a practice of relying on the decisions in previous cases, many courts recognize a concept referred to as a mature minor. Mature minors are allowed to consent to medical treatment based on the assumption that they are capable of informed consent and that they have consented to treatment. In addition, many states have passed laws that explicitly allow minors to consent to mental health services, alcohol and substance abuse treatment, and health care related to sexual activity such as contraceptive services, prenatal care, and STD-related care and services. According to a 2010 American Bar Association publication, 49 states have laws allowing certain minors to consent to alcohol and drug treatment, and 34 have laws that allow some minors to consent to some outpatient mental health services. In addition, all states have laws that allow minors to consent to treatment for sexually transmitted diseases (English, Bass, Boyle, & Estragh, 2010). It is important for social workers to become familiar with states laws if they are treating minors who may be able to consent to treatment for mental health care, may seek medical care related to sexual activity, or may wish to address substance abuse problems. As noted above, these laws vary widely between states.
Social workers have many roles. In their role as advocates, they need to be aware of their clients’ rights. As legislators and administrators, they may be in a position to develop and implement policies that require their understanding of students’ rights. As therapists, they may be able to better help and support their clients if they understand the benefits and limits of their rights in schools. As noted earlier, social workers who work with children and families, even if they do not work directly with schools, are often in a position where it is important for them to be aware of students’ rights. It is important for social workers to realize that, in some circumstances, their advocacy role may be limited because some types of advocacy may be seen as the unauthorized practice of law. If a social worker feels like this may be an issue, it is important to consult with an attorney and, when possible, refer clients to attorneys and be aware of publically funded legal resources that may be available to help their clients. Raising legitimate concerns, however, should not be construed as practicing law, and if familiar with students’ rights, this is certainly something that social workers can do.
Agostini v. Felton, 52 U.S. 203 (1997).Find this resource:
Alexander, R. (2003). Understanding legal concepts that influence social welfare policy and practice. Toronto, ON: Brooks/Cole.Find this resource:
Americans with Disabilities Act of 1990, Pub. L. No. 101–336, 104 Stat. 328 (1990).Find this resource:
Anderson, M. (2015, December). Where teachers are still allowed to spank students. The Atlantic.Find this resource:
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).Find this resource:
Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236 (1968).Find this resource:
Board of Ed. of Hendrick Hudson School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982).Find this resource:
Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822 (2002).Find this resource:
Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226 (1990).Find this resource:
Cannon v. University of Chicago, 441 US 677 (1979).Find this resource:
Cedar Rapids Community School Dist. v. Garrett F., 526 U.S. 66 (1999).Find this resource:
Department of Education investigation of Township High School District 211 (Palatine, IL), Docket 05-14-1055.Find this resource:
Engel v. Vitale, 370 U.S. 421 (1962).Find this resource:
English, A, Bass, L, Boyle, A.D. & Estragh, F. (2010). State Minor Consent Laws: A Summary (3rd Ed.) Chapel Hill, N.C.: Center for Adolescent Health and the Law.Find this resource:
Equal Access Act of 1984, 20 U.S.C. §§ 4071–4074.Find this resource:
Federal Education Reporting and Privacy Act of 1974, 20 U.S. C. § 1232g (1974).Find this resource:
Fort Zumwalt School District v. Clynes, 119 F. 3d 607 (8th Cir. 1997).Find this resource:
Franklin v. Gwinnet County Public Schools, 503 U.S. 60 (1992).Find this resource:
Good News Club v. Milford Central School, 533 U.S. 98 (2001).Find this resource:
Goss v. Lopez, 419 U.S. 565, 577–584 (1975).Find this resource:
Hall v. Vance County Bd. of Educ., 774 F.2d 629 (4th Cir. 1985).Find this resource:
Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988).Find this resource:
Honig v. Doe, 484 U.S. 305 1988.Find this resource:
Individuals with Disabilities Education Act, 20 USC §§ 1400–1487.Find this resource:
Individuals with Disabilities Education Act, 34 C.F.R §300.34 (2004).Find this resource:
Ingraham v. Wright, 430 U.S. 651 (1977).Find this resource:
Irving Independent School Dist. v. Tatro, 468 U.S. 883 (1984).Find this resource:
J.D. v. Pawlet School District, 224 F.3d 60 (2d Cir. 2000).Find this resource:
Lee v. Weisman, 505 U.S. 577 (1992).Find this resource:
Lemon v. Kurtzman, 403 U.S. 602 (1971).Find this resource:
Mason, M. A., & Younger, J. (2014). Title IX and pregnancy discrimination in higher education: The new frontier. N.Y.U. Review of Law and Social Change, 38(2), 209–245.Find this resource:
McCollum v. Board of Ed. of Dist. No. 71, Champaign Cty., 333 U.S. 203 (1948).Find this resource:
Mitchell v. Helms, 530 U.S. 793 (2000).Find this resource:
Morse v. Frederick, 551 U.S. 393 (2007).Find this resource:
Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1122 (2d Cir. 1997).Find this resource:
National Association of Social Workers. (2016). Code of Ethics of the National Association of Social Workers Code of Ethics.
New Jersey v. T.L.O., 469 U.S. 325 (1985).Find this resource:
New York State Department of Transportation (n.d.). Transportation for students enrolled in nonpublic schools.
Office of Civil Rights (2012). 2011–12 State and National Estimations. Civil Rights Data Collection.Find this resource:
Office of Civil Rights (2014a). U.S. Department of Education releases list of higher education institutions with open Title IX sexual violence investigations. U.S. Department of Education.
Office of Civil Rights (2014b). Questions and answers on Title IX and sexual violence. U.S. Department of Education.
Office of Civil Rights (2015). Title IX and sex discrimination. U.S. Department of Education.
Palley, E. (2003). The role of the courts in the development and implementation of the Individuals with Disabilities Education Act. Social Service Review, 77(4), 605–618.Find this resource:
Palley, E. (2004). Balancing student mental health and discipline: A case study of the IDEA. Social Service Review, 78(2), 243–266.Find this resource:
Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171 (3d Cir. 1988).Find this resource:
Rome, S. H. (2013). Social work and law: Judicial policy and forensic practice. Boston, MA: Pearson Education.Find this resource:
Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983).Find this resource:
Sacramento City Unified School District Board of Education v. Rachel H., 14 F.3d 1398 (9th Cir. 1994).Find this resource:
Safford Unified School Dist. #1 v. Redding, 557 U.S. 364 (2009).Find this resource:
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000).Find this resource:
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701.Find this resource:
School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963).Find this resource:
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).Find this resource:
Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–1688 (1972).Find this resource:
U.S. Department of Education. (2014).
Veronia School Dist. 47J v. Acton, 515 U.S. 646 (1995).Find this resource:
Zelman v. Simmons-Harris, 536 U.S. 639 (2002).Find this resource: