Education and Schools

It is a frightening and unfortunate truth that it is possible for children to be harmed while they are at school or while they are participating in a school related activity. A child may be injured while they are on a school field trip or while they are on the bus on their way home.

Other concerning issues that may arise in school include the school's failure to prevent bullying and failure to comply with applicable disability laws. As parents, it is vital to understand what rights an individual and their child has so that, if necessary, they may defend their child's rights to be educated in a safe school environment.

In addition, if an individual is employed by a school district, they may be required to sue that school district for a claim related to their employment. There are generally only a few circumstances in which an individual actually has the right to sue a school or school district.

When it comes to the rights an individual has as a parent against a public school or school district, different areas of law are involved, including:

• Administrative law;
• Civil law; and
• Criminal law.

Administrative laws are the laws that govern the activities of governmental agencies, including public schools. Under administrative laws, most agencies have a board, commission, or other type of tribunal that adjudicates matters. An administrative court is typically composed of experts in the particular field and it only adjudicates matters within the field by applying the agency's policies and rules.

Both civil and criminal laws are handled in a court and involve a judge presiding over the case or a jury hearing the case. These laws involve legal areas such as personal liability and criminal offenses.

In most cases, an individual will need to file a complaint against the responsible parties as well as exhaust all administrative avenues prior to filing a civil lawsuit. The requirements for filing such complaints vary by state. Certain states also require a notice of claims, which is a statement that identifies an individual's legal cause of action such as discrimination, or failure to prevent injury.

What Parties can be Sued at a School or School District?

The particular facts of an individual's case will determine the appropriate individual to sue. Almost any responsible entity or individual may be sued for a child's injuries, so long as there are grounds for a legal claim. Examples of individuals who have been sued in relation to a child's injuries include:

• Principals;
• Teachers;
• Coaches;
• School bus drivers; and
• Guidance counselors.

In addition to an individual, the school itself may be vicariously liable for the actions of its employees. Pursuant to vicarious liability laws, one individual or entity may be held liable for the actions of another individual. There is a separate and more complex process when claiming vicarious liability.

It is important to note that, as a governmental entity, a public school may be able to assert limited governmental immunity against a claim. These immunities vary by state. Government entities, including public schools, are granted immunity in order to protect them from claims that arise from situations that occur due to the nature of the entity's work.

The facts of each case are important in determining whether or not a school or school district will be granted immunity against a lawsuit. For example, if the facts show serious negligence or willful misconduct, that may be sufficient to defeat an immunity claim.

When Must You File Your Initial Complaint?

As noted above, an individual will usually be required to exhaust all administrative complaint processes with the school and school district prior to filing a lawsuit. One of the main reasons for this process is that many of the policies that apply to discipline, safety, bullying, and other issues are developed at the school district level.

According to school law, the deadlines for filing an administrative complaint vary by school district. Therefore, an individual will need to determine the deadline of their school district as soon as possible after an incident occurs.

In most cases, an investigation will follow once a complaint has been made. A large number of administrative complaints can be positively resolved without filing a lawsuit. If this is not possible, an individual may be required to pursue a formal lawsuit against the responsible parties.

Lawsuits against public schools are generally related to claims against the school for issues such as:

• Failure to comply with disability laws;
• The improper application of discipline; and
• Failing to protect a child against bullying by another student.

Can You Sue Regarding Special Education and Students with Disabilities?

Students who require special education and students with disabilities have certain rights in relation to schools. The Individuals with Disabilities Education Act (IDEA) provides that children who qualify and have a disability are entitled to a free and appropriate education.

Public schools are required to evaluate children to determine if they meet this qualification. Children who do meet the requirements are entitled to receive specialized services and instructions from their school. If the school fails to comply with IDEA, there is grounds for a complaint.

What if There has been a Violation Involving Student Discipline?

Appropriate student discipline usually includes:

• The refusal to permit a child to participate in a school sanctioned activity, which may include sports or clubs;
• Detention;
• In-school suspension;
• Out of school suspension; and
• Expulsion.

If an individual believes their child has been improperly or unfairly disciplined, they may file a complaint against the school and seek a reversal or erasure of the disciplinary action. Expulsion is a form of discipline that may be used when a student engages in behavior that the school board has determined in inappropriate, such as:

• The use of drugs or alcohol on campus;
• Fighting with another student; and
• Causing severe disruptions to the learning environment.

If an individual believes their child has been given an improper expulsion, they may file a lawsuit against the school and the school district for damages. They may also request an order reversing the action of expulsion and preventing that action from being recorded in the student's record.

The Fifth Amendment to the U.S. Constitution states that no person will be “deprived of life, liberty or property without due process of law.” The 5th Amendment is more famous for containing the right against self-incrimination in criminal proceedings. But it also contains the admonition concerning due process of law. Over the years, courts have determined that this phrase contains within it two precepts. One is that government, federal, state, local, and any agency of government, must operate within the confines of the law and the other is that governments must take actions only within a context of fair procedures. 

The Fourteenth Amendment to the U.S. Constitution is called the “Due Process Clause” and it contains the same words as the Fifth Amendment to the same effect. All levels of government and all agencies of government must operate within the law and make decisions through the use of fair procedures.

The exact definition of procedures that are fair has been the subject of some discussion, but generally governments should make decisions only after giving the affected person notice, an opportunity to be heard, the right to review all of the evidence, the right to cross-examine adverse witnesses, a decision based exclusively on the evidence presented, the opportunity to be represented by counsel, preparation of a record of evidence presented, and a written findings of fact and reasons for its decision. 

The point of requiring that governments provide due process when making decisions is to avoid government actions that are arbitrary and capricious. Procedural due process for students means that decisions affecting students in public educational institutions must include the same elements.

How Does Due Process Apply to Suspension or Expulsion in Schools?

Every student has the right to education and public education is an entitlement provided by agencies of local government. Whenever a student is deprived of his right to education through disciplinary actions such as suspension or expulsion, the student is entitled to due process. 

This right to due process includes the right to notice and a fair hearing prior to the administration of long-term suspension or expulsion. Most states have laws regarding school suspension as do local school districts.

Is Due Process Required Prior to an Afterschool Detention?

Whether full due process is required prior to an after-school detention may vary from state to state and school district to school district. After-school detention involves holding a student after dismissal has occurred for some period of time, usually quite brief. Full due process would probably not be required for after-school detention because it is not so significant as to require a formal hearing with evidence, findings of fact and a ruling. 

Nonetheless, a school would be well advised to inform the student clearly of the violation for which they are being detained. Then the school would certainly want to communicate with the parent about the detention, informing them of the reason and the nature of the detention. 

The school would want to know that the parent does not have any plan for the after-school period on any particular day that would make the detention inappropriate, e.g. a doctor's appointment. If the parent were to object, the school should certainly discuss the situation with the parent and perhaps agree on an alternative disciplinary move that is acceptable to all parties. And if the student would miss their transportation, e.g. the school bus ride home, then the school would need to provide acceptable alternative transportation.

What Rights Do I Have in a School Due Process Hearing?

Understanding the steps of due process in schools in the context of an expulsion or suspension would first require reviewing both the law of the state in which the school is located and then the regulations of the local school district within which the school operates. Both parties would want to conform to state and local rules regarding suspension and expulsion, assuming, of course, that they are fair, and that any rules regarding due process procedures are fair. For example, in Montgomery County Public Schools, a school district in Maryland, the district's rule limits out-of-school suspension to 10 days only.

If a long-term suspension is contemplated for a student, then usually the student is suspended temporarily until a due process hearing can be conducted. Local rules may determine for how long the student can be suspended before a formal hearing must be held. Usually it is a period of from 5 to 10 days but it could be as long as 30 days 

A basic level of due process should be provided before the temporary suspension, e.g. a meeting including the student, their parents and school administrators, in which the circumstances leading to the suspension and the need for ongoing suspension pending a full hearing are discussed. Of course, the student and their parents must be given an opportunity to be heard at this meeting

The first step in any full hearing has to include notice to the student and their parents of the time, date and place of a hearing. Notice would also include a statement of the rule or rules that were violated and exactly how the rule was violated by the student. All long-term suspensions and expulsions must be reviewed in a formal hearing. The elements of due process at the hearing should include the following: 

• A written notice of what specific rules were violated and how they were violated;
• Notice that the suspension/expulsion will be decided by an impartial, three-person panel;
• Notice to the effect that the student will have the opportunity to present evidence and witnesses on their own behalf;
• Notice that the student will be able to bring legal counsel or a non-attorney advocate;
• Notice that the he hearing will be closed to the public to protect the student's privacy;
• Notice that a written decision will be provided and when it will be provided.

Both sides to the dispute might want to be open to discussing alternatives to suspension or expulsion, e.g. reparation, community service, student participation in anger management counseling and the like.

The school would need to devise a plan that allowed the student to keep up with school work. This might be attendance at an alternative location or provision of assignments to the student by their regular teachers during the period of suspension. In any event, the school would want to take steps to ensure that the student is not deprived of their education during the suspension, especially if it is longer than a few days.

What Happens If I Am Denied My Right to Due Process?

If a school official or the board of education denies a student their right to due process in connection with a suspension or expulsion, the student can use this as a defense to a suspension or expulsion decision. A denial of due process procedures is grounds for the reversal of a suspension or expulsion decision of the board of education and for the student's immediate reinstatement to school.

An expelled or suspended student or their lawyer would review local school district rules and regulations regarding how to appeal a suspension/expulsion decision. A court will look to make sure the student exhausted administrative remedies before turning to the courts for relief. If local authorities cannot rectify the problem with respect to a failure to provide due process, then a student can seek relief in state court.

Is There Ever a Time When I Can Be Denied My Right to Due Process?

In an emergency situation, a student could be denied due process, but only temporarily. If the school believes that a student poses an immediate threat to themselves or others, the school staff can suspend the student immediately for up to ten days without giving the student a hearing. Of course, the school would want to communicate with parents about the problem and involve them in decision-making at the earliest possible opportunity.

Full due process procedures must be provided as soon as possible. Only in emergency situations can full due process be skipped following the application of discipline.

What Laws Govern Discrimination in a School Setting?

Discrimination in a school setting is prohibited by a variety of federal laws. Schools may not engage in “selective admissions”, which is the practice of denying admission to school based on a protected category such as:

• Gender
• Race
• National Origin
• Religious belief

They are also prohibited from providing preferential treatment on the basis of such categories.

The following are some examples of law that prohibit discrimination in education:

• Equal Educational Opportunities Act (EEOA) – which prohibits public schools from discriminating on the basis of race, color, or nationality.
• Title VI of the Civil Rights Act of 1964 – prohibits schools that receive public funding from discriminating on the basis of race or religious belief.
• Title IX of the Education Amendments of 1972 – bans discrimination on the basis of gender or sex.
• 14th Amendment of the Constitution – prohibits denying individuals the equal protections of the law.
• Disabilities Act (ADA) and the Rehabilitation Act of 1973 – prohibits discrimination based on disability.

Additionally, each state may have its own laws that provide protection against discrimination in addition to federal acts. Anti-discrimination laws also apply to employment and hiring. Violations of anti-discrimination laws are very serious and can result in severe legal consequences. 

Is There a Difference between Discrimination in Public vs. Private Schools?

Yes. Generally, federal anti-discrimination laws only apply to public schools or schools that receive federal funding. This means private schools are generally exempt from many federal discrimination laws.

Many private schools base admission on a theme, such as a religious belief or sex. For example, it would be ludicrous to require an all-girls Catholic school to admit a male student. If the private schools do not receive federal funding, then they might be allowed to exclude students who do not fit the school's targeted demographic.

However, private schools must sometimes still adhere to anti-discrimination laws when it comes to race and gender. Many jurisdictions are split with regards to a student's sexual orientation. Depending on where the private school is located, there may be certain exceptions to how these laws apply.

What Can I Do If I Have Been Discriminated against by a School?

If you feel that a federally-funded school has discriminated against you on the basis of your race, sex, national origin, or religion, then you may be entitled to relief. Below details how you may seek relief if you have been discriminated against:

1) File a report. Generally, this report should be filed with an administrative agency, such as the U.S. Department of Education. The Department of Education has a separate branch called the Office for Civil Rights (OCR), which handles discrimination claims.

When filing this report, consider making a detailed account of the incident. Be sure include key information such as:

• Dates
• Locations
• Persons involved
• Witnesses and their contact information.

The OCR will then conduct an investigation to determine whether any federal or state laws have been violated. They may prescribe a number of remedies, such as an injunction requiring the school to implement new anti-discrimination policies.

2) File a lawsuit. This will likely be the last resort.

• Public Schools: The offended party usually must “exhaust their remedies” through an administrative agency before they can file a lawsuit. This means that a lawsuit can only be filed after an investigation by the agency has proven unsuccessful.
• Private Schools: If the school is a private institution or does not receive federal funding, you may be able to file a lawsuit right away. However, seeking to redress your wrong outside of the courtroom may be a desirable approach.

Whether you are suing a public school or suing a private school, you will be required to prove that the school was aware of the discrimination but did nothing to prevent it.

Can I Sue for Bullying and Harassment Issues?

Bullying is generally defined as any intentional, aggressive behavior that is meant to threaten, frighten, or hurt another person. Specific to school bullying, this would include aggressive behavior that is meant to threaten, frighten, or hurt another student. Some specific examples of bullying in school would include:

• Waiting for a classmate to enter into a certain area in order to intimidate them;
• Using aggression or threats to steal money or belongings from another student;
• One student forcing another student to do homework or provide test answers for them; and
• Physically attacking another student.

It is important to note that school bullying can include various issues. This includes physical acts of violence, as well as mentally or emotionally abusive speech or written messages. It is common for bullying to occur from one student to another, but it is also common for several students to “gang up” on one selected victim.

Many adults incorrectly disregard bullying as a “natural” phase of adolescence that young people go through. However, bullying in schools has been taken more seriously lately, partially due to recent cases in which students have committed suicide after being bullied. Because of this, many states and local jurisdictions have begun enforcing anti-bullying statutes. School bullying laws are similar to workplace bullying laws.

All fifty states maintain some sort of anti-bullying statute, which can greatly differ from state to state. Some examples of school bullying laws at the federal level are:

• The Individuals with Disabilities Education Act (“IDEA”);
• Section 504 of the Rehabilitation Act of 1973; and
• Both Section 504 and Title II of the Americans with Disabilities Act.

School bullying involves conduct that may occur on school grounds as well as cyberbullying. Bullying may also be defined by each individual school but typically includes behavior that is meant to threaten, frighten, or otherwise injure another student.

If a complaint has been filed regarding a student bullying an individual's child and the school fails to take satisfactory action, the parents may be able to formally sue any party involved that is responsible for the bullying or for permitting the bullying to continue. Public schools are required to report to the proper authorities any instances of bullying or child abuse. They are also required to provide students with a learning environment that is free from bullying, harassment and other unsafe situations.

Who May Be Held Liable for School Bullying?

School officials, such as teachers and principals, have a responsibility to maintain a safe atmosphere for their students. If bullying occurs on school grounds, there are many different parties which may potentially be held liable, including:

• The bullying student;
• The bullying child's parents, especially if the parents approved or encouraged the abusive conduct; and/or
• The school itself, or school staff or officials, especially if they knew about the bullying but did nothing to stop or prevent it.

Generally speaking, it is the bullying student (or students) who may be held liable for cases of persistent bullying. This usually requires a school investigation into the incident or repeated incidents. Such an investigation may require testimony from other witnesses, such as fellow students, teachers, or yard attendants. School liability for student injuries is commonly difficult to prove, and can also involve lengthy investigations by school authorities, the police, and other persons.

In order for a school to be held responsible for a student's injuries, the injured student must prove that it was the school's failure to exercise reasonable care that caused the injury. In cases involving school bullying specifically, the bullied student must prove that it was the school's failure to intervene and stop the bullying that caused the bullied student to be injured.

In terms of remedies for bullying cases in schools, a monetary damages award can only be issued in cases in which the student suffered what is considered to be actual harm or losses due to the bullying. An example of this would be verifiable physical injury. Theft is often an aspect of bullying, such as when the bully forcefully steals money or personal items from the student being bullied.

It is important to further understand school liability for student injuries. This is because if a student is injured on school property, one of the most important factors which determines the possibility and amount of recovery is whether the school is public or private. State and federal institutions are protected by a doctrine called sovereign immunity. 

What this means is that in most cases, a person cannot sue a government institution unless the state has passed laws which allow for such lawsuits. So, if the bullying occurred at a public school, it is highly unlikely that the bullied student would be able to file a lawsuit against the school.

What Is Cyber Bullying? Can Schools Be Held Liable for Cyber Bullying?

Cyberbullying is becoming more common among school age children. Cyberbullying refers to a person using technology to threaten, intimidate, harm, or harass another person. This generally occurs through interactions over cell phones, such as texting, photo sharing, and other apps. 

Cyberbullying also happens on social media platforms or other interactive Internet sites. This specific type of bullying behavior is usually repetitive and persistent, and is of course damaging to the person being bullied.

Some common examples of cyberbullying actions are:

• Spreading rumors or lies;
• Posting or sharing disturbing, inappropriate, or offensive pictures of someone else without their consent;
• Threatening to hurt someone; and
• Stalking.

A specific example of cyberbullying would be flooding a person's social media with cruel remarks, intended to cause the person distress. Some states have held parents liable for their child’s cyberbullying. However, due to the relatively recent nature of cyberbullying, this is still a very unclear area of the law. 

It is important to note that cyberbullying can occur at any time, either at school or away from school. What this means is that even though students may be involved in cyberbullying against one another, it is difficult to hold a school liable for injuries or damages caused by cyberbullying. This is especially true for bullying that happens during off-school hours. The school generally has no control over the student's conduct online; and, generally speaking, they do not currently owe the students any duty to regulate online interactions. 

Alternatively, it could be possible to hold a school or school district liable for school bullying if there is an especially serious situation at hand. This is especially true if the school or school officials knew about possible dangers, but failed to investigate or take action.

Regardless of who may be held liable, parents should talk to their kids about cyberbullying so they are aware of the serious effects it can cause. Bullying results in long-term psychological damage to the victim, or the victim may take their life due to the harassment. As such, bullying has several serious consequences that are not always readily and immediately apparent.

Can School Bullying Lead to Criminal Charges? Are There Any Legal Consequences for Bullying in Schools?

It is not uncommon for school bullying to escalate from words or threats to violence or physical dangers. In such cases, the bullying can actually lead to criminal charges and consequences. Some examples of situations in which bullying would lead to criminal charges include:

• • The bullied student has suffered severe bodily injuries because of bullying conduct, especially repeated conduct such as battery incidents repeated weekly;

• • Major property loss or damage, such as a student's vehicle or home is severely damage in connection with bullying behavior; 

• • Situations involving harassment or stalking, especially cases that involve sexual harassment or sexual assault, as they are particularly dangerous and will generally lead to an in-depth criminal investigation; and/or 

• • Assault or battery situations in which the bullied student was severely outnumbered, or they were assaulted or battered by a student much bigger than them in size.

Laws against bullying in schools may prescribe legal consequences for bullying, either criminal or civil. Criminal consequences can include fines, as well as possible time in a juvenile facility for especially serious cases.  Bullying commonly involves violations of criminal laws, such as theft or assault, which would lead to criminal consequences. Penalties will depend on several factors, but mainly the seriousness of the injuries or property damage involved.

The bully could face a civil lawsuit as well, especially if the victim was seriously injured or had property taken from them. As previously mentioned, some instances of bullying also involve parental liability.

As the parties involved in most bullying cases are minors, legal consequences may involve alternative options such as mandatory community service, counseling, or summer behavioral programs. More serious crimes can result in felony penalties, which would come with higher fines and longer sentences. An attorney for school bullying can help determine a defense for the defendant, or ensure that the plaintiff receives some sort of justice.

Do I Need an Attorney for Help with Public School and School District Legal Issues?

Yes, it is essential to have the assistance of an experienced government attorney for any public school and school district legal issues you may face. It may be difficult to sue a school or school district, given the limited circumstances in which it is possible. In addition, most government entities have governmental immunity.

An attorney can review your case, determine what claims you may have, and represent you during any court proceedings, if necessary. It is important to note that most school districts have attorneys on staff to defend them against any lawsuits filed. Having an attorney on your side is the best way to fight for your children's rights while in school.