Education

Education law refers to many different laws that apply to educational institutions. Many federal laws ensure nondiscrimination and assist disadvantaged students such as the Elementary Secondary Education Act ("No Child Left Behind Act"), the Individuals with Disabilities Education Act, Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and 42 U.S.C. § 1981. Despite the expansiveness of federal laws affecting education, most regulations affecting schools are governed by state law.

Special Education

The Individuals with Disabilities Education Act ("IDEA") is the primary means to assuring children with disabilities that they will receive academic and related services to help them obtain a meaningful education. IDEA provides critical services to children with disabilities from the time they are born to 21 years old. The key concept that IDEA seeks to guarantee disabled children is that they receive a "free appropriate public education." What is "appropriate" differs from child to child because every child is different, learns differently, and is affected differently by their different disabilities. The governing document that operates most like a contract between the school district/local service coordinator and the family is the Individualized Education Plan ("IEP" for ages 3-21) and the Individual Family Service Plan ("IFSP" for ages 0-2). Special education disputes typically involve whether a child is entitled to special education, what services should be provided, and whether the school is assuring that the student is receiving the agreed-upon services in the IEP.

Closely related to IDEA's protections is a Section 504 plan under the Rehabilitation Act of 1973. While a student is eligible for IDEA special education if the student has one (or more) of twelve different categories of disabilities , a Section 504 plan is broader in that it provides services to a student who suffers from any disability. The Rehabilitation Act is designed to protect discrimination against persons with disabilities at all stages of life, whereas IDEA protects only children with disabilities, thus a Section 504 plan has more resilience. Section 504 plans can provide many services similar to that of special education, but the procedural safeguard protections of IDEA do not apply such as that the plan does not have to be in writing, and no free independent educational evaluations. It is fairly common that an IEP will convert into a Section 504 plan if a child with disabilities matriculates into a post-secondary school since IDEA will not cover students in college.

A web browser search for topics concerning special education will quickly reveal that there are mountains of publicly available information about IDEA, children with disabilities, advocacy groups, and free public resources to parents and special education stakeholders. For parents of children with disabilities in Virginia who wish for introductory materials, our office would recommend contacting the Parent Educational Advocacy Training Center ("PEATC") as they are the state's current federally-approved Parent Training Information Center.

What there is not a lot of information about are attorneys who practice special education law. Many attorneys who become engaged in special education law do so because they were parents of children with disabilities, and learned special education law by necessity. Unfortunately, there are not a lot of attorneys interested in pursuing these cases on behalf of parents and their children due to parents being unable to afford legal services, and the fees that attorneys often obtain are not significant to justify a law office's overhead costs as other kinds of cases. One of the largest deterrences to an attorney taking on a special education case is that they require a lot of specialization commensurate to that of a medical malpractice case due to the individualized nature of every case. To effectively represent a family's interests, the attorney should learn the child's particular academic and functional abilities, the nature and particular effects of the child's disabilities on her development as a student, the familial and school environments, know the federal and state-based procedural safeguard rules unique to special education, and be able to litigate in the unusual venue where, in Virginia, an Impartial Hearing Officer ("IHO") initially decides the case instead of a court. (Other states, like New Jersey, use other dispute resolution processes such as administrative agency hearings that take place before judges who hear other kinds of cases.)

Most special education disputes should resolve with effective parental and non-attorney advocacy. Many special education non-attorney advocates do excellent work helping families represent their children's needs and recommended services to the local school district, usually through helping to draft letters and attend IEP meetings. However, although special education advocates are permitted to attend and participate in due process hearings , most advocates do not continue to represent families once a due process petition has been filed (the beginning of an official special education case) since disputes tend to operate much more like a court from that point forward. At a due process hearing, evidence is introduced, and educators, evaluators, parents, and even the special education student can be questioned and cross-examined. Because due process hearings are very important events, it is often recommended to hire an attorney if possible.

Our office is proud to assist families with their special education matters. We have prior experience litigating special education cases and have well-informed expert resources to help evaluate a child's IFSP or IEP. Our office strives to make our special education case fees affordable for most families, and will even pursue "reasonable attorney's fees" against a school district if the family wins the litigation so that the representation is free to the family.

Other Educational Institution Issues

Besides the uniqueness of Special Education, most education-related issues are related to traditional areas of law such as contracts and torts, or are otherwise governed by laws regulating discrimination and employment. An academic institution's relationship to the legal issue often plays a very important role, however, since many exceptions or other unique features of law apply to educational institutions such as the concept of "academic deference" in universities (certain education-related decisions should not be questioned by the courts), or how an elementary school's status as a governmental entity can provide protections from lawsuits.

Employment in Education

As elementary and secondary school teachers and other educational specialists are expected to know more, do more, and do it with less time, their employers are also pressured to keep budgets in check against an ever-increasing student body, and show satisfactory test results as required by federal and state standardized testing requirements with resources that remain stagnant or even decrease. Being a teacher is intense work, and between Virginia's lack of tenure and weak teacher unions , a teacher does not have much power to challenge their school district's employment decisions. Although teachers are already overburdened with innumerable responsibilities, it is important to document issues that they find are restricting their ability to fulfill their job duties if there is any concern that the school may be considering termination, and seek out an attorney (or contact the teacher's union if a member) if the school has already provided a written, negative performance review.

Whether academic employment is in an elementary, secondary, or post-secondary school, teachers and other staff members are protected from discriminatory practices based on race, gender, religion, national origin, age, disability, and sexual orientation. Even First Amendment free speech rights are greatly protected, especially in universities. Although private schools may have more control over the content of speech, and even selection of staff and students based on religion, beliefs, and disability, there certainly are limitations to this selection depending on the nature of the school's funding and its bases for discrimination.

School Disciplinary Issues and Student Rights.

All schools have some form of policies and procedures that govern student conduct. Although the vast majority of student conduct violations result in minor repercussions such as revoked in-school privileges, or detentions beyond regular academic hours, some allegations concern matters of student safety or criminal activity, which invoke harsher remedies such as suspension or expulsion. Academic, social, and financial consequences grow more severe the older the student is and with the higher level of the academic institution since the student becomes more interconnected with larger social communities, and must maintain a good reputation as she takes on more responsibilities as an adult. Accordingly, school disciplinary proceedings can be very important.

A student faced with suspension or expulsion faces a life-changing event. Research shows that students suspended in high school are significantly more likely not to complete high school, and disengage from other activities that will help them to achieve lifetime goals. Minority groups and children with disabilities are disproportionately suspended or expelled, and are more likely to become involved with the juvenile or criminal justice system. Too often, disciplinary proceedings are the result of zero-tolerance policies that are unreasonable, and can violate a student's due process rights under the U.S. Constitution, or a disabled child's rights under Special Education law.

While it is critical for schools to maintain discipline and enforce rules for the protection of their students' safety and welfare, there are constant national reminders of school overreaction to nonviolent and harmless conduct. Recent examples such as Los Angeles shutting down its entire public school system in response to a vague and amateurish threat , and the arrest of Ahmed Mohamed for bringing to school a homemade clock that looked like a bomb to a teacher (ignoring the family's incredible lawsuit demand) demonstrate how schools err on the side of safety beyond what is reasonable under the circumstances.

Students in elementary and secondary school generally have reduced rights, but they nevertheless have some basic constitutional rights such as to be free of searches and seizures of their person without reasonable suspicion (the school has to articulate some basis that the student has something illegal or violative of the student code of conduct on his person), and free of suspensions or expulsions without due process. Students also have free speech rights to be permitted to express their opinions through appropriate use of speech or expressive attire so long as it is not disruptive and reasonable in relation to the school's code of conduct. Schools too often include vague and arbitrary clauses in their student conduct policies that do not inform a student of potentially inappropriate conduct or attire. Failures to specifically describe what is and what is not appropriate conduct are generally attributable to a school, and can be the basis of a student's challenge to a disciplinary proceeding.

Again, the vast majority of disciplinary proceedings should not rise to a level requiring an attorney. But it is important for parents and adult students to recognize when an alleged violation of school conduct has potential lifetime impacts. Many college admission officers consider high school disciplinary records, and juvenile/criminal records in their admission decisions . Of course, transfer students between colleges will also be evaluated based on any disciplinary records maintained at the transferor school. If a student's reputation for honesty or being a nonviolent student is ever challenged in a disciplinary proceeding, legal advice should be considered.

Torts Against Schools

One of the most frustrating letters a parent can receive is a public school board's denial letter to pay for injuries suffered by a student on school grounds during school hours while the school was negligent in supervising or maintaining school property. Virginia still adheres to a very old doctrine that protects government entities from lawsuits called "sovereign immunity." Generally, government entities cannot be sued for acts of ordinary negligence unless they are specifically exempted by statute or allow themselves to be sued (if the district believes it to be the fair thing to do such as paying for appropriate medical treatment). Unfortunately, most school districts will not waive sovereign immunity for acts of negligence, and thus it is very important to promptly consult a lawyer to discuss all the facts available to see if an alternative theory can be supported such as "gross negligence" (really negligent) or an intentional tort. A plaintiff must file a Notice of Claim with the appropriate government entity within six months of when the alleged negligent conduct occurred, otherwise any chance to sue in the future based on a theory of negligence is lost.

Although public schools receive significant protections under sovereign immunity, private schools are no different than any other private business responsible for maintaining its premises in safe condition, and assuring appropriate supervision of its clients (the students). Since parents typically pay for private education, student safety is also typically a contractual right that a parent can also use to ensure the safety of her children, and if needed, compensation for injuries incurred on school grounds.

If you have a Special Education concern or any other issue related to an educational institution, which you would like to discuss with an attorney, please contact our office.