Education Law Overview

1. Education Law Overview Street Law Training 1/15/2012

2. Street Law Training • Overview of education law • Student Discipline • Special Education • The Rights of English Language Learners • Discrimination and Harassment • Misc. Rights • Teaching tips • Ideas for activities and presentations

3. Education Law Overview Student Discipline

4. STUDENT DISCIPLINELEGAL OVERVIEW Goss v. Lopez (1975) • Dwight Lopez (and 75 other students) were suspended 10 days for a lunchtime anti-war protest. • Ohio law allowed principals to suspend for up to 10 days without a hearing. • “Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or writtennoticeof the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.”(emphasis added)

5. STUDENT DISCIPLINELEGAL OVERVIEW Minnesota Pupil Fair Dismissal Act • Grounds for Dismissal (a) willful violation of any reasonable school board regulation; (b) willful conduct that significantly disrupts the rights of others to an education, or the ability of school personnel to perform their duties, or school sponsored extracurricular activities; or (c) willful conduct that endangers the pupil or other pupils, or surrounding persons, including school district employees, or property of the school.

6. STUDENT DISCIPLINELEGAL OVERVIEW Minnesota Pupil Fair Dismissal Act • Suspension – Between 1 and 10 school days • Informal administrative conference before suspension; written notice at time of suspension and to parents within 48 hours. • Expulsion – Up to one calendar year. • Right to a hearing, unless waived, in writing; right to have an advocate or attorney; right to examine evidence and call and examine witnesses; right not to testify; right to appeal.

7. STUDENT DISCIPLINELEGAL OVERVIEW Minnesota Pupil Fair Dismissal Act • Alternative Educational Services • Must be implemented on any dismissal of more than 5 days. • “may include, but are not limited to, special tutoring…modified instruction…instruction through electronic media…homebound instruction, supervised homework, or enrollment in another district or in an alternative learning center…” • “must be adequate to allow the pupil to make progress towards meeting the graduation standards…and help prepare the pupil for readmission.”

8. STUDENT DISCIPLINECOMMON ISSUES Disproportionate Discipline and Referral to Law Enforcement • Investigations of student behavior and discipline have found no evidence that African American students misbehave at significantly higher rates, but have found that they receive harsher punishments than white students, often for less severe behaviors.1 • In Minnesota, African American students are suspended at a rate that is nearly six times that of white students. This disparity is nearly twice the national average.2 • Increasingly, behaviors that were once dealt with in schools are resulting in referrals to law enforcement, and school based arrests have been rising rapidly.3 1Skiba, Russel. “Zero Tolerance, Zero Evidence” (2000), available at: www.indiana.edu/~safeschl/ztze.pdf 2 Walsh, James. “Sent Home: The Suspension Gap”, Star Tribune (5/19/2008) 3 Advancement Project, “Education on Lockdown: The Schoolhouse to Jailhouse Track” (March 2005), available at: http://www.advancementproject.org/publications/opportunity-to-learn.php

9. STUDENT DISCIPLINECOMMON ISSUES School Based Referrals to Law Enforcement, Hennepin County Reasons for Referral, SY 01-02 through 04-05 (4 years, 9,914 Total Incidents) All Others, 586, 6% Weapons, 484, Assault, 2465, 5% 25% Theft, 611, 6% Property, 900, 9% Crim. Sex, 103, Drugs, 121, 1% 1% Dis. Conduct, 4644, 47% Source: Hennepin County Attorney NOTE: Several changes have recently reduced the number of cases handled by the HCAO.

10. STUDENT DISCIPLINECOMMON ISSUES Source: Hennepin County Attorney, Minnesota Department of Education

11. Education Law Overview Special Education

12. Rights of Students With DisabilitiesLegal Overview • Genesis for Special Education Legislation – Litigation • PARC: Pennsylvania case (1971) • State law allowed public schools to deny services to children "who have not attained a mental age of five years" at the time they would ordinarily enroll in first grade. • Legal challenge on Equal Protection grounds, resulted in a consent decree, where the state agreed to offer education all children, including up to 21 for children with developmental disabilities. • Mills: D.C. case (1972) • DC schools had expelled students and refused to enroll others on the basis of disabilities, and stated, during the case, that over 12,000 students with disabilities would not be served due to budget constraints. • Court held this violated Equal Protection clause of 14th Amendment

13. Rights of Students With DisabilitiesLegal Overview • School Districts are required, by the IDEA to… • IDENTIFY children with disabilities who need services • From birth through graduation, or age 21 • EVALUATE them in all areas of suspected disability • SERVE them by providing free appropriate public education (FAPE), in the least restrictive environment (LRE). • Free Appropriate Public Education - Provided in conformity with Individualized Education Program (IEP), that is designed to provide educational benefit to the student • Least Restrictive Environment - Students should be educated, to the maximum extent possible, with non-disabled peers. • COMPLY with procedural safeguards, to ensure parental participation.

14. Rights of Students With DisabilitiesLegal Overview What does compliance look like? • Rowley Case (1982), FAPE = Two part inquiry: • Has the school complied with the procedures? • procedural violations may deny parent participation or cause educational harm • Is the IEP reasonably calculated to enable the child to receive educational benefit? • District’s not required that district’s maximize potential.

15. Rights of Students With DisabilitiesCommon Issues Disability and Behavior • Manifestation Determination • Student with a disability OR Student school had reason to know had a disability • Facing expulsion, disciplinary change in placement OR Suspensions totaling over 10 days in a school year • IEP Team must ask… • Did the child’s disability cause or have a substantial relationship to the conduct in question? • Was the conduct in question a direct result of the school’s failure to implement the IEP? • If yes to either = conduct was a manifestation of disability.

16. Rights of Students With DisabilitiesCommon Issues Disability and Behavior • If conduct is a manifestation of disability, school must… • Return the child to their educational placement • Except in case of weapon, drug offense, serious bodily injury, then can remove for 45 days to other placement. • Conduct an FBA and implement a BIP (or modify and revise) to address the circumstances that led to the behavior. • Districts are permitted to report crimes, but they should not be able to routinely change a student’s placement through referral to juvenile court.

17. Teacher as advocate : understanding and protecting the legal rights of students English Language Learners

18. RIGHTS OF ENGLISH LANGUAGE LEARNERSLEGAL OVERVIEW Who is an English Language Learner? • In Minnesota, an ELL (or LEP) student is a student who: • 1) Is declared by their parent to: • Have first learned a language other than English, • Live where a language other than English is spoken, or • Primarily speak a language other than English AND • 2) Is determined to lack the necessary English skills to participate fully in classes taught in English.

19. RIGHTS OF ENGLISH LANGUAGE LEARNERSLEGAL OVERVIEW Title VI of the Civil Rights Act of 1964 “Title VI” • Prohibits discrimination or segregation on the basis of race, color, or national origin in any program or activity that receives federal assistance. 42 U.S.C. § 2000d • The Department of Education implementing regulations prohibit educational institutions from taking actions which have the effect of subjecting individuals to discrimination on the basis of national origin. 34 C.F.R. § 100.3(b)(2).

20. RIGHTS OF ENGLISH LANGUAGE LEARNERSLEGAL OVERVIEW Lau v. Nichols, 414 U.S. 563 (1974) • Chinese American students in San Francisco, claiming the failure to provide assistance in learning English violated Title VI • “There is no equality of treatment merely by providing students with the same facilities, textbooks, teachers and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education” • “It seems obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents’ school system – all earmarks of the discrimination banned by [Title VI regulations].” • Title VI has been interpreted only to prohibit intentional discrimination (Washington v. Davis). There is no private right of actions to enforce the implementing regulations (Alexander v. Sandoval). However, the Court has not invalidated the implementing regulations and the Office of Civil Rights continues to enforce them.

21. RIGHTS OF ENGLISH LANGUAGE LEARNERSLEGAL OVERVIEW Equal Educational Opportunity Act • The EEOA establishes that all children enrolled in the public schools are entitled to equal educational opportunity. • Under the EEOA, no state may deny equal educational opportunity on account of race, color, sex, or national origin by either: • deliberate segregation of students among or within schools; or • the failure of an educational agency to take appropriate actions to overcome language barriers that impede equal participation in its instructional programs. • The essential holding of Lau, “that schools are not free to ignore the need of limited English speaking children for language assistance to enable them to participate in the instructional program, has now been legislated by Congress [in the EEOA].” Casteneda v. Pickard, 648 F.2d 989, 1009 (5th Cir. 1981).

22. RIGHTS OF ENGLISH LANGUAGE LEARNERSLEGAL OVERVIEW Parent Notice and Contact • Districts must adequately notify parents of ELL students of activities that are called to the attention of other parents. • Parents must be notified within 10 days of the placement of their child in a program for LEP students The notification must: • be in English and the primary language of the parents; • contain a simple description of the purpose, methods and content of the program; • inform parents of a right to visit the program; • inform parents that they can request a conference to discuss the program; • inform parents of their right to withdraw their child from the program.

23. RIGHTS OF ENGLISH LANGUAGE LEARNERSLEGAL OVERVIEW ELL Students and Special Education • When conducting an evaluation, a district must select assessments that will not result in racial or cultural bias and are administered in the language and form most likely to yield accurate information about the child. • A child must not be determined to have a disability if the determinant factor in the determination is limited English proficiency. • Districts should not have a policy of waiting until a student has been in the District a set amount of time, or received language services a set amount of time before evaluating.

24. Education Law Overview Discrimination, Bullying, and Harassment

25. DISCRIMINATION, HARASSMENT and BULLYINGLEGAL OVERVIEW • Sexual harassment: unwelcome conduct of a sexual nature, including sex-stereotyping • Title IX (1972); Minnesota Human Rights Act • Hostile environment: conditions sufficiently serious to deny or limit student’s ability to participate in or benefit from programs • Racial harassment: harassment based on race, color or national origin that is sufficiently severe, pervasive or persistent that it interferes with or limits the student’s participation in or benefit from programs or activities • Title VI; Minnesota Human Rights Act • Race-based discrimination exists where schools have effectively caused, encouraged, accepted, tolerated or failed to correct a racially hostile environment of which it has actual or constructive notice • Disability-based harassment: intimidation or abuse or based on disability that interferes with or denies participation in or receipt of benefits, services or opportunities • Section 504, Rehabilitation Act (1973);Americans with Disabilities Act (1990) ; IDEA, if contributes to a denial of a FAPE

26. DISCRIMINATION, HARASSMENT and BULLYINGLEGAL OVERVIEW • Minnesota law requires every school board to “adopt a written sexual, religious and racial harassment and sexual, religious and racial violence policy that conforms with the Minnesota Human Rights Act” • Requires all complaints to be investigated, oral or written • Results of investigation in writing to complainant • Minnesota law also requires the adoption of a policy which prohibits bullying. • A persistent pattern of intimidation and harassment directed at a particular student in order to humiliate, frighten or isolate the child. • Bullying can have serious, long-term academic, physical and emotional consequences including: inability to concentrate; anxiousness or nervousness; shame, fear, and isolation; depression and loneliness; and suicide.

27. Education law Overview Misc. Rights

28. Other legal rights of students • Fourth Amendment Rights in Public Schools, Students do not shed their rights at the schoolhouse door, BUT… • New Jersey v. TLO • Two girls caught smoking in the bathroom, one girl confessed but the other, TLO, denied it. VP searches her purse, finds cigarettes and also sees rolling papers, leading him to search entire contents of purse, finding small amount of marijuana. • Held: 4th Amendment protections apply to students in school, but the standard is lower • In schools, a search must be justified at its inception (based on a reasonable suspicion) AND • Be reasonably related in scope to the circumstances that justified the suspicion in the first place • This standard is lower than the standard of “probable cause” due to the special circumstances of the school environment. • Applied to allow for random, suspicion-less drug testing of student Athletes (Veronia v. Acton, 1995)

29. Other legal rights of students • McKinney Vento Act: protects rights of students experiencing homelessness. • Homeless student is a student who lacks a fixed, adequate, nighttime residence, and includes: • Shared housing with other friends or families; • Runaway/homeless youth shelters; • Emergency and domestic violence shelters; • Motels, hotels or campgrounds; • Cars, abandoned buildings, parks, the streets or other public spaces • Students experiencing homelessness are entitled to: • Immediate enrollment in school, even without proof of residency, immunization, or school records; Even if no parent or guardian is available. • Choice of schools - remain at the last school before losing housing (with transportation) or attend a new school.   • Equal access to free public education, including public pre-school; Equal access to all educational programs and services. Free and reduced-price meals and other supportive services.

30. Other legal rights of students Educational Records and Privacy • Federal Family Educational Records and Privacy Act (FERPA) • Education records means the records, files, documents, and other materials that contain information directly related to a student and are maintained by an educational agency • Educational records should only be available to school officials in the student’s school district who have a legitimate educational interest in the information • Parents can give permission for other disclosures, and some other disclosures also lawful. • Parents may inspect records, and ask for changes to be made if information is inaccurate, misleading, or otherwise inappropriate. • Minnesota Government Data Practices Act • Educational data is confidential data on individuals and can only be disclosed with consent, or within the school to those whose work reasonably requires access. • Tennessen warning required any time a school collects private or confidential data from a student - how and for what purpose; whether the student may refuse; and the consequences of providing or not providing the data. If no Tennessen warning, school may not use the data it collects. • Violations of these laws can lead to loss of federal funding for schools and civil liability for schools and individuals.

31. Education law Overview Street Law teaching tips… -Plan. 5-10 minute intervals. Have backup. -Provide content in multiple ways. -Focus on active learning. -Meet students where they are. -Think about the frame. -Teach to interests.

32. Education law Overview Students will likely be most interested in…

33. Education law Overview Students will likely be most interested in… -Discipline -Search and Seizure (police involvement) Sample Activities a) MPFDA b) 4th Amendment (Safford v. Redding)

34. Education law Overview Sample Activities a) MPFDA -race to 10; b) 4th Amendment (Safford v. Redding) (summarizing decision, listening to argument, debate: Would/should the result have been different if the search was for cocaine/meth? A gun?

35. Education law Overview Resources related to sample activities… • http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/searches.htm (Good starting point for creating an activity about 4th Amendment searches in the school context) • http://www.nyclu.org/node/1360 (ACLU, New York brochure on student rights in schools) • http://www.pacer.org/parent/php/php-c171.pdf (Students with disabilities and police questioning) • http://www.oyez.org/cases/2000-2009/2008/2008_08_479 (Safford v. Redding including audio for oral argument) • http://www.law.cornell.edu/supct/html/08-479.ZS.html

36. Education law Overview Questions?