Parents, the Law, and Education
How to Protect Your Rights
You want to see your child’s school records, but you’re told they’re private. What can you do?
Your child’s locker is searched for no apparent reason. Is that legal?
Your child doesn’t want to say the Pledge of Allegiance. Can he or she be forced to do so?
Your child is suspended, you think unfairly. What are your rights?
Questions such as these routinely confront parents. Unfortunately, parents are rarely informed of their legal rights and so often they don’t realize that they can challenge many decisions by school officials.
Parents of children in kindergarten through high school have two basic kinds of rights, both equally important. First, they have rights as parents. Second, their children have rights and parents can advocate to protect their children’s rights.
The first right was established by the U.S. Supreme Court in 1924, when it ruled that parents have the right to direct the education of their children. The second was established in 1969 when the Court held that students do not shed their constitutional rights “to freedom of speech or expression at the schoolhouse gate.” It was expanded in 1975 to include due process rights when a student faces suspension or expulsion.
These rights are guaranteed by the U.S. Constitution. In addition, parents and students have been granted a wide range of specific rights under state and federal laws. Briefly, these rights are:
- The right to a free public education.
- The right to inspect student records.
- The right to a special education for students with special needs.
- The right to due process of law before suspension or expulsion.
- The right to freedom from unreasonable search and seizure.
- The right to freedom of expression.
- The right to freedom of religion and conscience.
Although some administrators may deliberately break the law, most unlawful school practices are the result of legal ignorance or misunderstanding. Most administrators are anxious to avoid lawsuits. When parents are able to show that school policies are unlawful, most administrators would rather change them voluntarily than as a result of a court order.
Many educators are poorly informed about the rights of parents and students because most of these rights did not exist when the educators were students. Further, educators are rarely taught these rights as part of their training.
I would briefly like to look at two areas of education law, freedom of expression and due process. The purpose is not to develop a legal primer, but to give a taste of some of the rights that parents and students have under the U.S. Constitution.
The Tinker Decision
During the first half of this century, the Bill of Rights rarely helped parents and students who challenged the constitutionality of school rules. But a 1969 U.S. Supreme Court ruling Tinker v. Des Moines, known as the Tinker decision, set a new course in students’ rights.
The case dates back to 1965, when a group of students in Des Moines, Iowa decided to wear black armbands to publicize their opposition to the Vietnam War. Upon learning of the plan, Des Moines principals set a policy prohibiting the armbands in order to prevent any possible disturbance. Several students wore the armbands nonetheless and refused to remove them. They were suspended.
Their parents challenged the school policy in court. They lost their case, but appealed. The case ultimately was heard by the U.S. Supreme Court.
While the Court recognized that school officials must have the authority to control student conduct, it held that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The First Amendment protects symbolic as well as pure speech, the Court said, and wearing an armband is a type of symbolic speech.
The Court further ruled that in this case there was “no evidence whatsoever” that wearing armbands interfered “with the school’s work or with the rights of other students to be secure or to be left alone.”
School officials might have feared the armbands would lead to a disturbance, but that fear was not sufficient reason to violate student rights, the Court said.
“In our system,” the opinion said, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
In a provocative comment about education and freedom, the Court wrote: “In our system, state-operated schools may not be enclaves of totalitarianism. … Students in schools as well as out of school are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.”
Since the Tinker case, all courts recognize that the Bill of Rights applies to students in the public schools. Individual rights, however, are not absolute. When a student’s rights come in conflict with the rights of other students or with the obligation of the school to keep order, judges weigh these competing interests in light of the circumstances of each case.
Nor does it mean that the constitutional rights of students are always the same as those of adults. Because there must be order as well as freedom of expression in the schools, authorities can impose reasonable restraints on the time, place and manner in which student publications are distributed. Nor does the First Amendment protect students who are abusive and seriously disrespectful to school officials, or those who distribute materials that cause disruption, or are legally obscene or libelous.
Following the 1975 U.S. Supreme Court decision in Goss v. Lopez, due process has become an increasingly important area of education law. (Due process simply means fair procedure.)
The 1975 ruling involved a case in which nine high school students in Columbus, Ohio were suspended for 10 days without a hearing. Under then Ohio law, officials had the right to do so provided parents were notified of the suspension within 24 hours and given the reasons.
The students and their parents claimed the law denied them the right of due process and was therefore unconstitutional. The Supreme Court agreed. Asserting that “education is perhaps the most important function of state and local governments,” the Court ruled that although some punishments might be trivial, the power to suspend for up to 10 days is certainly important to the student and cannot be exercised arbitrarily.
A minimum of due process is required even in cases involving short-term suspensions. In such cases, however, it may consist merely of rudimentary elements of fairness such as an informal notice and hearing. This generally means that the student must be told orally or in writing what the alleged wrongdoing was. If the student denies the wrongdoing, he or she is entitled to an explanation of the evidence that the authorities have, and a chance to tell his or her side of the story.
In cases of long-term suspension or expulsion, the courts require more complete procedures. In such situations, parents may insist on a written notice and a hearing, the right to present evidence, to be represented by a lawyer, to cross-examine witnesses, and to be given a record of the proceedings. Parents and students also have the right to appeal, usually to higher school authorities and to the school board.
Constitutional rights to due process and equal protection can also be used to challenge discriminatory testing and tracking policies. While tracking and grouping of students is not inherently illegal, parents have the right to object to tracking systems if they can show that the tracking is based on socioeconomic or racial discrimination.
Curriculum and textbooks are another key area of controversy. In general, judges have been unwilling to force schools to comply with demands that courses be prohibited on family life and sex education, or that texts be removed if they offend someone’s moral values. Since school officials have been delegated the responsibility for making educational decisions, courts are unwilling to substitute their judgement for that of professional educators in such matters — except where a valid constitutional objection is made.
If school officials violate the constitutional rights of students or parents, the courts will act to protect those rights. But if parents disagree with the educational decisions that administrators make, judges urge them to use school board procedures or political and legislative action rather than the courts to create change. Since no two cases are alike, and since the law is constantly changing, this article is not a substitute for legal advice. Any parent who contemplates legal action should first consult a knowledgeable lawyer or a legal service office.