People often come to us to sue a school not only for educational accommodations but also administrators as well, often for money or in the hopes that an administrator can be removed from his job. Much as a school district can dislike a parent or child (or conversely, take a liking to a parent or child), parents can also take a dislike to an administrator, particularly where they feel they or their child have been unfairly targeted. It is not a simple matter to sue an administrator. Indeed, it is often not allowed. Rarely is it wise.
Cases where a child is being abused, bullied or neglected by school personnel, however, are the exception. Sometimes there is no other alternative than to sue the individual who is responsible for the problem, as well as those in supervisory positions who have allowed it to go on.
In regards to schools, nothing shows the true quality of a district better than how it treats its disabled students. If the district allows an administrator or staffer to get away with poor conduct, what message does that send to the other children and the community?
However, parents have to be mindful that administrators, teachers or staff usually have protection in using their judgment in performing the duties of their job unless their conduct is clearly outside the scope of the position. District staff also have protection from lawsuits unless they violate a clearly established right held by the victim under the United States constitution or federal law. This concept, which protects school personnel from being sued for making everyday decisions, is called qualified immunity and stems from a United States Supreme Court case called Harlow v. Fitzgerald, 457 U.S. 800 (1982). This case involved two aides to President Nixon who violated the constitutional rights of Fitzgerald, whom they conspired to have fired from the Air Force. The Supreme Court held that qualified immunity can be "pierced", and the officials held responsible when there is a clearly established right and a governmental official ignored it.
So what does this concept, which sounds like a rule from an obscure sport, mean in the context of special education or education law?
In the case Preschooler v. Clark County School Board of Trustees, 479 F.3d 1175 (9th Cir. 2007), the highest federal court in the area held that the teacher in that case violated a clearly established known right where the teacher forced a four-year-old child to beat himself and violently threw him, particularly since the child was disabled. Even for general education students, the right to be free from abuse was clear to the court.
And in regards to the Individuals with Disabilities Education Act (IDEA), a school district official cannot claim qualified immunity where the official did not do their job, i.e. in the case of C.T. v. Vacaville, where the student was given an IEP but officials did not respond to inquiries regarding assessments, services or Committee on Special Education (CSE) meetings that should have been held to address the student's IEP. The California Department of Education (CDE) likewise did not respond to complaints filed. The federal district court held that the both the official, Donahue, and the CDE did not have immunity, as IDEA is a federal statute which vests rights in children with disabilities. Further, CDE was a recipient of federal funds. (Although these are both California cases they are a good example of how courts hold individuals responsible for bad acts, where they knew they were violating
Here is an article on the basics regarding the law of suspensions in New York State. For more information, please sign up for my newsletter on the main page of this site, and I will send you my guide to New York suspension law. Unless otherwise indicated, the following applies to public schools however there is still much that can be done when dealing with a private school.
Short term suspensions are addressed mainly by Section 100.2 of the New York State Commissioner's Regulations. Long term suspensions are addressed by Section 3214 of the New York State Education Law. The New York State Commissioner of Education can "fills in the blanks" when state law is not clear.
All out of school suspensions imposed by public schools in any state must follow the principles outlined in the federal case, Goss v. Lopez. The Supreme Court of the United States found that before a student may be suspended he must be given notice of the impending suspension and an opportunity to present his side of the story and to hear the evidence against him.
Goss involved protests taking place in several different school districts. When some of the protesters became unruly, several students were implicated even though they claimed to be bystanders in the action. The schools suspended the students without notice and without hearing their side of the story. On appeal, he Supreme Court found that the schools in question had violated the 14th Amendment to the United States Constitution and ordered them to clear the students' records of all the charges. This ruling applies to all public schools, including charter schools.
In assessing school discipline cases, your individual school's code of conduct applies as well. These codes often parrot state law but may contain additional protections for students. The codes of conduct may or may not contain all of the disciplinary rules for that district, however, and parents should be careful to obtain any school documentation regarding discipline rules, rights to a hearing or meeting, and appeal rights by asking the school for these documents, which are available under NY State Freedom of Information laws and should be given out at the beginning of the school year--in the student handbook, parent handbook or even in board meeting notes. They can also be found on the school's website.
Timelines to appeal short-term suspensions, in-school suspensions and detentions are very short, often as little as 5 business days or less, and parents need to act quickly in order to exercise their appeal rights. Long term- suspensions, which are imposed after a full hearing, likewise must be appealed to the board of education, and may have short timelines as well. Suspensions can remain on the record for kids at all levels of education, which particularly effects high school students who are applying to colleges, military and law enforcement positions.
All schools, even private ones and charter schools, may be held accountable for violating a student's due process rights. Schools must always follow their own codes of conduct. If you have any questions you can contact our office at 516-864-3876. If you sign up for our newsletter, on the main page of the website, we will send you a copy via email.
Dr. Mark Lerner, internationally-known traumatic stress expert, is bringing his wonderful production, "In Session with Dr. Mark Lerner" to the Davenport Theatre in New York City for one night only, November 7 at 8 p.m. This show, which I saw back in September, is an unreheased "reboot" of therapy sessions with a 9/11 firefighter, Bobby Senn, who suffers from post-traumatic stress disorder (PTSD). Illustrating Bobby's recovery from the illness, it covers several sessions and shows his progress from his confusion and initial devastation to self-knowledge and peace. It also features music sung by Dr. Lerner's talented son, David Gabriel Lerner (“Mary Poppins,” Broadway). Tickets are $50 and all money goes to two great causes, the National Military Family Association and the Intrepid Fallen Heroes Fund. For tickets see www.RealityTheatreProductions.com.
Every child has a right to an education. Federal as well as New York law ensure that all public school students are entitled to something called general due process if they are suspended. While not as extensive as the kind of due process given criminal offenders under our constitution, courts have said that all students must be given the right to confront witnesses and present their side of the story in a hearing before this right may be taken away. (Due process also means different things in a private school setting.)
In New York, there are additional rights that students have based on state statutes, regulations and local law (often the school's Code of Conduct).
It is always advisable for parents to read what is on their school's and district's website in regards to parent and student handbooks as well as codes of conduct so they better understand how their school handles disciplinary violations. Some schools are very strict—especially in the upper grades—due to the large size of those schools. Others are less strict, but still have some rules as schools are aware of the studies stating that correcting issues early on or in elementary school is easier than trying to correct them in middle and high school (although some illnesses, and/or teenage hormones, will create different issues that aren't foreseeable, which is something the school should take into account and be ready to be less punishing and more nurturing).
In general the greater the threatened punishment, the greater the amount of due process a child is afforded.
It is always advisable to see your child's records once per year prior to any shredding that may take place, as there may be minor disciplinary infractions on their record of which you were unaware. These disciplinary records are available in the superintendent's office usually.
At the start of any complaint by staff or another student, against your child the school will do an investigation, which may involve speaking to your child without your consent. They are allowed to do this in limited circumstances. However, they may not do so if your child has a disability and you have previously indicated in a letter or in the child's IEP that during any disciplinary infraction you must be called when the school wants to speak to your child, or if the child cannot understand what is being asked of him. They may even ask your child to sign a statement, which many children will do, sometimes without knowing what they are signing. Children need to be made aware they do not have to talk or sign anything. They may not involve police in their interrogations, however.
If a child is given a detention, he has a right to know what it is for and to dispute the charge. A teacher removal for bad behavior gives a child certain rights as well which include meeting with the principal. If the punishment is an in-school suspension, the child and parent have a right to know the charges, meet with the principal and tell their side of the story. With out-of-school suspensions, a phone call should be made prior to whenever the decision to suspend has been made and obviously subsequent to any investigation but in any event within 24 hours of the decision to suspend.
A letter must be sent home if the child is given an out-of-school suspension of five days or less, which clearly states the charges, the parent and child's right to meet with the principal, confront the witness, and tell their side of the story. There should also be information in the letter regarding the right to appeal the decision and timelines for these short suspensions can be VERY short—as little as five days--but the Code of Conduct will usually indicate this, too. You also have a right to request to see any videotape that was made during the time you have the conference or at the school's office.
If, during this time the parent receives a letter that the school's investigation has determined a hearing must take place (not uncommon where there already has been a short-term out of school suspension on the same charge), the parent has the right to a hearing on the facts, which in many cases is much like the principal's meeting, however the school's attorney is present and a parent may also have an attorney present (and may get a one-time change in date to find one). There will be an upper level administrator/contracted hearing officer who will hear the facts and make a determination as to the child's guilt or innocence, plus a transcriptionist or recorder to record the hearing. The end result may be a long-term suspension of greater than 5 days, but usually weeks or months.
The parent may bring anyone they want to the hearing in order to submit evidence of good behavior and possible excuses for the behavior at the penalty part of the hearing (mitigating factors). However, a parent should know that the hearing officers themselves most often are school personnel or former school personnel and tend to think like administrators, which is to say, they enforce the rules in order to set an example.
Solutions like restorative justice (allowing the child to make amends to the community in a specific and teachable moment) are an excellent example of something that could be used when the conduct is not egregious, e.g. for short-term or in-school suspensions, but otherwise the school is looking to punish the student and/or to remove the student from the school in order to calm things down.
However, in these times, long term suspension hearings (otherwise called Section 3214 or superintendent's hearings) are most likely to result where drugs, guns or other violent or serious behavior is involved. Getting an attorney is helpful as these hearings must be held within the first five days of suspension without a request for an extension (adjournment), and it is difficult to gather facts in that time. Once adjourned, the child must wait weeks for a rescheduled hearing, during which time he is not allowed the same number of hours of instruction, unless he is a special education student, in which case he is entitled to education to compensate for the missing hours. However, it may give the parties time to gather evidence and work things out. Also, parents and school may benefit from attorney intervention where there has been a breakdown in communication between the parties.
If a child has an IEP or 504 plan, they may be entitled to a manifestation hearing, in which the CSE team asks whether the IEP was implemented correctly, and whether the child's behavior was a manifestation of his or her disability. This applies when suspensions in excess of 10 days have taken place, however, see below. Services and a free appropriate public education must be provided during this time to students with an IEP. Depending on the outcome, this may bring relief from the charges. If the team finds the child's behavior is a manifestation of his disability or the behavior plan or IEP was not followed, the child is not penalized for his or her behavior.
Further, if your child has an IEP or 504 plan the school may not suspend to avoid implementing or revising the child's behavioral plan, or to avoid doing additional assessments that may reveal information that can be utilized in obtaining a free appropriate education (FAPE) in the least restrictive environment (LRE). Finally, your child may not be interviewed alone if it impacts his or her disability, i.e. he or she is unable to understand the questioning, the charges, what he is being asked to sign, or is likely to get anxious or sick from being held in an office against his or her will. You, as a parent, have a right to have this be part of your child's IEP and should insist on it.
During the hearing, while the school's attorney will take the lead, be aware that your child does not have the same rights as a person who is in criminal court. If in fact there are criminal charges pending in juvenile court, the child should not take the stand. He does not have to admit to anything in the hearing but the school's attorney must prove his case with enough evidence—not beyond a reasonable doubt—but something called preponderence of the evidence. In many cases, the school's attorney is a skilled litigator and children will be traumatized by the experience of taking the stand, so it is not advisable unless the child is older and wants to do it.
There are few court rules, although you can object to relevancy (whether evidence matters), any kind of behavior by the school that seems unfair, or does not seem to be part of the code of conduct in the way it was enforced or the way it was written in the letter. If there is badgering of the witness, say so. If you, the parent, have a disability, make sure you ask the school for reasonable accommodations, like breaks, beforehand. An attorney can help with other strategies based on emerging caselaw, but this is a start.
During the hearing the burden of proving the child committed the act is on the school district, who will present their case and interview their main witness. They only have to prove things by a preponderance of the evidence, not as a high a standard as criminal court. The hearing officer may ask questions, and you are allowed to cross examine school's witness, as well as present your own.
After this, if there is no manifestation hearing, there will be an adjournment so the hearing officer can make a decision. If the decision is guilty, the parent is allowed to present the evidence of mitigating factors, as discussed above. If the decision is not made at the time of the hearing, or shortly thereafter, it may be an appeal issue.
You should, in any case, receive a letter shortly thereafter with the superintendent's stamp of approval telling you how many days you have to appeal the long-term suspension to the board of education, which should be 30 calendar days. If it is not, ask for an extension.
A board appeal is usually done on paper and it helps if it organized like a legal brief. After the board decides, there is another level of appeal. From the date of decision by the board, you have 30 calendar days to appeal to the commissioner. The commissioner's decision may be appealed to the New York Supreme Court.
In general, it is best to consult with an attorney for more information about a child's rights before, during and after a suspension hearing than can reasonably be covered in this newsletter, and for specific information on your child's situation. Please note that students with a 504 plan have less protection during a suspension than a student with an IEP plan.
Manifestation hearings for students with an IEP may be appealed to an impartial due process hearing officer appointed by the state within 20 days, otherwise known as an "expedited due process hearing". A recent decision regarding manifestation hearings for special education students gives an opportunity for students with disabilities to be provided with an additional level of review on the suspension hearing facts as well. Those students may appeal the portions of their suspension hearings involving the facts of the case in addition to appealing the manifestation itself.
It is important to note that manifestation rules apply to private schools who are recipients of federal funds, as well.
A final note: It is worth noting that schools are able to remove a child for a period of 45 days if the child's behavior was particularly violent or of concern. However, the rules are beyond the scope of this newsletter of this newsletter and should be reviewed with a special education attorney.
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This newsletter is copyrighted and generated by the Law Office of Suzanne Myron and is intended as general legal advice for New York residents only. For individual advice, please consult with an attorney of your choice.
The Law Office of Suzanne Myron is located at 6800 Jericho Turnpike, Syosset, NY by appointment only. For further information, or to make an appointment, please call 516-864-3876 or 516-393-5955 or email email@example.com.
“I'm sorry, Mrs. Smith, but Billy was hitting at school again. I don't want to have to do this, but it's the second time in two weeks he has hit another child. I am suspending him for three days.” So comes the call from your child's public school principal. A feeling of bewilderment comes over you. Billy has never been suspended before! What is going on? How will you manage with Billy home when you work full-time? Why is the school reacting this way? In your day, kids got in fights all the time and teachers never intervened. No one was ever punished. You wish someone at the school would understand and help, rather than send him home. Stay calm and take a deep breath. The school must deal with lots of these situations on a daily basis, so they aren't always able to find the perfect solution without some gentle (or not so gentle) nudging by a parent. You are your child's best advocate and he needs you now. Billy is one of many children crying out for help. A child may be experiencing trouble with adapting to a new school, bullying from students or adults, the demands of schoolwork and homework, or separation anxiety. Learning disabilities, mental health issues, and physical challenges can make learning and attending school difficult. Unfortunately, this can result in behavior school officials may take seriously, particularly in the wake of Columbine and Newtown. While disciplinary penalties for school infractions are supposed to be progressive, some behaviors are serious enough that schools impose out-of-school suspensions for first-time offenses which can last for weeks or even months. Now these already-troubled students are not with their peers. They have too much time on their hands. Will they get in more trouble? You wonder: what is the point? What are we achieving? My child is basically a good kid, right? Today's suspensions are the result of zero tolerance policies that school districts have imposed in the wake of school shootings, like Columbine. Parents need to swing into action. Do not wait and hope things will get better. They will not. This is an attention-getting device by the school! The best policy is to view yourself as a researcher and educator, one who wants to help the school do a better job with your child. The school may not know how to meet your child's needs. The school may not be as interested as you are in going that extra mile to help. It has been noted by behavioral therapist Ross Greene, Ph.D., that children will always perform to the best of their ability. If the child does not already have an Individualized Education Plan (IEP) or 504 plan and related services such as counseling, resource room, or other help, he or she should be evaluated for special education by the school district. As a parent, you must make the request for an evaluation in writing as soon as possible. Once the letter is written, a consent form will be sent for your signature. The evaluation must be done within 15 days of the date you signed the form. The committee on special education (CSE or IEP) team must meet to discuss the results within five days of the completion of the evaluation. If it is within your budget, or if your insurance makes partial payment towards it, you can also get a private evaluation to screen for learning and emotional issues. This is known as a neuropsychological evaluation. It should be administered by a neuropsychologist or neurodevelopmental pediatrician and may include add-on tests for areas of concern, such as psychiatric, reading, etc. You can request a CSE meeting to review the results of your child's private testing, and you may be able to bypass the school's evaluation altogether. If you ask the school to do the evaluation, you should request that it be done in all areas of suspected disability. You may indicate your areas of concern. It is better if you ask for a specific test, but that requires research on your part or an advocate to tell you which test to request. By law, the school's evaluation should encompass several parts including a social history, a screening for psychological issues by the school psychologist and an educational evaluation (often an IQ test). The school should conduct what is called a functional behavioral assessment (FBA) conducted by a behavioral consultant (BCBA), in order to look at issues which are triggering Billy and how to reduce those triggers. The FBA will result in something called a positive behavior plan (BIP). This should lead to better results at school. After 60 days the CSE/IEP team must meet to discuss whether the child needs services. They must also consider the results of any private evaluation you have done. A private evaluation is usually preferable because of the fact that you get to pick the evaluator and a report may be generated, which makes recommendations for services and placement. It also gives you leverage as part of the IEP team. Parent participation in CSE meetings is the law. Based on the current economic climate, schools will often recommend a basic, in-district placement. Having an outside expert is important as it ensures your child gets more than minimal help. At this point, you may have an IEP and a decision as to class placement and program, as well as a positive behavioral intervention plan (BIP) resulting from the findings of the FBA. Some children will require the services of a school psychologist, social worker and/or behavioral consultant who can monitor and help the child in or out of class for awhile. The school and you will hopefully have a working relationship as to how to handle future problems. If counseling is indicated outside of the home, this may help reduce the number of future suspensions and possibly even reduce the amount of time out of school the child is assigned. However, the school should also provide additional in-school counseling. That way, all members of the school-home “team” can work together towards an understanding of your child. Occasionally, you may need to remind the district that this is the law and sometimes you must do more than that. If you are feeling alone, or do not understand what is happening, it is appropriate at the very least, consult an attorney to ask “what rights do we have?” and “what should we do?” For a hard copy of this blog, please send an email to firstname.lastname@example.org. Please feel free to re-use and re-distribute provided proper attribution is given to our office.