There are numerous ways the law is impacting you during the day when you are at school that you probably have never known about. There are different standards for searches at school, there are laws and cases that establish a student’s due process rights, and there are laws and precedents that make it difficult to sue a school if you get injured. Most states have laws that establish that children must be enrolled and attending a school. If a student is not attending school on a regular basis the school district will usually investigate why the student is not attending school. If parents/guardians are not sending a child to school, the school district can report the parents/guardians to the local child welfare agency. Most states have established that students must attend school until they reach a specific age. The age varies by state but most are usually 16 or 17 years old. With our increasingly competitive job market, I would highly recommend that students NOT drop out of school. While getting an education is sometimes difficult or might seem pointless at times, you must remember that the skills and commitment it takes to complete school demonstrates to employers that you have the ability to set goals and achieve those goals. As the world has become more competitive economically, there has been a push to improve the achievement of students in the United States. There are Federal laws like No Child Left Behind and many states have created their own programs to increase student achievement and raise high school graduation rates. All of the states have established minimum requirements to graduate. For example in some states students might only need to pass a Government class and their own school district’s graduation requirements to meet the states standard. However, in other states a student might need to pass Algebra II, have 4 years of English, 2 years of a foreign language and pass a state test to graduate. Check with your school’s guidance/counseling department for the requirements in your individual state and school district. Schools in our nation have a responsibility to provide safe places to learn. Therefore the schools have been given the responsibility to make sure that students can learn in a safe environment that is conducive to learning and success. Due process is a phrase that is difficult to precisely define because in every legal situation it might have a different meaning depending on the situation. However, what it does mean is that if you are accused of or have broken some school rule or state law, there must be a procedure that insures that your rights are protected. For example, if you are accused of plotting to crash the school computer system the school district can’t just expel you. The school district must have procedures in place that allow you to argue your side of the case and prove your innocence. The U.S. Supreme Court held in Goss v. Lopez, 419 U.S. 565 (1975) that in a situation where a student was facing a 10 day suspension all that was needed was that the student was notified about the district’s action and had the opportunity to tell his side of the story. Your due process rights will vary depending on your jurisdiction and the type of offense you might be accused of committing. If the offense is serious you will want to make sure that you have an attorney to represent you. One of the reasons that you have these due process rights at school is because courts have held that you have the right to a public education. If there are any actions that might deprive you the student of that education you the student must receive a fair process. The U.S. Supreme Court in the Goss case held that when state law establishes compulsory school attendance the students receiving a free education have a property interest in that education. Having a property interest means that you have a right to an education and if anyone tries to take away that right you can seek monetary damages because they have taken away a property right that you have. HOWEVER, if a student engages in some act that violates school rules or state laws the student can lose their right to an education. But to take away that right to an education, the student must be given due process; an explanation of the charges or rule violation, a hearing, a chance to tell their side of the story, a chance to confront witnesses against them in some situations, and if needed the ability to have an attorney present to assist them. In the section on criminal procedure, I discussed the 5th Amendment right against self incrimination and the importance of keeping your mouth shut if it seems like you are being accused of a crime. Because of the presence of police officers in our schools, and the many zero tolerance policies that allow school districts to expel students for certain offenses, many criminal defense attorneys are now recommending that students accused of serious violations of school rules or laws not say anything to anyone until they have had an opportunity to speak with their parents or an attorney. So if you are been called to the office and it seems like someone has accused you of a serious offense it would be best to remains silent. Your due process rights are still very strong at school, but your 4th Amendment rights related to searches are greatly reduced when you are at school. The U.S. Supreme Court has allowed this relaxation of your 4th Amendment rights at school because the school is responsible for you during the school day and should have the ability to insure that there are not things present at the school that could harm students or the learning process. Student Searches: The standard for searches was established by the U.S. Supreme Court in T.L.O. v. NewJersey, 469 U.S. 325(1985). The Court in that case held that school officials could conduct a search if the principal, teacher, or other school official has, “reasonable grounds for suspecting the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” This is also frequently described as reasonable suspicion. If the school official has reasonable suspicion they can search as long as the search is related to what they think the student has in their possession and isn’t too intrusive for a student of that age and gender. For example, it would be extreme to strip search a fourteen year old who is suspected of possessing chewing tobacco. In the last few years because of the substance abuse problems in our schools and the concern over weapons in schools, the courts have made the reasonable suspicion standard easier for school officials to meet. The U.S. Supreme Court has held that schools may drug test some of their students. The cases that established this power were Veronia School District 47J v. Action, 515 U.S. 646 (1995) and Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S. Ct. 2559 (2002). In these cases the U.S. Supreme Court allowed the school district to drug test any student that was participating in a school extra-curricular program. These testing programs were not based on any type of suspicion but were put in place by the school districts because they were concerned about students using and abusing illegal substances. The U.S. Supreme Court allowed these searches because the Court felt that drugs are an “evil” that exists in our schools and the schools’ student populations. The Court also stated that schools have a special responsibility for the well being of their students. The Court pointed out that these searches/drug tests weren’t for law enforcement purposes. Therefore, if your school is using some type of broad testing policy that is also connected to law enforcement your school district will be engaging in activity that goes beyond the type of testing allowed in these two cases. The U.S. Supreme Court has not dealt directly with locker searches, but there are cases in other jurisdictions that have held that students don’t have an expectation of privacy in their lockers. The courts that have decided cases like that typically view lockers as school property that students are allowed to use to while at school. Many school districts have school policies that notify students that lockers are the school’s property and that students have no expectation of privacy in their locker. The U.S. Supreme Court has not dealt with searches of student cars, but many jurisdictions have looked at the issue of car searches on school property. They have consistently held that if school officials have reasonable suspicion they can search a student’s car. For example, there have been tips that a student has been selling drugs at school and is seen with a large amount of cash when he buys his lunch. The principal could then search the student. The student has $300.00 in his pockets. The school officials could then search his car because they have a reasonable suspicion that there might be drugs in the car. The U.S. Supreme Court has not ruled directly on whether school officials can search allof the luggage of students prior to going on a field trip. Courts that have allowed this type of search have stressed the legitimate interest that the school district has in making sure students don’t take illegal things like liquor or drugs on a field trip. This type of thinking goes very well with the U.S. Supreme Court’s allowing schools to search students if the school has some legitimate reason related to ensuring the health and safety of the students and it is not connected to a law enforcement purpose. Therefore, it would be highly unlikely that the U.S. Supreme Court would not allow a search of all student bags going on a field trip if the sole reason was to make sure students weren’t taking illegal things and there was no connection to law enforcement. They are known by different names in different areas; it might be a school resource officers or school liaison officer, but to students it is most likely the cop in the building. These police officers have been brought into schools because of concern over drugs, weapons, and other violence in schools. These police officers have also caused many questions when it comes to searches. The main reason is that since T.L.O. v. NewJersey school officials have had the lower reasonable suspicion test to search a student. The U.S. Supreme Court gave school officials that lower standard because school officials usually didn’t have the legal knowledge or expertise regarding the law. In addition, you didn’t have the criminal law ramifications. However, now if a school principal turns a search over to a school liaison officer there are definite criminal law issues if the student is found to be in possession of something illegal. In addition, the police officer has a better understanding of the law regarding searches. There are many legal scholars who study the 4th Amendment and schools, who are beginning to wonder about the legality of these “reasonable suspicion” based searches done by police officers on school property. There have been no major decisions in courts but I’m confident that there will be some cases in the near future. If you are searched by a school liaison officer and you are in possession of some contraband, you might want to find a really good attorney who can argue that police officers need to have probable cause to arrest you before they can search you and your belongings and that the reasonable suspicion test applies only to school officials. Police officers trained by a law enforcement agency separate from the school district are NOT school officials. There has been a decrease in violent crime in school over the last few years. Even though the news coverage would lead a person to believe that violence is a large problem, the number of violent acts is decreasing. To address the problem of violence in schools, school districts created ZERO TOLERANCE POLICIES to be used when students committed violent acts, and possessed illegal drugs, or weapons. These policies usually establish clear punishments if the student engages in certain kinds of acts. The punishments are usually long term suspensions or expulsion. The important thing to remember if you are accused of or have committed some school rule violation or criminal violation that is covered by a zero tolerance policy you want to remember your rights to due process that were discussed earlier in this document. The U.S. Congress has passed two laws that deal with students who possess weapons at school. The first was enacted in 1990 and is the Gun Free School Zones Act. This law makes it “unlawful for any individual to knowingly possess a firearm that has moved in or that otherwise affects interstate commerce at a place that the individual knows or has reasonable cause to believe is a school zone.” A school zone is defined as the area “within a distance of 1,000 feet from the grounds of a public, parochial or private” elementary or secondary school. A violation of this Federal law is punishable by a fine and up to five years’ imprisonment. The second law that the U.S. Congress enacted was the Gun Free Schools Act in 1994. This law required that states receiving federal money for education write laws that mandate that local school districts expel from school for a period of not less than 1 year a student who is determined to have brought a firearm to school, or who possessed a firearm at school. The states have also passed laws that define weapons and the punishments for possessing a weapon at school. Check with your state to see how your state has defined what a weapon is and the punishments for possession at school or within a school zone. Some students have successfully challenged their suspensions and expulsions when they did not know they had the weapon in their possession. For example, if your friend that you drive to school leaves a gym bag in your car that contains a hunting knife and you didn’t know about the knife, you might successfully challenge a suspension or expulsion because you were not aware of the hunting knife in your car. If you have this type of situation you will definitely want to find out how the courts in your jurisdiction have ruled on cases where the individual didn’t knowingly possess the weapon. Then make sure you have a competent attorney. There is nothing more disturbing to a child in school than the fear of being picked on, teased, or bullied at school. For many years teachers, school administrators, and counselors have viewed the situation along the lines of its just “kids being kids”. However, in Davis v. Monroe County Bd. Of Educ., 526 U.S. 629 (1999), the U.S. Supreme Court held that students may sue a school district if the school district was deliberately indifferent to the harassment. Therefore, it is very important if you are a student who is being harassed at school to tell your school counselor, teacher, and principal that you are being harassed at school. Once you have notified the appropriate school officials if the school officials do nothing you can sue the school district because they are deliberately indifferent to your situation. That means that they completely ignore your complaint and do nothing. I personally feel it should be easier for students to hold their schools liable because it isn’t that difficult for teachers and administrators to be aware of which students are being bullied. REMEMBER IF YOU ARE BEING BULLIED OR HARASSED NOTIFY YOUR PRINCIPAL! Cyber bullying: Internet bullying is the newest form of bullying that is occurring in schools. The courts have typically given students 1st Amendment protection to students statements unless school officials can show that the speech has a direct and immediate effect on the smooth operation of the school. Therefore, if Bob is making bad comments about Lou on his website so Lou threatens Bob in the cafeteria, the school officials will be able to take action because even though Bob’s website is off campus it is having an impact on the school. In addition, if the website is accessed from schools courts have been willing to allow the school to punish students for the website content. There are a variety of laws that apply if you are a student who has special educational needs. The three primary laws that cover special education services and the education needs of students with disabilities are the Individuals with Disabilities Education Act(IDEA), and Section 504. Section 504 is a federal law that protects students who have disabilities that impact their learning but are not the type of learning disability that would qualify them for special education services provided under the IDEA. For example a student who has A.D.D. might have educational accommodations like sitting in the front of the room and taking tests alone in a quiet room as part of the student’s 504 plan or a student with a bladder control problem may be allowed to get up and use the restroom whenever they need to without asking a teacher. The 504 accommodation plan will usually be developed by the school staff along with the input of the student’s parents. The second large area of special education law is the Individuals with Disabilities Education Act(IDEA). School districts have many responsibilities under IDEA. The school district must locate, evaluate, and identify students that might be eligible for special education services. The school district must develop an individualized education program(IEP) for students who qualify for special education services. The IEP is developed by teachers and the student’s parents. In many situations the student is also allowed to participate in the IEP development. Under the law children with special needs are guaranteed a free appropriate public education(FAPE). This means that the cost of the student’s special education services will be paid by the school district. IDEA mandates that special education students be mainstreamed with non-special education students as much as possible in the least restrictive environment(LRE). This means that a student identified and qualified for special education services will take their classes with non-disabled children as much as possible. Schools need to be very careful when they are disciplining students who are receiving special education services. If the behavior problem is caused by the student’s disability. For example if a student is classified as emotionally impaired and the student hits another child, the emotionally impaired child’s behavior (hitting the other student) possibly is caused by the disability (emotional impairment). School officials must be very careful in how they discipline a student who is disabled. The first thing that should happen if a special education student gets in trouble is determine whether the behavior was caused by the student’s disability. If the behavior was not related to the disability the principal can discipline the student like any other student. If the student’s actions were related to their disability the principal must make sure that discipline given (suspension, detention, or possibly expulsion) don’t take away the students right to a free and appropriate education. School officials like the principal can’t suspend special education students for more than 10 consecutive days or a total of 10 days. If this happens it is considered a change in the students educational program and there are specific procedures the school district must go through to protect the student’s rights under IDEA. If the student’s behavior is related to the disability the school must have a functional behavior assessment and implement a behavioral intervention plan. If a special education student engages in conduct with weapons, drugs, or causes serious injury to another student the school can place the student in an interim alternative educational setting for up to 45 days. Torts occur when someone injures you. Students can be injured at school and when that happens it is natural to want to identify if there is some individual that may have directly or indirectly caused that injury. In the torts section of the website I have described the most common torts that occur. In the school setting there are very few intentional torts. The legislatures and courts in our country have typically granted teachers and principals the ability to discipline the students for whom they have responsibility. A teacher will typically be allowed to stop a student who may be a danger to themselves or other students. Once in awhile a teacher may act inappropriately and strike a student. When this occurs the teacher can be sued and will be responsible for the injury. Most states have established laws that have outlawed the use of corporal punishment like paddling in public schools. Negligence is the area of injury law that schools deal with most frequently. For a complete description of negligence please go to the torts section of the website. But I will briefly summarize the basic elements that must be proven to win a negligence lawsuit. For example, a student gets violently sick after eating lunch in the school cafeteria and finds out that everyone who ate the chicken strips got sick. The first element is duty. The injured student will need to prove that the school district had some duty to the injured student. A duty might be serving students fresh food in the cafeteria. The second thing the injured person must prove is breach. The injured student will have to prove that the school district served old food to the students. The third element that the student will need to prove is causation. The student will have to prove that eating the old food caused their food poisoning. The fourth element that the student will need to prove is that the student suffered some injury/damages. In the example case the student would need to prove that they were hurt by eating the bad food. The student would want the school district to pay for their visit to the emergency room to get their stomach pumped and any other damages that were caused by the food poisoning. Many of the lawsuits against school districts in the area of negligence involve schools that didn’t properly supervise the students (negligent supervision) and consequently a student was injured by another student. An important thing to understand about suing a school is governmental immunity. Governmental immunity is a legal concept that has been around for hundreds of years. Basically the concept means that you can’t sue the government. Therefore it is very difficult to sue your school district, school, principal, or teachers because most schools are part of a public school system which is part of the government. The immunity laws usually prohibit someone from suing a principal or teachers if the principal or teacher was performing some aspect of their job as a teacher. For example if a teacher breaks up a fight and sprains one of the students arms pulling the fighters apart the student with the sprained arm will not be able to sue the teacher because the teacher is performing one of their duties as a teacher. However, if the principal or teacher’s conduct is extreme and beyond what would be acceptable then it is possible to sue the teacher. In addition, many states have created exceptions that allow an injured person to sue the government. For instance, some states allow a person to sue if the injury was caused by a government owned vehicle or if it relates to a government owned building. For example, if a school district bus ran a red light and injured a pedestrian crossing the street the injured pedestrian could sue the school district because the bus is a government owned vehicle and fits into the government vehicle exception. Another potential way to hold school districts liable, even if the state does have immunity laws, is to file a lawsuit based on a violation of your civil rights which are protected by the U.S. Constitution or other Federal laws. These lawsuits are filed under 42 U.S.C. Section 1983.
Curriculum and Attendance
Compulsory Attendance
State Curriculum Requirements
Discipline
Due Process
Miranda Rights
Searches
Drug Testing
Lockers
Cars
Field Trip Searches
Liaison Officers – Police Officers at School
Suspension vs. Expulsion and Zero Tolerance Policies
Weapons and the Gun Free School Act
Peer to Peer Harassment
Special Education
Disciplining Special Education Students
Torts
Governmental Immunity
Section 1983
