Education Law

We frequently find that parents and students are given misinformation about their rights.  They also need help advocating for themselves and sorting through legal options.  We offer a consultation designed to educate, empower, and effectively resolved your issue.

We provide consultation and representation on a wide range of education law issues:

  • academic failure and dismissal
  • academically-intellectually gifted
  • bullying and harassment
  • charter schools
  • discrimination
  • enrollment transfer
  • health plans
  • personal injury
  • post secondary schools/ADA and Section 504 of Rehabilitation Act
  • retention
  • special education
  • seclusion and restraint
  • Section 504
  • transportation
  • vaccines

Academic Failure

The North Carolina Constitution requires schools to provide each child with a sound basic education. See Leandro v. State, 346 N.C. 336 (1997).  This requirement means that schools should, at a minimum, ensure that students are performing at grade level and will be able to get a good job or go to college when they graduate from high school.  If a child is failing in school, he or she is entitled to extra help to succeed.

Academic Dismissal

Students who are dismissed from  post-secondary institutions have important substantive and due process rights.  Universities and Colleges must comply with their own previously described program standards in deciding whether a student should be dismissed from the program.

Bullying and Harrassment

In 2009, Governor Purdue signed into law the bill prohibiting bullying and harassment of students on school property, school events, and school-sponsored events. N.C. Gen. Stat. 115C-407.15-18.  Schools are also required to adopt a policy prohibiting bullying or harassing behavior.

Unfortunately, attitudes about bullying change slowly, and North Carolina schools have a long way to go to changing the environment that allows bullying to continue.

Here are some things that you can do to stop and prevent bullying of your child:

  • School districts can be held liable for money damages.  This a powerful tool to get the district’s attention when you ask for help to stop the bullying.  Read a good anti-bullying case such as Zeno v. Pine Plains Central School District.
  • Remember the following elements for a damages lawsuit:
    • Substantial control (bullying occurred during school hours or on school property)
    • Severe & discriminatory harassment
    • Actual knowledge
    • Deliberate indifference
  • Write a letter to the Superintendent with copies to Board members

Dear Superintendent:

My child was bullied in such and such fashion, {a brief narrative.}  The principal refused to do anything about it, being deliberately indifferent.  You, the superintendent, have the authority to correct the principal’s behavior and put the bullying to a stop, and the courts have held that you too will be deliberately indifferent to this bullying if you don’t, and such deliberate indifference would be discrimination on account of my son’s disability.  Could you get back to me promptly with how we can provide a safe educational environment for my child?

  • Press criminal charges for physical abuse involving severe injury
  • File a Complaint for a Protective Order (AOC-CV-520) pursuant to N.C. Gen. Stat. 50C if the aggressor is at least 16 years old and committed non-consensual sexual conduct or stalking as defined in N.C. Gen. Stat. § 14-277.3A(b)(2).
  • Sue parents of a minor for damages to person or property pursuant to N.C. Gen. Stat. §1-538.1 in small claims court.
  • For students with disabilities, ask for an IEP or 504 meeting to request services for both the bully and your child.  For other students, ask for remediation and/or training services for individual bullies and for the general school population including teachers and administrators.  Provide the OCR published “Dear Colleague” letter to give guidance to schools on bullying and harassment.
  • File a complaint with the U.S. Department of Education’s Office of Civil Rights (OCR).

Sexual harassment is treated very seriously by schools.  Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

A.  Submission to the conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment, academic progress, or completion of a school-related activity; or

B.  Submission to or rejection of such conduct is used as the basis for employment decisions affecting such individual, or, in the case of a student, submission to or rejection of such conduct is used in evaluating the individual’s performance within a course of study or other school-related activity; or

C. Such conduct has the purpose or effect of unreasonably interfering with an employee’s work or performance or a student’s educational performance, or creating an intimidating, hostile, or offensive environment.

Legal References:  Title VII of the Civil Rights Act of 1964; Title IX of the Education Amendments of 1972.

Enrollment

Sometimes it can be difficult to enroll children in school.  The school does not have to accept students who are not domiciled in that school’s administrative area.  In general, children are considered to have a domicile where their parents or legal guardians live.  For children living with relatives or friends, who do not have legal guardianship, this can pose problems.  If the child is living with an adult other than a parent or legal guardian, the child can be enrolled as long as he or she is

  • not under suspension or expulsion from another school district
  • not convicted of a felony
  • living with an adult who is domiciled in the school district for one of the following reasons:
  1. the death, serious illness, or incarceration of a parent of legal guardian
  2. the abandonment by a parent or legal guardian of the complete control of the student as evidenced by the failure to provide substantial financial support and parental guidance
  3. abuse or neglect by the parent or legal guardian
  4. the physical or mental condition of the parent or legal guardian is such that he or she cannot provide adequate care and supervision of the student; or
  5. the loss or uninhabitability of the student’s home as a result of a natural disaster

Special Education and Section 504

Special education law is a complex area of education law based upon federal and state laws and regulations, case law, and policy.  The Individuals with Disabilities Improvement Education Act of 2004 20 U.S.C. §§ 1400-1482 (IDEA), is the federal law that governs how state and public agencies provide special education and related services to children and youth.  Early intervention services are for children ages 0 up to age 3.  Special education is provided to children and youth ages 3 to age 22.

IDEA ensures that all children with disabilities have available to them a free appropriate public education.  This is commonly referred to as FAPE.

A student with a disability is eligible for special education services if his disability adversely affects his education and the student needs special education.  Special education modifies the content, methodology, and/or delivery of instruction.

Special education services are outlined in an Individualized Education Plan (IEP).

If your child has a disability but does not qualify for an IEP, he or she may be entitled to a Section 504 plan.  These plans, which are also individualized, are governed by Section 504 of the Rehabilitation Act of 1973.  Section 504 is a civil rights law enforced by the Office of Civil Rights that prohibits discrimination against persons with disabilities in programs receiving federal funds.  Public schools receive federal funds and are required to comply with the law.

Private School Reimbursement

IDEA allows parents who are dissatisfied with their child’s school placement to challenge that placement in a hearing before an impartial hearing officer. 20 U.S.C. 1415(b)(7).  Under the standard set forth by the U.S. Supreme Court in School Comm. of Burlington v. Department of Ed. Of Mass., 471 U.S. 359 (1985), a board of education may be required to pay for non-public education services obtained by a parent for his or her child if: (1) the services offered by the board were inadequate or inappropriate; (2) the services obtained by the parent were appropriate; and (3) equitable considerations support the parent’s claim. Id. at 370, 374.

If a parent prevails under the standards set forth in the IDEA and Burlington, the school board must pay for the cost of the non-public education in order to satisfy its legal obligation to provide a free appropriate education. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12 (1993).

Parents need to proceed cautiously as they are required to communicate with the school about their desire to withdraw their child from public school and place him or her in a private school.  Make sure you know what is required before you withdraw your student.

Post-Secondary Schools
Ada & Section 504 of Rehabilitation Act

Most colleges and universities are covered by the ADA and Section 504 and therefore are required to provide reasonable accommodations and are prohibited from discriminating based on a student’s disability.  Click here for Q&A on this subject.

Discrimination – Private Schools

Disability Based Discrimination in Private Schools or Daycare Centers

Students attending private schools, including preschools, that do not receive any public funds, are not required by law to provide services under an IEP or 504 plan.  However, under Title III of the federal Americans with Disabilities Act, it is illegal for private schools and daycare centers (as places of public accommodation) to discriminate based on disability.  42 U. S. C. § 12182 (a).

Specifically, the statute provides that “It shall be discriminatory to subject an individual . . . on the basis of a disability . . . to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.” 42 U. S. C. § 12182 (b)( 1)(A)( i). The statute provides that discrimination includes “a failure to make reasonable accommodations in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U. S. C. § 12182 (b)(2)(A)(ii).

To be successful in this kind of case you must show

  • The school or daycare center is a place of public accommodation;
  • The individual discriminated against has a disability;
  • That the individual could succeed at the school or daycare with reasonable modifications (that do no fundamentally alter the program, and/ or cause an undue burden, and the individual would not present a direct threat of physical harm to the other children in the program); and
  • That school or daycare center failed to make such modifications

Burriola v. Greater Toledo YMCA (W.D. OH 2001)

Transition Planning

IDEA requires that students age 16 and up have a transition plan.  Transition plans structure the activities that are part of moving students from high school to independent living and post-secondary education or employment.

Transitions plans are often an overlooked and sadly under-developed part of a student’s IEP, but they are extremely important.  Students with disabilities are more likely to be unemployed after graduation than students from the general population.

Information on transition planning can be found on the National Secondary Transition Assistance Center’s website.

Seclusion and Restraint

North Carolina public schools are permitted to use physical restraint, mechanical restraint, and seclusion in certain circumstances.  Adversive procedures are prohibited.  Schools must provide parents and guardians with a copy of this law at the start of the school year. They are required to report use of any adversive procedures, prohibited restraint, physical injuries to students, and prohibited use of seclusion or seclusion in excess of 10 minutes. Use of some seclusion and restraint triggers a report to a student’s parents.  See the full seclusion and restraint statute for details.

Transportation

Transportation issues may come up if a child attends a school other than his or her base school, has a disability, or has discipline problems.  The North Carolina School Bus Safety Web is an excellent source of information on laws, policies, and studies of school bus transportation for all public school students.

Vaccines

Parents may also have difficulty enrolling a child who is not vaccinated.  Schools ask for proof of vaccination prior to enrollment. If a child is already enrolled and a vaccine booster is not administered, parents may receive an exclusion notice requiring proof of vaccination prior to allowing the child back into the classroom.  Schools do not typically inform parents that their child can be exempted from vaccinations.  In North Carolina children can be exempted from vaccination based a religious belief or a medical waiver.  The North Carolina Department of Health and Human Services website has information about the exemptions.