Linda had looked forward to going back to school later in life after her divorce. She just hadn’t expected all the rigmarole to get started. There were the financial-aid form, loan agreement, tuition agreement, and housing agreement, all to read, complete with attached records, click on all the acknowledgement boxes, and sign. Then there were the educational program agreements, pathway documents, clinical handbook, internship agreement, preliminary professional license application form, and student conduct code, again to read, complete with attached records, click on all the acknowledgements, and sign. Linda even had to get fingerprinted and authorize a criminal history background check for her preliminary professional license application form. As she completed legal document after legal document, Linda laughed that maybe she should instead have gone to law school.

Education

Education has long been the presumed best path to a better life. But like other aspects of life in our sophisticated society, education can present a minefield of legal issues. That is especially so because education involves your whole life. Schools don’t just sell you a hot dog, hamburger, cable television service, or car. Schools welcome you to their campus, care for you while there with food, medical, transportation, library, and recreational services, educate you through elaborate programs with clinical facilities replicating the real world, and on your way out help you get licensed, certified, otherwise credentialed, and employed. Schools have an incredibly complex role to fulfill. In doing so, they rely heavily on law and legal procedures. Law has a lot to say about education because education is so critically important to our welfare. Policymakers promote education not only through curriculum, staffing, and funding measures but also through law, rule, and regulation. In this chapter, see if you are making the most of your educational rights, responsibilities, and opportunities, within the confines of law.

Access

Access to education is a first critical question that law addresses. State constitutions and laws guarantee children a right to free public education. Those laws require schools to enroll children within their districts and may require schools to consider requests for out-of-district enrollments. Federal and state laws also require school officials to enroll homeless children. State truancy laws require children to attend school. State laws may require school officials to investigate why certain students are not attending before suspending them for absences. Federal and state labor laws also prohibit certain child labor, particularly as that labor would interfere with childhood education. Federal cases interpreting the Constitution, along with federal and state statutes, prohibit schools from using race, color, national origin, sex, religion, or disability to deny equal access to education. These rights don’t just get your student into school. These rights can also keep your student in school when school officials attempt unlawfully to expel your student through a disciplinary hearing. Students with behavioral issues in school are sometimes reacting to bullying against which the school has a legal duty to protect them or manifesting a disability that the school has a legal duty to accommodate but is failing to do so. The same can be true with a student’s failure to academically progress and even as to excessive tardiness, absences, and truancy, for which the school may threaten dismissal and transfer to an alternative disciplinary program. You and your student also have rights of free speech and expression in school. Schools must not threaten expulsion because of the exercise of those rights. Get qualified legal representation if your school or your child’s school is denying program access or threatening school expulsion in violation of legal rights against bullying, intimidation, and discrimination.

Audit: Identify which of the following circumstances may be interfering with your education or the education of your children: (a) school-district residency or other enrollment disputes; (b) exclusion from classrooms or programs over allegedly disruptive behavior; (c) exclusion from programs based on race, sex, disability, or other personal characteristics; (d) disputes over attendance and excused or unexcused absences; (e) approvals for tutors, aides, counselors, or other professional help with academics or behavior; (f) disagreements with the school over medication or other therapeutic regimens; (g) discipline, suspension, dismissal, or other retaliation for religious views, symbols, or clothing; (h) discipline, suspension, dismissal, or other retaliation for political or artistic expression; (i) disagreements over transportation to and from school.  Consult a lawyer knowledgeable in school law for each issue that you identified or for any similar access issue. 

Accommodation

You and your children have certain federal and state protections ensuring reasonable accommodations for disabilities. The federal Individuals with Disabilities Education Act (IDEA) requires that public elementary and secondary schools provide disabled children free appropriate education in the least restrictive environment, meaning greater integration of disabled students into general programs. If your child has a qualifying disability, your child should have an individualized education program (IEP) in place to accommodate your child’s disability and provide special education services. You and your student have the right to participate in IEP team meetings to negotiate IEP terms. You can also enforce an IEP through district procedures and the courts if necessary. Section 504 of the Rehabilitation Act of 1973 reinforces and extends the IDEA law’s protections, providing 504 plans to children needing accommodation. These rights extend to both academic and extracurricular programs. The Americans with Disabilities Act offers similar protections not just at the elementary and secondary school level but also through higher education. You and your minor children have substantial legal protection for pursuing education notwithstanding disabilities. Use those protections to take full advantage of educational rights and interests. Get qualified legal representation when you encounter obstacles.

Audit:  Identify which of the following circumstances may be interfering with your education or the education of your children: (a) the school’s failure to modify facilities with ramps or lifts; (b) the school’s failure to permit altered class schedules; (c) the school’s failure to provide equipment or devices; (d) the school’s failure to provide aides or attendants; (e) the school’s failure to adjust exam conditions or time; (f) the school’s failure to provide large-print or other adapted materials; (g) the school’s failure to permit sunglasses or hearing protection; (h) the school’s failure to permit medication administration; (i) the school’s failure to accommodate special restroom needs. Get qualified legal representation to enforce rights to reasonable accommodations and special education services through district procedures and the courts. 

Advancement

You and your children also have certain protections from the law around advancement in school through courses and grade levels to graduation. In elementary and secondary education, the school should not be threatening to hold back or expel your child for academic failure when the cause lies in the school’s failure to protect against bullying, intimidation, and harassment, or the school’s failure to accommodate disabilities and provide special education services. In higher education, federal education funding laws require that colleges and universities receiving federal funding maintain satisfactory academic progress (SAP) standards that students must meet for federal student loans. You must maintain a minimum cumulative grade-point average (GPA) and must not withdraw from or leave incomplete an excessive number of courses. You must also complete your degree within a maximum time. But the federal law permits your school to relieve you from SAP requirements for extenuating circumstances like a serious illness, injury, or death in the family. Schools thus maintain SAP-appeal procedures that students can invoke to remain enrolled and progressing toward graduation. Get qualified legal representation if you or your child faces school dismissal over failure to academically progress.

Audit: If you or your student are facing academic progression issues, identify which of the following may be a source of or contributor to those issues: (a) bullying, intimidation, or harassment by other students; (b) sexual harassment by a student or teacher; (c) hazing; (d) the school’s failure to accommodate a disability; (e) an illness or injury; (f) a death in the family; (g) some other severe stress such as domestic abuse, separation, divorce, home loss, or job loss. Get qualified legal representation to assist with grade appeals, SAP appeals, and enforcement of disability rights to accommodations and services.

Safety

Law also has a lot to say about school safety. Federal and state laws prohibit guns in schools, while state laws often expand that protection to ban other weapons. Schools regularly expel students who bring a weapon to school under rules that may also provide for the expelled student’s interim education and later reinstatement. Many state laws also prohibit or limit teachers’ use of force, or corporal punishment, to discipline students. Federal and state laws also prohibit harassment particularly when based on a student’s race, sex, disability, or other protected characteristic. Many states have also adopted anti-bullying measures. A federal law known as the Clery Act requires colleges and universities to warn about ongoing crimes presenting a serious threat and to disclose information in public logs on crimes that occur on and adjacent to campus. The Clery Act also requires disclosure of sexual assaults, protects sexual-assault victims, and requires registered sex-offender and emergency response system notices. You have substantial legal rights and protections relating to school safety.  You and your children should feel and be safe when attending school, to enjoy the full benefit of education. Get qualified legal representation if you or your children face safety threats in school.

Audit:  Identify which of the following conditions may be threatening your safety or the safety of your children at school: (a) evidence or suspicions of weapons at school; (b) student fights or other physical intimidation; (c) students bullying other students; (d) students sexually harassing other students; (e) teachers spanking, paddling, or using other forms corporal punishment; (f) teachers inappropriately hugging or touching students as intimate behavior; (g) teachers having sexual affairs with or dating students; (h) possession of illegal drugs among students at school; (i) pornography or sexting at school. Get qualified legal representation to advocate for safety on any of these issues.

Conduct

Schools must maintain an orderly academic environment for students to learn. Schools therefore adopt honor codes, academic integrity policies, and student codes of conduct to ensure order and integrity in school operations. Yet school officials sometimes err in applying those policies, suspending and expelling innocent students or applying unduly harsh discipline. You and your children have constitutional rights to the school’s notice of alleged wrongdoing and an opportunity to respond at a fair hearing, before suffering a long-term suspension or expulsion. A school may suspend a student immediately without hearing for emergency safety reasons. If you or your child face suspension or dismissal, then get the help of a qualified discipline defense lawyer to preserve and restore school enrollment. Hearings may be before school officials or the school board, with administrative or court review. Truancy involving excessive absences may involve a petition with the local juvenile court and orders to attend, the violation of which may lead to a youth’s detention in juvenile facilities for contempt of court. Get qualified legal representation for defense of disciplinary or juvenile hearings.

Audit: If you or your child face conduct issues at school, you may be wondering whether you can address those issues on your own, without legal representation. Identify the following skills with which you might need a lawyer’s help in a school hearing: (a) obtaining the school’s detailed notice of the alleged wrongdoing; (b) invoking a hearing before the appropriate school officials; (c) gathering documentary evidence for use at the hearing; (d) choosing and preparing witnesses for the hearing; (e) making opening statements at the hearing; (f) presenting and authenticating exhibits at the hearing; (g) presenting and questioning witnesses at the hearing; (h) making arguments at the hearing; (i) citing applicable law, rule, and regulation to hearing decision makers; (j) supplying written analysis and summaries for decision-makers; (k) reviewing, evaluating, and appealing hearing decisions.  

Control

Schools design their campuses, establish their culture, and decide their curriculum. If traditional schools do not meet your educational goals, then the law may provide you with educational alternatives. Districts in many states must provide alternative high schools for students to complete their diplomas when they cannot do so or prefer not to do so in their home district and school because of pregnancy, infant care, relationship issues, health issues, or other disruptions. General equivalency diplomas (GEDs) are available online and through alternative classrooms as a substitute for a traditional high school diploma. Law also permits homeschooling as an alternative to compelled elementary and secondary school attendance. Under homeschooling laws, parents who choose to keep their children at home for school must notify the school. They must conduct school at home for the required number of hours each day (typically six) and days each year (typically 180). Homeschoolers must provide a curriculum including components similar to those at traditional schools, assess the child at least annually, and maintain records of instruction and assessment. The homeschooling parent must also qualify to instruct the child but may usually do so with modest college education. Homeschooling laws typically permit homeschooled children to attend traditional school athletic programs and events, and even to choose and attend certain classes. The law gives you substantial control over your education and the education of your children.

Audit:  Identify which of the following situations may encourage you to pursue alternative education for yourself or your children, outside of the traditional classroom: (a) travel; (b) work; (c) arts; (d) athletics; (e) pregnancy; (f) child rearing; (g) personality conflicts; (h) cultural conflicts; (i) ideology conflicts; (j) faith differences; (k) language immersion; (l) creative opportunities; (m) fostering genius.  Retain qualified legal representation if you encounter obstacles to obtaining alternative education.  

Savings

Lawmakers know that higher education can be expensive and so have taken steps to encourage college saving. The federal tax code’s Section 529 permits you to fund an account for a child or grandchild to use for college tuition, fees, books, room, and board. While you may not deduct 529-plan contributions from your income to reduce your income taxes, 529-account earnings and qualifying distributions are tax free. While 529 plans generally do not limit your annual contribution amount, contributions of more than the annual gift-tax limit may result in your child or other designee owing gift tax. The alternative Education Savings Account (ESA), also known as a Coverdell plan, limits your annual contributions to no more than $2,000 but allows you to designate yourself, not just your children or others, as the beneficiary. You may also use an ESA to pay expenses not just of higher education but of primary and secondary education. Make the most of your educational opportunities and those of your children by saving for education under tax-law-favored plans. Individuals also leave lasting legacies by providing in wills, trusts, and other estate plans for the education of children, grandchildren, and others. Consider leaving such a legacy.

Audit: Identify those for whom you could or should be saving for education, among yourself, your children, your grandchildren, or others. Estimate the amount you would like to save and the date by which you would like to save it. Then consult a qualified representative about how to participate in tax-favored education savings plans. If you already have money saved that you intend to convey for the education of children, grandchildren, or others, then consult a qualified lawyer about an estate plan that will ensure that those funds go for the purpose you intend. 

Loans

You may decide to take out student loans for college or graduate education or to guarantee the student loans of a child, grandchild, or other. Be cautious with student loans. While you may discharge many other types of loan in the unfortunate event of your bankruptcy, federal bankruptcy laws do not generally permit discharge of student loans. Be especially cautious when guaranteeing the loans of others. Chances are good that you, not the borrower, will repay those loans. Lenders seek loan guarantees when they believe that the borrower lacks credit worthiness. With those cautions aside, federal laws regulate student-loan programs to make them advantageous. The federal government subsidizes some student loans so that loan interest and payments do not begin until a grace period expires following graduation. Law generally requires that lenders permit you to pay student loans off early. Federal law may permit you to defer repayment for unemployment, re-enrollment, graduate fellowship, disability, or financial hardship. Some federal student-loan programs offer loan forgiveness for working in public-interest positions for periods such as ten years. Other laws offer you repayment plans in which your payments gradually rise over time or with increases in your income. 

Audit:  List and total the current balances and current or anticipated monthly payment on all your student loans. Develop a budget making your best estimate of your monthly income and expenses after graduation, when your loan repayment commences. If that budget indicates that you will be unable to pay, then consult a qualified representative regarding potential deferment, graduated repayment, income-sensitive repayment, and loan-forgiveness options.  

Key Points

• Law has a lot to say about your education and that of your children.

• Several laws guarantee access to education for you and your children.

• Disability laws require schools to provide reasonable accommodation.

• Your disabled child may be due special-education services.

• Law provides protections against dismissal for failure to advance.

• Several laws address school safety, ensuring educational rights.

• Schools must generally provide due process in disciplinary matters.

• Tax laws encourage saving for education. 

• You control your education and the education of your children.

• Educational loans offer advantages and disadvantages.

Read Chapter 8.