The following information was discussed by Attorney Whitney Hughes on the August 28, 2007 edition of Legal Briefs on KDKA's Pittsburgh Today Live Show.
This time of year, when students are starting back to school we often hear questions from parents regarding what the school’s responsibilities are to the students and what their rights are in any given situation.
Pennsylvania has 501 school districts which are governed by school boards. They have overall authority over the disciplinary process but usually delegate those duties to superintendents or principals.
However, there are two instances where a school board’s power is limited.
How much power does a school have in regulating the conduct of my child?
In general, a schoolteacher, to a limited extent, stands temporarily in a parental capacity ("in loco parentis") to pupils under his/her responsibility. A schoolteacher may need to exercise reasonable powers of control, restraint, and correction so that the teacher may properly do his/her duties and accomplish the purpose of educating the students.
The school's authority over a pupil may continue even after classes end, and the student leaves the school premises. Misconduct by students on the way home from school or on the way to school may properly be within the scope of the school's authority. Conduct outside of school hours and not at school functions or on school property may subject a pupil to school discipline, if it directly affects the school.
How do I file a complaint against a teacher?
Pennsylvania law authorizes any interested party to file a disciplinary complaint against a professional educator or charter school staff member with the Department of Education. Generally, complaints must be filed within one year from the date of the occurrence of any alleged misconduct or from the date of its discovery. If the alleged misconduct is of a continuing nature, the date of its occurrence is the last date on which the practice occurred. If the alleged misconduct involves sexual abuse or exploitation of a child or student, the complaint must be filed within five years of reaching the age of 18.
Can my child’s locker or purse be searched?
While the U.S. Constitution upholds the right to be safe from unreasonable searches and seizures, the standard for school searches is less rigid. The search is lawful if the school has a "reasonable suspicion" that a school rule has been violated. This means the search must be justified when made and reasonably related to the circumstances being investigated. For example, a student is believed to have been smoking on campus, but denies it. A reasonable search can be made of the purse or backpack he/she was carrying at the time of the incident. His/her locker and pockets can also be legally searched. Courts will weigh a student's right to privacy against a school's need to obtain evidence of school rule violations and violations of the law. This "reasonable suspicion" standard has been upheld in challenges to locker, desk, and car searches.
My child has been told that he cannot participate in extracurricular activities. He is a fantastic basketball player and really wants to play. Doesn’t he have a right to play?
Participation in school athletics is not a fundamental right but a privilege which the school, or a voluntary association, whose rules a school agrees to follow, may withdraw if the student fails to qualify for the privilege. The school may not arbitrarily allow the sports privilege to some students and not to other students, but may impose reasonable requirements such as a minimum grade point average.
How strict are the gun free school zone regulations?
We’ve certainly heard a lot about this lately—usually because some extreme cases make the news.
The law requires schools to expel for at least one year any student who possesses a weapon in school, at a school function, or on any school transportation.
“Weapon” includes any knife, cutting instrument, cutting tool, or any other tool instrument or implement capable of inflicting serious bodily injury.
There is a catch, though. The law also allows the superintendent of a school district to recommend modifications of such expulsion requirements.
My daughter is starting a new school and I’m concerned about sexual harassment issues. Where do I stand?
Again, something we’ve heard a lot about lately. School districts are also required to provide a copy of the school’s code of conduct in the school library and to provide a copy to all parents or guardians.
Public school officials can be legally responsible for student-on-student sexual harassment that occurs at school when:
- Officials have been deliberately indifferent to the harassment.
- Officials clearly know about the harassment.
- The harassment is so pervasive that it deprives the student being harassed of educational opportunities at the school.
Examples of Sexual Harassment:
Today, it is generally accepted that any type of unwelcome conduct directed toward a student or employee because of his/her gender may constitute sexual harassment. This conduct may include:
- Touching ¬the arm, breast, buttock, massaging the neck or shoulders.
- Verbal comments about a person’s body, what type of sex the person would be “good at,” the person’s clothing, and looks.
- Name calling ¬ from “honey” to “bitch” or worse.
- Spreading sexual rumors about a person, through such devices as graffiti or “slam books.”
- Suggestive gestures such as touching oneself sexually in front of others.
- Making suggestive gestures or sounds, such as kissing or smacking, licking the lips, catcalls, winking, leers, and stares.
- Pressure for sexual activity, such as cornering, blocking, standing too close, following, conversations that are too personal, repeatedly asking someone out when he/she isn’t interested.
- Stunts, such as “spiking” - (forcibly pulling down a person’s pants) and “wedgies” ¬ (pulling on the waistband of a person’s underwear to wedge it in his/her buttocks).
- Sexual assault from groping to rape.
If you have a sexual harassment complaint against an individual you should:
- Find out what your school's sexual harassment policy is. All schools must have a procedure for students to report and resolve complaints of sexual harassment.
- Follow your school's complaint procedure.
- Put your report in writing. Include all the details of the incident such as who was involved, who witnessed it (get their names and contact information!), what happened, when it happened, and where it happened. Keep a copy of the report for yourself.
- File a complaint with the Pennsylvania Human Relations Commission. Contact your local branch by looking in the government section (blue pages) of your phone book.
- Speak with an attorney about filing a lawsuit.
My child has been diagnosed with ADHD/ADD. How are things handled in schools now?
ADHD/ADD are classified as disabilities.
There are two federal laws that guarantee a free appropriate public education and provide services or accommodations to eligible students with disabilities in the U.S. They are:
Section 504 of the Rehabilitation Act of 1973 (called Section 504): This is a civil rights law to prevent discrimination on the basis of a disability.
Individuals with Disabilities Educational Act (called IDEA): This is specifically designed to address the issues of students with disabilities and make sure they have access to a free and appropriate public education
Both laws also say that children with disabilities have to be educated as much as possible with children who do not have disabilities. However, there are differences between Section 504 and IDEA. Parents, health professionals, and teachers should know what each law offers so that they make the best choice for the child. Always consult an attorney to find out what options are best for you.
If you need to speak to an attorney, call our Lawyer Referral Service at 412-261-5555.