CHAPTER THREE

EDUCATIONAL RIGHTS OF CHILDREN

I. STUDENTS HAVE STATE AND FEDERAL EDUCATIONAL RIGHTS GUARANTEED BY THE UNITED STATES AND STATE CONSTITUTIONS

While most state constitutions originally considered education to be a duty of the state and a privilege granted to citizens, more recent thinking reflects that the United States Constitution protects and recognizes certain rights for all children to have a "free and appropriate" public education.

WHERE ARE THE CONSTITUTIONAL RIGHTS OF CHILDREN DESCRIBED?

—> The legal rights of children are recognized in and protected by both the United States Constitution and the Rhode Island Constitution. They are similar documents, often a mirror image of each other with similar language, that describe your rights, as well as restrictions on the federal and state governments to interfere with those rights. Included in the constitution is a Bill of Rights which defines specific constitutional rights that belong to you as an individual. If you feel that a state or federal law, or a representative of those governments, is violating your constitutional rights, you can have a lawyer challenge the law, or how it is being applied to you, and ask a court to protect your rights.

DO I HAVE CONSTITUTIONAL RIGHTS AS A STUDENT?

—> Yes. As will be discussed in this chapter, the United States Supreme Court has declared that children do not shed or leave behind their constitutional rights at the school building door.

WHAT ARE CONSTITUTIONAL RIGHTS?

—> Constitutional rights are involved in various and numerous areas of student life which can include censorship of your school newspaper, dress codes, random drug testing, hate speech, sex education, condom distribution, sex and race discrimination, and prayer in the schools.

These are the rights of free speech, to express an opinion without fear of being punished, religious rights, freedom to speak about how things are run, to be free not to be body searched or have your belongings searched, to be free to make decisions about your personal health and body, and to be represented by a lawyer before being incarcerated for violating a law, to name just a few. Being incarcerated means being put in a correctional facility, such as the Rhode Island Training School.

DO I HAVE A RIGHT TO ATTEND A PUBLIC SCHOOL?

—> Yes. All children in the United States have the right to attend public school free of charge. In addition to citizens, the right to go to school belongs to all children who live in the United States, including illegal residents and students who have physical or mental disabilities. This right cannot be taken away from you unless you engage in serious misbehavior which prevents other students from exercising their right to receive an education.(48)

CAN A PUBLIC SCHOOL REFUSE ADMISSION TO CHILDREN WHO ARE
NOT U.S. CITIZENS?

—> No. All children living in the United States, including children whose parents are in the country illegally, have the right to attend a public school. It is illegal for a school official to exclude you from becoming a student in the public school because you cannot show a document proving that you are a United States citizen when you sign-up or register for school.(49)

DO I HAVE THE  RIGHT TO CHOOSE WHICH PUBLIC SCHOOL I ATTEND?

—> No. If you are a minor, you must go to school in the district where you live. If you are in foster care, under federal and state law, you have the right to remain in the school where you last lived with your family before being placed in state care for that school year. The state must pay for your transportation from your original school to your foster family's neighborhood.(50)

WHAT IS A HOMELESS YOUTH FOR PURPOSES OF FEDERAL EDUCATION
LAW?

—> A homeless student is one who lacks a fixed, adequate nighttime residence. It includes sharing a house with others because your family was evicted or has no money; living in motels; living in public places; or in substandard housing. It also includes children waiting for foster care placements, such as emergency shelters or night-to-night placements that are not fixed. It includes children who have run away from home and have no address. There is a Federal Court suit filed by The Office of Child Advocate in Rhode Island that prohibits DCYF from putting children in night-to-night placements and requires that children be transported to their school during the day,, if there is an emergency overnight placement outside their school district.

HOW CAN I OBTAIN AN APPROPRIATE EDUCATION IF I HAVE NOT YET
LEARNED TO SPEAK ENGLISH?

—> You have the right to an education that is appropriate for you that includes having English instruction if you have arrived from another country and have not yet learned to speak, red, or write in English. There are different kinds of programs for schools to administer to meet the obligation to provide an appropriate education to students for whom English is a second language. There are several organizations in Rhode Island to assist you. A good place to start for information and assistance is the International Institute in Providence. Call them at (401) 461-8448.

II. STUDENTS HAVE RIGHTS AND OBLIGATIONS CONNECTED TO LOCKER SEARCHES, BACKPACK AND PURSE SEARCHES, DESK AND BODY EARCHES, WHILE ON SCHOOL PREMISES.

The Fourth Amendment to the constitution guarantees each of us the right to be free from unreasonable searches and seizures of our property by government employees, police and principals. The question always is: what is reasonable under the circumstances?

CAN A SCHOOL REQUIRE THAT I SUBMIT TO RANDOM URINE OR OTHER DRUG TESTS TO QUALIFY FOR PARTICIPATION IN SCHOOL EXTRACURRICULAR ACTIVITIES OR INTERSCHOLASTIC ATHLETICS?

—> Yes. The United States Supreme Court in 1995 ruled that there is no expectation of privacy in a locker room during school, that is more important than a school's need to protect its learning environment from illegal drug use. Not all the judges who are on the Court agreed with the final ruling. From 1995 to 2002, one study showed that only 5% of schools in the country exercised the right to conduct random drug testing of athletes.(51)

The ruling was recently expanded however, in 2002, in another case in which the Court ruled that school staff could also conduct random drug testing of public high school students in extracurricular activities. The purpose of the random drug testing is to fight illegal drug use in the schools. Activities subject to drug testing may include groups such as your band, sports, academic programs, or even your Chess Club. If you refuse to take the drug test, you could lose your right to continue your participation in that activity.(52)

In 2001, President Bush authorized $472 million in federal financing to pay for random drug testing of children attending public schools across America. Critics of the new law feel that it unfairly targets those students least likely to be using drugs, as it is believed that students involved in school activities are usually mentally healthy and too busy being productive to bother with illegal drug activity.

CAN A PRINCIPAL SEARCH MY PURSE FOR MARIJUANA IF I  CIGARETTES ON SCHOOL PROPERTY?

—> Yes. The United States Supreme Court decided in one case that because there was a reasonable belief that the student was smoking cigarettes in violation of a school rule, a school official could keep searching her purse after he found drug use materials, and letters identifying and blaming other students for purchasing drugs. The Court decided that the school's interest in keeping its learning environment free of drugs was more important than an individual student's right to an expectation of privacy in her purse.(53)

 

CAN A SCHOOL OFFICIAL MAKE ME SUBMIT TO A STRIP SEARCH IF I AM SUSPECTED OF DRUG USE?

—> Absolutely not. In a case where the school brought in police officers and drug sniffing dogs, a thirteen (13) year old girl was ordered to take her clothes off to be searched after it appeared that a dog sniffed drugs on or near her person; the Court decided that such a search was an invasion of constitutional rights and any known principle of human decency. The female student was also allowed to sue for money damages to recover compensation against the school for the violation of her constitutional rights and personal dignity protected by our constitutions.(54)

DO I HAVE A CONSTITUTIONAL RIGHT TO AHEARING BEFORE I AM SUSPENDED OR EXPELLED FROM SCHOOL BASED ON SOME ALLEGATION OF MISCONDUCT?

—> Yes. The due process clause of the constitution requires that there must be and official proceeding and a hearing before the school, as the representative of the government, can take any action against you after being accused of some wrongdoing.(55)

III. STUDENTS HAVE THE RIGHT TO BE FREE FROM SEXUAL HARASSMENT WHILE ATTENDING SCHOOL.

WHAT IS SEXUALHARASSMENT?

—> Sexual harassment is commonly understood as any unwelcome behavior of a sexual nature. There have been several cases describing it as unwanted sexual touching, grabbing, remarks, and gestures. Such behavior ruins a student's sense of well-being and emotional safety in the learning environment. All students have an absolute right to be free from sexual abuse or harassment while they attend school, whether such harassment is from school officials or other students.(56)

Most cases involve student-to-student sexual harassment; however, sexual harassment can also occur against students by teachers, coaches, counselors, principals or other school staff.

Federal law, as noted, makes it illegal for a school to allow a student to be sexually harassed. if the student has been sexually harassed and wants to sue for money damages, the student must prove that the school had actual notice of the harassment and chose to do nothing about it to protect the student.

IF I AM A VICTIM OF SEXUAL HARASSMENT FROM ANOTHER STUDENT,  THAT MUST I PROVE TO ESTABLISH MY CLAIM?

—> A student who sues another student for sexual harassment must show that the misconduct was so severe that it prevented the student victim's access to an educational benefit or opportunity.

IV. EDUCATIONAL RIGHTS OF STUDENTS WITH LEARNING DIFFERENCES AND DISABILITIES.

WHAT IS A LEARNING DISABILITY?

—> Under federal law, students who have physical or mental health problems that limit at least on of life's major activities are disabled. Disabled children can include children who are deaf, hard of hearing, totally or partially blind, speech-impaired, have trouble moving, or have a specific learning disability. an example of a specific learning disability would include the inability to learn to read in the usual way, such as dyslexia.(57)

WHAT IS AN APPROPRIATE EDUCATION FOR CHILDREN WITH DISABILITIES ATTENDING SCHOOL?

—> The federal law protecting students with disabilities has two objectives. The first one is to identify disabled students in order to provide them with the special education they need. The second one is to assure that students with disabilities are not placed into a special class if they do not need to be.

You have the right to a free and appropriate education regardless of whether you have disabilities. Rhode Island, like all other states, has created (enacted) laws and regulations describing how students with disabilities are to be provided with the required education.(58)

IF I AM HAVING TROUBLE IN SCHOOL AND SUSPECT THAT I MAY HAVE LEARNING OR OTHER DISABILITIES, HOW DO I GET ACCESS TO SPECIAL EDUCATION SERVICES AND PROGRAMS?

—> The public school you attend must pay for experts in the field to evaluate you by giving you tests to determine what neurological or other conditions may be interfering with your ability to learn. Once your condition has been diagnosed (identified), you school officials, teachers, parents, along with those expert, will develop and Individualized Education Program (IEP) designed for your individual educational needs.

If you or your parents, or education advocate (sometimes provided for you if you are in state care), feel that the IEP is inadequate, you have an absolute right to challenge it and schedule a hearing before a person who is independent and not working for the school. You have the right to have a lawyer at the hearing and to appeal a decision with which you disagree.(59)

V. STUDENTS' RIGHTS TO FREE SPEECH AND EXPRESSION: SCHOOL NEWSPAPERS AND DRESS CODES, RELIGIOUS EXPRESSION ON GOVERNMENT PROPERTY

CAN MY SCHOOL FORCE ME TO RECITE  THE PLEDGE OF ALLEGIANCE TO THE FLAG IF I DON'TWANT TO?

—> No. The First Amendment protection of the right to free speech includes the right not to speak as well. The right to speak or write without governmental interference also includes expressive conduct, such as conduct that sends a message, like picketing a store, wearing a political button, or creating a work of art. The students who challenged being forced to participate in reciting the pledge of allegiance, or risk being expelled from school, demonstrated to the Court that compulsory (required) recitation of the pledge interfered with their religious freedom, and that they could not be forced to recite the Pledge of Allegiance.(60)

HOW DOES A COURT MAKE A DECISION ABOUT THE EXTENT TO WHICH A SCHOOL CAN DICTATE MY CLOTHING CHOICES, OR IMPOSE DRESS CODES ON THE STUDENT BODY?

—> The United States Supreme Court has found that a school cannot suspend a student for wearing a black armband in protest of the Vietnam War, but also found that a student in the South, who wore a jacket with a confederate flag, offensive to people of color and other persons as well, could be suspended. (61) 

Because the confederate flag represented such terrible racially discriminatory conduct and could understandably create racial tension in the school, the court permitted school officials to regulate the speech and protect the school environment from chaos. By contrast, wearing a black armband to protest the Vietnam War did not create significant tension in the learning environment to justify its censor.

Students do not shed or leave behind their constitutional rights to free speech or expression when they enter the school building door. But school officials do have the power and authority to regulate expression that substantially interferes with the rights of other students and the work of the school. There is always, in the law, at attempt to balance everyone's interests affected by a court decision.

WHAT ARE SOME OTHER EXAMPLES OF THE LIMITS ON MY FIRST AMENDMENT RIGHT TO FREE SPEECH WHEN I AM IN SCHOOL?

—> The limits on your speech while you are in school are continuously being defined. A public high school student, who addressed other students at a school assembly and used sexually crude language in an attempt to be humorous, was suspended for violating a school rule against obscene language. The court concluded that the suspension did not violate the student's constitutional right to free speech. The student's speech was considered hostile toward teenage girls in the audience, as well as towards teachers and other students. Other students generally have a right to a learning environment free from such language.(62)

The test in such cases is whether the speech is disruptive of the school environment. The larger the potential for disruption, as found by the court, the greater the likelihood that the school's rules will be upheld over the individual student's right of free speech or expressive conduct.

DO SCHOOL OFFICIALS AT MY SCHOOL HAVE THE AUTHORITY (POWER) TO REVIEW, REGULATE, AND CENSOR WHAT IS INCLUDED IN STUDENT NEWSPAPERS OR OTHER PUBLICATIONS SPONSORED BY MY  
SCHOOL?

—> Yes. The United States Supreme Court allowed a school principal to censor articles in a school newspaper that talked about the students' experiences with the divorce of their parents and their own sexual experiences. The principal decided that some of the content violated other people's right to privacy. The school did not want the younger students to read the sex stories. There were judges who disagreed with the decision because they felt that allowing the principal to remove the articles was "brutal censorship" that violated the First Amendment guarantee of the right to free speech.(63)

VI. STUDENTS' PRIVACY RIGHTS

CAN MY SCHOOL REQUIRE MY PARTICIPATION IN FILLING OUT A QUESTIONNAIRE THAT SOLICITS PRIVATE INFORMATION ABOUT ME OR MY FAMILY?

—> No. It is illegal for any person or school to circulate or permit to be circulated in any school any questionnaire that asks you, as a student, any personal questions about you or your family. This is considered a violation of your privacy and constitutional rights as a child. An unauthorized questionnaire is also an invasion of your family's home. If the Department of Education or a local school committee has obtained approval, however, it may be allowed. Otherwise anyone who violates this law can be fined up to one hundred dollars ($100.00) for each offense.(64)

DO I HAVE PRIVACY RIGHTS IN MY SCHOOL RECORDS?

—> Yes. You and your parents may not even be aware of the amount or type of information that is collected in your school file. From the time you enter kindergarten, until you graduate, your school district has been collecting information about you.

DO I HAVE THE RIGHT TO SEE MY OWN SCHOOL RECORDS?

—> Yes. Federal law grants you the right to see our own records and limits the ability of the public to see your records. The Buckley Amendment to the Family Education Rights and Privacy Act (FERPA), guarantees to parents and students who are over eighteen (18) years of age, the right to examine student records, but only if the school receives federal funds. In FERPA, Congress directs the U.S. Secretary of Education to deny federal funding to Rhode Island if it allows a policy or practice of permitting unauthorized release of educational records or other personal information about you. The law applies to public and private schools receiving federal funds of any kind. Under Rhode Island law, the parents or guardians of each child enrolled in an elementary or secondary school are to be notified each year in writing by the school district responsible for the operation of their school of their educational rights which include the right to inspect, copy, and correct their school records.(65)

DO I HAVE THE RIGHT TO CORRECT INFORMATION IN MY STUDENT RECORDS IF I DISCOVER ERRORS IN THE RECORDS?

—> Yes. Under the Buckley Amendment, and under Rhode Island law, you have the right to meet with your school staff (administrators) to change records that contain incorrect or unfair material about you. If your request for a meeting is rejected, you have a right to formal hearing before an impartial hearing officer, within a reasonable time after you request it. You must have a full opportunity to make your case about correcting errors in your school records.

The hearing officer must give you a written decision on your request to correct your record within a reasonable time after the hearing. If you don't like the decision, you have the right to appeal, and to have that decision reviewed by a higher authority.(66)

DO I HAVE THE RIGHT TO OPT OUT (NOT PARTICIPATE) OR PREVENT DISCLOSURE OF ANY INFORMATION ABOUT ME CONTAINED IN MY SCHOOL RECORDS, UT REQUESTED BY THE MILITARY SERVICE?

—> As will be discussed in CHAPTER SEVEN, regarding the mandatory registration (sign-up) of males for the military services, federal law now requires schools to provide "directory information" about you, such as your name, address, date and place of birth, as well as your phone numbers, to military recruiters. Schools that refuse to comply face losing federal education funding. There is a section in the law, however, that allows parents to opt out (not participate) in sharing this data. For further assistance, you can contact a private lawyer or the Rhode Island chapter of the American Civil Liberties Union (ACLU) whose number in Providence is (401) 83-7171.

This information may also be requested when you apply for a job by your prospective employer, as will be discussed. A prospective employer has no right to this information unless you sign a release authorizing its disclosure.

IF I BECOME PREGNANT, MAY I CONTINUE AS A STUDENT IN SCHOOL?

—> Yes. Federal law protect students from discrimination by schools, whether the student is married, pregnant, pregnant and unmarried or has children. The school cannot exclude you from attending classes if you are pregnant. Because extracurricular activities are an imp9rtant part of school life, pregnant students cannot be discriminated against by rules that limit their ability to participate in extracurricular activities.(67)

 

 

 

 

 

 

 

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