A 2005 article in the Cornell Journal of Law & Public Policy states that "there is clear evidence that zero tolerance policies disproportionately affect minorities." Challenging Zero Tolerance: Federal & State Legal Remedies for Students of Color, 14 Cornell J.L. & Pub. Pol'y 327 (2005). The University of Pennsylvania's Center for the Study of Race and Equity in Education found that in "132 districts, black children were suspended at a rate at least five times as high as that for others in the student population" and a study by Joanne Golann argued that "non excuses" schools were producing "worker-learner" children who were constantly self monitoring and holding back their opinions, which, in effect had "little chance of [producing] the next Steve Jobs." Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-2000d-7, prohibits discrimination based on race, color, or national origin in covered programs and activities. Students who suffer harm as a result of intentional discrimination prohibited by Title VI can seek injunctive relief and damages from the school.
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination in public and private school settings on the basis of disability if the school is receiving either direct or indirect federal funding. Section 504 accommodations provide equal access and a Free Appropriate Public Education (FAPE) for students with disabilities.
Section 504 covers students, parents, employees and other individuals with impairments. The Individuals with Disabilities Education Act (IDEA) (20 USC §§1400-1482) ensures that students with disabilities are afforded a free appropriate public education (“FAPE”). 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005) and gives families with qualified children a right to assessments and tests for determining special education eligibility and needs, written IEPs, access to a child’s school records, and a dispute resolution process.
Under Section 504, the definition of impairment is broader in that it includes any physical or mental disability that substantially limits one or more major life activities, including, but not limited to, learning.Section 504 covers all students who meet this definition, even if they do not fall within the definition of “disability” under IDEA (for public schools). It is important to note that students who qualify for Section 504 services may not automatically qualify for special education services under the IDEA. Students eligible for services under IDEA are students who need special education and related services to benefit from their education because they have certain specific types of disabilities that would otherwise prevent them from receiving a FAPE.
Yes, under New York Education Law sec 912-a, New York schools can ask students attending grades 7 through 12, in both public and private schools, to take a drug test. Parents must provide written consent. The test can be conducted without notice and if the test is positive for drug use, the school can report the positive results to social services and the parent. The test results must be kept separate from the student's school and education records and are destroyed at graduation or final severance from school. A student may object to the drug tests if the test conflicts with their genuine and sincere religious beliefs.
Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681(a), states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”. Title IX also ensures that a school provide an environment free from sexual harassment and violence perpetuated by either teachers or peer students. Students who experience harassment can challenge their school's failure to address the harassment and can seek a court order requiring the school to take additional steps to ensure a safe educational environment. David v. Monroe County Board of Education, 526 U.S. 629 (1999). If an official of the school with the authority to respond actually knew of and was deliberately indifferent to the harassment, then the student can also seek monetary relief from the school. Id. The protection against sexual harassment extends to students with disabilities. See, Lopez v. Metropolitan Government of Nashville, 646 F.Supp.2d 891 (M.D. Tenn. 2009).
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We are civil rights attorneys for children, because children have a civil Constitutional right to an education. In New York, access to an elementary and secondary education is a protected property right for children up to the age of 21. N.Y. Const. Art. XI sec 1; EDN sec 3202(1); Lopez v. Bay Shore Union Free School Dist., 668 F.Supp.2d 406. Note that school suspensions are a deprivation of this right. Gross v. Lopez, 419 U.S. 565, 576 (1975).
Under Education Law 129-B New York colleges and universities must adopt codes of conduct that include a requirement of affirmative consent to sexual activity. Students must be provided with a "Bill of Rights" that includes the right to report incidents to the school or law enforcement, the right not to report incidents, the right to be free from retaliation, and the right to access services. Victims or other persons reporting incidents are immune from charges of drinking or substance abuse which may be in violation of the school's conduct code. Students reporting incidents have emergency access to a Title IX coordinator or other individual trained in interviewing sexual assault victims, as well as a sexual assault forensic examination or other means of preserving evidence. NY colleges and universities must also conduct year-round public education campaigns to prevent sexual assault, dating violence, domestic violence and stalking and they must provide aggregate data on incidents, as well as assessments of the "campus climate" to NY's Education Department.
The case of Goss v. Lopez establishes that a "student's legitimate entitlement to a public education [is] a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that clause."
Because of this, school disciplinary procedures must meet minimal standards of fairness and due process. If a student is denied the opportunity to be heard, or that opportunity is usurped, or if the safeguards to ensure a voluntary, knowing and intelligent waiver of rights to due process have not been upheld, then a student has been denied a property interest and the disciplinary imposed is unfair and unjust. EDN §3214. See also, Appeal of McMahon, 38 Ed Dept Rep __, Decision 13,976.