Knowledge is power, especially so when it could be life-saving. In public schools, parents and students must know their rights. In this article, let’s examine the 15 laws and rights that can protect your child against unfair school discipline or treatment.
Knowing these laws and rights can minimize or entirely avoid the chance of unfair treatment or wrongful disciplinary punishment: suspension, expulsion or arrest.
The disciplinary action can come from a school official or School Resource Officer (SRO) or the like. Knowing the laws and rights may even change your child’s life forever – by preventing him/her from entering the school-to-prison pipeline.
However, the key to protecting your child from wrongful school disciplinary actions is more than just knowing the laws and rights. It also depends on how well you can coach your child beforehand to handle those sudden adverse situations that require instant strategic actions.
Disclaimer: Information provided in this article is for your general guideline only. For legal advice, please consult an attorney.
Know your rights to empower you against bureaucracy, wrongful suspension, expulsion or arrest
1. Your child’s right to request parent’s presence before answering high-pressure questions
This is an immensely overlooked and underused right that parents should, but largely fail to, coach their child to employ when he/she is facing high-pressure questioning from a school official or, worse yet, an SRO. As such, unfortunately, your child could accidentally incriminate himself/herself with statements wrongly or unjustly interpreted by these authorities. The result: a wrongful disciplinary punishment.
So embrace this: your child, when he/she runs into disciplinary trouble at school, has the absolute right to request your presence before answering any questions from a school official or SRO. Before such a possibly intense situation happens, coach your child to speak calmly and firmly to the authority, “I would like to call my parent (or legal guardian) now, please.” Then proceed to call you immediately.
2. Your and your child’s Right to Remain Silent
Your child is vulnerable enough facing high-pressure questioning from a school official. But when that comes from an SRO, your child could be as intimated as an ant looking up to an elephant.
One day, I met Criminal Law attorney Nardine Guirguis at our board meeting for our community organization, Wake Collaborative To Stop Bullying. I seized the “free” opportunity and asked her to take on a student’s right to remain silent. She gracefully stated:
“Not only would Miranda rights need to be read and consented to, but because children (i.e., minors) are unable to enter into contracts because of their lack of capacity/competency to do so, then there needs to be an additional layer of protection. Specifically, the child should not be questioned without a parent (or legal guardian) present and the parent (or legal guardian) being read the Miranda rights in order to ensure proper waiver or effectuation of them.”
So to prepare for your child’s questioning from an SRO, coach your child to calmly and firmly state, “I have the right to remain silent, and I would like to call my parent (or legal guardian) now, please.” And follow that with a call to you immediately. You can learn more about Miranda rights here.
A case study on your child’s right to Miranda warnings and your presence:
Last June, the U.S. Department of Justice announced in a news release on its settlement agreements with Mississippi and its city Meridian. This settlement came as a result of a 2012 lawsuit filed by the department against the Mississippi Division of Youth Services and the Meridian Police Department, among other entities, on alleged violations on the rights of youths’ due process.
Part of the agreement, as stated in the news release, “requires the city police department to uphold constitutional protections following a youth’s arrest, mandating Miranda warnings as soon as a youth reasonably believes he or she is not free to leave and prohibiting officers from interviewing detained youth unless a guardian or attorney is present.”
What if your child is under custodial interrogation? When does an SRO’s questioning become custodial interrogation?
Christopher Brook, Legal Director of ACLU of North Carolina, explains:
“A custodial interrogation is an interrogation conducted by law enforcement, but the presence of a school resource officer at the request of school administrators does not make the questioning a custodial interrogation. The key question in determining if an interaction is a custodial interrogation is whether a reasonable person in the student’s position would believe s/he is in custody of law enforcement, or if the student has been deprived of its freedom of action in some significant way. Age, and perceived age, is a factor in determining if a student would believe s/he is in custody.
Also, because students shed some of their freedom of action when on school grounds, a student is not in custody unless s/he is subjected to additional restraints beyond those generally imposed during school. Factors to consider may be the length of the questioning, who is present during the questioning, and the location of the questioning. (For example, a student removed from class by a school resource officer and questioned in a closed conference room for over an hour by school administrators in the presence of the officer may be held to have been subjected to a custodial interrogation.)”
What rights does your child have under custodial interrogation?
Mr. Brook continues:
“If there is a custodial interrogation, a special set of rules apply.
A student in custody must be advised prior to questioning, that s/he:
1. has the right to remain silent,
2. has a right to have a parent, guardian or custodian present during questioning,
3. has a right to consult with an attorney and that one will be appointed if the student is not represented and wants representation, and
4. that any statement s/he makes can be and may be used against the student.
If a student is under 16 years old, an in-custody admission or confession resulting from the questioning may not be used against the student in a court of law unless it was made in the presence of a parent, guardian or custodian.
A student in custody may communicate to a school resource officer at any stage of the questioning that the student no longer wants to be questioned.”
3. Your child’s right to Refuse Unreasonable Searches and Seizures under the 4th Amendment
The 4th Amendment in the U.S. Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
A school official or SRO, without a reasonable cause, cannot search your child’s body or belongings, except his/her locker. The American Civil Liberties Union, ACLU, renders this advice to all students: “If an officer asks to search you or your bags, you can say: I DO NOT CONSENT TO THIS SEARCH. Saying this may not stop the search, but it’s the best way to protect your rights in case you are arrested.”
In addition to the right to remain silent and request your presence, your child also has the rights to:
- Refuse a strip-search in ANY situation.
- Leave. Coach your child to firmly ask the SRO, “Am I free to leave?” If the officer says, “Yes,” your child can leave the room/area right the way.
- Request for a lawyer immediately if your child is arrested.
For details of the above rights, and more strategies that might save your child’s future or even life:
- Print out the ACLU Pocket Card on Police Encounters here, and have your child study and bring it to school. Or,
- Contact your local ACLU and see if it has published an ACLU Palm Card that is specifically for students in your state to deal with SROs or the like, such as this one from New York.
4. Your child’s right to have Freedom of Speech, Press, and Religion under the 1st Amendment
This right can be employed to fight against certain unreasonable restrictions and resulting disciplinary actions imposed on your child by school officials. However, speeches that are vulgar, obscene, threatening, and disruptive are not protected in schools under this law.
5. Your child’s right to Due Process under the 5th Amendment
Your child is granted the right to due process under the 5th Amendment as well as the grievance policies listed under the Student/Parent Handbook or the equivalent that your child’s school supplies you.
Read and get familiarized with these policies before your child is in trouble and is being disciplined. Why?
Reason #1: This will give you time to coach your child before a tragedy happens.
Reason #2: Your brain can function better when it is calm, especially for understanding the seemingly overwhelming honor codes, discipline policies, and grievance procedures.
For more information on items 4 – 5, go here.
6. Your child’s right to Equal Protection under the 14th Amendment
The Equal Protection Clause inside the 14th Amendment grants all persons, including your child, the right to have “the equal protection of the laws” in the way that all persons have the same access to the laws and same treatment by the laws.
Read more: This case study exhibits how the 14th Amendment was used to protect the rights of students.
Read more about the 1st, 4th, 5th and 14th Amendments here.
7. Your child’s right against harassment
Schools are legally obligated to protect your child from discriminatory harassment, which often turns out to be a kind of bullying. According to Stopbullying.gov, “A school that fails to respond appropriately to harassment of students based on a protected class may be violating one or more civil rights laws enforced by the Department of Education and the Department of Justice.” They include:
- Title IV and Title VI of the Civil Rights Act of 1964
- Title IX of the Education Amendments of 1972
- Section 504 of the Rehabilitation Act of 1973
- Titles II and III of the Americans with Disabilities Act
- Individuals with Disabilities Education Act (IDEA)
Read more here for more information.
8. Your child’s right to have a sound and basic education under the state constitution
Under this constitution, your child’s public school not only must provide him/her quality education, but is also obligated to help your child succeed academically if he/she falls behind. For more details about this right, search under the constitution of your state.
9. Your child’s right to education regardless of disabilities
Other than a sound and basic education, children with certain disabilities are guaranteed an education that can accommodate their special needs under the Individuals with Disabilities Education Act (IDEA). This Act also provides certain protections to a child with a disability against suspensions.
Read more about this Act:
https://www.ncld.org/get-involved/learn-the-law/idea/
https://web.law.duke.edu/childedlaw/special-education-nc/
10. Your child’s right to education regardless of sex under the Title IX Education Amendments of 1972
This law prohibits any federal-funded educational institution – your child’s public school – from discriminating your child’s participation in education programs or activities based on his/her sex.
Read more here for more information.
11. Your child’s right to education regardless of race under Title VI of the Civil Rights Act of 1964
This law prohibits any federal-funded educational institution – your child’s public school – from discriminating your child’s participation in education programs or activities based on his/her race, color, or national origin.
For more information, go to the Department of Justice and the Department of Education.
12. Your and your child’s right to access records – to reveal truth or defend accusation
- Federal: the Family Educational Rights and Privacy Act (FERPA) grants a parent the right to inspect and obtain “education records” that are related to your child. These records include, among others, your child’s academic records and his/her disciplinary file, including emails between and among school officials discussing your child’s case.
- Federal: the Federal Records Act and the Freedom of Information Act.
- State: your state’s public record law or act.
- Local: your school district’s own policies on rendering public records.
13. Your and your child’s right to record under tape-recording laws
To gather evidence to prove the wrongdoing on some school officials or the absence of wrongdoing on your child, you may resort to secretly record happenings without the school officials’ knowledge. Check out your state’s tape-recording laws here, and find out whether your state has the one-party consent statute. This statute grants you the right to record without the prior consent of the other party, as long as you are one participating party to the conversation.
But please confirm it with an attorney before you start any recording, since violating the tape-recording laws can incur serious legal consequences. A lot of attorneys offer free first consultation. To find a lawyer, try the following websites, some of which offer you free or less expensive legal advice or help:
- Avvo.com Free legal information
- JustAnswer.com $5 trial to get legal information
- Nolo.com
- Findlaw.com
- Martindale.com
14. Everyone’s right to film police officers, including School Resource Officers
It is your First Amendment right to freely take pictures and record anything in the public. This includes recording activities of the police officers, as well as School Resource Officers in schools. Read more about this right here.
However, you should NOT risk recording in these 2 situations:
- If your action would interfere or distract the police’s job, and
- If you are the one encountered by the police. For example, a police officer might make a wrong assumption if you suddenly stick your hand in your pocket to pull out your phone.
Read more: This case study further proves your right to film police officers.
Additionally, in the past couple of years, ACLU has launched its Mobile Justice App in a number of states. This is a free smartphone App designed to hold police accountable, by allowing anyone in the public to record and directly forward their recorded results to ACLU.
Mike Meno, Communication Director of ACLU of North Carolina, explains how it works: “[The App] allows users to make audio and video recordings of exchanges between police officers and community members that are automatically sent to the ACLU of North Carolina for their legal team to review. It also gives people the option to alert nearby users when they are stopped by police in order to witness and document the interaction, and it provides an overview of your rights when you’re stopped by police.”
So, simply search the App Store in your smartphone and download this App. Currently, I see 18 states that are offering and operating with this Mobile Justice App.
15. Your and your child’s right under anti-bullying laws and policies
You can check out your state’s anti-bullying laws and policies here.
For the rights of lesbian, gay, bisexual, and transgender, go here.
Many schools have own anti-bullying policies to protect students (as well as staff) from bullying.
More Resources on the rights of parents and students in public schools:
Know Your Right guides or handbooks for public school students:
(Note: If your state has a similar handbook but it is not listed below, please let us know, and we can add the handbook to the list. Thanks.)
- Florida: https://www.aclufl.org/en/know-your-rights/know-your-rights-handbook-public-school-students-florida
- Iowa: https://www.aclu-ia.org/en/student-handbook
- New Jersey: https://www.aclu-nj.org/files/9313/1600/5939/2011studrghtsweb.pdf
- North Carolina: https://law.duke.edu/childedlaw/docs/handbook_for_parents_guardians_and_students
- Ohio: https://www.acluohio.org/resources/publications/student-rights?c=1091
- Pennsylvania: https://www.aclupa.org/en/know-your-rights/students-rights-handbook
- Texas: https://www.aclutx.org/en/know-your-rights/political-and-free-speech-schools
- Tennessee: http://www.aclu-tn.org/students-rights-handbook/
- Vermont: https://www.acluvt.org/en/know-your-rights/students-rights
- Washington State: https://www.aclu-wa.org/sites/default/files/media-legacy/attachments/Guide%20for%20Public%20School%20Students.pdf
Contact ACLU for such a handbook for your state if it is not listed above. Or, purchase an ACLU Handbook: The Rights of Students on Amazon.
For North Carolinians, you may also contact these organizations or agencies:
Wow. What a GREAT article! I know of many, many parents who have had their kids interrogated at schools. As a parent, we ALL need to know this and definitely teach our kids this. Thanks for this awesome article! I hear more and more parents contemplating home-schooling their kids and this is exactly one of the reason why. Definitely sharing this around!