Education Law: Helping students, parents and teachers
The practice of Education Law covers a wide spectrum. In public schools, students may be suspended for up to five days for misconduct committed in school, or which affects the school’s ability to function. In order to impose a suspension of more than five days, the student is entitled to a hearing before the Superintendent of Schools, or a hearing officer he/she designates for that purpose. At the hearing, the witnesses to the student’s alleged misconduct must testify. The rules applied at the hearing do not, and need not, conform to the strict rules of evidence that would be used in court. However, searches and seizures of student belongings (i.e., recovery of drugs, weapons and other contraband) must meet constitutional standards. In other words, students have the right to be free of illegal searches and seizures. Not surprisingly, this right is also interpreted less strictly than in court.
A student found guilty of misconduct, or of violating the school’s code of conduct, can be suspended for from five days to the full school year. In extreme cases, suspensions can carry over from one school year to the next. Serious consequences flow from suspensions which stay on your child’s permanent record.
If your son or daughter has been, or will be, suspended from school for more than five days, you should consult with experienced counsel. As an attorney who has represented school districts at disciplinary hearings, I have the experience and knowledge to protect your child’s rights. The school district will have experienced representation at the hearing, and so should your child.
Students with Special Needs:
Students identified as having special needs that require attention beyond what is provided to general education students are protected by state and federal law. All students are entitled to a “free, appropriate public education,” more commonly known as a “FAPE.” If you believe your child is entitled to special services, the Committee on Special Education (“CSE”) is required to convene and consider your child’s case. You are entitled to be present, with an attorney, and expert reports, such as from a psychologist, learning specialist, behavioral expert or other medical/mental health specialist. The CSE must hear your case. If you don’t agree with the services it grants, you may appeal by filing a due process demand. You are entitled to a hearing before an impartial hearing officer, who will review the CSE’s decision, including your evidence and any other reports the CSE relied upon, and then determine if the services were appropriate. The hearing officer has the authority to modify the CSE’s decision, including private placement in a school that can better meet your child’s needs. The school district is not only required to pay private school tuition and fees if you prevail at the hearing, but it is also required to reimburse you for reasonable attorneys’ fees.
Sometimes, a child has a disability which is not strictly educational in nature, but is physical, such as an inability to climb stairs or to walk longer distances. In such cases, federal law requires that the school provide an accommodation to the child that is reasonable and compensates for his/her disability. An example of this is when a child has a problem walking and cannot make it to school even though he/she lives too close to qualify for busing. This child has no special educational needs, but requires an accommodation to get to school. Under federal law, the school district would likely be required to deviate from its busing policy and transport the child to and from school due to the disability.
If your child has special needs of any kind, you should consult with experienced counsel before you seek special services or an accommodation from your school.
If your son or daughter, or anyone you care about, has been the victim of bullying in school, the law provides a way to for you to stop the bullying and get justice for the damage inflicted. As a former school district lawyer, I know what buttons to press and where to push to get you and your child relief from bullying, including money damages. Learn more about bullying and how the NYC Attorneys at Carbonaro Law can help you with your bullying case.
What is bullying?
Bullying is intentional, aggressive behavior by one student or group of students who single out another student, often over a long period of time. Typically, there is an imbalance of power, be it physical, intellectual or emotional. Bullying usually involves hitting or punching, teasing or name calling, or social exclusion/isolation. The imbalance of power can take several different forms, such as physical (the big kid picking on the little kid), social (the popular kid picking on the unpopular kid), economic (kids from wealthier families picking on kids who are poor) or numeric (a group of kids picking on one kid for no particular reason).
But perhaps most common and painful, is when a student or group of students singles out a child based on his special needs, and then taunts and torments the child, and even inflicts physical abuse. Students who are or appear to be “different” are the bully’s favorite target. As you know, bullies never pick on someone their own size.
What is Cyberbullying?
Since the advent of the internet, cyberbullying * has become another form of abuse. It is defined as the repeated, aggressive use of technology, such as the Internet, email, instant messaging, blogs, text messages or, more popularly, Facebook or Twitter, to harass, threaten or intimidate others. One example, commonly used is on Facebook, where a group of students form a page on which they “publicly” ridicule another student, sometimes with tragic results. But this is far from the only form of cyberbullying. Other forms include:
- Masquerading as someone else and posting derogatory material
- Sharing intimate information
- Photoshopping a victim’s head onto someone else’s body
- Using the victim’s name to do an illegal or immoral act.
How can the law prevent bullying, and what can be done to make the victim whole?
In New York, the Dignity for All Students Act (“DASA”) imposes an obligation on public school districts to take reasonable steps to prevent bullying and to address it when it occurs with the goal of preventing it from happening again. The law requires school districts to appoint a specific person, either a teacher, guidance counselor or administrator, to act as the DASA coordinator. Acts of alleged bullying can be, but need not be, reported directly to the coordinator or to any administrator or teacher, who must then conduct an investigation to find out what happened and how to best address the situation.
In addition, the school district must take steps to prevent future bullying, such as separating the students or directing school staff to monitor their interactions. At the same time, school districts have an obligation to treat the children who bully fairly too. However, serious consequences can result for the bullier, such as lengthy suspensions, expulsion or even criminal charges. School districts have a special duty to supervise students and to train staff members to do so. School personnel are required to act in loco parentis, which means “in place of parents.” This means that a school district is required to act as a “reasonably prudent parent.” This obligation arises separately and apart from DASA and provides another avenue of recourse to parents of children who have been bullied.
As a former school district attorney, I am uniquely positioned to help your child. I know how to get your school district’s attention, and make them act. If the damage has already been done, or if the school district fails to act appropriately and promptly, you may wish to pursue legal action against the district. I urge you to contact me if your child is now, or has been the target of bullying, or if he/she has been accused of bullying. The early intervention of an attorney has, in my experience, proved most effective in getting the school district to act quickly and decisively to stop the bullying.
Teacher Disciplinary Cases:
If you are a tenured teacher and have been, or think you may be, brought up on disciplinary charges under Education Law Section 3020-a, my experience as a school attorney who prosecuted many such cases will help you overcome the challenge of exonerating yourself and keeping your job. I understand what it takes to win these cases, or to settle them effectively. Because I have extensive experience in disciplinary cases in addition to nearly 30 years of courtroom trial experience (that a union attorney may lack), I can be highly effective at trial of your disciplinary matter. I have handled cases involving time and attendance issues, pedagogical incompetence, insubordination, testing irregularities, untoward conduct with students, fraud and other alleged misconduct.
Tenured teachers have vested property rights to their positions which can only be taken away upon a showing of misconduct after a full hearing before an impartial arbitrator. The rights granted you by law are significant and similar in many ways to those of people charged with criminal acts. Procedural rights such as obtaining discovery of the school district’s case, document production, reviewing student disciplinary records and other relevant information is critical to your decision whether to go through with the hearing or try to settle. It is not uncommon to negotiate in such cases, allowing you to keep your position or, if you prefer, to resign or retire with benefits such as salary (“front pay”) and/or health insurance coverage. While the charges against at teacher are pending, he/she is paid full salary and benefits (unless the teacher has been convicted of a crime) until the case is resolved.
The law in this area has changed a great deal in the past years. While teacher discipline cases used to take years to complete (while teachers sat in the “rubber room”), the new law requires them to be finished in 125 days from when the charges were first brought. Some rights have been limited, and it is somewhat easier to terminate. If you are in disciplinary proceedings, or think you might be in the near future, you would be wise to contact me. I can represent you in the proceedings, or provide guidance to help you avoid being put in proceedings. My insights may be quite unique because I have been privy to administrators and Boards’ thought processes and know what issues to look for.
I have extensive experience in Education Law, which can be seen in a sampling of notable decisions here. Contact Joe Carbonaro today if you need an attorney well practiced in the field of education law. I’m here to help.