Discrimination on the Basis of Disability

Greg Smith often sees violations of students’ rights in discrimination against them on the basis of their disability.

The United States Constitution forbids discrimination by public officials. Public schools and colleges in Connecticut receive federal funding, so they count as “public officials” subject to federal laws against discrimination. They cannot treat students differently simply on the basis of their disability, race, sex, ethnicity or national origin. When officials do not give students in schools and colleges the accommodations to which they are entitled, they violate Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (the two laws prohibit similar behavior and provide the same remedies).

Discrimination and 504 Plans

Officials can frustrate students in the way they carry out the plan. To receive a plan a student must have medical proof of a physical or mental impairment that substantially limits a major life activity (attending classes counts as such an activity). But even with such a plan in place, officials often fail to follow it. For example, a student whose disability prevents him from getting to school early enough may have in his plan the accommodation, as long as he does the work, to arrive to class late. Such an adjustment normally provokes resistance from teachers and instructors. Consequently they wrongly mark the student absent and threaten to withhold credit. In situations like this a lawyer for students’ rights often must advise the student or his family to be prepared to fight administrators to have the accommodation enforced as written.

Accommodations must give a disabled child the chance to get an education just as thorough as any other student’s. When they don’t, Greg Smith may advise clients to pursue their rights in federal court.

They also have the right to sue when officials discriminate, or allow others to discriminate, against a student simply for their disability. Mr. Smith has represented families in claims against their child’s district for violence or ridicule directed against the disability.

If you believe your child’s school or your college violated their constitutional student rights, call an experienced students’ rights attorney for an assessment of your case.

Due Process and Discipline

As a lawyer for students’ rights Greg Smith advises clients that due process means officials at schools and colleges must publish in the handbook the procedures they will follow. Students have a right to rely on fair application of those procedures. When officials fail to follow procedure in imposing discipline, investigating sexual harassment or administering academic programs, they violate students’ Fourteenth Amendment right to due process. Administrators must provide a fair hearing in accordance with published procedures. That provision includes the opportunity to confront witnesses and present favorable evidence. In public schools it also includes the right to private counsel. In college and university hearings it includes the right to have an advisor that can confer with the student but not speak for them.

Private schools, colleges and universities can depart from due process in discipline in three ways. First, apart from its overall obligation to provide a reasonable educational program, the institution makes a specific contractual promise to conduct the disciplinary process as stated in its handbook. Second, the administration cannot substantially depart from academic norms. School officials have the right to exercise their professional judgment, but they do not have license to act arbitrarily or capriciously in their procedural mechanisms. Third, every contract carries an implied covenant of good faith and fair dealing. An administration cannot use bad faith in conducting disciplinary proceedings without injuring the right of the other party to receive the benefits of the agreement.

Students’ Records, FERPA And Letters Of Recommendation

Students have a right to privacy at school. What they say and do falls under FERPA, the Family Educational Rights and Privacy Act, or FERPA, 20 U.S.C. § 1232g.

It acts in two ways. First, it gives families a right to see ‘education records’ on file at school. Any record created about a student at any time, even after graduation, is an “education record.”  FERPA would thus protect the contents of a settlement agreement signed after graduation for an incident that happened while the student was still at school.

Second, it tells schools to keep the “personally identifiable information” in those records private unless the family consents to its disclosure. Such information can either be ‘direct identifiers’ like names and student i.d.’s, or ‘indirect identifiers’ like addresses and dates of birth. The point is to prevent someone from using unique patterns of information to trace a record to its source.

Some information comes not from the records themselves but from the community outside the school. For example, if a newspaper published a rumor that a local high school had disciplined a public official for cheating during her senior year, under the Freedom of Information Act someone could request the disciplinary records of all students caught cheating during the year the public official was a senior. Direct and indirect identifiers would not protect these records from disclosure.

In dealing with such “targeted” requests officials must look to the “school community.” They must decide if information in the news and in the media is enough to enable identification if they release the records. Clearly, this means that school officials can refuse disclosure if they believe the requester knows the identity of student in the records.

Greg Smith advises clients that letters of recommendation have their own place in FERPA. Until a college admits an applicant and she or he enrolls, letters of recommendation are not “education records.” FERPA thus does not give college applicants a right to see what the recommenders have said about them. Otherwise, writers would have no reason to be honest. This explains why the College Board advises all applicants to waive their FERPA rights when they ask for letters of recommendation.