Preparing Adolescents with Disabilities for “Real Life”

The world can inevitably be cruel and dangerous. In a perfect world, everyone would be kind, every place would be safe, and opportunities wouldn't depend on our financial circumstances. This is not the case. As unfortunate as it may be, the world can be even more challenging for our children with disabilities. 

It is an instinct to want to shield them from a world where they may be mistreated and discriminated against or to keep them close so that you can protect them from any danger that may surround them. This instinct undoubtedly increases as you find your child struggling with safety, social cues, and independence.

However, our children want to live fulfilling lives filled with work, love, and friends, just like any other person.

Love on the Spectrum is a docuseries on Netflix that follows individuals of all ages on the spectrum on their quest to find love. Throughout the show, here are some impactful quotes from individuals on the show: 

“I have so much love to give” —Journey, 18

“I really would like to have someone special with whom I can share the best moments of my life.” —James, 35

“I don't want to spend the rest of my life alone” —Connor, 24

“It would be nice for me to live on my own” —Dani, 28

In this unpredictable world, how can we support our children with disabilities in creating fulfilling lives while also preparing them for “real life”? Here is how:

1. Modeling: As you complete everyday tasks, walk your child through each step. Talk to them about what you are doing and why. Try to explicitly explain even the “small stuff,” such as volume/tone of voice, how to be appropriate in the given setting, etc. If you are at the grocery store with your child, for example, here are some things you can explain and discuss:

• Refrigerated vs non-refrigerated items

• Making a list of ingredients to buy

• Appropriately standing in line

• Greeting a cashier

• Who to ask if you can't find something

• How to pay for your items

2. Help them foster friendships and relationships: If we are honest, almost everyone has had difficulty in social situations. As we get older, we start to understand how to handle and thrive in social situations. Making small talk, building healthy relationships, and making friends becomes more manageable. For our children with disabilities, this instinct may not come naturally and often needs to be explicitly taught. Here are some things you can help your child work through:

• Personal space during conversations

• What qualities make a good friend and a bad friend

• What different facial expressions mean

• When hugging is appropriate

• What to do when you have a crush on someone

3. Talk about “What If” Scenarios: We can all agree that if the world were more black and white, life would make much more sense. Unfortunately, life seems to be a grey area, where preparing for some of the cards we are dealt is almost impossible. However, once we handle something new for the first time, it gets much easier each time. This is the same for our children with disabilities. Each time we intentionally expose them to “what-if” scenarios, we help them become equipped and prepared to handle similar situations the next time. Over time, this can lead to them being able to handle the problem independently. Here are some suggestions on “what-if” scenarios that you can help your child prepare for:

• What to do if someone sends a mean text

• What to do if your friend wants you to steal

• What to do if you can`t pay for something

• What to do if you get lost

• What if someone asks for your personal information

Whatever disability your child may face, our job is to foster independence and support them in creating happy lives—whatever that may look like to them.  

“Disability is natural. We must stop believing that disabilities keep a person from doing something. Because that's not true. Having a disability doesn't stop me from doing anything”.

-Benjamin Snow, 8th grade

Written by intern McKayla Crayton at Abdnour Weiker, LLP

http://www.Lawyers4Students.com

What happens if my child is suspended (or expelled)?!

There are a few certainties in life. Death and taxes, of course. But equally as certain is the fact that our children will make mistakes. Sometimes those mistakes are made in school, where the consequences might include removal from school in the form of a suspension or expulsion. (For now, we will ignore the sad irony of a school removing a student from the educational environment precisely at the moment when a learning opportunity presents itself.) It is important for students and parents to understand what rights exist for students facing suspension and expulsion in Ohio.  

To begin, prohibited conduct is typically outlined in the student handbook. Sometimes these handbooks outline a range of sanctions for prohibited conduct, but not always. Schools should punish within the range of sanctions, but often apply mitigating or aggravating factors to modify the punishment. School administrators have some discretion (or leeway) when they issue sanctions, but there are limits and procedural requirements that must be followed for every suspension or expulsion.  

First, as suggested above, the sanction should fall within the range outlined in the student handbook and be applied equally among all students. Especially when other students are involved in the same incident and/or accused of similar violations, one student should not be punished more harshly than another, all things being equal. Second, and more importantly, suspension and expulsion laws provide an accused student a right to timely notice and an opportunity for a hearing.  

For school suspensions (which in Ohio can be issued for anywhere between 1-10 days), a student/parent is entitled to written notice from the school of the intended suspension. This notice must contain the purported code of conduct violation resulting in the suspension. The suspension notice may be issued directly to the student without parental involvement. However, students/parents have a right to appeal any suspension issued. Students/parents must appeal within the time period provided on the written notice. The suspension appeal period can be very short, sometimes within 2-3 days of the notice.  

Appealing the suspension gives the student/parent a right to a hearing before the board of education (or before the board’s designated hearing officer). The student/parent may be represented by an attorney in this hearing, can present evidence and witnesses, and can provide a written or oral statement refuting any evidence provided by the school in support of suspension. If the outcome of this appeal is not favorable, the suspension may be appealed to the local court of common pleas.  

For school expulsions (which in Ohio can be issued for anywhere between 1-80 days, or longer for drug and weapons-related violations), a student and parent are entitled to written notice from the school of the intended expulsion and a right to a hearing before the expulsion is issued. The notice must contain the purported code of conduct violation resulting in the potential expulsion. Before any expulsion is issued, a hearing must be held with the school superintendent (or a designee), and the hearing must be held 3-5 days from the date the notice of intended expulsion is issued.  

A student/parent may be represented in the expulsion hearing and present evidence and witnesses, similar to the suspension appeal explained above. If the school decides to expel the student following the hearing, the superintendent or principal must notify the student and parent of the expulsion within one school day of making the decision. This notice of expulsion must include the reasons for the expulsion and notify the student/parent of the right to appeal the expulsion.  

Appealing the expulsion similarly gives the student/parent a right to a hearing before the board of education (or before the board’s designated hearing officer). The student/parent may also be represented by an attorney in this expulsion appeal hearing and present evidence and witnesses. If the outcome of this expulsion appeal is not favorable, the expulsion may be appealed to the local court of common pleas.  

It is very helpful to consult with an education attorney as soon as a notice of suspension or expulsion is issued, so that all options may be considered to avoid the suspension and/or expulsion.  

Written by Mark Weiker, Esq. with Abdnour Weiker, LLP

Questions? Call us: 614-745-2001

Parents: Three Steps to Take to Minimize the Impact of the Columbus City Schools Labor Strike on Your Children

Parents: Three Steps to Take to Minimize the Impact of the Columbus City Schools Labor Strike on Your Children

On Sunday, August 21, 2022, the members of the Columbus Education Association (“CEA”) voted overwhelmingly to go on strike, the first in the district since 1975. Classes are scheduled to begin on Wednesday, August 24. The Columbus City Schools Board of Education (“BOE”) has adopted an Alternative Opening Plan should the strike continue through the first day of school. 

Here are three important steps to take to minimize the impact to your child: 

• Send Them to School, Even if it’s Online. The Columbus City Schools BOE has adopted an online learning plan using substitute teachers should the strike continue. Regardless of how you feel about the strike, you should review the Asynchronous Learning Plan in advance. Be sure to look up the schedule and assignments and prepare your child(ren) to attend and complete those assignments when school starts on August 24. Importantly, sending your children to school does not indicate support for either the BOE or the union. Sending your children to school is also not considered “crossing the picket line,” a term that historically applies to employees reporting to work while their fellow union members are on strike. 

• Make it a Teachable Moment. Everyone retains information better when we experience it. While the strike is an unfortunate reality, you can also use it as an opportunity to explain the nature of the debate, as well as the history of labor strikes in the U.S. This is made much easier with YouTube videos like “The Labor Movement in the United States” and “A Brief History of Labor Unions,” among dozens of other online resources just for students. 

• Document Missing Services, Especially for Students with Disabilities. If your child receives specialized supports or services through an IEP or 504 Plan, you should record, in detail, exactly what accommodations, supports and services were not provided. The BOE’s obligation to provide an appropriate education to students with disabilities does not go away during a strike or because the curriculum is being delivered online. The BOE should provide access to live substitute therapists, private therapists and/or alternative placements for students who cannot learn or receive services online. Recording this information will help you recover any missed services later, which can be accomplished through an IEP meeting, mediation or by filing a written or due process complaint with the Ohio Department of Education. 

Authored by Mark Weiker, Esq. at Abdnour Weiker, LLP

Questions? Call us. 614-745-2001

HELP! I need to call a lawyer.

5 Things You Need to Know Before Contacting an Attorney 

1. Understand Your Deadlines & Call as Soon as You Have Them 

   If you only need to respond with your intent to appeal, do so as soon as possible to start the process. For K12 items, this can generally be done via email to your child's school principal's office. You can have an attorney do this for you should you consult and retain them within the deadline to submit your intent to appeal. 

   If you have a hearing scheduled or need to submit an appeal, contact a lawyer several days in advance of this deadline, if not at least a whole week prior. 

   If you have an interview or investigation meeting, follow the same advice as if this was a hearing or appeal submission and contact a lawyer ASAP. 
   

2. Documentation – Keep it Handy, But Share What is Requested 

   It is always helpful to keep all communications with your employer, school, university, an adverse party, etc., safe and secure. Attorneys will often request specific documents, i.e., IEPs, suspension notices, and ODE letters, so do have those ready to send. 

   As far as other communication goes, you can send these items to the firm you are contacting after scheduling a consult, though keep in mind that attorneys often will not have time to read each article in its entirety. 

3. Have a General Understanding of Your Goals for Contacting an Attorney 

   In many cases, your objective to remedy your situation is clear, getting your child re-enrolled in school, appealing a court decision, getting assistance through a hearing, etc. However, you may feel a more general sense that an injustice has occurred, and you would like to see action taken. In either situation, it is best to gather a sense of your goals as a client to effectively communicate to an attorney’s office what type of assistance you need. Even a brief list of goals will be enough to have a successful initial consultation. 

4. The First Person You Talk to at Their Office is Likely Not an Attorney (and They Did Not Do the Bad Thing to You) 

   This person, often an office administrator or intake coordinator, is here to answer questions about the firm you are contacting and create your file as a client. They will typically need to walk through a list of questions for their intake process and will likely have information to share with you about what that process entails.  

   Please keep in mind that they are the liaison between you and the attorney. They cannot control your case's outcome, answer any legal questions, or provide a remedy for the situation outside of getting you in touch with an attorney. 

5. Retainers, Flat Fees, Contingency Defined 

   While many attorneys operate on a retainer fee structure, the most well-known payment structure is often referred to on billboards and commercials as "you don't pay unless we win." To distinguish the former from the latter, here are some general definitions of typical payment structures that lawyers utilize: 

   Retainers - A fee that the client pays upfront to an attorney to commence representation, which is held in trust until the attorney works on/earns the fee. With each piece of work that the attorney does, that balance will deplete. 

   Flat Fees – A fee paid upfront to cover all work that the attorney will perform. This is a fixed amount and is generally non-refundable. 

   Contingency – The lawyer or firm only receives compensation if they successfully represent the client. Commonly known as "pay if we win." 

* Please Note: The Concept of "Wins" *

Many people seeking an attorney will want to know, "what is your firm's 'win-rate' or 'record?'" Frankly, that metric is not typically logged or measured as it is difficult to assess what a "win" is, given how different each client's goals usually are. Thus, keep in mind that many offices will not have a straightforward response for this as there is not a straightforward answer in many cases. 

Relief Has Been Denied in Most Anti-Masking Lawsuits Against Schools

Over the last two years, Ohio school boards have become a lightning rod for citizens to unload their personal and political thoughts on almost everything pandemic related. From virtual learning to masking to quarantining, school boards have absorbed the diverse and sometimes raucous opinions of their constituents. Outcomes in recent lawsuits suggest that courts are largely unwilling to interfere with the discretion of school boards to make unpopular decisions.

Montgomery County Schools Cases

In September 2021, the U.S. District Court for the Southern District of Ohio in Dayton dismissed three separate lawsuits brought by pro se parents against three different Montgomery County Schools (Huber Heights City Schools, Mad River Local Schools and Northmont City Schools). The parents each alleged that the schools’ policies requiring masks were a violation of their children’s constitutional rights. The dismissals by the Court were not based on the merits of the claims, but rather on a rule prohibiting parents from filing pro se claims in federal court on behalf of their minor children.[i] The Court held that, “the rule against non-lawyer representation protects the rights of those before the court by preventing an ill-equipped layperson from squandering the rights of the party he purports to represent.”[ii]

Chillicothe City School District Case

On Nov. 1, 2021, four parents filed a lawsuit against the Chillicothe City School District and school administrators alleging that the school’s policy requiring masks was “arbitrary, capricious and based on ignorance due to failure to inquire into facts.”[iii] The parents’ pro se claims brought on behalf of their minor children were dismissed sua sponte by the Court for the same reason as those in the Montgomery County cases, while claims brought by the parents on their own behalf survived. Nonetheless, the parents’ request for a Temporary Restraining Order (TRO) was denied because the parents “[had] not shown that they [were] likely to succeed on the merits of the remaining claims or that irreparable injury would accrue from denying the motion.”[iv]

In addition to the Chillicothe case, at least two other cases included requests for a TRO by parent-plaintiffs, and the courts denied the requests in both cases.

Mayfield City School District Case

In September 2021, a parent in the Mayfield City School District sought a TRO against the school district because the school board was attempting to institute a mask requirement.[v] The parent argued that the mask mandate caused “immediate and irreparable harm” to students, staff, and the general community.[vi] The parent also alleged that the mandate was a violation of her daughter’s constitutional rights and impeded on her daughter’s fundamental right to a public education.[vii]

The Court denied the motion for TRO because the parent failed to meet the necessary elements, finding that masking did not impede on the student’s ability to attend school. The Court also found that there was likely no chance of irreparable harm to the plaintiff’s daughter or other minors should the mask mandate be allowed to stand.[viii] Notably, the Court identified that, “the mask mandate was implemented to prevent serious injury, illness, and death in the District and broader community…[and] the risks associated with not wearing a mask in public schools are well-documented and supported by scientific evidence.”[ix]

Forest Hills Local School District Case

In another case filed in September, a plaintiff in the Forest Hills Local School District took issue with the meeting in which the school board adopted the mask policy. The plaintiff alleged a violation of the Open Meetings Act[x] and sought a TRO preventing the school board from enforcing the mask requirement.[xi] The Court denied the relator’s request for a TRO after holding a conference with the parties.[xii] After the TRO was denied, the plaintiff filed an affidavit to have the judge disqualified due to the judge’s comments at the conference, but the Ohio Supreme Court determined that the judge was not prejudicial.[xiii]

Hudson City School District Case

A more recent case was filed by three parents in the Summit County Common Pleas Court on Jan. 10 against the Hudson City School District. The parents sought injunctive relief prohibiting the school district from enforcing masking and quarantine rules absent a health department order, among other requests for relief. As of February 7, 2022, no hearing on injunctive relief has been scheduled or held, and no such relief has been ordered by the court, although the case is still pending.

While some case dismissals have been procedural, and others are only denials of immediate injunctive relief, the outcomes to date indicate a reluctance on the part of Ohio courts to disrupt the difficult decisions made by local boards of education—at least when it comes to masks.

[i] See P.G. v. Huber Hts. City Schl Dist., 3:21-cv-257 (S.D. Ohio, Sept. 23, 2021), citing Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002).

[ii] Id., citing Bass v. Leatherwood, 788 F.3d 228, 230 (6th Cir. 2015).

[iii] Wettersten v. Chillicothe City Schl. Dist., 2:21-cv-5187 (S.D. Ohio, Nov. 1, 2021).

[iv] Id.

[v] P.M. v. Mayfield City Sch. Dist. Bd. of Educ., No. 1:21 CV 1711 (N.D. Ohio, Sept. 13, 2021).

[vi] Id. at 2.

[vii] Id.

[viii] Id.

[ix] Id. at 4.

[x] Doe v. Forest Hills Loc. Schl. Dist., A-2102899 (Hamilton Cty., Aug. 18, 2021) (documents sealed).

[xi] In Re Disqualification of Jenkins, No. 21-AP-114, ¶¶17-18 (Sep. 22, 2021).

[xii] Id.

[xiii] Id. at 2.

Mark Weiker, Esq., Abdnour Weiker, LLP

Lawyers4Students.com

Can I Leave Work to Attend an IEP Meeting?

FMLA LEAVE MAY BE AVAILABLE TO PARENTS TO ATTEND IEP MEETINGS 

On August 8, 2019, the U.S. Department of Labor, Wage and Hour Division (“the DOL”) issued guidance on whether an employee may take protected leave under the Family and Medical Leave Act (“FMLA”) to attend a meeting to discuss the Individualized Education Program (“IEP”) of the employee’s son or daughter. U.S. Dept. of Labor, WHD, FMLA 2019-2-A(August 8, 2019). 

1. FMLA Leave

As a starting point, FMLA provides that an employee eligible for FMLA may take up to 12 weeks of job-protected, unpaid FMLA leave per year “to care for the spouse, son,daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. §2612(a)(1)(C); see also 29 U.S.C. §2611(11); 29 C.F.R. §825.112–.115.

2. IDEA and Related Services

Alternatively, the Individuals with Disabilities Education Act (“IDEA”) requires public schools to develop an IEP for astudent who receives special education and related services, with input from the child, the child’s parents, teachers, school administrators, and related services personnel. Under IDEA, “related services” may include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others.

3. DOL Conclusion

Considering both statutes, the DOL instructed that attendance at IEP meetings does qualify FMLA-covered leave so long as the employee’s son or daughter suffers from a “serious health condition” as defined in the law. FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Many students receive “continuing treatment” by a healthcare provider pursuant to their IEP. 

4. FMLA Medical Certification

An employer may require the parent to provide a medical certification in order to verify the existence of the child’s serious health condition. This certification is a standard FMLA form issued by a health care provider, further supporting the request for leave. This certification would verify that the child’s condition qualifies as a “serious health condition” under FMLA. 

5. Parents Input is “Essential”

In issuing the guidance, the DOL recognized that the parents in question attend IEP meetings in order to “help make medical decisions concerning their children’s medically-prescribed speech, physical, and occupational therapy, to discuss their children’s wellbeing and progress with the providers of such services, and to ensure that their children’s schoolenvironment was suitable to their medical, social, and academic needs.” The DOL also instructed that, a parents’ attendance at IEP meetings is often “essential to [the parent’s] ability toprovide appropriate physical or psychological care” to theirchildren, further justifying the application of FMLA protected leave for IEP meetings. 

6. Intermittent Leave 

Under FMLA, an employee may use the leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition. 29 U.S.C. §2612(b)(1); 29 C.F.R. § 825.202. This means that the employee may apply the FMLA leave as-needed, for portions of a workday, rather than in a scheduled days or in continuous days. Intermittent leave is the type of leave most parents would need to request and use for IEP meetings. 

Finally, the DOL instructed that the child’s doctor does not need to be present at IEP meetings in order for the leave to qualify under FMLA. The conclusion provided by the DOL alsoapplies to any special education meetings held pursuant to IDEA. 

This article was authored by education and employment attorney, Mark A. Weiker. 

Questions? Call us: 614-745-2001

K-12 Students: 3 Things To Do If You (Or Your Child) Are Suspended or Expelled from School

Unfortunately, it remains the norm for primary and secondary schools throughout the country to use suspension and expulsion as a remedy for bad behavior, despite almost no evidence that removing students from the educational environment works to deter bad behavior or increase academic performance.  

To the contrary, data from the U.S. Department of Education, Office for Civil Rights indicates that even a single suspension increases the likelihood of future misconduct, and can lead to lower graduation rates and increased involvement in the juvenile justice system. So, it is an understatement to say that suspension and expulsion can be disruptive to a student’s education and social progression. 

In Ohio, suspensions and expulsions are allowed under state law. Out-of-school school suspensions may be issued for up to 10 consecutive school days. Expulsions (which, if issued, always follow a suspension) may be issued for up to 80 days for common rules violations, and up to one year for more serious offenses such as bringing a weapon onto school property or making a bomb threat. (Note that Ohio students in grades K-3 may only be suspended or expelled for these more serious offenses.) Permanent exclusion is also a possibility for students who commit very serious criminal acts. Suspensions and expulsions include complete removal of the student from the school environment.

If you or your child are facing suspension or expulsion, you should consider taking these steps to protect yourself and mitigate any negative impact to your or your child’s education:

#1 – Review the Notice Carefully 

You should first receive a Notice of Intent to Suspend/Expel, informing you of the alleged infractions, followed by an actual Notice of Suspension/Expulsion, notifying you that you have been suspended/expelled. Review the alleged infractions in the student handbook and in the school’s policies and compare the definitions for the infractions to what took place. Pay close attention to the appeal deadlines. This is a good time to contact an attorney if you plan to use one. 

#2 – Always Appeal 

You should appeal the suspension/expulsion, even if you’re not sure whether you plan to pursue the appeal. An attorney can appeal for you, but the deadline to appeal can be as short as 2-3 days, so you may need to appeal before you find an attorney. Make sure you submit the appeal in writing in accordance with the instructions on the notice. You are entitled to separate suspension and expulsion appeal hearings (if you are dealing with both), although you may ask to combine them if they would be redundant. An appeal hearing will be scheduled, usually within days. You can always request an extension in order to prepare for the hearing, gather records, obtain counsel, etc. 

The hearing will provide you a chance to explain your side of the story and submit evidence. You may also call witnesses to the hearing, although the process is less formal than court. Obviously, you need to prepare very well for your hearing, highlighting the reasons that you believe suspension/expulsion is not warranted. Your appeal can be withdrawn if you change your mind or determine that the suspension/expulsion is acceptable. 

#3 – Complete All Assignments While You Are Out of School

In Ohio, schools must give students at least 50% credit during an out-of-school suspension. The same is not true for expulsion. Nonetheless, during the pending appeal(s) and through any suspension/expulsion period, complete as much work as you can. Try to stay as current with your assignments as possible. The reasons for this are twofold: (1) this keeps you from falling too far behind academically during the appeal hearings and any imposed suspension/expulsion period, and (2) this indicates to the hearing officer(s) that you are both capable and motivated to continue learning. This can help you in your appeal hearing because you can argue that you are a contributing student who can seamlessly transition right back to the classroom environment. 

We hope you can avoid suspension and expulsion altogether. But, if you find yourself in trouble, taking these three steps will help to mitigate the negative effects of suspension/expulsion.

Written by Mark Weiker, Esq. from Albeit Weiker, LLP; education law attorney focused on student rights & father of two.

If you have questions about school discipline, or need representation, call us at 614-745-2001. 

E+R=O: A Special Education Mindset

E + R = O: A Special Education Mindset

Fighting for an individualized and appropriate education

Let’s imagine you are not receiving progress reports on your child’s Individualized Education Plan (IEP). You have that parental instinct that something isn’t right. How do you stand up to district administrators, who are specifically trained in the field of education? Do you “let it go” and just hope everything works out? No! 

Urban Meyer led The Ohio State University Football Team to a National Title using this simple equation, E + R = O. The equation comes from the book Above the Line, coauthored by Meyer and Wayne Coffey. (Highly Recommended by #teamAW!) The book is not a focus on football, but on mindset and taking action. Which is what we need to do when advocating for our kids. Special Education is full of unexpected, emotional, and confusing events. From initial diagnosis to having a gut feeling that your child is not receiving the correct services to meet their individual needs. Now what?

It begins with a simple, powerful equation that affects everything we do.

EVENT: There are often unexpected, emotional, & confusing events

RESPONSE: Advocating for your child, by choosing your response

OUTCOME: Control of your child’s education is the outcome

The R factor is the most important. R is your response to the event that occurred at school, or your response to the feeling that your child is not thriving. Here are a few appropriate responses in the realm of Special Education:

1. Do your homework and research everything you can before walking into any meeting;

2. Understand the acronyms, and that an ETR and IEP can come down to semantics but have major consequences;

3. Be ready to justify what you are fighting for;

4. Be your child’s best advocate; sometimes you need help understanding, interpreting, and navigating the special education process. Whether it is you or you combined with an advocate for your child, make your response! 

In special education, the response can change the outcome of your child’s educational future. Advocate for your child. If you are told no, think of another response to control the outcome. 

Questions? Call us: 614-745-2001. We have the Special Education team to support you.

Changing Student Records

Parents and Students Have a Right to Request Amendment or Removal of an Education Record

Students ages 18+ and parents of students under age 18 have a right under federal law to request removal or amendment of inaccurate files contained in the student’s education record. The right exists under the Family Educational Rights and Privacy Act (“FERPA”) and it applies to students of all ages (pre-school to Ph.D.) who attend or attended schools that receive federal funding. This includes all public schools and many private schools.

Initial Request to Amend of Remove an Education Record 

If a parent or student believes an education record (including any disciplinary record or special education record) contains information that is inaccurate, misleading, or in violation of the student’s privacy, they must start by requesting that the school remove or amend the record. 34 C.F.R. § 99.20. Although not required, it is best to make the initial request in writing.

Under FERPA, the school must then decide, within a reasonable time, whether or not to amend the record as requested. If it complies with the request, the process ends.

If the school decides not to amend or remove the record as requested, it must notify the parent or student of its decision and also inform the parent or student that they have a right to a hearing on the matter. Id.

Required Hearing and Applicable Rules 

A school must provide a parent or student, on request, a hearing to challenge the content of the student’s education records on the grounds listed above. 34 C.F.R. § 99.21. The hearing must be held within a reasonable time following the request. The school must give the parent or student notice of the date, time, and place, reasonably in advance of the hearing. 34 C.F.R. § 99.22.

The hearing may be conducted by any person, including any school official, who does not have a direct interest in the outcome of the hearing. The school must give the parent or student a full and fair opportunity to present evidence relevant to the request for amendment or removal. The parent or student may be represented by an attorney at their own expense.

Following the hearing, the school must deliver its decision in writing within a reasonable period of time. The decision must be based solely on the evidence presented at the hearing and must include a summary of the evidence and the reasons for the decision.

Good Outcome: Written Notice That the File Will be Amended 

If, as a result of the hearing, the school decides that the information is inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it must: (1) amend the record accordingly; and (2) inform the parent or student of the amendment in writing. 34 C.F.R. § 99.21.

Bad Outcome: Right of Parent or Student to Place a Statement in the Record 

If, as a result of the hearing, the school decides that the information in the record is not inaccurate, misleading, or otherwise in violation of the student’s privacy, it must inform the parent or student that they may place a statement in the record commenting on the contested information or indicating why they disagree with the decision of the school, or both. Id.

If the parent or student provides a statement and the school places it in the student’s record, the school must: (1) maintain the statement with the contested part of the record for as long as the record itself is maintained; and (2) disclose the statement whenever it discloses the portion of the record to which the statement relates. Id.

What to Do When a School Refuses to Follow the Process

A parent of a student may file a written complaint with the Family Policy Compliance Office of the U.S. Department of Education regarding any alleged violation of FERPA. The Complaint form is available at http://familypolicy.ed.gov/complaint-form.

Questions? Call us! 614-745-2001