Is it legal for a teacher to spank your child? Can you make sure Creationism isn’t taught? Do immigrants have the right to a free public school education?
Finding answers to these and other loaded questions about your rights and your children’s rights in U.S. public schools isn’t obvious. Should you start by looking to the federal government? Not so fast. Our founding fathers didn’t claim federal authority over public education. In 1791, they passed off the responsibility of teaching reading, writing, and arithmetic (and discipline!) to the 14 states, as written in the Constitution’s 10th Amendment. Yes, there’s a Department of Education in D.C., but as it freely admits on its website, “Education is primarily a State and local responsibility.”
To learn your rights as a public school parent, think local. Start by checking the standards of your state’s Department of Education, from Alabama to Wyoming. After looking to state laws, turn to your school district and child’s school for answers. You can find information on your school and district by looking both up at GreatSchools.org.)
This said, in the centuries that have followed since the Constitution was written, the Supreme Court has added substantial constitutional rights for parents and children. Congress overcame its initial hesitations to pass sweeping education reforms like the 1964 Civil Rights Act, the Education for All Handicapped Children Act, the No Child Left Behind Act, and numerous other landmark policies.
Here are 15 of your unalienable rights in the U.S. public school system.
The right to a free education
Every child is granted a free education in the U.S. However, there’s free and then there are the long list of expenses that go along with an education. Parents need to investigate their state, district, and school policies to find out what’s free — and what you’re required to pay for. For example, this explanation of California’s Assembly Bill No. 1575 provides a list of what is provided at no cost and what has fees attached. What most schools can demand payment for is overdue library books, school lunches (unless a student qualifies for a free lunch), and student groups. If your child’s school insists on payment for an item or service that you believe should be free, you can ask the principal for the cost to be waived. The ACLU claims it is not illegal to ask students and parents to pay for activities, but this payment is voluntary, and they regard it as illegal to refuse participation in sports, clubs, or activities to students who do not pay.
An immigrant child’s right to a free education
In 1982, the U.S. Supreme Court decided that immigrant children have the same right to a free K-12 public education as legalized U.S. children. This means that your and your child’s immigration status is irrelevant and not the school’s business. Your child has the legal right to receive an education without fear of deportation or discrimination. You don’t have to present a green card, visa, passport, alien registration number, social security number, or any other proof of citizenship or immigration status to get your child enrolled. It is unlawful for the school ask for proof of citizenship, and if they ask if you’re immigrants, you don’t have to answer. If you’re consistently hassled, it’s a violation of federal law. For assistance, you can contact school district officials, an attorney, the Office of Civil Rights of the U.S. Department of Education (800-421-3481), or the American Civil Liberties Union (ACLU).
The right not to be discriminated against
In no uncertain terms, discrimination is illegal as stated in the U.S. Constitution, which guarantees equal treatment to all, including public school students. You have the right to demand the education you believe your child needs. (For support, you can contact the ACLU.) If you think your child is unfairly on a “slow track” and is being excluded from college preparatory classes due to racial or class stereotypes, you can challenge this placement. If your daughter isn’t allowed into classes like woodshop or auto shop because of her gender, that’s illegal. If she’s prevented from attending classes, graduation, or other activities because she’s pregnant, that violates her Constitutional rights. Girls also have the right to receive equal athletic opportunities.
If your student is gay, they have a right to take a same-sex date to the prom. (This is, admittedly, a battle in many areas.) If they have a disability, like deafness, they have the right to have this accommodated with a sign language interpreter or another form of assistance. If you have a transgender child, the issue gets more complicated with recent U.S. Department of Education developments, which state, “They might have the right to use a bathroom that corresponds to their gender identity, depending on their state or municipality.” The right to use a bathroom that corresponds to their gender identity exists in 19 states, plus D.C. and more than 200 municipalities. Here’s guidance on this contentious issue from the ACLU.
Right to learn English and other language rights
In 1974, the Supreme Court decided in Lau vs. Nichols that the public education system must provide English language instruction because failure to do this prohibits children from full participation, which violates the Civil Rights Act of 1964. If you or your children aren’t fluent in English because your native tongue is Spanish, Cantonese, Arabic, Cherokee, or one of the other 350 languages spoken in America’s melting pot, you have the right to ask for an interpreter and the right to have lessons and homework assignments translated into a language your child understands. Many states with a high percentage of non-English speakers (California is 29 percent, Texas is 18 percent) offer English as a Second Language and bilingual programs to assist immigrant children.
Right to be safe in school
Many state laws require schools to provide a safe and supportive learning environment, with a School Safety Plan your school’s principal has designed. Civil rights laws are in place to protect students from bullying at all federally funded schools. Teachers and fellow students cannot harass your children about their race, national origin, color, sex, disability, ethnicity, or religion. If your child is victimized, you can notify the U.S. Department of Education’s Office for Civil Rights and the U.S. Department of Justice. If a student makes the school an unsafe environment by carrying a weapon or explosive, starting fights, robbing students, selling drugs, or sexually assaulting classmates, you have the right to ask for the suspension or expulsion of the student.
However, safety from physically abusive teachers isn’t guaranteed. Remarkably, corporal punishment is allowed in 19 states despite the American Psychological Association’s condemnation Corporal punishment generally refers to “paddling.” Teachers are not permitted to choke, punch, slam children against a wall, or cause injury that requires medical attention beyond first aid. If they do, they may be suspended or arrested. (GreatSchools.org also offers advice if your child is berated and humiliated by a bullying teacher.)
Right to freedom of speech and religion
The U.S. public school system is secular (non-religious) and state laws forbid public education funds to be spent on religion. However, freedom of speech and religion are protected by the First Amendment of the U.S. Constitution. If it isn’t distracting to other students, your children have the right to pray when they are at school, the right to take religious books to school, the right to wear clothes signifying their religious beliefs (including a hijab, yarmulke, bindi, and crucifix), the right to talk about their faith at school, the right to organize a religious club, the right to refer to their religious beliefs in student assignments, and the right to miss school in observance of religious holidays. Conversely, it is illegal for a public school to proselytize or impose religious beliefs on your child or promote one religion as superior to another, or religion in general as superior to secular beliefs. Discussion of world religions must be “neutral”. School prayer led by teachers or coaches is illegal. There can be no display of religious doctrines like the ten commandments, and secular children don’t have to say “under God” when the class recites the Pledge of Allegiance. If a school promotes or demeans a religion, parents can complain to the school district, the Civil Rights Division of the Department of Justice, and the ACLU. “A Minute of Silence” is often encouraged, although some states disregard the First Amendment entirely and go ahead and say prayers in class. A state-by-state list is available here. Can a parent ask for the phrase “In God We Trust” to be removed from a school classroom? This question has not yet been resolved by the courts.
Right to information and participation
Parents have the legal right, via the Family Educational Rights and Privacy Act (FERPA, 1974), to inspect their child’s educational records at the school, to have them explained if necessary, to request updates and corrections, and to have their child’s education records sent to another school in a timely manner if they wish to have their child transfer schools. Eight states (Connecticut, Louisiana, Massachusetts, Nevada, New Jersey, Rhode Island, Virginia, Wisconsin) have laws that require schools to notify parents if their child is being bullied, or is bullying other students, and 16 other states require schools to develop local policies. The Every Student Succeeds Act (ESSA, 2015) guarantees parent-teacher conferences, reasonable access to staff, opportunities to volunteer and participate and observe their child’s classroom, the right to ask for qualifications of a child’s teachers, and many other prerogatives. You can download the ESSA Parent Advocacy Toolkit here. In many states, like California, parents have the legal right to be notified if the school is conducting medical, cognitive, and language screenings of children. All parents have the right to participate in parent councils and committees, and the right to join the school’s parent-teacher association or organization (PTO/ PTA). Parents can also appeal to their school district’s school board, which has regular meetings where the public can present their questions and complaints. Get tips on how to influence your school board and learn what the school board does, and learn what makes a great school board candidate.
Right to learn about evolution, not creationism or intelligent design
Evolution has been presented as a scientific fact in public schools ever since a Supreme Court decision in 1968, and it’s included in the Common Core curriculum adopted by 41 states. Several religious groups that frown on evolution have strived, and failed, to insert their own beliefs into public schools. In 1987, the Supreme Court banned the teaching of “Creation Science” because it promoted a religious belief. Likewise, in 2005 a District Court in Pennsylvania banned the insertion of “Intelligent Design” in science classrooms. If your child’s school avoids evolution and promotes creationism or intelligent design as a scientific truth, you can report this misconduct to the school district, state and federal education officials, and the ACLU. (Debate on this issue remains highly charged in multiple states, like Louisiana and Arizona.)
Right to opt your children out from sexual health education and HIV/AIDS prevention education
Some parents don’t want school officials teaching sex information to their children. Students can opt out of these presentations if their parents request an exemption in writing or petition the principal. (Note: Parents do not have the right to opt their children out of diversity and tolerance programs.)
Right to opt your children out of standardized testing
One study claims students take 112 government-mandated standardized tests between PreK and 12th grade, even though polls indicate the practice is disliked by 67 percent of public school parents. The Every Student Succeeds Act (ESSA) allows parents to refuse testing.
Right to opt your children out of the classroom entirely
Homeschooling is legal in all 50 states. Regulations about homeschooling vary with strict rules in many and lax control in others. The easiest place to homeschool is Alaska, where no contact with the government is required. Texas is also rather lenient in its policy. The most difficult states to homeschool in are (arguably) Ohio, North Dakota, Vermont, New York, Pennsylvania, Rhode Island, and Massachusetts. You can look up state-by-state homeschooling laws here.
Right to privacy
Public schools often ask students to answer non-academic questionnaires that the government uses to gather a variety of personal information. Queries might be on the family’s religious, ethnic, cultural, and moral practices, or on tobacco, alcohol, drugs, seatbelts, sex, family life, depression, mental health, nutrition, and exercise. If this seems like a nosy invasion of your family’s privacy, you can opt your child out from participating. It is illegal to penalize the children in any way for refusing to take the surveys. Worth noting: once their child turns 18 years old (and thus is no longer a minor), parents do not have the right to access their child’s school medical records.
Rights of children with special needs and disabilities for special instruction
Federal law grants all students who qualify for special education an individually designed instruction program at no cost to their parents. Parents have the legal right to have their child’s educational needs professionally evaluated, determined, and served. The student’s needs can be accommodated in either a general education classroom with assistance from a resource specialist (full inclusion) or in a smaller class of students who require individualized or small-group instruction. A student’s Individualized Education Plan (IEP) and Section 504 guides the school in assisting and accommodating K-12 kids who are challenged with learning, emotional, mental, and physical disabilities. The parent’s signature is required to approve these plans.
The right to get rid of bad teachers
Removing an awful teacher depends on your state’s laws and district policies, and requires support, or at least compliance, from the principal, PTO/PTA, district superintendent, and the local teachers union. It is fair to say that trying to sack a teacher who you — or even a whole group of parents — deem unfit can be extremely difficult in the public school system, especially given the strong protections in place for tenured teachers by local teachers unions. How strong is the teachers union in your state? Investigate here. However, firing an unfit teacher is possible. The nonprofit Students Matter, has fought cases in California and Connecticut for the right to remove ineffective teachers, and additional battles have been fought against teacher-tenure laws in New York and Minnesota. The easiest state to get a teacher fired in is Idaho, where contracts are for only one year. In Rhode Island, teachers who receive an “ineffective” rating for two years are dismissed.
Rights for student athletes to participate
Children who play sports in public school have many Constitutional rights, including the right for girls to participate equally, the right of students with disabilities to be included, the right of transgender students to be on teams, and the right to be safe from sexual assault, harassment, hazing, physical abuse, negligent supervision, and dangerous training, equipment, and playing environments. Perhaps surprisingly, student athletes are also, in many legal cases, guaranteed freedom of expression (to criticize a coach), freedom of assembly (after-game parties), and freedom to post on social media. Laws also require athletes with concussions, or suspected concussions, to be removed from participation until clearance is provided by a health professional.