ALBANY, N.Y. (WRGB) — As students and families prepare for the start of the new school year, there are legal rights to keep in mind, particularly when navigating special education services, student discipline, bullying, accommodations, and access to school records.
Special education rights, IEPs, and 504 accommodations
For students in K-12 with a disability, there are supports in place, such as IEPs (Individualized Education Program) and 504 plans. The former provides specialized instruction, while 504 plans – rooted in Section 504 of the Rehabilitation Act of 1973 – are more flexible and easier to qualify for.
“If your child has an IEP or needs an IEP, it’s important now to be reviewing it and seeing how, when the child starts school, is the IEP sufficient? Are there other services that might be needed, or support that might be needed? Start setting up those meetings now,” Tully Rinckey PLLC Founding Partner Greg Rinckey said. “Oftentimes, schools will defer to the lower cost option. What do I mean by that? Instead of having an individualized aide, they’ll say the child will share an aide with three or four other children, and that might not be sufficient for a child. So, you really need to be involved as a parent and be an advocate for your child.”
For parents or guardians navigating IEPs and 504 accommodations for the first time, Rinckey recommended reaching out to the school’s special education counselor to see what they may be able to offer.
“That should start the process of setting up a meeting between the counselor and the teacher, and potentially the mental health counselor, as well, to kind of see and go over the needs that the child needs, and then, what will happen is a formalized plan will be implemented,” he said. “Then, that’s where the parent really has to review that and make sure that it is sufficient, and if it’s not, that’s the time to say so and to advocate for your child.”
Student discipline and due process protections
As is the case in a court of law, there is due process when it comes to student discipline in schools. Rinckey said that a child’s disability may be a factor for how action is handled.
“The child and the parent have the right to be notified of what the allegation is,” he told CBS6. “If the child has a disability or special needs, they may even have heightened due process rights, which means [there could be] something that a child without a special need might be disciplined for and a child that has a special need may not be disciplined for because sometimes their understanding and their needs are different.”
Rinckey added that students and families have a due process right to a hearing.
Bullying and harassment protections under New York law
When it comes to bullying and harassment, even in the age of social media and interactions happening off school grounds, Rinckey said that the school has a legal obligation to act.
“Any time the school is notified or learns of any type of bullying incident, the school has a duty to get involved, and that is to investigate it and also to notify the parent that the situation is happening,” he said. “There’s also a requirement too for the school to protect the child who is being bullied.”
In other words, Rinckey said, the school has a duty to investigate the incident, determine whether it’s true, and, if so, to take an action plan to put an end to the bullying.
“If it’s cyberbullying, the school still has an obligation to call in the students and to address the allegations,” he said. “Just because it happens off of school grounds doesn’t mean that the school doesn’t have an obligation to at least investigate and protect the child.”
According to New York State data, nearly 43 percent of children have been bullied online; 52 percent of children surveyed said they did not tell a parent when they were cyberbullied. The Dignity for All Students Act, also known as the Dignity Act, signed into law in Sept. 2010, seeks to provide New York State’s public school students with “a safe and supportive environment free from discrimination, intimidation, taunting, harassment, and bullying on school property, a school bus and/or at a school function.”
The act covers cyberbully off school property if it creates or would foreseeably create a risk of a substantial disruption within the academic environment.
“The first thing I would tell the parent to do is when they have that conversation with the school, if it’s by telephone, would then to be follow up by an email, and the email should say something along the lines of, ‘Pursuant to our phone conversation of today, this is what was discussed, and these are the next steps that you indicated you would take,’” Rinckey said. “So, if the school doesn’t do anything, now you have a record that at least you put them on notice.”
Parent access to student educational records
When it comes to record keeping, Rinckey said that parents and guardians have a right to inspect the records that the school is maintaining on their child.
“Normally, it has to be done within a reasonable amount of time. I mean, if a district is going to make a parent wait 30 days to inspect the records, normally, a reasonable amount of time would be between three and seven days once the demand is made,” he told CBS6. “The record is what the record is. You can raise the issue with the district, and sometimes you can put a disagreement notice into the record, as well. But just because you disagree with the notice or the records doesn’t mean you have a right to change the record.”
Open communication
Overall, Rinckey said that parents and guardians should maintain an open line of communication with their child’s school and district.
“If there’s a problem, you need to say something,” he said. “If the problem is continuing and you don’t think anything’s been done about it, you need to continue to advocate for your child, and also by following up in writing so there is a paper trail.”
