Back to school often brings a flood of requests from students, including requests to meet as student groups on school grounds. From gay-straight alliance to religious student groups, stories about requests for student groups seem to always be in the news. So there’s no better time to freshen up on the sometimes confusing rules about the rights of students to assemble as student groups. Although there are exceptions, the general rule is that all student groups should be granted similar rights as other groups, regardless of the particular viewpoint (e.g., religious, social, etc.) of the group.
Here’s a scenario that comes up frequently:
Q: A student has asked to start a Bible study student group at school. I’m nervous that parents will think the school is supporting Christian beliefs in violation of the separation of church and state. Can I deny the student’s request?
A: The answer depends on a number of factors, such as the type of group, when it wishes to meet and the proposed role for school district employees. One thing is for certain – religious groups are quick to hire lawyers and even file lawsuits when such requests are denied. At the same time, the improper support of religious messages in school is equally dangerous for school districts. So it’s prudent to review all religious student group requests with the school district’s legal counsel.
A few general principles will likely apply:
- The mere fact that students wish to have a student group with a religious purpose does not in itself violate any principles of separation of church and state. In fact, if the group meets during a time when other student groups are allowed to meet (e.g., before and after school), a school’s refusal to allow students to meet will likely violate the students’ First Amendment rights to free speech and assembly.
- If students expect to have an actively participating teacher or staff sponsor, that may change the equation. Allowing an employee sponsor to participate in any meaningful way could lead to an unjustified entanglement between the school and the religious student group, violating the Establishment Clause of the Federal Constitution. Although schools can – and should – require an adult sponsor to ensure proper student behavior during meetings, employees should not be active participants in any religious club. But don’t use a request for an active sponsor to deny a student group’s application for recognition outright. Instead, simply limit the activities that the sponsor can undertake with the group.
- Schools do have discretion to limit the time, place, and manner of student group meetings, including religious student groups, as long as such limitations are applied equally to religious and non-religious student groups alike. For example, the Sixth Circuit Court of Appeals (the federal appeals court with jurisdiction over Kentucky, Michigan, Ohio and Tennessee) suggested in a recent case, Whitson v. Knox County Bd. of Educ., that prohibiting elementary-school aged children from holding a Bible study during recess (which has the goal of physical activity) would not necessarily violate the student’s First Amendment rights. Robyn Hagan Cain provides a good summary of the issues on the FindLaw 6th Circuit News and Information blog.
Back to school is a busy time for school administrators, but don’t forget your Section 504 obligations. The following are tips to remember during student registration and the first weeks of school regarding Section 504 identification and eligibility:
- Provide information about Section 504 to parents during the registration process and through the school district website, in addition to other systematic efforts to communicate the school district’s Section 504 policies and procedures to stakeholders. Include a summary of Section 504, the processes used to determine eligibility, and contact information for relevant school administrators.
- Train administrators and staff about current standards for 504 eligibility so that warning signs are not missed. Importantly, under the definition of disability from the 2009 ADA Amendments Act, a student can be eligible under Section 504 even if the student’s disability does not impair learning. Simply because a student has good grades does not mean she is ineligible for Section 504. Look for other impacts of a disability, such as problems with behavior. Our firm issued a summary of the 2009 amendments and their impact on Section 504 that is a good starting point for a review.
- Ask for documentation supporting the student’s claim that he or she has a covered impairment, but don’t demand a medical diagnosis. For those with Special Ed Connection access, the Houston Independent School District special education updates blog has a link (subscription required) to an article warning against requiring a medical diagnosis as a condition for assessing student 504 eligibility.
- Watch for signs that a student is not responding to general education interventions and move toward Section 504 evaluation if necessary. Although it is appropriate to respond to student concerns with such interventions, persisting with them once they prove to be inadequate can spell trouble for the school district (subscription required).
Most if not all districts already have standard Section 504 forms which accurately comply with the 2009 changes to the ADA, the most recent legal update needed. If your district has had usability issues with its forms, Franczek Radelet recently updated the standard forms to make them more user-friendly. If you are interested in these newly formatted forms, e-mail me at email@example.com.
What About Private Schools?
As Nirvi Shah explained at On Special Education, the Department of Education takes the position that unless a private school receives federal financial assistance it is not subject to Section 504. Public schools should seek the advice of legal counsel if evaluation and/or services are sought by a student attending a private school, however, because the issue of whether such a student should receive services under Section 504 is still unsettled.
Recent reports of a lawsuit (Bethards v. Carlock) by a 17-year-old California high school student, Bowen Bethards, against his school for the C+ he received in chemistry may make you wonder: How far would a lawsuit regarding grades go in Illinois?
The issue hasn’t come before an Illinois State court. But last year, a group of Franczek Radelet attorneys (Patricia Whitten, John Relias and myself) secured a victory for Evanston Township High School District 202 in a case suggesting limits to such a lawsuit in this jurisdiction.
In Zachary M. v. ETHS 202, a former ETHS student made similar claims to those made by Bethards, including that what he considered to be low grades were hurting his chances of getting into his college of choice. Zachary M. asked that, among other things, the court order ETHS to recalculate his grades, giving him more credit than his teachers originally decided he had earned.
A federal trial court here in Chicago agreed with ETHS that the court did not have the authority to order ETHS to recalculate the student’s grades. The court explained that courts are always reluctant to wade into the murky waters of such purely academic matters as grade calculation. The court noted the impropriety of attempting to go back and revise an entire high school academic record, which inherently would involve the court in subjective academic decisions that are entirely outside the jurisdiction of a federal court.
Of course, California may have its own rules and laws that would allow Bethards to bring his suit. But at least in Illinois, there is support for the claim that changing grades is the job of schools and teachers – not courts.
With guest blogger Amy Dickerson
The story of Karen Klein, the now retired bus monitor from New York who was bullied by students on a school bus, gripped the country this summer. After a viral video of the incident was released, an internet campaign was launched soliciting donations to send Klein on vacation. As the LA Times reported, the campaign raised over half a million dollars.
Internet donors apparently weren’t the only ones paying attention. The Department of Education (DOE) issued a statement after the incident reminding schools of DOE resources to help create a safe and respectful environment on school busses. DOE’s Office of Safe and Healthy Students and the Safe and Supportive Schools Technical Assistance Center offer free presentations and related training modules which are must reads for school officials aiming to provide a respectful bus environment for back to school.