Can You Sue a School?
Your children are the most important thing in your life. Their education and well-being are always a top priority. What if there is an incident at school? Does a parent have the right to hold the school and its employees accountable under the law?
There is an old saying for those of us in practice: It depends.
Here, that old saying definitely applies when looking at legal action in public schools. Breaking down the type of incident is the easiest way to understand potential representation in a public school and how it affects your child.
Essentially, students are allowed to have legal representation for almost every part of their education from early childhood to their senior year. A large part of my practice is what we call “Direct Representation” in a public school setting. It is appropriate to say that many of our clients hire me for advocacy of their particular issue, whether it be a sitting in with an ARD meeting, a substantial issue involving their disability, or occasionally discipline. Having an advocate with education experience brings some authority to the table and often helps get the parent’s wishes expressed in a non-adversarial and more detailed way. This could be for any issue.
The question, after that, is if the parent doesn’t get what they want or need, can they sue?
First, the parent would likely need to go through the grievance process. Each school has a set process listed in the FNG portion of its standard. The parent can get the form, fill it out, and go forward with attempting to get a resolution. In reality, having a lawyer fill it out and sit in at a grievance hearing is going to make the school pay attention a little closer. Grievances are usually the first step. There are strict time limits on how grievances are filed that a parent must pay attention to. Grievances have 3 levels, ultimately ending up at the School Board. You must go through the grievance phase to get to a Federal lawsuit, as discussed below.
All in all, schools nationwide have made appealing and getting any relief for discipline issue (fighting, drugs, vape, Delta 8, etc.) very difficult. Most schools now have learned to enforce mandatory sentences for the offenses, which don’t offer any avenue for appeal outside of what school call a “Building Appeal.” Grievances don’t really fall under the category of mandatory discipline, although I have wiggled my way into some relief doing so.
Injury is its own species in school law, and often only falls under injury that happens in a bus.
Our focus in suing schools is at the Civil Rights level. Suing a school is typically limited to Civil Rights claims. Suing a state entity must be done in Federal Court. Examples of claim types areTitle 9 issues, 1983 issues, and sometimes straight Constitutional Claims. The types of claims that I usually file are based on Title 9 issues (harassment being ignored), or incidents based on treatment being different for someone based on their protected status, such as race, disability, or sex. These claims are tough due the state’s ability to file for “Sovereign Immunity.” This is essentially the government saying that the government can’t be sued. This ability mixed with the dynamic of being a state agency makes suing in Federal Court an uphill battle.
You need someone experienced in getting Federal lawsuits filed and getting past Sovereign Immunity claims. Our firm has done both and is more than willing to hear your issue.
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