Education Law: Overview of Popular Topics

December 7th, 2015 | By Jules Halpern Associates | Education Law, Harassment, New Jersey Law, New York Law, Student Harassment

Education and its related laws can be rather complex. Although there are many facets to education law, in this article we will cover just a few of the areas that arise frequently.

Intellectual Property of Lesson Plans

An increasingly common practice among teachers has been to buy and sell lesson plans over the Internet. However, subject to a narrow exception, teachers have no right to do so, as the lesson plans belong to the school or school district.

The federal Copyright Act of 1976 states that when an employee has created material within the scope of his or her employment, the employer owns “all the rights comprised in the copyright,” absent a written agreement otherwise. 17 U.S.C. §201(b). The Second Circuit made clear that this “works-for-hire” doctrine applies to teaching material. In Shaul v. Cherry Valley – Springfield Cent. School Dist., 363 F.3d 177 (2d Cir. 2004), the court ruled that the nature of a teacher’s work requires spending time performing work duties at home, including the creation of lesson plans. Therefore, any material regarding lessons, tests, or homework are considered to be made in the scope of employment for the school, even if they were created at home.

Private schools and public school districts have the option of avoiding issues with copyright law by stating clearly in the employee’s contract who owns academic material created for the classroom. If a school decides, in writing, to grant ownership to the authoring teachers, that agreement would trump federal copyright law.

Reporting Bullying and Harassment

The New York Dignity for All Students Act requires public school employees to report any instances of harassment, bullying, and discrimination against students. The employee must make the report to the school’s principal or superintendent within one school day. The reporting requirement applies even if the employee did not witness the incident, but received an oral or written statement that the incident occurred. New Jersey’s law on bullying is similar to the Dignity for All Student Act, except that the State goes further by requiring school districts to have an anti-bullying specialist to investigate all bullying complaints.

The incidents covered by the reporting requirements include those that take place on school property, on a school bus, or at a school-sponsored extracurricular event. However, cyberbullying, or bullying over the Internet, must also be reported if it unreasonably and substantially interferes with a student’s well-being or educational performance. If the cyberbullying occurred off school premises, there must be a foreseeable risk that the bullying would disrupt the victim’s school environment.

The state laws on bullying apply only to public and charter schools. However, private schools may create their own reporting policies, using the Act as a model. Private schools may extend the scope of their policies to include incidents of bullying or harassment that occur outside of school property, even if there is no foreseeable risk that the bullying or abuse would reach school property.

Reporting Child Abuse and Neglect

New York Social Services Law requires certain school employees to report any instances of suspected child abuse or maltreatment to the State. “Mandated reporters” include teachers, nurses, school administrators, social workers, coaches, or other school officials who are required to hold a teaching or administrative license. The requirement applies to both public and private employers. Employers can contractually expand the list of employees that must report abuse by requiring so in their policies.

Child “abuse” occurs when anyone legally responsible for the child, including a parent, inflicts serious physical injury upon the child, creates a substantial risk of serious physical injury, commits a sex offense against the child, or allows any of the above to happen to the child.

A child is “neglected” or “maltreated” when he or she is not given sufficient care to protect his or her well-being. A child could be maltreated if the person legally responsible for the child does not give adequate food, clothing, medical care, or supervision. Maltreatment and neglect also encompass excessive corporal punishment, drug abuse, or alcohol abuse that puts the child in imminent danger.

Mandated reporters need only have a reasonable cause to suspect a child has been abused or maltreated in order to report the suspected behavior. Incidents must be reported immediately to the New York Statewide Central Register and kept strictly confidential.

Sexting

In New York, although it remains unlawful for minors to exchange “sexts,” most students would not be penalized on child pornography charges for sending or receiving nude images. Instead, for cases where the teenage sender and receiver are within five years of age of each other, first-time offenders may be sent to an 8-hour educational program to teach them about the dangers and consequences of sexting. New Jersey has a similar law, giving the courts discretion on whether or not to send offenders to the educational program, which is open to offenders under 18 years old. School faculty and administration should remain aware, however, that possessing and disseminating these nude images of minors is still a crime and must be dealt with accordingly. An increasing number of teenagers are suffering emotional damage when inappropriate photos are spread to unauthorized people beyond the intended recipient. Strict policies and educational programs about the dangers of sexting can prevent some of these incidents from occurring.

Professional Boundaries

There are no state or federal laws that ban relationships between two consenting adults. However, federal law, under Title IX of the Education Amendments of 1972, outlaws sexual harassment against students. This means it is unlawful for a teacher to make a student, including one of consenting age, believe that the student must perform a sexual act in order to receive a certain grade or enrollment status. Students are also protected from sexual behavior that is so severe or persistent that it interferes with their ability to participate in educational activities. Any school that receives federal assistance is subject to these laws.

Schools must make clear, explicit policies against non-professional teacher-student relationships in order to prevent those that are not prohibited by law. Schools may also wish to publish guidelines for employees to prevent being suspected of having an unlawful or unprofessional relationship with students. These may include policies that prohibit contact between employees and students via social media, phones, personal e-mail, or social phone applications. Employees may also be discouraged from engaging in conversations with students behind closed doors, seeing students outside of school functions, or having personal conversations with students unrelated to an educational agenda.

Immunization

New York Law requires students of certain ages to be given immunizations for a list of diseases before being admitted into a school. However, the law provides two exemptions to immunization requirements of students. The medical exemption allows students to bypass immunization requirements where a licensed physician had found the immunization to be detrimental to the child’s health. Under the religious exemption, immunization requirements do not apply to students whose parents have a genuine and sincere religious belief that contradicts the requirements.

The determination as to whether a parent’s religious claims are sincere is left to the school. If the school finds that the parents’ claim is a pretext for refusing the child immunizations, the student may be denied admission. The parents are able to provide documentation from their religious organization to support their statements. The parents further have a right to file a lawsuit to appeal the decision of the school or seek equitable relief.

FERPA

The Federal Educational Rights and Privacy Act (FERPA) grants students control over the disclosure of their school records. For students under the age of 18, this right is vested in their parents. Generally, FERPA prevents schools from giving any student educational records to unauthorized individuals or organizations without student permission. However, some exceptions to this rule include:

  • Showing records to other school officials who have a legitimate interest in the records;
  • Sending records to a school to which the student is transferring;
  • Health and safety emergencies; or
  • Financial aid purposes.

Further, students have the right to review school records. If a student believes an item in the records contains an error, the student is entitled to a hearing before the school to determine if the record is to be amended. If the school decides not to amend the record, students have a right to attach to the school record their view on the discrepancy in the record.

Education law issues evolve and expand rapidly. Many laws have certain exceptions and nearly all situations are highly fact-specific. For these reasons, it is best to confer with counsel for advice on how to handle particular situations.

Jules Halpern Associates LLC

Workplace and Education Law Advisors

Jules Halpern Associates LLC
JULES HALPERN ASSOCIATES LLC is a boutique law firm committed to serving our clients in all facets of their workplace issues. We provide personalized, practical advice that resonates with our clients’ business objectives.
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Jules Z. Halpern

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