Dallas Bar Association

Working with School Districts – Common Issues

by Jodi Bender

Eventually, every attorney who deals with children and families will work with school district personnel and their attorneys. While school district personnel are almost always willing to help, they are required to comply with a myriad of federal, state, and local rules. Attorneys with a basic understanding of these constraints are better equipped to make school district personnel an ally.  .

1. Access to school records

School districts must comply with the Family Education Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99), which protects the privacy of student educational records. Under FERPA, parents always have the right to their own child’s records, unless otherwise provided by court order.  FERPA also provides stepparents with a right of access in many circumstances. Therefore, if a client wants to restrict access to a child’s school records, a court order should specifically address the restrictions regarding access and a copy of the order should be provided to the school district.

When an attorney needs access to the school records of a client’s child, the easiest and most efficient way to get the records is to have the client request them. Most school districts will gladly provide records and sign a business records affidavit on very short notice to avoid sending a staff member to court to testify as to their authenticity. If a school district receives a subpoena for school records, the district is required under FERPA to notify the parents of the subpoena, so both parents will be alerted to the request for the records.

2. Subpoenas

School districts disfavor having their personnel subpoenaed to testify in court because of the costs involved. When an educator is subpoenaed, the district must pay the educator, pay for a substitute, and pay for an attorney to accompany the educator to court. Many school districts routinely file a motion to quash if all of the requirements of Rule 176 are not met, including the payment of the witness fee. Some school districts have implemented policies requiring service to be completed either before or after school hours and will not allow process servers to interrupt a teacher during class time. When serving a subpoena on an educator, be sure to follow the rules for issuing subpoenas and be prepared for a challenge.

3. The right to make educational decisions

Many problems are created when divorced parents have joint rights to make educational decisions for their children. This is especially true when dealing with children who have disabilities. When parents have equal rights to make educational decisions and cannot agree, children may not receive the services they need or school personnel may be left making the ultimate decision about what is in the best interest of the children. Thus, if it is important for your client to be the one making educational decisions for his or her children, it is wise to grant the exclusive right to make educational decisions to one parent, and require that the designated parent to inform and/or consult with the other parent when making educational decisions.

4. Court orders

Court orders should be as specific as possible to provide guidance to school district personnel. Any limitations on a parent’s rights should be spelled out in detail in the order. For example, the order should address the following issues: (1) access to records, (2) communication with teachers, (3) access to the child during the school day, (4) authority to remove the child from school, (5) the right to be listed on the emergency contact list, (6) the right to designate other individuals as contacts and (6) the right to grant the school authorization to dispense medication. Likewise, “school-related activities” should be defined.

One area where it may not help to be specific in a court order is in naming a campus where the child is to attend. While this information may be part of a court order, the school district has the right to assign the child to any school within the district according to its board policy.

Finally, when a court order is in place, a copy of the signed order should be provided to the school to be placed in the student’s records. Often parents will provide the school with a petition or a proposed, unsigned order, but school district personnel cannot—and will not—act on anything but a signed order.

Jodi Bender is an associate at Duffee + Eitzen, LLP and can be reached at jbender@duffee-eitzen.com.

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