The Education Law Center’s 2021 Back-to-School Guide
The Education Law Center (ELC) has updated its annual Back-to-School Guide with publications on various education topics to help families, students, and child-serving professionals. Please see the ELC website for a full-featured version of this newsletter.
In addition to understanding the legal rights explained in this guide, you can also visit your school district’s website for specific information about how it plans to educate and provide supports for students. Check your school’s policies to see if your children may have protections that go beyond the scope of this guide. And check back with us as we will continue to update our materials throughout the school year.
As students return from extended school closures because of COVID-19, school days may look very different. While students and families continue to face unprecedented challenges, they continue to have important education rights and protections under state and federal laws that ELC is committed to advancing. Our students also remain deserving of equitable, affirming, and culturally responsive school spaces free from racism.
As school resumes, ELC urges its partners, schools, and policymakers to prioritize equity and to confront the legacies of anti-Black racism, ableism informed by racism, and other systemic and intersectional inequities in schools.
Parents have the right to evidence-based, clearly communicated plans for how schools plan to keep children safe during COVID, particularly in communities of color where the incidence of the virus is higher and students are more at risk.
1. AFFIRMING & SAFE SCHOOLS FREE FROM RACISM
We know that schools often fail to provide equitable, safe, and affirming environments for all students, particularly students of color. Alarmingly, incidents of racial hate and abuse are on the rise. All schools in Pennsylvania should invest in anti-racist education, develop comprehensive equity policies and practices to enable students to thrive, and ensure that responses to incidents of hate address school climate as a whole. No school community is immune from the systemic and structural racism that pervades our country and culture. Educators and administrators have a legal obligation not to stay silent and to act to confront and prevent racial discrimination, including racist harassment in schools.
Schools are legally obligated to ensure that students are not being denied opportunities, treated differently, discriminated against, or harassed because of their race, color, national origin, or immigration status. Schools must have policies and practices to prevent and address unequal treatment like discrimination and harassment.
2. STUDENT ENROLLMENT
Students have the right to be enrolled in school within five days of submitting only four documents: proof of the child’s age, proof of where the child lives, immunization records, and a sworn statement of disciplinary record. Schools can never ask students and caregivers about immigration status or ask for proof of immigration status. Nor can they discriminate against students in other ways regarding enrollment and school placement based on immigration status, race, color, sex, religion, disability, sexual orientation, gender identity, or a student’s status as pregnant or parenting.
Investigative reporting and ELC’s experience reveals troubling racial bias and anti-Black racism in enrollment practices. The students who are most likely to be disenrolled, suspected of residency fraud, or subjected to residency hearings are disproportionately Black and Brown students. ELC has successfully challenged such practices and seeks to uphold state guidance instructing that school districts and charter schools must be “flexible in verifying residency, and should consider what information is reasonable in light of the family’s situation.”
Schools can exclude students who are not immunized and can mark students as having unexcused absences until they are immunized or provide a documented exemption, with some limited exemptions. Students in care and students experiencing homelessness have additional enrollment protections, including immunization. Please see our School Immunization Requirements in Pennsylvania fact sheet to learn more.
3. SCHOOL DISCIPLINE
Students have important rights and protections when facing exclusionary school discipline (e.g., suspension, expulsion, and disciplinary transfer). These include the right to proper notice, the right to ask questions, the right to an appropriate hearing, and in most cases, the right to receive education services in the interim and after exclusion.
The disproportionate push-out of Black and Brown students is well documented in Pennsylvania and nationally: Black students are three times as likely as white students to be suspended due to discriminatory enforcement of school discipline. As the number of suspensions has increased over time, so have racial disparities. A joint report of the U.S. Commission on Civil Rights and the U.S. Government Accountability Office explains, “Students of color as a whole, as well as by individual racial group, do not commit more disciplinable offenses than their white peers ‒ but Black students, Latino students, and Native American students in the aggregate receive substantially more school discipline than their white peers and receive harsher and longer punishments than their white peers receive for like offenses.”
Discipline may look different if your child is still learning from home through a virtual platform. If your child is excluded from the virtual classroom, you still have the rights explained in the fact sheets below.
4. ADDRESSING ATTENDANCE BARRIERS (TRUANCY)
Pennsylvania requires that all students go to school from age 6 until age 18 or when students graduate. This period is called the “compulsory school age.” Legal consequences can arise when students have unexcused absences. If a student accrues three unexcused absences, they are considered “truant” under the law. If a student has six or more unexcused absences, they are considered “habitually truant” under the law. Schools must take steps to improve attendance for students who are habitually truant, including holding attendance improvement conferences to identify and address the reason for absences.
As COVID-19 continues, schools are still legally required to protect students’ rights and work with families to improve school attendance and participation, regardless of whether students are learning in-person, through a hybrid model, or virtually. If these steps are taken and attendance does not improve, parents and students can face serious legal consequences, including fines and jail time. While ELC disagrees with these consequences, the law allows schools and decision-makers to impose them.
While there is limited research regarding racial disparities in truancy involvement overall, it is well documented that punishments imposed following non-attendance are disproportionately applied to Black and Brown students. For example, Black, Asian, and Latinx students are more likely to receive a second truancy petition than white youth, and Black youth are twice as likely to be adjudicated dependent for not attending school than their white peers. Families of color are also more likely to encounter barriers to getting schools to keep accurate attendance records as is required by law. They are more likely to come into contact with systems of child welfare and face fines, fees, and jail time as a result of disparate enforcement of compulsory school law and penalties. ELC has been involved in cases where responses to non-attendance of students of color are disproportionately harsher – such as imposing sanctions of jail time, swifter referrals to dependency court, referrals of youth to residential placement, and heightened police interaction with families.
5. BULLYING AND HARASSMENT
Bullying and harassment are serious issues that can significantly affect a child’s ability to learn and impact a child throughout their life. All students have the right to be free from bullying and harassment in school ‒ whether it is verbal, written, graphic, physical, or online. Pennsylvania schools are required by law to have written policies against bullying and harassment and must investigate and address complaints.
Schools should be aware that students of color, students with disabilities, and LGBTQ students are disproportionately subjected to bullying and harassment, and too often disciplined for behavior that follows the bullying/harassment. Behavior may qualify as “harassment” if the offensive conduct relates to race, color, national origin/ethnicity, gender, gender identity, sexual orientation, age, disability, or religion. If your child is experiencing bullying or harassment, keep detailed records of each incident and request in writing that the school takes action.
Cyberbullying ‒ bullying or harassment that takes place over digital devices or the internet – is a growing problem. Studies indicate that a majority of students of color have been subjected to racially discriminatory cyberbullying, and LGBTQ students and students with disabilities are also at higher risk of cyberbullying.
School staff must intervene to interrupt and prevent any bullying or harassment, using developmentally appropriate interventions, including if the behavior takes place in-person at school or if the school knows that a student is being bullied or harassed by another student online – including in virtual school sessions – or at any activity sponsored, supervised, or sanctioned by the school.
6. STUDENTS WITH DISABILITIES
Students who have a disability that impacts their learning have the right to a “free appropriate public education” (commonly called a FAPE), which is a planned program of education and special services that takes account of a student’s individual needs.
Notably, Black and Brown students are more likely to be misidentified as needing special education, placed in more restrictive settings, and excluded from school due to harsher discipline. In addition, although parents have the right to participate in the special education process and consent to or refuse particular services, Black and Brown parents are more likely to be excluded from meaningful participation in this process. Mounting research and lived experience demonstrate the harmful impact on student outcomes from special education resulting from this significant disproportionality in special education based on race.
Students with disabilities and their parents have robust rights to challenge decisions made by schools with which they disagree, including misidentification, restrictive placements, and harsh discipline. These rights have remained intact and continue despite school closures and other changes related to the COVID-19 pandemic. Parents should be included in the creation of individualized plans for their students with disabilities to fully access in-person learning, including required modifications to a school’s health and safety plan, and remote or hybrid learning. Students with disabilities should receive all necessary services, including related services, to address their needs.
7. EARLY CHILDHOOD EDUCATION
Children who receive quality early education do better in kindergarten and in school overall. However, disproportionate suspension and expulsion of Black preschool students greatly impact these outcomes. Black preschool students are more than three times as likely to receive one or more out-of-school suspensions as white preschool students, due to discriminatory school discipline. No evidence exists that students of color engage in more disruptive behavior than white children. Children with disabilities and emotional challenges are also subject to much greater rates of preschool suspension and expulsion.
Due to continued concerns about the long-term impact of preschool suspension and expulsion, the Office of Child Development and Early Learning (OCDEL) is committed to ending this practice in Pennsylvania.
Publicly funded programs such as Head Start, Early Head Start, and Pre-K Counts offer free early childcare and education programs for children from low-income families. The Early Intervention program provides additional services for children with developmental delays and disabilities at no cost to parents, regardless of income. These programs must collaborate to ensure that children are not excluded from preschools disproportionately based on the intersection of race, disability, and gender.
8. STUDENTS INVOLVED IN FOSTER CARE OR JUVENILE JUSTICE SYSTEMS
Children involved in the foster care or juvenile justice systems, like all public school students, have the right to free public education but are more likely to receive an inferior education.
Students in foster care have additional rights to ensure their school environment is stable, despite changes in living arrangements. The right to “school stability” includes the right to remain in the same school even when youth change living placements, the right to enroll in a new school immediately without the required documents, and the right to have an active, involved education decisionmaker.
Students who are placed by court order in a residential facility – including students “adjudicated delinquent” – are entitled to attend the local public school in the district where the facility is located, unless certain exceptions apply.
The continuing trend of overrepresentation of Black and Brown youth in both the juvenile justice and dependency systems is well-documented. For example, the Pennsylvania Juvenile Justice Task Force Report issued in June 2021 disclosed that while Black youth make up 14% of the statewide youth population, they represent 38% of cases in juvenile court, 62% of youth detained before adjudication, and 47% of youth sent to a residential facility. Similarly, Pennsylvania’s Department of Human Services’ Racial Equity Report reveals that Black children are more likely to enter foster care and stay in foster care longer than white children. While Black children make up 14% of the total child population, 35% of children in foster care are Black, and Black children compose 42% of children who have been in foster care for two years or more. Such gross disparities are reflective of racial biases that operate on multiple levels throughout the child welfare, juvenile justice, and education systems.
9. STUDENTS EXPERIENCING HOMELESSNESS
Students in all public schools, both district and charter, who are experiencing homelessness or housing instability are entitled to school stability and immediate enrollment in school, as well as free transportation to and from school. This includes unaccompanied students experiencing homelessness on their own. A federal law called the McKinney-Vento Act provides students experiencing homelessness a robust array of protections to ensure equal access to education, from preschool through high school.
These protections do not have a time limit and remain in place until the student is no longer experiencing homelessness, even during COVID-19. McKinney-Vento eligible students have a right to school stability, with transportation provided until the end of the school year in which they secure permanent and adequate housing.
Racial disparities in affordable housing existed long before the COVID-19 pandemic, and yet, data suggests that the pandemic and the ensuing economic fallout are widening these divides, disproportionately impacting students of color who are already overrepresented among students experiencing homelessness. For example, the state’s 2018-19 Homelessness Program Evaluation Report reflects that a majority of schoolchildren experiencing homelessness across the state were Black or Brown.
10. MULTILINGUAL STUDENTS: STUDENTS & FAMILIES FROM LINGUISTICALLY AND CULTURALLY DIVERSE COMMUNITIES
All students have the right to attend school, regardless of their immigration status. Schools cannot ask about a student’s or caregiver’s immigration status and cannot require a birth certificate or Social Security number before enrolling a child in school. Students and families from linguistically and culturally diverse communities should receive language services and accommodations that allow them to participate in education regardless of English proficiency.
Students who need to develop English language skills have the right to receive English language instruction as English learners. English learners have many special protections, including the right to learn English (with language instruction such as English as a Second Language or ESL), the right to supports, modifications, and accommodations in their core classes, and the right to be free from harassment based on their race, immigration status, or national origin. Parents whose first language is not English have the right to receive information about their child’s education in a language they understand.
For more information about the rights of immigrant, refugee, and asylee students and families, the U.S. Department of Education has a website with translated resources. Two fact sheets are available in over 10 languages on the rights of English learners to participate in educational programs and the rights of limited English proficient parents and caregivers to receive translation and interpretation for communications with the school.
11. LGBTQ & NONBINARY OR GENDER-NONCONFORMING STUDENTS
LGBTQ and nonbinary or gender-nonconforming (GNC) students have the same rights as other students. Schools are required to intervene and correct policies or behavior that discriminates against students based on sexual orientation or gender identity. In recent years, the United States Supreme Court and multiple federal courts have affirmed the rights of LGBTQ students to attend school as their true selves, free from harassment and discrimination.
Unfortunately, too often LGBTQ students still face discrimination and harassment at school from their classmates or teachers, with insufficient intervention from their schools. Black trans students often face the most harassment and disproportionate discipline. This is illegal.
With COVID-19 school closures that require students to stay at home for virtual classes, there may be additional challenges for LGBTQ students resulting from limited access to community support, lack of in-school counseling, and, in some cases, the difficult circumstances of quarantining with unsupportive family members. Schools have the obligation to support students’ social, emotional, and mental health, including via remote services and virtual meetings for a Gay Sexuality Alliance (GSA) or other student groups.
If a student who is transgender, GNC, or nonbinary identifies a chosen name and pronouns, school staff should use that name and pronoun for all interactions, written and verbal, except where required by the law to use a child’s legal name. This includes providing an opportunity to correct the student’s name on any digital platforms a school is using during virtual learning (i.e., display name on Google Classroom). Purposefully and persistently misgendering a student may be harassment under the law.
12. SELF-ADVOCACY TOOLS
This year, ELC created a series of fillable self-advocacy tools for parents, guardians, educational decision-makers (EDM), surrogate parents, and advocates to address some of the most common barriers to school success that students encounter. You will find them referenced in the sections above. Each tool is free to use; most are fillable forms.
For the extensive and detailed comprehension list, visit The ELC’s Back-to-School Guide.
If you have questions about a particular issue at your school, please call ELC’s helpline at 215-238-6970 (Eastern and Central PA) or 412-258-2120 (Western PA).