Skip to main content

Can the parents of an ADHD student take legal action to prevent their son from being transferred to a lower level class?

Chatham, NJ |

I have a student in my Honors Physics class who was forced to drop the class and transfer to the lower level Standard Physics at the end of the first quarter. The school policy requires that any student with a grade below a C- in an Honors class is required to transfer to a lower level class. However the parents were not informed prior to registering their son for Honors Physics that he would be 3 months behind if he were forced to transfer to the lower level class. This is the only Honors level class for which this is a problem when students are forced to transfer. Is this discrimination? This ADHD student has difficulty focusing in the lower level classes because of the distractions that are more prevalent at that level. The administration refuses to allow him to stay in my class.

+ Read More

Attorney answers 3

Best Answer
Posted

In answer to your question, what you describe does not constitute unlawful discrimination against this student.

In answer to the real question here -- the question you have not asked -- you seem to be the teacher in this summary of facts. Your concerns are most likely well-intentioned, but it is not appropriate for you to either give the parents advice in this circumstance or to interject your own views into this situation. You owe your employer duties of loyalty and compliance and this post raises troubling inferences that you have lost sight of your duties to your employer. The parents have the ability to seek out legal advice if they choose, but this is not your fight. Don't put your job in jeopardy by getting into a fight that is not yours to wage.

No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

Asker

Posted

I know that medical malpractice is a legal issue. Is "educational malpractice" a legal concept? The Standard physics curriculum was changed during the summer so that the beginning topic sequence is now Electricity and Magnetism (Chapters 32-37). In other words the last chapters of the text are being taught first while the first chapters are being taught at the end of the school year. Three of the four physics teachers at this school are appalled by this change. This is why students who are forced to transfer from Honors to Standard physics will find themselves having to make up three months of material. The parents and guidance counselors were not informed of the changes and so they were not aware that serious problems could result for some students. Do I not have an obligation to advocate for one of my students who is placed in a position that is unfair based on an educationally unsound policy? OK so it is not "discrimination". I know that medical malpractice is a legal issue. Is "educational malpractice" a legal concept? If so, can the parents file a complaint based on an unfair and educationally unsound policy?

Asker

Posted

The parents chose NOT to have an IEP or a 504 plan for this student.

Christine C McCall

Christine C McCall

Posted

All legal claims are based on the existence of a legal duty which has allegedly been breached. No duty = no claim. The school does not have a duty to teach any specific class in any specific way. All "malpractice" claims are based on a claim of alleged breach of the duty to act at or above the standard of care. There is not a "standard of care" that prescribes a specific sequence for teaching this class. The administration of the school, including its class offerings both in toto and in particular, is not dictated by the consensus of the faculty. I routinely represent teachers who get cross-wise with their districts or their schools and lose their jobs. Some have to fight to retain their state teaching credential. You aren't listening here, and I fear for you. STAND DOWN. Put yourself on a track for an administrative/leadership position in your school and/or your district. When you are chosen and authorized to make these decisions, go for it. Until then, no, you do not have a duty to advocate as you think best for a specific student. You have a duty to do your job as your employer defines it. Or you will find yourself writing editorials for the newspaper about education policy -- from the vantage point of a former teacher of your class at your former school.

Asker

Posted

I am impressed with how clearly you state your arguments. Your expertise in the legal profession is most evident. I am indeed paying attention to your advice. I have been a teacher in this district for about 20 years and I have seen four different administrations come and go. The culture changes with each administration. There have been administrations that have been so inept that a vote of no confidence from the faculty and the union officials prompted the Board of Ed to send them packing. There have been administrations that have treated teachers and guidance counselors as respected professionals and we had great impact in the decision-making process. And then there is the present administrators who play the role of "boss". We are given directives and we are expected to follow our "orders" with little or no argument. That adjustment has been difficult for those of us who recall the time when our experience and our input were respected. The President of our teacher's union also suggested that I "Stand Down". I informed him that the day I stopped advocating for my students is the day that I would no longer be able to hold my head up when I walked into the classroom. The option of going into administration never appealed to me because I love teaching my students. I and some of my colleagues have explored the option of moving to another district or taking an early retirement...or hell....perhaps I will start writing editorials for the local newspaper about educational policy. I could explore your statement: "There is not a "standard of care" that prescribes a specific sequence for teaching this class." Hmmm....really? I have been teaching physics for more than 30 years. I submit that teaching the last chapters of a physics text first, then the middle chapters and finally the first chapters violates common sense and is educationally unsound. If I were a parent of a student who took that class and received a D or an F then I would be demanding that a "standard of care" be established. I do sincerely appreciate the time you have taken to read my case and to provide me with your professional opinion. You have given me much to think about. Thank you.

Posted

Your question entails a number of federal and state laws, most notably the IDEA (Individuals with Disabilities Education Act), Section 504 (Rehabilitation Act of 1973), the ADA (Americans with Disabilities Act, and the NJ LAD (Law Against Discrimination). The best answer with the facts that your relate is that it could be discrimination. It could be a violation of the student's IEP (as a student with ADHD, he could be classified as OHI if he needed specialized designed instruction). It could violate his rights under 504, the ADA, and/or the LAD.

The real question is why was he doing below a C- in your class. Maybe he just isn't good at chemistry. If you think it is because he needed some accommodation to address his ADHD (e.g. more time to take an exam - typically 1/2 again or double time) or maybe he needs to be evaluated for some other issue, then you should communicate it to his special education case manager. However, you should do that in writing and keep a copy for your own protection. You might want to let your union rep know also so as to CYA any retaliation by the administration against you for your lawful and appropriate actions. They will not like your actions.

You might recommend to the parents that they retain an education attorney.

Asker

Posted

The parents chose NOT to have an IEP or a 504 plan for this student.

Asker

Posted

I know that medical malpractice is a legal issue. Is "educational malpractice" a legal concept? The Standard physics curriculum was changed during the summer so that the beginning topic sequence is now Electricity and Magnetism (Chapters 32-37). In other words the last chapters of the text are being taught first while the first chapters are being taught at the end of the school year. Three of the four physics teachers at this school are appalled by this change. This is why students who are forced to transfer from Honors to Standard physics will find themselves having to make up three months of material. The parents and guidance counselors were not informed of the changes and so they were not aware that serious problems could result for some students. Do I not have an obligation to advocate for one of my students who is placed in a position that is unfair based on an educationally unsound policy? OK so it is not "discrimination". I know that medical malpractice is a legal issue. Is "educational malpractice" a legal concept? If so, can the parents file a complaint based on an unfair and educationally unsound policy?

Donald G. Henslee

Donald G. Henslee

Posted

Courts are reluctant to interfere in a schools educational methodology, except in rare circumstances, such as requiring ABA techniques for autism. Educational malpractice does not exist as a common law cause of action. It must be specifically authorized by state statute. You will need to ask a licensed New Jersey education attorney whether you have such an action , but I doubt that you do. Special education teachers are frequently caught in your difficulty. You are naturally and ethically a child advocate. However, the parents have chosen not to pursue their remedies. Your school will not be happy with your actions, I'm afraid. Be careful and keep your union or professional association rep informed. Good luck, Chatham. You sound like my kind of special education teacher.

Jonathan Seth Corchnoy

Jonathan Seth Corchnoy

Posted

With the facts that you mentioned, the student need only be treated as any other non-classified student would be. Nevertheless, if you believe that the student needs to be re-evaluated, the District has its continuing "child find" obligations. You should report it to the CST and let them decide what to do. If the parents refuse services, that is their right to do so. However, I have often found that they often do so because they do not understand their rights.

Posted

It is admirable to see teachers looking out for the well-being of their students. SInce it is not indicated, I will assume for purposes of this answer that the student in question has either a 504 Plan or an IEP. As a teacher, you could certainly go to the child study team and document your concerns and it would then be their responsibility to determine if that student's Plan or goals and objectives were being followed, met, or not attainable. Perhaps they would need to be modified or more or different accommodations added to better meet the student's goals and objectives or the expectations in your class so that this student would meet more success. It would be the role of the child study team to inform the parents that they have the legal right to challenge whether to not the student's educational placement is providing the student with a free and appropriate public education in the least restrictive environment. However, there is nothing to prevent you from suggesting that the parents speak to the child study team. This answer is for educational purposes only, It is not meant to create any attorney client relationship or to provide legal advice.

By answering this question, this does not create any attorney client relationship between the parties and this answer is meant for educational purposes only.

Asker

Posted

The parents chose NOT to have an IEP or a 504 plan for this student.

Asker

Posted

I know that medical malpractice is a legal issue. Is "educational malpractice" a legal concept? The Standard physics curriculum was changed during the summer so that the beginning topic sequence is now Electricity and Magnetism (Chapters 32-37). In other words the last chapters of the text are being taught first while the first chapters are being taught at the end of the school year. Three of the four physics teachers at this school are appalled by this change. This is why students who are forced to transfer from Honors to Standard physics will find themselves having to make up three months of material. The parents and guidance counselors were not informed of the changes and so they were not aware that serious problems could result for some students. Do I not have an obligation to advocate for one of my students who is placed in a position that is unfair based on an educationally unsound policy? OK so it is not "discrimination". I know that medical malpractice is a legal issue. Is "educational malpractice" a legal concept? If so, can the parents file a complaint based on an unfair and educationally unsound policy?

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer