Your child was suspended for political speech. The school searched their locker without reason. Your child with disabilities isn’t getting required services. Public schools are government institutions, which means they must respect students’ constitutional rights. When schools overstep their authority, families may have legal recourse.
Quick Answer
You may be able to sue a public school for violating your child’s constitutional rights (free speech, freedom from unreasonable searches, due process) or federal statutory rights (disability accommodations, freedom from discrimination). Private schools aren’t bound by the Constitution but must comply with federal laws like the ADA. Many school disputes can be resolved through administrative processes before litigation.
Student Rights in Public Schools
First Amendment (Speech)
Students don’t “shed their constitutional rights at the schoolhouse gate.” Schools cannot:
- Punish students for political speech that doesn’t disrupt school
- Ban clothing with political messages
- Censor student publications without valid educational reason
- Punish most off-campus speech
Schools can regulate speech that:
- Substantially disrupts school operations
- Is vulgar or obscene (on campus)
- Appears school-sponsored
- Promotes drug use at school events
Fourth Amendment (Searches)
Students have reduced but real privacy rights. Schools can search when:
- There’s reasonable suspicion (not probable cause) the search will uncover evidence of a rule violation
- The search is reasonable in scope
Highly intrusive searches (like strip searches) face higher scrutiny and are rarely permitted.
Fourteenth Amendment (Due Process)
Before significant discipline, students have rights to:
- Notice of the charges
- An opportunity to respond
- For long suspensions/expulsion: more formal hearing procedures
Equal Protection
Schools cannot discriminate based on race, sex, national origin, or other protected characteristics.
Federal Laws Protecting Students
Individuals with Disabilities Education Act (IDEA)
Students with disabilities are entitled to:
- Free Appropriate Public Education (FAPE)
- Individualized Education Program (IEP)
- Placement in least restrictive environment
- Procedural protections before changes in placement
Section 504 of the Rehabilitation Act
Prohibits disability discrimination in schools receiving federal funds. Requires:
- Reasonable accommodations for disabilities
- 504 plans for students who need accommodations but not special education
Title IX
Prohibits sex discrimination in education, including:
- Sexual harassment
- Unequal athletic opportunities
- Discrimination against pregnant students
- LGBTQ+ discrimination (in many interpretations)
Title VI
Prohibits discrimination based on race, color, or national origin.
Family Educational Rights and Privacy Act (FERPA)
Protects privacy of student educational records. Violations are enforced by the Department of Education, not private lawsuits.
Common School Rights Violations
| Violation | Potential Claims |
|---|---|
| Punishing off-campus speech | First Amendment (Section 1983) |
| Unreasonable search | Fourth Amendment (Section 1983) |
| Suspension without hearing | Due Process (Section 1983) |
| Failing to implement IEP | IDEA administrative process |
| Ignoring bullying/harassment | Title IX, Title VI, Section 1983 |
| Discrimination against disabled student | Section 504, ADA, IDEA |
| Corporal punishment (injury) | Excessive force (Section 1983) |
Disability Rights Claims
IDEA Process
Before suing under IDEA, you must:
- Work with the school to address concerns through IEP meetings
- Request mediation
- File a due process complaint
- Go through a due process hearing
- Only then can you sue in court
This is called “exhausting administrative remedies.”
What You Can Get Under IDEA
- Compensatory education (make-up services)
- Changes to the IEP
- Tuition reimbursement for private school (if public school denied FAPE)
- Attorney fees (if you prevail)
Steps to Take
1. Document Everything
- Save all communications with the school
- Get copies of disciplinary records
- Document what happened with dates and details
- Identify witnesses
2. Follow Internal Procedures
Many issues can and should be resolved through:
- Meeting with the principal
- Going to the superintendent
- Appealing to the school board
Document these attempts.
3. File Administrative Complaints
Depending on the issue:
- IDEA violations: Due process complaint with state education agency
- Title IX: Complaint to the Office for Civil Rights (OCR)
- Title VI: Complaint to OCR
- Section 504: Complaint to OCR or due process
4. Consult an Attorney
An education law attorney can:
- Evaluate whether rights were violated
- Navigate administrative processes
- Represent you in due process hearings
- File suit if necessary
Qualified Immunity in School Cases
School officials have qualified immunity, protecting them unless the violated right was “clearly established.” However:
- Basic student rights (speech, due process) are well-established
- Clear violations can overcome immunity
- Supervisory officials and school districts may have less immunity
Private Schools
Private schools aren’t bound by the Constitution (no government action). However, they must comply with:
- ADA (disability accommodation)
- Federal anti-discrimination laws if receiving federal funds
- Contractual obligations in enrollment agreements
- State laws that may apply
Frequently Asked Questions
Can the school search my child’s phone?
Schools need reasonable suspicion. Random phone searches are likely unconstitutional. If there’s specific reason to believe the phone contains evidence of a rule violation, a limited search may be permitted.
Can my child be suspended for social media posts?
Recent Supreme Court decisions (Mahanoy v. B.L.) limit schools’ authority over off-campus speech. Schools can only discipline off-campus speech if it causes substantial disruption to school operations—not just because it’s offensive.
What if my child is being bullied?
If bullying is based on protected characteristics (race, sex, disability), schools must respond. Deliberate indifference to known harassment can create liability under Title IX, Title VI, or Section 504.
Can the school refuse to follow my child’s IEP?
No. Schools must implement IEPs. Failure to do so violates IDEA. Document the failures and pursue administrative remedies.
What if my child was injured by staff?
Excessive physical force by school staff can violate the Fourth Amendment (as a seizure) or due process. You may have Section 1983 claims. Document injuries immediately.
Do I have to pay for an attorney for special education cases?
If you prevail in an IDEA case, you can recover attorney fees. Some education attorneys work on contingency or reduced fees for special education cases.
When to Contact a Lawyer
Consult an education law attorney if:
- Your child was suspended or expelled without proper process
- The school isn’t following your child’s IEP or 504 plan
- Your child was searched or punished unconstitutionally
- Your child is being discriminated against
- Bullying or harassment is being ignored
- Administrative remedies haven’t resolved the issue
Many education law attorneys offer consultations to evaluate school rights cases.
Last updated: January 2025
This article provides general information about student rights in schools. Laws vary by jurisdiction. Consult with a qualified education law attorney for advice specific to your situation.
