Parent and student rights

What to keep in mind when working with your students and their parents

Successful education requires collaboration between educator and parent. Unfortunately, educator-parent relationships are not always as positive as either party would wish. Educators need to know what a parent can demand to avoid creating unnecessary conflict. Some parent rights are based on decisions by the courts, and others are based on specific provisions of the Texas Education Code. See what the education code provides in Chapter 26 (Parental Rights and Responsibilities).

Students also have rights to free speech and religious expression.

Parents have strong but limited rights to participate in their children's education. They have no right, however, to disrupt their child's school or monopolize a teacher's time.

Visiting the school

Parents do not have a legal right to observe a classroom but can be allowed to do so by the teacher or district administration. If the administration agrees to a parent visit, the teacher must abide by the decision. Although parents don't have an absolute right to access classrooms, most schools allow them to visit classrooms for limited periods of time. Generally, parents are only bound by reasonable rules of visitation, such as scheduling appointments ahead of time, not visiting during testing or not staying longer than a specified time. Many times, teachers also prefer to have no more than one or two visitors at a time. Parents who fail to adhere to schools' visitation rules or who repeatedly cause disruptions can be restricted from the classroom.

Moving their child to another class

Parents can request that their child be assigned to—or away from—particular teachers or classes. A school cannot unreasonably deny such a request, but it doesn't have to honor such a request if it would affect another student’s assignment. Although many administrators have a policy of requiring or encouraging a meeting with the teacher prior to a reassignment, such a meeting is not legally required.

Reviewing their child’s records

Schools must give parents access to any school records pertaining to their child. This includes instructional material, lesson plans, tests (after the test has been administered) and subjective evaluations of students made as part of entry into co-curricular activities.

Receiving updates from school

Parents have a right to full information regarding their child's school activities, so communication from the school, particularly the child's classroom teacher, is essential. (Classroom newsletters are a good tool for this.) Teachers should also answer parents’ specific questions in a reasonable manner via personal conferences, phone calls or notes sent home with the child.

Exemption from instruction

Parents have the right to temporarily remove their child from instruction or another school activity when it conflicts with the parents’ religious or moral beliefs. The parent must provide a written statement authorizing the removal to the district. The parent is not entitled to remove the child in order to avoid a test or to remove a child for an entire semester.
Parents have the right to refuse to consent to their child undergoing psychiatric treatment or testing. Unless serious physical or mental injury could reasonably result from the parents’ refusal, an educator is prohibited from making a report of child abuse or neglect against a parent on the sole basis of the refusal to agree to psychiatric testing or the administration of psychotropic drugs. There are special rules relating to a parent’s refusal to allow testing to determine a child’s possible entitlement to special education services. 
A parent has a right to complain regarding any aspect of their child’s educational experience. The complaint may be pursued informally through a meeting with the educator or administration. It may also be pursued more formally through the district’s parental grievance process. Complaints relating to special education services also have a special, formal process.

Although it is certainly a “best practice” for parents to address concerns with the teacher first, or for the administration to direct the parents back to the teacher if they have not yet tried to resolve the issue with the teacher, there is no actual requirement that this occur.

It is difficult for an educator to take negative action against a parent who brings a complaint that an educator feels is false. An educator’s due process rights apply when the district threatens or takes negative action against the educator, but those rights are related to the district and its actions. Educators regularly question whether they might have a right to sue a parent, claiming that a parent’s false accusation amounts to slander. While it might be difficult for an educator, just like anyone, to be comfortable with negative and untrue information remaining accessible to the public, a legal action is difficult to pursue unless the educator has suffered some type of actual financial injury. A threat of legal action also simply intensifies the negativity by adding another chapter to the parent’s book of complaint.
The U.S. Supreme Court confirmed in 1969 that students do have free speech rights under the First Amendment in the well-known Tinker v. Des Moines School District opinion. But in Tinker, the court also explained that those rights were not absolute. Just as a citizen does not have a First Amendment right to yell “Fire!” in a crowded theater, a student’s free speech rights can be restricted. The court made it clear that school officials could restrict communication that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Since 1969, educators, students and courts have grappled with whether a particular student expression was sufficiently disruptive to allow its prohibition.

Student expression through school-organized channels such as the school newspaper, choices of theatrical productions to perform or books to maintain in the school library are subject to tighter controls by school officials under the U.S. Supreme Court’s Hazelwood decision. Here, the court held that school-sponsored forums could be more tightly controlled because they were a part of the school curriculum. This distinction between a student’s individual expression and expression through a school-maintained forum has been controversial, and the courts have remained busy dealing with legal challenges to a multitude of issues, from district censorship of school newspapers to removal of particular books from school libraries.    
Likely no area is as confused and difficult for a public school educator than the role of religion in public schools. What must be prohibited versus what must be allowed is ever-changing and likely to continue evolving.

The “candy cane” case

A significant case that may go far in defining the rules is presently working its way through the courts. Commonly referred to as “the candy cane case,” it involves a suit brought by parents against educators in Plano ISD and the district itself.
The educators, following district policy, prohibited elementary school students from passing out religious-themed candy, pencils and tickets at school. The parents sued the educators and district, claiming they were liable for monetary damages for violating the students’ constitutional rights. ATPE filed an amicus brief in support of two educators who were being sued by parents. Although the two educators in the case happened to be principals, ATPE got involved because the court’s decision would affect all educators. Teachers are just as responsible for following policy but also knowing and following the law and, if anything, are even more likely to be confronted with a similar situation.
This case is important to all educators because any educator in the state might, without warning, be faced with the same choices faced by the two educators here. So, what happened that led to the suit?
The district policy at the time prohibited students from distributing any item with a religious message while at school. There were four separate incidents, all involving elementary students:
  1. At a party, one student was prohibited from passing out candy cane-shaped pencils with a religious message describing a possible Christian explanation for the striped candy as gifts to fellow students. Other students were allowed to pass out gifts without a religious message.
  2. At school but not during class, a student was prohibited from passing out tickets to a Christian play put on by a local church.
  3. At a “half-birthday” party, a student was prohibited from passing out a pencil inscribed with a religious message but was able to pass out gifts without a religious message.
  4. The same student was prohibited from passing out the pencils with a religious message after school but while on the school grounds.
The school policy prohibited students from distributing any religious-themed message. Perhaps the policy was a well-intentioned effort to avoid controversy and a possible legal claim against the district or staff that allowing students to distribute religious messages would in effect endorse a particular religion and thus violate the U.S. Constitution. This too is prohibited, which is why school prayers are not allowed and why educators are prohibited from participating in “meet me at the flagpole” ceremonies.  Whatever the reason for the policy, however, the court made clear that elementary school students have First Amendment free speech and religious rights that cannot be unduly restricted. Although there is still a lot of gray area as to exactly what those rights are, educators now know that they must consider whether prohibiting an elementary school student’s expression could violate the law.
Second, the court ruled that prohibiting the elementary school student from distributing pencils while on school grounds but after school hours was a violation of the student’s First Amendment rights.
Although the two educators in this case were granted immunity, that result might not be the case for the next educators facing a similar situation. This is because the court ruled that some of the educators’ actions were unconstitutional. All educators are expected to know the law and, on these issues, may now be unsuccessful in claiming that they should be immune from suit.

Texas Education Code on religious expression

In addition to the constitutional issues described above, the Texas Education Code also provides protections for student expression on religion. The code provides:
A school district shall treat a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student’s voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.
The education code goes on to state specific rules that districts and district staff must follow to ensure that the district or its staff do not discriminate. Districts must: 
  • Establish a “limited public forum” when students can publicly speak as school events. The forum cannot discriminate against a student based on a religious viewpoint expressed by the student on an otherwise permissible subject.
  • Provide a method, based on neutral criteria, for a selection of student speakers at school events.
  • Ensure that a speaker does not engage in obscene, vulgar, offensively lewd or indecent speech.
  • State in writing or orally that the student’s speech does not reflect endorsement, sponsorship, position or expression of the district.
  • Allow students to express their beliefs about religion in homework, artwork and other written or oral assignments free from discrimination based on the religious content. The work must be judged by ordinary academic standards of substance and relevance to the assignment, and a student cannot be penalized or rewarded on account of the religious content.  
  • Allow students to organize into religious groups to the same extent that students are allowed to organize into secular groups. The groups must be given access to school facilities to the same extent that noncurricular groups are.
 Although the Texas Education Code provisions are intended to provide protection to districts and educators in allowing student expression, they must be read in context of the U.S. Constitution’s prohibition on religious endorsement, so the complex question of what must be allowed versus what must be prohibited is likely to remain not completely answered for some time. 

The legal information provided on this website is for general purposes only. It is not intended as a substitute for individual legal advice or the provision of legal services. Accessing this information does not create an attorney-client relationship. Individual legal situations vary greatly and readers should consult directly with an attorney. Eligible ATPE members should contact the ATPE Member Legal Services Department using our online contact form