WARD & ASSOCIATES
INDEPENDENT SCHOOL LAW
In Massachusetts, the majority of laws which apply to grades K-12 can be divided into two distinct categories: the law which applies to public schools, primarily through state and federal statutes and regulations on the one hand, and the law which applies to private schools on the other. This is primarily state case law and some federal law.
This has created a vast difference between the far superior legal rights which students and parents enjoy in public schools versus the greatly diminished and ill-defined legal rights students and parents scuffle to marshal in private schools, otherwise known as independent schools.
For example, state law mandates that all public school teachers be licensed and that they maintain regular continuing education training. There is no similar requirement in private schools. In public schools there are very well defined laws delineating the rules controlling absences, tardiness, procedures for dealing with school assaults, and disciplinary hearings. These rights and duties are implemented through an administrative system of the public schools. However, in independent schools these matters are left largely to the discretion of a private school’s board of directors, its head of school and its teachers. In some private schools there may be a clearly defined set of rules, offenses and procedures to afford a student accused of wrongdoing his or her due process rights. However, in some private schools, there is frequently a set of ill-defined, sporadically enforced rules which depend for their enforcement just as much on the fiat of the headmaster as they do on the rightful or wrongful nature of the situation.
Similarly, while state law imposes obligations on all schools to find learning disabled children and to encourage parents to enter them in the CORE system where they can get help, it is our experience that independent schools do not do this with the frequency of public schools, because they likely have qualms about appearances of their not being capable of handling all of their students’ issues. This, despite receiving a large tuition which supposedly guarantees the school's attention to the academic needs and the physical safety of the child. The sad reality is that payment of such a tuition does not necessarily guarantee any such protections.
This dramatic difference in legal rights between the two systems poses a daunting burden to the parents of the child attending an independent school who may have suffered for years as a learning-disabled student, but whose diagnosis and referral into the free CORE system was delayed or was never accomplished through the inadvertence, negligence or intentional refusal of the school to do so, for its own reasons. Thus, redress and compensation for these failings can only come through the courts for the families and students of independent schools.
Further complicating the situation is the fact that many private schools carry multi-million dollar insurance policies to guard against the chance the school will be sued or that a family might prevail against the school for its omissions or acts resulting in legal harm to the child. Sometimes a child is sexually assaulted by another student or teacher. Sometimes educational neglect goes undetected and unaddressed by the school for years creating or exacerbating learning and social problems for years to come. Typically, the insurance companies pay for a legal defense as well as provide funds with which to pay any settlement or judgment. This means the parents of the student must pay their attorneys to pursue the school while the school, its teachers and board enjoy free legal services, because insurance companies hire the lawyers and pay their legal fees.
Adding to the burden of parents seeking redress where the school has failed to physically or emotionally protect the student or where perhaps the school failed to properly identify the learning deficits of the child and to properly and timely address them, is the doctrine of charitable of immunity. This doctrine states that a charitable institution may not be held liable in a tort action, i.e., a personal injury action, fraud or negligence, for an amount greater than $20,000.00. Availing oneself of the exceptions to this doctrine pose additional obstacles to the parents or student with grievances where any of the above-described failings have befallen the student and the family.
The firm of Ward & Associates has been an innovator in getting around these obstacles. We have performed a comprehensive search of private school law nation-wide and have accumulated a substantial volume of law governing independent school privileges, access to student records, independent school contract law, independent school tort, consumer protection, negligence, and civil fraud law, all of which are implicated in this developing area of law.
If anyone you know has not been timely identified as a learning disabled child or has not been properly protected emotionally or physically by the independent school they attend, please contact us for a consultation regarding legal claims you may have in these areas or steps you may take to obtain a free assessment of your child’s learning needs.
Ward & Associates is a State Street law firm in downtown Boston, Massachusetts dedicated to helping clients first avoid legal troubles with proper legal planning and then dedicated to helping our clients successfully overcome legal problems which proved unavoidable. ©
