Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.
The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. Readers are invited to submit short, law-related questions of practical concern to school administrators. Each week, CAS will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. CAS may edit your questions, and will not identify the authors.
Dear Legal Mailbag:
I have a student who turned 18 a few months ago, qualifies for special education services, and has severed ties with the parents. The fact that he is now an adult seems to have seriously clouded his judgment, as we have had no end of trouble with him since then. This student keeps signing himself out at various times of the day, claiming doctor appointments, therapy appointments, and dentist appointments. I understand that he has the legal right to do so and that I cannot ask for documentation from health care providers due to privacy. Meanwhile, the student is beginning to fail classes due to poor attendance.
We have met with the student on a number of occasions to appeal to logic and try to convince him not jeopardize his graduation, which is a mere three months away. We have attempted in-house counseling, and we’ve held a PPT to discuss his education plan in light of this. DCF isn’t an option; the juvenile court isn’t an option; and, simply failing the student seems to be the equivalent of surrender. Is there anything we can do other than our sincere appeals to his common sense, which to date have been unsuccessful? As an administrator, I understand that under the “in loco parentis” doctrine, I can decide matters for students based on their best interest. Does that legal principle no longer apply once the student is 18? To be sure, he’s legally an adult; but, he’s also an enrolled, full-time student. Must I accept the notion that this individual has the right to make decisions that will result in his failing to graduate?
You raise legitimate concerns in your email. However, you are not quite as helpless as you may think, and you can exercise some control here. In extreme cases, we would not permit a parent to disrupt a student’s education by constantly signing him or her out. Similarly here, you don’t have to put up with this student’s excusing himself and leaving school on a regular basis. Rather, you can tell the student that these various appointments are causing a problem and that he should reschedule the appointments for times outside of school hours; otherwise you will not consider his absences from school for these appointments to be excused.
As you point out in your question, students and their parents have confidentiality rights as to medical issues. However, we regularly seek and obtain medical and other therapeutic information concerning students or employees if it is relevant to their attendance or employment, respectively. If the student claims that he has no control over these appointments, you can tell him that you will either verify the need for these appointments during school hours with these medical and other service providers, or you will determine that his absences for such purposes are not excused. I hope that your push-back works here.
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