Legal Issues Facing Islamic Education

Legal Issues Facing Islamic Education

by: Safaa Zarzour

Introduction:

Islamic schools in the United States are a true grassroots' effort. Local leaders of the Muslim community all over the country are responding to a growing need in the community for Islamic schools by establishing schools at a fast rate. Most Islamic schools start out as a labor of love by a few extremely dedicated people who, at any cost, would like to provide their children and Muslim children at large a safe and supportive environment so they can learn not only reading, math, and writing, but also to learn about their religion and culture. During this stage, everyone is on the same page and any disagreements or problems are resolved within the family. In most cases, every family in the school knows every other family and everyone is working towards proving that the Islamic school is here to stay. The main focus of the board of directors is to secure a building and staff for the school, and everyone is learning on the job. However, there are legal issues in every aspect of the establishment of an Islamic school which must be attended to in order to save the school much unnecessary waste of time and money. More importantly, it is crucial to save the fledgling Muslim community inside the school from turmoil and fragmentation due to hard feelings arising from legal challenges that can be avoided. In addition, as the Islamic schools grow in size, much of the mechanism of solving problems internally weakens and people become quick to seek remedies from the legal system. In any case, Islamic schools must be aware that they are governed by the legal system as it relates to schools and education and they must ensure that their actions must be in conformity with the system in order to avoid consequences that can impact negatively both the school and its community.

I - SCHOOL GOVERNANCE AND OPERATION

A. Licensing and state regulations and accreditation:

1. The state has the right to license and regulate religious schools. In general, the state does not have the right to regulate the curriculum, but may regulate other aspects. The general rule of law is that a law of general applicability which has an incidental effect of burdening a particular religious practice does not violate the free exercise clause. However, if the law deprives the person or entity from a fundamental right, coupled with a free exercise claim, then it can be challenged.
2. The local government has the right to enforce local zoning and building codes on religious schools as long as it has a rational basis for it and as long as it has general applicability.
3. Accreditation of staff: The state has a right to require certification in subjects where religion is not an issue for the purpose of school accreditation.
4. A school that claims to be accredited when it is not can be sued for fraud and misrepresentation.
5. The state and/or private accreditation agency may revoke or deny accreditation as long as their actions are not arbitrary or capricious.

B. Federal and state financial assistance to religious schools:

1. Direct financial assistance of government to religious schools violates the establishment clause of the Constitution.
2. The presence of public school employees on religious school grounds to help students is not a violation of the separation of state and church (Agostini, 1997).
3. Financial assistance channeled through individual students does not violate the separation and establishment clause of the Constitution.
4. The voucher system: An open question? In general, the court utilizes what is known as the "lemon test" to judge whether a state-funded program violated the establishment clause of the Constitution or not. The lemon test consists of three parts. First, the statute must have a secular legislative purpose. Second, its principal effect must not inhibit or advance religion. Third, the statute must not foster excessive government entanglement with religion.
5. Religious schools can be exempt from real estate, income, and sales taxes, but employment taxes.
6. Transportation subsidies to religious schools are constitutional if the are paid directly to the local school board and not to the school. Also, the board does not have to provide such services if it is overly burdensome.

II - STUDENT AND FAMILY ISSUES

A. A contract to educate:
Courts generally hold that creation of a valid educational contract occurs upon acceptance of a student for admission. The contract terms exist in the tuition agreement, school catalog, brochures, and student-parent handbook. Both the educational institution and the student have obligations under the contract, and failure of either party to fulfill its obligations may result in a breach of contract claim. In general, the court will look at two issues whenever a dispute between the school and a student (represented by family or guardian) occurs. First, did the school follow its own rules concerning the matter in dispute? Second, does the rule violate the student's civil or constitutional rights or is it fundamentally unfair? If the answer to the first question is "yes" and to the second question is "no," then the student has not case; otherwise, the court will probably rule for the student.

B. Common problems facing Islamic schools when responding to a legal challenge: Lack of documentation of rules: Many of the rules in the Islamic schools, especially those related to dress, improper mixing, proper behavior, and moral expectations are not expressed in the school handbook. As a result, Islamic schools face a difficult time if challenged on any decisions taken against students in relation to these issues.

C. Some areas of legal concern in student - school relations:

1. Admission: Private schools may deny admission to any students who fail to meet admission standards as set by the school board.
2. Schools may deny readmission for parents who disagree with school philosophy or goals or parents who fail to abide by the student-parent handbook.
3. Private schools may not deny admission to students with disabilities. However, the school does not have to do more than minor modifications in its program to accommodate the disabled student.
4. A private school is not required to lower its standards to accommodate a student with a disability.
5. A private school may discriminate in admission based on race, sex, or religion if the discrimination is based on well-established undisputed religious doctrine in that religion. However, Title VI of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000d) prohibits discrimination on the basis of race, color, or national origin, but only applies to programs or activities receiving federal financial assistance.
6. A contract between parents and private school is one of the personal services which is not enforcable by a court injunction.
7. Breach of contract claims based on the quality of the educational experience are generally rejected by the courts unless specifically promised services are not provided.
8. Students who pay preregistration fees and comply with school rules and regulations may have a fraud claim if they are denied admission the following year.
9. A breach of enrollment agreement by the parents entitles the school to any liquidated damages specified in the contract as long as they are not exorbitant and unreasonable.
10. Claims for educational malpractice usually stem from accusations that a school has failed to evaluate and properly place a student or has failed to provide educational services necessary to educate the student. However, courts in general have been extremely reluctant to recognize lawsuits based upon educational malpractice. In particular, claims for educational malpractice lack readily acceptable standards of care, cause or injury. The cause or nature of any injury to students are also uncertain. Public policy considerations, such as increase in litigation and embroiling courts in the day-to-day operations of schools, provide additional bases for denying an educational malpractice claim.
11. Many states do not recognize claims based on educational malpractice claims, including improper discipline and supervision.
12. A private religious school's policy against premarital sex did not constitute sex discrimination despite the potential for a disparate impact on women.
13. Schools and school officials are vested with broad discretion in student disciplinary matters as long as they are in compliance with school policy and due process.
14. In general, students in private schools are not entitled to certain due process procedures not found in the student handbook.
15. A private school may conduct disciplinary hearings and take action against a student for off-campus misconduct.
16. A private school can formulate its own rules and implement its own punishment as applied to students, staff, and faculty, subject to judicial review for arbitrary and capricious decisions.
17. A notice and a hearing are fundamental in any student discipline case to insulate the school against a charge of arbitrary and capricious conduct.
18. Academic dismissals made by educational institutions must be upheld unless they are arbitrary, capricious, irrational, made in bad faith, unconstitutional, or contrary to statute.
19. When a private school expells a student for non-academic misconduct, the school must follow the expulsion procedures it has established, and ensure that the procedure is fundamentally fair.
20. School staff may physically restrain or remove a student for non-compliance, even if the student is hurt in the process.
21. Federal law, as well as the common law of most states, provides for the protection of students' privacy interests, particularly in students' academic records. The laws provide guidelines as to the maintenance and disclosure of records, as well as procedures for challenging the content of the records. The main law governing this area is the Family Educational Rights and Privacy Act (FERPA), as well as any state statutes or laws that may apply.
22. Under FERPA, parents have the right to get a copy of student records within a reasonable time, not to exceed 45 days, and to challenge the content of the record. Schools may not provide the information to a third party without the parents' written consent.
23. FERPA does not give a student the right to obtain information on how a particular grade was assigned. It merely afforded the student the chance to make sure that the grade was recorded accurately.
24. Schools may put restrictions on who can participate in athletic activities, honor societies, and other clubs. Restrictions must be relevant and fundamentally fair.
25. A school may institute random drug testing and random locker searches for the purpose of enforcing school policy.
26. School officials need "reasonable suspicion" as opposed to "probable cause" in order to carry out a specific search.
27. Under common law, athletes were held to assume the risk inherent in participating in school athletics; consequently, most lawsuits by injured students were unsuccessful. However, in many states the doctrine of assumption of risk has been eliminated or replaced with comparative negligence, which allows at least partial recovery of damages upon proof of negligence.
28. A school does not have a legal duty to shield students from their own dangerous conduct.
29. Private school officials have the status of "in loco parentis," and as such simple negligence is not sufficient as a cause of action in most states. The staff action must be willfull and wanton for the student to have a cause of action.
30. Leaving students unattended will give rise to liability if injury occurs during the teacher's absence.

III - EMPLOYMENT ISSUES

Title VII of the Civil Rights Act of 1964, later amended in 1991, prohibits discrimination in employment based on race, color, sex, religion, or national origin. However, Title VII exempts employment decisions based on religion, sex, or national origin where these characteristics are "bona fide" occupational qualifications reasonably necessary for the operation of that particular business or enterprise. The first amendment may preclude consideration of such claims against religious schools. However, no such exemptions exist for race-based discrimination. Other federal statutes cover discrimination based on age or disability.

1. A teacher's views on controversial issues may be considered in a hiring decision by a religious school.
2. The school and the employee are held to the content of the contract as long as it does not violate the law or the constitutional rights of either party.
3. In order to sue for wage discrimination, staff must show that they are being paid less for the same work, as well as show intent to discriminate on the part of the school.
4. Pregnancy discrimination is prohibited by Title VII. However, a religious school can discipline employees for failing to comply with religious teachings. Thus, where sex outside of wedlock is prohibited, for example, a teacher can be discharged for such activity. The school must merely ensure that it treats men and women alike.
5. Religious schools may discriminate on the basis of religion, even with respect to the employment of people in nonreligious positions.
6. A private education entity could not refuse to hire a Muslim counsellor for a position at two Catholic schools simply because of her attire.
7. Discrimination lawsuits fail when the employer can offer reasonable non-discriminatory reasons for the dismissal.
8. After several automatic annual contract renewals, the school may have to give cause for non-renewal.
9. Reasonable liquidated damages are enforceable in the employment contract.
10. A school may take duties away from a staff member and continue to pay his/her salary until the end of the contract.
11. When a school fails to follow its termination procedures, it will be found liable for breach of contract.
12. When the contract does not specify terms of employment, the employment is an at-will employment relationship.
13. When a teacher offers new terms of employment, he/she explicitly rescinds the existing contract.
14. Oral statements indicating intent to contract do not amount to a contract. Oral statement of hiring may.
15. An at-will employment may be terminated at any time without cause unless an agreement exists to limit the employer's right to do so.
16. School officials should be careful about making any statements about the character of a teacher to be dismissed.
17. A school may be held for negligence in relation to employee actions.
18. Schools, as well as administrators, may be held liable for staff misconduct.

CONCLUSION

In general, religious schools are governed by their own internal policies. Courts look at two essential factors in determining any cases related to religious schools. First, did the school follow its own policies on the matter? Second, are these policies fundamentally fair? Actions of Muslim school officials must always be guided by common sense and reasonable care. Doing so protects the Islamic school from legal action and liability.

*** DISCLAIMER ***

This document does not constitute a legal opinion for any specific case. Please seek professional advice from an attorney for your own specific case. - School law is mostly a matter of state law, so it may differ from state to state. Consult the laws in your state on any issue related to your school.