Connecticut Education Law Blog

Connecticut Education Law Blog

The May 1st Dilemma: Non-Renewal vs. Layoff

Posted in Labor and Employment

Typically this time of year school district administrators ponder whether to “non-renew” non-tenured teachers in response to budget uncertainty, as opposed to waiting for the fiscal picture to become clear and possibly laying off teachers at a later time.  Given the state budget crisis, and unprecedented major cuts in funding on the table, the uncertainty is worse this year than ever before.  This has caused even superintendents and other administrators who previously were not inclined to non-renew teachers for economic reasons, to give serious consideration to doing so.

So what are the advantages and disadvantages of non-renewal relative to laying off non-tenured teachers?  If a teacher is non-renewed for economic reasons pursuant to C.G.S. Section 10-151(c), he/she has no recall rights and no right to a hearing before the Board of Education.  Moreover, if after the budget is settled the district decides to continue the employment of some but not all non-renewed teachers, it can pick and choose to whom it decides to offer reinstatement, thereby, enabling it to select the best and brightest.

On the other hand, if a district forgoes non-renewal, and then has to layoff teachers, those teachers will have recall rights under the collective bargaining agreement (typically based on certification and seniority), and have the ability to grieve their layoff if they believe the contract was not followed.  While the district loses the ability to pick and choose who it returns to work, this approach has the benefit of allowing the district to wait until the last possible moment before laying off staff, and avoids creating uncertainty and angst for newer teachers who may choose to pursue “greener pastures” once they are non-renewed.

Internet Thieves Are Targeting Municipalities and Boards of Education

Posted in Labor and Employment

Over the past few weeks, there have been several cyberattacks on Connecticut municipalities and boards of education.  On the municipal side, internet thieves have intercepted wire transfer instructions in two Connecticut municipalities resulting in the theft of significant sums.

Most recently, an outside party accessed a Superintendent’s email and requested W-2 information for the school district’s employees.  While local police, IRS and FBI are investigating the matter, it is believed this information was stolen with the intent of filing false tax returns for the affected employees.

In the same week, an unauthorized party in another school district again accessed the Superintendent’s email and requested bank account information from the district’s business office.  Fortunately, being suspicious of the request, the Business Manager inquired of the Superintendent whether the request was valid, was advised it was not, and therefore did not release the information.

While in this day and age we all need to be cautious of providing sensitive information over the internet, in light of the latest incidents extra care should be taken when releasing sensitive information to anyone, including individuals we know.  Telephonic or in person confirmation should be sought, particularly if the request seems out of the ordinary.

For more information of such scams click on the link below.

http://ptac.ed.gov/sites/default/files/W2%20Phishing%20Scam.pdf

The United States Supreme Court Sends Virginia Transgender Bathroom Case Back to the 4th Circuit

Posted in Constitutional Issues, Transgender issues

March 6, 2017 marks a significant development in the case of Gloucester v. G.G., the closely followed and highly publicized Virginia transgender student bathroom case. The Gloucester case involves a local school board policy that effectively denies a transgender male high school student use of his school’s male bathroom and, in turn, the student’s claim of unequal treatment and discrimination by the board based upon sex under Title IX. The United States Supreme Court granted certiorari back in October 2016 certifying only two issues for its consideration: 1) whether deference should extend to an unpublished letter by the United States Department of Education, Office of Civil Rights (OCR), which does not carry the weight of law and was adopted in the context of the dispute at hand, indicating that Title IX applies to transgender identity, and 2) without deference to the agency, should the Department’s specific interpretation of Title IX be given effect. The United States Supreme Court will not hear the Gloucester case this month as scheduled. The Court vacated the ruling below and remanded the case back to the 4th Circuit Court of Appeals for reconsideration of the issues, presumably to include whether Title IX’s prohibition against discrimination on the basis of sex extends to gender identity. The Court takes such action notwithstanding requests from both parties that the case proceeds as scheduled and be heard this term.

The Supreme Court’s March 6, 2017 decision to remand the case is influenced by the 4th Circuit Court’s heavy reliance in reaching its decision below upon a 2015 OCR opinion letter. In that letter, OCR concludes that if schools opt to separate students in restrooms and locker rooms by sex, a school generally must treat transgender students consistent with their gender identity. The 2015 opinion letter was subsequently followed by May 2016 guidance from the Department of Justice and Department of Education (the Department) that confirms that schools generally should treat transgender students consistent with their gender identity and that the term “sex” under Title IX includes transgender identity. The Department’s May 2016 guidance issued under the Obama administration was rescinded in its entirety on February 22, 2017 under the Trump administration. No further guidance on this topic has been forthcoming from the Department. The Department has indicated that further time is needed to study the issue.

By its most recent action, the Supreme Court has declined to consider at this time the issue of whether “sex” under Title IX includes transgender identity. This leaves unclear the specific rights of transgender students under federal law. As previously indicated on this blog, discrimination based upon gender identity and expression is prohibited under Connecticut law and public schools must act accordingly. For specific guidance on this topic, contact our education law department at Berchem, Moses and Devlin and continue to consult our blog to keep abreast of further developments in this area of law and developments in the Gloucester case.

U.S. Supreme Court: Exhaustion of administrative remedies under the IDEA not required for disability discrimination claim if claim does not involve denial of FAPE

Posted in Americans with Disabilities Act

The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities access to a free appropriate public education (FAPE) and establishes a formal administrative framework within which disputes concerning the denial of FAPE are addressed. In addition, other federal statutes, such as the Title II of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act, protect individuals with disabilities, and may also be applicable to children in a school setting. Under current law, a plaintiff bringing a disability discrimination claim under these other federal discrimination statutes which seeks relief also available under the IDEA, is required to exhaust the IDEA’s administrative process before bringing suit.  However, in a recently released opinion, the U.S. Supreme Court has clarified when exhaustion under the IDEA may not be required.

In Fry v. Napoleon Community Schools[1], the plaintiff, a student with cerebral palsy, sought permission from the district to bring her service dog to school. The district denied her request claiming that plaintiff was already provided a human aide as part of her Individualized Education Plan (“IEP”).  After transferring to a service dog friendly school, plaintiff filed suit against the district and the principal alleging discrimination under the ADA and § 504.   The District Court dismissed the suit for failure to exhaust administrative remedies.  The Sixth Circuit Court of Appeals agreed, holding exhaustion under the IDEA was required because the alleged harms were “educational” in nature.

Justice Elena Kagan, writing for the Court, discussed the interaction of these statues:  “In short, the IDEA guarantees individually tailored educational services for children with disabilities, while Title II (of the ADA) and § 504 promise nondiscriminatory access to public institutions.  That is not to deny some overlap in coverage: The same conduct might violate all three statutes – which is why, as in Smith, a plaintiff might seek relief for the denial of a FAPE under Title II and § 504 as well as the IDEA. But still, the statutory differences just discussed mean that a complaint brought under Title II and § 504 might instead seek relief for simple discrimination, irrespective of the IDEA’s FAPE obligation.”

The Court set forth a simple test for making this determination:  Could the same claim have been brought by an adult or if it had occurred at a public facility outside of a school setting? If so, then the claim does not go to the FAPE requirement; if, on the other hand, the answer to those questions is in the negative, the claim probably involves FAPE and the IDEA administrative process must be exhausted.

The case was remanded to the Court of Appeals for an appropriate analysis of whether the plaintiff’s claim alleges a denial of FAPE – in which case dismissal for failure to exhaust administrative remedies would be proper – or does not involve this core IDEA principle, in which case exhaustion is not required for plaintiff to proceed with her disability discrimination suit.

What’s the take away?

Exhaustion of administrative remedies under IDEA is not a necessary prerequisite to filing a disability discrimination suit where the claimed discrimination does not go to the core of the IDEA’s requirement to provide FAPE.  Further, courts in determining whether exhaustion is required, will have to engage in an analysis of whether the provision of a free appropriate public education is central to the alleged discriminatory act and not presume exhaustion under the IDEA is required simply because the discrimination claim involves a student with a disability. Will school districts see an increase in disability discrimination cases under Title II and § 504?  This will be an interesting one to follow…

[1] 580 U.S. _____ (2017)

Connecticut Swiftly Responds to Federal Rollback of Transgender Student Protections

Posted in Constitutional Issues, Transgender issues

Connecticut Governor Dannel P. Malloy has acted quickly to respond to recent developments in Federal law affecting the rights of transgender students by issuing an executive order reasserting the State’s protections for transgender people.  Despite a change in Federal guidance, and as detailed below, Connecticut affords greater protections to transgender people than currently provided under Federal law.

In recent weeks, the Federal government has withdrawn support and guidance providing protections to transgender students.  As detailed in this blog earlier this month, the Federal government signaled its new policy position when the Department of Justice effectively decided not to pursue an appeal against a Texas federal district court’s order granting a nationwide injunction challenging the implementation of joint guidance issued by the Department of Justice and Department of Education regarding Title IX protections available to transgender students. The Department of Justice and Department of Education jointly followed suit on February 22, 2017 by rescinding the Obama-era guidance extending Title IX protections to transgender students.  https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.docx

In response to these actions, Governor Malloy acted swiftly to reiterate Connecticut’s legal protections for transgender people by signing Executive Order No. 56.  The executive order explains that Connecticut law prohibits discrimination on the basis of their gender identity or expression.  This protection requires that public schools provide an equal opportunity for students to participate in school activities regardless of their gender identity or gender expression.  In addition, the executive order provides that bathrooms and locker rooms in public schools are public accommodations.  As such, discrimination on the basis of gender identity or expression in the provision of such accommodations is unlawful.

To assist school officials, the executive order directed the Connecticut Commission on Human Rights and Opportunities to develop guidance on policies that allow students to access school facilities in a manner consistent with their gender identity and expression.  In addition, Governor Malloy has directed the State Department of Education to provide additional guidance to public school superintendents regarding Connecticut’s anti-discrimination laws.

The full text of Executive Order No. 56 can be accessed at the following link: http://portal.ct.gov/-/media/CD26957CDAEA4D7AA25C3871B8BD2034.pdf

Attorneys at Berchem, Moses & Devlin, P.C. are available to consult to school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@bmdlaw.com.

The United States Department of Justice Withdraws Its Objection to a Nationwide Order Banning the Implementation and Enforcement of the Departments of Justice and Education’s Guidance on Transgender Students

Posted in Constitutional Issues, Transgender issues

On February 10, 2017, the U. S. Department of Justice (DOJ) under the Trump administration withdrew a motion made in November 2016 under the Obama administration with the U.S. Circuit Court of Appeals for the 5th Circuit; in its motion, the DOJ objected to a Texas Federal Court judge’s nationwide ban on the enforcement by the Departments of Justice and Education (the Departments) of its interpretation of “sex” under Title IX.  On May 13, 2016, the Departments jointly released an eight page Dear Colleague Letter on Transgender Students explaining schools’ obligations under Title IX to protect students, including transgender students, from discrimination and harassment based upon sex.  The Departments treat a student’s gender identity as a student’s sex for purposes of Title IX and its implementing regulations.  The guidance confirmed that Title IX’s implementing regulations permits a school to provide sex-segregated facilities including restrooms under certain circumstances, but further elucidates that schools must allow transgender students access to such facilities consistent with their gender identity and may not require they use individual-user facilities when other students are not required to do so.¹ As recipients of federal funding, schools that fail to comply with the Departments’ guidance risk the possible loss of federal money.

The State of Texas, joined by ten other states and other entities², argued to Texas Federal Court judge, Reed O’Connor, the judge who ultimately granted the nationwide injunction, that the Departments had acted ultra vires, meaning beyond the scope of its authority and usurped the power of Congress by rewriting Title IX by revising the term “sex” in a manner entirely incompatible with congressional intent and it did so without resorting to proper procedures such as notice-and-comment required under the Administrative Procedure Act ( APA).

On the same day the DOJ withdrew its motion before the 5th Circuit Court of Appeals, the 5th Circuit Court of Appeals granted the parties’ request for a delay in the case and cancelled oral arguments that were scheduled for February 14, 2017.  It is speculated that the DOJ under the Trump administration may take a different approach on transgendered student’s rights and there is even the possibility the DOJ/OCR May 2017 guidance will be modified or rescinded.

While the nationwide ban remains in place, schools’ obligations to transgender students under Title IX remain in a state of flux;  schools await  a definitive answer on a number of questions including whether the term “sex” under Title IX is to be interpreted to prohibit discrimination and harassment against transgender students;  whether schools must permit transgender student access to school bathrooms or other sex segregated facilities based upon their gender identity and whether boards of education that adopt policies or practices prohibiting such use or require students to use a bathroom based upon their biological sex at birth will run afoul of federal law.

Clarity on the interpretation of what “sex” means under Title IX may be forthcoming sooner rather than later.  Answers may even come before the resolution of the appeal of the case of Texas v. United States or prior to any further issuance of guidance by the DOJ/DOE on the subject of transgender student’s rights as the United State Supreme Court will hear argument on March 28, 2017 in the case of G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Circ. 04/19/16). In the Gloucester case, a transgender male high school student sought a preliminary injunction to allow his use of a school’s restroom consistent with his male gender identity. The student alleges that his local Virginia school district denied him equal treatment and subjected him to discrimination based on sex in violation of the Title IX by passing a board policy that prohibited his continued use of the boys’ restroom for not being “biologically male.”   The highest court will consider only two issues on appeal: (1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect. The DOJ under Obama had filed a brief backing the student’s position. See Connecticut Education Law blog article: The United States Supreme Court Grants Certiorari in 4th Circuit Transgender Student Case.

To clarify, the nationwide ban is not aimed at schools but rather, the federal government. Schools are free to adopt or modify policies to accommodate transgender student access to school facilities such as restrooms. The ban also does not interfere with case-by-case decisions made by school administration regarding access to facilities based upon gender identity.

*SIGNIFICANT DEVELOPMENTS SINCE THIS ARTICLE WAS PUBLISHED* 

On February 22, 2017, the DOJ/ED rescinded it’s May 2016 Guidance on Transgender Students; in response, the Governor of Connecticut on February 23, 2017 issued an executive order protecting transgender students’ rights in Connecticut. Governor Malloy states in the order that  it is illegal in Connecticut to discriminate against students based upon gender identity or  expression and that transgender students must  be provided equal access to public  accommodations such as school restrooms and locker rooms. Additionally, a joint letter from Governor Malloy and SDE Commissioner Dianna R. Wentzell  was sent to all public school superintendents in the state directing schools to honor transgender students’ choice of facility. See our latest Connecticut Education Law Blog article for more details about these recent legal developments.

¹It is worth noting that a 2011 revision to C.G.S. 10-15, Connecticut’s antidiscrimination statute, added language explicitly prohibiting schools from discriminating against students based upon their “gender identity and expression.”  After the 2011 revision to the law, the Connecticut Safe School Coalition issued unofficial (unofficial guidance lacks the force of law) guidelines directing schools to permit transgendered students to use restrooms and facilities consistent with their gender identity.
 ²Plaintiffs include: (1) the State of Texas; (2) Harrold Independent School District (TX); (3) the State of Alabama; (4) the State of Wisconsin; (5) the State of West Virginia; (6) the State of Tennessee; (7) Arizona Department of Education; (8) Heber-Overgaard Unified School District (Arizona); (9) Paul LePage, Governor of the State of Maine; (10) the State of Oklahoma; (11) the State of Louisiana; (12) the State of Utah; (13) the state of Georgia; (14) the State of Mississippi, by and through Governor Phil Bryant; (15) the Commonwealth of Kentucky, by and through Governor Matthew G. Bevin.

Practical Considerations in Complying with New Background Check Requirements for School Employers

Posted in Labor and Employment

Ever since the enactment of Public Act 16-67 last summer, school employers and contractors servicing them have faced the challenge of complying with new requirements for background checks for employees who will have direct contact with students. The central aspect of the legislation is a prohibition against offering employment to an applicant for a position with direct student contact unless the applicant is first required:

• To list the names and contact information for current or former school employers or other employers if the position otherwise caused the applicant to have contact with children;
• To provide a written authorization consenting to and authorizing current and former employers and the state Department of Education to disclose records and information and to release those entities from liability from such disclosures; and
• To provide a written statement giving certain information on prior abuse investigations involving the applicant.

The prospective employer must then contact the current and former employers listed and the state Department of Education to conduct a background check, seeking certain specified information. The law requires the current or former employers contacted to respond to the request for information.

The state Department of Education published a form for employers to use to conduct these checks. However, the employers cannot rely solely on the form, as it does not include the written authorization for the former employers and the state Department of Education to provide the information. Some of our clients have experienced resistance, particularly from private-sector employers, to disclosing the information. It is possible that the lack of a release form is driving this resistance. Our firm has developed an authorization/release form to fix this problem. We have also developed an applicant disclosure statement so that the applicant can indicate whether any of the scenarios pertaining to prior abuse investigations apply. In other words, using the state-developed forms will not, on its own, suffice for meeting the authorization/release and disclosure requirements.

Another issue employers have been facing is determining what it means for a position to involve “direct student contact.” The background checks are necessary before hiring for positions involving direct student contact, but where should the line be drawn? We have generally advised that any position in a school building should be treated as having direct student contact.

A similar issue is what it means for a current or former non-school position to have “caused the applicant to have contact with children.” These are the non-school-based positions that may need to be included in the background check. It is clear that a day care would need to be checked. But what if the applicant worked at an ice cream shop? What about a department store? We have advised clients to take a common-sense approach and contact the current or former employer if the position likely involved frequent interactions with children, but that it is not necessary if there is occasional, incidental contact.

Public Act 16-67 created several new obligations for school employers and, as is often the case, it may take a few years to work through the logistical implications and implement legislative fixes to certain problems. For now, employers should make good faith efforts to comply with the law in all respects, as it provides mechanisms designed to help schools avoid hiring employees with a history of child abuse.

Our team of labor/employment and education attorneys can assist with implementation of these new employment requirements for BOE personnel.

Executive Order Aimed At “Sanctuary Jurisdictions” Meets Resistance Across Connecticut; Student and Family Privacy are Important Considerations

Posted in Executive Orders

On January 25, 2017, recently elected President Donald Trump issued an Executive Order entitled “Enhancing Public Safety in the Interior of the United States.”  The stated purpose of the Order is to direct executive departments and agencies to employ “all lawful means” to enforce the immigration laws of the United States.  Among other things, the Order bolsters federal resources and provides avenues for increased state and local cooperation in immigration enforcement efforts.  Particular provisions targeting “sanctuary jurisdictions,” however, are being assailed as unconstitutional by state leaders including Govern Dannel Malloy, Attorney General George Jepsen, Senator Richard Blumenthal, and the mayors of more than a half-dozen municipalities from across the state.

There is no concrete legal definition of a “sanctuary” jurisdiction.  Generally speaking, however, a sanctuary jurisdiction may be characterized as a locale with a de jure (by law) or de facto (in fact) policy of limited cooperation with federal immigration enforcement.  These policies may, for example, prohibit or limit the expenditure of state or municipal funds for the enforcement of federal immigration laws.  Public employees, such as school administrators or law enforcement officers, may also be directed not to inquire about immigration status in the normal course of business.  Aside from these or similar policies, however, sanctuary jurisdictions do not traditionally afford residents any additional rights or privileges.

Several municipalities in Connecticut have declared themselves “sanctuary cities” in the past ten years, including Hartford, New Haven, Middletown, Windham, and Manchester.  The trend toward “sanctuary” status has also made its way to the state’s General Assembly.  In January 2017, Proposed Bill No. 6709, entitled “An Act Establishing Connecticut as a ‘Sanctuary State’ for Immigrants,” was presented to the state legislature. This bill, if passed, would amend the Connecticut General Statutes so as to prohibit law enforcement officers from inquiring about citizenship during their interactions with the public.  Various organizations, such as the Center for Immigration Studies, already describe Connecticut as a “sanctuary state,” though this title carries no legal ramifications.

Section Nine of the Order emphasizes state and local compliance with 8 U.S.C. § 1373, which covers certain communications between government agencies and the Immigration and Naturalization Services (absorbed into the Department of Homeland Security in 2003).  8 U.S.C. § 1373 states in part that, notwithstanding any state or local law, a state or local government may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the [Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.  Under the Order, a jurisdiction that refuses to comply with 8 U.S.C. §1373 may be designated a “sanctuary jurisdiction.”

Importantly, Section Nine authorizes the Secretary of the Department of Homeland Security to designate, “in his discretion and to the extent consistent with law,” a jurisdiction as a sanctuary jurisdiction.  The Attorney General is also authorized to take “appropriate enforcement action” against any entity that violates 8 U.S.C. § 1373, or which has in effect a statute, policy, or practice that “prevents or hinders the enforcement of federal law.”  Sanctuary jurisdictions may, for example, lose federal funding except as deemed necessary for law enforcement purposes.

Opponents of the executive action have already raised several concerns regarding the language and implementation of the Order.  Regarding the former, opponents argue that the definitions of “sanctuary jurisdiction” is ambiguous, since the Secretary has discretion to determine whether a locale is in compliance with 8 U.S.C. §1373 or otherwise preventing or hindering the enforcement of federal law.  Regarding the latter, opponents argue that the Order undermines federalism and essentially conscripts state and local governments into enforcing immigration laws, a responsibility historically delegated to the federal government.  Finally, opponents of the Order argue that the policies of sanctuary cities do not actually hinder the enforcement of immigration laws, and thus the federal government cannot reasonably deny federal funding on the basis of such policies.

In the context of public school education, opposition to the Order is based on the distinction between policies prohibiting school communications with the Department of Homeland Security, which would violate 8 U.S.C. §1373, and policies that simply direct administrators not to ask students or their families about their immigration status.  The Supreme Court case of Plyler v. Doe (1982) established that undocumented K-12 students are entitled to the same education as their citizen or legal resident peers.  In that case, the Court held that denying a public education to students based on their undocumented status violated the Fourteenth Amendment Equal Protection Clause.  The Court rejected, among other arguments, the assertion that protecting a state from an influx of illegal immigrants provides a “substantial justification” for denying students a public education on the basis of their undocumented status.  As such, existing case law holds that immigration status cannot be a basis for denying a public school education.

In May 2011, The Departments of Justice and Education further clarified that school districts generally should not inquire about a student’s immigrant status, because doing so may have a “chilling effect” on enrollment that would violate equal protection.  Since immigration status, unlike actual residency within a district, cannot be used as a factor in school enrollment, opponents of the Order argue that there is no need for administrators to inquire about students’ immigration statuses or that of their families in order to comply with 8 U.S.C. §1373.

Opponents of the Order in Connecticut and elsewhere have vowed to fight its implementation by any means necessary, including litigation.  In the meantime, the risk of reduced federal funding for “sanctuary jurisdictions” is significant, and the impact of the Order on the privacy rights of students and their families remains uncertain.

Attorneys at Berchem, Moses & Devlin, P.C. are available to consult to school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@bmdlaw.com.

U.S. Department of Education’s Office of Civil Rights Issues Guidance to Districts Regarding Restraint and Seclusion of Students with Disabilities

Posted in Americans with Disabilities Act

In late December of 2016, the Department of Education’s Office for Civil Rights (OCR) issued information to school districts regarding how the use of restraint and seclusion may result in discrimination against qualified students with disabilities in violation of Federal laws that prohibit disability discrimination, including Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II).  The guidance sets forth OCR’s interpretation of these laws and regulations.  For more information about the Department’s best practices, please see the Department’s Restraint and Seclusion: Resource Document (May 15, 2012).  The Resource Document recommended that school districts never use physical restraint or seclusion for disciplinary purposes; never use mechanical restraint; and that trained school officials use physical restraint or seclusion only if a child’s behavior poses imminent danger of serious physical harm to self or others.

What is the concern?

According to the Department’s Civil Rights Data Collection (CRDC), during the 2013-14 school year students with disabilities were subjected to mechanical and physical restraint and seclusion at rates that far exceeded their non-disabled peers.  The existence of this disparity raises a question as to whether school districts are imposing restraint or seclusion in discriminatory ways. In addition, OCR continues to observe legal violations in investigations of schools’ use of restraint and/or seclusion for students with disabilities.

What is restraint? 

In general, OCR uses the following definitions for mechanical restraint and physical restraint. Mechanical restraint refers to the use of any device or equipment to restrict a student’s freedom of movement. The term does not include devices implemented by trained school personnel, or utilized by a student that has been prescribed by an appropriate medical or related services professional and are used for the specific and approved purposes for which such devices were designed, such as:

  • Adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports;
  • Vehicle safety restraints when used as intended during the transport of a student in a moving vehicle;
  • Restraints for medical immobilization; or
  • Orthopedically prescribed devices that permit a student to participate in activities without risk of harm.

Physical restraint refers to a personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely. The term physical restraint does not include a physical escort. Physical escort means a temporary touching or holding of the hand, wrist, arm, shoulder or back for the purpose of inducing a student who is acting out to walk to a safe location.

What is seclusion? 

In general, OCR defines seclusion as the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving.  It involves the monitored separation of the student in a non-locked setting and is implemented for the purpose of calming; it does not include a timeout, which is a behavior management technique that is part of an approved program.

What does Federal law require school districts to do for students with disabilities? 

Section 504 requires that students with disabilities receive a free appropriate public education (FAPE).  The Section 504 regulation defines FAPE as the provision of regular or special education and related aids and services that are designed to meet the individual needs of students with disabilities as adequately as the needs of students without disabilities are met.  A student’s behavioral challenges, such as those that lead to an emergency situation in which a school believes restraint or seclusion is a justified response, could be a sign that the student actually has a disability and needs special education or related aids and services in order to receive FAPE.

Can the use of restraint or seclusion deny a student’s receipt of Section 504 FAPE Services? 

Yes. There are multiple ways in which the use of restraint or seclusion might deny FAPE which are outlined in The Business Case for Preventing and Reducing Restraint and Seclusion Use which was prepared for the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration.  For example, the use of restraint or seclusion may have a traumatic impact on that student such that even if she were never again restrained or secluded, she might nevertheless have new academic or behavioral difficulties that, if not addressed promptly, could constitute a denial of FAPE.   See National Center for Trauma-Informed Care and Alternatives to Seclusion and Restraint last updated October 26, 2015.  Furthermore, the repeated use of restraint or seclusion in school could deny a student’s receipt of FAPE in another way.  Consider a student with a disability who engages in behavior in response to which the school secludes him for extended periods and on multiple occasions. While secluded, the student does not receive educational instruction or services. Cumulatively, the school’s repeated use of seclusion with that student could result in the school’s failure to comply with the Section 504 team’s decision about the regular or special education, related aids and services, or supplemental services and modifications that the student needs, or the appropriate setting in which to receive those services and therefore may constitute a denial of FAPE as outlined in the 2016 Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities.

Does the parent or guardian of a student with a disability have a right to discuss the impact of restraint or seclusion on their child’s access to FAPE? 

Yes. Section 504 requires that school districts establish and implement a system of procedural safeguards for parents or guardians to appeal district actions regarding the identification, evaluation, or educational placement of students with disabilities who need or are believed to need special education or related services. The school district must tell parents and guardians about this system, notify them of any evaluation or placement actions, allow them to examine their child’s records, afford them an impartial hearing with opportunity for parent or guardian participation and representation by counsel, and provide them a review procedure according to the 2016 U.S. Department of Education Office for Civil Rights Fact Sheet: Restraint and Seclusion of Students with Disabilities.

The education team at Berchem, Moses & Devlin, P.C. offers representation to school district clients across the State of Connecticut.  Visit http://www.bmdlaw.com, or email us at mlaubin@bmdlaw.com.

New IDEA Regulations Seek to Address Disproportionality on the Basis of Race and Ethnicity in Students with Disabilities

Posted in Individuals with Disabilities Education Act (IDEA)

The United States Department of Education announced a new final regulation under Part B of the Individuals with Disabilities Education Act (“IDEA”).   The final regulations establish one standard States must use in determining (and seeking to eradicate) significant disproportionality based on race or ethnicity within its districts. The goal of the Department of Education in creating these new standards is to obtain consistent and accurate data across each of the states.

One of the highlights of the new regulations the Department of Education’s focus on disparities in the discipline of students with disabilities on the basis of race or ethnicity. Specifically, the regulations clarify that States must address significant disproportionality in three areas:

  • Incidence of discipline;
  • Duration;
  • and type of disciplinary actions, including suspensions and expulsions.

Accordingly, the final regulations clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found.

As part of requiring uniform reporting requirements, districts will be required to identify and address the factors contributing to significant disproportionality as part of comprehensive, coordinated early intervening services. In addition, new flexibilities will further help districts identified with large disparities in addressing the underlying causes of the disparity in order to root out the causes of disproportionality.

Districts should begin to prepare for these changes in practice by examining their own policies as well as speaking with an attorney about modifying existing policies as well as training staff in the reporting requirements.

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