Connecticut Education Law Blog

Connecticut Education Law Blog

Posting Class Lists: is that a FERPA violation?

Posted in Regular Education

With the start of the 2014-2015 school year upon us, schools routinely post the class assignments in the public domain enabling other students and/or parents access to this information.  Many parents have expressed concern that such posting before the first day of class of the student’s name, room number, and the names of the students assigned to a particular teacher violates the Family Educational Rights and Privacy Act ( FERPA)(20 U.S.C. §1232g; 34 CFR Part 99).  FERPA requires that schools  have written permission from the parent or eligible student in order to release any information from the student’s record unless the circumstance or the particular party to whom the information is being released fall under one of the enumerated exceptions. See 34 CFR §99.31.

The simple act of posting the classroom assignment raises the following issues:  Is the class list a student record and therefore parent or eligible student consent is required to disclose?  May the class list be classified as directory information?  Is the school releasing confidential information without parent/eligible student permission if the class list is classified as directory information?  The answer to the first two questions is “yes” and the answer to the third question is “no”.

Schools must notify parents and eligible students annually of their rights under FERPA, which includes the right to disclose directory information without consent. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school. Therefore, a practical solution to this potential  FERPA violation is for Districts to include classroom and teacher assignment in their policy’s list of directory information thereby removing such information as being classified as confidential student record information that may not be disclosed without consent.  However, schools must allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information.  If the student classroom assignments are posted prior to the start of the school year, have the parents and eligible students been afforded a reasonable amount of time to request that the school not disclose directory information?  Probably not.  Therefore, districts may want to avoid any public posting of classroom/teacher assignments and provide the information to individual households.

 

New Standard Proposed by EDNY for IEP’s of Bullied Special Needs Students

Posted in Special Education, Student Matters

In a decision issued July 24, 2014, Senior United States District Court Judge Jack Weinstein has authored an opinion proposing a new standard for evaluating whether the IEP of a special education student who has experienced bullying provides that student with a free appropriate public education (FAPE).  In T.K. v. New York City Dept. of Educ., 2014 U.S. Dist. LEXIS 101277 (E.D.N.Y. 7/24/14), Judge Weinstein offered that there is a new “FAPE Bullying Standard”: “a disabled student is deprived of FAPE when school personnel are deliberately indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child with learning disabilities in her educational opportunities.”  The opinion clarifies that the conduct “does not need to be outrageous in order to be considered a deprivation of rights of a disabled student.  It must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment.”  Furthermore, the “rule does not require that the bullying would have prevented all opportunity for an appropriate education, only that it was likely to affect the opportunity of the student for an appropriate education.”

Those of us representing school districts have been concerned since the issuance of the U.S. Department of Education’s Dear Colleague Letter on August 20, 2013 admonishing school districts to reconvene IEP team’s to review a disabled student’s IEP if the student is determined to have been affected by bullying, that this would impose new requirements on IEP teams that they may not be prepared to address.  This opinion seems to be the culmination of those concerns.

The allegations in the T.K. case were that the student, L.K., was placed in a New York City Collaborative Team Teaching (CTT) classroom at P.S. 6, containing both general education and special education students.  She alleged that she was intentionally “pinched, bruised and injured” by another child in her class during the lunch period.  The opinion faults the school’s response to the allegations, stating that the principal failed to investigate adequately and inform the parents about actions taken to resolve the problem.  The following year, it was alleged that this same student “stomped” on L.K.’s toes.  There was no way to separate the two students because they were both special needs students requiring the same classroom, and there was only one such classroom available in the school.  That year, L.K. complained daily to her parents about being bullied and resisted attending school, resulting in multiple tardies and absences. According to the opinion, the teachers in the classroom confirmed that L.K. was bullied by the other students and that the classroom was a “hostile environment” for her.

It does not appear that any specific IEP team meetings were convened to address this situation for L.K., and when the annual review meeting was held that spring and the parents attempted to raise the issue of bullying and how it was going to be addressed, the opinion states that the parents were told that was not an appropriate subject for the IEP team to address and that it would not be discussed.  This, the court found, denied the parents a meaningful opportunity to participate in the educational process.

The court further found fault with the fact that the present levels of academic and functional performance on the child’s IEP failed to reflect that she had been a victim of bullying, and instead focused on the child’s “sensitivity” and need to improve her communication skills.  Although the student had goals and a behavior intervention plan (BIP) that addressed her interfering behaviors, which would in turn, the staff contended, reduce her vulnerability to bullying by peers, the court deemed these measures insufficient. “Where there is a substantial probability that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law an anti-bullying program is required to be included in the IEP.” (Emphasis added.)

There is just one problem: IDEA does not say that, and neither do its implementing regulations.  There is nothing in IDEA that tells schools what an “anti-bullying program” is for purposes of a child’s IEP.  While certainly no one would advocate that leaving a child who is being bullied in an untenable situation is an acceptable educational outcome, the IEP is designed to focus on the measurable outcomes that will be achieved in that child’s skills and abilities over the course of the next school year, not to regulate the conduct of other children around them.  As most states do, Connecticut has a robust anti-bullying statute which gets further refined seemingly each year by the legislature, and school districts are required to take steps to improve school climate for all students, investigate and address bullying and other mean-spirited behavior when it does occu, and make sure that every child has the opportunity to attend school in a safe and healthy learning environment.  A safety plan is required for any child who is the victim of a verified incident of bullying.  That’s not the problem.  The problem is, how do we go about including this in a child’s IEP and is it appropriate to do so?

The opinion does not answer this question.  It criticizes the department of education for “blaming the victim” by focusing on goals and objectives to improve the child’s measurable outcomes.  It seems to imply that the IEP perhaps should have focused more on changing the setting in which the child was being educated to remove her from being the target of the other students, which perhaps would have resolved the situation.  But, IDEA makes a distinction between a “placement” and a “location” for a child’s educational program.  The “placement” needed by L.K. was the CTT classroom.  The district was not required to specify that the location of the CTT classroom would have been changed to remove L.K. from the bullies, even if that was the intent of the school officials. But in the absence of an “anti-bullying program” in L.K.’s IEP, this court decided that the parents were entitled to reimbursement for their unilateral private school placement.

It’s hard to imagine that the New York City Department of Education isn’t preparing their papers for the appeal as we speak.  Leaving that aside, however, forewarned is forearmed.  It is clear that we need to pay attention to our obligations under both the anti-bullying statutes and the Dear Colleague Letter and ensure that IEP teams are addressing the unique needs of children with disabilities who are being bullied by their classmates. And, when it comes down to it, we just need to make schools a safe place to learn.

Teacher Tenure Laws Take Another Hit

Posted in Labor and Employment

Teachers generally enjoy job protection which is much greater than all other public sector employees.  Such laws have been much criticized in recent years as a result of the increased focus on student performance.  Reports of “rubber rooms” in New York, where incompetent teachers were parked, have been much publicized and much maligned.  Some states, such as Wisconsin and Florida, have repealed or watered-down teacher tenure laws.

In a groundbreaking ruling, a Los Angeles court struck down five California statutes related to teacher tenure, saying they violated the equal protection clause of the California constitution.  In Vergara v. State of California, the court said that the Permanent Employment Statute, Dismissal Statutes, and Last-In-First-Out Statute have kept “grossly ineffective” teachers in the classroom, disproportionately affecting poor and minority students.  The Permanent Employment Statute requires tenure decisions to be made in less than two years, even before teaching credentials are granted, resulting in some cases in which teachers are not permitted to teach, but cannot be fired.  The Dismissal Statutes require what the court called “über due process,” making it so burdensome for school districts to fire teachers that they often do not even try.  The Last-In-First-Out Statute requires that the last teacher hired be the first let go during layoffs, no matter how effective she is and no matter how ineffective more senior teachers may be.  Relying on social science research, the court concluded that these students lost educational opportunities and ultimately suffered reduced lifetime earnings because of these laws.  Therefore, the court reasoned, poor and minority students were not receiving equal protection of the law with respect to their fundamental right to education.  This decision is expected to have ripple effects throughout the country.  Could teacher tenure be struck down in Connecticut?

Connecticut’s laws are similar to California’s laws in most relevant respects.  Connecticut jurisprudence deems education to be a fundamental right, so the constitutional analysis would be similar.  However, the Connecticut Constitution’s equal protection clause applies only to “religion, race, color, ancestry, or national origin.”  Therefore, “poor” students would not be a protected class.  However, if racial or ethnic disparities could be shown, a similar equal protection argument could prevail.  Connecticut’s statute pertaining to teacher tenure is similar with respect to “über due process,” requiring costly hearings to terminate a tenured teacher, even for proper causes.  Connecticut’s Teacher Tenure Act requires that non-tenured teachers be laid off before tenured teachers, resulting in the situation that an ineffective tenured teacher would have more job security than a superstar new teacher.  However, unlike the California law, the Connecticut law does allow factors other than seniority to be taken into account within those bands of tenured and non-tenured teachers.  The most significant difference between the two statutory schemes is the amount of time before tenure is granted.  Connecticut provides for tenure after four years, while California required such decisions in less than two years.  Therefore, while a similar case could prevail in Connecticut, the laws are not as uncompromising as California’s, so it would be a more difficult battle.

Is this the beginning of the end of teacher tenure?  Perhaps.  But given the politics in Connecticut and the strength of the teachers’ unions, it would appear unlikely that the Teacher Tenure Act will be repealed.  We will have to wait and see if anyone is willing to challenge the law as unconstitutional.  Assuming the California decision withstands appeal, the prospects of such a challenge in Connecticut will certainly increase.

 

Teacher Absenteeism Impacts Learning

Posted in Labor and Employment

While the concept is intuitive, a recent study has confirmed that teacher absenteeism has a direct and measurable impact on student learning.  In a report entitled “Roll Call:  The Importance of Teacher Attendance” the National Center on Teacher Quality found that teachers miss on average 11 out of 186 days of school; and one in six teachers has chronic absenteeism with 44% of teachers out more than 10 days per year.

Data maintained by the State of Connecticut Department of Education, though notoriously outdated, shows similar trends in Connecticut.  In addition, Connecticut law requires school districts to provide teachers with a minimum of 15 sick days annually — for a 10 month work year!  With statistics showing a national average of approximately six sick days per employee (only two of which are bona fide illness), that number seems excessive.

Adding to the problem is the trend in recent years to allow sick days to be used for family illness, as well as the teacher’s own illness.

That all stated, control of excess sick leave utilization remains by and large something which can be controlled by good management practices including:

  • Encourage regular attendance and point out the impact on learning to staff
  • Regularly reviewing reports of teacher absenteeism
  • Considering publishing such reports to put public pressure on teachers to curb any abuse
  • Counseling teachers who, in a given year are trending high and do not have a clear injury or illness to explain the anomaly, or who show a pattern of excessive absenteeism over multiple years
  • Apply progressive discipline to teachers who do not respond to counseling efforts

 

Protecting Student Privacy When Cloud Computing and Outsourcing School Student Record Functions to Third Parties

Posted in Regular Education, Student Matters

The way student records are created, accessed and stored is changing drastically increasing concerns about schools’ ability to protect student privacy as required under laws such as the Federal Educational Rights and Privacy Act (FERPA) and the Children’s Online Privacy Protection Act (COPPA). Schools are shifting from a traditional paper model to the electronic creation, maintenance and sharing of records, particularly through the use of the Internet and cloud computing including cloud based classroom and school educational computer applications. Schools find themselves outsourcing school records functions to third party service providers more frequently, as well as increasingly sharing and assessing student testing information with or among multiple educational agencies. This paradigm has resulted in yet to be resolved legal issues with potential landmines for schools.

There are two general but distinct concerns resulting from this changing school landscape. The first is for the security of the data itself, particularly when it is no longer maintained in house on hardware physically located at school or in the school district, rather is kept in the cloud in an unknown location. 

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OCR Chief and DOJ Section Head Answer Tough Questions From School Attorneys At National Law Seminar

Posted in Regular Education, Student Matters

U.S. Department of Education, Office of Civil Rights (OCR) Chief Catherine Lhamon along with U.S. Department of Justice (DOJ)Education Opportunities Section head Anurima Bhargava attended the April 2014 School Law Seminar held in New Orleans and fielded questions from attending school attorneys who sought clarification of the Departments’ position related to harassment standards for student on student harassment and asked questions about the Departments’ “Dear Colleague Letters” (DCL) on topics ranging from transgender students, athletics and extracurricular activities for students with disabilities and bullying and harassment to name some.

Here are a few highlights from the discourse:

  • Transgender Students: When questioned about a district’s obligation to honor requests by a transgender student to use the restroom of the gender with which the student identifies, the unequivocal response by OCR/DOJ was that districts must grant such requests or be subject to claims of discrimination, and that an offer for the student to use a private restroom which is not otherwise provided to all students would not suffice to meet legal obligations.

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Snow Days and E-Learning

Posted in Regular Education

As this year’s snow-filled winter continues in Connecticut, so too do school cancellations for districts across the state. While students may enjoy the instant gratification that a snow day brings, few are as excited in June when make-up days must be added to the school calendar. Disruptions in the class schedule also impact teachers and school leaders who must adjust lesson plans and decide how the district will meet the number of class days mandated by state law. Some states, districts, and individual schools have decided to use technology to make up these otherwise missed days, or at least minimize the impact on the school’s schedule.

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New Guidance Released on Bullying as Related to Students with Disabilities

Posted in Special Education

The U.S. Department of Education’s Office of Special Education and Rehabilitative Services (“OSERS”) published a new “Dear Colleague” letter in August which discusses best practices for handling of bullying cases involving a student with a disability.  The letter describes that the bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE.  The letter stresses that students with disabilities are disproportionately affected by bullying.  Due to the characteristics of a student’s disability, he or she may also not understand the extent to which the bullying is harmful and may not be able to communicate the problem to an adult.  The letter states that even if the bullying is not related to the student’s disability, if the result of the bullying is the student not receiving meaningful educational benefit, then there is a denial of FAPE.  

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FERPA Amended to Grant Easier Access to Education Records by Child Welfare Agencies

Posted in Student Matters

Earlier this year, FERPA was amended to grant child welfare agency representatives, agency caseworkers, or a tribal organization access to the education records of children within their care and protection.  The new exemption was created in order to prevent delays and complications in the education of children in foster care.  Prior to the amendment, child welfare agency representatives and caseworkers were required to obtain parental consent or seek a court order to gain access to a child’s education records.  This sometimes caused delays and issues with the education of foster children.  Now, upon request, a school district can release the education records of a student who is the legal responsibility of a child welfare agency or organization to a caseworker or agency representative.  The agency in turn can only disclose the student’s records to an entity that addresses the student’s educational needs and is authorized to receive the disclosure.  The Act streamlines the process for child welfare agency representatives and caseworkers. 

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New Legislation Decriminalizes Theft of School Accommodations for Non-Residency

Posted in Regular Education, Student Matters

Although rarely done, in the past few years, several Connecticut public school districts have been featured in the news for seeking criminal remedies against parents for theft of educational services.  Parents who allegedly enrolled and sent their child to a school located in a town or city other than the one where the child actually resided were referred to the police.  On June 24, 2013, Governor Malloy signed into law Substitute House Bill No. 6677/ PA-13-211 an Act Excluding School Accommodations from Services That Are Subject to Larceny Statute. The law, effective October 1, 2013, repeals and replaces subsection (a) of C.G.S. 53a-118, a definitional section under which Connecticut police have derived authority to arrest parents who engage in theft of services from school districts. Under the repealed law, the term “services” was interpreted to include school accommodations. Under the revised C.G.S. 53a-118, “school accommodations” are specifically excluded from the definition of “services”. This change appears to decriminalize the behavior.

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