Connecticut Education Law Blog

Connecticut Education Law Blog

U.S. Department of Education Tackles Discrimination of Refugees

Posted in Regular Education

On December 31, 2015, the Department of Education issued a Dear Colleague Letter before the beginning of the new year to remind schools of the importance of providing a discrimination free learning environment. The letter specifically focused on discrimination and harassment in schools based on race, religion, and national origin in light of the large number of families fleeing violence in Syria.

The Department of Education emphasized that the United States must welcome these refugees while also being committed to safeguarding the safety and security of the American people during this time of heightened fear and anger. One important aspect the Department of Education highlighted was ensuring that a student’s ability to learn was not affected due to inappropriate school conduct or discrimination.

Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, and national origin for public and private agencies that receive Federal funding. While Title VI does not expressly prohibit discrimination based on one’s religion, discrimination against persons who belong to a religious group based on their actual or perceived characteristics is a violation of Title VI.

The letter speaks to both K-12 and higher education institution’s duty to provide a safe learning environment, and limiting behavior that causes hostile environments. It additionally clarified that protecting free speech means allowing students, staff, and community members to express speech, even if it is at odds with the institution’s beliefs.

Some examples the Department of Education gave for helping facilitate the appropriate environment included encouraging students to express disagreement in a respectful manner, clearly communicating that harassment and bullying will not be tolerated, and creating opportunities for cultural groups to engage with each other and the school community.

The Department of Education acknowledged the difficulty of the work, but reiterated that schools have a responsibility to challenge past efforts, and welcome the refugees by working together to prevent discrimination.

New Special Legislation Requires Principals To Certify DCF Training Has Occurred and Increases Penalties For Failing To Report Suspected Abuse

Posted in Regular Education, Student Matters

School employees who fail to report child abuse may face tougher penalties for failing to report such incidents to DCF or the police as a result of a law passed by the General Assembly.

Public Act 15-205, An Act Protecting School Children, increases, from a class A misdemeanor to a class E felony, the penalty for a mandated reporter who fails to report suspected child abuse or neglect to the Department of Children and Families (DCF), if the (1) violation is a subsequent violation; (2) violation is willful, intentional, or due to gross negligence; or (3) a mandated reporter had actual knowledge of the abuse, neglect, or sexual assault.

The Act expands the reporting requirement for school employees and subjects violators to the penalties described above.  It also clarifies that the mandated reporter law protection applies to high schools students who are over age 18.  The Act requires school employees to report to DCF suspected sexual assault of any student who is not enrolled in adult education by a school employee.  It also establishes the factors on which a mandated reporter may base his or her suspicion.  Under the Act, it is a class D felony for anyone, other than a child or a student who is not enrolled in adult education, to intentionally and unreasonably interfere with or prevent such reporting or conspire to attempt to do so.

By law, (1) DCF must make available educational and refresher training for all mandated reporters of child abuse and neglect and (2) school employees must participate in the training course when hired and the refresher training every three years.  Under the Act, the principal for each school under the jurisdiction of a local or regional board of education now must annually certify to the superintendent that school employees complete such training and the superintendent must certify compliance to the State Board of Education (SBE).

The Act extends DCF’s investigation and notification requirements under existing law in reported child abuse or neglect cases to include cases of reported sexual assault of students by school employees.

It requires each local or regional board to (1) update its written policy, by February 1, 2016, to include the new school employee reporting requirements and (2) establish a confidential rapid response team, by January 1, 2016, to coordinate with DCF to ensure prompt reporting.  It also prohibits the boards from hiring noncompliant or convicted employees who were terminated or who resigned and requires SBE to revoke the certification, permit, or authorization of anyone convicted of certain crimes.

In addition, it (1) expands the list of suspected sexual assault crimes that school employees must report to DCF; (2) establishes the factors upon which a mandated reporter’s suspicion or belief may be based; (3) applies the original Act’s enhanced penalty of a class E felony to specific circumstances; (4) exempts children and any students who are not enrolled in adult education from the crime of interference with a mandated reporter’s duty to report; (5) extends DCF’s existing child abuse and neglect investigation and notification requirements to reported sexual assault cases; (6) eliminates the underlying Act’s provisions on SBE’s noncompliance investigation, the related forfeiture of state grants, and the child abuse and neglect investigation account; (7) establishes the membership of the confidential rapid response team; (8) broadens the range of criminal convictions for which rehiring is prohibited and the state’s attorney notification is required; and (9) makes various technical and conforming changes.

Effective Date: October 1, 2015; however, a provision on DCF’s training program (§1); provisions on rapid response teams (§9); rehiring prohibitions (§12 & 13) are effective July 1, 2015.

Superintendent of Schools’ Newsletter Regarding Budget Referendum Did Not Violate Election Laws

Posted in Regular Education

A Superior Court Judge recently held that a superintendents’ newsletter sent to parents which discussed a referendum does not violate Connecticut General Statutes §9-369b if the referendum has not yet been scheduled to take place.  In this case a complaint was filed alleging that the Bethel superintendent of schools used municipal funds to distribute a newsletter about a budget referendum, in violation of C.G.S. §9-369b.  The statute only prohibits distribution of such information when a referendum is legally “pending.”  As of the date of the superintendent’s newsletter on April 24, the referendum had not yet been scheduled to take place.  Because the superintendent’s April 24, 2015 newsletter was distributed before May 14, 2015, when the budget referendum qualified as “pending” under the local Charter, C.G.S. §9-369b did not apply.  The State Elections Enforcement Commission dismissed the complaint.

Because the point at which a referendum is considered “pending” varies from Town to Town, districts should consult with legal counsel to make certain they do not run afoul of the State Campaign Finance laws when they issue such statements.

IEP’s Must Align with State Academic Content Standards

Posted in Special Education

On November 16, 2015, the Department of Education issued a Dear Colleague Letter providing guidance concerning the alignment of an individualized education program (IEP) with the state standards for academic grade-level content. The Department of Education stated that in adhering to federal laws requiring that all students within a state have the same academic content and standards for achievement, an IEP for an eligible child with a disability under the Individuals with Disabilities Education Act (IDEA) must therefore align with the state academic content standards for the particular grade in which the student is enrolled.

Under the IDEA, an eligible child with a disability must be provided a free appropriate public education (FAPE). Accessing FAPE includes providing a child with a variety of services designed to meet their specific educational needs presently and in the future, as well as prepare the child for future employment opportunities and independent living situations. In order to achieve FAPE and provide these necessary services for a disabled child, the IEP must be designed to allow the child to access, be involved, and make progressions within the general education curriculum set forth by their state.

Part B of the IDEA however references “specially designed instruction.” Specialized instruction allows an eligible disabled student to access the general curriculum by adapting the content and teaching methods to best serve the unique needs of the student. This requires the IEP team to make individualized decisions regarding what services and methods of instruction will best allow the student to reach the goals set forth by their IEP in conjunction with state standards.

The Department of Education did acknowledge that there is a small population of children with significant cognitive disabilities that may prohibit their achievement from being measured in comparison to the state standards. In these instances, alternative academic achievement standards may be created. These standards must still align with the state’s academic content standards, however the alternative standards can take other forms. For example, in order to reach a goal of performing the entire activity at grade level, an alternative standard could be requiring mastery of the introductory and pre-requisite skills required to perform the activity. The Department of Education suggests that the IEP team create ambitious goals that may seek to close the gap between the child’s current academic level and the grade-level standard the state sets.

According to the U.S. Department of Education, research has shown that when provided with appropriate instruction and services, children with disabilities can make great academic progress and strive toward grade-level general curriculum achievement. It is therefore very important that an IEP team carefully evaluate the unique needs of a particular child and create an IEP with appropriate goals and instruction methods to achieve those goals outlined while adhering to state academic content standards.

U.S. Department of Education Issues Guidance Regarding Dyslexia, Dyscalculia, and Dysgraphia

Posted in Special Education

On October 23, 2015, the Department of Education issued a Dear Colleague Letter providing guidance on the unique educational needs of students with dyslexia, dyscalculia, and dysgraphia. Despite generalized hesitancy to use these specific conditions in the evaluation and individualized education program (IEP) process, the U.S. Department of Education stated that there is nothing in the Individuals with Disabilities Education Act (IDEA) or the regulations of the department that would prohibit using these conditions in IDEA evaluations, eligibility determinations or IEP documents.

When determining eligibility, the comprehensive evaluation must include a variety of assessment tools and strategies to ascertain all relevant material regarding the functional, development, and academic information of the student. In conducting this assessment it is therefore very important to understand the nature and extent of the specific disability and the subsequent needs of the student.

Students with dyslexia, dyscalculia, and dysgraphia have unique educational needs. Inclusion of these conditions on an IEP is of great benefit to educators as it affords them an opportunity to understand the condition underlying the disability determination. This allows for appropriate accommodations, modifications, and support systems to be implemented in accordance with the IEP in order to best serve these unique needs and reach the goals listed on the IEP.

While there have been requests to create a comprehensive guide for common accommodations for specific learning disabilities such as these, the IDEA does not provide this guidance. Instead the Department of Education suggests seeking assistance from other venues such as the National Center on Intensive Intervention, Center for Parent Information and Resources, and National Center on Accessible Educational Materials.

In recent years the Connecticut General Assembly has passed laws specifically pertaining to dyslexia as a learning disability. In Connecticut, dyslexia is now considered a “primary disability” on the standardized IEP form utilized by planning and placement teams throughout the state. Also, the Connecticut Department of Education is now responsible for providing teachers, boards of education, and parents or guardians information regarding dyslexia and how to detect and recognize the disability. While dyscalculia and dysgraphia are not yet recognized as primary disabilities in Connecticut, the guidance issued by the U.S. Department of Education suggests that they are conditions that should be disclosed in both eligibility determinations and IEP documents to assist educators in better serving the distinctive educational needs of students with these particular conditions.

Failure to Train Staff Properly and to Take Prompt and Effective Action Costs Michigan School District Dearly in Federal Title IX Peer-on –Peer Sexual Assault Case

Posted in Regular Education

Michigan Forest Hills School District reached a $600,000 settlement with a female student who sued the district in federal court alleging that she was sexually assaulted in her school’s band room by a male classmate, MM.  The female identified as Jane Doe was a 15 year old sophomore at the time of the assault and MM was a sixteen year old junior. Jane Doe claims that the school failed to protect her from sexual harassment after she filed her complaint against MM who was a prominent athlete in the school under recruitment from Division 1 colleges with a promise of athletic scholarships.

The school’s investigation of Jane Doe’s complaint was quickly suspended when the police got involved.  The district’s Title IX coordinator, who was aware of the complaint, took no action to investigate.  As justification for its alleged inaction, the school claimed that it had insufficient evidence to act, and that it needed to wait for the completion of a police investigation which might bring forth more evidence. The school maintained that its initial inquiries were inconclusive regarding the assault. The school district maintained that they acted timely and appropriately after learning of the allegations, but also maintained that a local detective assigned to the case told them not to conduct a parallel investigation of their own. The detective denied making the statement.

Many months passed before the completion of the police investigation with no further school investigation, meanwhile Jane Doe and MM remained in school together and in the same lunch, even initially remaining in the same classroom for some two weeks before a change was made to MM’s class schedule after a second female came forward alleging MM assaulted her at school as well. While the police investigation lagged on, Jane Doe alleged that she was subject to a hostile school environment. She alleged that during the school year she was bullied on line by peers, pushed in the hallways at school into lockers, had her books thrown across the hallway at her, was continually taunted and harassed by the perpetrator and by the perpetrators’ friends as well as fellow classmates while in school, after school, and at afterschool activities including being forced to leave a school basketball game when students chanted until she left. As a result of the sexual harassment, Jane Doe alleged that her education was impacted negatively as she lost classroom time, avoided class time by staying in the school guidance counselor’s office, lost interest in afterschool activities, and required mental health counseling and medication for depression and anxiety related to the stress of attending school. Jane Doe alleges that even after reporting the many incidents of harassment, the only intermediary action taken by the school was to tell MM to leave her alone and to tell her to report any future issues with MM. Jane Doe and her parents were never questioned after their initial school meetings, not even after a second female student was allegedly assaulted two weeks after Jane Doe’s alleged assault. At various points, Jane Doe’s parents expressed concerns about the continued harassment of their daughter and shared copies of harassing messages received by her online, but their expressed concerns went largely unresponded to by the school.  No disciplinary action was taken against the male until the police investigation closed and a plea was negotiated at the end of the school year some eleven months after the alleged assault occurred.

A federal  district court judge granted summary judgment, in part, in favor of the female student on her §1983 equal protection claim. The female had alleged that the district failed to train its employees on how to handle sexual complaints notwithstanding the obvious risk that an untrained response would be deficient.  The district admitted that school district did not provide any training on responding to sexual assault claims.  When asked, the Title IX coordinator, the school district principal, nor the Superintendent was certain if Title IX applied to sexual assault situations. The judge ruled that the school failed to train staff on how to properly handle Title IX complaints of sexual assault and harassment and that training would have prevented Jane Doe’s injuries, at least to some extent. The district court judge reasoned that had the school immediately removed contact between the female and the male, it was very likely that the female would not have experienced ongoing harassment for the remainder of the school year. Under the parties’ settlement agreement, Forest Hills Public Schools will sponsor Title IX training as part of an existing Global Learning Initiative program.

This case highlights the need for schools to conduct their own Title IX investigations even when a police investigation is under way.  It will not suffice under the law for a school to report an incident to the police and to take no further investigatory or responsive action to protect complainants. Further, the ruling emphasizes how important it is that key school personnel receive appropriate and ongoing training regarding Title IX and its requirements under federal law. School employees should also be familiar with district board polices setting forth procedures for Title IX complaints, investigation, and recommended remedies including intermediary measures to be taken.

Berchem, Moses & Devlin Partner Michelle Laubin to Speak on Discipline and Discrimination at CABE Board Member Academy

Posted in Announcements
CABE_logo

Discipline and Discrimination: It Can Be a Fine Line

Thursday, February 19, 2015

9:00 AM – 11:30 AM

Rovins Conference Room, CABE, Wethersfield

If you have a diverse student body, you are encouraged to attend this workshop and learn ways to avoid discriminatory charges in your district. Michelle Laubin, Attorney at Berchem, Moses & Devlin, P.C., and Karen Parks, Superintendent for Fairfield Public Schools, will:

  • Review the latest guidance from the Office for Civil Rights, U.S. Department of Education concerning its findings of discriminatory treatment
  • Discuss discriminatory treatments’ impact on students of color
  • Provide concrete suggestions for how to avoid such charges in your district

Register now using our online registration page or click here to download the registration form.

In 2014, The U.S. Department of Education Office for Civil Rights reported “Black Students are suspended and expelled at a rate three times greater than white students.” They also highlighted suspension inequalities between students with disabilities and students without disabilities.

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.

 

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