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

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

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

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

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

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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Labor Board Rules School Bus Owner/Operators Are Not Employees of School Board

In a case of first impression, the State Board of Labor Relations has ruled that owner/operator bus drivers in Newtown are independent contractors and not employees of the School Board.  Newtown Board of Education SBLR Dec. No. 4668 (2013).

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Gun Bill Includes Many New Requirements For School Boards

While the other aspects of Connecticut’s new gun control law have received more notoriety, the new law included a number of provisions intended to improve school safety and security including the following: 

  1. Requires each school to have a safety committee;
  2. Requires each school to conduct a risk vulnerability assessment;
  3. Require each school to have a safety and security plan which incorporates national standards and takes an “all hazards” approach;
  4. While not requiring it, the new law encourages schools to conduct “mental health first aid” training for teachers, and directs the Commissioner of Education to consider requiring such training as part of new teacher training programs.
  5. Requires all new school construction utilizing State grant funds to comply with new (yet to be promulgated) school construction safety standards.

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Termination of Superintendent

In what is one of, if not the first decision of its type in Connecticut, an independent hearing officer has ruled that the Groton Board of Education had grounds to terminate Paul Kadri its Superintendent of Schools.  

As in most districts, Kadri was under contract which provided for grounds for termination similar to those found in the Teacher Tenured Act, including “other due and sufficient cause.”  It also provided that the Board would conduct a hearing before termination.  Kadri, however, through his counsel raised concerns regarding alleged predetermination on the part of certain board members.  Out of an abundance of caution, the Board agreed to place the decision in the hands of an independent arbitrator, Mr. Timothy Bornstein, which decision the Parties agreed, would be final and binding.

In a decision issued March 4, Mr. Bornstein ruled that due to mistreatment of staff, including numerous physical and verbal assaults, the Groton Board of Education had just cause to terminate his employment. 

 

We Are All Newtown

Some of you may have noticed that this blog has gone somewhat silent in the last couple of months.  It’s not that there haven’t been developments in education law worthy of comment.  But business as usual has been difficult to reestablish.  Instead, we seem to be establishing a "new normal", much as I imagine schools in Colorado did in the wake of the Columbine High School shooting.  In the days and weeks since the Sandy Hook tragedy, I have tried to put into words some coherent view of this from the perspective of a school attorney.  A coherent view of it through any lens seems impossible.  Six weeks later, we look back at the abject shock and horror of Friday, December 14, 2012, the desperate search for basic facts amid the storm of misinformation and speculation, quickly followed by denial regarding the enormity of the loss of life, admiration for the courage of the educators who did their utmost to protect the innocent children in their charge, some of them making the ultimate sacrifice in service of children, and profound sorrow at the loss of each and every teacher hero and precious little angel.  We are thankful for the courage of the first responders and others in the law enforcement and medical fields who may still be able to shed light on why and how this happened once they have completed their full investigation.

 

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