Connecticut Education Lawyer & Attorney : Berchem, Moses & Devlin Law Firm : CT Public Schools

The U.S. Supreme Court has ruled that the Individuals with Disabilities Education Act (IDEA) grants parents independent legal rights which encompass the entitlement to a free appropriate public education (FAPE) for their child.  The decision means that non-attorney parents can litigate IDEA claims in federal court unrepresented by legal counsel, because they are acting on their own behalf. Significantly, the Court side-stepped the question of whether IDEA authorizes a parent to litigate another party’s (the child’s) claims. 

In this action, Jeff and Sandee Winkelman sued their child’s school district after an administrative hearing officer rejected their claim that their son’s individualized education program (IEP) failed to provide him with FAPE as required by IDEA. As the case went on, the Winkelmans proceeded without an attorney. The district court agreed with the hearing officer that the school district had provided their son with FAPE, and the parents appealed to the Sixth Circuit. The Sixth Circuit held that IDEA does not authorize parents to appear pro se on behalf of their child, a question on which other federal courts were divided.

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Since the September 11, 2001 terrorists attacks, more onerous rules have been put into place regarding foreign visitors attending schools in the United States. On March 1, 2003, enforcement of the immigration laws, formerly provided by the Immigration and Naturalization Service (INS), were transferred to the Department of Homeland Security. The service and enforcement responsibilities of the INS are now the responsibility of the U.S. Citizenship and Immigration Service (USCIS), a separate bureau of the Department of Homeland Security.

Whether a school district may freely accept a foreign student into its program will depend on the type of visa assigned to the student. A complete list of non-immigrant visa classifications and information regarding each classification may be found on the USCIS website.  Generally speaking, however, foreign students who plan to come to the United States under an F1 or M1 visa may only attend schools that have been approved by the USCIS. Accordingly, school districts must inquire as to the visa status of any foreign students seeking to attend, and will need USCIS approval in order to enroll students with F1 or M1 visas. School districts do not need approval in order to accept students with other visa designations, including the children of an F1 and/or M1 students. These students would typically have an F2 or M2 designations. 

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On Wednesday, May 23, 2007, Floyd J. Dugas was a speaker at the Connecticut Association of Boards of Education Presentation on Collective Bargaining for school districts. Following is a synopsis of some of the Practical Suggestions and Hot Topics discussed by Floyd during his presentation.

Negotiation

• Begin preparation months before your official start date for teacher negotiations.
• Collect and evaluate the data at this early stage – know the anticipated cost of step; how your salaries compare to those in surrounding and similar districts; speak to your insurance consultant as to where changes can be made.
• Interest Based Bargaining (as compared to traditional bargaining) has some advantages, but can be very time consuming. If you are considering it, start the process at least four (4) months prior to when you normally would.
• If you end up in arbitration, start with a witness who can clearly and convincingly explain the fiscal challenges facing your community; use graphs, charts and pictures where you can and make your presentation focused and meaningful.
• The use of experts to explain insurance and pension issues is essential; but make sure you understand the terms they are using and exactly what they are going to testify as to.
• Arbitration awards have been trending .20 to .25% per year lower than settlements in teacher negotiations, so provided the dollars at issue are large enough, do not be afraid of arbitration.
• Never forget, however, a negotiated or mediated settlement is usually preferable to an arbitration award.

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If so, there may be issues as to whether such individuals are “volunteers” or employees under state and federal wage and hour law. 

Opinion Letter FLSA 2006-40 is the most recent opinion letter on the subject, though there are many other opinion letters which have been issued in the past dealing with the subject as well. DOL Opinion Letter FLSA 2006-40 was written in response to a letter written on behalf of a number of school districts concerning guidance regarding the use of non-exempt school system staff to assist with coaching sports or other extracurricular activities, either as volunteers or as additional duties. In the Opinion Letter, the DOL addresses several hypothetical situations and analyzes whether compensation or overtime would be due in each given situation.  

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This past December, new Federal Court rules for electronic discovery went into place. In short, the rules require the retention and disclosure of electronically stored data, including e-mails, which relate to any federal court lawsuits in which the district is involved.

Specifically, the new rules provide that (1) a party may serve interrogatories concerning and/or request to produce electronically stored information, including the form that the requested information must be produced, (2) a party may subpoena electronic stored information, (3) a party must include in its initial disclosures (required by Rule 26(a)(1)) a description of any electronic data which supports its claims or defenses.

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