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 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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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. 

 

Back to School: Bullying Basics

School is back in session for the 2012-2013 academic year and the time has arrived for school districts to fully implement all aspects of Connecticut’s anti-bullying law.  July 1, 2012 marked the deadline for implementation of certain remaining aspects of the state’s bullying law last revised in 2011.  With the advent of a new school year and with the July 1, 2012 deadline having come and gone, school districts should be busy reviewing their districts’ bullying policies and related policies such as their anti-discrimination and anti- harassment policies, any related regulations, examining their safe school climate plans, and creating or revising procedures for implementation of the plans, policies and regulations to ensure compliance with all aspects of the law.

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The Connecticut State Board of Education Adopts Long Awaited Definitions of Excused and Unexcused Student Absences for Truancy Reporting Purposes

On Wednesday, June 27, 2012, the Connecticut State Board of Education (CSBOE) adopted long awaited definitions of excused and unexcused student absences as required under Public Act 11-136, An Act Concerning Minor Revisions to the Education Statutes. The new definitions promise to promote consistency and reliability in the state’s data collection and reporting related to student attendance. The new definitions are to be used by school districts to determine which students qualify as truant for state reporting purposes; however, school districts retain the right to maintain their existing definitions for internal purposes such as promotion and grading. The current definition of truant and school district reporting requirements under the Families with Service Needs statute remain unchanged; a truant is a student who has four unexcused absences in a month or ten unexcused absences in a school year.

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Who's watching who? And who can review?

 

School administrators frequently grapple with the treatment of video recordings. From Constitutional issues to concerns about education records, administrators need to be aware of how to use surveillance cameras appropriately and how to respond to requests for copies of those video recordings. As more and more districts are using video surveillance in schools, this issue promises to remain a big issue for districts into the foreseeable future.

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Minnesota School District Enters Into Five Year Consent Degree with Department of Justice and the Office of Civil Rights in Resolution of Peer-on-Peer Harassment and Discrimination Claims Based Upon Sex and Sexual Orientation

The Anoka-Hennepin school district (District) in Minnesota recently entered into a five year consent decree with the U.S. Department of Justice (DOJ) and the U.S. Dept. of Education, Office of Civil Rights (OCR) to resolve two separate actions brought by six current or former district students alleging peer-on-peer harassment and discrimination based upon sex and sexual orientation. The actions were brought against the district, its school board and several individual school administrators.

The negotiated consent decree provides for detailed remedial measures aimed at eliminating and preventing future instances of harassment in its education programs and activities and also requires payment of $270,000 to the plaintiffs in full settlement of the Title IV and Title IX claims. 

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Supreme Court Declines to Hear Student Off-Campus Online Speech Cases

As you may recall from our previous posts regarding student's online speech, the summer of 2011 brought with it a split in the Circuit Courts regarding how to handle discipline of student's off-campus online  speech.  Specifically, the cases J.S. v. Blue Mountain Sch. Dist. and Layshock v. Hermitage Sch. Dist. out of the Third Circuit and Kowalski v. Berkeley County Schools out of the Fourth Circuit, all three involving students' online speech, were appealed to the Supreme Court. of the United States.  The two cases from the Third Circuit ruled in favor of the students, finding that their speech was protected by the First Amendment, while the Kowalski v. Berkeley County Schools out of the Fourth Circuit, was decided in favor of the school district.  Our hopes were that the Supreme Court would weigh in on this controversial issue of student's off campus online speech and provide school districts and administrators with clear guidance regarding how to appropriately discipline students' off-campus speech, but unfortunately, the Supreme Court has declined to hear the cases that were brought before it regarding off-campus online speech. So, where does that leave us?

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FCC Issues Children's Internet Protection Act (CIPA) Rule Revisions Adding New Requirements for School Districts' Internet Safety Policies

This month, the FCC released long awaited Children’s Internet Protection Act (CIPA) rule revisions. CIPA is a federal law enacted by Congress to address concerns about access to offensive, obscene or harmful content by minors over the Internet on school and library computers. In early 2001, the FCC issued rules implementing CIPA.  FCC recently released Order 11-125 containing rule revisions and clarifications; the most notable rule revision is the requirement that schools applying for E-rate discounts on anything more than telecommunications (such as telephone services) must adopt and enforce Internet Safety Policies that require the monitoring of the online activities of minors as well as the education of minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyber bullying. The FCC clarified that although a school’s Internet safety policy may include the development and use of educational materials, the policy itself does not have to include such materials. For CIPA purposes, a "minor" means "any individual who has not attained the age of 17 years." The new requirements are for FY 2012, the E-rate funding year beginning July 1, 2012. 

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Judge Blocks Missouri Facebook Law

On August 2 we posted an article about a new law set to go into effect in Missouri prohibiting on-line communications between teachers and students that seemed to have some potentially problematic language in it. Late last week a Missouri judge issued an injunction preventing the new law from going into effect.  Apparently, the law was challenged by the Misouri State Teachers Association, arguing that the law would violate First Amendment protections afforded to teachers who communicate with students over social networking websites.  In the order, the judge noted that the lawsuit had a good likelihood of success, that social networking websites are used extensively by teachers, and the law seemed to over-reach where it interfered with communications between teachers and their own children who happen to be students.  This is not a final ruling in the case, so stay tuned.

Missouri Says No Teacher Student Facebook Friendships

As school districts puzzle over what sort of rules and prohibitions should be included in board policies addressing teachers’ use of social networking sites, one state’s legislature has stepped into the breach. In Senate Bill 54, also known as the Amy Hestir Student Protection Act, Missouri effectively became the first state to ban exclusive communications between teachers and students on nonwork-related websites. 

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Circuit Courts Continue Battle Over Free Speech Rights for Students

School districts in Connecticut looking for guidance on how to handle discipline of students engaging in provocative speech on-line at home have been watching with interest the outcome of two cases in the Third Circuit that seemed to reach conflicting results.  Both cases were re-heard by the Third Circuit Court of Appeals, sitting en banc, which recently ruled in favor of the student in both cases.  So, where does that leave us? 

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Connecticut Expenditure Limitation During a Referendum

With budget season in full swing, readers may wish to re-acquaint themselves with Connecticut law limiting the expenditures of public funds when a referendum is pending. These rules apply to Boards of Education.

To begin with, until a referendum is actually pending, i.e. all the steps necessary to have it placed on the ballot have occurred, there are no restrictions on what can be done. Once the referendum is pending, however, no public funds may be expended either directly or indirectly "advocating" for the referendum. The term “indirectly” has been interpreted to include using district copiers, postage machines and employees (including Superintendents) working on advocacy while "on the clock". The only exception is districts may notify people as to date, time and place of the referendum and the question presented. Importantly, any advocacy materials must be removed from the district website during the pendency of the referendum.

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Bullying Not Just a Problem Among Students Anymore

In an opinion by the Honorable Superior Court Judge Henry S. Cohn, the Connecticut Superior Court dismissed the appeal of a teacher whose name was placed on the child abuse and neglect registry after a Department of Children and Families (“DCF”) hearing officer determined, pursuant to Conn. Gen. Stat. § 17a-101g (b), that the teacher had emotionally neglected a student/child and ordered the teacher’s name to be included on the registry. In applying the standards of the State Uniform Administrative Procedure Act, the Court held that DCF’s finding was supported by the substantial evidence in the record, where the evidence showed that a twelve year old male student of the fifth grade teacher reported that he was embarrassed in front of his peers when the teacher called him names, including “cheeks,” “birthing mother,” and “fish out of water,” to connote that he was overweight. The student also claimed that the teacher restricted him to asking no more than ten questions per day, a restriction he failed to place upon other students. If the student asked more than ten questions per day, the teacher would either give the student a detention, or pinch the student’s cheeks. As a result of the teacher’s conduct, the student reported that he was often embarrassed in front of peers, that his academic work was suffering, and that he had difficulty sleeping at night. The student’s mother called the issue to the attention of school administrators, who responded by suspending the teacher for a period of eight days.

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U.S. Federal Court Gives Constitutional Nod to New Hampshire Patriot Act Authorizing Daily Time for Public School Students to Cite the Pledge of Allegiance

In the most recent of legal challenges to the recitation of our country’s Pledge of Allegiance by public school students, the U. S. Federal Court of Appeals for the First Circuit rendered a decision last month in the case of Freedom From Religion Foundation v. Hanover School District, 09-2473. In this case, the Court upheld as constitutional the New Hampshire Public School Patriot Act that authorizes a period of time each school day for voluntary participation by its public school students in the recitation of the Pledge of Allegiance. This case did not consider the constitutionality of the federal Pledge statute, but was limited to an examination of the constitutionality of New Hampshire’s Patriot’s Act.

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Bullying Case Permitted to Proceed to Trial

In a decision issued in September 2008, a Connecticut Superior Court judge ruled in the case of Dornfried v. Berlin Board of Education, that there is no private right of action under Connecticut's anti-bullying statute.  In Dornfried, a high school student and his parents sued the principal, athletic director, and head football coach, claiming that the administrators and coaches were liable for harm allegedly caused to the plaintiff when he was bullied by other students at school.  The 6th count of the plaintiff's complaint, which alleged that the defendants had failed to comply with Connecticut General Statutes Section 10-222d, was stricken from the complaint on the grounds that the plaintiffs could not bring a claim directly under that statute.  The court noted that not only was there no explicit language in the statute creating a private cause of action, but there was no indication that the legislature implicitly intended to create such a cause of action.  The court ultimately struck all but one count of the complaint for various reasons, leaving only the second count concerning the allegations of reckless disregard on the part of the defendants as to the bullying by other students.

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Connecticut Supreme Court Addresses Whether Mid-Year Increase in Teacher Workload Constitutes Unilateral Change of Condition of Employment

In a decision released by the Connecticut Supreme Court on November 16, 2010, Board of Education of Region 16 v. State Board of Labor Relations et al., Region 16 appealed to the Superior Court challenging a decision by the state board of labor relations (“SBLR”) which concluded that the school district had unilaterally changed a condition of employment in violation of Conn. Gen. Stat. § 10-153e (b) when it increased the workload of four special education teachers during the course of a school year. The SBLR also held that the school district had engaged in unlawful direct dealing with the employees. The Superior Court dismissed the appeal. The school district appealed to the Appellate Court, which, in turn, transferred the appeal to the Supreme Court.

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New Jersey's Division of Civil Rights Finds Probable Cause For a Student Complaint Alleging Hostile School Environment Based Upon Bias-based Peer Harassment

The New Jersey Division of Civil Rights (NJDCR) recently announced a finding of probable cause in the discrimination complaint filed by the parent of a middle school student claiming that her son was subjected to a hostile school environment based upon harassment by his peers for his perceived sexual orientation and religion. What makes this complaint unique is the NJDCR’s admonishment of the Old Bridge Township Board of Education for its perceived failure to take steps to prevent the bullying and for its criticism of the school’s after the fact actions as inadequate where there were no preventative measures or efforts at broader outreach to ameliorate the situation. This is not a case where the school administration failed to act entirely, but one where it acted ineffectively to stop the bullying as evidenced by the victim’s stated decision to stop reporting the incidents to school officials since it did no good but, rather resulted in him being labeled as a snitch and incited more student harassment against him.

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Time Has Come to Implement ISS Law

Beginning on July 1, 2010, schools will be required by law to implement the school suspension law first passed in 2007 creating a presumption for in-school suspension and whose implementation date was twice extended by the Connecticut legislature as recently as October 2009.

With the close of the May 2010 legislative session, the Connecticut legislature once again addressed the in- school law, but unlike in the past, it did not delay the implementation date. Imbedded in SB 438, An Act Concerning Education Reform in Connecticut is the repeal of the most recent permeation of Connecticut’s suspension law and the substitution of a new version of the statute. The new statute reiterates the previous standard that suspensions shall be in-school suspensions unless during a hearing with the student and school administration, the administration determines that the pupil being suspended poses such a danger to person or property or such a disruption of the educational process the pupil must be excluded from school. However, the substituted version of the statute allows school administration to suspend a student out of school if the student’s disciplinary history supports such action and the administration has made efforts through other means besides suspension or expulsion to address the misconduct and those efforts have not been successful.  The statute specifically states that such means may include positive behavioral supports.

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School District's Suspicionless Sweeps of School Parking Lots and Unattended Lockers Using Sniffer Dogs Upheld As Constitutional by Connecticut Superior Court

The Connecticut Superior Court in Burbank v. Canton Bd. Of Education,  2009 WL 3366272 (Conn. Super. 9/14/09)  ruled against parents and students who sought to prohibit the Canton Public School District from continuing its practice of using local police to conduct suspicionless sweeps of parking lots and unattended lockers at its middle and high schools using dogs trained to identify illegal drugs and other contraband. The parents and the students sought a preliminary injunction challenging the practice as unconstitutional. The Burbank court rejected all of the parents’ and students’ challenges and concluded that the dog sniffing sweeps are allowable to maintain the safety of students and staff and does not amount to a fourth amendment search or seizure and that the policy/practice at issue does not intrude in any meaningful way in the core parent and student relationship.

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School Reform Contract Agreed To In New Haven

In a deal that some National Education Leaders are heralding as a model for school reform throughout the nation, the New Haven Public Schools and the New Haven Federation of Teachers have struck a deal that paves the way for dramatic reform in the New Haven Public Schools and narrowing the achievement gap. In addition to providing compensation for improved student achievement, the agreement allows the school district to incorporate student performance into the teachers’ evaluation process and in exchange establishes a form of peer review and support. The School District will also have substantial latitude in “turnaround,” or poor performing schools to restructure work rules to improve student achievement.  

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"Surprising New Legislation Delays the Implementation Date for Connecticut's In School Suspension Law to July 1, 2010"

On October 5, 2009, Governor Rell signed Senate Bill 2053, An Act Implementing the Provisions of the Budget Concerning Education, Authorizing State Grant Commitments for School Building Projects, and Making Changes to the Statutes Concerning Building Projects and Other Education Statutes. Section 56 of this bill addresses CGS 10-233c, Connecticut’s student suspension law. CGS 10-233c was revised two years ago to favor in school suspensions over out of school suspensions for Connecticut students and changes the allowable days for an in school suspension from five to ten days. Pursuant to Senate Bill 2053, the legislature has voted to once again delay the date for implementation of the law; this time to July 1, 2010. 

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Arbitration Panel Awards No Increase for Non-Certified Employees

Demonstrating that at least some arbitrators understand the constraints on municipal employers caused by the recession, a panel of arbitrators chaired by Arbitrator Susan Meredith has declined to award a non-certified bargaining unit in the Town of Sterling any wage increase for the 2009-10 fiscal year. It also awarded a 2.5% increase for 2008-09 and a 1.5% increase for 2010-11.

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Connecticut School Districts Must Implement New Suspension Law for the 2009-2010 School Year

As readers may recall, PA 07-66 created new standards for student suspensions in Connecticut requiring that student suspensions pursuant to 10-233c be in-school suspensions, unless the administration determines that the pupil being suspended poses such a danger to persons or property or such a disruption of the educational process that the pupil should be excluded from school during the period of suspension.

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U.S. Department of Justice Has Released Guidance On Bullying In Schools: Bullying As the Most Underreported Safety Problem and Greatest Problem Affecting Student's Sense of Security

The Department of Justice has just released guidance to help schools examine and respond to the issue of school bullying. In light of Connecticut’s strong anti-bullying laws and its new requirements that schools implement proactive strategies and conduct annual in-service training for certified staff on the topic, administrators are encouraged to view in its entirety the recently released U.S. Department of Justice’s Office of Community Policing Services (COPS) guidance entitled “Bullying in Schools”. See www.cops.usdoj.gov. 

The COPS guide is comprehensive and identifies and defines the problem of bullying in schools focusing on the extent of the problem, examines bullying behavior, incidents of bullying, characteristics of bullies, victims, chronic victims, consequences and also provides guidance to schools on how to assess its local problem, how to learn to ask the right questions, and offers suggestions for proactive strategies and suggestions for measuring the effectiveness of those strategies also citing strategies that are not effective. Administrators’ interest in the COPS guidance should be heightened by the reported conclusions that neither class or school size, or school setting, be it urban or suburban, has influence on the level of bullying, but that a school principal’s involvement helps to determine the level of bullying in a particular school.

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2009 Legislative Session Closes with Seventeen Education Related Bills Passed; New Legislation Requires Boards to Take on More Responsibilities for Student Health, Safety and Environmental Related Issues in Schools

The 2009 Connecticut General Assembly has adjourned leaving in its wake seventeen new legislative acts pertaining to education. The 2009 legislation passed by the General Assembly and signed by the Governor focuses largely on health, safety and environmental related issues among other areas and ranges from an act requiring the use of green cleaning products in the schools to one governing the regulation of the use of asthmatic inhalers and epi-pens in schools by students to another requiring boards to have defibrillators in each of its schools to those of a more mundane nature like the one passed regarding uniform reporting forms for preschool and child care programs. Here is a summary of some of the more interesting bills passed during the 2009 regular session:

*PA 09-131 signed by the Governor June 18, 2009 effective October 1, 2009, requires, rather than allows, boards once every three month, to substitute crisis response drills for the monthly fire drills required in schools under their jurisdiction. The crisis response drill format must be developed in consultation with law enforcement and allow a representative from such agency to supervise and participate in the drill. Boards must also conduct a fire drill no later than 30 days after the first day of the school year and at least once per month thereafter.

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Free Webinar Series on Food Allergies Hosted by USDA

The School Nutrition Foundation (SNF) and United States Department of Agriculture (USDA) are co-hosting a free webinar series beginning April 29, 2009 on management of food allergies in the schools.  More information is available at SNF.  The series continues on May 27 and June 3, with each webinar startiing at 2:30 p.m. EDT and lasting about 75 minutes per session.  Each webinar features a panel of experts in school health and nutrition to talk about the issues, how to develop a school policy, and how to implement the policy.

Of Resource Officers, Recycling, and Random Data Collection

A brief review of pending legislation currently awaiting action in the Connecticut legislature:

SB 6489: An Act Concerning a Plan for School Resource Officers.  This law would be effective 7/1/09, but would require by 1/1/10 the Department of Education, Department of Children and Families, the Judicial Department, and the Connecticut School Resource Officer Association to develop a joint plan for resource officer training including the roles and responsibilities of resource officers, relevant state and federal laws (could take a while), security awareness in the school environment, counseling and conflict resolution, disaster and emergency response, deescalation of student behavior including dealing with students with special education needs, child and adolescent psychology and development, cultural competence, and gender-responsive strategies.  This is not to say that the plan would have to be implemented by January 1, 2010 and all training accomplished by that date, just that the plan would need to be established and reported to the legislature by the Department of Education.  However, for districts looking to read the tea-leaves for the types of training that should be provided to school resource officers, the legislature has made the tea, drained the cup, and left it sitting on the table for you.

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Impact of New Federal FMLA Regulations on School Boards

   Recently the United States Department of Labor promulgated new regulations under the Family Medical Leave Act. School boards should review their policies to assure continued compliance with the FMLA. 

            Noteworthy highlights from the new regulations include:

 

(1)       Military caregiver leave: Expands FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

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Proposed Legislation Would Require Defibrillators in Schools as of July 1, 2009

Legislation winding its way through the General Assembly could mandate that local and regional boards of education employ automatic external defibrillators as soon as July 1, 2009. In fact, S.B. 981 as proposed requires schools to train personnel in defibrillator operation and in the use of cardiopulmonary resuscitation at each school under the board’s jurisdiction. In addition, a defibrillator and trained personnel would be required to be accessible during the school’s normal hours of operations, during school-sponsored athletic practices and athletic events that take place on schools grounds, and during school sponsored events that occur before or after normal operational hours. 

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Coach Led Pre-Game Prayer Violates Establishment Clause

In the case of Borden v. School District of the Township of East Brunswick, the 3rd Circuit Court of Appeals recently ruled that a coach’s participation in a pre-game prayer with his football team violated the establishment clause under the endorsement test. 

The case involved prayer activities that had continued for a number of years. The coach would join his players by bowing his head and taking a knee with the team while they prayed. The coach’s participation was in violation of school policy prohibiting teachers and coaches from engaging in such activity. When the School District sought to force the coach from participating in the activity, he filed an injunctive action claiming violation of his First Amendment rights and that the policy was void as unconstitutionally vague. Ultimately the court ruled for the School District and that the coach was in violation of the Establishment Clause of the First Amendment when he bowed his head and took a knee as the team prayed. 

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Board of Education Immune From Alleged Intentional Infliction Of Emotional Distress By School Principal Pursuant to General Statues § 52-557n(a)(2)

In Crosby v. Woodbridge Board of Education, the Superior Court confirmed that a public employer is immune from liability for intentional tort allegedly committed by an employee pursuant to General Statutes § 52-557n(a)(2) and therefore is entitled to judgment as a matter of law. 

In this case, a parent brought a claim on behalf of a minor student against a board of education that contended that the school principal knowingly tolerated an atmosphere of chaos, disruptiveness and violence against the student, as a result of which he was exposed on a daily basis to so much physical and verbal violence in the classroom and play areas that school became a place of fear and learning could not take place in any meaningful manner. In addition, the plaintiff contended that the principal’s acts and omissions were extreme and outrageous and were carried out with knowledge that the student would suffer, and in fact did suffer, emotional distress as a result. The school principal was not named as a defendant.

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SDE Issues New Guidance for Student Suspensions

Commissioner of Education Mark McQuillan issued new guidance dated October 1, 2008 to all school districts to help implement the new requirements of Connecticut General Statutes Section 10-233c requiring all suspensions to be in-school rather than out-of-school (unless certain requirements are met) as of July 1, 2009.  This guidance was required by the legislation passed last year, and is available on the State Department of Education website.  In his memorandum to school districts, Commissioner McQuillan invites districts to continue to review the guidance document and submit feedback to help create the most useful guidelines possible.  The Department also promises to hold technical assistance seminars and workshops between now and March 2009 to help districts assess their readiness to implement the new law for the 2009-2010 school year.

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Student Blog Insults Not Protected by First Amendment

The United States Court of Appeals for the Second Circuit affirmed the decision of the United States District Court for the District of Connecticut in the case of Doninger v. Niehoff et al., denying a preliminary injunction to a Burlington, Connecticut student that would have allowed the student to run for class office despite being stripped of that privilege by school administrators at Lewis Mills High School.  Her offense? Posting a "vulgar and misleading message about the supposed cancellation of an upcoming school event" on a publicly accessible weblog ("blog"). The student's mother sued the school district in federal district court, claiming that her daughter's First Amendment rights had been violated, and seeking to void the election for Senior Class Secretary and either have a new election ordered or grant her daughter the same rights and privileges as would be accorded to her had she won the election, including speaking as class officer at graduation.  The preliminary injunction was denied by Judge Kravitz, and his decision upheld by the Second Circuit.

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Connecticut Appeals Court Weighs in on FOIA Copying Costs

Have you ever received a complaint that you were unfairly charging a member of the public for copying documents under the Freedom of Information Act (FOIA) because you charged separately for copying each side of a double-sided piece of paper?  The Court of Appeals now says this practice is perfectly legitimate, since the dictionary definition of a "page" means one side of a piece of paper.  In Williams v. Freedom of Information Commission, 108 Conn.App. 471 (2008), the plaintiff complained about being charged separately for copying each side of a double-sided piece of paper, claiming that this practice violated Section 1-212(e) and the definition of a "page".  While acknowledging that depending on the context, the term "page" can sometimes mean one side of a piece of paper and other times refers to a double-sided sheet of paper, the court found that the legislature in the State of Connecticut generally defines a "page" as one side of a piece of paper.  Furthermore, although the general purpose of FOIA is to provide reasonably easy access to public records at a relatively low cost, the legislature has acknowledged that there is a cost to public agencies associated with complying with the Act, and has shifted part of that cost to the person requesting copies of the public records.  To the extent that some people find the cost of copies prohibitively expensive, the Act provides that the usual fee may be waived in some instances.

Existing State Bullying Statute Repealed; New Statute Expands Definition of Bullying and Adds Implementation, Prevention Strategies and Teacher Training Requirements

The passage of PA 08-160 which repeals C.G.S. 10-222d, the state’s existing bullying statute effective July 1, 2008, and adds new requirements and changes the definition of bullying seemingly has gone unnoticed. The lack of attention may be because this Act also addresses controversial changes to in school suspension laws which have garnered much attention. Notwithstanding the lack of notice, PA 08-160 makes significant changes to the existing bullying laws and places new requirements on school districts to implement and revise their bullying policies.

Pursuant to PA 08-160, the definition of “bullying” has been expanded to include “any overt acts by a student or group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school sponsored activity or on a school bus, which acts are committed more than once against any student during the school year.” This definitional change eliminates the requirement that the overt acts be committed repeatedly against the same student over time. Presumably, the previous requirement that the acts be committed against the same student over time, prevented schools under their bullying policies from disciplining a student who engaged in pervasive, generalized bullying, but did not engage in specific bullying of one individual student over time.

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Legislature Postpones Deadline to July 1, 2009 For Implementation of New In-School Suspension Law

With the close of the 2008 legislative session, HB 5826 An Act Concerning School Learning Environment has passed. The bill postpones from July 1, 2008 to July 1, 2009 the effective implementation date for PA 07-66 which generally prohibits out of school suspensions and extends from five to ten days, the maximum length of in-school suspensions. The passage of PA 07-66 raised a number of concerns for school boards and school administrators regarding the pragmatics of implementing the new law. Those concerns included questions over the potential additional costs for implementation, staffing issues and space issues, as well as questions about how under the new law, administrators are to discern what student behaviors are seriously disruptive enough to warrant on out-of-school suspension.

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Berchem, Moses & Devlin Announces the Opening of its Westport Office

Two Historic Law Firms Join Forces to Become Pre-eminent Connecticut Firm

Two of the oldest law firms in Connecticut have joined forces in a move that will create one of the most comprehensive legal services businesses in the state. Berchem, Moses & Devlin, P.C. and Wake, See, Dimes, Bryniczka & Bloom (of Westport, Conn.) have combined their practices, as of March 1, 2008, resulting in a staff of nearly 30 attorneys covering 14 different law specialties. The new firm will operate under the name of Berchem, Moses & Devlin, P.C., and will maintain existing offices at 75 Broad Street in Milford and 27 Imperial Avenue in Westport.

Areas of practice at Berchem, Moses & Devlin include education law, business and commercial law, labor and employment, civil litigation, land use, estate planning, and real estate law. The newly combined firm will have a particular strength in education and municipal law.

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More Legislative Updates: Criminal Charges for Residency Misrepresentation

Today's bills filed in the General Assembly include Raised Bill 5833, a proposed amendment to Connecticut General Statutes Section 53a-119, which would add as a felony criminal charge "obtaining school accommodations by misrepresenting a child's residence".  This would be defined as a parent, guardian or person acting on behalf of such person (or student if over the age of 18), intentionally misrepresenting the town of residence of the child, with the intent to obtain school accommodations from a school district other than the one in which the child resides.

Although other sections of the criminal code relating to theft of public goods have been cited in connection with the arrest of parents in connection with this type of offense, this would make it clear that such conduct is a criminal offense without having to rely on an interpretation of another more general section of the criminal code.  This bill has been referred to the Judiciary Committee.

For other new bills filed, read on...

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Busy Season at the State Legislature

If the last few days are any indication, it promises to be a busy season for the General Assembly, particularly at the Committee on Education.  Multiple bills have been raised in both the Senate and the House pertaining to education of school-age children, and most of these have been referred to the Education committee. While by no means an exhaustive list, here are a few of the more interesting bills submitted to the committee or raised by the committee so far this session: Continue Reading...

Labor Board New Past Practice Exception For School Districts

The Connecticut State Board of Labor Relations recently issued a decision, Region 16 Board of Education, Decision No. 4270 (2007), in which it held that a unilateral change in the workload of Special Education Teachers constituted a prohibited practice. In doing so, the Board created an exception to the general rule that a unit wide fixed practice must be demonstrated in order for a union to establish a unilateral change based upon prior practice. 

Generally, it is an unfair labor practice for an employer to change a term or condition of employment in the face of a unit wide fixed past practice. Accordingly, where there has been a mixed practice, unions have been hard pressed to prove a violation. 

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Sovereign Immunity Doctrine Survives Challenge

In a recent decision issued by the Connecticut Supreme Court, the doctrine of sovereign immunity was held to protect a school district from liability from suit as a result of an injury sustained by a parent picking up a six year old child from an after school program sponsored by the Hartford Board of Education. Durrant v. Board of Educ. of Hartford, 284 Conn. 91 (2007).  Reasoning that the child's attendance at the after-school program was voluntary rather than mandatory, the presence of the parent on school grounds to pick up that child from the program and escort him home was likewise voluntary rather than mandatory.  Therefore, although the parent was injured when she slipped in a puddle of water in a stairwell, the doctrine of soveriegn immunity protected the school district and its agents from liability for the injury.  The court rejected the argument that because the creation of the after-school program was authorized by statute, this indicated an intention on the part of the legislature to abrogate the doctrine of sovereign immunity and allow school districts to be held liable for these types of injuries.  The court also noted that the mere fact that the school district maintained insurance coverage for personal injury claims was not an indication that sovereign immunity should be abrogated, since school districts are expected to maintain insurance coverage for other reasons.  Will decisions like this discourage insurance carriers from raising premiums on coverage for school districts in Connecticut this year?

Changes to Connecticut Law on Suspension and Expulsion

In its Regular Session, the Legislature made several changes to the laws regarding suspension and expulsion of students in Connecticut schools.  Some of these changes went into effect on July 1, 2007, while others will not go into effect until July 1, 2008.  Knowing which is which is important, since these changes will impact the type of disciplinary action that may be taken in the case of a disciplinary infraction during the 2007-2008 school year. Continue Reading...

Have You Amended Your Expulsion Hearing Notice Form Yet?

Public Act 07-3, Section 49, passed during the June Special Session of the Legislature, now requires that the notice of an expulsion hearing include information about free and reduced cost legal services available locally and how to access these services.  This requirement took effect on July 1, 2007.  If you are still using last year's expulsion hearing notice form, make sure to update your notice form to include this newly required information.

Effective now: New Options for Suspensions and Expulsions for First Time Offenders, and New Requirements for Formal Expulsion Notices; Administrators To Face New Rules For Suspensions For The 2008-2009 School Year

With seemingly little notice or fan-fare, the General Assembly modified a number of education statutes regarding student discipline including the statute providing for the out of school suspension of students.  PA 07-66, effective July 1, 2008, generally prohibits out-of-school suspensions, and extends from five to 10 days, the maximum length of in-school suspensions. Current law defines suspension as exclusion from school privileges, or from transportation services only, for up to 10 consecutive school days. Under former law, in school suspensions were limited to five school days in length. While extending the time period for in school suspensions from five (5) days to ten (10) school days, the new law essentially requires suspensions to be in-school suspension unless the school administration determines through an informal suspension hearing that (a) the student poses such a danger to person or property, or (b) is so disruptive of the education process, that he or she must receive an out of school suspension. Under former law and according to most board polices, administrators have the discretion to suspend a student, in or out of school, for behavior that either violates a board policy, poses a danger to self or others or is seriously disruptive of the educational process. To suspend a student for off campus misconduct a student’s behavior must both violate a board policy and be disruptive of the educational process.  Unfortunately, the new law fails to define what student behavior “poses such a danger to person or property” or “is so disruptive of the educational process” that it warrants an out of school suspension and leaves administrators with little guidance on how to determine whether a student’s behavior has risen to a level of severity warranting an out of school suspension. PA 07-66, effective July 1, 2008.

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Connecticut General Assembly Adopts Legislation Requiring Background Checks and Drug Testing of School Bus Drivers

In at least partial response to an incident in which a pedestrian was struck and killed by a school bus driver who had cocaine in his system, a law has been passed which now requires background checks and random drug testing of school bus drivers. While bus drivers employed by school districts are already subject to background checks, the law imposes a similar requirement on bus drivers employed by outside bus services. 

 

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High Court Rules in Favor of School District and Principal in "BONG HiTS 4 JESUS" Case

The principal of the Juneau-Douglas High School allowed students and staff, during school hours, to leave class and observe as the Olympic Torch Relay passed through Juneau. Joseph Frederick, a senior at the high school, came to school late that day but joined the spectators across the street from the school to watch the relay.  He, along with others, unfurled a fourteen foot banner which said “BONG HiTS 4 JESUS”. When the principal approached him and asked him to take down the banner, he refused to do so. He was suspended for 10 (later reduced to 8) days. The school based this discipline on its determination that Frederick’s speech, in the midst of a school sponsored activity, was reasonably interpreted as advocating illegal drug use. Frederick appealed this decision and sought damages against the principal, claiming his words were just “nonsensical” and not intended to be drug related in any way.

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Department of Motor Vehicles to Hold Public Hearing on Petition for Declaratory Ruling Regarding Student Transportation Issues

There has been some confusion lately as to whether state statutes concerning appropriate license endorsements for school buses also apply to the drivers of passenger cars used to transport school students to extracurricular activities. So much confusion, that the State of Connecticut Department of Motor Vehicles (DMV) recently received a Petition for Declaratory Ruling seeking clarification on this subject from the DMV. 

Due to the level of interest in this matter, and the number of persons and organizations that could be affected by a Declaratory Ruling, the DMV has scheduled a public hearing to take place on Wednesday, August 15, 2007 at 10:00 a.m. at the Rowland State Government Center, 55 West Main Street, Waterbury, Connecticut.   

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