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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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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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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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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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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8th Circuit Says Disciplining Student for Off-Campus Online Speech Containing True Threats Does Not Violate Student's Free Speech Rights

Here we go again. Only a few days after the 4th Circuit issued its decision Kowalski v. Berkley County Sch., the 8th Circuit has now become the latest court to recently weigh in on the issue of whether a school district’s discipline of off-campus online speech violates a student’s free speech rights under the First Amendment. As discussed in our recent post on July 28, 2011, there has been much activity in the Circuit Courts in the past few months regarding disciplining of students for their off-campus online speech. So, what did the 8th Circuit have to say on the issue?

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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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New Anti-Bullying Statute Goes Into Effect Today

If you haven't already, be sure to get a copy of Substitute Bill 1138, Public Act 11-232, effective July 1, 2011, which makes sweeping changes to the State's anti-bullying statute applicable to public school districts.  The new law adds specific prohibitions against cyber-bullying, redefines "bullying" for purposes of the statute, and requires school districts to replace their 2009 school bullying "policy" with a "safe school climate plan" (to be approved by the school board and submitted to the Department of Education by January 1, 2012).  The safe school climate plan must include (beginning July 1, 2012) the appointment of a district "safe school climate coordinator" to oversee a "safe school climate specialist" at each school, who shall (beginning July 1, 2012) be the school principal or the principal's designee.  Also beginning July 1, 2012, each school principal must set up a safe school climate committee which shall include at least one parent or guardian of a student enrolled in the school.  The committee is responsible for reviewing completed bullying investigation reports and identifying and addressing patterns of bullying in the school, reviewing and amending school policies relating to bullying, making recommendations on school climate issues, and collaborating with the school climate coordinator regarding the collection of bullying data.  The parent representative should participate in all of this, except the first two items "or any other activity that may compromise the confidentiality of a student".

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Second Circuit: First Amendment Law Protecting Student Speech is Confusing

The next chapter in the continuing saga of Doninger v. Niehoff, et al. was decided and issued by the United States Court of Appeals for the Second Circuit on April 25, 2011.  You may recall reading about this case in 2008, when the Second Circuit upheld the decision of District Court Judge Mark Kravtiz denying the plaintiff student's motion for a preliminary injunction.  At that point, the student, Avery Doninger, was attempting to force the defendant school district to allow her to run for class office, even though she was being disciplined for her off-campus blog speech as conduct unbecoming a potential class officer. 

Following that decision, the defendant school officials moved for, and were granted, summary judgment on a variety of claims brought by the plaintiff student including a claim that they violated her First Amendment rights.  The case was certified to the Second Circuit on an interlocutory appeal to allow the plaintiff to appeal the dismissal of claims against the defendant school officials on grounds of qualified immunity.  The finding of the Second Circuit?  Essentially, First Amendment law is so confusing that even we judges have trouble sorting it out, and school officials should not be held personally liable under these circumstances when, arguably, a reasonable jury could find that they got it wrong.

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Medication Administration Regulations Amended

This fall, Connecticut  revised the regulations implementing those provisions of Section 10-212a of the General Statutes concerning administration of medications in school by school personnel. The revised regulations require school districts to develop and implement policies and procedures dictating which school personnel authorized by the statutes will have actual authority in the district to administer medication to students, including so-called "cartridge injectors" to students with severe allergic conditions, and any procedures needed before, during, and after administration of medication. Policies need to be developed in conjunction with the school nursing supervisor and school medical advisor, and will need to be revisited at least once every two years.

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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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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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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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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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When Is a Step-Parent a Parent for Purposes of Disclosing Educational Records?

An April 15, 2009 letter from the Family Policy Compliance Office (FPCO) addresses a complaint filed by a parent indicating that the school improperly disclosed the student's private educational information to a step-parent and grandparent during a meeting at school.  If the child's father has parental rights and permitted the disclosure to the step-mother and grandmother, FERPA does not prohibit the disclosure, despite the objection of the biological mother.  Furthermore, the term "parent" includes "an individual acting as a parent in the absence of a parent or a guardian".  The US DOE has determined that a parent is "absent" if he or she is not present in the day-to-day home environment of the child.  Therefore, if the step-parent is present in the home of the child on a day-to-day basis and the mother is not present, the step-parent would be considered a "parent" for purposes of FERPA and, according to the FPCO letter, disclosures of educational records to the step-parent would be permissible.

"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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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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Strip Search by School Officials Was Unconstitutional

Last week, the Supreme Court decided Safford Unified School District #1 et. al. v. Redding, the “strip-search” case. The Supreme Court followed the precedent it created in New Jersey v. T.L.O., which set forth the reasonable suspicion standard for school searches, ultimately holding that the strip-search of the student in this case was unreasonable and violated the Fourth Amendment. Under T.L.O.’s reasonable suspicion standard, a school search “will be permissible . . . when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” 

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Free Cyberbullying Curriculum Available from NSBA

A free curriculum is available from the National School Boards Association (NSBA) to address cyberbullying issues at NSBA.  NSBA partnered with a group called CyberSmart to produce this curriculum (reported to be "research-based" for those concerned about those things), and it is described on the NSBA website as addressing all of the major issues: 

 In developing these lessons, CyberSmart! adopted an integrated approach, examining all current research findings and using best practices from the fields of cyber security, school violence prevention, and character education to impact behavioral change. Together, these materials offer schools the opportunity to begin a dialogue with students and build a sustained cyberbullying prevention campaign to continually remind the school community about safe, ethical online use.

If anyone uses or has used the curriculum, please post comments here and/or provide feedback to NSBA - they are promising to make adjustments if there are any problems based on feedback from users.

Sad Reminder of Why We Have Anti-Bullying Laws

Parents sue Ohio school over bullied son's suicide

Associated Press; Fri Apr 3, 11:48 am ET  

 

MENTOR, Ohio – An Ohio couple has filed a lawsuit saying school officials failed to stop bullying that they claim led to their 17-year-old son's suicide.

 

The suit was filed in federal court last week, almost two years to the day when Eric Mohat shot himself in the head. Parents William and Janis Mohat say their son was taunted and harassed by classmates at Mentor High School for months before his death on March 27, 2007.

 

Their lawsuit accuses the school district about 25 miles northeast of Cleveland of violating the high school junior's civil right to safety.

 

The teen's father says they would drop the suit if the school system adopted tougher regulations on bullying.

 

Without commenting on the litigation, school officials say the district takes bullying seriously.

 

Yahoo News

 

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U.S. Department of Education Issues Revised FAQ on Section 504

On March 27, 2009, the United States Department of Education issued a revised version of its document entitled Frequently Asked Questions About Section 504 and the Education of Children with Disabilities, updating it to include new information about the implications of the Americans with Disabilities Act Amendments (ADAA) effective January 1, 2009.  In addition to the commentary included in the FAQ document, the Office for Civil Rights (OCR) states that it is currently evaluating the impact of the ADAA on its enforcement responsibilities, including whether any changes to regulations are appropriate.

Changes to the FAQ document include Question 21, regarding whether districts may consider mitigating measures in determining whether the student has a disability under Section 504.  Consistent with the ADAA, the answer now states that school districts are not permitted to consider mitigating measures that the student is using in determining whether the student has a disability, except for ordinary eyeglasses or contact lenses.

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SDOE Issues Memo on School Bullying Requirements

A long-awaited memorandum from the State Department of Education describes in bullet-points the Department's interpretation of the recent changes to the anti-bullying legislation found in Title 10 of the Connecticut General Statutes, and also adds a further gloss in the form of "best practices" for school districts to follow to improve school climate.  Among the tips provided by SDOE -

  • Although no disciplinary action should be taken on the basis of an anonymous report of bullying, schools should consider these reason to investigate.
  • Parents should be invited to at least one meeting, invitations for which should be in writing and maintained on file at the school. Meetings with parents of alleged victims and parents of alleged perpetrators should be held separately.  Notification of consequences must comply with FERPA.
  • Lists of verified acts of bullying will be collected by SDOE at some unidentified point in the future.
  • Investigation of bullying allegations may need to include the Title IX Coordinator to ensure that potential class harassment issues are identified and managed.
  • Revised bullying policies that were supposed to be submitted to SDOE as of February 1, 2009 need to be published in student/parent handbooks by July 1, 2009.
  • Districts need to implement some form of positive behavioral interventions and supports or evidence-based model for improving safe school climate or preventing bullying.
  • Although the statute requires surveys to determine the prevalence of bullying, SDOE prefers surveys that will determine school site safety, parent and staff perceptions, and assess the quality of the school climate.
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Key Revisions to FERPA Regulations

Final revisions to the FERPA regulations were published December 9, 2008 in the Federal Register.  Key changes include the following:

  • "Attendance" at a school for purposes of protection under FERPA includes attendance in person or by correspondence or electronic means for purposes of students not able to be physically present in the classroom;
  • A definition of "biometric record" has been added for purposes of "directory information" that may be disclosed upon prior notification to parents and students - this would include fingerprints, voiceprints, DNA sequence, retinal and facial characteristics and handwriting;
  • "Directory information" has been restricted so that it may not include a student's social security number or student ID number, except as specifically provided;
  • Directory information may include a student ID number if the student ID number cannot be used to gain access to educational records without the use of another access identifier such as a password or other factor known only by the user;
  • "Disclosure" of an educational record does not include disclosure to the party that provided or created the record;
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ADA Amendments Will Require Changes to 504 Forms and Procedures

Since Congress has explicitly rejected the Supreme Court's decisions in Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturer v. Williams, some school districts may need to remove references to these cases from training materials and guidance for staff on defining "substantial limitation" and "major life activities".

In addition, a new list of major life activities explicitly contained in the statute now includes eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating.  Although many districts have stretched the definition of "learning" to include impairments to "focus" and "concentration" associated with various health impairments including Attention Deficit Hyperactivity Disorder (ADHD), the inclusion of "concentration" as a major life activity makes this stretch unnecessary and expands the likelihood that students with ADHD and other focus-impairing conditions will qualify as disabled under Section 504.  Districts may wish to provide training for staff about ways in which the ability of a student to concentrate may be compared to the average student in the general population, such as through use of checklists and behavior rating scales.

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Cross-Examination of Witnesses Not Required at Expulsion Hearing

The United States District Court for the District of Connecticut, Judge Eginton, has ruled in the case of E.K. v. Stamford Board of Education, 3:07cv00800 (WWE) that the due process rights of a student expelled for leaving threatening racist messages on the voice mail of a female student (among other offenses) were not violated when the student was deprived of the ability to cross-examine the female student who made the accusation, in the expulsion hearing.  Adopting the reasoning of other federal courts, the court stated that due process does not afford high school students the right to confront and cross-examine student accusers at expulsion hearings, in part because the administrative investigation provides a safeguard against error, and cross-examination of student accusers is duplicative of the investigative efforts of school personnel. In addition, "the presence of corroborating evidence diminishes the potential value of cross-examination at the expulsion hearing."  Balancing the student's right to due process against the school's interest in conducting an efficient disciplinary hearing, the court concluded that any provision disallowing the use of hearsay statements and requiring confrontation of student accusers would be overly burdensome to schools due to the increased challenge of maintaining order and discipline. 

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FPCO Clarifies Scope and Requirements of FERPA

The Family Policy Compliance Office (FPCO) issued a letter to a parent seeking access to records that clarifies the scope and requirements of the Family Educational Rights and Privacy Act (FERPA), noting that the school is not generally required by FERPA to provide a parent with access to school calendars or general notices such as announcements of parent-teacher meetings or extracurricular activities. Such general notices are not educational records pertaining to the individual student and are not subject to the FERPA access requirements.  In addition, a school is not required to create documents in response to a FERPA request, and is not required to provide a parent with periodic updates regarding student records.  Rather than submitting a "standing request", parents seeking access to educational records under FERPA should submit a specific request for records. Unless a specific state law applies (such as Connecticut's regulation allowing parents of special education students to have one free copy of a child's special education records), FERPA requires that the district provide access to the parent to examine the records within 45 days of receipt of the request. Letter to Anonymous, 107 LRP 64188 (FPCO, 9/28/07).

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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Legislative Update: Recruiting and Bullying Policies

Proposed legislation introduced in today's session of the General Assembly includes Raised Bill 5868, An Act Concerning Recruiting at High Schools, and Raised Bill 649, An Act Concerning School Learning Environment

RB 5868 would require all boards of education to adopt a written policy on or before January 1, 2009 regulating recruitment by the armed forces, prospective employers, colleges and other post-secondary institutions in high schools.  The policy proposed by this statute would prohibit the recruitment of any student under 15 years of age unless parental consent has been provided, would require the recruiter to obtain permission from the school principal before conducting recruiting, would require interview appointments to be set up through the guidance office, and would limit recruitment activities to designated areas of the school.  The required policies would also require parental notification that participation in recruitment activities is voluntary, and would require districts to release directory information about students to recruiters unless parents have opted out (with a required process for notification and opt-out as well).  Consistent with the Patriot Act, recruiters from the armed forces would have equal access to students as compared to other types of recruiters at high schools.

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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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Legislative Update: Use of Asthma Inhalers

Raised Bill 5702, referred to the Committee on Public Health in this session of the General Assembly, would allow a "respiratory care practitioner" to issue a written certification to a local or regional board of education providing that a child diagnosed with asthma be permitted to possess an asthmatic inhaler at all times while attending school.

This legislation would also add a check-box to the standard health assessment form completed by parents and physicians prior to school enrollment which would indicate whether such a certification has been issued allowing the child to carry an asthma inhaler in school. The bill would make similar changes to other portions of the statutes permitting self-administration of an asthma inhaler by a student who has been given the appropriate certification.

Would this legislation result in any changes in policy in your Connecticut school district? Tell us by posting a comment (see link at right).

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...

NCLB Testing Requirements May Trump IDEA

In a recent decision, the 7th Circuit Court of Appeals (Illinois) has upheld the dismissal of a school district's lawsuit challenging certain provisions of the No Child Left Behind Act (NCLB) on the grounds that since NCLB was enacted after the Individuals with Disabilities Education Act (IDEA), the later-enacted NCLB provisions would trump any conflicting requirements in the IDEA.  Some parents and school districts have challenged the NCLB provisions requiring certain forms of standardized testing to be administered to all students, including those with disabilities, and limiting the forms of accommodations and modifications that may be made and the number of students who can be exempt from the testing, on the grounds that those provisions violate the "individualization" requirements of the IDEA.  The IDEA generally requires those accommodations and modifications necessary to permit a student to receive a free appropriate public education to be incorporated into a disabled student's IEP and implemented in all applicable situations, including testing.  However, in Board of Education of Ottawa Township v. Spellings, the court decided that even if these provisions are conflicting, Congress enacted NCLB more recently than IDEA and therefore must be assumed to have overridden the individualization requirements of IDEA with the accountability provisions of NCLB. Continue Reading...

Bullying Resources at State Department of Education

Do you know Dr. JoAnn Freiberg?  If you are looking for resources to help you deal with issues related to bullying and improving school climate, and you haven't already tried calling her, that might be a good place to start.  Dr. Freiberg presented to the Education Law Committee of the Connecticut Bar Association last night, and talked about ways that she tries to help parents and schools address such issues. Continue Reading...

Home Schooling - Balancing Parent Rights and Accountability

How far can you go to hold parents accountable when they decide to home-school a child rather than sending the child to public or private school?  School districts have a duty under Connecticut General Statutes section 10-220 to "cause" children between the ages of 5 and 18 living in the district to attend school, and section 10-184 provides that parents "cause" their children to attend public school unless the parent or person having control of such child is able to show that the child is elsewhere receiving equivalent instruction in the studies taught in the public schools.  If a school district is aware of a child living in the district who is not attending public school and not "elsewhere receiving equivalent instruction", the district must refer the child to the appropriate state authorities for truancy.  While home schooling is not explicitly mentioned in the state statute, it is assumed that parents have the right to provide their children with instruction in the home, and that sending the child to school is not the only way to fulfill this obligation.

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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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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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Redacting Student Names

Federal District Court Case Further Clouds Issue of When Student Names May Be Redacted from Disclosed Documents

In a world where few disputes of this nature find their way into federal district court, every published decision on the issue of what constitutes an “educational record” for purposes of the Family Educational Rights and Privacy Act (FERPA, sometimes known as the “Buckley Amendment”) receives a great deal of scrutiny from those in the field of education. In Wallace v. Cranbrook Educational Community, 106 LRP 57872, 2006 WL 2796135 (E.D. Mich. 2006), the Eastern District of Michigan issued an opinion that would appear to cloud even further the issue of when student names may legitimately be redacted from documents disclosed to outside third parties in order to protect student confidentiality under FERPA.

The plaintiff, Delvren Wallace, was an employee of the defendant Cranbrook Educational Community, serving in the capacity of a maintenance/equipment mover, when he was discharged for alleged improper sexual behavior toward students. The termination was justified in part by student statements which were redacted to remove the names and other personally identifiable information from the statements. 

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