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

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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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.

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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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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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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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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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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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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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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).

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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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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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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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In previous blog entries, we have covered the December order issued by the Connecticut Medical Examining Board (CMEB) against Dr. Charles Ray Jones.  On January 18, 2008, Dr. Jones filed an appeal of the CMEB order, claiming that the order was in error and specifically claiming bias on the part of one of the CMEB members who participated in the decision.  Papers filed by Dr. Jones and his attorneys claim that following the hearing decision, his attorney was approached by a member of the audience claiming to have knowledge of the bias of one of the doctors sitting on the panel.  This alleged bias is the subject of a series of affidavits filed by family members in State Superior Court claiming to have sought treatment for chronic Lyme Disease with this physician, who allegedly made a series of derogatory statements about the existence of chronic Lyme as a recognized condition and indicated that the treatment of such a non-existent condition would be fraudulent.

Although no final decision on the appeal has yet been issued, on February 19, 2008, the court issued a temporary partial stay of the CMEB order.  According to the February court order, the civil penalty in the amount of $10,000 has been paid into escrow and will remain there until the appeal is resolved, and the 2-year probationary period has been stayed.  However, the provision of the CMEB order requiring monitoring of Dr. Jones' practice by an independent pediatrician remains in effect, with some modifications.

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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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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).

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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...

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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...

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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...

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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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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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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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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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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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