Connecticut Education Law Blog

Connecticut Education Law Blog

Executive Order Aimed At “Sanctuary Jurisdictions” Meets Resistance Across Connecticut; Student and Family Privacy are Important Considerations

Posted in Executive Orders

On January 25, 2017, recently elected President Donald Trump issued an Executive Order entitled “Enhancing Public Safety in the Interior of the United States.”  The stated purpose of the Order is to direct executive departments and agencies to employ “all lawful means” to enforce the immigration laws of the United States.  Among other things, the Order bolsters federal resources and provides avenues for increased state and local cooperation in immigration enforcement efforts.  Particular provisions targeting “sanctuary jurisdictions,” however, are being assailed as unconstitutional by state leaders including Govern Dannel Malloy, Attorney General George Jepsen, Senator Richard Blumenthal, and the mayors of more than a half-dozen municipalities from across the state.

There is no concrete legal definition of a “sanctuary” jurisdiction.  Generally speaking, however, a sanctuary jurisdiction may be characterized as a locale with a de jure (by law) or de facto (in fact) policy of limited cooperation with federal immigration enforcement.  These policies may, for example, prohibit or limit the expenditure of state or municipal funds for the enforcement of federal immigration laws.  Public employees, such as school administrators or law enforcement officers, may also be directed not to inquire about immigration status in the normal course of business.  Aside from these or similar policies, however, sanctuary jurisdictions do not traditionally afford residents any additional rights or privileges.

Several municipalities in Connecticut have declared themselves “sanctuary cities” in the past ten years, including Hartford, New Haven, Middletown, Windham, and Manchester.  The trend toward “sanctuary” status has also made its way to the state’s General Assembly.  In January 2017, Proposed Bill No. 6709, entitled “An Act Establishing Connecticut as a ‘Sanctuary State’ for Immigrants,” was presented to the state legislature. This bill, if passed, would amend the Connecticut General Statutes so as to prohibit law enforcement officers from inquiring about citizenship during their interactions with the public.  Various organizations, such as the Center for Immigration Studies, already describe Connecticut as a “sanctuary state,” though this title carries no legal ramifications.

Section Nine of the Order emphasizes state and local compliance with 8 U.S.C. § 1373, which covers certain communications between government agencies and the Immigration and Naturalization Services (absorbed into the Department of Homeland Security in 2003).  8 U.S.C. § 1373 states in part that, notwithstanding any state or local law, a state or local government may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the [Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.  Under the Order, a jurisdiction that refuses to comply with 8 U.S.C. §1373 may be designated a “sanctuary jurisdiction.”

Importantly, Section Nine authorizes the Secretary of the Department of Homeland Security to designate, “in his discretion and to the extent consistent with law,” a jurisdiction as a sanctuary jurisdiction.  The Attorney General is also authorized to take “appropriate enforcement action” against any entity that violates 8 U.S.C. § 1373, or which has in effect a statute, policy, or practice that “prevents or hinders the enforcement of federal law.”  Sanctuary jurisdictions may, for example, lose federal funding except as deemed necessary for law enforcement purposes.

Opponents of the executive action have already raised several concerns regarding the language and implementation of the Order.  Regarding the former, opponents argue that the definitions of “sanctuary jurisdiction” is ambiguous, since the Secretary has discretion to determine whether a locale is in compliance with 8 U.S.C. §1373 or otherwise preventing or hindering the enforcement of federal law.  Regarding the latter, opponents argue that the Order undermines federalism and essentially conscripts state and local governments into enforcing immigration laws, a responsibility historically delegated to the federal government.  Finally, opponents of the Order argue that the policies of sanctuary cities do not actually hinder the enforcement of immigration laws, and thus the federal government cannot reasonably deny federal funding on the basis of such policies.

In the context of public school education, opposition to the Order is based on the distinction between policies prohibiting school communications with the Department of Homeland Security, which would violate 8 U.S.C. §1373, and policies that simply direct administrators not to ask students or their families about their immigration status.  The Supreme Court case of Plyler v. Doe (1982) established that undocumented K-12 students are entitled to the same education as their citizen or legal resident peers.  In that case, the Court held that denying a public education to students based on their undocumented status violated the Fourteenth Amendment Equal Protection Clause.  The Court rejected, among other arguments, the assertion that protecting a state from an influx of illegal immigrants provides a “substantial justification” for denying students a public education on the basis of their undocumented status.  As such, existing case law holds that immigration status cannot be a basis for denying a public school education.

In May 2011, The Departments of Justice and Education further clarified that school districts generally should not inquire about a student’s immigrant status, because doing so may have a “chilling effect” on enrollment that would violate equal protection.  Since immigration status, unlike actual residency within a district, cannot be used as a factor in school enrollment, opponents of the Order argue that there is no need for administrators to inquire about students’ immigration statuses or that of their families in order to comply with 8 U.S.C. §1373.

Opponents of the Order in Connecticut and elsewhere have vowed to fight its implementation by any means necessary, including litigation.  In the meantime, the risk of reduced federal funding for “sanctuary jurisdictions” is significant, and the impact of the Order on the privacy rights of students and their families remains uncertain.

Attorneys at Berchem, Moses & Devlin, P.C. are available to consult to school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@bmdlaw.com.

U.S. Department of Education’s Office of Civil Rights Issues Guidance to Districts Regarding Restraint and Seclusion of Students with Disabilities

Posted in Americans with Disabilities Act

In late December of 2016, the Department of Education’s Office for Civil Rights (OCR) issued information to school districts regarding how the use of restraint and seclusion may result in discrimination against qualified students with disabilities in violation of Federal laws that prohibit disability discrimination, including Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II).  The guidance sets forth OCR’s interpretation of these laws and regulations.  For more information about the Department’s best practices, please see the Department’s Restraint and Seclusion: Resource Document (May 15, 2012).  The Resource Document recommended that school districts never use physical restraint or seclusion for disciplinary purposes; never use mechanical restraint; and that trained school officials use physical restraint or seclusion only if a child’s behavior poses imminent danger of serious physical harm to self or others.

What is the concern?

According to the Department’s Civil Rights Data Collection (CRDC), during the 2013-14 school year students with disabilities were subjected to mechanical and physical restraint and seclusion at rates that far exceeded their non-disabled peers.  The existence of this disparity raises a question as to whether school districts are imposing restraint or seclusion in discriminatory ways. In addition, OCR continues to observe legal violations in investigations of schools’ use of restraint and/or seclusion for students with disabilities.

What is restraint? 

In general, OCR uses the following definitions for mechanical restraint and physical restraint. Mechanical restraint refers to the use of any device or equipment to restrict a student’s freedom of movement. The term does not include devices implemented by trained school personnel, or utilized by a student that has been prescribed by an appropriate medical or related services professional and are used for the specific and approved purposes for which such devices were designed, such as:

  • Adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports;
  • Vehicle safety restraints when used as intended during the transport of a student in a moving vehicle;
  • Restraints for medical immobilization; or
  • Orthopedically prescribed devices that permit a student to participate in activities without risk of harm.

Physical restraint refers to a personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely. The term physical restraint does not include a physical escort. Physical escort means a temporary touching or holding of the hand, wrist, arm, shoulder or back for the purpose of inducing a student who is acting out to walk to a safe location.

What is seclusion? 

In general, OCR defines seclusion as the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving.  It involves the monitored separation of the student in a non-locked setting and is implemented for the purpose of calming; it does not include a timeout, which is a behavior management technique that is part of an approved program.

What does Federal law require school districts to do for students with disabilities? 

Section 504 requires that students with disabilities receive a free appropriate public education (FAPE).  The Section 504 regulation defines FAPE as the provision of regular or special education and related aids and services that are designed to meet the individual needs of students with disabilities as adequately as the needs of students without disabilities are met.  A student’s behavioral challenges, such as those that lead to an emergency situation in which a school believes restraint or seclusion is a justified response, could be a sign that the student actually has a disability and needs special education or related aids and services in order to receive FAPE.

Can the use of restraint or seclusion deny a student’s receipt of Section 504 FAPE Services? 

Yes. There are multiple ways in which the use of restraint or seclusion might deny FAPE which are outlined in The Business Case for Preventing and Reducing Restraint and Seclusion Use which was prepared for the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration.  For example, the use of restraint or seclusion may have a traumatic impact on that student such that even if she were never again restrained or secluded, she might nevertheless have new academic or behavioral difficulties that, if not addressed promptly, could constitute a denial of FAPE.   See National Center for Trauma-Informed Care and Alternatives to Seclusion and Restraint last updated October 26, 2015.  Furthermore, the repeated use of restraint or seclusion in school could deny a student’s receipt of FAPE in another way.  Consider a student with a disability who engages in behavior in response to which the school secludes him for extended periods and on multiple occasions. While secluded, the student does not receive educational instruction or services. Cumulatively, the school’s repeated use of seclusion with that student could result in the school’s failure to comply with the Section 504 team’s decision about the regular or special education, related aids and services, or supplemental services and modifications that the student needs, or the appropriate setting in which to receive those services and therefore may constitute a denial of FAPE as outlined in the 2016 Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities.

Does the parent or guardian of a student with a disability have a right to discuss the impact of restraint or seclusion on their child’s access to FAPE? 

Yes. Section 504 requires that school districts establish and implement a system of procedural safeguards for parents or guardians to appeal district actions regarding the identification, evaluation, or educational placement of students with disabilities who need or are believed to need special education or related services. The school district must tell parents and guardians about this system, notify them of any evaluation or placement actions, allow them to examine their child’s records, afford them an impartial hearing with opportunity for parent or guardian participation and representation by counsel, and provide them a review procedure according to the 2016 U.S. Department of Education Office for Civil Rights Fact Sheet: Restraint and Seclusion of Students with Disabilities.

The education team at Berchem, Moses & Devlin, P.C. offers representation to school district clients across the State of Connecticut.  Visit http://www.bmdlaw.com, or email us at mlaubin@bmdlaw.com.

New IDEA Regulations Seek to Address Disproportionality on the Basis of Race and Ethnicity in Students with Disabilities

Posted in Individuals with Disabilities Education Act (IDEA)

The United States Department of Education announced a new final regulation under Part B of the Individuals with Disabilities Education Act (“IDEA”).   The final regulations establish one standard States must use in determining (and seeking to eradicate) significant disproportionality based on race or ethnicity within its districts. The goal of the Department of Education in creating these new standards is to obtain consistent and accurate data across each of the states.

One of the highlights of the new regulations the Department of Education’s focus on disparities in the discipline of students with disabilities on the basis of race or ethnicity. Specifically, the regulations clarify that States must address significant disproportionality in three areas:

  • Incidence of discipline;
  • Duration;
  • and type of disciplinary actions, including suspensions and expulsions.

Accordingly, the final regulations clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found.

As part of requiring uniform reporting requirements, districts will be required to identify and address the factors contributing to significant disproportionality as part of comprehensive, coordinated early intervening services. In addition, new flexibilities will further help districts identified with large disparities in addressing the underlying causes of the disparity in order to root out the causes of disproportionality.

Districts should begin to prepare for these changes in practice by examining their own policies as well as speaking with an attorney about modifying existing policies as well as training staff in the reporting requirements.

Circuit Split Over FAPE Standard Poised for Resolution

Posted in Individuals with Disabilities Education Act (IDEA)

Starting on January 11, the Supreme Court will hear oral arguments for Endrew F. v. Douglas County School District, an appeal from the Tenth Circuit in which the Court is tasked with determining whether school districts must provide students with disabilities an “educational benefit” that is “more than de minimis” in order to satisfy the requirement of a free appropriate public education (FAPE) pursuant to the Individuals with Disabilities Education Act (IDEA).  In doing so, the Supreme Court may resolve an ongoing split among the United States Courts of Appeals, which vary significantly with respect to the standard applied when assessing whether FAPE has been provided to a student with special education needs.

Endrew F. involves a fifth-grade student with Autism, Attention Deficit Hyperactive Disorder (ADHD), and significant behavioral issues.  The student attended public elementary school with an Individualized Educational Program (IEP) in place through the fourth grade.  The parents rejected the school district’s proposed IEP for the fifth grade, opting instead for unilateral placement at a private school for children with Autism.  The parents alleged that the district failed to provide adequate progress reports and failed to develop and implement an appropriate plan to address the student’s behavioral needs.  The administrative law judge (ALJ) ruled in favor of the school district, and both appeals courts affirmed.

In affirming the lower court decision, the Tenth Circuit examined whether the student was offered FAPE by applying the “some educational benefit” standard previously adopted in that Circuit, defined there as something more than a “de minimis” educational benefit.  While the student’s proposed fifth grade IEP had not yet been implemented, the Tenth Circuit cited the student’s educational progress based on his prior IEPs as evidence that the fifth grade IEP was reasonably designed to afford “some” educational benefit.  The proposed IEP addressed all of the student’s disabilities and behavioral concerns, and was thus sufficient to provide a FAPE.

The “some educational benefit” standard adopted by the Tenth Circuit is also used, in some form, by a majority of the other circuit courts of appeals.  The Second, Third and Sixth Courts of Appeals, however, have adopted the more stringent “meaningful educational benefit” standard.  This standard, based on other language in Rowley, requires school districts to develop IEPs designed to afford an educational benefit which is measured for appropriateness in relation to the child’s potential.  While there is considerable dispute regarding the true difference between the competing standards, it is generally accepted that the higher “meaningful” benefit standard requires something beyond a “more than de minimis” educational benefit.

The Second Circuit has maintained the “meaningful educational benefit” standard since its 1998 ruling in Walczak v. Florida Union Free Sch. Dist.  In that case, the parents of a special education student with significant academic, behavioral, and social limitations sought reimbursement by the school district for unilateral placement at a private residential program, which they alleged was necessary for the student to make appropriate progress in the aforementioned areas.  While the Second Circuit acknowledged that an appropriate education is one that is “likely to produce progress,” as opposed to only “trivial advancement,” it ultimately denied the parents’ request for reimbursement.  The student had made consistent, albeit slow, academic, behavioral and social progress at her prior day placement within the district.  The mere fact that residential placement offered more opportunities for social interactions was not enough to render continued day placement inadequate for a FAPE.  Indeed, while the Second Circuit adopted the higher FAPE standard, it echoed the Supreme Court’s sentiment in Rowley that the IDEA does not require states to develop IEPs that “maximize the potential of handicapped children.”

Shortly after the appeal of Endrew F. to the Supreme Court, the Solicitor General, on behalf of the Obama administration, submitted an amicus curiae brief advocating for the higher “meaningful educational benefit” standard.  The Solicitor General submitted that Congress would not have instructed states to develop IEPs requiring measurable annual progress if all that was truly required was a “non-trivial” benefit.  Finally, the Solicitor General highlighted the Rowley court’s emphasis on “meaningful” (versus non-trivial) access to education, and the overall remedial purpose of the IDEA in advocating for the higher FAPE standard.  While we in the Second Circuit have been accustomed to the “meaningful educational benefit” standard, it remains to be seen how the Supreme Court will interpret its prior decision in the Rowley case, and whether the uniform standard for FAPE under IDEA will be “some” educational benefit, “meaningful” educational benefit, or a third possibility not yet articulated.  For practitioners in this field, further articulation of the Rowley standard can only be helpful and provide clarity to complex decision-making.

Attorneys at Berchem, Moses & Devlin, P.C. are available to consult to school districts regarding special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@bmdlaw.com.

Changes to Student Discipline Laws Usher in New School Board Duties to Expelled Students

Posted in Regular Education

In 2016, the Connecticut General Assembly passed Public Act 16-147, which ushered in a series of changes regarding public school student discipline and expulsions.  Among its many notable provisions, the new law created changes to a Board of Education’s duty to offer an alternative educational opportunity to expelled students.

At present, Connecticut law provides that school districts must offer expelled students an alternative educational program in certain circumstances – namely, if the student is under the age of sixteen, or for some students between the ages of sixteen and eighteen if certain conditions are met.  (See Connecticut General Statute sec. 10-233d, subd. (d).)  Despite this mandate, the existing statute does not define what constitutes an alternative educational opportunity.  In the absence of clear guidance, school officials have often looked to Connecticut regulations governing homebound instruction in order to develop an appropriate alternative educational opportunity.

Public Act 16-147 will amend General Statute 10-233d, and consequently, will change prior practices by offering clearer guidance to schools regarding the provision of an alternative educational opportunity to expelled students.   Under the new law, which will go into effect on August 15, 2017, students under the age of sixteen and, in most circumstances, students between the ages of sixteen and eighteen who are expelled for the first time must be offered an alternative educational opportunity.

Alternative Educational Opportunity Re-defined

The new law indicates that an alternative educational opportunity must be “equivalent to alternative education, as defined by [Connecticut General Statute] section 10-74j, with an individualized learning plan.”

General Statute section 10-74j provides that an alternative education is a school or program maintained and operated by a local or regional board of education, which must also comply with the Connecticut General Statutes 10-15 and 10-16, as well as federal and state laws governing public schools.  General Statutes 10-15 and 10-16 require that schools must provide a minimum of 180 school days per year and a minimum of 900 hours of school work for full-day kindergarten students and grades one through twelve.  In practice, this may require schools to offer alternative educational opportunities constituting a full-school year of five-hour school days for eligible expelled students.  In addition, the new law will require that an alternative educational opportunity must include the provision of an individualized learning plan.  Unfortunately, the term “individualized learning plan” is not defined.

Implications for the Future

In light of the above-described changes, school officials will have increased responsibilities when providing expelled students with alternative educational opportunities.  These changes will likely require Boards of Education to significantly increase the amount of resources, in terms of both staff time and financial allotments, needed to provide compliant alternative educational programs.

Nonetheless, substantial uncertainly remains regarding the exact duties the new law will create.  At present, interested stakeholders are awaiting updated guidelines from the State Board of Education, which should shed light on critical questions such as “what constitutes an individualized learning plan?”  While awaiting additional guidance, however, school officials should prepare for the substantial changes to come.  Education Law Attorneys at Berchem, Moses & Devlin, P.C. will monitor the status of this statute and provide analysis of any new guidance when it is available.

The education team at Berchem, Moses & Devlin, P.C. offers representation and guidance to school district clients across the State of Connecticut.  For inquiries regarding Public Act 16-147 and more, visit http://www.bmdlaw.com, or email us at mlaubin@bmdlaw.com.

The United States Supreme Court Grants Certiorari in 4th Circuit Transgender Student Case

Posted in Student Matters, Transgender issues

On Friday, October 28, 2016, the United States Supreme Court announced that it will hear an appeal from a ruling by the 4th Circuit in the controversial case of G.G. v. Gloucester County School Board, 116 LRP 15374 (4th Cir. 04/19/16).  In Gloucester, a transgender male high school student sought a preliminary injunction to allow his use of a school’s restroom consistent with his male gender identity (G.G. v. Gloucester County Sch. Bd., No. 4:15-cv-54 (E.D. Va. June 29, 2015). The  student alleges that his local Virginia school district denied him equal treatment and subjected him to discrimination based on sex in violation of the Title IX by passing a board policy that prohibited his continued use of the boys’ restroom for not being “biologically male.”  The highest court will consider only two issues on appeal: 1) whether deference should extend to an unpublished letter by the U.S. Department of Education, Office of Civil Rights (OCR) , which does not carry the weight of law and was adopted in the context of the dispute at hand, indicating that Title IX applies to gender identity, and 2) with or without deference to the agency, should the Department’s specific interpretation of Title IX be given effect.

In  G.G. v. Gloucester County Sch. Bd., No. 4:15-cv-54 (E.D. Va. June 29, 2015), a three-member panel of the District Court found that the student failed to state a claim under Title IX and also denied the preliminary injunction. The District Court did not agree that transgender students must be treated in accordance with their gender identity. The United States Department of Justice supported the student’s preliminary injunction arguing that discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity with sex stereotypes constitutes discrimination based on sex.

On April 19, 2016, the U.S. Court of Appeals for the 4th Circuit reversed and remanded the lower court’s ruling in the Gloucester case. The 4th Circuit concluded  that the District Court erred in two ways: 1) applying the wrong standard for preliminary injunctions; and 2) by failing to give deference to the Department of Education’s interpretation of its own Title IX regulations as set out in OCR’s Letter to Prince. In May 2016, the 4th Circuit stayed the ruling in response to an emergency petition filed by the school board. Until the United State Supreme Court’s decision, the school board’s policy requiring bathroom use by biological sex remains in effect.

Legal challenges similar to the one at the heart of Gloucester case are occurring nationwide.  These challenges are being brought by states, civil rights advocacy groups, concerned parents and school districts that either support or oppose the use of public facilities such as school bathroom and locker rooms by transgender students based upon their gender identity.  The death of Justice Antonin Scalia in early 2016 created a vacancy on the United States Supreme Court that has yet to be filled. An appointment of a Justice to the Court is expected sometime after the November 2016 Presidential election, but depending upon the outcome of the election, the vacancy may not be filled until 2017. Upon appointment of a Justice, it is expected that the Court will hear and decide the Gloucester case with a decision predicted for either late spring or early summer. Stay tuned as the Supreme Court’s ruling promises to have far reaching implications for transgender individuals, school districts, and our nation.

CCEJF v. Rell: Where Do We Stand?

Posted in Constitutional Issues

On September 7, 2016, Superior Court Judge Thomas Moukawsher issued a 255-page Memorandum of Decision in Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, a case that has been pending for more than 10 years. The decision held that the State provides a constitutionally acceptable amount of funding for education, but the distribution of the funding is irrational and contributes to disparate outcomes for rich and poor districts in Connecticut.

The Court ordered the State to submit proposed reforms within 180 days on:

  • The relationship between the state and local government in education;
  • An educational aid formula;
  • A definition of elementary and secondary education;
  • Standards for hiring, firing, evaluating, and paying education professionals; and
  • Funding, identification, and educational services standards for special education.

Each reflects an area in which the Court held the State’s educational policies were unconstitutional because they were not “rationally, substantially, and verifiably” linked to teaching children and thus did not pass muster under the State Constitution. Judge Moukawsher’s decision effectively orders an overhaul to Connecticut’s education system affecting matters from labor relations with teachers to what it means to earn a “credit” toward graduation.

The State has appealed the ruling to the Connecticut Supreme Court, which has agreed to hear the case. The State contends that the standard that educational policies must be “rationally, substantially, and verifiably” linked to teaching children is “entirely made up and has the effect of giving the judiciary broad control over educational policy.” The State also contends that it cannot present the plans ordered by the Court because only the legislature has the authority to address such issues and no executive-branch entity has the authority to speak for the legislature.

The Connecticut Supreme Court agreed to the State’s request for a stay of Judge Moukawsher’s order pending the appeal. This means that the 180-day requirement for proposed reforms is held in abeyance until the Connecticut Supreme Court decides the case. Based on the briefing schedule, a decision should not be expected until late 2017 at the earliest.

Since the issues presented in this litigation addressed disparities allegedly created at the State level, local and regional boards of education are not compelled to take any action as a result of this ruling. Even if the order ultimately goes into effect, the State (most likely through the legislature) will need to act before any impact is felt at the local level. This does not mean that the General Assembly cannot take action sooner to address the issues identified by Judge Moukawsher. Likewise, even if the Connecticut Supreme Court sides with the State and finds the State’s educational policy constitutional, Judge Moukawsher’s scathing indictment of how the General Assembly addresses educational policy (particularly as it relates to allocation of funding) may lead to legislative soul-searching and a particular interest in addressing the issues identified in the decision.

Right now, boards of education should wait and see what happens with this appeal. The decision has potentially monumental implications for the future of education in Connecticut. It is clear that change is coming, but the form that change will take remains unclear.

ESSA Amendments Effective October 1, 2016 Change School’s Obligations to Homeless Students

Posted in Every Student Succeeds Act (ESSA)

The McKinney-Vento Act governs the way states and local education agencies (LEAs) are required under federal law to support their homeless student populations. The McKinney-Vento Act requires schools to have policies and practices in place that encourage the immediate enrollment of homeless students, remove barriers to enrollment, including transportation, ensure the full participation of homeless students in school, support school stability and require care to ensure that homeless students are not stigmatized. Following the last reauthorization of McKinney-Vento in 2001, the U.S. Department of Education issued non-regulatory informal guidance that schools have been following since to help interpret their obligations under McKinney-Vento. The Every Student Succeeds Act (ESSA) amendments effective as of October 1, 2016 not only codify the informal guidance that schools have been following, but also change in several significant ways how schools must support homeless students, including modifying the definitions of homeless students and youth, and the definition of school or origin, expanding duties for McKinney-Vento Homeless liaisons and clarifying privacy obligations to homeless students to name some.

While ESSA leaves most of the McKinney-Vento Act definitions intact, it removes “students awaiting foster care” from the definition of “homeless child or youth” effective December 10, 2016, and creates new rights for such children and youth under Title I, Part A. Many of these rights fall within the state Title I Plan provisions. LEAs receiving Title I funds must have LEA Title I plans that contain assurances that it will collaborate with state or local child welfare agencies regarding the provision of transportation to and from the school of origin, if in the student’s best interest. It is contemplated that transportation is to be paid from local welfare agency funds unless an LEA agrees otherwise. LEAs must designate a foster care point of contact, and that individual may be the McKinney-Vento liaison, assuming the person can fulfill the demands of both roles. Additionally, ESSA added a requirement that SEAs and LEAs report annually on the academic achievement and graduation rates for children in foster care as a separate subgroup to show how foster youth are performing relative to their peers.

Most notably under the ESSA Amendments, the term “school of origin” has been redefined and expanded to now include preschools and “the designated receiving school at the next grade level for all feeder schools”. Unfortunately, preschool is not defined under the ESSA Amendment.[1]

Further, the amendments require a presumption that it is in a student’s best interest to remain in the school of origin, add professional development requirements for homeless liaisons which will likely be interpreted to require some annual training, expand upon immediate enrollment requirements, add credit accrual and college readiness requirements and add a requirement that state coordinators monitor LEA’s to ensure compliance with McKinney-Vento. Additionally, the amendments clarify that information about a homeless student’s living arrangement is FERPA protected and their address and living situation is not directory information.

For further information about how ESSA impacts the rights of children in your school district who are experiencing homelessness, please consult our office with specific questions. Additional information can also be found at naehcy.org.

[1]The definition of preschool program for federal data collection purposes is a helpful reference. Examples of preschool programs for federal data collection purposes includes head start programs receiving funding from an LEA or for which the LEA is a grant recipient, preschool programs operated or administered by an LEA, preschool special education services, operated or funded by the LEA or mandated under the IDEA; preschool programs and services administered or funded by the LEA through use of Title I or similar grants or home-based early childhood educational services funded and administered by an LEA. National Center for Homeless Education (2015). Guide to Reporting Federal Data.

New Title II Regulations Set To Take Effect in October: How They May Impact You

Posted in Americans with Disabilities Act

On October 11, 2016, less than a week away, a final rule amending the regulations for Title II of the Americans with Disabilities Act (ADA) will take effect.  The new regulations will provide guidance to local government entities, including school districts, regarding the interpretation and application of the ADA Amendments Act of 2008 (ADAAA).  Important for educators, the regulations will help school districts determine their responsibilities to students with disabilities under Section 504 of the Rehabilitation Act of 1973 (Section 504) due to Section 504’s reliance on the ADA’s regulations.

ADA Amendments Act of 2008

In response to two major Supreme Court decisions narrowing the definition of what constituted a disability under the ADA, Congress took action and passed the ADAAA in 2008.  The ADAAA clarified Congress’ intent and interpretation of what constitutes a disability for the purposes of protection under the ADA.  Of importance for school districts nationwide, the ADA’s definitions and regulatory structure are relied upon for determining a student’s eligibility for, and the scope of, services or accommodations required under Section 504.  Though the ADAAA took effect in 2009 and educators may already be familiar with its provisions, these regulations will provide helpful guidance for school officials in both special and regular education matters.

Changes to the Title II Regulations

The main objective of the new regulations is to help clarify the purpose of the ADAAA – largely, to establish that the term “disability” is to be defined broadly.  Congress’ intent was to shift the legal focus away from battling over whether an individual has a disability, and instead focus attention on determining whether qualified entities, such as school districts, have satisfied their duty to avoid disability discrimination.  To this end some highlights of the new regulations include:

  • An expansion of the definition of “major life activities,” including the addition of “writing,” “learning,” “reading,” “concentrating,” and “thinking” as a major life activities;
  • Guidance that the term “substantially limits”  must be construed broadly and in favor of coverage under the ADA;
  • The addition of Attention-Deficit/Hyperactivity Disorder (ADHD) as an example of a physical or mental impairment;
  • A prohibition against considering the ameliorative effects of mitigating measures (i.e. hearing aids, medication, or assistive technology) other than ordinary eyeglasses or corrective lenses when determining whether an individual has a disability for purposes of the ADA;
  • Recognition that episodic impairments (i.e. occasional epileptic seizures) or impairments in remission can still be a disability under the ADA if they substantially limit a major life activity when active; and
  • Guidance that only individuals who have a disability or individuals with a record of a disability are entitled to reasonable modifications under the ADA.  Individuals who are “regarded as” having a disability, while not entitled to reasonable modifications, may not be discriminated against.

If you have any questions about the new Title II regulations, the education team at Berchem, Moses & Devlin, P.C. can help.  For inquiries regarding the ADA, Section 504 compliance and more, visit http://www.bmdlaw.com, or email us at mlaubin@bmdlaw.com.

OCR Publications Clarify District Obligations to Student with ADHD under Section 504

Posted in Regular Education, Special Education

School is back in session once again, and districts are confronting the perennial challenge of educating students with a multitude of physical, cognitive and behavioral limitations. Among these conditions, Attention Deficit Hyperactivity Disorder (ADHD) stands out in both its ubiquity and its potential to thrust parents and school districts into conflict over appropriate educational programming. In fact, the United States Department of Education’s Office for Civil Rights (OCR) has received over 2,000 complaints involving allegations of discrimination against students with ADHD in the past five years alone. The staggering number of complaints is testimony to both the elusive nature of ADHD and the difficulties school districts are experiencing in identifying, evaluating, and providing appropriate programming to students with the disorder. Absent clarification of the rights of students with ADHD and the responsibilities of the school districts that serve them, the surge in complaints and litigation is unlikely to subside in the foreseeable future.

Fortunately, school districts are beginning the new school year armed with guidance for meeting their obligations to students with ADHD under federal law. Over the summer, the OCR published a Dear Colleague letter highlighting the recurring problems school districts are facing with respect to ADHD and emphasizing the need for school districts to tailor their responses in compliance with Section 504 of the Rehabilitation Act of 1973. The letter was accompanied by a comprehensive Resource Guide outlining the applicable federal law, providing step-by-step instructions for compliance with substantive obligations, and reminding school districts of their duty to notify families of their rights and procedural protections. These publications can aid school districts in revising their policies and procedures in accordance with federal law, which will likely result in better programming for students with ADHD and a reduction in complaints and litigation.

The OCR publications detail the bases for many of the complaints by families of students with ADHD. These allegations include the failure of school districts to identify and properly evaluate students with ADHD, to provide appropriate regular or special education and related services, to educate teachers and staff regarding students’ needs, and to notify families of their procedural and substantive rights under Section 504.

School districts are reminded of their “Child Find” obligation to identify and locate students suspected of having “disabilities” under Section 504. A student has a “disability” if she has a physical or mental impairment that substantially limits one or more major life activities, and is also protected from discrimination if the student has a record of such an impairment, or is regarded as having such an impairment. The OCR emphasizes some examples of major life activities that could be substantially limited by ADHD, including concentrating, reading, thinking, and functions of the central nervous system/brain. Once a student is identified as possibly having a disability, school districts are obligated under Section 504 to conduct an evaluation at no costs to the student’s family. The evaluation must be conducted by appropriate personnel, without undue delay, and without regard to the effects of “mitigating measures” such as medication. Importantly, OCR states its own presumption that a student diagnosed with ADHD is substantially limited in one or more major life activities, and thus qualifies as a student with a disability under Section 504 unless proven otherwise. Overall, the definition of “disability” is to be construed broadly, and the determination of whether a student has a disability should not demand extensive analysis.

A student with a disability under Section 504 is entitled to a free appropriate public education (FAPE) comprised of regular or special education and related and/or supplementary services, modifications, and accommodations. FAPE must be individually tailored to a student’s particular needs, and provided without inappropriate consideration of administrative and financial burdens. With respect to ADHD, OCR cautions against the “blanket” provision of boilerplate services to any student diagnosed with the disorder. Instead, a “Section 504 plan” should be developed and implemented by a team of administrators and staff knowledgeable of the student’s particular needs. For example, a student with ADHD-predominantly inattentive type may supports such as prompting and redirection, while a student with ADHD-predominantly hyperactive/impulsive type may require a smaller classroom setting and reduced auditory or visual stimulation. The Section 504 plan should be disseminated to all of the student’s teachers in order to ensure uniform and consistent implementation.

Finally, school districts are obligated to notify families of their rights and procedural safeguards under Section 504. If a parent believes her child has a disability, she has the right to request an evaluation at district expense. If the school district refuses to conduct an evaluation, an explanation must be provided, and the parent must be able to challenge the district’s decision. Similarly, a parent must be able to challenge the determination that a student does not qualify as having a disability under Section 504. Finally, if a parent disagrees with the programming implemented for her child, she must be able to challenge the adequacy of the programming before a neutral hearing officer.

The OCR Dear Colleague letter and Resource Guide should be embraced by all school districts as the new school year begins. The existing confusion surrounding ADHD and the obligations of school districts under federal law indisputably drains educational resources and has resulted in a plethora of complaints and litigation. School districts are encouraged to heed the instructions and suggestions detailed in the OCR publications, and to revise their policies and procedures related to students with disabilities accordingly. In doing so, school districts will not only preserve scarce resources and avoid costly litigation, but more importantly, they will ensure that students with disabilities such as ADHD are being provided appropriate programming and afforded an equal opportunity to receive a quality education.

The education team at Berchem, Moses & Devlin, P.C. offers representation and guidance to school district clients across the State of Connecticut. For inquiries regarding Section 504 compliance and more, visit http://www.bmdlaw.com, or email us at mlaubin@bmdlaw.com.

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