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.


Others more articulate than I have offered much-needed words of support and encouragement for the families of the victims, and so much work is being done on the issue of strengthening school safety, the debate over the proper role of gun control, and the need for adequate mental health services. 

In this space, let me offer a few words on finding support and empathy for the educators involved.  So many of you have generously reached out to Newtown, directly and indirectly, to offer your support to try to ease their burden in the weeks and months ahead.  As you might with the friends and families of the victims lost in the tragedy, please don’t stop offering your support to the board members, educators, and administrators in Newtown.  Please remember that on the morning of December 14, 2012, when they went to work, none of them knew what the day had in store for them.  Nothing prepared them to handle the impossible situation in which they found themselves.  How do you prepare yourself to support teachers who have just had to carry out the school safety plan they all practiced and yet hoped they would never use?  What do you say to the teacher who just lost her entire class, the teacher who thought that she and her students were all going to die?  What do you say to the little children, not yet old enough to cross the street without holding your hand, who lost their friends and teachers?  How do you encourage a first year teacher whose career has started with this kind of trauma to go back into the classroom?  How do you support the surviving siblings dealing with the grief and loss of little brothers and sisters?  How do you prepare for the fact that mere days later, you are expected to open up a new school, prepare a new classroom, welcome your students back and try to make them feel safe?  How do you prepare to meet with 20 sets of parents whose children went to school one day filled with joy and excitement for the holiday season, and then never returned?  This has been an unspeakable horror for everyone touched by it.  There are no plans, no scripts, no protocols, and nothing that really helps heal the pain and grief left in the wake of an event like this.  Maybe, if you know some of them personally, when you first called to offer your support, the person on the other end of the line didn’t know how to ask for your help.  Keep offering.  Maybe there is some part of the burden you can shoulder for them.  Offer a shoulder to cry on.  Never forget.  We are all Newtown.

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".

The revised definition of bullying states "(A) the repeated use by one or more students of a written, oral or electronic communication, such as cyberbullying, directed at or referring to another student attending school in the same school district, or (B) a physical act or gesture by one or more students repeatedly directed at another student attending school in the same school district, that (i) causes physical or emotional harm to such student or damage to such student's property, (ii) places such student in reasonable fear of harm to himself or herself, or of damage to his or her property, (iii) creates a hostile environment at school for such student, (iv) infringes on the rights of such student at school, or (v) substantially disrupts the education process or the orderly operation of a school."

Beyond this, bullying includes, but is not limited to "a written, oral or electronic communication or physical act or gesture based on any actual or perceived differentiating characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression, socioeconomic status, academic status, physical appearance, or mental, physical, developmental or sensory disability, or by association with an individual or group who has or is perceived to have one or more of such characteristics".

School employees who witness acts of bullying or receive reports of bullying, under the new "safe school climate plan" must orally notify the safe school climate specialist not later than one school day after the incident or report, and must file a written report no more than 2 school days afterwards.

School employees required to comply with these reporting requirements include teachers, substitute teachers, school administrators, superintendents, guidance counselors, psychologists, social workers, nurses, physicians, paraprofessionals, coaches, or independent contractors who regularly work with schoolchildren.

After the investigation into the alleged act of bullying is complete, if the act of bullying is verified, notification must be provided to the parents of the alleged victim and the alleged bully within 48 hours of the completion of the investigation, and an invitation to a meeting to discuss the incident must be issued to each set of parents.

If the act of bullying constitutes "criminal conduct", the new safe school climate plan must require that the principal or designee notify the local law enforcement agency of the alleged conduct.

If the Department of Education is able ("within available appropriations") to develop a model safe school climate plan for districts to use, it will do so, and along with instruments designed to collect school climate assessments, will be distributed these items to districts through the Connecticut Association of Schools.  The Department may also establish ("within available appropriations") a state-wide safe school climate resource network to help districts identify, prevent and educate people regarding school bullying in the state.

This is not, by any means, a comprehensive listing of all of the provisions in the new statute.  We urge you to read the Public Act, stay tuned for additional information, start thinking about the publications and notifications you may need to revise in your own district before the fall student/parent handbooks come out, and consult with your school attorney for advice!

OCR: No Special Education Notation on School Transcripts

OCR's guidance letter issued October 17, 2008 In Re: Report Cards and Transcripts for Students with Disabilities, 108 LRP 60114 (OCR 2008) clarifies that references to special education services received by a student are acceptable on report cards intended for parent use in measuring student progress, but not acceptable on transcripts that may be disclosed to employers and post-secondary institutions.

The letter from OCR notes that local education agencies (LEA's) frequently make distinctions on report cards between general education classes, Advanced Placement, honors, and remedial levels, and special education classes may be similarly noted on report cards.  For example, OCR uses the case of a modified 10th grade literature curriculum noted by using an asterisk or other symbol meant to reference the modified curriculum "as long as the statements on the report card, including the asterisks, symbols or other coding, provide an explanation of the student's progress that is as informative and effective as the explanation provided for students without disabilities".

Special notations, such as asterisks or symbols, are also permissible on report cards for students with disabilities receiving accommodations under Section 504 not affecting course content or curriculum, such as sign language interpreters, alternative materials, or extra time on tests.  Further, in response to the question as to whether a report card for a student with a disability may simply refer to another document that more fully describes the student's progress, OCR responded "yes".

On the other hand, a transcript of student grades may not inform the reader that the student has a disability, has been enrolled in a special education program, or has received special education and related services.  Why? "A student's transcript generally is intended to inform postsecondary institutions or prospective employers of a student's academic credentials and achievements.  Information that a student has a disability, or has received special education or related services due to having a disability, does not constitute information about the student's academic credentials and achievements."

However, it is still permissible, according to OCR, for the transcript of a student with a disability to indicate, through notations or asterisks or other symbols, that the student took classes with a modified curriculum or alternate education curriculum.  This is consistent with the ability of the transcript to reflect other levels of classes, such as Advanced Placement, honors, basic, and remedial instruction. 

The transcript may not contain notations that a general education student received accommodations in general education under Section 504 such as use of Braille materials, because such a notation is irrelevant to the question of whether the student mastered the curriculum of the class and would only be for the purpose of identifying the student as a student with a visual impairment.

The transcript may indicate that the student received a certificate of attendance or other similar document, if such a notation does not disclose whether the student has a disability.

Much Ado About Nothing

The Supreme Court ruling in the Forest Grove School District v. T.A. case was released this week.  Maybe it's just me, but I don't see this ruling as changing much of anything in the world of special education disputes, at least as far as Connecticut is concerned.  Essentially, the Supreme Court ruled that 20 U.S.C. 1415(i)(2)(C)(iii) continues to allow courts to award reimbursement of tuition in unilateral placement cases if they determine that the school district failed to provide FAPE, even if the student has not previously received special education services from the school district.  The Supreme Court seemed offended that the school district could evaluate a child, find the child not eligible for services, fail to provide services, and then benefit from that failure by having the courts deny reimbursement for the parent's unilateral private school placement.  Is this really a surprise to anyone?

Yes, those of us who represent school districts had hoped that the Supreme Court might rule in favor of the district, recognizing the public policy concerns that we have about parents who fail to notify the district or request evaluations prior to making a private placement, but those facts were just not presented in this case.  The parents in the Forest Grove case did request evaluations, the school district evaluated the student and found him not eligible and did not provide an IEP.  The arguments from the school district that the public policies of IDEA require a collaborative relationship between school and parents, and development of an appropriate IEP requires constant adjustment to changing circumstances are real, but they are undercut when the district is determined to have erred in failing to find the student eligible for services in the first place.

So how does life change after Forest Grove? In Connecticut, I would argue, not at all.  I am not aware of a single Connecticut hearing officer who has ever denied reimbursement for a unilateral private placement by a parent in a case where the district either failed to evaluate when it should have, or evaluated and erroneously found the child not eligible.  The Supreme Court decision seems consistent with that line of decisions.  The bigger question, it seems to me, is whether the courts and hearing officers will treat differently (as I believe they should) the case where the parents do not refer the child for special education evaluation until AFTER the child is placed and, according to IDEA, the "child find" responsibilities belong to the district where the school is located, rather than the district of residence.

Of Resource Officers, Recycling, and Random Data Collection

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

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

SB 6665: An Act Concerning the Inclusion of Students on Local and Regional Boards of Education.  Oddly enough, the heading on this bill on the CGA website says that it has something to do with giving students the opportunity to comment and give feedback on bullying occurring in schools.  The language of the bill itself, however, states that at least 2 students from public high schools located in the district shall serve on the board of education as nonvoting members, with the number of students from each high school to be determined by the board and selected through election or some other method prescribed by the board.  Although many school boards do have student advisory members sitting with them in some capacity, it appears that this bill would expand that function and require it for all school boards in the state.

SB 940: An Act Concerning the Reporting of Truancy Data.  This bill would add once again to the reporting requirements of Connecticut General Statutes section 10-220, and require all school districts in the state to report on data related to truancy as a component of "school performance".  Measures of truancy would include data collected by the Department of Education regarding attendance and unexcused absences in compliance with federal reporting requirements.  The bill also states that such data would be considered a public record for purposes of chapter 14, which indicates a clear intention to make this data available to the public for purposes of gauging local school performance and demanding accountability.  School systems should be reminded of the need for clear definitions of "excused absence" and "unexcused absence" which are generally established locally, so that data reported in compliance with this requirement will be clear, in the event that the bill passes.

SB 947: An Act Concerning High School Credit for Approved Online Coursework.  This bill would amend Connecticut General Statutes section 10-221a and allow local and regional boards of education to adopt policies awarding high school credit for online coursework completed in accordance with the policy.  The policy would need to ensure, minimally, that the workload for the course is equivalent to that of a conventional classroom course, that the content is rigorous and aligned with curriculum guidelines approved by the State Board of Education, that the course engages students and has interactive components, and that the class is taught either by certified teachers (in Connecticut or another state) who have received training in teaching in an online environment, or that the course is offered by an institution of higher education accredited by the Department of Higher Education "or regionally accredited".  Assuming that school boards start to look at establishing policies permitting the granting of credit for coursework completed online as a result of this legislation, we suggest consideration of how many credits the board believes may be completed in this manner, versus the number required to be completed on campus at the student's assigned high school, and under what circumstances the school system will consider awarding credit for classes completed in this manner.  For example, may any student apply for credit for work completed online or will in be limited in some way, such as to students required to be homebound for some period of time as a result of injury, illness, or expulsion?  Will there be an application and approval process to be completed in advance, and who will bear the cost associated with taking the class (including the cost of books or other materials)?

RB 1011: An Act Concerning Recycling Programs in Schools.  Would require each school district to develop a recycling plan at each school under the board's jurisdiction, including recycling receptacles, signage, requirements for appropriate disposal of materials by students and staff, training of custodial staff, and removal by a licensed hauler.  If the district can sell its recyclables on the open market, it can use the funds generated for student activities.

SB 6497: An Act Concerning Educational Stability for Children in Foster Care.  This bill probably deserves its own entry, but for now, I will just say that it would permit children in the care and custody of DCF to remain in attendance at the school the child attended prior to the change in placement (elsewhere known as the "school of origin") in the event that DCF places the child in a new foster home, and the child will be considered a "resident" of the school district where the school is located during that time.  However, in the event that this provision is used to maintain the child in the school of origin, DCF must pay for transportation from the new foster home back to the school of origin.  There is a statutory presumption that it is in the best interests of the child to remain in the school of origin unless a "party" objects, in which case the court makes the decision and the child remains in the school of origin during the pendency of the dispute.  If the child requires special education, the school of origin must continue to provide and fund those services, subject to the state agency placement reimbursement grant beyond the per pupil expenditure for the prior fiscal year.