The Individuals with Disabilities Education Act (IDEA) is a landmark federal statute that protects the rights of children with disabilities to receive a free and appropriate public education. One of the keys to ensuring that a public school district provides an appropriate education is the proper evaluation of the impact of the child’s disability on his/her education. The IDEA requires schools to conduct a range of comprehensive and periodic evaluations for each child who has been identified as having a disability. However, parents don’t always agree with the results of evaluations that a school may conduct. When this happens, the IDEA allows parents, under certain circumstances, to request that the school pay for an “independent educational evaluation” (an “IEE”) with a properly qualified expert not employed by the district.

The parents in this case disagreed with one specific evaluation conducted by the Trumbull Public School District and then requested public funding of seven IEEs. The parents took the position that once any evaluation of their child occurred, the school district, upon request by the parents, was required to pay for any IEE requested regardless of the scope of the original evaluation. If the parents had been successful in their argument, school districts could have been exposed to requests for IEEs which would have required a district to fund all-encompassing, wide-ranging and perhaps unnecessary IEE’s at public expense.

Judge Jeffrey Alker Meyer of the United States District Court, writing one of the only (if not the only) opinions on this issue nationwide agreed with the Trumbull Public School District (Trumbull Board of Education). He determined that a parents’ disagreement with a limited assessment does not entitle the parent to ask that the school district pay for a wide-ranging, all-encompassing IEE. The Court also found that a parent who seeks the benefit of a publicly funded IEE must affirmatively disagree with the school district’s evaluation within two years of the date of that evaluation.

The matter is currently on appeal to the United States Court of Appeals for the Second Circuit.

The IDEA currently requires a parent to “exhaust administrative remedies” before filing a complaint based on another statute, if the parent seeks relief that is available under the IDEA.  In other words, a parent must file an IDEA due process complaint before filing a disability discrimination complaint in federal court under Section 504 or Title II, if the parent seeks relief which can be provided through due process.  In 2017, the U.S. Supreme Court issued its decision in Fry v. Napoleon Comm. Schs., clarifying when the substance of a complaint does or does not require such exhaustion.  Earlier this month, just over two years after the Supreme Court’s decision, the federal district court issued another decision in the Fry saga.

In Fry, the parents of a student with cerebral palsy and an IEP filed Section 504 and Title II disability discrimination claims in federal district court after the board of education denied their request for the use of a service animal in school. The lower courts held that the parents were first required to exhaust the IDEA administrative process because the violations they claimed were broadly “educational in nature.”  In February 2017, however, the Supreme Court reversed those decisions and ruled in favor of the parents, holding that the exhaustion requirement only applies where the “gravamen,” or essence, of a parent’s complaint is the denial of a free and appropriate public education (“FAPE”).  By contrast, exhaustion is not required where the gravamen of a parent’s complaint is the denial of equal access to school facilities, programs, or services as compared to nondisabled peers, otherwise known as “disability discrimination” under statutes such as Section 504 and Title II.  The Supreme Court’s decision was not the end to litigation, however, as the case was ultimately sent back to the lower federal courts for a determination of whether the gravamen of the parents’ complaint was actually the denial of a FAPE.

The latest district court decision issued following remand found that the parents’ request for the use of a service animal was originally considered and rejected by the student’s PPT, and that the parents made a written request for mediation in light of the PPT’s decision.  However, the parents’ request for the use of a service animal was only considered by the student’s PPT because the school district had a practice of convening a PPT meeting any time a student with an IEP requested an accommodation.  Moreover, it was determined that the parents only requested mediation because the school district’s standard form did not provide any other means of disagreeing with the PPT’s denial of the service animal accommodation.  The parents did not, in fact, disagree with the student’s IEP in general.  Rather, the parents only disagreed with the PPT’s denial of an accommodation allegedly necessary for the student to access school facilities, programs, or services similar to her nondisabled peers.

As such, the district court ultimately determined that, despite the PPT’s involvement and the parents’ request for mediation, the gravamen of the parents’ complaint was disability discrimination under Section 504 and Title II, and not the denial of a FAPE.  The parents, therefore, were not required to exhaust their administrative remedies under the IDEA before proceeding with their Section 504 and Title II claims in federal court. 

It is important for schools to understand that some requests for accommodations, including service animal usage in school, can result in a lawsuit being filed against the school district immediately following the denial, since parents and students may not be required to proceed through the usual mediation and due process procedures, even if the student has an IEP.

Attorneys at Berchem Moses PC are available to consult boards of education regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com.

The United States Department of Education recently closed the public comment period for its proposed Title IX regulations, and school boards and administrators must be ready for significant changes in the coming months.  The regulations, while not yet finalized, will replace existing guidance from the Office for Civil Rights regarding in the investigation and remediation of sexual harassment in educational programs or activities.  School boards and administrators should therefore be prepared to revise their sexual harassment policies and procedures to comply with the regulations, which will be no simple task in light of the proposed changes.

School boards and administrators are strongly encouraged to examine the proposed Title IX regulations and related materials in full and consult with attorneys regarding revisions to their policies and procedures.  The following highlights from the regulations, as originally proposed, are offered as a primer in the meantime:

  • Defining sexual harassment.  The proposed Title IX regulations will narrow the existing definition of sexual harassment to any of the following:
    1. An employee of [the school board] conditioning the provision of an aid, benefit or service of [the school board] on an individual’s participation in unwelcome conduct (“quid pro quo”);
    2. Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to [the school board’s] education program or activity (“hostile environment”); or
    3. Sexual assault, as defined in existing federal regulations.
  • Remember, while a hostile environment typically requires more than one instance of unwelcome conduct, even a single incident of quid pro quo harassment or sexual assault could constitute sexual harassment under the proposed definition.
  • The standard of knowledge.  Under the proposed regulations, a school board will need “actual knowledge” of sexual harassment in an educational program or activity in order for its response to be scrutinized.  A school board will have such knowledge if sexual harassment is reported to a K-12 teacher, Title IX coordinator, or official with authority to take corrective action.
  • The investigation requirement.  School boards will have to investigate every formal complaint of sexual harassment.  A meaningful response will be required for every known report of sexual harassment, even if a reporter does not want to make a formal complaint.  A school board will violate Title IX if it is “deliberately indifferent” in its response to alleged sexual harassment, which means that the response was “clearly unreasonable” in light of the known circumstances.  By contrast, a school board will not respond with deliberate indifference if it follows its policies and procedures in response to a formal complaint of sexual harassment.
  • Grievance Proceedings.  If an investigation of sexual harassment is substantiated, the accused student or respondent will be entitled to a formal or informal hearing wherein the school board must prove that the harassment occurred.  School boards may adopt a stricter “clear and convincing evidence” standard of proof, or keep the existing “preponderance of the evidence” standard if it is also used for other code of conduct violations with the same maximum disciplinary sanctions.  Significantly, the proposed regulations include a lengthy list of rights which must be afforded to complainants and respondents alike.  These rights include, but are not limited to, access to pertinent records, the opportunity to present evidence and examine witnesses, and to consult with an “advisor” of one’s choice.
  • Remedies.  School boards must provide appropriate remedies to restore or preserve a complainant’s access to educational programs or activities, regardless of the outcome of any grievance proceedings.  The proposed regulations include a nonexhaustive list of “supportive measures” which may be made available to complainants and respondents at any stage of the process, such as leaves of absence, no-contact orders, changes to class schedules, and counseling.  In cases where remedies or supportive measures are required, school boards must ensure that they are provided on an individualized basis instead of using a “one size fits all” approach.
  • Training and recordkeeping.  School boards will have to provide training to Title IX coordinators, investigators, and other decision-makers regarding the definition of sexual harassment and the investigatory and grievance processes.  The proposed regulations will also require school boards to create and maintain records documenting all Title IX sexual harassment investigations, which may be accessible to complainants and respondents.

Attorneys at Berchem Moses PC are available to consult boards of education regarding regular and special education matters, including Title IX investigations, in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com. 

On October 9, 2018, the United States Supreme Court  denied a Petition for a Writ of Certiorari filed by the parents of a West Hartford student eligible for special education and related services, thus concluding over four years of litigation surrounding the provision of a free appropriate public education (“FAPE”), and letting stand the 2018 decision of the Second Circuit Court of Appeals.  The Petition, originally filed in June 2018, requested  that the Supreme Court  review the Second Circuit’s decision in Mr. P. v. West Hartford Bd. of Ed., 885 F.3d 735 (2d Cir. 2018), which held that the West Hartford school district appropriately educated a high school student with an Emotional Disturbance in an alternative high school program called STRIVE, which allowed him to satisfy the district’s high school graduation requirements, and also included various opportunities to develop his postsecondary education, employment, and independent living skills.  The Second Circuit further determined that the district proposed an appropriate postsecondary transition program called ACHIEVE, which would also have provided the student with a FAPE.  Finally, in affirming a September 2016 district court decision in favor of the school district, the Second Circuit held that its earlier “meaningful educational benefit” FAPE standard was consistent with the new FAPE standard articulated by the Supreme Court in Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.Ct. 988 (2017), so the case did not require remand to the lower court for reconsideration under the newly articulated standard.  

Despite the fact that the petition for certiorari was declined by the Supreme Court, the arguments advanced by the parents in this case are interesting and merit critical examination by those working in the field of special education.  The language used by the petition is alarming in many respects, arguing that, while students with reading disabilities have been awarded specific evidence-based reading programs in order to address their reading disabilities, and students with Autism have been awarded ABA (Applied Behavioral Analysis) programs to address their disabilities, students with mental health disabilities are overlooked in developing and awarding them programs using specific evidence-based methodologies, leading, according to the plaintiffs in this matter, to increasing levels of suicidal and homicidal behavior, up to and including school shootings.  The merits and causal connections between these disabilities and outcomes are, of course, matters of intense debate. However, we predict this will not be the last time that an argument is advanced that a student requires a higher level of intensity in special education programming to address severe mental health needs in order to avert a personal or public safety crisis. 

In petitioning the Supreme Court for review, the parents “[sought] clarification that under the IDEA, students with mental health needs … are entitled to same standard of FAPE as other disability categories.”  In other words, the parents asked the Court to clarify that students with emotional disturbances are entitled to “progress in their actual identified category of disability,” which would enable an assessment of whether the student made progress under the Endrew F. standard “in light of his unique needs.”  Specifically, the parents asserted that the Second Circuit erred in relying upon the student’s adequate grades and standardized test scores as evidence of progress, while ignoring his alleged lack of progress toward his “mental health needs” and increasing social, emotional and behavioral issues.  This, of course, raises the question as to what constitutes programming that “addresses” a child’s “mental health needs.”  As pointed out by the West Hartford briefs in this case, there is no IDEA category for “mental health needs,” but rather, a child qualifies under the category of “Serious Emotional Disturbance.”  And the FAPE standards applicable under IDEA require that the unique needs of the student be identified and goals and objectives written so as to allow the child, with appropriate supports and services, to make progress on the identified goals and objectives.  

Some children will progress from grade to grade while meeting grade-level standards and will receive a regular high school diploma.  Other children will receive special education services until they “age out” at age 21, but will not be able to meet the standards set for their age-appropriate peers.  It is beyond dispute that children with disabilities often suffer from medical setbacks during the course of their educational careers that take many forms, from seizures and degenerative conditions, to stroke, to car accidents and traumatic brain injuries.  Sometimes a child’s mental health deteriorates over time, through no fault of the school district.  School districts are not equipped to “treat” physical or mental illnesses the way that doctors and hospitals do, so that cannot be the FAPE standard as applied to the IEP.  This argument, however, asks that we examine where the boundaries are between “treating” mental health issues and providing appropriate educational services to a student with mental health issues, and seems to come down on the side that we should seek out the mental health equivalent of a Wilson Reading Program or ABA services for inclusion in the student’s IEP, rather than providing what the plaintiffs dismissively see as undifferentiated “school counseling” services.  We defer to the educational experts on this. Are there such services and supports? What do they look like for students with mental illness?  If we can’t “cure” the child’s mental illness through the IEP, what tools can we give the child to use in coping with the effects of the illness, and getting themselves back on track if they suffer an episode or a setback?

Stepping back from the legal analysis, we can all agree that the IDEA strives to improve outcomes for the futures of all students with all categories of disability.  The question becomes, in each individual child’s case, what is a reasonable outcome to achieve by the time that their IDEA mandated services come to an end?  What role does special education services play in achieving that outcome, as contrasted with mental health treatment provided outside of (and hopefully in collaboration with) school?  What do we, as a society, provide for students leaving school at the end of their IDEA mandate in terms of access to mental health treatment that helps them to continue the gains achieved while they were in school, and also to catch them when they suffer setbacks after graduation?

Ultimately, the Supreme Court denied review of this case, allowing the Second Circuit decision in favor of the school district to stand.  While the Supreme Court does not explain its reasoning, it might reasonably be inferred that it did not see the need to weigh in on this particular issue at this time, especially since the standard used in the Second Circuit pre-Endrew F. was already a higher standard of “meaningful educational progress”.  One infers that the Supreme Court agreed with the Second Circuit’s assessment that no corrective action was required at this time.  It might also be reasonable to assume that since the Supreme Court just recently issued the Endrew F. decision, it is content to wait and see how the implications of this decision play out for some period of time before again wading into IDEA jurisprudence with additional guidance in this complex legal area.  While we wait for additional guidance from the Supreme Court, we might be well-advised to keep in mind the arguments advanced in this case and see that all students with disabilities have the benefit of evidence-based educational practices, including those with mental health diagnoses.

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

With the use of video surveillance systems fully entrenched in school districts nationwide, school officials have seen an increase in parental requests for access to such videos, particularly as they relate to disciplinary matters, bullying allegations, or allegations of misconduct.  Such requests are governed by the federal Family Educational Rights and Privacy Act (“FERPA”), which establishes privacy protections and parental access rights for education records of students.  On April 19, 2018 the Family Policy Compliance Office (“FPCO”), a wing of the US Department of Education’s Office of the Chief Privacy Officer, published guidance titled “FAQs on Photos and Videos under FERPA.”  The recent guidance provides clarification for school officials regarding when a photo or video of a student constitutes an education record under FERPA and who may access such images.

As a general matter, FERPA provides that a parent must be given the opportunity to inspect and review their child’s education records – meaning those records, files, documents, and other materials which 1) contain information directly related to a student and 2) are maintained by an educational agency or institution.  (See generally 20 U.S.C. §1232g(a)(4)(A); 34 C.F.R. §§ 99.10-99.12.)  If a video or photo meets these definitions, it may be considered an education record.  

With respect to video and photos, the recent guidance provides a series of factors clarifying when such images are “directly related” to a student.  The guidance notes that videos or photos are likely to be directly related to a particular student when the images are used for disciplinary action or other official purposes, contain a depiction of an activity (e.g. shows a student(s) in violation of a law or school policy, shows a student(s) getting injured or attacked), or the entity taking the image intends to make the student(s) the focus of the photo or video (e.g. ID photo, recording of a student presentation).  Based on these factors, a video or photo image may simultaneously be an education record of two or more students (e.g. where a surveillance video shows two students fighting on a school bus, the school maintains the video, and the school uses the video images to discipline both students).  

Conversely, the guidance notes that images are not directly related to students incidentally appearing in a photo or video, or who merely appear in the background (e.g. a student appearing in the background of a video capturing a fight involving two different students).  If not directly related to a student, the video or photo is not an education record of such a student.  The guidance notes that this determination should be made on a case-by-case basis after examination of the relevant video or photo images. 

Of particular importance to school officials, the guidance addresses the question of who may access video or photo images that are considered education records.  This question most often arises when a video captures an incident involving two students, and the parents of one or both students request access to the video footage.  FPCO clarified that when a video or photo is an education record of a student, the parent of a student to whom the video or photo directly relates may request to inspect and review the image.  Importantly, FPCO noted that the same applies in a situation where a video or photo directly relates to multiple students – that is, the school must allow the parent to inspect the portion of the video or photo that directly relates to their child, though the guidance advises schools to redact portions of the video or photo relating to other students if redactions can be accomplished without destroying the meaning of the record.  The guidance cautioned that FERPA provides parental rights to access and inspect education records of their children, but does not generally grant a parent the right to obtain a copy of such education records. 

In addition to addressing this common scenario, the guidance provides information regarding a school district’s ability to release video or photo education records to law enforcement, and clarifies when such videos or photos are considered law enforcement records under FERPA, and what such a distinction means. 

The full text of the April 19, 2018 FPCO guidance is available at:

https://studentprivacy.ed.gov/faq/faqs-photos-and-videos-under-ferpa

Policy guidance letters issued by federal and state agencies and their subdivisions, including the FPCO guidance discussed herein, are informal, nonbinding, and do not establish a policy or rule that would apply in all circumstances.  School district administrators should consult with legal counsel as needed to resolve matters related to parental requests to access videos or photo images that are, or may be, education records.

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

If they have not already done so, school districts in Connecticut must take affirmative steps to align their policies and procedures with the State Department of Education’s (CSDE) Standards for Educational Opportunities for Students Who Have Been Expelled.  Originally promulgated in January 2018, the Standards detail the legal requirements for providing Alternative Educational Opportunities (AEOs) to students who have been expelled, and establish guiding principles for the development and implementation of mandatory Individualized Learning Plans (ILPs).  In addition to updating their policies and procedures, school districts are urged to develop standard forms to ensure the consistent implementation of ILPs, improve recordkeeping, and reduce the risk of liability in the event that AEOs are called into question.  

By way of background, Conn. Gen. Stat. § 10-74j defines “alternative education” as a school or program maintained and operated by a local or regional board of education that is offered to students in a nontraditional educational setting and addresses the social, emotional, behavioral, and academic needs of such students (emphasis added).  Conn. Gen. Stat. § 10-233d requires local and regional boards of education to offer an AEO to (a) any student under sixteen (16) years old who has been expelled, and (b) any student between sixteen (16) and eighteen (18) years old who has been expelled for the first time, wishes to continue with his or her education, and complies with the conditions set by the board.  While school districts have long provided homebound tutorial and similar instruction for expelled students, such programs typically only address the basic academic needs of expelled students, and do not address the other areas of need that may have contributed to the situation that resulted in the expulsion in the first place.  This descriptor, that the program must address the student’s social, emotional and behavioral needs, signals to school districts that they must give additional thought to those unmet needs and plan programming to address the student’s needs as part of the AEO, hopefully returning the student to the general education setting at the conclusion of the AEO in a better place, ready to commit to staying and learning successfully in that setting.  

In 2016, the CSDE promulgated Guidelines for Alternative Education Settings, which applied to students who required an alternative education setting for reasons other than expulsion, such as academic, attendance, or social/emotional/behavioral issues.  The CSDE specifically cautioned, however, that the Guidelines were not to be construed to govern the mandatory AEO required to be offered to expelled students.  Instead, in January 2018, the State Board of Education (SBOE) adopted the Standards, which apply specifically to students who have been expelled.

The Standards clarify that, in accordance with Conn. Gen. Stat. § 10-233d, an eligible student who has been expelled must be provided with an ILP to inform and direct his or her learning goals and activities during the duration of the expulsion.  After issuing the Standards, the CSDE drafted a model ILP, but did not approve a finalized version for school districts to either adopt or use as guidance in the development of their own ILPs.  Some school districts, however, have responded proactively by updating their policies and procedures and creating their own AEO materials to conform with the Standards and applicable State law.

Those school districts looking to update their policies and procedures should first look to the Standards for step-by-step instructions to follow from the time an eligible student is expelled to the time he or she begins an AEO.  The Standards specify that district personnel should inform parents and students of the right to apply for early readmission at the time of expulsion, and subsequently meet with them to discuss potentially appropriate AEOs.  District personnel should then gather information regarding the student’s academic, social, and behavioral history from knowledgeable sources, and ultimately convene a placement meeting to identify an AEO and develop an ILP.  The Standards further dictate the steps that should be taken for periodically reviewing and revising students’ ILPs, transition planning and, ultimately, exiting them from their AEOs upon the expiration of their expulsion periods.  For expelled students with Individualized Education Programs (IEPs) or Section 504 Plans, the aforementioned steps and decisions must be made by the Planning and Placement or Section 504 Team, as appropriate.

Those school districts still in the process of developing AEO materials for expelled students should consider updating their policies and procedures to include step-by-step entry and exit procedures that correspond with the Standards, and developing standard forms for use during the AEO referral process and all ILP meetings, regardless of whether an expelled student requires special education and related services or not.  If an expelled student does require special education and related services, all such materials, including the student’s ILP, can be attached to his or her IEP or Section 504 Plan.  School district should also consider developing model behavior contracts for students to abide by while receiving their AEOs, which can be modified based on the circumstances of a student’s expulsion.  

School districts should also begin to develop the required ILPs to document the modality of instruction students will receive in their AEOs, such as small group instruction, individual tutoring, or online coursework.  As prescribed in the Standards, these ILPs also identify the student’s core classes at the time of expulsion, their progress in the curriculum of those classes, and the goals and interventions designed to remediate their academic and behavioral needs.  The ILPs specify the benchmarks that will be used to measures a student’s progress towards his or her goals, the timing and method for reviewing and communicating progress, and the requirements that must be met before exiting the student from the AEO.  Finally, the ILPs reference all relevant records, such as IEPs, Section 504 Plans, and academic and behavioral data, and provide for the timely transfer of records to and from the student’s AEO and the regular education setting.

Updating  policies and procedures and developing AEO materials to align with the Standards will enable the district to comply with State law and minimize the risks of liability in the event that AEOs are called into question at the individual or district-wide level.  This will help to ensure the timely and consistent provision of effective and complete AEOs to expelled students, who are often the most in need of intensive instruction and supports.  Remember that the State Department of Education’s position, as articulated in the Standards, is that provision of homebound instruction 10 hours per week, alone, is unlikely to meet the Standards.

The Standards and a corresponding letter from the State Commissioner of Education to the Superintendents of Schools are available via the following web links:

https://portal.ct.gov/-/media/SDE/Publications/Standards-for-Expelled-Students.pdf?la=en 

https://portal.ct.gov/-/media/SDE/Digest/2017-18/Standards-for-Expelled-Students-Memo_.pdf?la=en 

Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut, including the development of policies, procedures, and standard forms for AEOs.  For further information please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com. 

The parent of a student receiving special education services in the Highland Community School District in Iowa had a long history of disagreements with the district regarding the program and services offered to her child pursuant to the child’s Individualized Education Program (“IEP”). See Cazwiell-Sojka v. Highland Community School District, No. 3:17-cv-00020 (S.D. Iowa February 21, 2018). After a breakdown in communication with the teachers and the administration in charge of implementing her child’s IEP, the parent sought to include her grievances as an agenda item during the “receive visitors” portion of the board’s meeting to make known her discontent with the child’s IEP and disapproval of the district’s personnel and their professional performance. The district had a policy which stated that “while constructive criticism was welcomed, the board [desired] to support its employees and their actions to free them from unnecessary, spiteful, or negative criticism and complaints that do not offer advice for improvement or change.” On the basis of this policy, the parent was able to speak about her concerns regarding her child’s education but was cut-off and informed she would not be allowed to “address personnel issues” during public comment. Was the district entitled to do that? The parent did not think so and sued. 

Is it a Public Forum?

Speech restrictions imposed by the government on property that it owns are analyzed under a “forum based approach.” See Hotel Employees & Rest. Employees Union v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 544 (2d Cir.2002) (internal quotations omitted). Some property is recognized as being traditionally a “public forum” such as a park or a sidewalk where speech can only be restricted if narrowly tailored to serve a compelling State interest, whereas mailboxes at a public school may not be considered such public forums. See Perry Ed. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37 (1983)( an employee union wanted to place recruitment flyers in teachers’ inboxes but noting that the boxes were built specifically for communicative purposes about official school business by authorized users, the Court found that the boxes were not a “forum” open to general expressive use).

Is it a Designated Public Forum?

Government entities are free to designate a location or time where citizens can express themselves. In a designated public forum—a place not traditionally open to assembly and debate which “the State has opened for use by the public as a place of expressive activity”—government regulation of speech is subject to the same limitations that govern a traditional public forum. See Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir.2004). That is the case with public comments during board meetings. Once it is declared to be a “designated public forum,” any regulation on the content of a speaker’s message could be struck down if challenged and deemed unconstitutional. For example, a policy which forbade complaints against an individual employee without the employee’s consent was found unconstitutional because it allowed classic viewpoint discrimination (speakers could provide praise but not criticize employees). See Leventhal v. Vista Unified School District, 973 F.Supp. 951, 954 (S.D. Cal. 1997).

Are Regulations Reasonable and Content Neutral?

The use of the forum can be limited to speech consistent with its purpose and a board may enforce reasonable regulations that are “content neutral,” or applied even-handedly to all speakers. Content-neutral restrictions are those that are both viewpoint and subject matter neutral. See Boos v. Barry, 485 U.S. 312, 320 (1988) (content neutral restrictions do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter). While a school board cannot differentiate based on a speaker’s opinion, speakers can be limited to subjects relevant to that agency’s purview.  See Jones v. Heyman, 888 F.2d 1328, 1332 (11th Cir.1989)( speaker’s admonishing of the commission to act more prudently in its spending habits was not the topic of debate, and the mayor quickly directed the speaker to comment only on the relevant issue or be removed to which the speaker responded “I don’t think you’re big enough,” and was expelled). Similarly, a government body may also remove a speaker who causes a disturbance – shouting, refusing to leave after the expiration of a time limit – without violating the First Amendment. See Conn. Gen. Stat. §1-232 (allowing boards to remove persons who are willfully interrupting a public meeting, clear the room (except for members of the press) and continue in session); see also White v. City of Norwalk, 900 F. 2d 1421 (9th Cir. 1990) (upholding an ordinance that prohibited speech during council meetings that “disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting”).

What is the Main Take Away?

The parent who sued the Highland School District in Iowa survived a motion to dismiss because the Court in the Southern District of Iowa believed that the school district’s policies denied her the right to speak and petition the government and were unconstitutionally applied to her. Id. at 20.  The Court found that the policies supported “constructive criticism” but denied the opportunity to voice “negative criticism”. Id.at 22. The case remains active and proceeding in court. The main take away is that boards of education need to have a clear policy regarding public comments that take into account whether the language or implementation of the policy survives scrutiny under the First Amendment. For example, while board members may consider “asking” or “requesting” that speakers not discuss certain matters, e.g. personnel, it is important to remember that in doing so, they cannot restrict speech content once the meeting has been designated as a public forum. Unless, of course, the speaker is disruptive, e.g. uses profanity or engages in threatening behavior. Another suggestion is to consider limiting the discussion to agenda items and enforcing such practice in a content-neutral fashion.  In addition, when dealing with issues that are sensitive in nature such as personnel matters, boards routinely defer discussion to executive session under Conn. Gen. Stat. § 1-225(f). For these reasons, it is also important for board members to be clear on how to effectively use executive sessions to discuss these matters. 

Recently, the U.S. Supreme Court ruled that government workers who choose not to join a union cannot be charged for the cost of collective bargaining and related activities.

In a 5-to-4 decision, a majority of the Court noted in Janus v. AFSCME, Council 31, that “agency fees” violate, “the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

As we have reported before, this case stemmed from an Illinois public sector employee who challenged a requirement that government workers who opt out of a union still have to pay partial dues (known as an “agency fee”) to cover the union’s cost of negotiation and other functions associated with policing and enforcing the contract.  This decision overrules the Court’s own 41-year-old precedent, which said workers did not have to pay for unions’ political activities but could be required to contribute to other costs of representation, such as negotiating wages and benefits and processing grievances.  The Court’s decision frees those non-members from having to pay the fees.

Significantly, and what will have an immediate impact on employees and employers is that the Majority held that an employee must affirmatively consent to pay the agency fee: Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”  The Court did not specify the form this “affirmative consent” must take, but most likely will be in the form of a signature card explicitly authorizing the withdrawal of agency fees in accordance with Janus.   Continue Reading Landmark Decision Expected to Weaken Public Sector Unions and What You Need to Know

The United States Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) recently issued several policy guidance letters addressing important issues related to state and districtwide assessments, preschool programming, and disagreements during Planning and Placement Team (PPT) meetings, known under federal law as IEP team meetings.  While informal and nonbinding, these concise and digestible policy letters provide useful insight into OSERS’ interpretation of the statutes and regulations prescribing school district obligations related to mandatory assessments, preschool programming, and record keeping.

First, in Letter to Kane (Apr.18, 2018), OSERS addressed the potential obligation of school districts to provide compensatory special education and related services to students with disabilities who may or may not participate in required state or districtwide assessments.  Specifically, OSERS was asked to clarify whether school districts are obligated to provide compensatory services to make up for special education and related services missed (1) during the time a student participates in required state or districtwide assessments; and (2) when a parent withholds consent for such assessments and keeps the student home from school while the assessments are being administered.

OSERS recognized the importance of state and districtwide assessments, which are integral aspects of educational accountability systems, and which are used to measure student progress for the purposes of promotion, graduation, and access to educational services.  OSERS also highlighted the general requirement that children with disabilities be included in all state and districtwide assessments, while emphasizing that the IEP team will address the manner in which a student participates in such assessments.  A Student’s Individualized Education Program (IEP) will, for example, specify whether the student will take alternate assessments, or whether the student will receive any accommodations during such assessments.

Importantly, OSERS clarified that, generally, a special education or related service missed due to participation in required scheduled assessment will not constitute a denial of a Free Appropriate Public Education (FAPE), and the school district will not be required to make up the missed service.  Additionally, for a student who is absent from school on testing days due to a parent’s choice, the school district will not be obligated to make other arrangements to make up the missed service.

In Letter to Carroll (Apr. 19, 2018), OSERS addressed whether a school district could unilaterally schedule a full school week of special education and related services for a preschool student, despite knowing from the outset the student would not regularly attend school five days per week.  The specific inquiry involved a preschool student whose IEP specified 1,500 minutes of specially designed instruction per week, divided equally between a special education class and a general education class.  During the IEP team meeting in which the IEP was developed, no particular schedule was agreed upon, but the parents informed the IEP team that the student would attend the preschool program only three days per week so as to allow for participation in other activities and services outside of the school setting.  

Because it was unlikely that the full 1,500 minutes of weekly instruction could be provided in only three school days, the school district inquired whether it could unilaterally implement a schedule after the PPT meeting that provided for less than the 1,500 minutes.  OSERS noted that an IEP must identify the specific amount of special education and related services that a student will receive so that the school district’s commitment of resources is clear.  OSERS then emphatically stated that, under the IDEA, a school district cannot unilaterally change the amount of services included in a preschool student’s IEP.  As such, if the school district wanted to revise the amount of instruction provided for in the student’s IEP, it would have to engage the parents in further discussion, even if such discussion took place outside of a PPT meeting.  If the parents and school district agreed to change the student’s IEP, the changes would also have to be memorialized in an amended IEP following appropriate amendment procedures.

The form of the district’s inquiry is somewhat puzzling, since it seems as though the district could have solved the problem by preparing a schedule of services that would comply with the requirements of the IEP, and then simply noting when the parent chose to make the student available for the services that had been scheduled, and when the student was not made available.  Nonetheless, if a district wishes to reduce the amount of services available to a student through the IEP, proper procedures need to be followed to either amend the IEP or reconvene the meeting and have further discussions with the parent.

Finally, In Letter to Zirkel (Apr. 19, 2018), OSERS addressed the status of dissenting opinions from IEP team members.  Specifically, OSERS was asked whether it is permissible for a teacher or other district member of the IEP team to enter a dissenting opinion on a student’s IEP or elsewhere in the student’s record.  An example was provided involving a teacher who objects to the placement of a student in his or her classed based on behavioral and/or academic issues, while the PPT ultimately determines that placement in the teacher’s class is appropriate.

OSERS noted that the Individuals with Disabilities Education Act (IDEA) does not specifically address the issue of disagreements among school team members during IEP team meetings, except in the context of students suspected of having specific learning disabilities.  Specifically, 34 C.F.R. § 300.311(b) requires a team member who disagrees with an evaluator’s conclusions regarding a student’s potential learning disability to submit a separate statement reflecting his or her own conclusions.  As previously articulated in Letter to Anonymous (Oct. 29, 1996), however, an IEP team is not responsible for implementing the recommendation of an individual team member.

Due to the lack of a definitive authority on the subject, OSERS deferred to state and local educational agencies, which may maintain policies and procedures regarding the documentation of dissenting opinions among school team members during IEP team meetings.  Neither the Connecticut General Statues, the implementing Regulations, nor any other State authority addresses the extent to which such dissenting opinions must be documented in a student’s IEP or elsewhere.  As such, district personnel should determine whether their board of education maintains any relevant policies or procedures regarding disagreements during PPT meetings.  Importantly, however, during certain PPT meetings, such as manifestation determination meetings, the dissenting opinions of team members regarding issues such as whether a student’s behavior constituted a manifestation of his or her disability should be carefully documented in the worksheets memorializing the PPT’s ultimate decisions and recommendations. 

The full texts of the OSERS policy guidance letters, as well as additional OSERS resources, are available via the following web link:

https://sites.ed.gov/idea/policy-guidance/ 

As previously stated, policy guidance letters issued by federal and state agencies and their subdivisions, including the OSERS letters discussed herein, are informal, nonbinding, nonbinding, and do not establish a policy or rule that would apply in all circumstances.  School district administrators should consult with legal counsel as needed to resolve matters related to special education, including but not limited to state and districtwide assessments, disagreements during PPT meetings, and preschool programming.

Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney

The Connecticut State Board of Education (State Board) adopted Standards for Educational Opportunities for Students Who Have been Expelled (Standards) on January 3, 2018. The State Board acted in response to P.A. 17-200, An Act Concerning Education Mandate Relief, containing a directive that the Connecticut State Department of Education (CSDE) adopt such standards. The Standards delineate two permissible options for school districts for the provision of alternative education to expelled students: 1) to educate an eligible expelled student in an alternative educational program operated by the expelling district if placement in such a program is deemed appropriate as adjudged under the CSDE Standards or 2) to provide an eligible expelled student with a different educational opportunity as long as it meets the CSDE Standards.

The Standards clarify that school districts may permissibly educate an expelled student through an alternative education program offered by another local educational agency or operator. Whether a district elects to provide an expelled student with an AEO in an alternate education program or to provide a different alternative educational opportunity, the Standards require that school districts develop an individualized learning plan for each expelled student. Such learning plans must address specified areas including, but not limited to, academic and behavioral goals, bench marks for progress and monitoring of progress.

While acknowledging that many Connecticut school districts offer appropriate educational programming for expelled students, the CSDE expresses an expectation that districts would in most instances determine that enrollment in its own alternative educational program or that operated by another LEA or provider would be the most appropriate option.  The CSDE recognizes that in unusual circumstances such placement may not be suitable or available.

The Standards emphasize the importance of providing high quality education to expelled students and require that individualized assessment be conducted. The Standards set specific required action to be taken by districts in five areas: student placement, creation of an individualized learning plan, review of placement, progress monitoring, and transitional planning. The Standards can be reviewed in entirety here:

http://www.sde.ct.gov/sde/lib/sde/pdf/board/boardmaterials010318/Standards_for_Alternative_Educational_Opportunities_for_Students_Who_Have_Been_Expelled.pdf

Notably, the Standards contain no directive for a minimally required number of seat hours for instruction for expelled students. General alternative education programs are subject to state law requirements for the number of required seat hours and school days. However, the omission in the Standards is offset by the CSDE’s expressed preference that districts provide expelled students with an alternative educational opportunity that closely mirrors the full time educational environment from which the expelled student was removed.

The CSDE has expressed interest in developing best practices for reducing discipline, including expulsions, in improving alternative schools and programs, along with improving educational outcomes for expelled students.  Future examination promises possible further change to or clarification of Connecticut’s existing law and formal guidance in this area.

For the present, school districts are encouraged to review current practices, procedures and policies related to student expulsions, and in particular, those related to the offering or provision of alternative educational opportunities to expelled students to ensure compliance with the latest revisions to C.G. S. 10-233d, Connecticut’s expulsion statute, and with the newly adopted CSDE Standards for the provision of alternative education to expelled students