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

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.

School employees who fail to report child abuse may face tougher penalties for failing to report such incidents to DCF or the police as a result of a law passed by the General Assembly.

Public Act 15-205, An Act Protecting School Children, increases, from a class A misdemeanor to a class E felony, the penalty for a mandated reporter who fails to report suspected child abuse or neglect to the Department of Children and Families (DCF), if the (1) violation is a subsequent violation; (2) violation is willful, intentional, or due to gross negligence; or (3) a mandated reporter had actual knowledge of the abuse, neglect, or sexual assault.

The Act expands the reporting requirement for school employees and subjects violators to the penalties described above.  It also clarifies that the mandated reporter law protection applies to high schools students who are over age 18.  The Act requires school employees to report to DCF suspected sexual assault of any student who is not enrolled in adult education by a school employee.  It also establishes the factors on which a mandated reporter may base his or her suspicion.  Under the Act, it is a class D felony for anyone, other than a child or a student who is not enrolled in adult education, to intentionally and unreasonably interfere with or prevent such reporting or conspire to attempt to do so.

By law, (1) DCF must make available educational and refresher training for all mandated reporters of child abuse and neglect and (2) school employees must participate in the training course when hired and the refresher training every three years.  Under the Act, the principal for each school under the jurisdiction of a local or regional board of education now must annually certify to the superintendent that school employees complete such training and the superintendent must certify compliance to the State Board of Education (SBE).

The Act extends DCF’s investigation and notification requirements under existing law in reported child abuse or neglect cases to include cases of reported sexual assault of students by school employees.

It requires each local or regional board to (1) update its written policy, by February 1, 2016, to include the new school employee reporting requirements and (2) establish a confidential rapid response team, by January 1, 2016, to coordinate with DCF to ensure prompt reporting.  It also prohibits the boards from hiring noncompliant or convicted employees who were terminated or who resigned and requires SBE to revoke the certification, permit, or authorization of anyone convicted of certain crimes.

In addition, it (1) expands the list of suspected sexual assault crimes that school employees must report to DCF; (2) establishes the factors upon which a mandated reporter’s suspicion or belief may be based; (3) applies the original Act’s enhanced penalty of a class E felony to specific circumstances; (4) exempts children and any students who are not enrolled in adult education from the crime of interference with a mandated reporter’s duty to report; (5) extends DCF’s existing child abuse and neglect investigation and notification requirements to reported sexual assault cases; (6) eliminates the underlying Act’s provisions on SBE’s noncompliance investigation, the related forfeiture of state grants, and the child abuse and neglect investigation account; (7) establishes the membership of the confidential rapid response team; (8) broadens the range of criminal convictions for which rehiring is prohibited and the state’s attorney notification is required; and (9) makes various technical and conforming changes.

Effective Date: October 1, 2015; however, a provision on DCF’s training program (§1); provisions on rapid response teams (§9); rehiring prohibitions (§12 & 13) are effective July 1, 2015.

In a decision issued July 24, 2014, Senior United States District Court Judge Jack Weinstein has authored an opinion proposing a new standard for evaluating whether the IEP of a special education student who has experienced bullying provides that student with a free appropriate public education (FAPE).  In T.K. v. New York City Dept. of Educ., 2014 U.S. Dist. LEXIS 101277 (E.D.N.Y. 7/24/14), Judge Weinstein offered that there is a new “FAPE Bullying Standard”: “a disabled student is deprived of FAPE when school personnel are deliberately indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child with learning disabilities in her educational opportunities.”  The opinion clarifies that the conduct “does not need to be outrageous in order to be considered a deprivation of rights of a disabled student.  It must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment.”  Furthermore, the “rule does not require that the bullying would have prevented all opportunity for an appropriate education, only that it was likely to affect the opportunity of the student for an appropriate education.”

Those of us representing school districts have been concerned since the issuance of the U.S. Department of Education’s Dear Colleague Letter on August 20, 2013 admonishing school districts to reconvene IEP team’s to review a disabled student’s IEP if the student is determined to have been affected by bullying, that this would impose new requirements on IEP teams that they may not be prepared to address.  This opinion seems to be the culmination of those concerns.

The allegations in the T.K. case were that the student, L.K., was placed in a New York City Collaborative Team Teaching (CTT) classroom at P.S. 6, containing both general education and special education students.  She alleged that she was intentionally “pinched, bruised and injured” by another child in her class during the lunch period.  The opinion faults the school’s response to the allegations, stating that the principal failed to investigate adequately and inform the parents about actions taken to resolve the problem.  The following year, it was alleged that this same student “stomped” on L.K.’s toes.  There was no way to separate the two students because they were both special needs students requiring the same classroom, and there was only one such classroom available in the school.  That year, L.K. complained daily to her parents about being bullied and resisted attending school, resulting in multiple tardies and absences. According to the opinion, the teachers in the classroom confirmed that L.K. was bullied by the other students and that the classroom was a “hostile environment” for her.

It does not appear that any specific IEP team meetings were convened to address this situation for L.K., and when the annual review meeting was held that spring and the parents attempted to raise the issue of bullying and how it was going to be addressed, the opinion states that the parents were told that was not an appropriate subject for the IEP team to address and that it would not be discussed.  This, the court found, denied the parents a meaningful opportunity to participate in the educational process.

The court further found fault with the fact that the present levels of academic and functional performance on the child’s IEP failed to reflect that she had been a victim of bullying, and instead focused on the child’s “sensitivity” and need to improve her communication skills.  Although the student had goals and a behavior intervention plan (BIP) that addressed her interfering behaviors, which would in turn, the staff contended, reduce her vulnerability to bullying by peers, the court deemed these measures insufficient. “Where there is a substantial probability that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law an anti-bullying program is required to be included in the IEP.” (Emphasis added.)

There is just one problem: IDEA does not say that, and neither do its implementing regulations.  There is nothing in IDEA that tells schools what an “anti-bullying program” is for purposes of a child’s IEP.  While certainly no one would advocate that leaving a child who is being bullied in an untenable situation is an acceptable educational outcome, the IEP is designed to focus on the measurable outcomes that will be achieved in that child’s skills and abilities over the course of the next school year, not to regulate the conduct of other children around them.  As most states do, Connecticut has a robust anti-bullying statute which gets further refined seemingly each year by the legislature, and school districts are required to take steps to improve school climate for all students, investigate and address bullying and other mean-spirited behavior when it does occu, and make sure that every child has the opportunity to attend school in a safe and healthy learning environment.  A safety plan is required for any child who is the victim of a verified incident of bullying.  That’s not the problem.  The problem is, how do we go about including this in a child’s IEP and is it appropriate to do so?

The opinion does not answer this question.  It criticizes the department of education for “blaming the victim” by focusing on goals and objectives to improve the child’s measurable outcomes.  It seems to imply that the IEP perhaps should have focused more on changing the setting in which the child was being educated to remove her from being the target of the other students, which perhaps would have resolved the situation.  But, IDEA makes a distinction between a “placement” and a “location” for a child’s educational program.  The “placement” needed by L.K. was the CTT classroom.  The district was not required to specify that the location of the CTT classroom would have been changed to remove L.K. from the bullies, even if that was the intent of the school officials. But in the absence of an “anti-bullying program” in L.K.’s IEP, this court decided that the parents were entitled to reimbursement for their unilateral private school placement.

It’s hard to imagine that the New York City Department of Education isn’t preparing their papers for the appeal as we speak.  Leaving that aside, however, forewarned is forearmed.  It is clear that we need to pay attention to our obligations under both the anti-bullying statutes and the Dear Colleague Letter and ensure that IEP teams are addressing the unique needs of children with disabilities who are being bullied by their classmates. And, when it comes down to it, we just need to make schools a safe place to learn.

The way student records are created, accessed and stored is changing drastically increasing concerns about schools’ ability to protect student privacy as required under laws such as the Federal Educational Rights and Privacy Act (FERPA) and the Children’s Online Privacy Protection Act (COPPA). Schools are shifting from a traditional paper model to the electronic creation, maintenance and sharing of records, particularly through the use of the Internet and cloud computing including cloud based classroom and school educational computer applications. Schools find themselves outsourcing school records functions to third party service providers more frequently, as well as increasingly sharing and assessing student testing information with or among multiple educational agencies. This paradigm has resulted in yet to be resolved legal issues with potential landmines for schools.

There are two general but distinct concerns resulting from this changing school landscape. The first is for the security of the data itself, particularly when it is no longer maintained in house on hardware physically located at school or in the school district, rather is kept in the cloud in an unknown location. 

Continue Reading Protecting Student Privacy When Cloud Computing and Outsourcing School Student Record Functions to Third Parties

U.S. Department of Education, Office of Civil Rights (OCR) Chief Catherine Lhamon along with U.S. Department of Justice (DOJ)Education Opportunities Section head Anurima Bhargava attended the April 2014 School Law Seminar held in New Orleans and fielded questions from attending school attorneys who sought clarification of the Departments’ position related to harassment standards for student on student harassment and asked questions about the Departments’ “Dear Colleague Letters” (DCL) on topics ranging from transgender students, athletics and extracurricular activities for students with disabilities and bullying and harassment to name some.

Here are a few highlights from the discourse:

  • Transgender Students: When questioned about a district’s obligation to honor requests by a transgender student to use the restroom of the gender with which the student identifies, the unequivocal response by OCR/DOJ was that districts must grant such requests or be subject to claims of discrimination, and that an offer for the student to use a private restroom which is not otherwise provided to all students would not suffice to meet legal obligations.

Continue Reading OCR Chief and DOJ Section Head Answer Tough Questions From School Attorneys At National Law Seminar

Earlier this year, FERPA was amended to grant child welfare agency representatives, agency caseworkers, or a tribal organization access to the education records of children within their care and protection.  The new exemption was created in order to prevent delays and complications in the education of children in foster care.  Prior to the amendment, child welfare agency representatives and caseworkers were required to obtain parental consent or seek a court order to gain access to a child’s education records.  This sometimes caused delays and issues with the education of foster children.  Now, upon request, a school district can release the education records of a student who is the legal responsibility of a child welfare agency or organization to a caseworker or agency representative.  The agency in turn can only disclose the student’s records to an entity that addresses the student’s educational needs and is authorized to receive the disclosure.  The Act streamlines the process for child welfare agency representatives and caseworkers. 

Continue Reading FERPA Amended to Grant Easier Access to Education Records by Child Welfare Agencies

Although rarely done, in the past few years, several Connecticut public school districts have been featured in the news for seeking criminal remedies against parents for theft of educational services.  Parents who allegedly enrolled and sent their child to a school located in a town or city other than the one where the child actually resided were referred to the police.  On June 24, 2013, Governor Malloy signed into law Substitute House Bill No. 6677/ PA-13-211 an Act Excluding School Accommodations from Services That Are Subject to Larceny Statute. The law, effective October 1, 2013, repeals and replaces subsection (a) of C.G.S. 53a-118, a definitional section under which Connecticut police have derived authority to arrest parents who engage in theft of services from school districts. Under the repealed law, the term “services” was interpreted to include school accommodations. Under the revised C.G.S. 53a-118, “school accommodations” are specifically excluded from the definition of “services”. This change appears to decriminalize the behavior.

Continue Reading New Legislation Decriminalizes Theft of School Accommodations for Non-Residency

While the other aspects of Connecticut’s new gun control law have received more notoriety, the new law included a number of provisions intended to improve school safety and security including the following: 

  1. Requires each school to have a safety committee;
  2. Requires each school to conduct a risk vulnerability assessment;
  3. Require each school to have a safety and security plan which incorporates national standards and takes an “all hazards” approach;
  4. While not requiring it, the new law encourages schools to conduct “mental health first aid” training for teachers, and directs the Commissioner of Education to consider requiring such training as part of new teacher training programs.
  5. Requires all new school construction utilizing State grant funds to comply with new (yet to be promulgated) school construction safety standards.

Continue Reading Gun Bill Includes Many New Requirements For School Boards

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.

 

Continue Reading We Are All Newtown