A new Maryland House bill intends to alter the current law that requires parents of special needs students receive necessary documents five business days before an Individual Education Program Meeting. House Bill 596 proposes an alteration of the time requirement from five business days to five CALENDAR days, which would ultimately count weekend days in the review period.

If approved, the new law would deny parents the ability to review all documentation far in advance of their child’s IEP meeting. So if a family decided to retain the counsel of an attorney or an education advocate, that intermediary would also be pressed for time to review such documents.

The effort to repeal this provision of the law is supported by public school administrators and psychologists who claim it is an undue burden to have to provide parents with the documentation used in the placement and programming decisions five business days ahead of the meeting.

In reality, the five-day provision allows parents the only real opportunity to read and better understand the various documents, which include test results, teacher reports, student observations and formal evaluations. The documentation can be voluminous and without the five-calendar-day parental provision parents will be uninformed and unprepared for crucial meetings with their child’s school. Everything is decided at these meetings, from whether a child is expected to receive a diploma to whether the child will be placed in a special school or public school with regular education students.

Please help in opposing passage of this destructive and unwise proposed alteration to the current law. Hearings are set for March on this repeal measure. Please contact your legislators to voice your strong opposition to this unwarranted, unnecessary attack to student and family rights.

– Patrick Hoover, Esq.

I just had lunch with an old friend and colleague of mine and of many others in our bar association, Richard Stolker. Richard and I discussed the recent milestone held less than one month ago by the Maryland State Bar Association‘s Consumer Bankruptcy Group. For the first time in MSBA history — to my knowledge — a statewide group of the Maryland State Bar Association held a closed, multi-office conference meeting that was privately broadcast over the Internet between two cities some distance apart. Richard’s monthly meeting was held simultaneously in both Rockville and Baltimore, Maryland, where several members of the group attended and participated fully by way of the high-speed Internet connection and equipment located at both places/conference rooms. This feat was brought about by much encouragement and urging over the years from Richard Stoker and by the outstanding work of the officers and staff at the Maryland State Bar Association. It was made possible through the contribution of a national court reporting firm with offices throughout Maryland, Merrill LADD. While a number of the members of the approximately 400-member group Richard helped to found assembled in the Baltimore office of the reporting firm, that group of attorneys, together with the attorney’s assembled in Rockville, viewed and participated fully in the real-time meeting.

Congratulations to the State Bar Association! Let’s hope this is but the beginning of things to come and this practice becomes frequent and widespread so that the various members of the State Bar can participate in common benefit through the various groups and committees available to all of us.

While certainly no great shakes in terms of what is after all, a not uncommon practice in the business community, or, indeed, anything very unusual when it comes to the federal bench and its frequent custom of online private broadcast Internet conferences; the fact remains that this is a big first step for our State Bar Association. In fact, Tom Murphy, recently trumpeted this noteworthy achievement at the monthly Bar Association luncheon here in Montgomery County when he pointed out that this accomplishment should quickly expand to many of the other standing committees and sections of the Bar and has already been tagged by one or more of the other, larger sections of the State Bar for its upcoming monthly meeting this month.

Speaking of the MSBA, Tom also pointed out that there is an app for that and it is available for free download to your mobile device, whether it be an iPhone or an Android device. The MSBA app provides easy access to certain of the Maryland Rules of Evidence, Professional Conduct and Code of Civility. If you just can’t wait to go online at your desktop you can also look through the rules on Attorney Trust Accounts and Ideals of Professionalism. The app, which does not utilize the high-definition and resolution of iPads and other tablet devices, also includes a button at the bottom which provides links to the MSBA Hotline, MSBA Ethics Opinions (accessible to members only) and Fastcase (accessible to members only).

I also want to share a mobile application for the Apple iPad known as Trial Pad.  This software is specific to be Apple iPad and while not cheap at $100, I have it on good authority (a seasoned member of the Bar and experienced insurance defense attorney) that it really works and is well worth the money. But there’s more. The attorney I spoke with used this software in a recent civil jury trial to great success. She used the device and this specific litigation software package to great benefit in the examination of witnesses during the trial. The program allows for connection of the device to the courtroom projector and real-time manipulation of documents photos, videos and the like in examining witnesses. Apparently, the jury loved it, and so in fact did the judge in Superior Court, downtown. Instead of connecting my iPad2 up to the VGA connection cord, I hope to use this same software through Apple’s Airplay and do the same thing in court, wirelessly.

A version of this article will be featured in the March 2012 Maryland State Bar Association newsletter.

Join us for a Continuing Legal Education seminar on the ABC’s of Education Law on March 6 from 5:30 to 8:30 p.m. Register online here.

A- Advocating for your Regular and Special Education client

B- Benefiting students and families using Independent Evaluations

C- Contesting and successfully deflecting zero tolerance expulsion/suspension policy

Hear from a number of well-known legal and professional experts acclaimed for their work in the field. Our expert team will speak about topical issues in education law and help you learn to enhance your practice and obtain useful information for other areas of practice including juvenile, criminal and family law. The CLE will cover multiple practice tips that will expand your practice and keep your practice up to speed in this fast moving legal environment.

Attorneys and education advocates; special and regular education administrators and policy makers; agency and private school representatives; medical and psychological providers; teens and youth; and juvenile justice professionals are urged to attend. The seminar offers common sense tips and insights to those interested in learning and understanding the many legal mandates, privileges and legal obligations often involved in education law disputes.

Presented by the Bar Association of Montgomery County’s Education Law Section: Patrick Hoover, Lynndolyn Mitchell and Karen Smith.

Students bullied in schools by online and on-campus abusers are targeted by the University of Maryland widely-supported, innovative symposium that was organized by law students.

Check out this video report on YouTube: School Bullying Targeted By Md. Law Students

Ask someone what a flash mob is and they’ll likely conjure up images of what they’ve seen on television: a public place suddenly taken over by a group of strangers performing a coordinated dance routine. The group performs its number, there’s some applause, maybe some laughter, and then everybody goes back to what they were doing.

These lighthearted events, many of which became overnight YouTube sensations, are what most people will think of when asked about flash mobs. But, what most people don’t know is that flash mobs have taken on a new, sinister side; a side that has come to be known as “flash mob crime.”

A perfect example of flash mob crime occurred in Germantown this past August. Dozens of teenagers descended upon a local 7-Eleven and, en masse, shoplifted food and other items.

Looking at video from the store’s video security system, police determined the mass grab-and-dash was a coordinated effort. It didn’t take long for officers to track down the culprits, who quickly admitted that they’d planned the whole thing using social media and cell phones.

What happened in Germantown is part of a growing nationwide trend. As local jurisdictions move to address this novel threat, the clash with existing law is imminent. Those involved in such incidents may quickly find themselves charged with some serious crimes–more serious than they may have ever expected.

Under the MD Code’s definition of criminal gang, juveniles involved in a flash mob crime could find themselves charged with crimes aimed at preventing gang activity.

Within the Code, a “criminal gang” is defined as, “a group or association of three or more persons whose members: (1) individually or collectively engage in a pattern of criminal gang activity; (2) have as one of their primary objectives or activities the commission of one or more underlying crimes, including acts by juveniles that would be underlying crimes if committed by adults; and (3) have in common an overt or covert organizational or command structure.” Md. Criminal Law Code Ann. § 9-801(c) (2011).

A pattern of criminal gang activity “means the commission of, attempted commission of, conspiracy to commit, or solicitation of two or more underlying crimes or acts by a juvenile that would be an underlying crime if committed by an adult, provided the crimes or acts were not part of the same incident.”

It’s not much of a stretch to apply these definitions to acts like the one that took place at that Germantown 7-11, or to any other incident of flash mob crime.

Moreover, as has been discussed on this blog, Maryland law permits, indeed requires, that the police report criminal gang activity to school officials whenever a student is involved as a perpetrator. Students who get sucked into flash mob crime are bound to get hit with the double whammy of criminal charges and school disciplinary action.

Because of the breadth of the existing law, and the novel nature of flash mob crime, it is essential that anyone involved in such activities have competent legal representation. Attorneys versed at juvenile law are the best bet for keeping yourself, or your loved one, out of juvenile detention or, worse, prison.

– Bryan D. Utter, Esq.

Some people see charter schools as the salvation of American education; others see charter schools as an attempt to “privatize” and eviscerate our public schools. This debate has now arrived on our doorstep, in Montgomery County, as two substantial charter school applicants are on track for implementation. One charter school, Crossway, was recently approved by the Board of Education and another, Global Gardens, is in the second stage of what is shaping up to be a lengthy and complicated appeal process.

Charter schools, an idea intended to promote innovation in education through the power of competition, have naturally held the greatest appeal in places where the local school systems have been the most dysfunctional — i.e. in urban centers with generally low levels of education, concentrated poverty, and high crime rates. But charter schools are not restricted solely to cities. As we’ve seen in recent news, charter school applicants have been popping up in suburban school districts around the country. In these districts, the appeal of charters is not so much looking for a way out of dysfunctional schools as it is parents looking for a way to expand and improve their child’s educational opportunities without resorting to private schools — which is still not an option for most families.

In the well-to-do suburban district of Millburn, New Jersey, a group of parents has been approved to open a Chinese-immersion elementary charter school intended to provide language learning opportunities that are not currently available in the district. Matthew Stewart, a leader of “Millburn Parents Against Charter Schools,” sees the Hanyu school as an attempt by some parents to get a “custom-tailored” education, which he sees as draining resources from the “regular” public schools, which, in his view, already provide a perfectly adequate education.

Many in Montgomery County are likely to share Mr. Stewart’s view of charter schools; however, I do not.

In examining the possible impact to MCPS students of charter schools it’s important to understand what a Maryland charter school is and what it isn’t. A charter school is a public school, not a quasi-private one. The administration of a charter school is every bit as accountable to its students, the parents of those students and to the public who support that charter school through tax dollars, as is any other public school. Like other public schools, charters are still accountable for educational results through the administration of MSAs and HSAs. Other forms of accountability, though, are implemented quite differently.

Regular public schools generally get their marching orders on curriculum and instruction from a central office, whereas a public charter school lays out a plan describing its own marching orders on curriculum and instruction (its charter) in advance. In a regular public school, school-level administrators are responsible for ensuring that “central office” policies on curriculum and instruction are being implemented, whereas in a public charter school, its administrators are responsible for ensuring that the purposes and regulations spelled out in its charter are being implemented. Others within the chartering authority are responsible for ensuring that such schools are indeed living up to their charters, and have the authority to revoke the charters of schools that are not.

Under Maryland law, a “public charter school” is a nonsectarian public school of choice. Md. Code Ann. Education §9-102. Such schools are chartered and overseen by the county school board for the county within which the school operates, and are considered a part of the public school system for that county.^[1] Charter schools are open to all students in the county, and if there are more applicants than spaces available, admission must be determined by lottery.

Charter schools are not allowed to reject students on the basis of a disability, any more than any other public school is. Charter schools are also still accountable for the education of students with disabilities, just as any other public school is: Charter schools must comply with the IDEA, and with Maryland state regulations implementing the IDEA and the ADA. Maryland law spells this out in detail, requiring county school boards to inform charter applicants about their obligations under the IDEA and under §504 of the ADA, as well as to ensure that such schools’ plans and policies support federal, state and county initiatives in Special Education. Md. Code Ann. Education §9-107.

In disciplinary matters, Maryland charter schools have taken a similar path. Although each charter school is free to craft its own unique Code of Student Conduct, frequently requiring students and parents to sign “conduct contracts,” the review and appeal process with regard to disciplinary infractions remains the same. Appeal of a disciplinary infraction may be first made to the board of directors for the charter school, but beyond that, appeal is then made to the appropriate “central office” personnel for the chartering authority (in our case, to the MCPS Appeals and Transfer Office). From there, any appeal would follow the standard path of appeal to the local Board of Education and then to the state Board of Education.

I am in favor of educational policies that help students get the kind of education they need. In fact, a “custom-tailored” education is exactly what we try to help students with disabilities obtain, every day. Why this should be only be a part of our thinking for students with disabilities is not clear; the education of students without disabilities should not be limited by a one-size-fits-all mentality.

I don’t buy the argument that this somehow takes funding away from our public schools. Remember, charter schools are public schools. In Maryland (as in most states), public funding for education follows the student; charter school students are funded at 98% of the per pupil expenditure by county. City Neighbors Charter School v. Baltimore City Board of School Commissioners, 169 Md. App. 609, 906 A.2d 388 (2006) .

In many states, teacher certification can be different for charter school teachers. In Maryland, not only do charter school teachers have to be state-certified, but they are also considered state employees — as are other public school teachers. Md. Code Ann. Education §9-105. Maryland, a strong union state, specifies that charter school teachers are covered by the county’s collective bargaining agreement with the teachers’ employee union (in our case, MCEA). Md. Code Ann. Education §9-108. Thus, not only are charter school teachers in Maryland held to the same professional standards as all other public school teachers in the state, they are also protected by the same public employee unions.

Given the protections in place for students and teachers in Maryland charter schools, I really only see an upside here for Montgomery County. Public charter schools, thoughtfully implemented and supportively overseen by a school board and school system looking to help the charter succeed, should simply be considered an attractive adjunct to the many other positive programs and initiatives already in place within MCPS.

– Karen Smith, Esq.

NOTE: THE VIEWS EXPRESSED HERE DO NOT NECESSARILY REFLECT THOSE OF HOOVERLAW, LLC.

Karen Smith, Esq. formerly served as “Of Counsel” to HooverLaw, LLC in matters involving education and special education law as well as other education law.

^[1] The State Board of Education can also charter and oversee such schools (as it has in Baltimore City), but the state Board is considered a “secondary chartering authority” under the law. Md. Code Ann. Education §9-103.

It all started the weekend of July 4. It was a calm Friday night in Silver Spring’s town center. Couples walked hand-in-hand, making their way to dinner or a movie. It wasn’t until later in the evening, Montgomery County Police Chief J. Thomas Manger reported at Tuesday’s public hearing, that a group of at least 70 juveniles and teens congregated for a late night gang fight.

The fight, which was broken up by police, resulted in the stabbing of a 17-year-old girl. The reasoning for the fight’s location, Manger said one of the teens reported, was because Prince George’s County and Washington, D.C. have curfews.

The incident, along with other gang-related juvenile crime in the area has given rise to Expedited Bill 25-11, which, if passed, will limit the night-time hours minors are allowed to be out in public.

Juveniles aged 17 and under will be restricted by the curfew from 11 p.m. to 5 a.m. on weeknights, and midnight to 5 a.m. on weekend nights. If caught in public, barring certain exceptions, juveniles will be escorted to the nearest police station where parents will be notified and required to escort their teen home.

Both sides of the proposal, those in favor of locking kids inside the house, and those opposed to discriminatory legislation, vociferously argued their side at Tuesday’s meeting. Manger, and County government members spoke for the proposal, noting a six percent increase in juvenile arrests in recent years and the thousand-plus gang members in Montgomery County.

Manger also noted a P.G. County study conducted by the police department on the effect of curfew, and said thought the curfew is not big crime-fighting solution, it is a tool to be used.

Other individual speakers took more of a middle-ground, noting that this bill will not fly, as is, without well thought-out amendments such as a sports and entertainment clause which would allow minors to attend late-night movies or events (recall Harry Potter’s many midnight showings).

Woody Brosnan, the Vice President of Safe Silver Spring, questioned if gang members would abide by the curfew.

Though Manger wants “good kids to be able to engage in healthy activities,” the proposed curfew will likely only limit the good kids who choose to abide by the curfew’s restrictions.

Abigal Burman, creator of the social networking-driven opposition group “Stand Up to the MoCo Youth Curfew,” fiercely argued against the proposal, citing several studies that show curfews don’t reduce crime. Burman also said that this curfew would “fracture the relationship between law enforcement and kids.”

Though both sides exhaustively drilled in their point, it’s is still anyone’s guess as to where the vote will fall at September 2′s hearing. And knowing this county, err this country’s ongoing necessity to postpone important legislative decisions, a final outcome may not even be reached by early September.

That being said, you know where we stand on this issue: Curfews should be left up to the parents.

– Patrick J. Hoover, Esq.

The outcome of the Casey Anthony trial sparked a drive for a new law. “Caylee’s Law,” as it has been dubbed after Anthony’s daughter, would impose on parents a duty to report the death or disappearance of their children in the event such a tragedy occurs.

If a report isn’t filed within a certain period of time, the parents of the child can be charged with a felony. Anthony, who was largely exonerated by the jury, waited approximately one month before telling the police that her daughter was missing.

That fact that this proposal was made is not surprising; the outcome of the trial was sure to elicit strong emotions no matter which way the jury went. But given that the media had long since declared Anthony guilty, when the innocent verdict was read it set off a firestorm.

That blaze gave life to an online petition calling for this new law. In only a few days’ time, that petition had over 250,000 signatures.

No matter how large such movements are at the start, those like the one behind Caylee’s Law have historically petered out over time. Emotions cool and people go back to their day-to-day lives, unless more fuel is thrown on the fire. The internet is a self-fueling fire. It is astonishing how much support this proposal has gained and how quickly.

Though it’s hard not to sympathize with the outrage that people feel over the jury verdict, if Caylee’s Law were put into effect, it would only lead to a waste of taxpayer dollars. At its core the proposal is clearly unconstitutional.

The courts of Maryland have already considered this issue. The case of In re Ariel G., 383 Md. 240 (2004) involved the trial of a mother who had allegedly helped her child run away from foster care. When the mother refused to testify as to the whereabouts of her child, the trial court held her in contempt. The mother appealed the trial court’s decision based on her Fifth Amendment right not to testify.

The Maryland Court of Appeals sided with the mother, holding that forcing her to testify would violate her right not to self-incriminate. The court based its holding in part on Hoffman v. U.S., 341 U.S. 479 (1951). In that case, the U.S. Supreme Court stated that the Fith Amendment is implicated where compelled testimony would “furnish a link in the chain of evidence needed to prosecute the claimant for a…crime.”

This law, if passed, would violate the principle laid out by the Supreme Court in Hoffman. Not only would it force people to speak despite the possibility of future criminal consequences for the speaker, it would punish those who chose to remain silent for simply keeping their mouths shut.

There are other reasons why Caylee’s Law would be unconstitutional, not the least of which is that it would run counter to federalism. Child protection laws are a matter left to the states to determine.

Any politician should think twice before getting behind this movement. Tempting as it may be to ride the groundswell of public opinion, passing Caylee’s Law would be a disservice to our democracy. Laws should never be based on visceral, in-the-moment emotional responses, and this proposal epitomizes the term “knee-jerk response.”

– Bryan D. Utter, Esq.

As parents we impose a lot of restrictions on our children.

You can only watch TV after finishing all your homework. You can only go to the concert if you get an A in math. You can’t get up from the table until you finish all your vegetables.

Now, following Ike Leggitt’s recent proposal, there may be another restriction we will have to enforce: Stay off the streets from 11 p.m. to 5 a.m. on weekdays and from midnight to 5 a.m. on weekends, or face detainment.

The expedited bill could bar any youth, age 17 and under, from roaming the streets past curfew without a sanctioned excuse such as being accompanied by a parent or authorized adult, or attending a school or work event.

Leggitt proposed the bill in early July in order to curb gang activity and crimes committed by minors. If passed the Montgomery County curfew will mirror similar curfews in the surrounding areas — P.G. County and Washington D.C.

But there’s one thing wrong with Ike’s proposal: Why propose a bill to stop youth crime when the the stats are already decreasing?

On June 10, Montgomery County Police Chief J. Thomas Manger announced that “total crime for 2010 decreased 7.5 percent from 2009.” Though that includes adult statistics as well the Department of Juvenile Services has seen a steady decrease in the number of new intake cases from 2006, including a difference of 11,637 between Fiscal Years 2009 and 2010.

It seems like Montgomery County is already doing a good job of decreasing crimes committed by juveniles, but the fact is teens are always going to get in trouble, not matter what we, as parents, do. And by imposing a curfew on Mont. Co. teens the County is only challenging rebellious minors to break the rules.

So, MoCo, let’s leave the curfews to the parents.

Read Expediated Bill 25-11 here.

To speak out against the bill attending the public hearing on Tuesday, June 26 at 1:30 p.m. at the County Council building (100 Maryland Avenue Rockville, MD). We’ll be there.

 

– Patrick J. Hoover, Esq.