Midwest Education Law

Dep't of Education Releases Guidance on Disability Laws

Jonathan F. (Jon) Duncan — Thu, 16 Feb 2012 00:00:00 GMT

The U.S. Department of Education recently provided two resources designed to aid schools in interpreting the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. The first resource is a Dear Colleague letter which highlights changes to the ADA adopted in 2008 (made effective in January 2009). The second resource is a Questions and Answers document which provides basic information about OCR and application of the statutory amendments to students, or other individuals, who may be protected by the ADA and/or Section 504. While neither resource can provide answers to detailed scenarios, both documents provide a good refresher on these important disability discrimination laws. The documents also include important policy-related reminders and links to other helpful authorities.

Federal Court Enjoins School District From Blocking Internet LGBT Content

William C. Odle — Thu, 16 Feb 2012 00:00:00 GMT

A federal district court in ruled yesterday that a Missouri school district must stop blocking web content geared toward the lesbian, gay, bisexual and transgender (LGBT) communities through use of its network filtering software. In Parents, Families, and Friends of Lesbians and Gays Inc. v. Camdenton R-III School District, plaintiffs claimed that the school district "implemented internet filtering software that systematically blocks websites expressing a positive viewpoint toward LGBT individuals, in violation of PFLAG's freedom of expression under the First Amendment." The software permits users to block internet content by content categories, such as pornography, advertising, and “sexuality.” The sexuality category automatically blocked sites offering LGBT-positive information, including those maintained by PFLAG and others, which plaintiffs alleged constituted unlawful viewpoint discrimination. The school district argued that the filtering software was necessary in order to comply with Children's Internet Protection Act's (“CIPA”) 47 U.S.C. § 254(h)(6)(B)(i), a federal statute requiring schools to protect children using school computers from viewing visual depictions that are obscene, child pornography, or harmful to minors.

The court was not persuaded, finding that the school district intentionally discriminatied against plaintiffs based on their viewpoint, largely because the district continued using what the court deemed a substandard content filter, URL Blacklist, depsite plaintiffs' objections and complaints from the ACLU. The court noted that URL Blacklist automatically categorized any LGBT friendly site under the block category of "sexuality," while allowing access to anti-LGBT sites which it categorized as "religious." The court found that the content blocker amounted to a "blunt instrument" that "systematically targets the highest-quality informational sites that express a positive viewpoint toward LGBT individuals," while actually failing to block up to 30% of CIPI prohibited sites. The court also concluded that other filtering systems are available that "are much more effective" at filtering out pornography "and do so without burdening websites that express a positive viewpoint toward LGBT individuals." In addition, the court rejected the district's argument that allowing students to request that sites be unblocked did not remedy the issue, because such requests were "not truly anonymous," and a cumbersome procedure could deter students seeking access to the gay-positive sites. "Students may be deterred from accessing websites expressing a positive view toward LGBT individuals either by the inconvenience of having to wait 24 hours for access or by the stigma of knowing that viewpoint has been singled out as less worthy by the school district and the community," the judge said.

Federal Court in Missouri Upholds School Drug Sweep

Stephanie Lovett-Bowman — Thu, 09 Feb 2012 00:00:00 GMT

A federal court sitting in Missouri recently affirmed the lawfulness of public school drug sweeps by trained drug-sniffing dogs. In its order, the United States District Court for the Western District of Missouri dismissed a lawsuit filed against the Springfield Public Schools in which two high school students claimed that a drug sweep violated their Fourth Amendment rights against unreasonable search and seizure.

The students sued the school district, as well as two administrators, after the district coordinated with local law enforcement to have a trained dog sniff student possessions for illegal drugs. The court’s ruling reaffirmed United States Supreme Court precedent that such drug sweeps do not implicate Fourth Amendment rights and are entirely lawful. The court also concluded that the school district’s policy relating to such sweeps was reasonable.

Missouri Legislators Debate Changes to Discrimination Law

Jonathan F. (Jon) Duncan — Wed, 01 Feb 2012 00:00:00 GMT

The Missouri General Assembly is currently considering two bills that would amend the Missouri Human Rights Act ("MHRA"). Among other things, both bills would change the legal standard applied in discrimination claims to mirror the standard applicable to similar claims under federal law. Specifically, under the present MHRA, claimaints must demonstrate that discriminatory animus was a "contributing factor" to an adverse action by their employer. However, SB 592 and HB 1219 would require claimaints to demonstrate that unlawful animus was a "motivating factor" for the employer's action. Although these bills are highly controversial, proponents and opponents agree that the differing standards are important in claims involving workplace discrimination. Also important are the caps on monetary damages contained in both bills.

The legislature passed a similar measure last year and Governor Nixon vetoed it on May 2, 2011. We will monitor closely all developments regarding this important debate and provide updates as appropriate.

OCR Issues Guidance For Complying with ADAAA

Stephanie Lovett-Bowman — Wed, 25 Jan 2012 00:00:00 GMT

The Department of Education’s Office for Civil Rights recently issued a “Dear Colleague” letter providing guidance for school districts regarding compliance with the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) as well as a frequently-asked-questions reference. The ADAAA is widely considered to have expanded the definition of a “disability” requiring accommodation. While the guidance does not provide new standards, OCR’s letter and FAQ are an additional reference for school officials sorting through disability accommodation issues.

Supreme Court Declines Opportunity to Clarify Online Student Speech

Stephanie Lovett-Bowman — Thu, 19 Jan 2012 00:00:00 GMT

The United States Supreme Court declined this week to review a pair of high-profile off-campus Internet student speech cases. Both cases involved students who were disciplined at school for posting fake profiles on the Internet of their school principals. The high court’s decision to decline review is a missed opportunity to clarify school districts’ ability to discipline students whose off-campus, online conduct may affect the school environment.

The two cases, which involved materially similar facts, drew national attention when the Third Circuit Court of Appeals issued decisions in the cases that reached opposite conclusions on the same day. In J.S. v. Blue Mountain School District, a middle school student posted a fake MySpace profile of her principal that contained crude content and vulgar language, resulting in a 10-day suspension. In Layshock v. Hermitage School District, a high school student was also suspended after creating a fake webpage mocking his principal.

After reviewing the cases en banc—with all Third Circuit judges participating—the Court held that the discipline applied by the schools in both cases violated the students’ First Amendment right to free speech.

NSBA Releases Food Allergy Resource Guide

Jonathan F. (Jon) Duncan — Wed, 11 Jan 2012 00:00:00 GMT

The National School Boards Association, through funding from the Centers for Disease Control and Prevention, produced and released a new resource regarding food allergies. It's titled "Safe at School and Ready to Learn: a Comprehensive Policy Guide for Protecting Students with Life-Threatening Food Allergies" and you can review it here. The guide contains recommendations for policies, best practices, medication protocols, communication channels, and prevention/evaluation strategies. It also contains other helpful tools including a checklist, glossary and list of allergy-related resources. As schools continue to see increased allergy activity, and related costs/exposure, this guide could be a great help to administrators and educators alike.

Agency Assistance Available for New FERPA Regulations

Jonathan F. (Jon) Duncan — Fri, 06 Jan 2012 00:00:00 GMT

The Family Compliance Policy Office of the U.S. Department of Education, together with the newly-created Privacy Technical Assistance Center, will host a webinar on January 11 to discuss new FERPA regulations. The webinar will summarize the recent regulatory changes, then focus primarily on new requirements for data sharing. As we've shared before, these requirements can be very technical and confusing. Agency officials are expected to share "best practices," which may help navigate these dangerous waters. In light of the Department's pledge to increase FERPA enforcement efforts, it's important to understand how the agency views schools' obligations under the new regulatory scheme. More information about the webinar can be found here.

Dep't of Education Releases New FERPA Regulations

Jonathan F. (Jon) Duncan — Fri, 02 Dec 2011 00:00:00 GMT

The U.S. Department of Education will publish its new FERPA regulations today in the Federal Register. The regulations, together with the appendix, span more than 250 pages and become effective on January 3, 2012. The appendix, which begins on p. 238 of the regulations, contains answers and forms that provide good information about FERPA and the new regulations. Changes announced in the regulations include, among other things, guidance on sharing student data for research purposes, increased enforcement authority and creation of the Privacy Technical Assistance Center. The Department also drafted a helpful overview, which provides a summary of the changes and links to additional resources. This would be the best starting point for reviewing the impact of the new regulations.

ESEA Reauthorization Debate Addresses Bullying and Discrimination

Jonathan F. (Jon) Duncan — Thu, 03 Nov 2011 00:00:00 GMT

Debate surrounding reauthorization of the ESEA continues, with a current focus on bullying prevention and protections for lesbian, gay, bisexual and transgender students. The U.S. Senate Health, Education, Labor and Pension Committee supported a bill in October reauthorizing the ESEA. The bill included provisions intended to address and minimize bullying in schools, but did not include the Student Non-Discrimination Act ("SNDA") or the Saft Schools Improvement Act ("SSIA"), both designed to give express protections for LGBT students. On November 1, 2001, a group of LGBT organizations wrote a letter to the Senate committee espressing their concerns about the reauthorization bill. Senators sponsoring the SNDA and SSIA (Sen. Al Franken and Sen. Bob Casey, respectively) say they intend to introduce their bills during debate on the Senate floor. Several organizations are supporting separate legislation designed to protect LGBT students, while others maintain that specific decisions about bullying protection should be made at the local level. We'll continue monitoring this debate and the potential impact on area schools and policies.

Appellate Court Rejects Parent's Challenge Regarding Visitation at School

Jonathan F. (Jon) Duncan — Thu, 22 Sep 2011 00:00:00 GMT

On October 1, 2010, we reported on a non-custodial parent's lawsuit against a school district in Iowa. Arguably trying to supplement visits allowed by a divorce decree, the mother sought access to her children during the school day. She sued because the school denied at least some of her requests.  At that time, the federal trial court rejected the mother's constitutional challenges and ruled in favor of the school district.

The mother subsequently appealed to the federal court that covers Missouri, among other states. The appellate court affirmed the trial court's opinion and ruled in favor of the school. Specifically, the court rejected the mother's argument that she has a constitutional right to "unfettered access" to her children during the school day.  Even if a parent has such right, the court ruled that the mother's rights were limited by a reasonable interpretation of the divorce decree establishing visitation arrangements. The court also noted that disputes about visitation terms could be presented to and modified by the domestic court.

While the case arose in the context of a custody dispute, the opinion provides helpful language about general parental demands of access.  The case also provides a good reminder about the importance of policies addressing this often emotional subject.

Kansas City School District Deaccreditation

W. Joseph Hatley — Tue, 20 Sep 2011 00:00:00 GMT

According to a report in The Kansas City Star, Missouri Education Commissioner Chris Nicastro is recommending to the State Board of Education that the Kansas City, Missouri School District lose its accreditation. A Missouri statute provides that an unaccredited school district must pay tuition and transportation costs for students within its boundaries who opt to transfer to an accredited district within the same or an adjoining county. Last year, the Missouri Supreme Court interpreted this law to mean that the "receiving" school district does not have discretion to reject the transfer student. (The case involved students from the St. Louis School District, which previously lost its accreditation.)

This is not, however, the end of the story. The case was sent back to a lower court for trial, where the affected school districts have mounted new challenges to the law. They have argued that the law violates the Hancock Amendment's prohibition against unfunded mandates, is impossible to comply with because of physical space limitations, and that it may result in violations of IDEA. That trial is now scheduled for January 23, 2012.

If the State Board in fact strips KCMSD of its accreditation, and you work in a school district that receives a transfer request from a KCMSD student, consult your legal counsel as soon as possible. We can also work with you to develop procedures for responding to such requests, or to position your district to defend against litigation stemming from transfer requests.

Mo. Senate Committee Revises Facebook Law

Stephanie Lovett-Bowman — Thu, 08 Sep 2011 00:00:00 GMT

Missouri lawmakers yesterday began the process of revising the controversial "Facebook law" that a judge recently enjoined from going into effect. Acting during a special session Wednesday, the Senate Education Committee unanimously passed a revised version of SB54. The revised bill eliminates the contentious provision regarding communications between teachers and students on social networking websites like Facebook. In its place, the new bill provides that school districts must have a social media policy in place by March 1, 2012, including "the use of electronic media and other mechanisms to prevent improper communications between staff members and students."

Continue to check this blog to follow the progress of the revised bill.

Dep't of Education Releases Report on Physical Education and Extracurricular Athletics for Students with Disabilities

Jonathan F. (Jon) Duncan — Thu, 01 Sep 2011 00:00:00 GMT

The U.S. Department of Education recently released a report entitled "Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Extracurricular Athletics." You can review the report here. The report outlines common barriers that restrict students' access to physical education and extracurricular athletics. It also contains information about resources and other data to improve participation rates among students with disabilities. The report (including exhibits) is only 20 pages in length and may provide assistance to school officials wrestling with competing interests in this area.

Court Strikes Down Portion of SB54

Jonathan F. (Jon) Duncan — Fri, 26 Aug 2011 00:00:00 GMT

As readers know, Missouri's so-called "Facebook Law" has received national attention. Although passed unanimously by the Missouri General Assembly, the core provisions subsequently generated much disagreement and a constitutional challenge. The court challenge to SB54 also made national news and a legal ruling today will no doubt also recieve attention. In short, the judge found unconstitutional the portion of SB54 precluding teachers from using non-work related internet sites that allow "exclusive access" to current and former students. The ruling is preliminary and may be rendered moot by further legislative action. Specifically, legislators had already pledged to clarify and correct the challenged provision and we will monitor developments. Importantly, all other provisions of SB54 remain in effect and should be followed unless and until amended by the General Assembly.

Off-Campus Instant Messaging Held to be Student Speech

William C. Odle — Mon, 01 Aug 2011 00:00:00 GMT

The U.S. Court of Appeals for the Eighth Circuit today affirmed the trial court's grant of summary judgment in favor a school district and against tenth grade student who was suspended for sending "instant messages" to various friends in which the plaintiff talked about bringing a gun to school and committing acts of violence. The case, D.J.M. v. Hannibal Public School Dist., can be found here.

The messages in question were sent by DJM through his home computer to various friends (who were also using their home computers), including messages to a female student, CM. Although CM initially believed DJM to be joking, she became concerned at the increasingly threatening nature of DJM's messages and alerted a school administrator, who in turn contacted police. DJM was taken into juvenile custody and later suspended for the balance of the school year. DJM and his parents sued the School District under Section 1983, alleging that the School District had violated the First Amendment because the instant messages in question were not "school speech."

Rejecting this claim, the court held that true threats are not protected by the First Amendment and here the school district was given enough information that it reasonably feared DJM had access to a handgun and was thinking about shooting specific classmates. In light of the district's obligation to protect its students and reasonable concerns created by other school shooting incidents, the district did not violate DJM's First Amendment rights by notifying the police about the messages and subsequently suspending him after he was placed in juvenile detention. The action was also appropriate under the school's authority to prevent a "substantial disruption" of school activities. The court also found that the district court did not abuse its discretion in remanding DJM's state law claim for administrative relief to Missouri state court after it dismissed his Section 1983 claims.

Missouri Establishes Law Protecting Student-Athletes from Brain Injury

Stephanie Lovett-Bowman — Thu, 14 Jul 2011 00:00:00 GMT

Missouri Gov. Jay Nixon signed into law this week a law that protects student-athletes from possible brain injury by requiring them to be removed from competition for 24 hours when they are suspected of having sustained a concussion. In such cases, student-athletes may only return to play if they receive clearance from a health-care provider.

The Interscholastic Youth Sports Brain Injury Prevention Act delegates to the Missouri department of health and senior services the task of promulgating guidelines to protect student-athletes against long-term injury. The Act does not specify precisely how school districts are to determine when a student-athlete is thought to have sustained a concussion, nor does the Act address whether a school district may be subject to liability for failing to remove a student-athlete from competition.

OCR Imposes Conditions on Use of E-Readers

W. Joseph Hatley — Fri, 01 Jul 2011 00:00:00 GMT

Last year, OCR issued a "Dear Colleague" letter to college and university presidents expressing concern over the increasing use of e-readers such as the Kindle and Nook to replace or supplement traditional textbooks. According to OCR, the use of such devices violated the rights of sight-impaired students, because the devices lacked a text-to-speech function. ("Text-to-speech" means that content on the screen will be read aloud.)

OCR recently issued a second "Dear Colleague" letter clarifying that its guidance to universities applies with equal force to elementary and secondary schools. At the same time, OCR released answers to Frequently Asked Questions regarding its restrictions on the use of e-readers. According to OCR, schools that provide content on e-readers must afford blind students "the opportunity to acquire the same information, engage in the same interactions, and enjoy the same services as sighted students." Likewise, students with other disabilities must be accommodated if the use of e-readers prevents them from accessing content in an "equally effective and equally integrated manner."

One possible solution proposed by OCR is to make tablet computers (such as an iPad) available to sight-impaired students, because they generally have a text-to-speech function. While tablets are more expensive than dedicated e-readers, their additional cost may be offset by the savings realized by replacing hardbound books with their electronic versions. Nonetheless, OCR's guidance should be studied carefully by schools considering a shift toward electronic textbooks.

Court Limits School's Authority to Regulate Off Campus Speech

William C. Odle — Tue, 21 Jun 2011 00:00:00 GMT

In part due to the rapid rise in popularity of social networking cites like Facebook, new questions have emerged about the extent of a school district's authority to regulate student speech that occurs off-campus. Up to now, the prevailing view has been that schools may discipline off campus speech which bears sufficient relation to the school environment, even if that speech does not cause “substantial disruption”under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). However, this may no longer be the case following two recent decisions by the U.S. Court of Appeals for the Third Circuit.

Last week, in two closely followed cases , the Third Circuit ruled that school districts may regulate off-campus student speech only where the speech poses a “poses a significant threat of substantial disruption.” Affirming its earlier ruling in one case and reversing in part the other, the court found that the schools in each case exceeded their authority and violated the First Amendment when they disciplined students for postings made on social networking sites.

InSnyder v. Blue Mountain School District,the district court originally upheld a school’s 10-day suspension of a14-year-old for her creation of a “profanity-laced” mock profile of her middle school principal on the social networking site MySpace. Reaching the opposite result, the lower court inLayshock v. Hermitage School District found that another school district’s discipline of a 17-year-old student for a similar posting on MySpace violated the student’s First Amendment rights. The MySpace postings in both cases were created after school hours, off campus and using non-school computers. On appeal, both cases where affirmed,prompting the Third Circuit to hear the case a second time en banc to resolve the panel split.

Using Tinker as a guidepost, the majority opinion in Blue Mountain found that school districts may discipline students for off-campus behavior only if it presents a significant likelihood of causing substantial disruption. The court found there was no such likelihood because the website parody was viewable only to a select number of the student’s friends and that, although “indisputably vulgar,” the student’s speech was nonetheless protected by the First Amendment. Similarly, in Layshock, the court found that the school district failed to show that the offensive internet posting created any on-campus disruption, concluding that “[i]t would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent” that it can when the child “participates in school sponsored activities.”

Missouri Supreme Court to Decide Whether School Districts Must Bargain in "Good Faith"

W. Joseph Hatley — Tue, 21 Jun 2011 00:00:00 GMT

Since a 2007 decision by the Missouri Supreme Court, Missouri school districts have been required to engage in collective bargaining with teachers' unions. That decision, however, left unsettled how far school districts were required to go in reaching an agreement. Language in the opinion, to the effect that school districts were free to reject any proposals made by teachers, suggested that school districts could adopt a "take it or leave it" approach.

Last month, though, the Missouri Court of Appeals issued a decision concluding that public school districts (actually a charter school in this case) must do more than merely show up for negotiations, and that they must instead bargain in "good faith." As anyone who has followed the NFL lockout can see, disputes over whether an employer has bargained in "good faith" can lead to litigation.

Perhaps recognizing that its decision plows new ground in the field of Missouri school district/teacher negotiations, the Court of Appeals transferred the case to the Missouri Supreme Court for a final decision. We expect the case will be reargued in the Supreme Court, and that a decision will not be rendered until later in the year. But this is certainly a case to watch over the next few months.

SCOTUS Ruling on Miranda in Schools

William C. Odle — Fri, 17 Jun 2011 00:00:00 GMT

Yesterday, in a closely divided 5-4 decision, the United States Supreme Court ruled for the first time that police must take into account a child's age in deciding whether to give a “Miranda warning” advising them of their constitutional rights, including the right to remain silent. You can find the Court's opinion in J.D.B. v. North Carolina here.Speaking for the majority, Justice Sotomayor stressed that children, particularly in the school setting, “will often feel bound to submit to police questioning when an adult in the same circumstances” would not. The Court noted that a student required by law to attend school, and who is subject to disciplinary action for disobedience, might well believe that he or she must answer all police questions.

The dissenting opinion complained that the Court is abandoning the objective,bright-line rule of Miranda, which is undeniably true. Yet,because the Court gave virtually no guidance as to at what age Miranda warnings should be given or precisely how an investigating officer should factor in age when making this decision, the practical effect may be that, out of an abundance of caution, law enforcement will give warnings to anyone who doesn’t appear close to eighteen years of age.

Draft IEPs

W. Joseph Hatley — Wed, 08 Jun 2011 00:00:00 GMT

Here's an interesting twist on a frequently-litigated issue in special education cases.

Parents of a student in California filed a due process complaint, alleging in part that the school violated their rights under IDEA by not giving the parents a draft of the IEP goals and objectives before the IEP meeting. The hearing officer and the courts rejected this argument, given evidence that the parents were able to contribute to the discussion and modification of the goals at the IEP meeting.

We occasionally see claims that schools violated IDEA's prohibition on "predetermination" by coming to the meeting with a draft of the IEP. These claims almost always fail, because thearing officers expectation that the school members of the IEP team should have given the IEP some forethought before the IEP meeting, given their more intimate knowledge of the student's day-to-day performance.

This case goes to show that when it comes to special education claims, schools are often faced with no-win arguments. Still, we believe it is generally a good idea, when possible, to formulate a draft of most of the IEP beforehand, with the possible exception of the placement recommendation, and to share the draft with the parents at or before the meeting. This contributes to a more efficient, focused meeting.

School's Ban on "I Heart Boobies" Bracelets Overturned

W. Joseph Hatley — Tue, 07 Jun 2011 00:00:00 GMT

A Pennsylvania middle school's effort to ban "I Heart Boobies" bracelets failed, when a federal court there ruled that the ban violated two female students' free speech rights. The court's decision explains the history behind the bracelets, and the legitimate public awareness campaign that motivated the marketing of the bracelets. The court further concluded that the bracelets were not lewd speech, given the context of the bracelets' purpose. Finally, the court discounted the school's contention that the bracelets had caused substantial disruption of the school, despite evidence that (as one might expect from middle school students) the bracelets had led to several off-color comments by other students.

Court of Appeals Upholds School District’s Policy Restricting In-School Distribution of Outside Group’s Flyers

William C. Odle — Thu, 02 Jun 2011 00:00:00 GMT

Exactly one year ago today, we blogged about the federal district court's decision in Victory Through Jesus Sports Ministry Foundation v. Lee's Summit School District. Victory challenged a policy that permitted youth and community groups closely affiliated with the school district the unlimited opportunity to have their informational flyers sent home with students, but which allowed other outside groups such as Victory only three distributions per year. Victory contended the flyer policy created an unlimited public forum and that providing it less access than other groups violated the First Amendment. Following a bench trial, the district court rejected this argument, finding that the school district's "backpack flyer" program did not create a public forum under the First Amendment and that the restrictions were a reasonable response to an otherwise unmanageable number of distribution requests.

Victory appealed and, on May 20, 2011, the U.S. Court of Appeals for the Eighth Circuit affirmed the judgment below. (The opinion can be found here and, for those interested, an audio recording of the oral argument is available as well.) The three judge panel agreed with the district court's conclusion that the flyer policy did not create a public forum open to all. This may seem an obvious point. However, while the use of school premises by religious groups is fairly well defined under the Equal Access Act, the law regarding the application of the First Amendment to speech that takes place in a non-physical forum is opaque at best. Some courts have indeed found that a school district can create a public forum by agreeing to distribute flyers for outside groups, thus risking constitutional liability if they exclude anyone for almost any reason.

It is also worth noting that, in addition to rejecting Victory's public forum argument, the Court found that the school district’s restrictions were reasonable because the policy provided for an alternative avenue of communication by posting the flyer information on the school district’s website. Finally, the panel rejected Victory's facial challenge to the policy based on the argument that policy gives school district officials “unbridled discretion” to grant or deny access, leading to suppression of free speech.

OCR Reminds Schools of Enrollment Rules

Jonathan F. (Jon) Duncan — Wed, 18 May 2011 00:00:00 GMT

In a recent "Dear Colleague" letter, OCR reminds school districts of familiar obligations not to discriminate against students in enrollment practices. The reminder is targeted at practices which "chill or discourage" the enrollment of students based on actual or perceived citizenship or immigration status. The letter then provides examples of appropriate and inappropriate information to consider when enrolling a student. A footnote also highlights special treatment for homeless students.

While the letter is unremarkable in terms of new developments, it contains pertinent information about student residency issues. These can by thorny questions and OCR's guidance may prove helpful before the 2011-12 school year.

Missouri Lawmakers Pass School-Related Sex Abuse Protection Act

Stephanie Lovett-Bowman — Tue, 17 May 2011 00:00:00 GMT

This week, just before the Missouri General Assembly concluded its legislative session, Missouri lawmakers passed the Amy Hestir Student Protection Act (SB 54), a bill aimed at protecting students from sexual abuse.

Among the various provisions, the Act requires school districts to adopt policies relating to information they may provide to other districts regarding former employees. Specifically, the Act requires school districts to disclose to inquiring districts when an employee was dismissed or resigned because of substantiated accusations of sexual misconduct. The Act also requires school districts to develop policies concerning teacher-student and employee-student communications, including appropriate use of electronic media and social networking.

Additionally, the Act creates a Task Force on the Prevention of Sexual Abuse of Children; prohibits registered sex offenders from being candidates for school boards; requires school districts to do employee training on identifying potentially abusive relationships between adults and children; and adds sexual contact with a student while on public school property and second and third degree sexual misconduct as offenses for which a teacher’s license may be removed.

Court Determines Bullying May Deny FAPE

Jonathan F. (Jon) Duncan — Tue, 17 May 2011 00:00:00 GMT

A federal court in New York recently concluded that the IDEA creates an affirmative duty to remedy disability-related bullying or harassment. Failure to do so may constitute a denial of FAPE in violation of the IDEA. The case involved a female student who was allegedly bullied and harassed because of her disability. The parents removed her from the public school, placed her in private school and sought reimbursement. The request was denied and the family sought judicial review after exhausting administrative remedies. The federal court allowed the parents' claim to move forward, findings as follows:

When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination.

This case is another reminder that allegations of bullying or peer harassment must be taken very seriously. Courts and administrative agencies look unfavorably on school officials who appear to dismiss reported misconduct, especially when tied to a student's disability.

Gov. Nixon Pledges to Veto Changes to MHRA

Stephanie Lovett-Bowman — Mon, 25 Apr 2011 00:00:00 GMT

Missouri Governor Jay Nixon has vowed to veto legislation recently passed by the General Assembly that would amend the Missouri Human Rights Act (MHRA), Senate Bill 188. The MHRA prohibits discrimination and harassment by employers, including school districts, based on protected categories such as race and gender.

In recent years, Missouri courts have interpreted the MHRA broadly and held that an employer is liable for discrimination when a protected category is a “contributing factor” in an adverse action. Under federal law, the standard for liability is a “motivating factor.” This seemingly minor wording difference has meant much greater risk to school districts and other employers who are accused of discrimination or harassment. The amendment approved by the General Assembly would align Missouri's standard for liability with the federal standard. The amendment would also eliminate the availability of punitive damages against school districts, among other changes.

In a statement, Gov. Nixton stated "This bill would make it harder to prove discrimination in the workplace, and would throw new hurdles in the path of those whose rights have been violated," Gov. Nixon said. "That is unacceptable." Gov. Nixon will outline his specific objections and take formal action on Senate Bill 188 at a public setting on Friday, April 29, 2011.

Federal Appeals Court Clarifies "Appropriate" Private Placement under IDEA

William C. Odle — Thu, 21 Apr 2011 00:00:00 GMT

Today the U.S. Court of Appeals for Eighth Circuit issued its decision in C.B. v. Special School District No. 1, affirming the district court's finding that the school district failed to provide FAPE, but reversing the lower court's ruling that the school district was not required to reimburse the parents for the cost of private tuition. The district court previously held that the parents' enrollment of C.B. in Groves Academy, a private school serving predominately learning disabled students, was not an appropriate placement, because it did not present the "least restrictive" learning environment. The district court reasoned that the IDEA expresses a preference for children with disabilities to be educated in the “[l]east restrictive environment,” and provides that “[t]o the maximum extent appropriate,” children with disabilities should be educated with children who are not disabled." Because ninety percent of the students at Groves had IEPs, the district court observed that it offered education in an environment that was largely restricted to students with disabilities. The district court found that the special education program available in the public schools “offered educational services similar to Groves but in a less restricted environment,” that C.B. benefitted from the social opportunities available in the general educational environment, and that the evidence did not establish that C.B. required “a totally segregated, private school environment” to make educational progress. The court accordingly found that Groves was not an “appropriate” placement under the IDEA.

Rejecting this reasoning, the Eighth Circuit stated that "[a] less restrictive environment is the ideal, but C.B.’s move to Groves after years of frustration in the public schools is a far cry from “the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes” that concerned Congress. We thus join the Third and Sixth Circuits in concluding that a private placement need not satisfy a least-restrictive environment requirement to be “proper” under the Act." (Citations omitted). As a result, the Court of Appeals held that the parents were entitled to reimbursement of tuition expenses for C.B.

Proposed Amendments to FERPA Regs

Jonathan F. (Jon) Duncan — Wed, 13 Apr 2011 00:00:00 GMT

Late last week, the U.S. Department of Education proposed amendments to regulations implementing FERPA. The changes are designed to allow use of data gathered in statewide longitudinal data systems (SLDS). Specifically, the proposed amendments would allow authorized representatives of state governments to access the data for purposes of evaluating academic programs, while still protecting the privacy of education records. Details of the proposed language and the anticipated impacts can be found here.

Comments on the proposal must be provided by May 23, 2011. Instructions for submitting a comment are set forth in the Federal Register at the link above.

Mo. Legislature Addressing Teacher Sexual Misconduct, Charter School Expansion

Stephanie Lovett-Bowman — Fri, 08 Apr 2011 00:00:00 GMT

Despite the school funding focus this session, the Missouri General Assembly is making progress on other school-related issues.

The Missouri Senate unanimously approved the Amy Hestir Act (SB 54) yesterday, which would require school districts to inform the state within 24 hours when a teacher is accused of sexual misconduct involving a student. The bill, which has not yet been approved by the House, would also require districts that fire teachers in verified abuse cases to disclose the information to other school districts that might be considering hiring those teachers. The bill would further forbid teachers from communicating via the Internet with current or former students in ways that are not accessible to district administrators or parents.

Additionally, Missouri Senate committees have also recently approved several bills that would expand charter schools, as well as legislation that would provide vouchers to students in unaccredited school districts to allow them to attend nearby private, public, charter or virtual schools.

Legislators Suggest School Funding Changes

Stephanie Lovett-Bowman — Fri, 04 Mar 2011 00:00:00 GMT

Education funding issues continue to dominate the Kansas and Missouri legislatures’ attention this session as both states struggle with large budget shortfalls.

In Kansas, House Speaker Mike O’Neal (R-Hutchinson) on Thursday urged the passage of a constitutional amendment that would require the Kansas Legislature to provide an "equitable distribution of public school funds." Currently, the Kansas Constitution requires the Legislature to make a “suitable provision” of funds to Kansas public schools. O’Neal said the change in language would prevent the Kansas Supreme Court from ordering the Legislature to increase school funding. Opponents of the measure argue that the change would effective remove the Legislature’s responsibility to provide adequate funding to public schools.

The Missouri General Assembly is considering several proposals that would alter the formula governing the way public schools are funded because formula-funded schools are facing a $330 million shortfall in 2013. On Wednesday, the Senate Education Committee held the General Assembly’s first hearing on the new funding proposals.

Kansas School District Gets Waiver From NCLB

Stephanie Lovett-Bowman — Fri, 04 Mar 2011 00:00:00 GMT

The McPherson School District has received a waiver from the No Child Left Behind Act of 2001 – the first such waiver in Kansas and probably the entire country. The Kansas school district asked the federal government for the waiver in September and was informed last week that the request had been granted.

McPherson Superintendent Randy Watson told the Kansas City Star that the district had not struggled to comply with NCLB, but the district anticipated it would in the future as NCLB’s requirements of the percentage of students required to meet grade-level standards increases. Thanks to the waiver from NCLB, McPherson will track its older students’ achievement by using tests developed by the same group that administers the ACT college entrance exams. The district will still have to show progress using the alternative exams, but it will be able to bypass NCLB’s 100-percent goal with its older students.

Missouri and Kansas Legislatures Consider School-Related Legislation

Stephanie Lovett-Bowman — Mon, 14 Feb 2011 00:00:00 GMT

While school funding is likely the dominant issue gaining school districts’ attention during this legislative session in both Missouri and Kansas, a number of proposed bills in both states could also affect schools.

In Missouri, the chairman of the Missouri House’s Committee on Elementary and Secondary Education, Rep. Scott Dieckhaus (R-Washington), has indicated his support for a number of measures, including bills tying teacher tenure to student performance, as well as those addressing open enrollment, social promotion, and cyberbullying. Bills that expand educational opportunities outside of the public school system for disabled students and those that expand Missouri charter schools also have the support of Rep. Dieckhaus. Last week, the House Workforce Development Committee heard testimony on HB 205, which would the Missouri Human Rights Act to provides protection to school districts and other employers against frivolous discrimination claims.

In Kansas, the chairman of the House Education Committee, Rep. Clay Aurand (R-Courtland), plans to hold hearings in March on a bill that would abolish the Kansas Board of Regents and the Kansas Board of Education in favor of having an Education Secretary appointed by the Governor. Other proposed legislation in Kansas includes a bill that would require online reporting of all expenditures by school districts and bills relating to at-risk students and non-resident students. The Senate is currently considering multimillion dollar budget cuts to schools after the House approved HB2014 last week. The bill would eliminate a $50 million budget deficit.

Continue to check this blog for updates on these bills and others.

Missouri Supreme Court Upholds Federal Law Providing Educator Immunity

Stephanie Lovett-Bowman — Fri, 11 Feb 2011 00:00:00 GMT

The Supreme Court of Missouri this week upheld the constitutionality of a federal law that provides immunity from civil liability for teachers and administrators. Congress enacted the Paul D. Coverdell Teacher Protection Act as part of the No Child Left Behind Reforms of 2001, but the Act has rarely been addressed by courts. The Act’s purpose is to provide teachers, principals, and other school professionals the ability to undertake reasonable actions to maintain order, discipline, and an appropriate educational environment without fear of civil liability. The Act provides immunity for teachers who, among other things, act within the scope of their employment and in conformity with federal, state, and local law.

In Dydell v. Taylor, the Missouri Supreme Court first upheld the constitutionality of the Coverdell Act and then held that the Act provided immunity from suit to former Kansas City, Missouri School District superintendent Bernard Taylor, who was sued for allegedly negligently permitting a student to assault another student. The plaintiff argued that Taylor had violated district policy, making the Act’s immunity inapplicable. The Court disagreed, saying that violating district policy was not sufficient to revoke the Act’s protection and that, nonetheless, there was no evidence that Taylor violated district policy anyway.

School Districts Must Enact Policies Accommodating Service Animals

Stephanie Lovett-Bowman — Wed, 02 Feb 2011 00:00:00 GMT

In September, the U.S. Department of Justice announced new regulations governing “service animals” in schools. Those regulations become effective March 15, 2011, and require school districts to modify their policies, practices and procedures to permit the use of service animals by individuals with disabilities.

According to the new federal regulations, the definition of “service animal” is limited to dogs and miniature horses that have been individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks that the animal performs must be directly related to the handler’s disability. Therapy dogs or emotional support animals do not qualify as “service animals." Schools may exclude service animals that (1) are out of control or (2) are not housebroken.

For more information, click here: http://tinyurl.com/4p56xvy.

New York Court Will Hear School Funding Case

Stephanie Lovett-Bowman — Fri, 21 Jan 2011 00:00:00 GMT

A New York state appellate court has allowed a lawsuit challenging New York City-area school funding to proceed. In the case, Hussein v. State of New York, the parents of students in eleven schools districts outside New York City have sued the state, arguing that school underfunding violates the state Constitution. The parents allege that substantial school underfunding is depriving New York City-area children of a basic education.

Challenges like the one initiated by the New York parents are becoming increasingly common as school districts struggle to balance budgets without sacrificing services for students. Courts are often hesitant to hear such cases because they involve complex state fiscal policy and social policy decisions, rather than strictly legal questions. Nonetheless, the New York appellate court agreed with a lower court that the case should be allowed to proceed because it dealt only with school funding in New York City, rather than policy choices at the state level.

EPA Symposium on Indoor Air Quality in Schools

W. Joseph Hatley — Fri, 14 Jan 2011 00:00:00 GMT

The EPA is currently conducting a symposium on Indoor Air Quality (IAQ) in the nation's schools. Here is an excerpt from the EPA's news release:

“Protecting children’s health is a top priority for EPA,” said Gina McCarthy, assistant administrator for EPA’s Office of Air and Radiation. “School kids, parents and teachers face challenges every day, so EPA designed the Tools for Schools Program to make sure that poor indoor air quality isn’t one of them.”

Poor indoor air quality in schools can impact the comfort and health of students and staff, which, in turn, can affect concentration, attendance, and student performance. Eight school districts across the country are being recognized at the IAQ Tools for Schools National Symposium for leading the way to improving conditions at their schools and taking action to prevent future IAQ health risks. The symposium focuses on a wide range of environmental risks, including radon, mold, pest management, and asthma management.

Here are a few tips schools can take to start improving their indoor air quality:

- Get an IAQ Tools for Schools Action Kit online
- Review the IAQ Coordinator’s Guide provided in the IAQ Tools for Schools Action Kit
- Develop an IAQ team and review current IAQ practices in your school
- Develop an IAQ program and encourage good IAQ practices across the school and community
- Test your school for radon

The IAQ Tools for Schools Program, launched in 1995, assists school districts in identifying the actions they can take to successfully plan and implement an effective IAQ management program.

More information on IAQ Tools for Schools: http://www.epa.gov/iaq/schools/index.html

“Just Cause” in Handbook Doesn’t Give District Employees More Rights

Stephanie Lovett-Bowman — Tue, 04 Jan 2011 00:00:00 GMT

An appellate court has ruled that a Kansas school district did not confer greater employment rights simply by defining the term “just cause” in the district’s employee handbook. The Tenth Circuit Court of Appeals, which hears appeals from Kansas federal court, recently denied a Unified School District employee’s due process claim because the employee lacked the required property interest in his employment to pursue such a claim.

Generally, demoted or fired employees may pursue due process claims when they have a property right in their employment – usually derived from a contractual requirement that the employee may only be terminated “for cause.” In the recent case, Brantley v. Unified School District, a driver for the school district’s food services department argued that because the employee handbook defined “just cause” under the heading “Suspension, Non-Renewal, Termination” he had a right to due process before being demoted. But the Tenth Circuit disagreed, reasoning that the “just cause” language referred to three categories of discipline that did not apply Brantley’s situation.

While the school district prevailed, the case serves as a reminder that employee handbooks must be carefully drafted to avoid claims like the one at issue in Brantley.

Health Plan Nondiscrimination Requirements Placed on Hold

W. Joseph Hatley — Mon, 27 Dec 2010 00:00:00 GMT

Senior school district administrators often have clauses in their employment contracts under which the school district pays both their individual health insurance premiums, and the additional premium for spouse and family coverage. This is generally not paid for lower-ranking employees of the district.

The 2010 health reform law includes a nondiscrimination rule that raised questions about the use of such clauses. Under the rule, insured group health plans (other than certain "grandfathered" plans) are prohibited from discrimination in favor of highly compensated participants in terms of either (a) eligibility to participate, or (b) the benefits provided under the plan. The employer/sponsor of plan violating this law is subject to an excise tax of $100 per day per non-highly compensated employee who is discriminated against. For larger school districts with hundreds of employees...well, you can do the math, and it isn't pretty.

We had received several inquiries about whether the new law would trigger penalties against school districts who are paying family premiums for senior administrators only. Apparently, the IRS received similar questions, because it issued last week a notice that insured plans will not be subject to the penalty until after the IRS issues further guidance on application of the nondiscrimination rule. We can't say for certain when that guidance will be issued, but the deadline for submitting comments to the IRS is March 11, 2011, so further word probably won't be forthcoming until the summer, at least.

In the meantime, new contracts and extensions of existing contracts should account for the possibility that this benefit could become impermissible.

ACLU Threatens Suit Over Banning of Controversial Bracelets

Stephanie Lovett-Bowman — Thu, 09 Dec 2010 00:00:00 GMT

A Kansas high school has attracted the attention of the American Civil Liberties Union after banning a controversial bracelet and suspending a student who violated the ban. After getting complaints, Junction City High School’s principal recently told students not to wear the bracelets, which read “I (heart) boobies!” A breast cancer awareness foundation produces the bracelets, as well as t-shirts with the same slogan. While the charity has hoped to utilize the eye-catching slogan to encourage involvement by teenagers, the bracelets have been banned at multiple schools across the country. The Junction City student who refused to take off his bracelet was suspended for two days.

On Wednesday, the ACLU sent the high school a letter threatening legal action, alleging a violation of the student’s First Amendment rights. The threat is probably not an empty one – the ACLU filed suit in Easton, Pennsylvania last month against a school district that suspended two students for wearing the same bracelets despite a ban. The following link provides the full story: http://tinyurl.com/2ecz4n2

EEOC Issues Regulations Governing Use of Genetic Information

Jonathan F. (Jon) Duncan — Fri, 12 Nov 2010 00:00:00 GMT

On May 21, 2008, President George W. Bush signed into law the Genetic Information Nondiscrimination Act ("GINA"). In adopting GINA, Congress noted the achievements in genetic research and the potential benefits to medicine. However, Congress was also mindful about potential misuses of genetic information in health insurance and employment. GINA addresses these concerns by prohibiting discrimination based on genetic information and restricting aquisition and disclosure of such information.

GINA required the EEOC to promulgate implementing regulations. The EEOC issued proposed regulations on March 2, 2009 and sought comment from the public. Comments were also solicited at a public hearing attended by interested stakeholders. The EEOC has now issued their final regulations, which become effective January 10, 2011. Like many administrative regulations, these regulations track the statute closely and provide clarification of unique terms and provisions. The regulations provide additional background about the statute and are designed to capture the intent of Congress. The EEOC's press release also provides insight into the the new regulations which may prove helpful to school administrators.

Frequency of Cyberbullying Poses Discipline Challenges

Stephanie Lovett-Bowman — Thu, 11 Nov 2010 00:00:00 GMT

Recent research confirms what school administrators and teachers already know: student-on-student bullying is now more likely to happen online than in person. A University of Minnesota child psychologist’s research indicates that while about 14 percent of adolescents report they have received face-to-face bullying, 48 percent say they have been subjected to bullying via virtual messaging. Cyberbullying – which can occur on social networking websites, cell phones, e-mail, and other electronic media – presents new challenges for school administrators who wish to impose discipline for conduct that occurs on electronic media, often away from school property. The legal landscape is not yet clearly defined in this area, where disciplined students often claim a First Amendment defense.

U.S. Department of Education Releases Technology Plan

Jonathan F. (Jon) Duncan — Wed, 10 Nov 2010 00:00:00 GMT

On November 9, the U.S. Department of Education released its National Education Technology Plan. The full title is "Transforming American Education: Learning Powered by Technology." A copy of the Plan, together with related information, is available here. The Plan is the result of 18 months of work by educators, government officials, members of the public and representatives from industry groups. They were charged with the task of drafting a vision for transforming the use of technology in classrooms across the country. To that end, the Plan lays out goals in the areas of learning, asessment, teaching, infrastructure and productivity. The aim is to achieve the goals by 2015. It is also important to note that the Plan, while focused on new technologies, recognizes the primary importance of good and effective teachers.

Missouri Court Affirms Validity of Cooperative Agreement Between School District and Sewer District

Jonathan F. (Jon) Duncan — Fri, 29 Oct 2010 00:00:00 GMT

The Platte County Circuit Court recently entered an Order rejecting a challenge to a cooperative agreement between a school district and the local sewer district. Cooperative agreements, which are expressly allowed by Missouri law, enable political subdivisions to work together and save resources on a wide variety of projects. The agreement at issue was designed to provide sewer services at an elementary school. It was challenged by local residents on a variety of legal grounds and Spencer Fane represented the school district. After hearing factual evidence and legal argument, the Circuit Court entered an Order affirming the validity of the agreement and rejecting the challengers' claims.

If carefully drafted, a cooperative agreement can be a powerful tool for finding cost-effective solutions to potentially expensive projects. This recent opinion is a reminder that cooperation between school districts and other state agencies is very important, especially in difficult economic times.

EPA to Regulate Emissions from Boilers at Schools

W. Joseph Hatley — Tue, 26 Oct 2010 00:00:00 GMT

In early 2011, the U.S. Environmental Protection Agency (EPA) is expected to finalize its "Area Source" boiler rule which will require first-time controls on air emissions from existing and new institutional boilers at schools, colleges, universities, and other institutions of higher education, as well as other commercial and institutional boilers.

EPA estimates there are 183,000 existing boilers at 92,000 separate facilities that will be covered by the Area Source final rule. "Institutional boilers" are combustion units that burn coal, oil, biomass, or natural gas as a means to generate steam or hot water for heat.

If your school has a boiler, now is the time to begin considering how these new rules will impact operations. For more information on any of these rules, or other recent environmental developments, please contact Andrew Brought at abrought@spencerfane.com, any other member of the Environmental Law Practice Group or Education Law Group, or your regular Spencer Fane contacts, at 1-800-526-6529. (Thanks to Drew for alerting us to this development, and authoring this post!)

Mich. ED Withholds $5 Million from Detroit Schools for IDEA Noncompliance

Stephanie Lovett-Bowman — Mon, 25 Oct 2010 00:00:00 GMT

The Michigan Department of Education has given the Detroit Public Schools a loud wake-up call. Citing persistent noncompliance with the Individuals with Disabilities Education Act, the Michigan Department of Education recently informed the Detroit Public Schools that it would be taking action to block $5 million in special education funding to the district. The penalty serves as a valuable reminder to school districts to consistently and effectively monitor their compliance with IDEA.

According Michigan ED, the Detroit Public Schools have failed to, among other things: monitor the district’s 7,000 disabled students’ progress, demonstrate that special education staff members are appropriately trained, and provide a list of qualified instructors, therapists, and social workers. The Detroit Public Schools’ problems were first identified in July 2008, and Michigan ED put the district under heightened scrutiny a year later when the district failed to show signs of improvement. The financial sanctions come as a last resort now that the district is still noncompliant, according to the Detroit News.

Click here for more about this story: http://tinyurl.com/22s8htf

Congratulations to Dr. Dennis Fisher (Park Hill School District), MO Superintendent of the Year

Jonathan F. (Jon) Duncan — Mon, 25 Oct 2010 00:00:00 GMT

Congratulations to Dr. Dennis Fisher, Superintendent of the Park Hill School District, for being named Missouri's 2010 Superintendent of the Year. Dr. Fisher was presented with the honor on October 23 by his colleagues in the Missouri Association of School Administrators. This is a high honor for the entire leadership team of the Park Hill School District.

Stephanie Lovett-Bowman Joins Spencer Fane’s Education Law Group as Associate

W. Joseph Hatley — Fri, 22 Oct 2010 00:00:00 GMT

The law firm Spencer Fane Britt & Browne LLP is pleased to announce the addition of new associate Stephanie Lovett-Bowman. She will practice with Spencer Fane's Education Law group in the Kansas City office. “The addition of Ms. Lovett-Bowman and her immediate contributions will further enhance client service and expand our Education Practice,” said Joe Hatley, Partner and Group Leader of Spencer Fane’s Education Law Practice.

Stephanie Lovett-Bowman received her J.D. from University of Kansas School of Law, where she was elected to The Order of the Coif and served as Editor-in-Chief of Kansas Journal of Law & Public Policy. She also received the Faculty Award for Outstanding Scholastic Achievement and took second place at the Moot Court National Criminal Procedure Competition in San Diego, California. Stephanie has degrees in journalism and political science from the University of Kansas, where she graduated with highest distinction. Prior to joining Spencer Fane, she served as an intern under the Honorable David Waxse, United States District Court. She is admitted to the Bar in Missouri.

Spencer Fane Britt & Browne's Education and School Law group boasts some of the most influential education attorneys in the Midwest, and has extensive experience representing public school districts, private or specialized schools and other education-related organizations and associations. Our attorneys help schools successfully resolve the wide variety of issues that confront them, including teacher tenure and termination, student discipline, students' rights, special education, athletics eligibility, contract negotiation, policy development, administrative compliance, complaint investigations and personnel matters. We also provide training and in-service assistance to paraprofessionals, teachers and administrators.

OCR Complaints on the Rise

Jonathan F. (Jon) Duncan — Thu, 14 Oct 2010 00:00:00 GMT

If your encounters with the Department of Education's Office for Civil Rights ("OCR") have been more frequent lately, you're not alone. After reviewing data obtained under FOIA, the Associated Press reports that OCR received nearly 7,000 complaints this fiscal year, representing an 11% increase over last year. Common allegations include discipline disparities based on race (particularly in connection with zero-tolerance policies), discrimination against students with disabilities, concerns regarding food allergies and intolerances and mistreatment of English language learners.

In the article, OCR acknowledges that most school officials do not intentionally discriminate against students. Rather, problems arise when school officials misunderstand their responsibilities under the non-discrimination statutes enforced by OCR. This is a timely reminder that unintentional disparities are also unlawful and great care should be taken to assure complete compliance with all non-discrimination policies and statutes. Administrators and teachers alike should always be familiar with their obligations under these authorities and conscious of good faith behavior which may inadvertently lead to discriminatory results.

“Spying” School District Settles Lawsuits for $610,000

Stephanie Lovett-Bowman — Tue, 12 Oct 2010 00:00:00 GMT

A Philadelphia-area school district has settled lawsuits filed by the families of two students who accused the district of tracking them through district-issued laptops. The students had alleged that the Lower Merion School District secretly spied on them and other students through the webcameras in their district-issued laptops. One student alleged that the District took hundreds of pictures of him while he was at home in his bedroom. The District said its laptop tracking program was intended to be activated when a student reported that a laptop was missing. After the allegations surfaced, the District suspended two staff members who oversaw the tracking and conducted an investigation, which the District reported found no proof that employees ever intentionally spied on students. Beyond the $610,000 settlement, the Philadelphia Inquirer reported that the team of lawyers and computer experts the District hired to defend the lawsuit had submitted more than $1 million in bills.

To read more about the lawsuits, click here: http://tiny.cc/1hocy

School Board Policies Regarding Drug/Alcohol Use Should Be Carefully Drafted

Stephanie Lovett-Bowman — Thu, 07 Oct 2010 00:00:00 GMT

As Homecoming season continues, school districts may want to re-examine their alcohol and drug policies for sufficient clarity. Unless they are carefully drafted, such policies may be vulnerable to challenge. For example, an Alabama court recently found a school district’s alcohol and drug policy to be too vague to pass the court’s muster. The Monroe County Board of Education’s policy stated that “no student shall carry, possess, or use drugs, drug paraphernalia, or alcohol” at a school function. Pursuant to this policy, Excel High School suspended a student who came to the school’s prom last spring after having ingested alcohol. The student did not have any alcohol on his person at the dance.

The Monroe County Board of Education disciplined the student because it interpreted its policy to include a student who has used alcohol shortly before attending school or a school-sponsored function or who is under the influence of alcohol while at school or at a school-sponsored function. But an Alabama court disagreed. The court concluded that the policy was unconstitutionally vague because it was unclear whether any student should have known that drinking alcohol before arriving at the prom constituted “use” of alcohol at a school function, which would trigger disciplinary measures. The court struck down the policy and reinstated the student at his high school.

Court Rejects Non-Custodial Parent's Legal Claims Regarding Visitation

Jonathan F. (Jon) Duncan — Fri, 01 Oct 2010 00:00:00 GMT

Unfortunately, domestic and/or custody disputes arising off-campus frequently create difficulties on-campus. This is old news to experienced educators. There are many examples of the problem, but disputes commonly arise over a non-custodial parent's request to visit a child at school. School officials work overtime to read and abide by court orders, follow appropriate parental instructions and otherwise navigate thorny questions without clear legal guidance. Many school districts have policies providing helpful direction, but even well-drafted policies cannot anticipate and address every possible scenario in this context.

Although uncomfortable for everyone involved, these disputes rarely lead to litigation. Parents often threaten to "lawyer-up," but most ultimately find other solutions. However, a non-custodial parent in Iowa followed-up on her threat and sued a school district when she was denied daytime visitation with her child. She filed numerous claims against the school in federal court, most alleging constitutional violations. In a lengthy opinion, the court rejected each of the parent's claims and dismissed the lawsuit. Among other helpful conclusions, the court noted that there is no constitutional right for a parent (custodial or otherwise) to visit a child during school hours.

Every case is obviously different and Iowa decisions are not binding in our region, but the court's analysis will prove helpful to schools making good faith efforts to balance the competing interests of disputing parents.

First Amendment Claim Denied for 10-Year-Old Who Wrote Violent Message

Stephanie Lovett-Bowman — Thu, 23 Sep 2010 00:00:00 GMT

A federal court recently upheld the constitutionality of a school district's suspension of a fifth grader who wrote a violent message on an in-school assignment. In Cuff v. Valley Central School District, the 10-year-old student's teacher assigned him to write a "wish" that would be publicly displayed during an open house for parents. The student wrote "blow up the school with all the teachers in it," prompting a suspension. The student later told school officials that he was only joking.

The Southern District of New York concluded the First Amendment did not protect the student's speech because the school district reasonably determined the threat was likely to cause a substantial disruption. The student had a lengthy disciplinary history of violent tendencies and similar past disturbing writings. The student's capacity to carry out the threat, young age, and the fact that the threat was written in response to a school assignment were immaterial.

To read the court's opinion, go to http://www.spencerfane.com/_FileLibrary/FileImage/Cuff%20v.%20Valley%20Central%20School%20Dist..pdf

Special Educators - Save Those Test Protocols!

W. Joseph Hatley — Mon, 20 Sep 2010 00:00:00 GMT

A school district in Texas was recently ordered to pay parents for the cost of an Independent Education Evaluation, after the district was unable to prove that its own evaluation was appropriate. The reason? The school had not retained the test protocols or the student's responses to the questions on the various assessments. According to the hearing officer, this violated IDEA in two ways. First, it violated the section of IDEA requiring that information obtained from all evaluation sources be documented. Second, it violated the rights of the parents to participate in the process of developing an IEP.

Schools should probably retain test protocols and student responses until it is clear that the evaluation in question is no longer relevant, e.g., when the student is re-evaluated. This does not necessarily mean that parents may see the test protocols, since there are often copyright or ethical restrictions prohibiting such documents from being reviewed by persons who are not qualified to interpret them. (In the Texas case, the parents had retained an expert who said her ability to critique the school's evaluation was hampered by the lack of protocols.) But they should be available in the event they are needed to show that a school's evaluation is accurate.

California Court Strikes Down Student Drug Testing Policy

Jonathan F. (Jon) Duncan — Thu, 16 Sep 2010 00:00:00 GMT

A recent post on this blog highlighted the vulnerability of certain drug testing policies when reviewed under state law. California has now provided another example of a policy failing to pass muster under requirements of a state constitution. Specifically, the California Court of Appeals unanimously upheld a lower court's order prohibiting enforcement of a student drug testing policy. Click here to review the opinion. The policy purported to cover any student participating in so-called "competitive representational activities." Those activities included traditional extracurricular athletics, as well as certain mandated curricular or co-curricular activities. The court questioned the effectiveness of testing in this context and also questioned the need to target these particular students for testing. Balancing these concerns against the students' privacy interests, the court found that the students were likely to prevail on their claims against the school district.

Although this policy can be distinguished from others based on its broad scope, the case provides a good reminder that drug testing is a sensitive area for school officials and courts. The need for testing, the language of testing policies and the unique provisions of state law are important factors in determining the propriety of a school district's effort to curb drug use among students.

Government Website Provides Central Resource for Information Regarding Bullying

Jonathan F. (Jon) Duncan — Wed, 15 Sep 2010 00:00:00 GMT

The U.S. Department of Education recently organized and hosted the Federal Partners in Bullying Prevention Summit. The meeting brought together educators, leaders from federal agencies and other associations determined to reduce bullying in our nation's schools. One result of the summit was creation of a website designed to centralize governmental resources on bullying. It contains information about bullying research and strategies for addressing the problem from various perspectives. It also contains articles, suggestions, videos and other information to help schools assure that students are and feel safe. This is especially important as many students report feeling intimidated at school and as technology continues providing additional methods of delivering intimidating messages.

The Importance of Retaining Student Evaluations

W. Joseph Hatley — Wed, 01 Sep 2010 00:00:00 GMT

Lesson from Texas case: Retain test protocols from evaluators. Neglecting to do so can interfere with a parent’s participation in developing an IEP. Take these steps to obtain test protocols and underscore their importance. (Aug. 31) NEW!

Key points:

· Retain documentation of students’ evaluation responses, scores
· Guard against evaluators’ destroying materials
· Explain usefulness of test protocols to IEP team

Lesson from Texas case: Retain test protocols from evaluators.

Failing to retain documentation of a student’s evaluation responses and scores violates the IDEA and can prove costly, as one Texas district recently learned.

In McKinney Independent School District, 54 IDELR 303 (SEA TX 2010), the district had to pay $6,780 for IEEs obtained by the parents of a student with autism, a speech impairment and undisclosed disabilities. That’s because the district neglected to obtain test booklets with the student’s responses from its evaluator, and the evaluator destroyed them.

The IDEA requires that information obtained from all evaluation sources be documented, the IHO noted. What’s more, the failure to retain these documents interfered with the parents’ participation in developing a program that matched the student’s needs.

“Right now, I wouldn’t be surprised if test protocols are not present at the majority of IEP meetings,” says Joe Hatley, a school attorney with Spencer Fane Britt & Browne LLP in Missouri. He adds, “This decision may lead parents and parent attorneys to make the issue of having evaluation documentation at IEP meetings a bigger deal in the future.”

Follow these steps to obtain test protocols and underscore their importance:

Discuss needed documentation with outside evaluators. Problems can occur when you contract with an outside evaluator to coordinate student assessments, as the district did in McKinney, says school attorney Karen VanDijk of California-based Best Best & Krieger LLP.

“Most district evaluators always file test protocols and know not to destroy them. But outside evaluators might not know about the requirement to retain records,” she says. The best way to inform them -- and to guard against their destroying test protocols -- is to build the requirement into a contract, she says.

“Write in the contract that the evaluator must give you the test protocols at the time he gives you the assessment. Make that a condition of being paid,” she says. This way, the evaluator knows from the outset what to provide the district, and you won’t have to keep sending reminders, VanDijk says.

Explain need for test protocols with team members. IEP teams may not ask for test protocols unless they have questions about the evaluation scores, VanDijk says. Other teams might worry that parents will examine the test protocols for errors.

“But they are entitled to do that if they want,” VanDijk says. “And if you don’t let them, you risk the parent claiming that you interfered with her participation.”

For example, suppose parents say their child struggles in math and writing, but your evaluator finds that the child functions at grade level. “That’s just the conclusion,” says Deborah Mattison, a parent attorney with Wiggins, Childs, Quinn & Pantazis LLC in Alabama. You have to let the parents look at the protocols to determine how the evaluator reached that decision, she says.

Also, VanDijk says, “it will be tough to defend your evaluation and findings if you don’t have anything that supports how you reached your conclusion.”

Consider other uses of test materials. For example, Hatley says, if a student is “right on the border” between being eligible or ineligible for IDEA services, looking at the student’s evaluation responses can sometimes help teams understand why an evaluator made a certain recommendation. Test materials also can help you develop an IEP for a student who is new to the district, Hatley says. “IEP teams don’t have a history of involvement with that child, so evaluation materials can take on a greater significance in these situations,” he says. Team members may want to look at the student’s responses -- not just the scores and recommendations -- to really get an idea of who that student is and what he needs, he says.

Heidi Sfiligoj covers IEP teams and other special education issues for LRP Publications.

August 31, 2010

Copyright 2010© LRP Publications

Study Examines Impact of Student Drug Tests

Jonathan F. (Jon) Duncan — Fri, 20 Aug 2010 00:00:00 GMT

The problem of drugs in schools is not a new one and the remedy is not obvious. School leaders, political bodies and private citizens have debated, implemented and litigated proposed solutions for years. One strategy which continues to see support is drug testing students who engage in extracurricular activities. At least one district in Missouri recently adopted such a policy. Finding sufficient protections in place, the U.S. Supreme Court has at least twice rejected challenges that student drug testing programs violate federal law. The result is not always the same, however, when challenges are lodged under state law. See, e.g., "Which Washington: Constitutions in Conflict," 19 Marq. Sports L. Rev. 231 (2009) (Jonathan Duncan and Kristina Giddings).

A common question running through the drug test debate is whether testing programs are effective in curbing use or abuse by students. A recent study released by the U.S. Department of Education provides current and relatively comprehensive information about the effectiveness of student drug testing policies. It may serve as a valuable resource to school officials who are exploring options for removing drugs from our public schools.

Another Genetic Clue on the Origins of Autism?

William C. Odle — Mon, 09 Aug 2010 00:00:00 GMT

In June, we reported on a groundbreaking study on the possible genetic causes of autism. Another recent scientific paper, published in the Archives of General Psychiatry and reported in this month's issue of Scientifc American, suggests further evidence of a genetic marker for autism might be found through studying hereditary "oculomotor deficits" (eye movement disorders) that appear with statistically significant frequency in close relatives to those with autism. These deficits are subtle, often asymptomatic and not clinically remarkable, but as the study reports, seem to provide some further indication of a genetic component to autism.

Missouri General Assembly Adopts Material Changes in Education Law

Jonathan F. (Jon) Duncan — Tue, 27 Jul 2010 00:00:00 GMT

This year, like last year, the Missouri General Assembly bundled many legislative changes impacting education into a single bill. That bill (HB 1543) was adopted by the legislature and approved by the governor. Most of the provisions become effective on August 28, 2010. The statute addresses a variety of important subjects including bullying, corporal punishment, dress codes, immunity from liability, administration of medication and conditions of suspension. Click here for a summary of these and other provisions of the statute. Familiarity with these provisions is important as many of them represent material departures from prior requirements.

Court Affirms OCR's Position on Cheerleading

Jonathan F. (Jon) Duncan — Thu, 22 Jul 2010 00:00:00 GMT

In a lengthy decision released today, a federal court in Connecticut ruled that Quinnipiac University violated Title IX by failing to provide equal partication opportunities to female student-athletes. The court gave the University flexibility to determine how it would bring itself into compliance with Title IX, but ordered submission of a compliance plan within 60 days. The court also ordered continuation of the women's volleyball program through the 2010-2011 season.

Key to the court's analysis was its conclusion that cheerleading is not a competitive sport. Accordingly, cheerleaders are not included when calculating athletic participation opportunites for females. The court's treatment of cheerleading is consistent with the position taken by the Department of Education, Office for Civil Rights. This is an important reminder in assessing compliance with anti-discrimination laws.

New FERPA Guidance From The Department Of Education

Jonathan F. (Jon) Duncan — Thu, 15 Jul 2010 00:00:00 GMT

The Department of Education recently published new guidance regarding disclosure of education records during emergencies and disasters. After providing a basic refresher on FERPA requirements, the Department answers a series of hypothetical questions in the context of natural or man-made disasters. Three items merit attention here.

First, the Department makes clear that the health or safety exception in FERPA "is temporally limited to the period of the emergency" and does not permit so-called blanket releases of information. Second, disclosure decisions must be made "on a case-by-base basis, taking into account the totality of the circumstances pertaining to a threat to the health and safety of the student or others." Third, the exception does not allow disclosure in connection with the threat of a possible or eventual emergency. In other words, disclosure of education records in connection with emergency preparation activities is not permitted.

The flexible standards acknowledge the discretion which must be afforded school administrators in an emergency. If an administrator can articulate a rational basis for disclosing personally identifiable information in an emergency, the Department of Education will defer to the administrator.

DESE Publishes Model Seclusion and Restraint Policy

William C. Odle — Mon, 12 Jul 2010 00:00:00 GMT

Recent changes in the law require school districts in the state of Missouri to develop a policy on the use of seclusion and restraint, as well as other responses to emergency or crisis situations, in which student and/or educator safety is at risk. Section 160.263, Mo. Rev. Stat., mandates that all school districts must adopt a written, comprehensive policy, covering the spectrum of behavioral interventions ranging from "time-outs" to physical restraint, no later than July 1, 2011. Last week, the Missouri Department of Elementary and Secondary Education published its Model Policy on Seclusion and Restraint. The Model Policy should provide a useful starting point, but given that this is an area rife for litigation and the fact Congress is pondering its own restraint/seclusion legislation (House Bill 4247, the "Keeping All Students Safe Act," which is awaiting passage in the Senate), there is as yet no one-size-fits-all solution.

Children's Division Impacted by State Budget Woes

Jonathan F. (Jon) Duncan — Wed, 07 Jul 2010 00:00:00 GMT

As everyone in the education community is aware, budget concerns are putting a pinch on many state services. The Missouri Department of Social Services, Children's Division (formerly known as DFS), is no exception. According to a letter sent to school administrators, the Children's Division is changing its intake procedures in order to help field workers focus on reports of child abuse or neglect. Specifically, the hotline staff will make an initial determination of whether a call constitutes a report of abuse or neglect. If it does, the operator will send a report to field staff. If the call does not constitute a report of abuse or neglect, the operator will provide resource referral information directly to the caller (rather than contacting an investigator in the field). The letter from Children's Division does not modify a mandatory reporter's obligation to make a hotline call when warranted by law.

National Charter Schools Conference this Week

William C. Odle — Wed, 30 Jun 2010 00:00:00 GMT

The National Alliance of Charter Schools is holding its 2010 National Charter Schools Conference in Chicago this week, which runs from June 28-July 1. Keynote speakers include Reed Hastings, Founder and CEO of Netflix, Arne Duncan, U.S. Secretary of Education, and Bill Gates. You can find the full text of Mr. Gates' Keynote Speech here.

More on the First Amendment and Religious Freedom

William C. Odle — Mon, 28 Jun 2010 00:00:00 GMT

Today, the Supreme Court handed down its last decisions of this term, including the opinion in Christian Legal Society v. Martinez, in which it held that a public law school, the Hastings College of Law, can legally deny recognition to a Christian student group (the "CLS") that prohibited gay and lesbian students from joining. In this case, "recognition" meant certain benefits, such as use of school funds, facilities, and channels of communication, as well as the right to use the school's name and logo. The CLS required members to sign a statement of faith and regards ''unrepentant participation in or advocacy of a sexually immoral lifestyle'' as being inconsistent with that faith. The law school maintained that no recognized campus groups may exclude people due to religious belief or sexual orientation under the school's anti-discrimination policies.

In a 5-4 decision, a sharply divided Court denied CLS's claim that the law school's refusal to grant it official recognition was a violation of the group's First and Fourteenth Amendment rights to free speech, expressive association and free exercise of religion. ''In requiring CLS -- in common with all other student organizations -- to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations,'' said Justice Ruth Bader Ginsburg, writing for the five member majority. She further noted that the ''CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy.''

Groundbreaking Study on Genetic Link to Autism

William C. Odle — Thu, 24 Jun 2010 00:00:00 GMT

Amid the confusing flood of competing, sometimes controversial (or even dubious) theories on the causes of autism and autism spectrum disorders, comes a recent study published earlier this month by scientists working as part of the Autism Genome Project ("AGP"). The study, which has received surprisingly little attention outside the scientific and medical communities, appears in the June 9, 2010 issue of the journal Nature. Although there has been speculation regarding whether, or to what extent, genetics might play a role in autism, the AGP study actually found rare, specific genetic variants that appear to be associated with autism spectrum disorders. Many experts believe this could lead to objective diagnostic tools and even potential avenues of treatment. The term "groundbreaking" is often too loosely applied, but here we think it is apt. For anyone interested in this subject, this is a development we will continue to follow closely.

Supreme Court Declines to Hear 5th Circuit Case About Parent Attorney's Fees

Karen Randolph Rogers — Tue, 22 Jun 2010 00:00:00 GMT

Yesterday the U. S. Supreme Court declined to review a Fifth Circuit decision that a parent acted unreasonably by rejecting a school district's settlement offer and continuing the case for more than three years. That decision resulted in denying the parent's request for over $45,000 in attorney's fees.

The case, El Paso Independent School District v. Richard R., 53 IDELR 175 (5th Cir. 2009), cert. denied, 110 LRP 35628 (U.S. 6/21/10), is the seventh special education case denied certiorari by the Supreme Court this year.

During the resolution session prior to the due process hearing, the school district made a settlement offer of all relief sought by the parent plus reasonable attorney's fees. The parent rejected this offer and continued with litigation for three years, arguing before the Fifth Circuit that the proposed settlement offer would not have been enforceable. The Fifth Circuit disagreed, ruling the parent could not recover attorney's fees for work performed after the settlement offer. In addition, the Fifth Circuit noted it had discretion as to whether to award attorney's fees for work performed prior to the written offer of settlement. The Court then vacated the lower court's award of $45,804 in attorney's fees for work performed prior to the settlement offer, citing the unreasonable protraction of the litigation as the reason for precluding such an award.

Supreme Court Rejects Challenge to NCLB from NEA

Karen Randolph Rogers — Wed, 09 Jun 2010 00:00:00 GMT

The Supreme Court has rejected the opportunity to consider the appeal of the NEA and school districts in Michigan, Texas and Vermont challenging the No Child Left Behind Act (NCLB) as an unfunded mandate. The Court issued its refusal without comment.

The appeal in the case, School District of the City of Pontiac v. Duncan (Case No. 09-852), focused on a provision in NCLB that explicitly prohibits requiring states or school districts "to spend any funds or incur any costs not paid for under this act." The NEA wanted the Supreme Court to consider whether this language would also prevent the Department of Education from requiring states to spend their own funds to meet NCLB requirements. The suit was initially filed during the Bush Administration. However, the Obama Administration's Solicitor General, Elena Kagan, filed a brief on behalf of the Department of Education's Secretary Arne Duncan urging the Court to decline review of the case. Kagan has since stepped aside from her Solicitor General position while her nomination to the Supreme Court is pending. The Administration argued that the NCLB expressly moves away from dictating funding levels and instead provides states with "unprecedented flexibility to target federal dollars to meet state and local priorities."

The case came to the Court after an 8-8 deadlock decision in the Sixth Circuit Court of Appeals, leaving the original dismissal of the case in 2005 by a federal district court intact.

School District Wins Religious Discrimination Challenge to Campus Advertising Limits

William C. Odle — Wed, 02 Jun 2010 00:00:00 GMT

School policies restricting advertising by non-school related groups have come under fire by various religious organizations, who argue that such restrictions result in viewpoint discrimination under the First Amendment. A federal court decision handed down last week from Missouri sheds light on these issues and suggests how to place reasonable, constitutional limits on scarce school information resources.

The case focused on the Lee's Summit School District's polices on advertising to students by outside groups. Faced with growing requests to distribute informational flyers, the District limited those groups permitted frequent distribution to select organizations, such as the PTA, the Chamber of Commerce and specific community youth sports associations, with whom it had a close affiliation and history of support. Plaintiff conducted a religious based soccer camp and alleged that the denial of the same opportunity to was due to its viewpoint and unconstitutional.

The court disagreed, finding that the District's policy was reasonably intended to limit the mass of papers sent home with students, and that the District's refusal to distribute the plaintiff's flyers was not based on the plaintiff's religious views. The Court observed that to hold otherwise would be to force the District into an "all or nothing" choice of either distributing flyers for any group who might request it or none at all. The ruling should provide some guidance for school districts facing similar issues. However, it remains subject to appeal and, as with most things First Amendment, there is likely to be more litigation in other jurisdictions, so caution is advised.

Doctor Who Linked Autism to the MMR Vaccine is Banned for Being Unethical

Kristina V. Gidding — Tue, 25 May 2010 00:00:00 GMT

In 1998, a British doctor named Andrew Wakefield published the first study suggesting a connection between autism and the MMR vaccine. On May 24, 2010, England’s top medical group ruled that Dr. Wakefield conducted his research unethically and then banned him from practicing medicine anywhere in England. Even before today, 10 of the 13 authors who worked with Dr. Wakefield on the 1998 study renounced its conclusions. Additionally, in February 2010, Dr. Wakefield was found guilty of acting unethically during his research study on autism.

All of the recent events regarding Dr. Wakefield have focused on the way his research was conducted rather than the science behind his conclusions; nonetheless, many doctors who dispute the science and assert that the MMR vaccine is safe cite today’s ruling as support for the idea that Dr. Wakefield’s study should not be relied upon.

Student’s Complaint About Assignment Sparks Investigation

Karen Randolph Rogers — Tue, 25 May 2010 00:00:00 GMT

A teacher at Francis Howell High School in St. Charles, Missouri is currently under investigation regarding her decision to show her students the Michael Moore movie “Sicko” and write about the persuasion techniques used in the movie for the class final assignment. Details of the story first emerged on a local St. Louis blogger website and later picked up by the St. Louis Post-Dispatch. The student, Celeste Finklebine, told the newspaper the purpose of the assignment was to analyze different forms of persuasion. She complained that the teacher, Debra Blessman, chose the movie without first obtaining administrative approval for the assignment. “Sicko,” created by Michael Moore, a well-known filmmaker, offers a critique of the present U. S. health care system. Miss Finklebine was ultimately allowed to complete the assignment with a review of Dr. Martin Luther King’s “Letter from a Birmingham Jail.” Miss Finklebine also alleges the teacher called her a “teabagger” earlier in the school year, a reference to her participation in local “Tea Party” political activities.

A district official confirmed that teachers are supposed to consult with an administrator before showing a movie in class and explain how it relates to the curriculum. The district also noted that the matter would be handled through the district’s teacher evaluation process but would not comment on whether Ms. Blessman was disciplined, as the matter is a personnel issue.

Districts should ensure they have a clear policy developed in accordance with district legal counsel regarding the use of outside materials such as movies in the classroom, particularly if it contains politically charged or other potentially controversial content. Student or parent complaints about the chosen materials should be handled on a case-by-case basis and in some cases, an alternative assignment may be appropriate.

Religious Symbols on Government Property

W. Joseph Hatley — Mon, 24 May 2010 00:00:00 GMT

There was a lot of media hoopla about last month's Supreme Court decision involving the display of crosses in the Mojave Desert. Contrary to those reports though, the decision does not open the door to the wholesale erection of religious symbols on government property.

The case turned on the fact that by the time it reached the Supreme Court, the federal government no longer owned the land where the crosses had been placed. After a lower court had ordered the government to remove the crosses, Congress passed a special law requiring the government to swap that property, giving it to the VFW, which had originally erected the crosses in 1934 as a World War I monument. In exchange, the federal government was given some nearby land donated by a private citizen.

The Supreme Court ruled that since the property was no longer owned by the government, there was no way to conclude that the crosses were "government speech," nor an endorsement by the government of a particular religion.

This decision does not, therefore, really change the way school districts must analyze efforts to place religious symbols on school grounds. It is still something schools should shy away from, and this case is a lesson that high profile, contentious policies can't be based on how the media or pundits portray the law.

Social Networking Liability

Jonathan F. (Jon) Duncan — Tue, 20 Apr 2010 00:00:00 GMT

The many advantages and disadvantages of social networking sites and other electronic communications are now well-documented. While these technologies can be employed for great educational benefit, they can also create unintended liability for a teacher or a school district. You can read more about those issues here. There is a growing on-line resource, however, which may allow educators to communicate electronically with students while avoiding some of the pitfalls of Facebook, Twitter, MySpace and texting. The resource is not a cure-all for every electronic problem, but it may be worth reviewing to see if your district could benefit.

7th Circuit Case Offers Road Map for Districts to Protect Information Gathered in Internal Investigations as Privileged

Karen Randolph Rogers — Mon, 05 Apr 2010 00:00:00 GMT

According to a new federal court of appeals , school districts who want to protect sensitive information gathered in internal investigations may be able to claim it as privileged if they use outside legal counsel to conduct the investigation. Maintaining the information as attorney-client privileged would protect the information from being disclosed to adverse parties in future litigation, possibly help ensure frank discussions with employees involved in the matter and improve the district's ability to effectively investigate and respond to complaints. The court lays out a road map for making the investigations privileged in the case. The attorneys in the case took several important steps as noted by the court. First, the attorneys advised employees during confidential interviews that they represented the school board, not the employee, and the school board had control over whether the conversations remained privileged. Second, no third parties attended the interviews. Third, the board received the report from the attorneys in an executive session closed to the public. Fourth, the written summary of the investigation was marked "Privileged and Confidential," "Attorney-Client Communication," and "Attorney Work Product." Finally, the attorneys and school board president submitted affidavits to the court affirming the law firm was hired to provide legal advice in the the context of facts it uncovered during the internal investigation. When requesting the assistance of outside counsel in such investigations, school districts should also consider asking legal counsel to draft any reports or interview summaries with an eye toward possibly disclosing them in support of its case in future litigation, should it become advantageous to do so.

PSRS/PEERS Regulatory Changes

W. Joseph Hatley — Thu, 01 Apr 2010 00:00:00 GMT

The PSRS/PEERS Board of Trustees changes to regulations which define termination, clarify the limits of working after retirement and require employers to maintain a log of hours and earnings for future retirees. The changes are effective for anyone retiring on or after July 1, 2010. It will be important to review these regulatory changes which mark a departure from past practices.

OCR to Ramp Up Enforcement

W. Joseph Hatley — Mon, 08 Mar 2010 00:00:00 GMT

The New York Times today that OCR plans to open up compliance reviews of 32 school districts. While it is not surprising that the Obama administration intends to be more vigorous in the enforcement of civil rights laws, the approach that OCR plans to take is a bit unprecedented. Instead of just confirming that a school district has policies requiring, for example, equal opportunities for women in athletics, OCR plans to dig deeper to see if the policies actually have resulted in the exercise of those opportunities.