"School Law Blogs" via Scott McLeod in Google Reader

I am the Walrus (...er, IDEA Remedies) Tour Continues

Jim Gerl — Fri, 17 Jul 2009 10:04:23 PDT

My IDEA Remedies Tour continues next week in Portland, Maine. I will be addressing the Remedy of Reimbursement for a Unilateral Placement. I'll also be doing a continuing legal education session on a special ed law update. The 6th annual Education Law Conference will feature excellent sessions on all aspects of law and the schools. The Wingspread group will also have meetings and sessions there; it tries to make legal education and other types of education more inclusive. You can review the conference website here.

Image via Wikipedia

There is still time to register for the conference which is sponsored by the University of Southern Maine and the university of Maine Law School. Here is a registration link.

I had a great time last week on the first leg of the tour. I spoke on the remedy of Compensatory Education for special ed law violations at the Seattle University Academy for IDEA Hearing Officers and ALJs. I met a bunch of great people and got to spend some time with some old friends. The networking at these conferences is as valuable as the educational sessions. If you can, you should go.

------- Thanks for subscribing! Jim Gerl

Clash of the titans: Google v. Microsoft

Andrew Paulson — Fri, 17 Jul 2009 09:12:21 PDT

Last week, Google effectively declared war on Microsoft by announcing the Google Chrome OS, its new operating system (OS) for personal computers. Everyone is still debating the ramifications and likely outcomes of such a move, and while the debate continues, people overlook the fact that this competition is a storied one. In fact, as Mashable writes: it’s become almost routine.

For a good overview of where the battle now stands check out Mashable. In short, from search, to documents, to e-mail, Google and Microsoft have been competing for quite some time. The difference now is that Microsoft has dominated the operating system market for decades.

Sure, we’ve had the various Mac OS’s, Linux, Unix, etc., but these take up a small piece of the market altogether. Microsoft has reigned. And now they’re being challenged by an established corporation.

Moreover, they are attempting to rethink what an OS should be. To quote Google:

Google Chrome OS is an open source, lightweight operating system that will initially be targeted at netbooks. Later this year we will open-source its code, and netbooks running Google Chrome OS will be available for consumers in the second half of 2010. Because we’re already talking to partners about the project, and we’ll soon be working with the open source community, we wanted to share our vision now so everyone understands what we are trying to achieve.

So what does this all mean for education. Good things BoardBuzz hopes. Schools are already looking at netbooks and cloud computing as solutions that can work and work well. If Google successfully creates a simple, efficient, and stable open-source (free) OS that even further unlocks the capabilities of netbooks, then great.

What do schools need in an OS as far as classroom use? As ZDNet reports:

Students need to get online (fast), take notes, write essays, blog, manage their social networks, email, etc. Our 1:1 implementation are largely focused on having students be able to write, communicate, collaborate, share and research anytime, anywhere. Guess what? A netbook that boots within seconds into a browser with immediate access to Google Apps would fill the bill quite handily.

Sounds good to BoardBuzz. Let the innovation begin.

Real progress on a big health issue

Daniela Espinosa — Fri, 17 Jul 2009 08:52:45 PDT

BoardBuzz is excited to see some real progress in tobacco prevention. The Family Smoking Prevention and Tobacco Control Act was recently signed into law by President Obama, and is the strongest action the federal government has ever taken to reduce tobacco use. Tobacco exposure is associated with deficits in reading, math, reasoning ability and language development among elementary-school-aged children, and exacerbates asthma, a leading cause of school absences. (And all that is in addition to causing cancer and premature death when used as the manufacturer intends!).

This new law will finally grant the U.S. Food and Drug Administration (FDA) authority to regulate the manufacturing, marketing and sale of tobacco products - just like it does for other products ranging from breakfast cereal to lipstick.

Notably, this new law will:

Restrict tobacco advertising and end all tobacco company sponsorship of sports and arts events
Stop illegal sales of tobacco products to children
Ban candy-flavored and fruit-flavored cigarettes
Require large, graphic health warnings that cover the top half of the front and back of cigarette packs
Ban misleading health claims such as “light” and “low-tar”
Strictly regulate all health claims about tobacco products to ensure that they are scientifically proven and do not discourage current tobacco users from quitting or encourage new users to start
Require tobacco companies to disclose the contents of tobacco products, as well as changes in products and research about their health effects
Empower the FDA to require changes in tobacco products, such as the removal or reduction of harmful ingredients or the reduction of nicotine levels.
Fully fund the FDA’s new tobacco-related responsibilities with a user fee on tobacco companies so that no resources are diverted from the FDA’s current work.

That said, the new law is meant to complement, not replace, successful tobacco prevention work at the state and local level. Schools and districts can do their part by checking their tobacco policies to make sure they are comprehensive - allowing no tobacco use of any kind on any school property by anyone, at any time.

The Centers for Disease Control and Prevention’s Guidelines for School Health Programs to Prevent Tobacco Use and Addiction are an excellent resource for helping schools achieve health and education goals through comprehensive tobacco policies. To access these guidelines and other information and resources on tobacco-free school policies, please visit NSBA’s National Consortium on Tobacco Use Prevention through Schools webpage or email schoolhealth@nsba.org.

2009 Legislative Session Closes with Seventeen Education Related Bills Passed; New Legislation Requires Boards to Take on More Responsibilities for Student Health, Safety and Environmental Related Issues in Schools

cdugas@bmdlaw.com (Carolyn Mazanec Dugas) — Thu, 16 Jul 2009 07:33:09 PDT

The 2009 Connecticut General Assembly has adjourned leaving in its wake seventeen new legislative acts pertaining to education. The 2009 legislation passed by the General Assembly and signed by the Governor focuses largely on health, safety and environmental related issues among other areas and ranges from an act requiring the use of green cleaning products in the schools to one governing the regulation of the use of asthmatic inhalers and epi-pens in schools by students to another requiring boards to have defibrillators in each of its schools to those of a more mundane nature like the one passed regarding uniform reporting forms for preschool and child care programs. Here is a summary of some of the more interesting bills passed during the 2009 regular session:

*PA 09-131 signed by the Governor June 18, 2009 effective October 1, 2009, requires, rather than allows, boards once every three month, to substitute crisis response drills for the monthly fire drills required in schools under their jurisdiction. The crisis response drill format must be developed in consultation with law enforcement and allow a representative from such agency to supervise and participate in the drill. Boards must also conduct a fire drill no later than 30 days after the first day of the school year and at least once per month thereafter.

*PA 09-94 signed by the Governor on June 2, 2009 effective July 1, 2009 requires boards of education on and after July 1, 2010 to have at each of its schools, if funding is available, an automatic external defibrillator (AED) and school staff trained in its use and in cardiopulmonary resuscitation (CPR). Such equipment and staff shall be accessible during the school's normal operational hours, during school-sponsored athletic practices and athletic events taking place on school grounds and during school sponsored events not occurring during the normal operational hours of the school. Schools generally and those having athletic departments are further required to develop an emergency action response plan addressing appropriate use of school personnel to respond to individuals experiencing sudden cardiac arrest or similar life-threatening emergencies. Related legislation, *PA 09-59, signed June 5, 2009, grants immunity in a lawsuit for damages for acts arising out of a person’s or entity’s negligence in providing or maintaining an AED except for instances of gross, willful or wanton negligence.

*PA 09-81 signed by the Governor on June 11, 2009, effective 10/1/09, requires each local and regional board of education to implement a green cleaning program by July 1, 2011 in schools to help ensure a healthier air quality for students, faculty and staff. The act requires school districts to use cleaning products inside their schools that meet guidelines or standards set by the Department of Administrative Services in consultation with the Commissioner of Environmental Protection. The act also places a number of new reporting requirements on districts pertaining to the green cleaning programs. In commenting on this legislation, Governor Jodi Rell is quoted as saying ”It is about time we cleared the air. This signals the end of harsh, toxic chemical cleaners used around generations of schoolchildren”.

*PA 09-199 effective September 1, 2009 requires the Department of Safety to notify, via electronic mail, the superintendent of schools in a community when a sex offender is released into such community.

*PA 09-155 effective requires the State Department of Education to adopt regulations to permit children diagnosed with either asthma or an allergic condition to retain possession of asthmatic inhalers and automatic pre-filled cartridge injectors at all times while attending school provided a written authorization for self-medication signed by the child’s parent or guardian and an authorized prescriber is submitted to the school nurse. This act also requires boards to make available on either the board or each school’s web site the district’s plan for managing students with life-threatening food allergies. If such web sites do not exist, the board must make the plan publicly available by some other means that it selects. The act further requires boards to provide notice to parents/guardians about the plans along with a written statement about pesticide applications as required by 10-231c.

A comprehensive list of the 2009 education -related bills that were approved by the General Assembly and signed by the Governor can be found on the Connecticut State Department of Education website.

Sotomayor Pressed Again on Race

Mark Walsh — Thu, 16 Jul 2009 09:54:12 PDT

Sen. John Cornyn pressed Judge Sonia Sotomayor this morning on whether she could agree with Chief Justice John G. Roberts Jr.'s view, as the senator put it, that "the best way to stop discriminating based on race is to stop discriminating based on race." The Texas Republican was referring to Chief Justice Roberts's majority opinion in Parents Involved in Community Schools v. Seattle School District, the 2007 decision in which the Supreme Court sharply curtailed the ways school districts could permissibly use race in assigning students to schools. The chief justice's precise wording in his opinion was this: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Cornyn asked the question in regard to the much-discussed New Haven firefighters case, Ricci v. DeStefano. Sotomayor's responded to the Roberts quote by saying, "The best way to live in our society is to follow the command of the Constitution, provide equal opportunity for all. And I follow what the Constitution says, that is, how the law should be structured and how it should be applied to whatever individual circumstances come before the court." When pressed by Cornyn on whether she agreed with the chief justice's statement or not, Sotomayor said that expressing an opinion on that might suggest she agreed with the underlying decision in Parents Involved. "And that was a very recent case," she said. "I understand that you might not want to comment on what Chief Justice John Roberts wrote in an opinion, even though I don't think he was speaking of a specific case but rather an approach to the law which would treat us all as individuals with equal dignity and equal rights," Cornyn said."But let me ask you whether you agree with Martin Luther King when he said he dreamed of a day when his children would be judged not by the color of their skin, but by the content of their character. Do you agree with that?" I think every American agrees with that," Sotomayor said. To which Sen. Cornyn replied, "Amen."

Sen. Graham on the Supreme Court's Courage in Brown

Mark Walsh — Thu, 16 Jul 2009 09:27:13 PDT

We're into the last day of questioning of Judge Sonia Sotomayor by the Senate Judiciary Committee. And while there are a lot of questions for her, there is also much speechifying by committee members, with the Supreme Court nominee not always having the chance to respond or react. Sen. Lindsey Graham, R-S.C., expressed concerns again this morning about "society being changed by nine unelected people who have a lifetime appointment." "There are all kinds of stories to tell in this country, and the court has, in the opinion of many of us, gone into the business of societal change not based on the plain language of the Constitution, but based on motivations that can never be checked at the ballot box," said Sen. Graham, who then cites the one case where even conservative Republicans would now agree that judicial activism was necessary. "Brown v. Board of Education is instructive in the sense that the court pushed the country to do something politicians were not brave enough to do, certainly were not brave enough in my state," Graham said. "And if I had been elected as a senator from South Carolina in 1955, the year I was born, I would be amazed if I would have had the courage of a Judge Johnson [apparently a reference to the late Judge Frank M. Johnson of the U.S. Court of Appeals for the 11th Circuit] in the political arena." "But the court went through an analysis that separate was not equal," the senator continued. "It had a basis in the Constitution after fact-finding to reach a reasoned conclusion in the law and the courage to implement that decision. And society had the wisdom to accept the court's opinion, even though it was contentious and literally people died." Graham then turned to one of those "very difficult changes that are percolating in America," the question of gay marriage, without giving Judge Sotomayor the chance to chime in on his comments about Brown.

Strip-Search Cases and Judicial Diversity

Mark Walsh — Fri, 17 Jul 2009 12:28:37 PDT

Below is the exchange from Wednesday afternoon in which a member of the Senate Judiciary Committee lauded Judge Sonia Sotomayor for her dissent that would have barred all strip-searches of girls in a juvenile detention center. (As I noted in an earlier post, I had missed the exchange.) As it turns out, the question from Sen. Patrick Leahy, D-Vt., the committee chairman, does not draw much response from Judge Sotomayor about strip-searches or student rights. Leahy's basic logic appears to be this: Sotomayor once wrote a nice opinion against strip-searches. The Supreme Court had a case about strip-searches in schools, but at oral argument the men on the court weren't very empathetic about the intrusive search of the middle school girl. But Justice Ruth Bader Ginsburg makes her colleagues understand how bad this search was, and influences the case to the point where only one justice would have upheld the search. This, in turn, is why it is important to have diversity of gender (and other backgrounds) on the Supreme Court. In response, Sotomayor agrees with the proposition that it is good to have a diversity of backgrounds on the courts. Here is the exchange, as transcribed by me from C-Span:

SEN. LEAHY: In a different context, you sat on a three-judge panel on a case involving the strip-search of girls at a juvenile detention center. … In a dissent, you cited controlling circuit precedent, described what is involved in strip searches of these girls without individual suspicion, who had never been charged with a crime, … and warned that courts should be especially wary of strip searches of children, since youth is a time and condition of life when a person may be most susceptible to … psychological damage. As a parent and a grandparent I agree with you. You also emphasized that many of these girls may have been victims of abuse or neglect, or were more vulnerable emotionally or mentally than other youths their age. [Leahy notes that the Supreme Court this past spring considered a case about a strip-search in schools, Safford Unified School District v. Redding.] During oral argument in that case, one of the male justices compared the girl’s strip search to changing for gym class. Several other of the justices’ reaction was simply laughter. Justice Ginsburg, the sole female justice on the court, described the search as humiliating, something that most parents realize. [Leahy notes that the court rules for student Savanna Redding, with Justice David H. Souter's majority opinion "adopting Justice Ginsburg’s position and reasoning."] I believe these cases underscore the need for diversity. They underscore having judges with a different life experience on the federal bench, including the Supreme Court. It’s been said here several times deciding cases doesn’t just require a computer, it requires real people. It does require real people with different life experiences. You are a role model and a mentor to many young people. … How do you think it affects these young people to see only one woman on the Supreme Court today? How might it affect the confidence in the judicial system of litigants like young Savanna Redding? JUDGE SOTOMAYOR: Senator, I think it is one of the reasons that every president in the last, say, 20 or 25 years has attempted to promote diversity on a basic understanding that our society is enriched by a confidence that our legal system includes all members of society. I know that Justice Ginsburg has spoken about the fact of how much she misses Justice O’Connor, and not because she does not have a good relationship with her colleagues. … [It's important, Sotomayor says, that] Americans see [diverse] participation at every level of our legal system.

Breaking News: Facebook Group Now has Over 400 Members

Jim Gerl — Wed, 15 Jul 2009 15:34:44 PDT

Breaking News: the Facebook Special Education Law Group now has over 400 members. Congratulations! The group is an excellent place for special education law people to meet and exchange discussions and suggest resources to each other. Check it out here. A lot of interesting and dedicated members make the group a fantastic resource. I encourage you to take a look and join us if you like it.

Those who use Twitter might be interested in the Twitter Special Education Law Group. You can find it here. You can also follow my "tweets" on the left-hand side of this blog.

Other special education law groups are available for those who use LinkedIn, and Ning. These social networking groups all have their own flavor and style, but they all include great people and very interesting discussions. There are also links to all of these groups on the left-hand side of the blog.

Many of you have noticed some of my technical innovations. I especially enjoy experimenting with blog posts through email and through my cellphone. The slightly garbled posts on July eighth illustrate my ongoing struggles with the voice recognition software. {Insert joke her regarding a mixed Chicago-West Virginia accent.} It is exciting though to be able to post from conferences and other restrictive locations.

Please also check out the free subscriptions on the left-hand side of the blog. There are three ways to subscribe. You can receive the posts by email. You can get the posts in an RSS reader. If you have a blog or website, you can also create a widget to insert the posts into your own site. Thanks to all who subscribe.

Long Road to Brown Decision, Sotomayor Says

Mark Walsh — Wed, 15 Jul 2009 14:46:37 PDT

There were several factors that led the Supreme Court to overturn its “separate but equal” precedent with its landmark 1954 decision in Brown v. Board of Education, Judge Sonia Sotomayor said this afternoon. “Brown v. Board of Education has often been perceived as a radical change by some, and the public viewed it as a radical change,” Sotomayor said to Sen. Herb Kohl, D-Wis., who had asked her about when it was appropriate for the Supreme Court to overturn its precedents. “But if you look at the history over 20 years preceding” the Brown decision, Sotomayor said, “there were underpinnings that obviously gave the court some cause, some reason, to rethink this issue of ‘separate but equal.’” She noted that the justices, in weighing the cases challenging segregation in K-12 education, had the famous dissent before them by Justice John Marshall Harlan in the 1896 case of Plessy v. Ferguson. Harlan said “’separate but equal’ is just not consistent with the Constitution,” Sotomayor said. Besides the factors that allowed the Brown court to overturn Plessy, Sotomayor said other factors were important when a Supreme Court justice weighs whether to overturn precedent, such as how many times the court itself has reaffirmed a particular ruling. NOTE: I missed an exchange just before this one between Sen. Patrick Leahy and Sotomayor about the constitutionality of strip-searches of young people. (It came just after the committee had reconvened after a break.) I'll file an item after I have a chance to see the transcript of it.

Sotomayor: Education Beats Adjudication

Mark Walsh — Wed, 15 Jul 2009 10:43:58 PDT

Judge Sonia Sotomayor said that parenthood and the education system are the places for addressing the ills of society, not the courtroom. “By the time a criminal defendant ends up in court, they've been shaped by their lives,” the Supreme Court nominee told Sen. Amy Klobuchar, D-Minn. “If you want to give people the best opportunity at success at life—it’s a message I deliver frequently to my community—it has to be through early childhood forward. If you're waiting to do that once they're before a judge in court, your chances of success have diminished dramatically.” “And so one of my messages in many of my speeches to my community groups is pay attention to education,” Sotomayor continued. “It's the value mom taught me, but her lesson … was not lost on me when I became a prosecutor. And it's a lesson that I continue to promote because I so fervently believe it. The success of our communities depends on us improving the quality of our education of our children and of parental participation in ensuring that that happens in our society.” “We cannot remedy the ills of society in a courtroom,” Sotomayor went on. “We can only apply the law to the facts before us.” The hearing is plodding towards the end of its first round, in which each of the Judiciary Committee’s 19 members will have had 30 minutes to question the nominee. All of the panel’s seven Republicans have had their turn, so we are finishing up with the more junior of the 12 Democrats. The first round is expected to end this afternoon, followed by a traditional closed-door session between the committee and Sotomayor to go over things like FBI background reports and financial disclosures. Sen. Patrick Leahy, D-Vt., the committee’s chairman, says the second round, which could begin today, will allow for up to 20 minutes of questioning by any panel member who wants it.

Sotomayor, Again, on Racial Diversity in Education

Mark Walsh — Wed, 15 Jul 2009 09:23:25 PDT

The confirmation hearings of Judge Sonia Sotomayor veered into questions of diversity in education again this morning. For the second time, the Supreme Court nominee gave a lesson about the 2003 University of Michigan cases on using race in admissions. But curiously, neither Sotomayor nor the senator who raised the question today, Benjamin L. Cardin, D-Md., bring up the Supreme Court’s more recent pronouncement on race and diversity in education: the bitter 5-4 decision in the Seattle and Louisville student-assignment cases in which the court sharply curtailed the permissible uses of race in K-12 education. Sen. Cardin, noting that Sotomayor had fought for diversity issues as a student at Princeton University, said he wanted to “hear the importance from you of having different voices in schools.” Sotomayor, after acknowledging the value to society of seeing people of diverse backgrounds on the judcicial bench, then again recapped the Supreme Court’s decisions in Grutter v. Bollinger and Gratz v. Bollinger. In Grutter, the court upheld a race-conscious admissions policy at Michigan’s law school because it included individualized consideration of each applicant. But the court struck down a more mechanized race-conscious admissions plan for the university’s main undergraduate school. And she noted, as she had on Tuesday (see my blog post here), Justice Sandra Day O’Connor’s hope expressed in Grutter that 25 years from then, the use of racial preferences would no longer be necessary in education. “These situations are always looked at individually,” Sotomayor said. But this probably would have been a good point to bring up the court’s later decision in Parents Involved in Community Schools v. Seattle School District, an opinion authored by Chief Justice John G. Roberts Jr. The decision was widely viewed as a major reversal of course on race in education, led by Roberts and his fellow new justice, Samuel A. Alito Jr. In opening statements, several Democrats on the Judiciary Committee mentioned or alluded to the Seattle decision as an example of an area of the law where they were hoodwinked by Roberts and Alito. Meanwhile, Sen. Cardin also asked Sotomayor about a case in which, as Education Week’s Erik Robelen described it, the judge wrote a partial dissent from two fellow judges in a case alleging racial discrimination involving a black student in a Connecticut elementary school. In Gant v. Wallingford Board of Education, Sotomayor had agreed with her 2nd Circuit panel’s rejection of a claim that the school had acted with “deliberate indifference” to racial hostility the student allegedly encountered at school, but she contended in her dissent that the student’s family had grounds for proceeding with a claim that their son’s midyear demotion from 1st grade to kindergarten was driven by race. “I consider the treatment this lone black child encountered during his brief time in Cook Hill’s first grade to have been ... unprecedented and contrary to the school’s established policies,” Judge Sotomayor said in the dissent. Cardin today lauded her for the dissent, saying, “If you ignore race completely, you’re ignoring an important element.” In response, Sotomayor said: “In that case, there was a disparate treatment element, and I pointed out to the set of facts that showed or presented evidence of that disparate treatment. That's the quote that you were reading from, that this was a sole child who was treated completely different than other children of -- of a different race in the services that he was provided with and in the opportunities he was given to remedy or to receive remedial help. “That is obviously different, because what you're looking at is the law as it exists and the promise that the law makes to every citizen of equal treatment in that situation,” she added. One final note about Sen. Cardin’s exchange. Before bringing up the Gant case, Cardin told Sotomayor that he wants a justice “who will continue to move the court forward in protecting … important civil rights.” He then cited some well-known cases of people who suffered violence because of bias based on sexual orientation or race. “I [want] a justice who will fight for people like Lawrence King who, at the age of 15, was shot in a school because he was openly gay,” Cardin said. “I want a justice who will fight for women like a 28-year-old Californian who was gang raped by four people because she was a lesbian. And I want a justice who will fight for people like James Byrd, who was beaten and dragged by a truck for two miles because he was black. So we need to continue that -- that focus.” Sotomayor didn’t really have a chance to respond to those specific cases, as Cardin then raised the Gant case.

A JUSTICE SOTOMAYOR COULD BE A FRIEND TO SCHOOL DISTRICTS IN THE AREA OF SPECIAL EDUCATION

tgilsbach@foxrothschild.com (Timothy Gilsbach) — Tue, 14 Jul 2009 14:56:31 PDT

As the Senate determines whether Judge Sotomayor will become Justice Sotomayor, one issue that is likely to receive very little attention is her views on interpreting the Individuals with Disabilities Education Act (“IDEA”), a statute which provides various rights to students in public schools who have disabilities as well as to their parents. While there is always a risk in trying to guess what a judge will do when he or she becomes a justice and often times the facts of a particular case drive the result of their decisions, it appears, based on the limited information available, that a Justice Sotomayor would be a friend to school districts in this area. A few examples are helpful.

First, in the area of attorney’s fees, Judge Sotomayor has taken a strict interpretation of the portion of the statute which allows parents, when they are successful at a hearing to determine what special educations services are appropriate for a student, to obtain payment for counsel fees by the school district. In several opinions, Judge Sotomayor has taken the view that parents are only entitled to obtain attorney’s fees when that right is clearly established under the statute and refused to allow attorney’s fees in cases where the right was questionable or non-existent under the statute. Such a view is clearly one that is friendly to school districts and in many respects encourages parents and their counsel to be more reasonable in their efforts to resolve such cases prior to hearing.

Second, in reviewing the decisions of hearing officers and lower courts, in several cases she has deferred to state level hearing officers who have found in favor of school districts, especially in the area of tuition reimbursement. Judge Sotomayor has joined in several opinions that, when appropriate, overturn decisions of district court judges who have attempted to substitute their own opinion for that of the state level hearing officer to award parents tuition reimbursement. Such a role of ensuring that state level hearing officers decisions on the complex decision of tuition reimbursement, which many times results in the denial of the same to parents, is view that is helpful to school districts by limiting liability for tuition reimbursement only to those cases where it is clearly appropriate.

Finally, in the area of applying the statue of limitations under the IDEA, an issue which many courts have struggled to find a consensus, Judge Sotomayor has joined in at least one opinion that takes the stricter view on the statute of limitations finding that two years means two years. While other courts have found ways to try to expand the statute of limitations, a view that leaves open the possibility of more liability to school district, Judge Sotomayor joined in an opinion that would appear to limit potential liability to district.

Thus, although it is possible that a Justice Sotomayor would take a different view on cases as a Justice of the Supreme Court, based upon her record as an Appeal Court Judge, she may be a Justice that schools districts find to be district friendly in the area of special education.

The Commerce Clause and the Gun-Free School Zones Act

Mark Walsh — Tue, 14 Jul 2009 12:46:51 PDT

Sen. Dianne Feinstein this afternoon asked Sonia Sotomayor about cases in which the Supreme Court has struck down laws because Congress exceeded its powers under the Constitution’s commerce clause, including a 1995 ruling that invalidated the Gun-Free School Zones Act of 1990. The court held in United States v. Lopez that a federal law barring possession of a firearm near schools exceeded the commerce-clause power because the statute did not regulate commercial activity and did not require that the gun possession have a connection to interstate commerce. “Do you agree with the direction the Supreme Court has moved in more narrowly, interpreting congressional authority to enact laws under the commerce clause?” Sen. Feinstein asked Sotomayor. The nominee said she couldn’t give a broad answer, but if Feinstein had one particular case in mind, she could address the framework the court had used. Feinstein cited Lopez. Sotomayor then rather artfully described the holding in Lopez without really saying whether she agreed with it. “The court was examining, as I mentioned, a wide variety of factors,” Sotomayor said. “They included whether the activity that the government was attempting to regulate was economic or non-economic, whether it was an area in which states traditionally regulated, whether the statute at issue had an interstate commerce provision to -- as an element of the crime, and then considered whether there was a substantial effect on commerce.” She continued: “It looked at the congressional findings on that last element, the court did, and determined that there weren't enough in the confluence of factors that it was looking at to find that … that particular statute was within Congress's powers.” Feinstein pleaded for greater deference from the Supreme Court for Congress and its laws under the commerce clause power. “It's just that Congress has to have the ability to legislate,” the senator said. “And in those general areas, it's the commerce clause that enables that legislation.” Feinstein noted that Congress passed a new version of the law that sought to address the commerce clause concern by including more findings and requiring that prosecutors prove a nexus to interstate commerce for any gun charges brought under the act.

Sotomayor on Affirmative Action in Education

Mark Walsh — Tue, 14 Jul 2009 12:04:10 PDT

Sen. Herb Kohl, D-Wis., asked Judge Sonia Sotomayor today whether she agreed with Justice Sandra Day O’Connor’s prediction that race-based affirmative action would no longer be necessary 25 years after the Supreme Court’s 2003 decisions in the University of Michigan admissions cases. “Do you believe affirmative action is more justified in education than in employment?” Sen. Kohl asked this morning. “It is firmly my hope, as it was expressed by Justice O'Connor in her decision involving the University of Michigan Law School admissions criteria, that in 25 years, race in our society won't be needed to be considered in any situation,” Sotomayor said. “That's the hope.” In Grutter v. Bollinger, the Supreme Court upheld the University of Michigan law school’s “narrowly tailored” consideration of race. Writing for the majority, Justice O’Connor said, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Sotomayor today noted that “we’ve taken such great strides in our society” towards the goal of eliminating race-conscious government action." “But there are situations in which there are compelling state interests and the admissions case that Justice O'Connor was looking at, the court recognized that in the education field,” she added. The nominee went onto note that in the companion to Grutter in 2003, Gratz v. Bollinger, the Supreme Court struck down an undergraduate admissions plan at Michigan that had categorically assigned bonus points to members of certain underrepresented minorities. In Gratz, Sotomayor said, “the court determined that a more fixed use of race that didn't consider the individual was inappropriate, and it struck down the undergraduate admissions policy. That is what the court has said about the educational use of race in a narrow way.”

Sotomayor Defends Decision in Race Case

Mark Walsh — Tue, 14 Jul 2009 08:57:54 PDT

Judge Sonia Sotomayor this morning defended her appeals court panel’s decision in a controversial race case involving employment testing. The U.S. Supreme Court nominee was asked about the issue by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who told Sotomayor she has been attacked by conservatives as “biased and prejuduiced” for joining a decision that upheld the city of New Haven, Conn.’s action to discard a test for promotions in its fire department after African-American firefighters did not score highly enough to become eligible for promotion. A group of white and Latino firefighters appealed the decision to the U.S. Supreme Court, which ruled 5-4 last month in Ricci v. DeStefano that New Haven violated Title VII of the Civil Rights Act of 1964 when it discarded the test results. Today, responding to Sen. Leahy’s fairly friendly questions about the case, Judge Sotomayor said, “The issue in Ricci is what the city did or could do when it was presented a challenge to one of its tests. This was not a quota case.” Sotomayor said the city faced a possible “disparate impact” lawsuit from the black firefighters because the disproportionate results of the employment test. “Given circuit precedent, the panel decided the city’s decision was lawful under existing new law,” Sotomayor said, adding that the Supreme Court’s decision set a new standard under Title VII. Sen. Jeff Sessions of Alabama, the ranking Republican on the committee, pressed Sotomayor further about the case. “A lot of people were disappointed that the panel decision was so short,” Sessions says about what was indeed a short, unsigned opinion in the Ricci case by Sotomayor’s panel from the U.S. Court of Appeals for the 2nd Circuit. Also, Sessions says, Sotomayor’s withheld a vote that would have allowed the full 2nd Circuit to reconsider the case. Sotomayor responded that the panel’s decision relied on a “very thoughtful, very thorough” 78-page opinion by the district court below. “We were very sympathetic to firefighters who challenged the city’s decision,” Judge Sotomayor said of the three-judge panel, but the test clearly had a disparate impact, and under circuit precedent, the city could discard the test. The Supreme Court’s ruling changed the landscape on that, she acknowledged.

Alexa Posny Nominated as Secretary of OSERS

Jim Gerl — Tue, 14 Jul 2009 05:38:56 PDT

President Obama nominated Alexa Posny last week to serve as Assistant Secretary of Education for Special Education and Rehabilitative Services. Here is the official press release.

OSERS is the subdivision of the federal Department of Education that deals with both special education and vocational rehabilitation for adults. Here is a link to the OSERS website.

Alexa Posny is currently the Commissioner of the Kansas Department of Education. She has formerly served as Director of the federal Office of Special Education Programs and as the state Special Education for Kansas. Here is another biography of the nominee.

I have seen her speak and she is a very effective and witty communicator. Good luck to the nominee from the special education law blog.

Teacher's Blog May Not Be Free Speech

tgilsbach@foxrothschild.com (Timothy Gilsbach) — Mon, 13 Jul 2009 13:26:00 PDT

In a case out of the Ninth Circuit Court of Appeals, Richerson v. Beckon it was found that a teacher's blog entries were not protected speech and that the employee could be demoted for the same. In Richerson, a teacher was assigned to a position in which she served a mentor to others and was to provide less experienced teachers "honest, critical, and private feedback." The teacher maintained a blog in which she made "several highly personal and vituperative" comments about her employers, union representatives, and fellow teachers. While her blog did not identify these people, it was clear who they were from the description given in the blog. The teacher was demoted and filed suit claiming violation of her right to free speech.

The Court explained in the unpublished opinion that a public employee's speech, in order to be protected, must touch on a matter of public concern. The Court further explained that the speech is not protected when (1) it disrupts co-worker relationships, (2) interfered with the speakers performance of her or his duties, and (3) eroded a close working relationship based upon personal loyalty and confidentiality. Thus, the Court found this blog was not protected speech.

The case raises some interesting questions about other electronic postings, such as a Facebook or Twitter and whether those types of communications may also subject, under certain conditions, an employee to discipline.

Don’t forget school leaders, Mr. President

Kevin Scott — Mon, 13 Jul 2009 11:23:23 PDT

According to the Washington Post, this week will be an important one for urban leaders and the White House. The president will be holding a day long conference today to discuss its urban policy and is expected to announce a national tour of cities to discuss the issues they face (sounds a lot like the Arne Duncan tour). While campaigning, President Obama mentioned his desire to focus attention on cities, especially since prior administrations haven’t spent the time or money that he thought they deserved. We can only hope that this is the beginning of a longer conversation, that includes school leaders.

Adolfo Carrión, the director of Urban Affairs says:

“For too long government has operated from the top down…we’ve always heard why does the national government send down these unfunded mandates, under funded mandates, mandates that are not necessarily universally applicable. The bottom-up approach speaks to the need for this to be flexible.”

We agree, and if cities are truly looking at issues from a bottom-up approach, schools need to be at the table and included in these conversations. After all, where else do you have such a critical piece to your future than in urban schools? School leaders are often the most connected to what the community is doing, saying, and feeling about their neighborhoods, and they know what’s important locally. While business development, crime, and real estate values may drive what a city council or mayor’s office is doing, the school board and superintendent are just as aware and important to what’s happening around any city in the U.S. If we are looking at urban issues from the bottom up, let’s not forget the students in urban schools.

Sotomayor: Education Is Key to Success

Mark Walsh — Mon, 13 Jul 2009 15:41:46 PDT

Judge Sonia Sotomayor said today that hard work and education have been the keystones to her success. “On her own, my mother raised my brother and me,” Sotomayor said as she finally got to deliver her opening statement before the Senate Judiciary Committee on Monday. “She taught us that the key to success in America is a good education. And she set the example, studying alongside my brother and me at our kitchen table so she could become a registered nurse.” She said she “poured myself” into her studies at Cardinal Spellman High School in the Bronx, at Princeton University, and Yale Law School, while her brother, Juan, went to medical school. “Our achievements are due to the values that we learned as children, and they have continued to guide my life’s endeavors,” Sotomayor said. “I try to pass on this legacy by serving as a mentor and friend to my many godchildren and to students of all backgrounds.” Sotomayor went on in her relatively short statement—just over seven minutes—to stress her commitment to “impartial justice” and “fidelity to the law.” She steered clear of answering senators’ opening statements or any of the controversial points raised in advance of the hearing. She’ll have plenty of chances for that beginning Tuesday. The hearing resumes at 9:30 a.m. tomorrow.

Senators on the Strip-Search Case in the Supreme Court

Mark Walsh — Mon, 13 Jul 2009 12:41:43 PDT

The recent Supreme Court case involving the strip-search of a middle school student by school officials looking for drugs is getting some attention at Sonia Sotomayor’s confirmation hearing this afternoon. Sen. Dick Durbin of Illinois, a Judiciary Committee member and the No. 2 Democrat in the Senate, told Sotomayor that at oral argument this spring in the case of Safford Unified School District v. Redding, “several justices asked questions that revealed a stunning lack of empathy” for the student at the center of the case. One justice even suggested that a strip-search was no more intrusive into students’ privacy interests than when they have to change clothes for gym class, Sen. Durbin noted. He was referring to comments during the argument by Justice Stephen G. Breyer, a Clinton appointee to the high court. ("I'm trying to work out why this is a major thing," Justice Breyer said.) (My blog post here.) Indeed, at oral argument, the justices did appear to sympathize more with school administrators than with student Savanna Redding. But when the decision came down in June, the court voted 8-1 that the strip-search in the case violated the Fourth Amendment and that such searches were legal only when administrators had specific reason to believe that a student was hiding contraband in his clothes. Although she didn’t write the majority opinion in the case, Justice Ruth Bader Ginsburg spoke up at oral argument for the privacy interests of teenage girls, as well as afterward in an interview with USA Today in which Ginsburg suggested her male colleagues just didn’t get it. Sen. Amy Klobuchar, D-Minn., today cited Justice Ginsburg’s public comments surrounding the strip-search case in telling Sotomayor that “being a justice for all of us may mean bringing some real-world, practical experience into the courthouse.” Sen. Klobuchar also told the nominee that she appreciated the story about how Sotomayor’s mother saved up to buy her children—Sonia and her brother—a set of encyclopedias. “It reminded me of when my parents bought a set of Encyclopedia Britannica in the '70s that always held a hallowed place in the hallway,” Sen. Klobuchar said. “For me, those encyclopedias were a window on the world and a gateway to learning, as they clearly were for you.” “From the time you were 9 years old, your mom raise you and your brother on her own,” Klobuchar continued. “She struggled to buy those encyclopedias on her nurse’s salary, but she did it because she believed deeply in the value of education.”