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SpEd Law Do’s and Don’t (Part 2) Karen Haase Bobby Truhe Harding & Shultz (402) 434-3000 schoollaw@hslegalfirm.com H & S School Law @KarenHaase @btruhe


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The Plan for Today


The Plan for Today  How Lawyers took Over Education  Confidentiality of Student Information  Section 504 Update  Harassment and Bullying Issues  How to Testify


How the Law took over Education


The Early Day of Public Education  Colonial days: private schooling was the norm  Thomas Jefferson called for a system of public schooling for 20 young boys who could not afford private schooling  He advocated this plan by saying that it would enable them to “rake from the rubbish” 20 promising students


Rake from the Rubbish??  Education has been “raking from the rubbish” ever since  We are a country of immigrants.  Just about every immigrant group was considered “rubbish” when they first got here


Horace Mann  In the 19th century, public education became compulsory  Education was viewed as a moral enterprise  Horace Mann called for school board members to be “sentinels” who should ensure that every teacher is “clothes in garments of virtue”


We Diversify  In the late 19th and early 20th century, America became considerably more diverse  Newcomers crowded into public schools  Private schools begin to crop up  Very little law applied to public schools  “Where there is trust, there is little need for law and regulations” – Jim Walsh


th Mid-20

Century: Times Change

 1954: Brown v. Board of Education  1955: Rosa Parks boards the bus  1957: Mrs. Gump enrolls Forrest in school


th Mid-20

Century: Times Change

 1964: Congress enacts the Civil Rights Act  1969: Tinker v. Des Moines  1972: Congress enacts Title IX  1973: Congress enacts Section 504 of the Rehabilitation Act


th Mid-20

Century: Times Change

 1974: Congress enacts FERPA  1975: Goss v. Lopez  1975: Congress enacts precursor to IDEA  1985: New Jersey v. TLO


Law’s Strengths and Weaknesses  Law is good at answering big questions • Does the public school have to serve everyone? • Should students be granted constitutional protections at schools? • Should teachers be protected against arbitrary action by boards of education?


Law’s Strengths and Weaknesses  Law is bad at answering small questions • When can school staff discuss a special education student without the parents being present? • How should schools respond to students being unkind to one another? • What should a teacher be allowed to say in his/her Facebook page?


What We Need is Balance  System based ENTIRELY on trust will facilitate abuse of that trust. • It will work well for some but not for all • Will inevitably be in-groups and out-groups

• System based ENTIRELY on law will be ineffective • • • •

Paralysis Conflict Bureaucracy Resources spent on legal disputes not students


What We Need is Balance  We are not going back to the “good old days”  Nor should we  Trust will not govern automatically – it just be earned. We must show ourselves to be trustworthy  We must cultivate virtue in the profession  We must restore the idea that education is a MORAL ENTERPRISE


It starts with YOU  But if you want to cultivate virtue in the kids, you have to demonstrate it yourself  We must all be “clothed in garments of virtue”


 Maxwell  Crete


Three Areas for “Garments”  Confidentiality of Student Information  Acceptance of and support for all students  Bullying/Harassment Issues


Confidentiality


FERPA  Family Education Rights and Privacy Act (sometimes called “The Buckley Amendment”)  Response to perception of • Secrecy of files from students and parents • Disclosure of information to third parties


What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.


What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.


What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.


What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.


What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.


What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.


What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.


L.S. v. Mount Olive Bd. Of Ed. (D.N.J. 2011)

 Catcher in the Rye Assignment  Parent sued • School • Principal • Teacher • School psych.  Court: teacher and psych personally liable – other school defendants dismissed


Letter to Wolf (FPCO 2011)

   

Principal and teacher at volleyball game Parent sued school Parent also filed complaint with FPCO FPCO • “discussion should not have occurred in this public location and [staff] exercised poor judgment in breaching confidence” • Related lawsuit settled


Letter to Anonymous (FPCO 2013)

 Teacher’s practice was to e-mail each student who failed a test with a “remediation form”  Accidentally sent e-mail to entire group  Asked FPCO for guidance  FPCO • Violation of FERPA • Contacted school • Launched an investigation


Letter to Anonymous (FPCO 2013)

 Two school board members at board meeting discussing issue with sons  Parent filed complaint with FPCO  FPCO • Violation of FERPA • Emphasized broad definition of “school staff”


Acceptance of Disabled Students


Interesting SpEd Trends  Starting in 1973, students identified as disabled steadily increased every year  Population of students with disabilities peaked in 2004-05 at 6.72 million, comprising 13.8 percent of the nation’s student population  In 2005-06 special-education participation numbers began to decline  Currently 13.1 percent of all students nationwide are identified as disabled


Interesting SpEd Trends  Categories of disabled students also shifting: • SLD declined from 6.1 to 4.9 percent of all students nationwide • Mental retardation dropped from 1.3 to 0.9 percent of students • Autism quadrupled from 93,000 to 378,000 • OHI more than doubled from 303,000 to 689,000


Victoria Ind. Sch. Dist., (Tex. 2010)

 Student with fetal alcohol syndrome, developmental disability • Academically 3-4 years behind peers • Disruptive and non-compliant: fighting, tardy, walking out of class

 Parent told counselor family was considering residential placement because student was difficult at home as well


Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher e-mail #1: "Please promise that IF [student] DOESN'T get into a home somewhere that YOU will still insist that student goes to [a different] campus [Student] is very hateful to [aide] and myself ... Things have not improved at all. Student picks at those student can intimidate and I will have still have [sic] my other students next year and the personalities are clashing big time. I am so sorry I have to tell you but I can Not deal w/[student] much longer. I am trying to hang in until the end of May but I may have to take a medical leave if I don't get some relief.


Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher e-mail #1 (con’t): [The counselor] will not help you, do not be fooled, she is pussy footing around. [Principal] cannot help you, the District WILL NOT help you financially. You are wasting your time by contacting [ special ed director] or [superintendent]. [Special ed director] is a sweetheart but they have NO intention of putting money out for [student]. They are stalling, trying to pacify you. YOU know that I can bet my life on it.


Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher e-mail #1 (con’t): They are NOT going to fork out money ... they have already put a hold on any new special ed teachers being hired ... they have got to pay for those two new high schools. If you don't believe it call some school board members ... which by the way we need to vote them off!!!


Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher e-mail #2: "I havn't called you but DAILY [student] is [tardy] 2 or more times and constantly late from lunch. [Student] told me that student would f*ck me over ... student said it to me in class ... I should have written student up BUT they won't do anything about it so what is the use? I am sick and tired and I am sorry that [student] is on my last nerve … One day someone is going to knock student's socks off …. A regular ed kid will do student in, if not some thug if student acts that way with them.


Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher e-mail #3: "Please, please send student to the [ ] campus next year if you can't afford a home for student. Maybe they can help student, I can't help student behaviourly [sic]. [Student] needs to be in a behavior unit with a strong personality Male teacher. [Student's] ways are beyond me. I am sorry."


Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher said she was just frustrated when she e-mailed  Parent requested an 1:1 aid for student.  Teacher: won’t make any difference “student does what he wants once he’s made up his mind”  Parents privately placed, sued school


Time for a Break?


Section 504 of the Rehabilitation Act


When is school required to make a 504 referral?  When district believes that the student has a physical or mental impairment that substantially limits one or more major life activities AND  Student is in need of either regular ed with supplementary services or special ed. and related services


Changes to ADA  Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)  The ADA Amendments Act of 2008 increased the number of individuals who qualify for accommodation under both the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973.


Major Changes  First, the definition of “major life activityâ€? has expanded Now includes, but not limited to: Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.


Major Change #1  First, the definition of “major life activityâ€? has expanded Now includes, but not limited to: Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.


Major Change #2  Second, interpretation of “substantially limits” has been changed • Must evaluate impairment that is episodic or in remission in active state • Must not consider mitigating measures


Episodic Impairments  Asthma  Chron’s Disease  IBS  Any other disease that can “come and go” or has good and bad days  Must qualify “when active”


“Episodic 504 Plan”?  Heat-induced asthma  Concussions in subsequent years  Contrast with “transitory impairments”  Better solution: plan always in place with on/off accommodations


No “Mitigating Measures”  A student may be eligible under Section 504 even if the student’s disability or condition is “ameliorated,” whether by medication, technology, etc.  Keep in mind, you may be evaluating a hypothetical student


Mitigating Measures


Mitigating Measures  Medication  Medical supplies, equipment, appliances  Low-vision devices (NOT ordinary eyeglasses or contacts)  Prosthetics  Hearing aids/cochlear implants  Learned behavioral or adaptive neurological modifications  Reasonable accommodations or other auxiliary aids or services


Transitory Impairments  This part of the law did not change  A “transitory impairment” is defined as an impairment with an actual or expected duration of six months or less.  “Any impairment the duration of which is less than six months would not constitute a disability.”  James A. Garfield (OH) Local School Dist., 52 IDELR 142 (OCR Feb. 19, 2009).


“Technically Eligible”


“Technically Eligible”  “Necessity of services is not determinative of eligibility”  Conflict between eligibility and duty to evaluate  Eligibility: qualifying disability  Evaluate: qualifying disability + need for services


“Technically Eligible” Two Types  1: Disability is treated/in remission  Multiple concussions  Counseling services for specific trauma

 2: Student’s mitigating measures require no accommodations  Student with slight asthma  Student with cochlear implants


Health Plan ≠504 Plan


504/Health Plans  Tyler (Tx) Indep. Sch. Dist., (OCR 2010) • Health care plan for diabetic students • Required to evaluate under 504  Dracut (Ma) Pub. Sch., (OCR 2010) • Health care plan for peanut allergy • Required to evaluate under 504


Health Plan Action Steps  List of all kids with health plan  List of all kids on medication and list the meds  List of all kids identified by parent as having health condition  Train school nurse and school psych!


Rights of “T.E.” students  “General nondiscrimination provisions” still apply  OCR follows IDEA disciplinary procedures for Section 504  Does the student with cochlear implants get a manifestation determination for any discipline? • OCR: probably


Can We Just Provide Help without creating a plan?  No!!  Remember: disability education law is about PROCESS not RESULTS


Lunch!


Bullying and Harassment


“Garden Variety� Bullying Cases


Yap v. Oceanside Union Free S.D., (E.D. N.Y. 2004)

 Chinese-American student bullied by peers • Beginning in 4th grade • Called him names: “Chinese asshole,” “Chinese bitch” • Slapped in the face • Thrown into the emergency exit of bus • Mother called principal


Yap v. Oceanside Union Free S.D., (E.D. N.Y. 2004)

 Principal’s Response – 4th Grade • Met with victim and aggressors after initial report • Communicated with parents about problems • Required all involved students to eat lunch with her


Yap v. Oceanside Union Free S.D., (E.D. N.Y. 2004)

 Principal’s Response – 5th Grade • Met entire 5th grade class • met with each of the students named as bullies • investigated and documented each allegation • admonishing the perpetrators. • denied lunch, recess, school bus privileges


Yap v. Oceanside Union Free S.D., (E.D. N.Y. 2004)

 Court • School district “doggedly but unsuccessfully” attempted to address the Yaps’ allegations of bullying and harassment. • Court “must avoid second-guessing the disciplinary decisions made by school administrators.”


M.D. v. School Bd. Of Richmond (6th Cir. 2010)

 African-American Kdg student bullied by Hispanic peers • “repeatedly and continuously directed vulgar and offensive racial epithets” at student • Physically assaulted him • Stole his property • Called him “gay”


M.D. v. School Bd. Of Richmond (6th Cir. 2010)

 Mom reported bullying to school, asked for copy of policy  School staff routinely told parents staff could do no more that speak to bullies  Vice Principal: “I can only punish within limits of my authority. I can’t control what kids do.”


M.D. v. School Bd. Of Richmond (6th Cir. 2010)

 In April, Principal agreed to “personally address” the situation  Parents withdrew from school  Principal met with “bullying specialist” to develop plan  Parents refused to return student to school


M.D. v. School Bd. Of Richmond (6th Cir. 2010)

 Parents sued under Title VI (race) and IX (sex)  Court: • “The issue here is not whether Plaintiff has suffered severe bullying on account of his race and sexual orientation at the hands of fellow students. . .


M.D. v. School Bd. Of Richmond (6th Cir. 2010)

 Court: • “The pivotal issue is whether Plaintiff states a claim against [the school] based on ill-treatment by fellow students.” • Although staff did nothing but speak to offending students for two months, principal was willing to get involved • School not deliberately indifferent


G.M v. Dryceek Joint Elem. Sch. (Cal. 2012)

 Student bullied 5 times in 6 months • After first incident teacher said she’d watch the situation • After similar incident teacher and counselor met with bullies • Assistant principal met with bullies • Bully punched victim in face and received 5-day suspension


G.M v. Dryceek Joint Elem. Sch. (Cal. 2012)

 Court: school officials took action aimed at stopping the harassment each time  Deliberate indifference requires that district know of harm and failed to act


J.C. v. Beverly Hills Unif. S. D. (Cal.)  8th grade girls talking smack about a peer; uploaded to YouTube  Principal suspended student who uploaded  Dad was an entertainment industry lawyer; sued district claiming First Amendment protection


J.C. v. Beverly Hills Unif. S. D. (Cal.)  Court: The good intentions of the school notwithstanding, it cannot discipline a student for speech, “simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”  $107,150.80 in attorneys fees


J.C. v. Beverly Hills Unif. S. D. (Cal.)  Dad: • Hopes his daughter learns a lesson about the limits on governmental intrusion. • “The school doesn’t have that kind of power. It’s up to the parents to discipline their child.” • Chastised daughter: “That wasn’t a nice thing to do.”


Bullying as “Harassment�


Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)

 Student with Asperger's subjected to bullying by peers  Alleged that school staff did not stop and also called her “crazy”  Sued in federal court


Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)

 Failure to protect • Compulsory attendance laws do not create duty for school to protect from third party bullies • School’s policy did not undertake this obligation • Claim dismissed


Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)

 Equal protection claim • School: student treated like any other student • Parents: 32 documented incidents of bullying • Court: difference in treatment without rational basis


Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)

 Section 504 claim • School: no evidence that school staff treated student badly because of disability • Court: other students treated this student badly because of disability; school was deliberately indifferent to student misconduct


Phillips v. Robertson County Bd. (Tenn. Ct. App. 2012)

 Student with Asperger syndrome • Private counselor sent letter • Parent constantly reporting bullying and asking for help

• School developed system for kid • Preferential seating • Card system to signal when feeling bullied or stressed


Phillips v. Robertson County Bd. (Tenn. Ct. App. 2012)

 Teacher left student classroom unsupervised • Student struck in the eye by bully • Sustained permanent damage

 Teacher testified • Didn’t know about disability • Didn’t know about accommodations

 Court ordered $300,000 judgment


Estate of Lance v. Kyer (Texas 2010)

 9 year old boy with disabilities hanged himself in school restroom after being bullied  Parents sued claiming disability discrimination  Court: district personnel had a consistent policy of ignoring bullying against all students, so no discrimination


Kendall v. West Haven Dep’t. of Ed. (Conn. 2000)

 Elementary special ed student injured by another student • Parents called and reported prior incidents to assistant principal • Assistant principal said she would take care of it • Assistant principal then called out of building


Kendall v. West Haven Dep’t. of Ed. (Conn. 2000)

 The student seriously injured when the bully attacked him in the school cafeteria.  Court awarded $67,000 in damages  Found the assistant principal personally liable


Werth v. Board of Directors, (E.D. Wis. 2007)

 9th Grade student in woodshop • “an abnormally shaped skull, characteristic facial appearance, short stature, and dental abnormalities” • hump on his back; considerably smaller than other students • Peers threw wood at him • Hit with safety glasses


Werth v. Board of Directors, (E.D. Wis. 2007)

 Parents sued school and individual teacher • Equal Protection ‒ Parents: treated differently because of disability ‒ Court: No evidence of school/staff animus because of disability ‒ “Werth’s claim is that he was entitled to more than equal protection”

• Rehabilitation Act/ADA Claim ‒ Court outlines 5-part test


Werth v. Board of Directors, (E.D. Wis. 2007)

 Disability Harassment Test • Student falls within statutorily protected category (disability, race, gender) • Student harassed because of protected group • Harassment was sufficiently severe or pervasive and deprived the student of access to educational benefits or opportunities provided by the school • Defendant knew of the harassment • Defendant was deliberately indifferent to the harassment


Dear Colleague Letter  Bullying ≠ Harassment  If based on protected class  Must use anti-discrimination laws  Must have “well publicized” policies  Staff cannot encourage, tolerate, fail to address or ignore harassment  Investigation and response must be immediate and effective  Must prevent reoccurrence


Dear Colleague Letter  “By limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment”


Practical Responses to Bullying  Curricular  Individualized  Administrative


Curricular Responses: SEL  Social Emotional Learning: teaching our children how to  detect and manage their own emotions  make good social decisions  Teach kids about RELATIONSHIPS  How does that make you feel?  What can you do about it?  Parents must manage emotions


Curricular Responses: SEL  Teach kids to recognize, report and refuse bullying  Social problem-solving also improves academic performance and a number of other factors for students and schools  Statistically successful bullying prevention is social-emotional


Curricular Responses: Bystander Training  Peers present in 85% of bullying in school setting  92% of elementary students report witnessing bullying  Bystanders intervene 11% of the time – interveners had high social standing  Bystanders experience anger, guilt, worry, etc.


Curricular Responses: Bystander Training  Identity socially influential students, provide training in • Recognizing bullying • Empathy (and guilt) • Specific strategies for intervening • When to report; “tattling” vs. “telling”


Individual Responses


Individual Responses: Victim 

Interventions • Social skill training • Hygiene training with, sped teacher, counselor or other staff • Peer mentor  Consider 504 or SpEd eval  Follow up is key with OCR


Individual Responses: Bully 

Interventions • Social skill training • SpEd students: BIP  Consider 504 or SpEd eval


Other Administrative Responses   

Keep “Responding and Reporting” separate in your mind (and your staff’s mind) DOCUMENT, DOCUMENT, DOCUMENT Don’t make promises you can’t keep


Documenting Responses


Testifying in Court/Due Process


Testifying in Court/Due Process  Avoid involvement in custody and other domestic disputes  When juvenile court is involved, confer with administrative team  When you are called to testify: • Remember who employs you • Strictly observe FERPA • Stick to your expertise


How to Testify as a School Psych  Chances are that you will be called as an expert witness. • Own it! • You will be matching your credibility against one or more private mental health practitioners • You know more than they do


How to Testify as a School Psych  Review the appropriateness and timeliness of your assessments,  Familiarize yourself with the opposing side's assessments,  Resist stepping outside your realm of competence


How to Testify as a School Psych  Review related literature  Clarify your responsibilities  Ensure you make your decisions based on what was appropriate for the child • Not the parents • Not the school principal • Not the classroom teacher


How to Testify  Witnesses may be sequestered.  Stay calm and relaxed.  Establish eye contact with the decision maker, parents, or attorneys while speaking.  Be yourself.  Speak to the decision maker.


How to Testify  Be positive.  Do not argue.  Explain the case.  Avoid using abbreviations, acronyms, and education jargon.  Listen to the entire question. Be patient.


How to Testify  Think before you speak.  “Tell it like it is.” If you must relate profanity, preface it with something like, “These are not my words, but a direct quote from what little Timmy said to me.”  Your demeanor and presentation are important.


How to Testify  Acknowledge differences or weaknesses.  Meeting with the district’s attorney is proper.  Answer the question and stop.  Do not volunteer information.  Good answers: “yes, ”no,” or “I don’t know”


How to Testify  Don’t guess or speculate.  Hearsay.  You can qualify your answer.  Objections.  Do not try to be funny.


SpEd Law Do’s and Don’t (Part 2) Karen Haase Bobby Truhe Harding & Shultz (402) 434-3000 schoollaw@hslegalfirm.com H & S School Law @KarenHaase @btruhe

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