Connecticut Education Law Blog

School Reform Contract Agreed To In New Haven

fdugas@bmdlaw.com (Floyd J. Dugas) — Fri, 30 Oct 2009 08:52:58 -0500

In a deal that some National Education Leaders are heralding as a model for school reform throughout the nation, the New Haven Public Schools and the New Haven Federation of Teachers have struck a deal that paves the way for dramatic reform in the New Haven Public Schools and narrowing the achievement gap. In addition to providing compensation for improved student achievement, the agreement allows the school district to incorporate student performance into the teachers’ evaluation process and in exchange establishes a form of peer review and support. The School District will also have substantial latitude in “turnaround,” or poor performing schools to restructure work rules to improve student achievement.

It also contemplates additional compensation for teachers working in those schools. Principals will also be able to decide what teachers come into their schools. In the school district’s other schools the work rules, including length and makeup of the work day can be restructured with the approval of the teachers and administrators in the building. In a sense, the plan borrows from the charter school model, but does so with both public funds and a unionized workforce. Berchem, Moses & Devlin, P.C. Partner Floyd J. Dugas was chief negotiator for the school district in the negotiations culminating in the deal.

Second Circuit Decision: Failure to Name Specific School Not a Procedural Violation for IEP

mlaubin@bmdlaw.com (Michelle C. Laubin) — Tue, 20 Oct 2009 13:10:26 -0500

In a new decision issued October 9, 2009, T.Y. v. New York City Dept. of Education, 109 LRP 63646 (2d Cir. 2009), the Second Circuit Court of Appeals has ruled that it is not a procedural violation of the Individuals with Disabilities Education Act (IDEA) for the IEP not to name a specific school that is recommended for a child with special education needs. Departing from the 4th Circuit view on this issue in a case decided in 2007, the 2nd Circuit ruled that the IDEA provision requiring IEP's to include the anticipated location of a child's services does not mean that the IEP must name a specific school, just a general type of educational program.

According to the decision, the child in this case, T.Y., is a child with autism with resulting developmental and language delays. He received special education services in a preschool program during the 2005-2006 school year, and at the annual review in the spring of 2006, a program was proposed for the 2006-2007 school year including a classroom with a 6:1:1 ratio of students, teachers, and paraprofessional staff. Related services and a paraprofessional for "crisis management" were also proposed. The IEP specified that the placement would be in "District 75", the city's special education district, but did not name a school. A month after the IEP was prepared, the parents received a placement notice from the districts central placement office. The parents visited the program and rejected it as unsuitable. The district proposed an alternative location, but the parents rejected that school as well and unilaterally placed the child in a private special education program. The parents claimed both that the program was substantively inappropriate and that it was procedurally inadequate because it failed to name a school or classroom in the IEP.

Citing US Department of Education commentary on their IDEA regulations that "the location of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the service", the court concluded that the IDEA reference to a "location" of service does not mean a specific school, but the "general environment of the overall program".

The court emphasized that the holding should not be read to mean that school districts may assign a child to a school that is not able to implement the IEP, but the failure to name a school in the IEP will not be a per se violation of IDEA. The court also noted that it appeared the parents were seeking "veto power" over the placement decision rather than input, which the IDEA "clearly does not grant them".

"Surprising New Legislation Delays the Implementation Date for Connecticut's In School Suspension Law to July 1, 2010"

cdugas@bmdlaw.com (Carolyn Mazanec Dugas) — Thu, 15 Oct 2009 12:20:29 -0500

On October 5, 2009, Governor Rell signed Senate Bill 2053, An Act Implementing the Provisions of the Budget Concerning Education, Authorizing State Grant Commitments for School Building Projects, and Making Changes to the Statutes Concerning Building Projects and Other Education Statutes. Section 56 of this bill addresses CGS 10-233c, Connecticut’s student suspension law. CGS 10-233c was revised two years ago to favor in school suspensions over out of school suspensions for Connecticut students and changes the allowable days for an in school suspension from five to ten days. Pursuant to Senate Bill 2053, the legislature has voted to once again delay the date for implementation of the law; this time to July 1, 2010.

Connecticut’s revised student suspension law went into effect as of July 1, 2009 and with the advent of the new 2009-2010 academic school year, school administrators were legally obligated to apply that law in meting out school discipline. What a difference a month or so can make! In light of the newest legislation, schools must change their newer practice and again apply the former law. Under the former law, in school suspensions are allowable for up to five days and out of school suspension for up to ten days and the determination whether or not to assign an out of school or in school suspension is left to the discretion of the administration with no automatic presumption in favor of in school suspension.

It remains yet undetermined who will prevail in the apparent battle of the wills between the professional school and educational community who has expressed concerns about the practical application and the necessity of the new law and Connecticut state legislators who have weighed in with their opinions about how Connecticut students should be disciplined. Stay tuned to see how this will play out.

Arbitration Panel Awards No Increase for Non-Certified Employees

fdugas@bmdlaw.com (Floyd J. Dugas) — Thu, 03 Sep 2009 11:18:00 -0500

Demonstrating that at least some arbitrators understand the constraints on municipal employers caused by the recession, a panel of arbitrators chaired by Arbitrator Susan Meredith has declined to award a non-certified bargaining unit in the Town of Sterling any wage increase for the 2009-10 fiscal year. It also awarded a 2.5% increase for 2008-09 and a 1.5% increase for 2010-11.

The panel also refused to introduce steps into the contract, a position the union insisted upon throughout negotiations and which ultimately became the issue which forced negotiations into the hands of the arbitrators.

While the award arguably does not have far reaching impact given that Sterling is a relatively poor community, it certainly is strong support for similar decisions in other communities that can show actual material detrimental impact from the recession. Floyd J. Dugas and Jason R. Stanevich represented the Sterling Board of Education in the arbitration hearing.

Connecticut School Districts Must Implement New Suspension Law for the 2009-2010 School Year

cdugas@bmdlaw.com (Carolyn Mazanec Dugas) — Thu, 03 Sep 2009 10:04:16 -0500

As readers may recall, PA 07-66 created new standards for student suspensions in Connecticut requiring that student suspensions pursuant to 10-233c be in-school suspensions, unless the administration determines that the pupil being suspended poses such a danger to persons or property or such a disruption of the educational process that the pupil should be excluded from school during the period of suspension.

The effective date of PA-07-66 was delayed by PA 08-160. PA 08-160 delayed implementation of the law from July 1, 2008 to July 1, 2009. While rumors abounded regarding a possible further postponement of the implementation date, no legislation was passed during this past legislative year or during any special session, nor is there any legislation pending that would change the implementation date. The time has come, effective as of July 1, 2009, for implementation of that law. School districts are to implement the new rules for the 2009-2010 year. School districts are required to have in school suspension programs in place that are functional for the coming school year. Remember that each school does not have to have an individual in school suspension location and that a district wide location would be acceptable. The guidelines state that if a student is assigned to an in-school suspension location other than the student's usual school, "the pupil may be eligible to receive transportation services pursuant to and in accordance with the transportation policy of the school district", suggesting that districts should have (or develop) policies to address this issue. For additional guidance, see Commissioner of Education Mark McQuillan guidance document dated October 1, 2008 which is available on the State Department of Education website and/or contact us for further advice.

Is your district ready?

U.S. Department of Justice Has Released Guidance On Bullying In Schools: Bullying As the Most Underreported Safety Problem and Greatest Problem Affecting Student's Sense of Security

cdugas@bmdlaw.com (Carolyn Mazanec Dugas) — Thu, 20 Aug 2009 16:53:39 -0500

The Department of Justice has just released guidance to help schools examine and respond to the issue of school bullying. In light of Connecticut’s strong anti-bullying laws and its new requirements that schools implement proactive strategies and conduct annual in-service training for certified staff on the topic, administrators are encouraged to view in its entirety the recently released U.S. Department of Justice’s Office of Community Policing Services (COPS) guidance entitled “Bullying in Schools”. See www.cops.usdoj.gov.

The COPS guide is comprehensive and identifies and defines the problem of bullying in schools focusing on the extent of the problem, examines bullying behavior, incidents of bullying, characteristics of bullies, victims, chronic victims, consequences and also provides guidance to schools on how to assess its local problem, how to learn to ask the right questions, and offers suggestions for proactive strategies and suggestions for measuring the effectiveness of those strategies also citing strategies that are not effective. Administrators’ interest in the COPS guidance should be heightened by the reported conclusions that neither class or school size, or school setting, be it urban or suburban, has influence on the level of bullying, but that a school principal’s involvement helps to determine the level of bullying in a particular school.

The COPS guide cites bullying as the greatest problem affecting students’ sense of security in school and names it as perhaps the most underreported safety problem on American school campuses. Further, the COPS report reveals that while mistakenly thought as simply a rite of passage, or relatively harmless, or character building, bullying has long lasting harmful effects for victims and bullies; international research shows that bullies are more likely to develop criminal records than their peers, and victims suffer psychological harm long after bullying stops. The consequences of bullying to victims goes beyond embarrassment and include psychological and physical distress, frequent absenteeism, difficulty concentrating on school work, tendency to have low self esteem which can lead to depression and for those bullied more than one time per week, poorer health, frequent contemplation of suicide, depression and social dysfunction, anxiety and insomnia.

The COPS guide cites reluctance to report as the threshold problem involving bullying. Most students, including victims and witnesses, do not report bullying to adults, including parents and teachers, for a variety of reasons: fear of retaliation, not being believed, feeling shame, wanting to protect parents from worry, thinking worse to be thought of as a snitch, thinking a teacher’s advice would make the problem worse/no confidence that anything would change. One specific COPS recommended response to bullying is for schools to increase student reporting of bullying by using a bullying hot line or a bullying box. Other specific responses to bullying include: a whole school approach which needs re-newed efforts each year, developing activities in traditionally less-supervised areas, reducing the amount of time students can spend unsupervised, staggering recess, lunch or class release times, monitoring areas where bullying can be expected, assigning bullies to particular location or chores during release time and posting classroom signs prohibiting bullying and listing consequences (which must be consistently enforced).

If any conclusions can be drawn from COPS guidance, it is that bullying is widespread and the first step in confronting school bullying is gathering information about bullying generally and then accessing the unique characteristics of each school environment toward designing effective strategies for creating a positive school culture. If bullying is truly the number one issue impacting students’ sense of security in schools today as COPS reports, how can schools afford to ignore this issue? What is your school district doing to ensure a positive school culture in its schools on all levels?

Berchem, Moses & Devlin lawyers, in consultation with the State Department of Education, are available for in-service training in this most important area of education.

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 09:33:09 -0500

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.

Strip Search by School Officials Was Unconstitutional

mlaubin@bmdlaw.com (Michelle C. Laubin) — Tue, 30 Jun 2009 16:26:26 -0500

Last week, the Supreme Court decided Safford Unified School District #1 et. al. v. Redding, the “strip-search” case. The Supreme Court followed the precedent it created in New Jersey v. T.L.O., which set forth the reasonable suspicion standard for school searches, ultimately holding that the strip-search of the student in this case was unreasonable and violated the Fourth Amendment. Under T.L.O.’s reasonable suspicion standard, a school search “will be permissible . . . when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

While the vice-principal had reasonable suspicion that justified searching the student’s backpack and outer clothing, the facts did not justify the highly intrusive strip-search. There was no evidence to indicate that the pain-killer medications the student allegedly carried were a danger to other students or that she had hidden them in her underwear. Even though the search was unconstitutional, the vice-principal who ordered the search and the administrative assistant and the nurse who conducted the search were protected by qualified immunity because the law at the time was unclear as to the legality of such a search.

Now that the Supreme Court has rendered a clear statement of law on this issue, school officials would likely not be shielded from liability by qualified immunity in the next case. In addition, the Supreme Court sent the case back to the lower court in order to determine the liability of the school board, which may ultimately be held liable. Since the use of strip-searches in the school setting is likely very rare, school districts will not be greatly impacted by this decision, but this is a reminder that they should be careful to ensure that searches are reasonable and not more intrusive than necessary.

Much Ado About Nothing

mlaubin@bmdlaw.com (Michelle C. Laubin) — Sat, 27 Jun 2009 13:57:59 -0500

The Supreme Court ruling in the Forest Grove School District v. T.A. case was released this week. Maybe it's just me, but I don't see this ruling as changing much of anything in the world of special education disputes, at least as far as Connecticut is concerned. Essentially, the Supreme Court ruled that 20 U.S.C. 1415(i)(2)(C)(iii) continues to allow courts to award reimbursement of tuition in unilateral placement cases if they determine that the school district failed to provide FAPE, even if the student has not previously received special education services from the school district. The Supreme Court seemed offended that the school district could evaluate a child, find the child not eligible for services, fail to provide services, and then benefit from that failure by having the courts deny reimbursement for the parent's unilateral private school placement. Is this really a surprise to anyone?

Yes, those of us who represent school districts had hoped that the Supreme Court might rule in favor of the district, recognizing the public policy concerns that we have about parents who fail to notify the district or request evaluations prior to making a private placement, but those facts were just not presented in this case. The parents in the Forest Grove case did request evaluations, the school district evaluated the student and found him not eligible and did not provide an IEP. The arguments from the school district that the public policies of IDEA require a collaborative relationship between school and parents, and development of an appropriate IEP requires constant adjustment to changing circumstances are real, but they are undercut when the district is determined to have erred in failing to find the student eligible for services in the first place.

So how does life change after Forest Grove? In Connecticut, I would argue, not at all. I am not aware of a single Connecticut hearing officer who has ever denied reimbursement for a unilateral private placement by a parent in a case where the district either failed to evaluate when it should have, or evaluated and erroneously found the child not eligible. The Supreme Court decision seems consistent with that line of decisions. The bigger question, it seems to me, is whether the courts and hearing officers will treat differently (as I believe they should) the case where the parents do not refer the child for special education evaluation until AFTER the child is placed and, according to IDEA, the "child find" responsibilities belong to the district where the school is located, rather than the district of residence.

Free Cyberbullying Curriculum Available from NSBA

mlaubin@bmdlaw.com (Michelle C. Laubin) — Sat, 25 Apr 2009 12:10:32 -0500

A free curriculum is available from the National School Boards Association (NSBA) to address cyberbullying issues at NSBA. NSBA partnered with a group called CyberSmart to produce this curriculum (reported to be "research-based" for those concerned about those things), and it is described on the NSBA website as addressing all of the major issues:

In developing these lessons, CyberSmart! adopted an integrated approach, examining all current research findings and using best practices from the fields of cyber security, school violence prevention, and character education to impact behavioral change. Together, these materials offer schools the opportunity to begin a dialogue with students and build a sustained cyberbullying prevention campaign to continually remind the school community about safe, ethical online use.

If anyone uses or has used the curriculum, please post comments here and/or provide feedback to NSBA - they are promising to make adjustments if there are any problems based on feedback from users.

Free Webinar Series on Food Allergies Hosted by USDA

mlaubin@bmdlaw.com (Michelle C. Laubin) — Thu, 23 Apr 2009 14:10:13 -0500

The School Nutrition Foundation (SNF) and United States Department of Agriculture (USDA) are co-hosting a free webinar series beginning April 29, 2009 on management of food allergies in the schools. More information is available at SNF. The series continues on May 27 and June 3, with each webinar startiing at 2:30 p.m. EDT and lasting about 75 minutes per session. Each webinar features a panel of experts in school health and nutrition to talk about the issues, how to develop a school policy, and how to implement the policy.

Sad Reminder of Why We Have Anti-Bullying Laws

mlaubin@bmdlaw.com (Michelle C. Laubin) — Mon, 20 Apr 2009 12:31:17 -0500

Parents sue Ohio school over bullied son's suicide

Associated Press; Fri Apr 3, 11:48 am ET

MENTOR, Ohio – An Ohio couple has filed a lawsuit saying school officials failed to stop bullying that they claim led to their 17-year-old son's suicide.

The suit was filed in federal court last week, almost two years to the day when Eric Mohat shot himself in the head. Parents William and Janis Mohat say their son was taunted and harassed by classmates at Mentor High School for months before his death on March 27, 2007.

Their lawsuit accuses the school district about 25 miles northeast of Cleveland of violating the high school junior's civil right to safety.

The teen's father says they would drop the suit if the school system adopted tougher regulations on bullying.

Without commenting on the litigation, school officials say the district takes bullying seriously.

Yahoo News

While we don't know the whole story, we can at least read between the lines in this story to see the pain and loss felt by the family and their belief that the school system could have done more to help their child when he was being bullied by his classmates. In the wake of recent amendments to Connecticut's anti-bullying statutes and the resulting changes to board policies across the state, we continue to parse the language to determine whether an act of insult by one student against another constitutes "bullying" such that it needs to be "verified" and the parents of both parties need to be "notified". While we are doing this, let's not forget that whether it meets the technical definition of bullying under the statute and board policy or not, the act has caused emotional hurt to someone and needs to be addressed in some way so that the child can come to school and learn in a welcoming environment.

Of Resource Officers, Recycling, and Random Data Collection

mlaubin@bmdlaw.com (Michelle C. Laubin) — Fri, 17 Apr 2009 09:31:11 -0500

A brief review of pending legislation currently awaiting action in the Connecticut legislature:

SB 6489: An Act Concerning a Plan for School Resource Officers. This law would be effective 7/1/09, but would require by 1/1/10 the Department of Education, Department of Children and Families, the Judicial Department, and the Connecticut School Resource Officer Association to develop a joint plan for resource officer training including the roles and responsibilities of resource officers, relevant state and federal laws (could take a while), security awareness in the school environment, counseling and conflict resolution, disaster and emergency response, deescalation of student behavior including dealing with students with special education needs, child and adolescent psychology and development, cultural competence, and gender-responsive strategies. This is not to say that the plan would have to be implemented by January 1, 2010 and all training accomplished by that date, just that the plan would need to be established and reported to the legislature by the Department of Education. However, for districts looking to read the tea-leaves for the types of training that should be provided to school resource officers, the legislature has made the tea, drained the cup, and left it sitting on the table for you.

SB 6665: An Act Concerning the Inclusion of Students on Local and Regional Boards of Education. Oddly enough, the heading on this bill on the CGA website says that it has something to do with giving students the opportunity to comment and give feedback on bullying occurring in schools. The language of the bill itself, however, states that at least 2 students from public high schools located in the district shall serve on the board of education as nonvoting members, with the number of students from each high school to be determined by the board and selected through election or some other method prescribed by the board. Although many school boards do have student advisory members sitting with them in some capacity, it appears that this bill would expand that function and require it for all school boards in the state.

SB 940: An Act Concerning the Reporting of Truancy Data. This bill would add once again to the reporting requirements of Connecticut General Statutes section 10-220, and require all school districts in the state to report on data related to truancy as a component of "school performance". Measures of truancy would include data collected by the Department of Education regarding attendance and unexcused absences in compliance with federal reporting requirements. The bill also states that such data would be considered a public record for purposes of chapter 14, which indicates a clear intention to make this data available to the public for purposes of gauging local school performance and demanding accountability. School systems should be reminded of the need for clear definitions of "excused absence" and "unexcused absence" which are generally established locally, so that data reported in compliance with this requirement will be clear, in the event that the bill passes.

SB 947: An Act Concerning High School Credit for Approved Online Coursework. This bill would amend Connecticut General Statutes section 10-221a and allow local and regional boards of education to adopt policies awarding high school credit for online coursework completed in accordance with the policy. The policy would need to ensure, minimally, that the workload for the course is equivalent to that of a conventional classroom course, that the content is rigorous and aligned with curriculum guidelines approved by the State Board of Education, that the course engages students and has interactive components, and that the class is taught either by certified teachers (in Connecticut or another state) who have received training in teaching in an online environment, or that the course is offered by an institution of higher education accredited by the Department of Higher Education "or regionally accredited". Assuming that school boards start to look at establishing policies permitting the granting of credit for coursework completed online as a result of this legislation, we suggest consideration of how many credits the board believes may be completed in this manner, versus the number required to be completed on campus at the student's assigned high school, and under what circumstances the school system will consider awarding credit for classes completed in this manner. For example, may any student apply for credit for work completed online or will in be limited in some way, such as to students required to be homebound for some period of time as a result of injury, illness, or expulsion? Will there be an application and approval process to be completed in advance, and who will bear the cost associated with taking the class (including the cost of books or other materials)?

RB 1011: An Act Concerning Recycling Programs in Schools. Would require each school district to develop a recycling plan at each school under the board's jurisdiction, including recycling receptacles, signage, requirements for appropriate disposal of materials by students and staff, training of custodial staff, and removal by a licensed hauler. If the district can sell its recyclables on the open market, it can use the funds generated for student activities.

SB 6497: An Act Concerning Educational Stability for Children in Foster Care. This bill probably deserves its own entry, but for now, I will just say that it would permit children in the care and custody of DCF to remain in attendance at the school the child attended prior to the change in placement (elsewhere known as the "school of origin") in the event that DCF places the child in a new foster home, and the child will be considered a "resident" of the school district where the school is located during that time. However, in the event that this provision is used to maintain the child in the school of origin, DCF must pay for transportation from the new foster home back to the school of origin. There is a statutory presumption that it is in the best interests of the child to remain in the school of origin unless a "party" objects, in which case the court makes the decision and the child remains in the school of origin during the pendency of the dispute. If the child requires special education, the school of origin must continue to provide and fund those services, subject to the state agency placement reimbursement grant beyond the per pupil expenditure for the prior fiscal year.

U.S. Department of Education Issues Revised FAQ on Section 504

mlaubin@bmdlaw.com (Michelle C. Laubin) — Wed, 08 Apr 2009 19:35:33 -0500

On March 27, 2009, the United States Department of Education issued a revised version of its document entitled Frequently Asked Questions About Section 504 and the Education of Children with Disabilities, updating it to include new information about the implications of the Americans with Disabilities Act Amendments (ADAA) effective January 1, 2009. In addition to the commentary included in the FAQ document, the Office for Civil Rights (OCR) states that it is currently evaluating the impact of the ADAA on its enforcement responsibilities, including whether any changes to regulations are appropriate.

Changes to the FAQ document include Question 21, regarding whether districts may consider mitigating measures in determining whether the student has a disability under Section 504. Consistent with the ADAA, the answer now states that school districts are not permitted to consider mitigating measures that the student is using in determining whether the student has a disability, except for ordinary eyeglasses or contact lenses.

The FAQ document continues to endorse the position that there is no impairment that confers automatic eligibility under Section 504, and that a medical diagnosis is one source of information to be considered among others in determining the student's eligibility.

Question 12 concerning the major life activities that may be impacted by a physical or mental impairment has, consistent with the ADAA, been amended to include reference to the new major life activities mentioned in the ADAA such as standing, lifting, bending, reading, concentrating, thinking, and communicating. It also mentions those major bodily functions that have been conferred "major life activity" status such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The FAQ mentions that the ED believes that its current regulations are consistent with these amendments since they indicate that the list of major life activities in the regulations is not exhaustive, and an activity or function not listed in the regulations can nonetheless be considered a major life activity.

Question 34 concerning temporary impairments has been amended to indicate that an individual should not be "regarded as" an individual with a disability if the impairment is transitory and minor, defined as an impairment with an actual or expected duration of 6 months or less. Also, Question 35 has been revised to indicate that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

We are looking forward to receiving additional guidance from OCR concerning issues such as how to handle children with impairments that now appear to qualify as disabilities under Section 504 but for whom no accommodations in the school environment are currently needed, which is not addressed directly in the FAQ document.

SDOE Issues Memo on School Bullying Requirements

mlaubin@bmdlaw.com (Michelle C. Laubin) — Sun, 05 Apr 2009 22:18:21 -0500

A long-awaited memorandum from the State Department of Education describes in bullet-points the Department's interpretation of the recent changes to the anti-bullying legislation found in Title 10 of the Connecticut General Statutes, and also adds a further gloss in the form of "best practices" for school districts to follow to improve school climate. Among the tips provided by SDOE -

Although no disciplinary action should be taken on the basis of an anonymous report of bullying, schools should consider these reason to investigate.
Parents should be invited to at least one meeting, invitations for which should be in writing and maintained on file at the school. Meetings with parents of alleged victims and parents of alleged perpetrators should be held separately. Notification of consequences must comply with FERPA.
Lists of verified acts of bullying will be collected by SDOE at some unidentified point in the future.
Investigation of bullying allegations may need to include the Title IX Coordinator to ensure that potential class harassment issues are identified and managed.
Revised bullying policies that were supposed to be submitted to SDOE as of February 1, 2009 need to be published in student/parent handbooks by July 1, 2009.
Districts need to implement some form of positive behavioral interventions and supports or evidence-based model for improving safe school climate or preventing bullying.
Although the statute requires surveys to determine the prevalence of bullying, SDOE prefers surveys that will determine school site safety, parent and staff perceptions, and assess the quality of the school climate.

Grade appropriate bullying curricula should also include programs focusing on building safe and positive school communities, developing healthy relationships and preventing dating violence.
School-wide training for adults related to school climate may include Title IX/Sexual Harassment training, Section 504/ADA training, cultural diversity and multi-cultural education and other training in civil rights legislation.
Parents should be invited to participate in improving school climate.
The term "harass" as adopted in the state definition of bullying conduct is tied to potential implications for state and federal statutes pertaining to protected classes (i.e., harassment based on race, ethnicity, gender, sexual orientation etc.).
Districts must complete a brief on-line survey required by SDOE to facilitate compliance with mandates placed on the SDOE.
Districts must upload their policies to the SDOE website if they have not already done so.

SB 1142 Gutted By Education Committee

mlaubin@bmdlaw.com (Michelle C. Laubin) — Fri, 03 Apr 2009 09:34:56 -0500

In a vote taken April 1, 2009, all 30 of the committee members of the Joint Committee on Education present and voting voted in favor of SB 1142, An Act Concerning State Mandates on School Districts (two members were absent). However, substitute bill language was adopted by the committee addressing only the issue of the date that non-renewal notices must be sent (adjusting this from April 1 to May 1) and school readiness grants. The sections addressing the allocation of the burden of proof in a due process hearing and the date for termination of services at age 21 have been removed from the original bill language. Advocates for these provisions will have to wait until the next legislative session to have their positions heard.

Lilly Ledbetter Fair Pay Act of 2009 Signed Into Law

fdugas@bmdlaw.com (Floyd J. Dugas) — Wed, 01 Apr 2009 16:20:22 -0500

On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act (“Ledbetter Act”) into law. Pub. L. No. 111-2. The new law changes litigation of pay discrimination claims in the following ways:

(1) Resets the statute of limitations clock for filing a wage claim each time an employee receives a paycheck, benefits, or “other compensation,” allowing an employee to sue for alleged discrimination based on when she is impacted rather than when the decision occurred.

(2) Applies to alleged discriminatory pay practices based on all protected categories, including race, gender, age, color, disability, national origin and religion.

(3) Expands the definition of an unlawful employment practice to include not only discreet “decisions” regarding compensation, but also any “other practice” that affects an employee’s compensation.

The statute applies retroactively back to May 27, 2007.

The Ledbetter Act was passed in direct response to the United States Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). The Plaintiff worked for Goodyear from 1979 to 1998. After she retired, she filed a gender discrimination claim against Goodyear on the grounds that she received smaller annual pay increases than her male counterparts throughout her employment. While a jury initially found that Goodyear’s pay practices were discriminatory, the Supreme Court nonetheless held that Ledbetter’s claim was time-barred. The Court interpreted Title VII’s statute of limitations for equal pay claims to require that the time for filing a claim begins to run when the discriminatory pay decision is made, rather than each time an employee receives a paycheck affected by the initial decision. The new law reverses this, and does much more. It amends Title VII, the Americans with Disabilities Act of 1990 (ADA), the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of 1967 (ADEA) to specify that unlawful discrimination occurs when: (1) a discriminatory compensation decision or other practice is adopted, (2) when an individual becomes subject to a discriminatory compensation decision or other practice, or (3) when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

The Ledbetter Act increases employer exposure to pay discrimination claims for alleged discriminatory decisions, even though they may have been made years earlier, based on whether they have continuing impact on an employee’s compensation. In addition, the Act is not limited to claims based on gender discrimination, but also applies to pay discrimination based on race, national origin, religion, age, and disability.

The broad language of the Act also expands the potential pool of plaintiffs in several other respects. The Ledbetter Act re-triggers the limitations period with each paycheck, and whenever “benefits” or “other compensation” are paid. These terms arguably include the full range of entitlements that an employer’s discriminatory decision could impact, including health benefits, paid leave, bonuses, stock options, and pension payments. The Act does make clear it will not allow employees to rely on post-retirement pension payments to stretch the limitations period beyond the end of the employment relationship.

The Ledbetter Act does not alter the limit on recovery of back pay to a maximum of two years preceding the filing of a discrimination charge under Title VII.

More so now than in the past employers must be careful to make sure their compensation and benefit plans are not discriminatory. No doubt passage of the Ledbetter Act will spawn a recurrence of pay discrimination claims throughout the State and across the Country.

SOAPBOX ALERT: Express Support to the Education Committee for SB 1142

mlaubin@bmdlaw.com (Michelle C. Laubin) — Wed, 25 Mar 2009 14:56:13 -0500

Educators and other interested parties may wish to contact the Education Committee of the Connecticut General Assembly to express support for SB 1142, An Act Concerning Relief of State Mandates on School Districts. Among other provisions, this bill would finally bring Connecticut in line with other states and with the 2005 United States Supreme Court decision in Schaffer v. Weast, which held that under IDEA, the burden of proof in a special education due process hearing should be on the party requesting the hearing. Despite this Supreme Court decision, since 2005, Connecticut has failed to remove the provision placing the burden of proof on the school district from the state regulations concerning special education hearings, thereby sending the message to school districts that the programs they develop for children with disabilities should be considered inappropriate unless the school district proves otherwise. Placing the burden of proof on the school district drives up the administrative costs of special education by causing hearings to be longer and more expensive, since every allegation made by a parent needs to be "disproved" by the school district. Perhaps more importantly, there is no correlation between the burden of proof being imposed on the school district and improvement in the quality of services provided to children with special needs. On the contrary, the burden imposed on school districts by lengthy and costly special education hearings often drives talented educators out of the public schools.

Parent advocacy groups are certainly taking advantage of the opportunity to lobby the Education Committee to take this provision out of SB 1142. If you support this provision, time is of the essence to get your comments to them. Mailing Address:
      Education Committee
      Room 3100, Legislative Office Building
      Hartford, CT 06106
      Phone: 860-240-0420
You can find a copy of the bill and track its progress at CGA. Contact information for the legislators on the Education Committee is also available at this website.

Elimination of Secret Ballot Elections in Favor of Union Authorization Cards?

jstanevich@bmdlaw.com (Jason R. Stanevich, Esq.) — Fri, 20 Mar 2009 09:57:10 -0500

In a move patterned after the proposed Employee Free Choice Act, which would apply to private sector employees, the General Assembly’s Labor and Public Employees Committee recently voted favorably (9-2) on a bill that would allow state and municipal employees to unionize without the use of a secret ballot election. HB-6534 would permit a union of public employees to be recognized as the exclusive representative of an employee unit when a majority of the employees sign union authorization cards. The card authorization process would be triggered when (1) a petition for unionization if filed with the State Labor Relations Board, (2) there is a question or controversy regarding union representation, and (3) there is only one union seeking the designation. At that point, a Labor Board agent would investigate and report his or her findings to the Board. The Board, after providing the parties the opportunity to submit briefs, could determine to certify the union based on a card check alone.

Supporters of the bill contend that the existing secret-ballot process does not work because employers spend significant resources to oppose unionization. While that may be true in the private sector, there is little evidence that the existing secret ballot election process fails to effectuate the desires of public employees who are eligible for collective bargaining. Indeed, one only has to compare the percentages of public sector employees who are unionized in Connecticut, with the percentage of private sector employees who have elected union representation, to see that there is no need to eliminate the traditional and democratic method of electing union representation. Unfortunately, HB-6534 is yet another example of unnecessary legislation that is proposed for all the wrong reasons.

Impact of New Federal FMLA Regulations on School Boards

fdugas@bmdlaw.com (Floyd J. Dugas) — Tue, 17 Mar 2009 16:11:34 -0500

Recently the United States Department of Labor promulgated new regulations under the Family Medical Leave Act. School boards should review their policies to assure continued compliance with the FMLA.

Noteworthy highlights from the new regulations include:

(1) Military caregiver leave: Expands FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

(2) Qualifying exigency leave: The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs — "qualifying exigencies."

(3) Employer notice obligations: The final rule clarifies and strengthens the employer notice requirements to employees in order that employers will better inform employees about their FMLA rights and obligations, and allow for a smoother exchange of information between employers and employees.

(4) Employee notice obligations: Under the new regulations, employees must follow their employer’s normal call-in procedures when taking FMLA leave. Under current rules, employees may notify their employer up to two days after an absence on their need for FMLA leave.

(5) Medical certification process: The final rule recognizes the Health Insurance Portability and Accountability Act (HIPAA) and its impact on medical privacy. Responding to concerns about medical privacy, the new provisions prohibit direct supervisors from obtaining employee medical information for FMLA certification.

(6) Light duty: Time spent in "light duty" work does not count against an employee's FMLA leave entitlement, and the employee retains the right to job restoration during the light duty period.

This is the first revision of the Act since it was passed in 1993, but will likely pave the way for a better understanding of the Act for employers, and more adequate communication between school boards and their employees.