Connecticut Education Law Blog

Who's watching who? And who can review?

Amy Corbett Dion, Esq. — Wed, 25 Apr 2012 15:03:33 -0500

School administrators frequently grapple with the treatment of video recordings. From Constitutional issues to concerns about education records, administrators need to be aware of how to use surveillance cameras appropriately and how to respond to requests for copies of those video recordings. As more and more districts are using video surveillance in schools, this issue promises to remain a big issue for districts into the foreseeable future.

First, the Fourth Amendment protects students from unreasonable searches while on school grounds. Video cameras should only be utilized in common areas such as hallways, parking lots, cafeteria, or other such areas where the expectation of privacy is low; otherwise the district may run afoul of the Fourth Amendment. For example, in Brannum v. Overton County School Board, 516 F.3d 489 (6th Cir. 2008), the district posted video cameras outside of the boys’ and girls’ locker rooms, but the cameras were positioned in such a way that they captured images of students undressing. In addition, the images were available online, and had been hacked into approximately one hundred times by non-school personnel during the six months the cameras were in use. The Court determined that the use of video cameras in this case violated students’ right to privacy under the Fourth Amendment. Districts should also be cautious about using cameras that record audio, as such recording would likely violate federal and state wiretapping laws.

Perhaps an even thornier issue, as there is currently no clear, official guidance from the Family Policy Compliance Office (FPCO), involves the treatment of videotapes as education records under the Family Education Rights and Privacy Act (FERPA). FPCO did produce a letter to the Berkeley County School District, 104 LRP 44490, in 2004 which briefly touches on this issue. That letter stated that when a video captures two or more students fighting, a parent does not have the right to inspect and review that portion of the videotape that pertains to the other student.

Recently, however, FPCO has issued informal guidance about how districts should be treating videos of students. Since video surveillance captures everything that occurs in an area, it is not information directly related to any one student and therefore a video is generally not an education record. However, when video surveillance captures a student committing an act that is in violation of the code of conduct (e.g. stealing from another student’s locker, distributing drugs, etc.) that results in discipline, only that portion of the video showing the misconduct would be that student’s education record. FPCO indicated that if more than one student is involved (e.g. two students fighting), then that portion of the video is an education record of both students. Since videos cannot be easily redacted, a parent of any involved student would be allowed to view the video, but would not receive a copy of the video, unless the parent of the other student has provided written consent. Such a video would not be an education record for any student who was merely present at the scene. However, if the district uses the video to identify witnesses, that portion of the video should be treated as a witness statement and would be an education record of the witness student. Additionally, if a district videotapes a basketball game, for example, the video would be considered an education record for those students playing in the game, but not for students sitting in the crowd. But if a fight breaks out in the crowd, the principles discussed above would apply.

Of course, if the law enforcement unit of a school (e.g. the school resource officer or security guards) maintains the videotapes, they would not be considered education records within the meaning of FERPA. However, such a scenario creates additional problems, as the videotapes may then be public records subject to disclosure under Freedom of Information Act requests. At least two courts (one in New York and one in Washington State) have held that videotapes of students are surveillance videos used to maintain the security and safety of the school building, and are therefore public records, not education records. While neither of those decisions is binding on districts in Connecticut, and the issue has yet to be litigated in our jurisdiction, districts should be aware of these decisions as they discuss and create policies about video surveillance in schools.

IEE's, Residential Placement, Failure to Provide FAPE Addressed in Plainville Court Decision

Michelle C. Laubin — Mon, 16 Apr 2012 12:54:09 -0500

In a decision issued March 31, 2012, a United States District Court judge has rejected the appeal of the Plainville, Connecticut board of education from a hearing officer's ruling mandating reimbursement for residential placement at the F.L. Chamberlain School in Massachusetts. In Plainville Board of Education v. R.N. by Mrs. H., 112 LRP 16721 (D. Conn. 2012), Judge Chatigny deferred to the rulings of the hearing officer on issues of educational policy and her findings of fact in ruling in favor of the parent. As described in the decision, the case presents a remarkable picture of a student who, as a result of severe emotional disturbance, was unable to benefit from a therapeutic day program and required a residential placement in order to make educational progress, and it also addresses some common legal disputes between parents and school districts on the subject of obtaining evaluations and exploring appropriate placement options. See if you recognize any of this pattern in your current cases:

Diagnosed in 2nd grade with juvenile onset bi-polar disorder, the student began receiving special education services but was still hospitalized for psychiatric care. More services were added to the IEP and a therapeutic day program was recommended. The student was placed at Northwest Village School at Wheeler Clinic, where his behavior improved, but his mother and doctors were concerned that use of closed-door seclusion could be harmful to his condition. He did not make progress on his goals and objectives, but a neuropsychological evaluation supplied by the parent concluded that he had the potential to make significant academic progress. The following school year, he initially made a positive adjustment, but then his behavior deteriorated and he was sent to the emergency room and provided with homebound instruction while his parent explored other placement options. The district recommended placement at Intensive Education Academy (IEA), and for five months, the student attended there on a shortened day schedule, leaving each day at 11:00 a.m. Efforts to return him to a full day schedule were unsuccessful, and he was ultimately discharged from the school after striking two staff members and being suspended. At the last PPT meeting prior to the due process hearing, the school district recommended High Road School and the parent requested residential placement at Chamberlain, supported by the student's treating psychiatrist and other experts. The student then proceeded to make educational progress (by report of the school) at Chamberlain, attending classes regularly and not requiring seclusion, restraint or hospitalization during residential treatment.

Aside from a somewhat familiar fact scenario, the decision contains some interesting legal discussions. For example, the school district at one point requested a psychiatric evaluation of the student by its consulting psychiatrist, but the parent refused to consent unless the district provided more detailed information about the type of evaluation that would be conducted and what information was being sought. The hearing officer and the court both rejected the district's position that it was entitled to evaluate the student and that the parent had unfairly blocked necessary evaluations, finding that the district's failure to provide "exactly what medical or behavioral conditions it sought to discover" and "the methods of evaluation that would be used" failed to allow the parent to provide informed consent to the requested evaluations. The court went on to say that, while the district has a right to expect consent to conduct initial evaluations and triennial re-evaluations, the district does not have a right to "insist on an ad hoc reevaluation", and since the hearing officer determined that the student did not need to be re-evaluated, this conclusion would not be overturned by the court.

Additionally, the district stated (according to the decision) that it would not consider the evaluation reports provided by the student's treating psychiatrist and other professionals because the evaluations did not meet the district's IEE criteria, which require classroom observation and consultation with school district staff. However, the hearing officer and the district court judge found that the failure to consider the parent's evaluations was a procedural violation, because the evaluations in question were not district-funded IEE's, but instead were evaluations obtained at parental expense and presented for consideration by the PPT. As such, those evaluations did not have to comply with the district's IEE criteria.

The court went on to say, however, that it need not reach the issue of whether these two procedural violations resulted in a denial of FAPE to the student, because the IEP was not reasonably calculated to provide educational benefit to the student and therefore, he was denied FAPE in any event.

On the issue of denial of FAPE, the district argued that the hearing officer had overstepped her authority by considering the student's actual progress under each IEP that was offered, rather than whether the IEP was "reasonably calculated" to provide FAPE at the time it was generated. The court agreed that the Second Circuit Court of Appeals has not yet issued a definitive ruling on the subject of whether this type of "retrospective evidence" may be considered by the court in these cases. Despite this lack of controlling precedent, the judge nonetheless decided that retrospective evidence "must be appropriately discounted to avoid hindsight bias" but "is relevant and may therefore be evaluated: a failed plan is more consistent with an unreasonably calculated IEP than a reasonably calculated one." So, in the District of Connecticut, at this point, it appears that whether a student actually makes progress or regresses while being educated under the IEP developed by the district will be considered when determining whether the IEP was reasonably calculated to offer a FAPE.

Lastly, the district attempted to argue that the parent's involvement in the educational decision-making process should lead to the conclusion that the district could not be held responsible for denial of FAPE when it was only doing that which the parent asked. While agreeing that the parent could not "ask a school district to accede to her wishes and then try to punish it for doing so", the court found that parental involvement only defeats a claim by the parent that their procedural safeguards were violated, and does not excuse the district from providing a substantive FAPE to the student.

The broad range of legal issues decided in this case by the U.S. District Court may yet be reviewed by the Second Circuit Court of Appeals. Meanwhile, using this case as a guide, districts will do well to make evaluation requests thoughtfully, provide information to parents about what information is sought in the evaluations and types of assessments that will be performed, consider the impact of private evaluation reports whether or not they comply with the district's IEE criteria, and recall that failure to progress educationally in a therapeutic day placement may indicate a need for residential placement through the IEP.

Parents Refuse Consent for IEP? Still No Obligation to Write 504 Plan

Michelle C. Laubin — Mon, 26 Mar 2012 14:52:33 -0500

If you are responsible for the implementation of either IEP's or Section 504 plans in your school district, at some point, you have probably encountered a situation where a parent refuses to provide consent (or revokes consent) for an IEP, and insists that the district instead implement a Section 504 Accommodation Plan. If so, you have probably wondered whether the district was obligated to do this, and you may have read the 1996 letter of guidance issued by OCR called Letter to McKethan, 25 IDELR 295 (OCR 1996). Well, it looks like McKethan just got another "shot in the arm" from a U.S. District Court judge in the Western District of Missouri.

In a decision filed March 1, 2012, Lamkin v. Lone Jack C-6 School District, 4:11-cv-01072-DW, the district had written an IEP for the child placing her in a special school for children with significant disabilities. The parents disagreed with the placment designation, but instead of filing for a due process hearing and challenging the placement under IDEA, they decided to revoke consent for special education services and enroll their child in the neighborhood school as a regular education student. When they did so and demanded that the school implement Section 504 accommodations, the school refused, and placed multiple calls to the state department for child welfare, alleging educational neglect of the child.

Not only did the court confirm that the parents had an obligation to exhaust the available administrative remedies under IDEA before proceeding to federal district court, but the judge also upheld the reasoning of the McKethan letter, stating that once the district has developed an IEP for the child and the parents have rejected that IEP, the district has no obligation to implement a plan of Section 504 accommodations for the student. To require otherwise would essentially require the school to implement an IEP under the guise of a Section 504 plan, when that IEP has already been refused by the parents. If the IEP is refused, then the child is considered a general education student and receives no services or accommodations. McKethan lives.

It should be noted that this is a lower federal court decision that may be appealed to the 8th Circuit Court of Appeals.

Minnesota School District Enters Into Five Year Consent Degree with Department of Justice and the Office of Civil Rights in Resolution of Peer-on-Peer Harassment and Discrimination Claims Based Upon Sex and Sexual Orientation

Carolyn Mazanec Dugas — Wed, 14 Mar 2012 13:33:54 -0500

The Anoka-Hennepin school district (District) in Minnesota recently entered into a five year consent decree with the U.S. Department of Justice (DOJ) and the U.S. Dept. of Education, Office of Civil Rights (OCR) to resolve two separate actions brought by six current or former district students alleging peer-on-peer harassment and discrimination based upon sex and sexual orientation. The actions were brought against the district, its school board and several individual school administrators.

The negotiated consent decree provides for detailed remedial measures aimed at eliminating and preventing future instances of harassment in its education programs and activities and also requires payment of $270,000 to the plaintiffs in full settlement of the Title IV and Title IX claims.

The agreed upon measures under the consent decree are numerous, varied and comprehensive. They range from required policy reviews and revisions (including a revision to provide that all harassment, including that based upon non-conformity to gender stereotypes and/or gender identity and expression, is prohibited in the District), to appointment of both a District Title IX Coordinator to address sex based harassment and an Equity Coordinator to focus solely on sexual orientation–based harassment. Other remedial measures to be undertaken by the District include: adoption of procedures for electronic tracking of harassment incidents involving sex-based or sexual orientation based harassment; the hiring of a third party consultant to review policies, procedures and advise and oversee the District’s success in implementing the required changes; student and employee education and training; expansion of the District’s existing anti-bullying/anti-harassment task force; identification of harassment hot-spots in its middle and high schools; adoption of peer leadership program in its middle and high schools for addressing harassment; the continuation of the Superintendent’s annual meeting with students at every middle and high school; and implementation of a program to monitor and assess the effectiveness of its anti-harassment efforts including administering anti-bullying surveys.

The remedial measures under the consent decree mirror many of the newly adopted responsibilities placed on Connecticut school districts under our state’s recently revised bullying statute. The statute has called for school districts to undertake a comprehensive approach to prevent bullying and create a positive school climate. This case should also be of high interest to the Connecticut educational community in light of the bullying legislation as well as legislation passed last spring specifically prohibiting discrimination based upon gender identity or gender expression. What are your schools doing proactively in response to this potential type of discrimination?

LABOR BOARD REBUKES TEACHER UNION CLAIM THAT NEW SOFTWARE CAUSED INCREASED WORK LOAD

Floyd J. Dugas — Wed, 22 Feb 2012 10:00:10 -0500

In a move that seemed to defy logic, the Connecticut Education Association (CEA) on behalf of its local affiliate the Milford Education Association, filed a complaint claiming that a popular software program, specifically designed to make easier the process of completing paperwork following a Planning and Placement Team meeting (PPT) for a special education student, in fact increased teachers’ workloads. In the case filed with the State Labor Board, the CEA alleged that the software program took teachers nearly twice as long (one to two hours more per student) to compete an Individualized Education Plan (IEP) than it previously took to do it in long hand. The workload of the teachers complaining involved in some cases as few as 6 students.

Rejecting the claim that there was any impact, let alone, substantial impact, the Labor Board dismissed the Union’s case noting that the complaining teachers were simply not comfortable with technology and or refused to avail themselves of technical support offered by the school district, the Milford Public Schools.

Had the Labor Board found that there was a substantial impact, the decision could have presented a significant burden and exposure to those school districts using the software system known as IEP Direct. Thankfully, the Labor Board exercised common sense, something the CEA should have done before undertaking a three year long battle and causing at least two school districts to expend significant resources, because a handful of teachers complained that a computer software program took them more time to prepare a report than doing so by hand.

For those interested, the case Milford Board of Education and Milford Education Association, SBLR Dec. No 4574 (2012) can be accessed via the state labor board’s website.

Supreme Court Declines to Hear Student Off-Campus Online Speech Cases

Megan A. Smith, Esq. — Tue, 17 Jan 2012 12:19:04 -0500

As you may recall from our previous posts regarding student's online speech, the summer of 2011 brought with it a split in the Circuit Courts regarding how to handle discipline of student's off-campus online speech. Specifically, the cases J.S. v. Blue Mountain Sch. Dist. and Layshock v. Hermitage Sch. Dist. out of the Third Circuit and Kowalski v. Berkeley County Schools out of the Fourth Circuit, all three involving students' online speech, were appealed to the Supreme Court. of the United States. The two cases from the Third Circuit ruled in favor of the students, finding that their speech was protected by the First Amendment, while the Kowalski v. Berkeley County Schools out of the Fourth Circuit, was decided in favor of the school district. Our hopes were that the Supreme Court would weigh in on this controversial issue of student's off campus online speech and provide school districts and administrators with clear guidance regarding how to appropriately discipline students' off-campus speech, but unfortunately, the Supreme Court has declined to hear the cases that were brought before it regarding off-campus online speech. So, where does that leave us?

As discussed elsewhere on our blog, schools in Connecticut should be aware of other Circuit Courts decisions regarding student's off-campus online speech cases, but administrators and school officials should understand that the Second Circuit decision Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) is still the controlling authority for districts in Connecticut. As you may recall from earlier posts, the Second Circuit in the Doninger case held that the student was properly disciplined for her off-campus blog and was not permitted to run for class office as the conduct on the blog was unbecoming for a potential class officer, and the blog post created a foreseeable risk of substantial disruption at her school. The Second Circuit applied the Tinker analysis to the off-campus speech and found that the school could discipline for off-campus speech, which created a foreseeable risk of substantial disruption at her school. As such, Doninger was unsuccessful in her attempt to force the school district to allow her to run for class office. Hence, school districts in Connecticut should continue to follow the standard set in Doninger and apply the Tinker analysis to off-campus speech determine whether the off-campus speech created a foreseeable risk of substantial disruption or created a substantial disruption at school. In addition, school districts, if not already familiar, should become very familiar with the new language and requirements of the Connecticut bullying statute, including the provisions relating to cyberbullying, that became effective in July 2011.

It is interesting that the Supreme Court declined the opportunity to hear J.S. v. Blue Mountain Sch. Dist., Layshock v. Hermitage Sch. Dist. and Kowalski v. Berkeley County Schools, since the Supreme Court passed up an opportunity to resolve an apparent split of authority amongst the Circuits, leaving the Circuits to continue to develop further case law on this issue. As discussed previously on this blog, both J.S. v. Blue Mountain Sch. Dist. and Layshock v. Hermitage Sch. Dist. involved student's creating fake MySpace profiles of school officials on their home computers that were vulgar, lewd and offensive and were suspended for ten days. The Third Circuit found in both the cases that the off-campus speech did not disrupt the school environment nor was there any reasonably foreseeable disruption that would have occurred from each student's off-campus conduct and that the school district violated the First Amendment by punishing the students for expressive conduct that occurred outside the school context. Conversely, the Fourth Circuit in Kowalski v. Berkeley County Schools upheld the school's discipline of a student who created a MySpace group, which was primarily aimed at harassing another student, stating that the student's speech "caused interference and disruption described in Tinker as being immune from First Amendment protection."

For now, we follow Doninger and wait.

Arbitration Panel Awards New Haven the Right to Privatize a Substantial Portion of School Custodians

Floyd J. Dugas — Thu, 01 Dec 2011 16:43:19 -0500

In what will no doubt be viewed as a landmark decision, an interest arbitration panel has issued an award which will allow the New Haven Public Schools to privatize 86 of the 186 positions in its custodial and maintenance union, and in the process save nearly $4 million dollars.

Faced with skyrocketing pension and health insurance cost which are expected to outpace the growth in revenues over the foreseeable future, the City of New Haven and its Board of Education were forced to look for ways to substantially cut operating costs. Having already laid off nearly 300 employees over the last two fiscal years, the Board and the City began to look at other options.

Among the options considered was outsourcing services that could continue to be provided at a substantial savings. An option that emerged was the outsourcing of school custodial and related services, which cost the Board $16 million per year. As a result of an RFP, the Board found a national firm willing to perform the same services for just $8 million, which would mean a net savings to the budget of $8 million per year.

Although the Board had contract language which arguably provided it with the right to unilaterally subcontract this work, given the State Board of Labor Relations propensity to require that such language be crystal clear, and the consensus that the language could be construed as less than so, the Board made the tactical decision to propose in negotiations clearer language which unequivocally gave it the right to subcontract union work.

Not surprisingly, the union, an AFSCME Local, refused to engage in any meaningful discussion of the issue, and as a result, the case went into binding interest arbitration. What followed was a nearly year- long battle, complete with picketing featuring the likes of Al Sharpton, and which included angry outbursts during the proceedings.

In the end, the Board’s last best offer proposed that 86 of the 186 jobs would be outsourced, rather than the entire unit. In other words, a core component of district employees would remain in place and be supplemented by non-union employees. Faced with a choice between the compromise position of the Board, and the refusal of the Union to offer any meaningful solution, the Panel selected the Board’s position.

In addition to the right to subcontract a substantial number of positions, the Board also won the elimination of a number of contract provisions which were considered impediments to operating efficiently. It also achieved a number of material changes in the areas of pension and healthcare, including the elimination of retiree health insurance for new hires.

The decision is notable in that it is one of, if not the first time, a state arbitration panel has awarded sweeping rights to a municipality to privatize union work in an effort to save money. Whether the New Haven award is the result of the proverbial perfect storm, or is a harbinger of things to come, has yet to be seen. It does, however, provide strong precedent for other Towns/Cities and Boards of Education looking for ways to deliver services in a more economical way in these difficult economic times.

FCC Issues Children's Internet Protection Act (CIPA) Rule Revisions Adding New Requirements for School Districts' Internet Safety Policies

Carolyn Mazanec Dugas — Wed, 12 Oct 2011 13:59:42 -0500

This month, the FCC released long awaited Children’s Internet Protection Act (CIPA) rule revisions. CIPA is a federal law enacted by Congress to address concerns about access to offensive, obscene or harmful content by minors over the Internet on school and library computers. In early 2001, the FCC issued rules implementing CIPA. FCC recently released Order 11-125 containing rule revisions and clarifications; the most notable rule revision is the requirement that schools applying for E-rate discounts on anything more than telecommunications (such as telephone services) must adopt and enforce Internet Safety Policies that require the monitoring of the online activities of minors as well as the education of minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyber bullying. The FCC clarified that although a school’s Internet safety policy may include the development and use of educational materials, the policy itself does not have to include such materials. For CIPA purposes, a "minor" means "any individual who has not attained the age of 17 years." The new requirements are for FY 2012, the E-rate funding year beginning July 1, 2012.

CIPA requires that before adopting an Internet Safety Policy, schools and libraries must provide reasonable notice and hold at least one public hearing or meeting to address the proposal. Districts that have existing and properly adopted Internet Safety Policies will not be required to hold new public hearings to amend their policies. New applicants, adopting an Internet Safety Policy for the first time, continue to be bound by the public notice and forum requirements of CIPA.

In addition to the new policy mandates, the FCC clarified that the determination of what is “inappropriate” for minors is a local decision to be made by the school board, local educational agency, library, or other authority. Most specifically, the FCC found that social network websites (e.g., Facebook and MySpace) do not fall into one of the categories that must be blocked.

Although CIPA requirements mandate filtering school or library computers used to access the Internet , the FCC acknowledged that there was confusion as to CIPA requirements pertaining to the on-site use of portable devices such a laptops or cell phones owned by students and library patrons to access school or library provided internet services. The FCC indicated that it intended to seek public comment on these issues in a separate proceeding.

In light of the recent FCC Order, School Districts are encouraged to review existing Internet Safety Policies now and begin revising them to incorporate the new CIPA mandates for the monitoring and education of minors by the July 1, 2012 deadline.

You are invited to contact BMD with your CIPA or policy questions.

Second Circuit Again Sides with District in Recent First Amendment Case

Amy Corbett Dion, Esq. — Fri, 30 Sep 2011 08:07:19 -0500

The issue in Cox v. Warwick Valley Central School District stemmed from a student assignment to write an essay for English class. The teacher asked students to write about what they would do if they had 24 hours to live. While this sort of creative writing occurs every day in classrooms across the country, teachers sometimes get troubling responses. One student in this class, Raphael, wrote an essay called “Racing Time”, in which he described drinking, smoking, doing drugs and doing other illegal activities, and ended the essay with him taking cyanide and shooting himself in the head in front of his friends. After Principal John Kolesar removed the student from class and later called the Department of Children and Family Services (DCYS) because he felt the parents did not take the essay seriously enough, the parents sued, alleging retaliation against their son in violation of his First Amendment rights, and for deprivation of the parents’ substantive due process rights for calling DCYS.

In this case, the Second Circuit Court of Appeals ruled in favor of the school on both issues. Regarding the retaliation claim, Principal Kolesar removed Raphael from the classroom to discuss the content of his essay. After speaking with the student, Kolesar placed Raphael in the in-school suspension room while he considered whether or not the student posed a safety risk to himself or others, which is understandable given the disturbing content of his essay. Determining that the essay did not constitute a true threat, Principal Kolesar chose not to discipline the student.

Kolesar did, however, call DCFS because he was concerned that the parents were not taking Raphael’s behavior seriously enough, and in effect, neglecting the child. DCFS conducted an investigation, but ultimately found the allegations of neglect to be unsubstantiated. The parents then brought this lawsuit.

The parents claimed that Raphael’s essay was protected speech under the First Amendment and that Kolesar had impermissibly retaliated against him by removing him from class and later calling DCFS. The Second Circuit did not answer the question of whether or not the essay constituted protected speech, holding instead that Kolesar’s actions were not adverse and therefore there was no retaliation in violation of the student’s First Amendment rights.

The Second Circuit noted that “outside the school context, an adverse action in a First Amendment retaliation case is conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Recognizing that First Amendment cases over student speech usually involve explicit censorship or disciplinary action, and that there is no clear definition of “adverse action” in the school context, the Court, citing Tinker v. Des Moines Independent Community School District, applied the “adverse action” analysis “in light of the special characteristics of the school environment”.

The Court discussed how school administrators have multiple responsibilities that include both protecting and disciplining students. In determining what is a serious threat or worthy of discipline, administrators must often investigate, which sometimes means interviewing students and removing them from class. The Court noted that an administrator “must be able to react to ambiguous student speech by temporarily removing the student from potential danger (to himself and others) until it can be determined whether the speech represents a real threat to school safety and student learning” and that those decisions, once made, are worthy of “unusual deference” from the court. Further, the Court noted that a “school cannot function without affording teachers and administrators fair latitude to make these inquiries”. In fact, many districts have suicide prevention policies that require the school team to assess whether a student is at-risk.

Noting New York’s mandatory reporter law, the Court found that the call to DCFS was also made to protect the child and was not adverse in nature. Importantly, the Court noted that if such reports could expose administrators to liability under federal law, then administrators would be between the proverbial rock and a hard place, as they would face liability whether they make the call or fail to make the call. The Court therefore rejected the parents’ due process claim, especially since they had never lost custody of their child, and furthermore, Kolesar had not acted with any sort of malice.

We have followed closely the Doninger v. Niehoff decision from the Second Circuit, in which the Court ruled in favor of the district for barring the student from running for student council after her off-campus speech disrupted the educational process. The recent decision in Cox, while it did not reach the issue of whether or not the essay constituted protected speech, was sympathetic to the demands of school administrators in meeting the needs of students, and ultimately ruled in favor of the district. As the Doninger case is currently up on appeal to the Supreme Court, we will see whether or not the high court agrees with Second Circuit’s interpretation of First Amendment issues. Stay tuned.

Judge Blocks Missouri Facebook Law

Michelle C. Laubin — Wed, 07 Sep 2011 18:00:08 -0500

On August 2 we posted an article about a new law set to go into effect in Missouri prohibiting on-line communications between teachers and students that seemed to have some potentially problematic language in it. Late last week a Missouri judge issued an injunction preventing the new law from going into effect. Apparently, the law was challenged by the Misouri State Teachers Association, arguing that the law would violate First Amendment protections afforded to teachers who communicate with students over social networking websites. In the order, the judge noted that the lawsuit had a good likelihood of success, that social networking websites are used extensively by teachers, and the law seemed to over-reach where it interfered with communications between teachers and their own children who happen to be students. This is not a final ruling in the case, so stay tuned.

8th Circuit Says Disciplining Student for Off-Campus Online Speech Containing True Threats Does Not Violate Student's Free Speech Rights

Megan A. Smith, Esq. — Thu, 18 Aug 2011 13:31:57 -0500

Here we go again. Only a few days after the 4th Circuit issued its decision Kowalski v. Berkley County Sch., the 8th Circuit has now become the latest court to recently weigh in on the issue of whether a school district’s discipline of off-campus online speech violates a student’s free speech rights under the First Amendment. As discussed in our recent post on July 28, 2011, there has been much activity in the Circuit Courts in the past few months regarding disciplining of students for their off-campus online speech. So, what did the 8th Circuit have to say on the issue?

In D.J.M. v. Hannibal Pub. Sch. Dis., No. 10-1428, decided on August 1, 2011, the 8th Circuit held that statements made in a student’s off-campus online communication with a fellow classmate constituted unprotected true threats and therefore not protected speech. As such, the 8th Circuit held that the school’s discipline of the student did not violate the student’s First Amendment rights. The facts in this case involved an off-campus online instant message conversation in which the student in this case, D.J.M, made statements to another classmate about getting a gun, named specific students that he “would have to get rid of”, and stated that he could borrow a .357 magnum from a friend. He further stated that a particular named classmate “would be the first to die.” The student with whom D.J.M was having the instant message communication became concerned about the threatening nature of the student’s messages and provided portions of the online conversations to school administrators. The school administrators agreed they should call the police, which they did. The student was placed in juvenile detention and the school district ultimately suspended him for the rest of the school year.

In appealing the district court’s decision granting the school district’s motion for summary judgment, D.J.M asserted that 1) he had not intended to make any true threats and that his messages were not serious expressions of intent to harm 2) his speech should not be regulated by school officials because it was online outside of school and 3) the school’s decision to suspend him was content based restriction violating the First Amendment. The 8th Circuit rejected these claims, finding that there was no genuine dispute of material fact regarding whether his speech could be reasonably understood as a true threat and as such was not protected speech under the First Amendment. The 8th Circuit also used the reasonably foreseeable substantial disruption analysis test based on the Supreme Court’s decision in Tinker and found that the off-campus speech caused a substantial disruption and therefore could be the subject of disciplinary action.

As some of you may recall, the 2nd Circuit in 2007 weighed in on this issue regarding off-campus threats in the case Wisniewski v. Bd. of Educ. of the Weedsport Central School District, 494 F.3d 34 (2d Cir. 2007). In Wisniewski, the 2nd Circuit held that the district court had properly dismissed the claim that a school district had violated a student’s First Amendment Rights when the school suspended the student for sharing over the Internet a small drawing, which crudely and clearly suggested that a named teacher should be shot and killed. Applying the Tinker analysis, the 2nd Circuit held that it was reasonably foreseeable that the student’s online communication would cause a substantial disruption within the school environment, and as such, the school district in disciplining the student did not violate his First Amendment rights. The 8th Circuit refers to and discusses the Wisniewski case in the D.J.M. decision when determining that it was “reasonably foreseeable that D.J.M.’s threats about shooting specific students in school would be brought to the attention of school authorities and create a risk of substantial disruption within the school environment,” although, in the Wisniewski case, the 2nd Circuit never reached the issue of whether the internet transmission was a "true threat."

Connecticut school districts should continue to be aware of the other Circuit decisions, but note that until there is a Supreme Court ruling on this issue, the 2nd Circuit cases applying the Tinker standard are the law in this Circuit. When school districts are made aware of online communications that are threatening in nature, Connecticut school districts should be aware that the state's new bullying statute requires principals or a principal’s designee to notify the local law enforcement of any act of bullying that constitutes "criminal conduct.” As recommended previously on this blog, districts, if they haven’t already, should familiarize themselves with the new language and requirements added to Connecticut’s bullying statute.

Missouri Says No Teacher Student Facebook Friendships

Megan A. Smith, Esq. — Tue, 02 Aug 2011 07:50:24 -0500

As school districts puzzle over what sort of rules and prohibitions should be included in board policies addressing teachers’ use of social networking sites, one state’s legislature has stepped into the breach. In Senate Bill 54, also known as the Amy Hestir Student Protection Act, Missouri effectively became the first state to ban exclusive communications between teachers and students on nonwork-related websites.

The language of Missouri Senate Bill 54, effective on August 28, 2011, states:

By January 1, 2012, every school district must develop a written policy concerning teacher-student communication and employee-student communications. Each policy must include appropriate oral and nonverbal personal communication, which may be combined with sexual harassment policies, and appropriate use of electronic media as described in the act, including social networking sites. Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child's legal custodian, physical custodian, or legal guardian. Teachers also cannot have a nonwork-related website that allows exclusive access with a current or former student.

This is an interesting choice of language that, while not naming any particular social networking website, such as Facebook, would seem to prohibit teachers "friending" students on such sites, since there could be communications between teacher and student that are not accessible to parents. But what exactly is "exclusive access"? If the parent checks the student's Facebook account and has access to all communications made from the site, is that still considered "exclusive access"?

Note also that there is a prohibition on such relationships with "former" students. One might well ask, for what period of time does this prohibition last? Surely adults who have gone on to graduate from college and want to "friend" their 7th grade science teachers should not have to worry that this will get the teacher in trouble with the law, right? Suppose your aunt is a school employee in the same school district where you go to school and you "friend" her on Facebook - will that run afoul of the district's policy concerning "employee-student communications"?

Another interesting topic is the law's mandate that schools must write policies governing "nonverbal personal communication" as well. Although one assumes that this was intended as a reference to written "chat room" and message communications available through social networking sites, it does not appear to be limited to those types of communications as written. Will school districts start writing policies prohibiting certain types of gestures exchanged in person between teachers and students? Facial expessions? Body language? Let's hope sanity prevails, otherwise, we predict a First Amendment challenge on the horizon.

Circuit Courts Continue Battle Over Free Speech Rights for Students

Amy Corbett Dion, Esq. — Thu, 28 Jul 2011 13:31:25 -0500

School districts in Connecticut looking for guidance on how to handle discipline of students engaging in provocative speech on-line at home have been watching with interest the outcome of two cases in the Third Circuit that seemed to reach conflicting results. Both cases were re-heard by the Third Circuit Court of Appeals, sitting en banc, which recently ruled in favor of the student in both cases. So, where does that leave us?

In J.S. v. Blue Mountain School District, a student was suspended from school for creating a fake MySpace profile of her school principal on her home computer over the weekend that was both vulgar and offensive. The Third Circuit reversed the district court’s ruling, holding that schools in that circuit cannot punish students for “off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at the school.” The Third Circuit found that “general rumblings, a few minutes of talking in class, and some officials rearranging their schedules to assist” the principal in dealing with the profile did not amount to a substantial disruption in school. Moreover, the Court of Appeals found that the student’s speech could not have reasonably led school officials to forecast substantial disruption in school. Essentially, the Third Circuit held that the school district violated the First Amendment of the Constitution by giving the student a ten-day suspension for her off-campus speech. Some of the facts that seemed to be persuasive to the Third Circuit were 1) the student created the profile as a joke, 2) the student took steps to make the profile private so that access was limited to her and her friends, 3) that although the profile was “vulgar it was so juvenile and nonsensical that no reasonable person would take its content seriously,” and 4) that although the profile included a picture of the principal, it did not identify him by name, school or location. In addition, the school district’s computers blocked access to MySpace, so no student was able to view the profile while at school, and the only printout that was brought to the school was brought in at the request of the principal.

In the other case decided by the Third Circuit, Layshock v. Hermitage School District, another student created a fake MySpace profile of his principal that was again vulgar, lewd and offensive. In this case, while the student used a home computer, he accessed the MySpace profile at school, showed it to classmates and words of the profile “reached most if not all” of the high school student body. The student was suspended for ten days, placed in an alternative education program, banned from all extracurricular activities, and was not allowed to participate in his graduation ceremony. In that case, the Third Circuit held that the school district violated the First Amendment by punishing the student for expressive conduct that occurred outside of the school context, that did not result in a foreseeable and substantial disruption of school.

In both cases, the Third Circuit discussed, but did not endorse, the Second Circuit’s decision Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008). As you may recall from previous posts on this blog, the Second Circuit in Doninger held that the student was properly disciplined for her off-campus blog and not permitted to run for class office as the conduct on the blog was unbecoming for a potential class officer, and the blog post created a foreseeable risk of substantial disruption at her school. Doninger was therefore unsuccessful in her attempt to force the school district to allow her to run for class office.

The Third Circuit distinguished its cases from the Doninger case, finding that the off-campus speech in Layshock and J.S. v. Blue Mountain School District did not disrupt the school environment nor was there any reasonable foreseeable disruption that would have occurred from each student’s off-campus conduct, while in Doninger, the student’s off-campus speech had resulted in a foreseeable and substantial disruption of the school. In addition, the Third Circuit felt that the Doninger court was “careful to explain ‘that it had no occasion to consider whether a different, more serious consequence than disqualification from student office would raise constitutional concerns.’” The Third Circuit emphasized that Layshock’s disciplinary consequences were more serious than Doninger’s disciplinary consequences. It is important to note that in Layshock, the court stated that “in citing Doninger, we do not suggest that we agree with that court’s conclusion that the student’s out of school expressive conduct was not protected by the First Amendment there” and that the court was only citing to Doninger to respond to the school district’s contention that the Doninger case supported the school district’s disciplinary actions.

Recently, the Fourth Circuit weighed in on the discipline of a student for off-campus speech. In Kowalski v. Berkeley County Schools, a student had created a MySpace group which was primarily aimed at harassing another student, and approximately two dozen other students at the school joined the online group. The creator of the page received a 10-day suspension from school and a 90-day “social suspension” which prevented her from participating in extracurricular activities, for violating the school’s bullying policy. Citing Doninger, the Fourth Circuit held that the student’s speech “caused the interference and disruption described in Tinker as being immune from First Amendment protection”, and upheld the school’s discipline of the student.

Schools in Connecticut should be aware of the two Third Circuit decisions but understand that the Doninger case, as a Second Circuit decision, is still controlling authority for districts in Connecticut. The recent Fourth Circuit decision follows the holding in Doninger, giving credence to the Second Circuit’s approach, but is also not binding on the Second Circuit. The Third Circuit appears to be attempting to narrow the holding by the Second Circuit in Doninger to apply only to restrictions on extra-curricular or co-curricular activities, as opposed to exclusions from school, which have historically been treated differently in legal analysis. The Supreme Court of the United States may ultimately weigh in on this apparent split amongst the Circuits, if and when these cases are appealed. In addition, school districts should familiarize themselves with the new language and requirements added to Connecticut’s bullying statute, specifically the provisions relating to Cyberbullying, which are included in Substitute Senate Bill 1138, Public Act 11-232 and became effective on July 1, 2011.

New Anti-Bullying Statute Goes Into Effect Today

Michelle C. Laubin — Fri, 01 Jul 2011 12:55:55 -0500

If you haven't already, be sure to get a copy of Substitute Bill 1138, Public Act 11-232, effective July 1, 2011, which makes sweeping changes to the State's anti-bullying statute applicable to public school districts. The new law adds specific prohibitions against cyber-bullying, redefines "bullying" for purposes of the statute, and requires school districts to replace their 2009 school bullying "policy" with a "safe school climate plan" (to be approved by the school board and submitted to the Department of Education by January 1, 2012). The safe school climate plan must include (beginning July 1, 2012) the appointment of a district "safe school climate coordinator" to oversee a "safe school climate specialist" at each school, who shall (beginning July 1, 2012) be the school principal or the principal's designee. Also beginning July 1, 2012, each school principal must set up a safe school climate committee which shall include at least one parent or guardian of a student enrolled in the school. The committee is responsible for reviewing completed bullying investigation reports and identifying and addressing patterns of bullying in the school, reviewing and amending school policies relating to bullying, making recommendations on school climate issues, and collaborating with the school climate coordinator regarding the collection of bullying data. The parent representative should participate in all of this, except the first two items "or any other activity that may compromise the confidentiality of a student".

The revised definition of bullying states "(A) the repeated use by one or more students of a written, oral or electronic communication, such as cyberbullying, directed at or referring to another student attending school in the same school district, or (B) a physical act or gesture by one or more students repeatedly directed at another student attending school in the same school district, that (i) causes physical or emotional harm to such student or damage to such student's property, (ii) places such student in reasonable fear of harm to himself or herself, or of damage to his or her property, (iii) creates a hostile environment at school for such student, (iv) infringes on the rights of such student at school, or (v) substantially disrupts the education process or the orderly operation of a school."

Beyond this, bullying includes, but is not limited to "a written, oral or electronic communication or physical act or gesture based on any actual or perceived differentiating characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression, socioeconomic status, academic status, physical appearance, or mental, physical, developmental or sensory disability, or by association with an individual or group who has or is perceived to have one or more of such characteristics".

School employees who witness acts of bullying or receive reports of bullying, under the new "safe school climate plan" must orally notify the safe school climate specialist not later than one school day after the incident or report, and must file a written report no more than 2 school days afterwards.

School employees required to comply with these reporting requirements include teachers, substitute teachers, school administrators, superintendents, guidance counselors, psychologists, social workers, nurses, physicians, paraprofessionals, coaches, or independent contractors who regularly work with schoolchildren.

After the investigation into the alleged act of bullying is complete, if the act of bullying is verified, notification must be provided to the parents of the alleged victim and the alleged bully within 48 hours of the completion of the investigation, and an invitation to a meeting to discuss the incident must be issued to each set of parents.

If the act of bullying constitutes "criminal conduct", the new safe school climate plan must require that the principal or designee notify the local law enforcement agency of the alleged conduct.

If the Department of Education is able ("within available appropriations") to develop a model safe school climate plan for districts to use, it will do so, and along with instruments designed to collect school climate assessments, will be distributed these items to districts through the Connecticut Association of Schools. The Department may also establish ("within available appropriations") a state-wide safe school climate resource network to help districts identify, prevent and educate people regarding school bullying in the state.

This is not, by any means, a comprehensive listing of all of the provisions in the new statute. We urge you to read the Public Act, stay tuned for additional information, start thinking about the publications and notifications you may need to revise in your own district before the fall student/parent handbooks come out, and consult with your school attorney for advice!

Parent Cannot Revoke Consent for Special Ed, Then Claim Denial of FAPE

Michelle C. Laubin — Mon, 23 May 2011 10:18:34 -0500

This is one of those (rare) moments where, as a school lawyer, you think common sense has prevailed. We shouldn't need a decision from a State hearing officer to tell us that once a parent has revoked consent for special education services, then the parent cannot come back and claim that the district has denied the child a Free Appropriate Public Education (FAPE). And yet, we had a four-day hearing in February and March concerning that very issue, resulting in Final Decision and Order 11-0256, Student v. Newtown Board of Education. The decision will be posted on the State Department of Education website, but until then, you can read a copy of it here.

In December 2008, the United States Department of Education amended the IDEA regulations to allow parents to revoke consent for special education and related services provided under IDEA. No longer may school districts faced with a parent revocation of consent access any of the dispute resolution procedures available under IDEA in order to discuss the ramifications of such a decision or attempt to persuade a parent that this decision may not be in the best interests of the child. No mediation, no due process. Parents, the theory goes, have the right to make this decision without interference from the school district.

In this case, as discussed in the decision, the parent's decision to revoke consent for special education services came after (the parent believed) the district had failed to accurately record the child's IEP in the written documentation, and failed to implement the child's IEP the way the parent thought it should be implemented. However, instead of filing for due process claiming denial of FAPE or filing a complaint with the State Department of Education claiming failure to implement the IEP, the parent revoked consent for special education services, causing the child to be returned to general education with no special education services or supports. A few months later, the decision indicates that when it became apparent that the child still needed the services, the parent began to correspond with the district, hinting around that the district should convene a PPT meeting but insisting that she was not requesting such a meeting and would not allow the IEP to be implemented. When the district did convene a PPT and offered to implement the IEP, the parent again refused and filed for due process, but did not reinstate consent for special education services. After four days of hearings and a post-hearing brief, the decision of the hearing officer confirms that there is no relief that can be issued in such a case because the district does not have consent from the parent to provide any services to the child. Case dismissed.

Second Circuit: First Amendment Law Protecting Student Speech is Confusing

Michelle C. Laubin — Wed, 27 Apr 2011 09:33:38 -0500

The next chapter in the continuing saga of Doninger v. Niehoff, et al. was decided and issued by the United States Court of Appeals for the Second Circuit on April 25, 2011. You may recall reading about this case in 2008, when the Second Circuit upheld the decision of District Court Judge Mark Kravtiz denying the plaintiff student's motion for a preliminary injunction. At that point, the student, Avery Doninger, was attempting to force the defendant school district to allow her to run for class office, even though she was being disciplined for her off-campus blog speech as conduct unbecoming a potential class officer.

Following that decision, the defendant school officials moved for, and were granted, summary judgment on a variety of claims brought by the plaintiff student including a claim that they violated her First Amendment rights. The case was certified to the Second Circuit on an interlocutory appeal to allow the plaintiff to appeal the dismissal of claims against the defendant school officials on grounds of qualified immunity. The finding of the Second Circuit? Essentially, First Amendment law is so confusing that even we judges have trouble sorting it out, and school officials should not be held personally liable under these circumstances when, arguably, a reasonable jury could find that they got it wrong.

To refresh your memory, Avery Doninger was class secretary at the time of the original incident, in which she was upset by the potential postponement or relocation of a battle of the bands event at her high school, and so she allegedly did a few things in protest: (1) in concert with others, she accessed a home e-mail account from school and caused an e-mail letter to be sent out to numerous parents and students about the alleged injustice of the actions of school officials, (2) she posted, at home, on her personal livejournal blog (using inappropriate language for school-related communications), a protest statement and a call to action for others to contact school officials, and (3) after she was banned from running for class office and others started a write-in campaign for her, she contemplated and was prohibited from wearing a Team Avery T-shirt during the assembly for candidates to make speeches.

Qualified immunity essentially protects school officials from liability for civil damages when their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known". Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity, it is noted, protects "all but the plainly incompetent or those who knowingly violate the law". Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007). So, the primary question on this appeal was whether Avery Doninger's First Amendment rights were so clearly established that no reasonable jury could conclude anything other than school officials violated those rights. The Second Circuit says that these questions are sometimes so nuanced and difficult, meeting this standard is exceedingly difficult: "The law governing restrictions on student speech can be difficult and confusing, even for lawyers, law professors, and judges. The relevant Supreme Court cases can be hard to reconcile, and courts often struggle to determine which standard applies in any particular case." (Slip Op. at 29-30). Furthermore, "[the] line between the potential for 'substantial disruption of or material interference with school activities'...and the potential for less significant interference is similar to the 'hazy border' that the Supreme Court has recognized to exist between acceptable and unacceptable uses of force." Id. at 32. Therefore, the school officials here were entitled to the benefit of the doubt and would not be subjected to a jury trial that could result in a possible award of damages for violation of the student's First Amendment rights. While noting that a reasonable jury could find that the school principal was mistaken in her assessment of the risk of substantial disruption inherent in the student's expression, the court concluded that such a mistake would be a reasonable mistake, given the state of the law under the First Amendment.

While this means that school officials here are spared being individual defendants in a jury trial, this does not necessarily represent the last word on this case. There may still be claims pending in lower courts that will be subject to trial, and as of Tuesday, it was reported by major media outlets that the plaintiff was considering filing a petition for rehearing en banc before the entire Second Circuit Court of Appeals, or a petition for certiorari to the United States Supreme Court. Stay tuned.

OSEP Says Don't Insist on RTI Evidence Before Evaluating Private School Students for Learning Disabilities

Michelle C. Laubin — Wed, 20 Apr 2011 14:43:04 -0500

A recent letter issued by the Office of Special Education Programs (OSEP) calls into question the practice of denying a request to evaluate a student for potential learning disabilities based upon the failure of the private school where the child attends to conduct Response to Intervention (RTI) activities (or, as we in Connecticut call it, SRBI). In Letter to Zirkel, 111 LRP 2768 (OSEP 1/6/11), Dr. Zirkel asked OSEP to comment on the question of how a school district that has adopted an RTI approach may meet its "child find" obligations under the Individuals with Disabilities Education Act (IDEA) in a case where the student attends a private school and the private school has not adopted an RTI approach. These cases can arise because the child's parents have enrolled the student in a private or parochial school and either the parents or the private school may come to suspect that the child has a learning disability and make a referral to a public school district for evaluation. If the parents withdraw the stduent from private school and enroll in public school before making the referral for evaluation, these matters may be resolved by having the student participate in the increasingly more intensive tiered levels of instruction in general education required by most RTI models. However, if the parents want the child to remain in the private school during the evaluation process, the district is now faced with a conundrum: How do we satisfy our obligation to determine whether the child responds to appropriate instruction in general education if we are unable to provide the appropriate instruction that we would typically provide in this situation?

OSEP responded by stating that "the district is responsible for meeting its child find obligations under IDEA even if the private school has not implemented an RTI process." Oddly enough, according to OSEP, while the IDEA regulations requiring evidence of the child's response to intervention apply to public schools, "these requirements do not apply to private schools". Therefore, according to OSEP, "IDEA does not require an LEA to use RTI for a parentally placed private school child within its jurisdiction". Therefore, it would be "inconsistent with the evaluation provisions" of IDEA "for an LEA to reject a referral and delay provision of an initial evaluation on the basis that a private school has not implemented an RTI process with a child and reported the results of that process to the LEA."

While the idea that the special education evaluation regulations enacted pursuant to the IDEA apply to public schools and not private schools is interesting, OSEP does not provide an explanation for how this analysis hangs together, when ultimately, it is the public school district that must evaluate and, if appropriate, identify the student as having a learning disability. Of course the IDEA evaluation rules don't apply to private schools - they are not the LEA and have no responsibility for "child find" under IDEA!

How to reconcile this with the LD evaluation process and SRBI in Connecticut? Well, as pointed out by OSEP, RTI is but one component of an evaluation of a child with a suspected learning disability. Although one may not deny an evaluation solely on the basis of a lack of RTI data, one may convene an IEP team meeting and design an evaluation of the student in which one component is the application of SRBI during the evaluation period. One may even be successful in persuading the private school to implement SRBI for the student during this evaluation process so that the school district staff does not need to do this personally. Some school districts are actually providing training to staff in private schools in effective reading and math programs that could be used in such situations. Depending on the end result of the evaluation, including the accumulation of any SRBI data, the IEP team may feel that more information is required in order to determine eligibility, or it may determine that it has sufficient information to proceed.

School districts should certainly not deny evaluations and services to students in private schools who clearly have disabilities and need such services. On the other hand, neither should districts hesitate to obtain needed information consistent with Connecticut Guidelines on Identification of Children with Specific Learning Disabilities in order to make good eligibility decisions. We cannot have a two-tiered system where students in private schools are identified as "disabled" because they are unable to succeed in the specific private school program in which they have been enrolled by their parents, while similarly situated students in public schools are provided with general education interventions. This would defeat the purpose of the RTI/SRBI regulations. OSEP, are you listening?

FOI Rules That Arbitration Hearings Under the TNA Are Open To The Public

Floyd J. Dugas — Wed, 13 Apr 2011 09:19:28 -0500

In a decision which is likely to change the dynamics of interest arbitration proceedings in Connecticut, the Freedom of Information Commission has ruled that the decades long presumption that teacher interest arbitration hearings are closed to the public, is incorrect.

In the case at issue, the Waterbury Republican-American Newspaper sought entry to an interest arbitration proceeding between the Torrington Board of Education and the Torrington Education Association. The arbitration panel, chaired by Arbitrator Larry Foy, ruled in response to the objection of the Union that interest arbitration hearings are not open to the public. The newspaper filed an FOIA complaint and the Freedom of Information Commission ruled on February 25, 2011, in a case of first impression that interest arbitration panels under the Teacher Negotiations Act are a “committee” of the State Board of Education, thus subject to the requirements of the Act. Accordingly, unless appealed, teacher and administrator interest arbitration hearings will be open to the public.

It is unclear whether the same rule will apply to the arbitration of non-certified contracts under the Municipal Employees Relations Act. As of this date, the State Board of Mediation and Arbitration has taken the position that this decision does not apply to MERA cases because of C.G.S. Section 31-100 which exempts certain of its hearings from FOIA.

Readers should be aware of this ruling and closely follow as to whether an appeal is filed, particularly if your district has any teacher or administrator negotiations which go to arbitration this year.

Connecticut Expenditure Limitation During a Referendum

Floyd J. Dugas — Mon, 07 Mar 2011 14:34:08 -0500

With budget season in full swing, readers may wish to re-acquaint themselves with Connecticut law limiting the expenditures of public funds when a referendum is pending. These rules apply to Boards of Education.

To begin with, until a referendum is actually pending, i.e. all the steps necessary to have it placed on the ballot have occurred, there are no restrictions on what can be done. Once the referendum is pending, however, no public funds may be expended either directly or indirectly "advocating" for the referendum. The term “indirectly” has been interpreted to include using district copiers, postage machines and employees (including Superintendents) working on advocacy while "on the clock". The only exception is districts may notify people as to date, time and place of the referendum and the question presented. Importantly, any advocacy materials must be removed from the district website during the pendency of the referendum.

A couple of things are allowable during the pendency of the referendum that otherwise would constitute advocacy: A public official can prepare a statement such as a press release which does express a position, as long as it is not used primarily for dissemination to voters (it is OK if it ends up in some peoples hands but a mass distribution is prohibited); and it is acceptable to advocate at Board of Ed meetings (including please get out and vote "yes").

Additional information can be attained from the State Election Enforcement Commission Website at http://www.ct.gov/seec/site/default.asp

Medication Administration Regulations Amended

Michelle C. Laubin — Wed, 12 Jan 2011 14:40:14 -0500

This fall, Connecticut revised the regulations implementing those provisions of Section 10-212a of the General Statutes concerning administration of medications in school by school personnel. The revised regulations require school districts to develop and implement policies and procedures dictating which school personnel authorized by the statutes will have actual authority in the district to administer medication to students, including so-called "cartridge injectors" to students with severe allergic conditions, and any procedures needed before, during, and after administration of medication. Policies need to be developed in conjunction with the school nursing supervisor and school medical advisor, and will need to be revisited at least once every two years.

In addition, the new rules states that no medication may be administered without the written order of an authorized prescriber, the written authorization of the student's parent or guardian, AND the written permission of the parent for the exchange of information between the prescriber and the school nurse necessary to ensure the safe administration of the medication. 10-212a-2(b).

Qualified personnel who may be authorized to administer medications to students in school may include coaches and licensed athletic trainers during athletic events and paraprofessionals. 10-212a-2(d)(4) and (5). Investigational drugs or research or study medications may not be administered by school personnel. 10-212a(d)(3). Annual training must be provided to all personnel who will be administering medications, and training must be provided by the school nurse or school medical advisor. 10-212a-3. Schools must keep careful records of the student-specific training that is provided. 10-212a-3(c). Licensed practical nurses (LPN's) may administer medications under a medication plan established by the school nurse, and if they can demonstrate appropriate training as part of their nursing program. 10-212a-3(d).

The new regulations also require school districts to permit students to self-administer prescribed emergency medications such as asthma inhalers and cartridge injectors if the student has a verified chronic medical condition and is deemed capable to self-administer. Such emergency medications do not include controlled substances (except in extraordinary conditions such as international field trips). Both an authorized prescriber and the parent need to provide written authorization for self-administration, and, under most circumstances, the school nurse needs to assess the student's competency and must deem it safe and appropriate, looking at various factors related to the student's knowledge and understanding of the medication plan. 10-212a-4.

In addition to coaches, athletic trainers, and paraprofessionals, the regulations also cover administration of medications in school readiness programs and before- and after-school programs which are run by local or regional boards of education and municipalities but exempt from licensure under the Department of Public Health. Such programs must also have policies and procedures for the administration of medications, developed with the input of the school medical advisor or licensed physician and the nursing supervisor, which determine the level of nursing services needed to ensure the safe administration of medications in the program, who may administer medications, whether a licensed nurse must be on site, and otherwise track the requirements for training, documentation and record-keeping applicable to schools. The regulations contemplate that parents will provide a separate supply of medication for use in the after-school program, but in situations where this is not possible, the medication supply may be transferred back and forth between the school nurse's office and the after-school program on a daily basis. 10-212a-10(f).