Connecticut Education Law Blog

Congress Broadens Obligations Under The Americans With Disabilities Act

jmarquis@bmdlaw.com (Jennifer L. Marquis) — Fri, 10 Oct 2008 11:28:45 -0500

Through H.R. 3195, our 110th Congress has vastly expanded the reach of the Americans with Disabilities Act, by effectively bringing within its reach a large number of individuals previously excluded under the current jurisprudence interpreting the Act. The Act still maintains its primary definition as to who is included thereunder (those with “a physical or mental impairment that substantially limits one or more major life activities” or those “regarded as disabled”), but calls for an expansion of what it means to “substantially limit,” what constitutes a “major life activity,” and what it means to “be regarded as disabled.”

Moreover, the new legislation explicitly reverses the Supreme Court’s narrow interpretation of the Act, which previously foreclosed those who could control their conditions through the use of medication, physical or other aids. Now, even though such persons might function as well as a non-disabled individual, they will be covered by the Act.

The new legislation will take effect on January 1, 2009. Congress has called upon the Equal Employment Opportunity Commission (EEOC), the administrative agency tasked with interpreting the Act, to revise its regulations. Such revisions are expected to be forthcoming. This new legislation and its forthcoming regulations will have the effect of reversing nearly two decades of judicial decisions that moderated the impact of the Act upon employers. Accordingly, employers will likely encounter more demands for accommodation and will likely see a rise in the number of claims brought for violation of the Act, as the number of potential claimants grows exponentially.

SDE Issues New Guidance for Student Suspensions

mlaubin@bmdlaw.com (Michelle C. Laubin) — Thu, 09 Oct 2008 09:42:12 -0500

Commissioner of Education Mark McQuillan issued new guidance dated October 1, 2008 to all school districts to help implement the new requirements of Connecticut General Statutes Section 10-233c requiring all suspensions to be in-school rather than out-of-school (unless certain requirements are met) as of July 1, 2009. This guidance was required by the legislation passed last year, and is available on the State Department of Education website at http://www.sde.ct.gov/sde/pdf/pressroom/In_School_Suspension_Guidance.pdf. In his memorandum to school districts, Commissioner McQuillan invites districts to continue to review the guidance document and submit feedback to help create the most useful guidelines possible. The Department also promises to hold technical assistance seminars and workshops between now and March 2009 to help districts assess their readiness to implement the new law for the 2009-2010 school year.

As of July 1, 2009, Section 10-233c will require that "Suspensions pursuant to this section shall be in-school suspensions, unless during the hearing held pursuant to subsection (a) of this section, 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 shall be excluded from school during the period of suspension." The effective date of this legislation was delayed from July 1, 2008 to July 1, 2009 after school district officials across the state protested that the new law was going to require additional staff and supervision of students in in-school suspension programs in most districts.

The guidance issued by SDE contains an overview of the data collected from school districts during the 2006-2007 school year, showing that males are more likely to be disciplined than females, special education students are more likely to be disciplined than regular education students, minority students are more likely to be disciplined than white students, and lower achievement test scores are correlated with higher rates of discipline. State and local discipline data is available at http://www.csde.state.ct.us/public/cedar/cedar/discipline/index.htm.

Of the 177,360 disciplinary incidents reported to SDE during the 2006-2007 school year, the incidents most frequent policy violations resulting in out-of-school suspension were insubordination/disrespect, disorderly conduct, skipping class, obscene language/profanity, and failure to attend detention/in-school suspension. According to the SDE guidance, "most of the incidents in the school policy violation category will not meet the criteria for implementing an out-of-school suspension as defined in the amended CGS Section 10-233c." (Emphasis supplied.)

The guidance from SDE provides a list of "mitigating factors" to be taken into consideration by administration during the pre-suspension conference in determining whether the student poses a danger or disruptive influence on the educational process, including the age, grade level and developmental stage of the student; severity of the infraction or disruption, the student's disciplinary history and any patterns or identified behavioral antecedents; the student's intent and expressed reasons for engaging in the problem behavior; special learning, behavioral or emotional needs of the student and whether these needs have been addressed through referral to a CST or other appropriate group; the student's prior response to disciplinary interventions; the stuent's academic progress and relative risk of lost instruction, disengagement from school and dropping out; degree of involvement and level of parent support in efforts to improve the student's behavior in school; and interpretation of culture and communication factors. These factors are enumerated in a "Decision Guide" for school administrations attached to the new guidance.

It appears that this list includes all of the factors usually considered by school administrators in meting out appropriate disciplinary sanctions for students, so the main difference in implementation will still come as a result of the language of the statute, which states that unless after consideration of these factors there is a danger or disruption posed by the student in the event of an in-school suspension, the presumption must be that any suspension will be served in-school rather than out-of-school. Of the three example scenarios issued with the guidance for disorderly conduct, insubordination/disrespect, and obscene language, only the last one for obscene language meets the test for an out-of-school suspension. In that case, the student's behaviors are escalating, previous attempts at in-school suspension have had no impact on the student's behavior, and it is felt that the student's behavior cannot be managed in in-school suspension.

Additional appendixes issued with the guidance deal with application of the new law to students with disabilities, and suggestions for developing an effective in-school suspension program. The latter includes placement of pupils by age or grade in a positive learning environment, supervision and/or instruction as determined by the district using a qualified individual, prompt access to current school work supplied by the pupil's classroom teachers, and guidance on correcting behavior. 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.

Student Blog Insults Not Protected by First Amendment

mlaubin@bmdlaw.com (Michelle C. Laubin) — Sun, 28 Sep 2008 20:52:13 -0500

The United States Court of Appeals for the Second Circuit affirmed the decision of the United States District Court for the District of Connecticut in the case of Doninger v. Niehoff et al., denying a preliminary injunction to a Burlington, Connecticut student that would have allowed the student to run for class office despite being stripped of that privilege by school administrators at Lewis Mills High School. Her offense? Posting a "vulgar and misleading message about the supposed cancellation of an upcoming school event" on a publicly accessible weblog ("blog"). The student's mother sued the school district in federal district court, claiming that her daughter's First Amendment rights had been violated, and seeking to void the election for Senior Class Secretary and either have a new election ordered or grant her daughter the same rights and privileges as would be accorded to her had she won the election, including speaking as class officer at graduation. The preliminary injunction was denied by Judge Kravitz, and his decision upheld by the Second Circuit.

The facts of the case are somewhat disputed, but essentially it appears that Avery Doninger, as the Junior Class Secretary, was involved in planning the annual Battle of the Bands, and the event was postponed twice for various reasons. When it appeared that a third posponement was possible, four students met in the school computer lab and sent out a message to parents and members of the community from one of the parents' email accounts, alerting them to the situation, and asking them to contact the school superintendent to protest. As a result, the principal and superintendent received a large volume of calls and e-mails about the proposed cancellation. After a conversation with school administration that day, Avery went home and posted a message on her personal weblog calling the central office administration "douchebags" and stating that they had decided to cancel the event altogether, a fact denied by the administration. She then encouraged people to contact school administration to "piss them off more". Several students posted comments to the blog, including one calling one of the administrators a "dirty whore". As might have been expected, the following day, the administration received many more contacts by phone and e-mail from the community regarding the event.

Although the event was held and the principal did not find out about the blog post until later, when Avery tried to submit her nomination for Senior Class Secretary election, the principal showed her a copy of the blog post and demanded that she apologize to the superintendent, show a copy of the post to her mother, and withdraw her candidacy. Avery complied with the first two demands but not the third, and was denied the opportunity to run in the election on the grounds that she had failed to accept counsel from the administration on acceptable ways to resolve her concerns about Jamfest, she had used vulgar language in her post, and she encouraged others to disrupt the business of central office, none of which were considered conduct fitting for a class officer.

The court noted that school administrators may limit speech by students that will materially and substantially disrupt the work and discipline of the school, and that vulgar or offensive speech that might be protected in the adult world may be limited by school officials in the name of teaching students the boundaries of socially appropriate behavior. Moreover, although the Supreme Court has yet to rule on the issue, the Second Circuit has determined that students may be disciplined for conduct occurring off school grounds when that conduct would foreseeably create a risk of substantial disruption within the school environment. The court found that Avery's blog post was sufficiently vulgar and incited disruption to the educational process such that if it had been distributed on school grounds, it would have been the legitimate target of disciplinary action by school officials. The court rejected the student's argument that the speech was not subject to disciplinary action because it occurred off school grounds in the privacy of the student's home, because it was specifically designed for the purpose of coming onto school grounds and disrupting the school. Avery posted the comments on her blog specifically to get students to respond and to encourage students to get their parents involved to contact the school and central office administration to disrupt their usual business and force them to focus on their issue. Moreover, her language was "plainly offensive" and not conducive to cooperative conflict resolution.

It was also significant to the court's decision that the action taken by school officials was not to suspend or expel Avery from school, but to stop her from running for an office in student government, since participation in voluntary extracurricular activities is a "privilege" that can be rescinded when students fail to comply with the obligations inherent in the activities. Avery's speech was found likely to disrupt the proper operation of the student government and the values that activity is designed to promote (i.e., good citizenship). Noting that school officials have the difficult task of teaching "the shared values of a civilized social order", including both free expression and civility, the court stated that it is not free to intervene in how school officials carry out this task absent specific constitutional guarantees not present here.

The court went one step further in its opinion, however, and stated that there is no need for school administrators to wait until there is an actual disruption in order to act to avoid that disruption. Instead, school officials may act to forestall a reasonably foreseeable disruption to the educational process by taking immediate disciplinary action. This may present the lasting legacy of this case, since we in Connecticut have been struggling the last few years to determine the meaning of the phrase "serious disruption to the educational process" in the context of suspension and expulsion under our state laws and constitutional requirements.

You be the judge: Will this case change the way in which school officials interpret the requirement for "serious disruption of the educational process" in determining appropriate disciplinary consequences for other types of on campus and off campus misconduct?

Cross-Examination of Witnesses Not Required at Expulsion Hearing

mlaubin@bmdlaw.com (Michelle C. Laubin) — Mon, 22 Sep 2008 22:42:53 -0500

The United States District Court for the District of Connecticut, Judge Eginton, has ruled in the case of E.K. v. Stamford Board of Education, 3:07cv00800 (WWE) that the due process rights of a student expelled for leaving threatening racist messages on the voice mail of a female student (among other offenses) were not violated when the student was deprived of the ability to cross-examine the female student who made the accusation, in the expulsion hearing. Adopting the reasoning of other federal courts, the court stated that due process does not afford high school students the right to confront and cross-examine student accusers at expulsion hearings, in part because the administrative investigation provides a safeguard against error, and cross-examination of student accusers is duplicative of the investigative efforts of school personnel. In addition, "the presence of corroborating evidence diminishes the potential value of cross-examination at the expulsion hearing." Balancing the student's right to due process against the school's interest in conducting an efficient disciplinary hearing, the court concluded that any provision disallowing the use of hearsay statements and requiring confrontation of student accusers would be overly burdensome to schools due to the increased challenge of maintaining order and discipline.

Citing the benefits of an administrative expulsion process as one that avoids the cost and complexity of adversarial litigation, the court also highlighted the strong interest of schools in protecting the identities of students who cooperate with investigations into the misconduct of fellow students. Such students are unlikely to come forward with information leading to enforcement of the student code of conduct if they are faced with the prospect of cross-examination by their fellow student and his/her attorney.

It should be noted that in this case, it appears that the identity of the female accuser was protected and she was not brought to testify in the expulsion hearing. Instead, a tape recording of the voice message was played, and other written materials may have been presented in the nature of investigation or incident reports by school personnel. To the extent that a witness is brought to the hearing to testify in person and the identity of that person is disclosed, the court seems to support the notion that the student who is the subject of the hearing would have the right to cross-examine that witness.

FPCO Clarifies Scope and Requirements of FERPA

mlaubin@bmdlaw.com (Michelle C. Laubin) — Sun, 14 Sep 2008 22:29:12 -0500

The Family Policy Compliance Office (FPCO) issued a letter to a parent seeking access to records that clarifies the scope and requirements of the Family Educational Rights and Privacy Act (FERPA), noting that the school is not generally required by FERPA to provide a parent with access to school calendars or general notices such as announcements of parent-teacher meetings or extracurricular activities. Such general notices are not educational records pertaining to the individual student and are not subject to the FERPA access requirements. In addition, a school is not required to create documents in response to a FERPA request, and is not required to provide a parent with periodic updates regarding student records. Rather than submitting a "standing request", parents seeking access to educational records under FERPA should submit a specific request for records. Unless a specific state law applies (such as Connecticut's regulation allowing parents of special education students to have one free copy of a child's special education records), FERPA requires that the district provide access to the parent to examine the records within 45 days of receipt of the request. Letter to Anonymous, 107 LRP 64188 (FPCO, 9/28/07).

Seclusion and Restraint Administrative Regulations Set for Public Hearing

mlaubin@bmdlaw.com (Michelle C. Laubin) — Wed, 16 Jul 2008 13:48:27 -0500

The newly proposed administrative regulations from the State Department of Education on the subject of seclusion and restraint of special education students were published in the Connecticut Law Journal on July 15, 2008, so they are now officially open for public comment for a 30-day period until August 15, 2008. A public hearing has also been scheduled for Tuesday, August 19, 2008 from 9:30 a.m. to 3:30 p.m. at the SERC Classroom, 25 Industrial Park Road, Middletown, CT. Views and arguments may be submitted in writing to Attorney Theresa DeFrancis, Education Consultant, Bureau of Special Education, P.O. Box 2219, Hartford, CT 06145.

A full copy of the proposed regulations can be obtained by clicking here.

Connecticut Appeals Court Weighs in on FOIA Copying Costs

mlaubin@bmdlaw.com (Michelle C. Laubin) — Thu, 26 Jun 2008 10:40:47 -0500

Have you ever received a complaint that you were unfairly charging a member of the public for copying documents under the Freedom of Information Act (FOIA) because you charged separately for copying each side of a double-sided piece of paper? The Court of Appeals now says this practice is perfectly legitimate, since the dictionary definition of a "page" means one side of a piece of paper. In Williams v. Freedom of Information Commission, 108 Conn.App. 471 (2008), the plaintiff complained about being charged separately for copying each side of a double-sided piece of paper, claiming that this practice violated Section 1-212(e) and the definition of a "page". While acknowledging that depending on the context, the term "page" can sometimes mean one side of a piece of paper and other times refers to a double-sided sheet of paper, the court found that the legislature in the State of Connecticut generally defines a "page" as one side of a piece of paper. Furthermore, although the general purpose of FOIA is to provide reasonably easy access to public records at a relatively low cost, the legislature has acknowledged that there is a cost to public agencies associated with complying with the Act, and has shifted part of that cost to the person requesting copies of the public records. To the extent that some people find the cost of copies prohibitively expensive, the Act provides that the usual fee may be waived in some instances.

Existing State Bullying Statute Repealed; New Statute Expands Definition of Bullying and Adds Implementation, Prevention Strategies and Teacher Training Requirements

cdugas@bmdlaw.com (Carolyn Mazanec Dugas) — Tue, 24 Jun 2008 16:29:52 -0500

The passage of PA 08-160 which repeals C.G.S. 10-222d, the state’s existing bullying statute effective July 1, 2008, and adds new requirements and changes the definition of bullying seemingly has gone unnoticed. The lack of attention may be because this Act also addresses controversial changes to in school suspension laws which have garnered much attention. Notwithstanding the lack of notice, PA 08-160 makes significant changes to the existing bullying laws and places new requirements on school districts to implement and revise their bullying policies.

Pursuant to PA 08-160, the definition of “bullying” has been expanded to include “any overt acts by a student or group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school sponsored activity or on a school bus, which acts are committed more than once against any student during the school year.” This definitional change eliminates the requirement that the overt acts be committed repeatedly against the same student over time. Presumably, the previous requirement that the acts be committed against the same student over time, prevented schools under their bullying policies from disciplining a student who engaged in pervasive, generalized bullying, but did not engage in specific bullying of one individual student over time.

In addition to definitional changes, the new statute requires:

1) teachers and other staff members who witness acts of bullying to make written notification to school administrators;

2) prohibits disciplinary actions based solely on the basis of an anonymous report of bullying;

3) requires prevention strategies as well as interventions strategies;

4) requires that parents of a student who commits verified acts of bullying or against whom such bullying occurred be notified by each school and be invited to attend at least one meeting;

5) requires school to annually report the number of verified acts of bullying to the State Department of Education (DOE);

6) no later than February 1, 2009, boards must submit the bullying policies to the DOE;

7) no later than July 1, 2009, boards must include their bullying policy in their school district’s publications of rules, procedures and standards of conduct for school and in all of its student handbooks, and

8) effective July 1, 2009, boards must now provide in-service training for its teacher and administrators on prevention of bullying.

The DOE will be reviewing and analyzing the policies submitted to it by school districts and will be developing model policies for grade K-12 prevention of bullying by February 1, 2010.

School districts are encouraged to revise their existing policies to comply with immediately effective changes to the bullying statute and also are directed to begin to plan for changes to bring their policies into compliance with future requirements pursuant to PA 08-160.

Legislature Postpones Deadline to July 1, 2009 For Implementation of New In-School Suspension Law

cdugas@bmdlaw.com (Carolyn Mazanec Dugas) — Thu, 15 May 2008 12:33:16 -0500

With the close of the 2008 legislative session, HB 5826 An Act Concerning School Learning Environment has passed. The bill postpones from July 1, 2008 to July 1, 2009 the effective implementation date for PA 07-66 which generally prohibits out of school suspensions and extends from five to ten days, the maximum length of in-school suspensions. The passage of PA 07-66 raised a number of concerns for school boards and school administrators regarding the pragmatics of implementing the new law. Those concerns included questions over the potential additional costs for implementation, staffing issues and space issues, as well as questions about how under the new law, administrators are to discern what student behaviors are seriously disruptive enough to warrant on out-of-school suspension.

HB 5826 attempts to address some of these expressed concerns which were left largely unanswered by the initial legislation by first extending the deadline for implementation of the new law by an additional year from the original effective date, and secondly, by requiring Connecticut’s Education Commissioner by October 1, 2008 to issue guidelines to help boards and administrators determine whether a pupil should receive an in-school or out-of-school suspension. HB5826 clarifies that a central location can be used for in-school suspension, and that each school does not have to have an in-school suspension room. Until the Commissioner issues his guidelines, a number of issues remain outstanding, but after a preliminary meeting with the Commissioner, the Connecticut Association of Boards of Education reports that at this point, there is no requirement that a certified teacher be assigned to monitor in-school suspended students.

School boards and school administrators are encouraged to stay informed and abreast of attempts in upcoming legislative sessions to modify, clarify, or even repeal this recent legislation and its predecessor PA 07-66. In the meantime, school boards that have made accommodations for the implementation of the new in school suspension laws may implement those changes, but are not legally obligated to until July 1, 2009. The more prudent approach is to wait until the newly set deadline for implementation, or minimally wait until the education commissioner issues his guidance this October before implementing any responsive changes.

School boards are encouraged to make their voices heard on this issue before guidelines are issued and prior to the legislation taking effect.

Special Ed Hearing Statistics for 2007

mlaubin@bmdlaw.com (Michelle C. Laubin) — Mon, 21 Apr 2008 14:26:33 -0500

If you have the patience to click on each individual numerical link on the State Department of Education website under Special Education Due Process Hearing Decisions, you too may be able to discern the following statistics from the 2007 hearing decisions. These numbers are based on only those cases filed in 2007 that were also decided in 2007; it will not include those that were filed in 2006 and decided in 2007, or those filed in 2007 and decided in 2008. None of the 2008 decisions have been posted yet.

Number of cases filed and withdrawn or dismissed due to settlement: 154

Number of cases filed by parents and dismissed on motion from the board: 6

Number of cases decided "on the merits": 15

Of the cases decided "on the merits", number decided in favor of boards: 9

Of the cases decided "on the merits", number decided in favor of boards where the parent was not represented by counsel ("uncontested cases"): 5

Remaining decisions in favor of boards in "contested cases": 4

Of the cases decided "on the merits", number decided in favor of parents: 4

Split decisions (part of ruling in favor of board, part in favor of parent): 2

Continuing on this theme, here is the breakdown of hearing decisions by hearing officer from this same group of hearings. This includes only the decisions "on the merits" filed and decided in 2007 where both parties were represented by counsel (so-called "contested cases"):

Christine Spak: 2 decisions; parents prevailed in both.

Mary Elizabeth Oppenheim: 3 decisions; parents prevailed in 2, board prevailed in 1

Patricia M. Strong: 4 decisions; 1 split decision, board prevailed in 3

Decisions "on the merits" were also issued by Scott Myers, Mary Gelfman, and Justino Rosado during this period of time, but all were issued in "uncontested" cases where the parent was not represented by counsel. Mary Elizabeth Oppenheim and Patricia Strong also filed decisions in uncontested cases. In each uncontested case, the board either prevailed or (in one case) there was a split decision with some relief ordered to the parent.

Of the 6 cases dismissed on motion by the board, 4 were filed by pro se parents, one case was filed by a non-education attorney, and one case was dismissed and then re-filed by the proper party.

Invitation to Comment: Why do you think so many cases are settled rather than litigated? Please keep comments general rather than personalizing them to a particular attorney or hearing officer, and we'll post the ones we can.

Berchem, Moses & Devlin Announces the Opening of its Westport Office

fdugas@bmdlaw.com (Floyd J. Dugas) — Fri, 07 Mar 2008 13:16:21 -0500

Two Historic Law Firms Join Forces to Become Pre-eminent Connecticut Firm

Two of the oldest law firms in Connecticut have joined forces in a move that will create one of the most comprehensive legal services businesses in the state. Berchem, Moses & Devlin, P.C. and Wake, See, Dimes, Bryniczka & Bloom (of Westport, Conn.) have combined their practices, as of March 1, 2008, resulting in a staff of nearly 30 attorneys covering 14 different law specialties. The new firm will operate under the name of Berchem, Moses & Devlin, P.C., and will maintain existing offices at 75 Broad Street in Milford and 27 Imperial Avenue in Westport.

Areas of practice at Berchem, Moses & Devlin include education law, business and commercial law, labor and employment, civil litigation, land use, estate planning, and real estate law. The newly combined firm will have a particular strength in education and municipal law.

“This is the first move of its kind in both of our long-standing histories as premier law firms in Connecticut, and is one that will benefit our clients tremendously,” said Robert Berchem, senior partner at Berchem, Moses & Devlin and member of the firm since 1967. “By adding the law services under Wake, See, Dimes, Bryniczka & Bloom, we have strengthened our expertise and now are able to expand the types of services we provide to new and existing clients.”

Ira W. Bloom explained the value the move has for his clients. “Working as part of the Berchem, Moses & Devlin firm builds on our very long history and reputation for excellence and integrity,” he said. “Our Fairfield County clients will continue to work with the attorneys at our Westport office, and now they will benefit from the added resources and support of the highly regarded attorneys in the Milford office.”

Berchem, Moses & Devlin, P.C. (www.bmdlaw.com) started as a general practice firm in 1933, and has grown to become a full-service lawfirm. The company is well-regarded as providing high-quality legal services in a cost-effective manner with a strong commitment to clients and community. Wake, See, Dimes, Bryniczka & Bloom (www.wsdb.com) started in 1946 and has long been a well-known firm in Fairfield County. The firm has a strong reputation as having the expertise of a large firm combined with the responsiveness of a small firm

Legislative Update: Recruiting and Bullying Policies

mlaubin@bmdlaw.com (Michelle C. Laubin) — Wed, 05 Mar 2008 17:27:06 -0500

Proposed legislation introduced in today's session of the General Assembly includes Raised Bill 5868, An Act Concerning Recruiting at High Schools, and Raised Bill 649, An Act Concerning School Learning Environment.

RB 5868 would require all boards of education to adopt a written policy on or before January 1, 2009 regulating recruitment by the armed forces, prospective employers, colleges and other post-secondary institutions in high schools. The policy proposed by this statute would prohibit the recruitment of any student under 15 years of age unless parental consent has been provided, would require the recruiter to obtain permission from the school principal before conducting recruiting, would require interview appointments to be set up through the guidance office, and would limit recruitment activities to designated areas of the school. The required policies would also require parental notification that participation in recruitment activities is voluntary, and would require districts to release directory information about students to recruiters unless parents have opted out (with a required process for notification and opt-out as well). Consistent with the Patriot Act, recruiters from the armed forces would have equal access to students as compared to other types of recruiters at high schools.

RB 649 would require the Department of Education to contract with the Yale Child Study Center (or another similar entity) to train Department employees concerning "child development and learning strategies through the integration of development and instructional programs that can lead to positive transformation of school culture and climate", including but not limited to "development of a framework and organizing force to help school staff and parents create an in-school culture that promotes academic and life success". Then, once the Department employees have been trained by Yale, school districts would be able to apply for the opportunity to attend workshops given by those Department employees to train them on how to create a positive school climate.

The same bill would amend Connecticut General Statutes Section 10-222d (the bullying policy statute) to require that school districts go beyond development of an anti-bullying policy to the implementation of that policy, and would require the Department of Education to fine any school district $2500 to $5000 out of state funding grants for education for failing to implement the bullying policy. The definition of bullying would be modified slightly from acts "repeated against the same student over time" to acts "committed more than once against any student during the school year".

Also under this proposed bill, Connecticut General Statutes Section 10-22a(a) would be amended to require school districts to provide staff development opportunities on the subject of bullying prevention.

Comments?

Dr. Jones Appeals Ruling - Partial Stay Issued

mlaubin@bmdlaw.com (Michelle C. Laubin) — Tue, 04 Mar 2008 17:54:32 -0500

In previous blog entries, we have covered the December order issued by the Connecticut Medical Examining Board (CMEB) against Dr. Charles Ray Jones. On January 18, 2008, Dr. Jones filed an appeal of the CMEB order, claiming that the order was in error and specifically claiming bias on the part of one of the CMEB members who participated in the decision. Papers filed by Dr. Jones and his attorneys claim that following the hearing decision, his attorney was approached by a member of the audience claiming to have knowledge of the bias of one of the doctors sitting on the panel. This alleged bias is the subject of a series of affidavits filed by family members in State Superior Court claiming to have sought treatment for chronic Lyme Disease with this physician, who allegedly made a series of derogatory statements about the existence of chronic Lyme as a recognized condition and indicated that the treatment of such a non-existent condition would be fraudulent.

Although no final decision on the appeal has yet been issued, on February 19, 2008, the court issued a temporary partial stay of the CMEB order. According to the February court order, the civil penalty in the amount of $10,000 has been paid into escrow and will remain there until the appeal is resolved, and the 2-year probationary period has been stayed. However, the provision of the CMEB order requiring monitoring of Dr. Jones' practice by an independent pediatrician remains in effect, with some modifications.

The independent pediatrician will still conduct a random review of 30 of Dr. Jones' patient records on a quarterly basis, and Dr. Jones must still meet with this person on a quarterly basis. However, the monitor may not find that Dr. Jones is in violation of the CMEB order "solely on the basis of the diagnosis and treatment of Lyme Disease in a very low risk patient with non-specific history, non-specific signs and symptoms and negative laboratory tests." In the event that the monitor has a concern, s/he is obligated to discuss that concern with Dr. Jones, and if no resolution is reached, the monitor may call the matter to the attention of the Department of Public Health.

Meanwhile, it appears that the second complaint filed against Dr. Jones regarding his treatment of a local pediatric patient with chronic Lyme Disease is also proceeding forward and hearings may be scheduled before the CMEB beginning in April 2008.

More Legislative Updates: Criminal Charges for Residency Misrepresentation

mlaubin@bmdlaw.com (Michelle C. Laubin) — Mon, 03 Mar 2008 12:36:59 -0500

Today's bills filed in the General Assembly include Raised Bill 5833, a proposed amendment to Connecticut General Statutes Section 53a-119, which would add as a felony criminal charge "obtaining school accommodations by misrepresenting a child's residence". This would be defined as a parent, guardian or person acting on behalf of such person (or student if over the age of 18), intentionally misrepresenting the town of residence of the child, with the intent to obtain school accommodations from a school district other than the one in which the child resides.

Although other sections of the criminal code relating to theft of public goods have been cited in connection with the arrest of parents in connection with this type of offense, this would make it clear that such conduct is a criminal offense without having to rely on an interpretation of another more general section of the criminal code. This bill has been referred to the Judiciary Committee.

For other new bills filed, read on...

Raised Bill 5820 would amend Connecticut General Statutes Section 10-221a to allow high school students to obtain up to two (2) foreign language credits by taking courses through a private (nonprofit) provider and passing an exam prescribed by the State Department of Education.

Raised Bill 5821 would amend PA-07-3 passed in the June special session to allow the Connecticut Distance Learning Consortium to deliver Advanced Placement courses on line, provided that the Department of Education approves the content of the course, and would require locan and regional school districts to participate in the consortium.

Raised Bill 609 would amend Connecticut General Statutes Section 17a-101 to include school superintendents as mandated reporters in the State of Connecticut who are required to report suspected child abuse or neglect to the appropriate State authorities.

Raised Bill 611 would require every local and regional board of education to operate a recycling program at each school under the board's jurisdiction, including provision of appropriate receptacles and appropriate disposal of recyclable materials. Types of recyclable materials and a minimum number of types to be included in the program are not defined; nor is there any reference to a contingency plan if the municipality of the town does not operate a recycling pick-up program.

Raised Bill 612 would amend Connecticut General Statutes Section 10-183b to include business administrators as "teachers" for purposes of participation in the state teachers' retirement program, and would provide an opt-out provision this year for those business administrators who do not wish to participate.

Raised Bill 613 would amend Connecticut General Statutes Section 10-15 to provide for a uniform school year start date of the Wednesday after Labor Day for every public school in the state.

Have a comment? Make your voices heard by adding your comments to this blog, and don't forget to contact your legislator(s) directly. With the exception of the first bill regarding the criminal charge for residency misrepresentation, each of the other bills reported today has been referred to the Committee on Education.

Legislative Update: Use of Asthma Inhalers

mlaubin@bmdlaw.com (Michelle C. Laubin) — Tue, 26 Feb 2008 11:18:59 -0500

Raised Bill 5702, referred to the Committee on Public Health in this session of the General Assembly, would allow a "respiratory care practitioner" to issue a written certification to a local or regional board of education providing that a child diagnosed with asthma be permitted to possess an asthmatic inhaler at all times while attending school.

This legislation would also add a check-box to the standard health assessment form completed by parents and physicians prior to school enrollment which would indicate whether such a certification has been issued allowing the child to carry an asthma inhaler in school. The bill would make similar changes to other portions of the statutes permitting self-administration of an asthma inhaler by a student who has been given the appropriate certification.

Would this legislation result in any changes in policy in your Connecticut school district? Tell us by posting a comment (see link at right).

Busy Season at the State Legislature

mlaubin@bmdlaw.com (Michelle C. Laubin) — Thu, 21 Feb 2008 13:08:16 -0500

If the last few days are any indication, it promises to be a busy season for the General Assembly, particularly at the Committee on Education. Multiple bills have been raised in both the Senate and the House pertaining to education of school-age children, and most of these have been referred to the Education committee. While by no means an exhaustive list, here are a few of the more interesting bills submitted to the committee or raised by the committee so far this session:

Proposed Bill (House) 5360, introduced by Representative Mushinsky of the 85th District, proposes that the Connecticut General Statutes be amended so that the State will take over the provision of special education from the municipalities to provide for a uniform standard of education for special needs children.
Several bills have been referred to the Committee on Education on the subject of special education funding, among them Proposed Bills (House) 5366, 5367, 5369, 5376, 5377, 5386, and (Senate) 231, most of which propose to lower the cap on funding for special education excess costs to either 3 times or 2.5 times the per pupil expenditure, and some of which propose removing the cap on excess costs to fully fund the excess costs of providing special education services.
Proposed Bill 5372 (Davis, Dist. 117 and Boukus, Dist. 22) would provide a 2% increase in education grants to pay for the mandatory in-school suspension "or other education mandates".
Proposed Bill 5373 (Dillon, Dist. 92) would appropriate 2 million dollars to the Department of Education to provide grants for after school programs.
Raised Bill 406 would require every board of education to supply a copy of the Constitution and a copy of the Declaration of Independence for each school in the district to be displayed on every day that school is in session.
Raised Bill 5595, An Act Concerning Genocide Awareness Education, would require the State Board of Education to provide curriculum materials to local school districts to assist them in teaching about genocide, including the scope and consequences of genocide (in addition to the already required Holocaust education, Great Famine in Ireland, African American history, Puerto Rican history, Native American history, and personal financial management).
Raised Bill 5592 provides for the issuance of a temporary 90-day certificate to be issued by the State Board of Education in the area of early childhood education, which had apparently been omitted from the list of permissible 90-day certificates in the past.
Raised Bill 5591, An Act Concerning Healthy Teens, would cause the Department of Education to establish a healthy teens education grant program to allow local school districts to provide "medically accurate health education" that follows curriculum guides developed by the State, and provides an appropriation of 1 million dollars for this purpose.
Raised Bill 5590, An Act Concerning Special Education and Instructional Methods Concerning Autism and Other Developmental Disabilities, would require the Commissioner of Education to incorporate methods of teaching children with autism and other developmental disabilities into programs for teacher preparation, requirements for the intitial educator or provisional educator certificate, in-service training for certified staff, and training provided to paraprofessionals. This training would include characteristics of autism and developmental disabilities, curriculum planning, instructional modifications, adaptations, and specialized techniques, assistive technology, and inclusive educational practices.

Can't find copies of the bills? Call or contact us.

Labor Board New Past Practice Exception For School Districts

fdugas@bmdlaw.com (Floyd J. Dugas) — Fri, 15 Feb 2008 08:48:08 -0500

The Connecticut State Board of Labor Relations recently issued a decision, Region 16 Board of Education, Decision No. 4270 (2007), in which it held that a unilateral change in the workload of Special Education Teachers constituted a prohibited practice. In doing so, the Board created an exception to the general rule that a unit wide fixed practice must be demonstrated in order for a union to establish a unilateral change based upon prior practice.

Generally, it is an unfair labor practice for an employer to change a term or condition of employment in the face of a unit wide fixed past practice. Accordingly, where there has been a mixed practice, unions have been hard pressed to prove a violation.

In the Region 16 case, the School District was faced with an increase in the workload of certain Special Education Teachers as a result of the resignation of another Special Education Teacher. The Labor Board rejected the employer’s argument that past practice must be viewed on a unit wide basis. This had long been the understanding in Connecticut. Citing the fact that Special Education Teachers’ working conditions differ substantially from those of other teachers, the Labor Board looked at Special Education Teachers as a stand alone class for purposes of evaluating a change in the past practice. After doing so, it found that the workload of the teachers had increased substantially, notwithstanding that the teachers were all afforded the contractually required preparation and lunch period.

It is not yet clear how far will be the reach of the Region 16 decision. For instance, if a certain class of teachers, such as elementary library teachers, have a lesser workload than other elementary teachers, then their workload is increased to match that of other elementary teachers, does this require bargaining? That question was not answered by the Labor Board in Region 16, however, one could certainly see Teachers’ Unions advancing such an argument. In light of the decision, School Boards should consult with their counsel prior to expanding the workload of teachers other than in a truly de minimis sense in order to make sure it does not run afoul of Region 16 or any progeny which follow.

NCLB Testing Requirements May Trump IDEA

mlaubin@bmdlaw.com (Michelle C. Laubin) — Thu, 14 Feb 2008 16:22:53 -0500

In a recent decision, the 7th Circuit Court of Appeals (Illinois) has upheld the dismissal of a school district's lawsuit challenging certain provisions of the No Child Left Behind Act (NCLB) on the grounds that since NCLB was enacted after the Individuals with Disabilities Education Act (IDEA), the later-enacted NCLB provisions would trump any conflicting requirements in the IDEA. Some parents and school districts have challenged the NCLB provisions requiring certain forms of standardized testing to be administered to all students, including those with disabilities, and limiting the forms of accommodations and modifications that may be made and the number of students who can be exempt from the testing, on the grounds that those provisions violate the "individualization" requirements of the IDEA. The IDEA generally requires those accommodations and modifications necessary to permit a student to receive a free appropriate public education to be incorporated into a disabled student's IEP and implemented in all applicable situations, including testing. However, in Board of Education of Ottawa Township v. Spellings, the court decided that even if these provisions are conflicting, Congress enacted NCLB more recently than IDEA and therefore must be assumed to have overridden the individualization requirements of IDEA with the accountability provisions of NCLB.

The court noted that the IDEA dates back to 1970, while NCLB was enacted in 2001. Even though the IDEA has been re-authorized many times since then, changing names in 1990 and being significantly amended in 2004, these re-authorizations did not make the IDEA a "new" law. In fact, the court noted, the 2004 amendments to IDEA were intended in large part to bring IDEA in line with NCLB, rather than to supplant that law.

The court assumed, but did not decide, whether the challenged provisions of NCLB and IDEA were actually in conflict, leaving that question for another day. However, it may come as a surprise to many educators, parents, and advocates of children with disabilities that the "individualized" accommodations required by IDEA can be pushed aside in favor of the mass-testing requirements of NCLB.

Because this decision comes out of the 7th Circuit, it is not binding here in the 2nd Circuit, but provides an interesting glimpse into how such challenges have fared at the federal court level, and could prove persuasive in a challenge here as well.

Arbitrator Upholds Termination of Custodian For Leaving Early

fdugas@bmdlaw.com (Floyd J. Dugas) — Thu, 14 Feb 2008 09:31:31 -0500

In a decision rendered recently by the American Arbitration Association, a AAA Arbitrator has ruled that a board of education had just cause to terminate a custodian with a relatively unblemished record for repeatedly leaving work early and recording on their time sheets that they had worked their full shift. The case involved two evening shift custodians at Hawley School in Newtown. As is the case with many of Connecticut’s schools, there is no on-site supervision outside of the bargaining unit in the evenings. It was discovered these employees would routinely leave early yet record on their time sheets that they had worked the full shift. Relying on the fact that the collective bargaining agreement made it clear that no employee could leave early without authorization, and that the time sheets explicitly stated “FALSIFICATION OF TIME SHEETS IS CAUSE FOR IMMEDIATE DISMISSAL,” the arbitrator concluded that the employees clearly should have known that leaving early was grounds for termination. Although progressive discipline is normally required, the Arbitrator noted that “some acts of misconduct are so grave that progressive discipline is neither required nor appropriate.”, and “Repeated theft of time and filing false time records are acts of moral turpitude for which it is generally recognized that progressive discipline is not appropriate.” Readers interested in obtaining a copy of the decision can contact Floyd Dugas.

Emerging Category of Discrimination - Caregivers

fdugas@bmdlaw.com (Floyd J. Dugas) — Wed, 13 Feb 2008 11:27:11 -0500

On May 23, 2007, the Equal Employment Opportunities Commission (EEOC) issued guidance on the treatment of employees with “caregiver responsibilities.” While the federal discrimination statutes do not directly prohibit discrimination against “caregivers,” the new EEOC guidance does note that discrimination against caregivers that is grounded in a federally protected class, such as sex or disability, can be used as a basis for such a claim. “Family Responsibility Discrimination” as the theory is becoming known, is gaining popularity. School Districts are not immune from such claims. Generally speaking, a caregiver is one who provides daily care for a child, elderly or disabled family member. Typically the caregiver is a female. Of course, however, such claims are not limited just to women. Such claims have typically arisen in the following situations:

· Denying a woman an assignment or promotion based on the belief that she may not want to work the extra hours or to relocate.

· Disciplining a caregiver for absenteeism disproportionately to an individual without caregiving responsibilities.

· Failure to hire based upon stereotypical assumptions about external demands.

· Denying a leave of absence or intermittent leave to deal with an ill or disabled family member.

· Failing to hire a single mother (or father).

· Subjecting a woman to a hostile environment because she is a parent with a young child or cares for a family member with a disability.

School Districts should be aware of the possibility of such claims as they discipline employees for absenteeism and/or consider personnel for promotion. As with all forms of discrimination, proper training and consecutive levels of evaluation are important first steps in minimizing the risk of such claims. Given the publicity surrounding the EEOC guidance, it is likely we will see a continued increase in the number of such claims.